Exhibit 10.39
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of March 13, 2000
by and between
▇▇▇▇ ATLANTIC - PENNSYLVANIA, INC
and
BROADVIEW NETWORKS, INC.
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251 and
252 of the Telecommunications Act of 1996 (the "Act"), is effective as of the
13th day of March 2000 (the "Effective Date"), by and between ▇▇▇▇ Atlantic
Pennsylvania, Inc. ("BA"), a Pennsylvania corporation with offices at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Broadview Networks, Inc.
("Broadview") a Delaware corporation with offices at ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (each individually, a "Party" and,
collectively, the "Parties").
WHEREAS, Broadview has requested, pursuant to Section 252(i) of the Act,
that BA make available to Broadview Interconnection, services and unbundled
Network Elements upon the same terms and conditions as provided in the
Interconnection Agreement (and any amendments thereto that have been approved
under applicable law) between MCImetro Access Transmission Services, Inc. and
BA, dated as of September 3, 1997 for the Commonwealth of Pennsylvania, approved
by the Commission under Section 252 of the Act, copies of which agreement and
any subsequent amendments thereto that have been approved under applicable law
being attached hereto as Appendix 1 (the "Separate Agreement"); and
WHEREAS, BA has undertaken to make such terms and conditions available to
Broadview hereby only because of, and to the extent required by, Section
252(i)of the Act.
NOW, THEREFORE, in consideration of the mutual provisions contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Broadview and BA hereby agree as follows:
1.0 Incorporation of Separate Agreement and Appendix 2 by Reference
1.1 Except as expressly stated herein, the terms and conditions of the
Separate Agreement, as it is in effect on the date hereof after giving effect to
operation of law, and of Appendix 2 attached hereto, are incorporated by
reference in their entirety herein and form an integral part of this Agreement.
1.2 References in the Separate Agreement to MCImetro Access Transmission
Services, Inc., or to MCIm or to MCI shall for purposes of this Agreement be
deemed to refer to Broadview.
1.3 References in the Separate Agreement to the "Effective Date", the date
of effectiveness thereof and like provisions shall for purposes of this
Agreement be deemed to refer to the date first written above. Unless terminated
earlier in accordance with the terms of the Separate Agreement, this Agreement
shall continue in effect until the later of the date (a)of the
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expiration of the initial term of the Separate Agreement (which, for the
avoidance of any doubt, is August 31, 2000) or (b) the Separate Agreement is
otherwise terminated or expires.
1.4 All references in the Separate Agreement to "800/888" shall be deleted
in their entirety and replaced with the following: "800/888/877".
1.5 All usage data to be provided pursuant to Sections 3.1.3.8 and 3.1.3.9
of Attachment VIII of the Separate Agreement shall be sent to the following
address on behalf of Broadview:
▇▇▇ ▇▇▇▇
Broadview Networks, Inc.
▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
1.6 All certificates or other proof of insurance to be sent to BA under
Section 15 of Attachment VI of the Separate Agreement shall be sent to the
following address:
Director - Interconnection Services
▇▇▇▇ Atlantic - Telecom Industry Services
Room 1423
1095 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
1.7 All notices, affidavits, exemption-certificates or other
communications to Broadview under Section 27.7 of Part A of the Separate
Agreement shall be sent to the following address:
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
Broadview Networks, Inc.
▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
1.8 All notices, affidavits, exemption-certificates or other
communications to BA under Section 27.7 of Part A of the Separate Agreement
shall be sent to the following address:
Tax Administration
▇▇▇▇ Atlantic Corporation
1095 Avenue of the ▇▇▇▇▇▇▇▇
▇
▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
1.9 Notices to Broadview under Section 14.1 of Part A of the Separate
Agreement shall be sent to the following address:
▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Broadview Networks, Inc.
▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
1.10 Notices to BA under Section 14.1 of Part A of the Separate Agreement
shall be sent to the following address:
Director - Interconnection Services
▇▇▇▇ Atlantic Wholesale Markets
1095 Avenue of the Americas
Room 1423
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 212/704-4381
with a copy to:
▇▇▇▇ Atlantic Network Services, Inc.
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.,
Associate General Counsel
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ Atlantic-Pennsylvania, Inc.
Attn: General Counsel
37th Floor
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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1.ll The rates, charges and other terms set forth in Appendix 2 hereto shall
replace and supersede in their entirety the rates, charges and other terms set
forth in Table 1 of Attachment 1 to the Separate Agreement.
2.0 Clarifications
2.1 Part B, definition of "Local Traffic" set forth at Section 1.71 of
Part B of the Separate Agreement, is hereby deleted in its entirety and
replaced as follows:
"'Local Traffic' means traffic that is originated by an end user
subscriber of one Party on that Party's network and terminates to an
end user subscriber of the other Party on that other Party's network
within a given local calling area, or expanded area service
("EAS")area, as defined in ▇▇▇▇ Atlantic's Tariffs, or, if the
Commission has defined local calling areas applicable to all Local
Exchange Carriers, then as so defined by the Commission. In addition,
Local Traffic does not include any traffic that is transmitted to or
returned from the Internet at any point during the duration of the
transmission ('Internet Traffic')."
(b) A new sentence (on reciprocal compensation arrangements) is
hereby added at the end of Section 2.4.3 of Attachment IV of the
Separate Agreement, as follows:
"In addition, the reciprocal compensation arrangements set
forth in this Agreement are not applicable to exchange access,
including origination or termination of Internet Traffic".
2.2 The Parties agree that if any judicial or regulatory authority of
competent jurisdiction determines (or has determined) that BA is not required to
furnish any service or item or provide any benefit to Telecommunications
Carriers otherwise required to be furnished or provided to Broadview hereunder,
then BA may, at its sole option, avail itself of any such determination by
providing written notice thereof to Broadview.
2.3 Notwithstanding anything to the contrary contained in this Agreement,
the Parties agree that BA shall only be required to provide Combinations and any
services related to its provision of Combinations to the extent (a)required by
Applicable Law or (b) mutually agreed to by the Parties in writing after the
date hereof.
2.4 For the avoidance of doubt, the Parties acknowledge and agree that
the term "Dedicated Transport", as described in Section 10 of Attachment III of
the Separate Agreement, includes subscriber premises only if such premises
contain Central Office switching equipment used for interoffice transmission to
and from the other end of the Dedicated Transport path.
2.5 The entry into, filing and performance by BA of this Agreement does
not in any way constitute a waiver by BA of any of the rights and remedies it
may have to seek review of any of the provisions of the Separate Agreement, or
to petition the Commission, other administrative body or court for
reconsideration or reversal of any determination made by any of
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them, or to seek review in any way of any portion of this Agreement in
connection with Broadview's election under Section 252(i) of the Act.
2.6 Notwithstanding any other provisions of this Agreement, BA shall have no
obligation to perform under this Agreement until such time as Broadview has
obtained a Certificate of Public Convenience and Necessity ("CPCN") or such
other Commission authorization as may be required by law as a condition for
conducting business in the Commonwealth of Pennsylvania as a local exchange
carrier.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the date first set forth above.
BROADVIEW NETWORKS, INC. BELLATLANTIC - PENNSYLVANIA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------- -----------------------------
Printed: ▇▇▇▇ ▇. ▇▇▇▇▇ Printed: For ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------- ------------------------
Title: Chief Operating Officer Title: Vice-President - Interconnection
----------------------- --------------------------------
Services Policy & Planning
--------------------------
APPENDIX 1
TABLE OF CONTENTS
A. GENERAL TERMS AND CONDITIONS A-2
Section 1 - Scope of This Agreement A-2
1.4 Construction A-3
Section 2 - Regulatory Approvals A-4
Section 3 - Term of Agreement A-5
Section 4 - Charges and Payment ▇-▇
▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇▇▇ ▇-▇
Section 6 - Compliance with Laws A-6
Section 7 - Governing Law A-7
Section 8 - Relationship of Parties A-7
Section 9 - No Third Party Beneficiaries A-8
Section 10 - Intellectual Property Rights A-8
Section 11 - Indemnification A-9
Section 12 - Limitation of Liability ▇-▇▇
▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇▇▇▇▇▇▇ A-11
Section 14 - Notices A-12
Section 15 - Technical References ▇-▇▇
▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇▇▇▇▇ ▇-▇▇
Section 17 - Waivers ▇-▇▇
▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇▇▇▇▇ ▇-▇▇
Section 19 - Force Majeure A-15
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Section 20 - Publicity A-20
Section 21 - Default and Termination A-16
21.3 Billing Disputes A-16
Section 22 - Confidentiality A-18
Section 23 - Audits and Examinations A-21
Section 24 - Dispute Resolution Procedures ▇-▇▇
▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇ ▇▇▇▇ Request Process for Further Unbundling A-23
Section 26 - Branding ▇-▇▇
▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇▇ ▇-▇▇
Section 28 - Responsibility for Environmental Contamination A-29
Section 29 - Facilities A-29
Section 30 - Option to Obtain Services Under Other Agreements A-30
Section 31 - Other Services A-30
Section 32 - Provision and Use of Services A-31
Section 33 - Selection of IntraLATA Telecomm. Service Provider A-32
Section 34 - Service Standards A-32
Section 35 - Subcontracting A-33
Section 36 - Amendments and Modifications A-33
Section 37 - Severability ▇-▇▇
▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇▇▇▇▇ Not Controlling A-34
Section 39 - Entire Agreement ▇-▇▇
▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇
Section 41 - Successors and Assigns A-34
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Section 42 - Good Faith Performance ▇-▇▇
▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇▇ ▇▇▇▇ Product A-34
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July 8, 1997 PART A
MCImetro/▇▇▇▇ Atlantic
INTERCONNECTION AGREEMENT 1997
This MCImetro/▇▇▇▇ Atlantic Interconnection Agreement (the "Agreement"),
effective on the date the Pennsylvania Public Utility Commission approves this
Agreement, is entered into by and between MCImetro Access Transmission Services,
Inc. (" MCIm"), a Delaware corporation, and ▇▇▇▇ Atlantic-Pennsylvania, Inc.
("▇▇▇▇ Atlantic" or "BA"), a Pennsylvania corporation, to establish the rates,
terms and conditions for the purchase and provision of Local Interconnection,
Local Resale, unbundled Network Elements and other services, all as set forth in
this Agreement (individually referred to as the "service" or collectively as the
"services") for the purpose of the purchasing Party's provision of Telephone
Exchange Service, Exchange Access Service, and/or Telecommunications Services.
WHEREAS, on February 8, 1996, the Communications Act of 1934, 47 U.S.C. (S)
151, et seq., (the "Act") was amended by the Telecommunications Act of 1996; and
WHEREAS, the Act places certain duties and obligations upon, and grants
certain rights to, Telecommunications Carriers and Local Exchange Carriers; and
WHEREAS, the Parties are Telecommunications Carriers and Local Exchange
Carriers; and
WHEREAS, the Act places certain duties and obligations upon, and grants
certain rights to, Incumbent Local Exchange Carriers, and ▇▇▇▇ Atlantic is an
Incumbent Local Exchange Carrier; and
WHEREAS, the Parties wish to interconnect their local exchange networks for
the provision of Telephone Exchange Service, for the transmission and
termination of local calls, so that subscribers of each can receive local calls
that originate on the other's network and place local calls that terminate on
the other's network, and for use in the provision of Exchange Access Service
("Local Interconnection"); and
WHEREAS, MCIm wishes to purchase Telecommunications Services for resale
to others (" Local Resale" or "Services for Resale"), and ▇▇▇▇ Atlantic is
willing to provide such service; and
WHEREAS, MCIm wishes to purchase on an unbundled basis Network Elements,
and to use such services for the provision of Telecommunications Services to
others, and ▇▇▇▇ Atlantic is willing to provide such services on the terms set
forth herein; and
WHEREAS, the Parties intend the rates, terms and conditions of this
Agreement, and their performance of obligations thereunder, to comply with the
Act, the Rules and Regulations of the Federal Communications Commission ("FCC"),
and the orders, rules and regulations of the Pennsylvania Public Utility
Commission (the "Commission");
MCIm-▇▇▇▇ ATLANTIC INTERCONNECTION AGREEMENT - PENNSYLVANIA PART A-1
July 8, 1997 PART A
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of this Agreement, and intending to be legally bound by this Agreement, the
Parties hereby covenant and agree as follows:
PART A -- GENERAL TERMS AND CONDITIONS
Section 1. Scope of this Agreement
1.1 This Agreement, consisting of Parts A, B and C, specifies the rights and
obligations of each Party with respect to the purchase and sale of Local
Interconnection, Local Resale and Network Elements. This PART A sets forth the
general terms and conditions governing this Agreement. Capitalized terms used in
this Agreement shall have the meanings defined in PART B -- DEFINITIONS, or as
otherwise elsewhere defined throughout this Agreement. PART C sets forth, among
other things, descriptions of the services, pricing, technical and business
requirements, and physical and network security requirements.
LIST OF ATTACHMENTS COMPRISING PART C:
I. Price Schedule
II. Local Resale
III. Network Elements
IV. Interconnection
V. Collocation
VI. Rights of Way
VII. Number Portability
VIII. Business Process Requirements
IX. Security Requirements
X. Performance Reporting
1.2 ▇▇▇▇ Atlantic shall provide the services in any Technically Feasible
Combination requested by MCIm, pursuant to the terms of this Agreement and
in accordance with the requirements of Applicable Law, or where
appropriate, the Bona Fide Request ("BFR") process set forth in Section
25 (BFR Process for Further Unbundling)of Part A, except that Local Resale
shall be provided pursuant to Attachment II. Neither Party shall
discontinue or refuse to provide any service provided or required
hereunder, except in accordance with the terms hereof, without the other
Party's written agreement. ▇▇▇▇ Atlantic shall not reconfigure,
reengineer or otherwise redeploy its network in a manner which would
impair MCIm's ability to offer Telecommunications Services in the manner
contemplated by this Agreement, the Act or the FCC's Rules and Regulations
without providing notice of Network Changes in accordance with the Act
and FCC Rules and Regulations.
1.3 The Parties acknowledge that some of the services, facilities and
arrangements provided pursuant to this Agreement are or will be available
under and subject to the
MCIm-▇▇▇▇ ATLANTIC INTERCONNECTION AGREEMENT - PENNSYLVANIA PART A-2
July 8, 1997 PART A
terms of the federal or state Tariffs of the Party providing them. To the
extent that a Tariff of a Party applies to any service, facility or
arrangement provided pursuant to this Agreement, the following shall apply:
1.3.1 The rates and charges set forth in Attachment I shall remain
fixed for the term of this Agreement or until superseded by such rates
(whether interim or permanent) as may be applied by the Commission,
notwithstanding that either of such rates may be different from those set
forth in any effective, pending or future Tariff of the providing Party,
(including any changes or modifications to any such Tariff--or any new
Tariff--filed after the Effective Date of this Agreement); provided, however,
this Section 1.3.1 shall remain subject to Section 1.3.3.
1.3.2 This Agreement and any applicable Tariffs of either Party shall be
construed whenever possible to avoid any conflict between them. The fact that
a condition, term, right or obligation appears in the Agreement and not in a
Tariff, or in a Tariff but not in the Agreement, shall not be interpreted as,
or deemed grounds for finding, a conflict for the purposes of this Section
1.3.
1.3.3 Any change or modification to any Tariff (including any Tariff filed
after the Effective Date hereof)filed by either Party that materially and
adversely impacts the provision or receipt of services hereunder or which
materially and adversely alters the terms hereof shall only be effective
against the other Party to the extent permitted by: (i) that Party's written
consent; or (ii) an affirmative order of the Commission. Each Party shall
file any required Tariff revisions, modifications or amendments in order to
comply with Applicable Law and to continue performance of this Agreement in a
lawful manner.
1.4 Construction
1.4.1 For purposes of this Agreement, certain terms have been defined in Part
B or elsewhere in this Agreement. These terms will have the meanings stated
in this Agreement, which may differ from, or be in addition to, the normal
definition of the defined word. A defined word intended to convey the meaning
stated in this Agreement is capitalized when used. Other terms that are
capitalized, and not defined in this Agreement, shall have the meaning stated
in the Act.
1.4.2 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.
1.4.3 The words "shall" and "will" are used interchangeably throughout this
Agreement and the use of either indicates a mandatory requirement. The use
of one or the other shall not mean a different degree of right or obligation
for either Party.
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July 8, 1997 PART A
1.4.4 Conflicts among terms in Parts A and B of this Agreement, the
Attachments and the Exhibits thereto, and the Tariffs shall be
resolved in accordance with the following order of precedence, where
the document identified in Subsection "(i)" shall have the highest
precedence: (i) Parts A and B of this Agreement; (ii) the Attachments
and the Exhibits thereto; and (iii) the Tariffs. The fact that a
matter is addressed in one of these documents, but not in another,
shall not constitute a conflict for purposes of this Section 1.4.4.
Section 2. Regulatory Approvals
2.1 The Parties shall promptly submit this Agreement, and any amendment or
modification hereof, to the Commission for approval in accordance with
Section 252 of the Act. Following such submission, the Parties shall submit
the Agreement to any other applicable governmental entity for any requisite
approvals. In the event any governmental authority or agency rejects any
provision hereof, the Parties shall negotiate promptly and in good faith
such revisions as may reasonably be required to achieve approval.
2.2 In the event the FCC or the Commission promulgates rules or
regulations, or issues orders, or a court of competent jurisdiction issues
orders, which make unlawful any provision of this Agreement, or which
materially reduce or alter the services required by statute or regulations
and embodied in this Agreement, then the Parties shall negotiate promptly
and in good faith in order to amend the Agreement to substitute contract
provisions which conform to such rules, regulations or orders. In the event
the Parties cannot agree on an amendment within thirty (30) days after the
date any such rules, regulations or orders become effective, then the
Parties shall resolve their dispute under the applicable procedures set
forth in Section 24 (Dispute Resolution Procedures) hereof.
2.3 The Parties intend that any services requested by either Party relating
to the subject matter of this Agreement that are not offered hereunder will
be incorporated into this Agreement by amendment upon agreement by the
Parties.
2.4 In the event that any legally effective legislative, regulatory,
judicial or other legal action materially affects any material terms of
this Agreement, or the ability of MCIm or ▇▇▇▇ Atlantic to perform any
material terms of this Agreement, MCIm or ▇▇▇▇ Atlantic may, on thirty
(30)days written notice (delivered not later than thirty (30) days
following the date on which such action has become legally binding or has
otherwise become legally effective) require that such terms be
renegotiated, and the Parties shall renegotiate in good faith such mutually
acceptable new terms as may be required.
2.5 When this Agreement is filed with the Commission for approval, the
Parties will request that the Commission: (a) approve the Agreement, and
(b) refrain from taking any action to change, suspend or otherwise delay
implementation of the Agreement.
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July 8, 1997 PART A
2.6 Each Party shall be responsible for obtaining and keeping in effect all
FCC, Commission, franchise authority and other governmental approvals, that
may be required in connection with the performance of its respective
obligations under this Agreement.
Section 3. Term of Agreement
3.1 This Agreement shall become effective as of the Effective Date stated
above and, except as otherwise provided in this Agreement, shall remain in
effect until August 31, 2000, and thereafter until terminated as provided
in this Agreement. At least one hundred eighty (180) days before the term
expires, either Party shall file with the Commission any request for an
extension of that term, and shall on the same day provide notice to the
other Party. At least one hundred fifty (150) days before the term expires,
the other Party shall respond to the requested extension. If for any reason
a new agreement has not been reached by the end of the three-year term, the
existing interconnection agreement shall continue, month-to-month, under
the same terms and conditions, subject to a true-up, until resolved by the
Commission.
3.2 This Agreement shall be effective between the Parties as of the
Effective Date, notwithstanding the pendency of proceedings challenging the
Commission's approval of the Agreement.
3.3 Each Party recognizes that the services being provided under this
Agreement at the time of its termination may need to be continued without
interruption thereafter, and that upon such termination, either Party may
itself provide or retain another vendor to provide comparable services.
Each Party agrees to cooperate in an orderly and efficient transition to
the other Party or another vendor such that the level and quality of the
services are not degraded, and to exercise reasonable efforts to effect an
orderly and efficient transition.
3.4 Unless a service is required to be offered by a Party under Applicable
Law, either Party may terminate any service provided under this Agreement
upon thirty (30) days prior written notice to the other Party unless a
different notice period or different conditions are specified in this
Agreement (including, but not limited to, in an applicable Tariff or
Applicable Law) for termination of such service, in which event such
specified period and/or conditions shall apply. Upon termination of its
purchase of a service by the purchasing Party, the purchasing Party shall
pay any applicable termination charges specified in this Agreement. Upon
termination of a Local Resale service by ▇▇▇▇ Atlantic, co, MCIm shall be
entitled to continue providing the terminated service to MCIm's
subscribers on a grandfathered basis to the same extent, and subject to
the same terms and conditions, as would apply to such subscribers if they
had been subscribers of ▇▇▇▇ Atlantic for the terminated service at the
time the service is terminated, and ▇▇▇▇ Atlantic shall continue to
provide such services to MCIm on the same basis.
3.5 Following the expiration of this Agreement, this Agreement shall remain
in effect as to any Expiring Service for the remainder of any contract
period applicable to such Expiring Service at the time of the expiration of
this Agreement. If an Expiring Service
MCIm-▇▇▇▇ ATLANTIC INTERCONNECTION AGREEMENT - PENNSYLVANIA PART A-5
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July 8, 1997 PART A
is terminated prior to the expiration of the contract period applicable
to such Expiring Service, MCIm shall pay any termination charge provided
for in this Agreement, in an applicable Tariff, or in the contract
applicable to the Expiring Service. Following expiration of the
applicable contract period for an Expiring Service, the Expiring Service,
until terminated, shall be subject to: (i) any effective agreement
superseding this Agreement; or (ii) to the extent such Expiring Service
is not covered by such superseding agreement, applicable Tariffs. For the
purposes of this Section 3.5, "Expiring Service" means: (a) any Local
Resale service that, upon expiration of the term of this Agreement, is
being provided under this Agreement and is subject to a remaining
contract period greater than one (1) month; or (b) any Local Resale
service: (i) for which an order has been submitted and accepted pursuant
to this Agreement prior to the expiration of this Agreement but such
service is not being provided at the expiration of this Agreement; and
(ii) that is subject to an initial contract period which is greater than
one (1) month.
Section 4. Charges and Payment
4.1 In consideration of the services provided under this Agreement, the
purchasing Party shall pay the charges set forth in Attachment I. The
billing and payment procedures for charges incurred by a purchasing Party
hereunder are set forth in Attachment VIII.
Section 5. Assignment
5.1 Any assignment or delegation by either Party to any non-affiliated
entity of any right, obligation or duty, or of any other interest
hereunder, in whole or in part, without the prior written consent of the
other Party shall be void (except the assignment of a right to moneys due
or to become due). A Party assigning or delegating this Agreement or any
right, obligation, duty or other interest hereunder to an Affiliate shall
provide written notice to the other Party. All obligations and duties of
any Party under this Agreement shall be binding on all successors in
interest and assigns of such Party. No assignment or delegation hereof
shall relieve the assignor of its obligations under this Agreement.
5.2 If any obligation of either Party is performed by a subcontractor or
Affiliate, such Party shall remain fully responsible for the performance
of this Agreement in accordance with its terms.
Section 6. Compliance with Laws
6.1 Each Party shall perform terms, conditions and operations under this
Agreement in a manner that complies with all Applicable Law, including
all regulations and judicial or regulatory decisions of all duly
constituted governmental authorities of competent jurisdiction. Each
Party shall be responsible for obtaining and keeping in effect all FCC,
state regulatory commission, franchise authority and other regulatory
approvals that may be required in connection with the performance of its
obligations under this Agreement. Each Party shall reasonably cooperate
with the other in obtaining and maintaining any approvals required by
this Section. In the event the Act or FCC Rules and Regulations
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applicable to this Agreement are held invalid, this Agreement shall
survive, and the Parties shall promptly renegotiate any provisions of this
Agreement which, in the absence of such invalidated Act, Rule or
Regulation, are insufficiently clear to be effectuated.
6.2 Except as otherwise specified in this Agreement, each Party shall be
responsible for: (i) all costs and expenses it incurs in complying with its
obligations under this Agreement; and (ii) the development, modification,
technical installation and maintenance of any systems or other
infrastructure which it requires to comply with and to continue complying
with its responsibilities and obligations under this Agreement.
Section 7. Governing Law
7.1 The validity of this Agreement, the construction and enforcement of its
terms, and the interpretation of the rights and duties of the Parties, shall
be governed by the Act and the laws of the Commonwealth of Pennsylvania,
without regard to its conflicts of laws rules.
Section 8. Relationship of Parties
8.1 Each Party is an independent contractor, and has and hereby retains the
right to exercise full control of and supervision over its own performance
of its obligations under this Agreement.
8.2 Each Party retains full control over the employment, direction,
compensation and discharge of all of its employees, agents and contractors
assisting in the performance of its obligations under this Agreement. Each
Party will be solely responsible for all matters relating to payment of its
employees, agents and contractors, and payment of Social Security and other
taxes in association with such employees, agents and contractors, and
withholding and remittance of taxes from such employees, agents and
contractors.
8.3 Nothing contained within this Agreement shall:
8.3.1 Make either Party the agent, servant or employee, of the other
Party;
8.3.2 Grant either Party the authority to enter into a contract on
behalf of, or otherwise legally bind, the other Party in any
way;
8.3.3 Create a partnership, joint venture, or other similar
relationship between the Parties; or
8.3.4 Grant to either Party a franchise, distributorship, or
similar interest.
8.4 The relationship of the Parties under this Agreement is a non-exclusive
relationship. Each Party shall have the right:
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8.4.1 To provide services to be provided by it under this Agreement to
persons other than the other Party; and
8.4.2 To purchase services which can be purchased by it under this
Agreement from persons other than the other Party.
Section 9. No Third Party Beneficiaries
9.1 Except as may be specifically set forth in this Agreement, this
Agreement does not provide and shall not be construed to provide any third
parties (including, but not limited to, subscribers or subcontractors of a
Party) with any right, remedy, claim, reimbursement, cause of action, or
other privilege. The provisions of this Agreement are for the benefit of
the Parties hereto and not for any other person, provided, however, that
this shall not be construed to prevent either Party from providing its
Telecommunications Services to any entities.
Section 10. Intellectual Property Rights
10.1 Any intellectual property which originates from or is developed by a
Party shall remain in the exclusive ownership of that Party. Except for a
limited license to use a Party's patents or copyrights to the extent
necessary for the Parties to use any facilities or equipment (including
software) or to receive any service solely as provided under this
Agreement, no license in patent, copyright, trademark or trade secret, or
other proprietary or intellectual property right now or hereafter owned,
controlled or licensable by a Party, is granted to the other Party or shall
be implied or arise by estoppel.
10.2 ▇▇▇▇ Atlantic shall indemnify MCIm with respect to MCIm's use,
pursuant to the terms of this Agreement, of intellectual property
associated with any new ▇▇▇▇ Atlantic network equipment or software
acquisitions. ▇▇▇▇ Atlantic warrants that it will not enter into any
licensing agreements with respect to new ▇▇▇▇ Atlantic network equipment or
software acquisitions that contain provisions that would disqualify MCIm
from using or interconnecting with such network equipment or software
pursuant to the terms of this agreement. ▇▇▇▇ Atlantic also warrants that
it has not and will not intentionally modify any existing licensing
agreements for existing network equipment or software in order to
disqualify MCIm from using or interconnecting with such network equipment
or software, pursuant to the terms of this agreement. To the extent that
the providers of equipment or software in ▇▇▇▇ Atlantic's network provide
▇▇▇▇ Atlantic with indemnities covering intellectual property liabilities
and those indemnities allow a flow through of protection to third parties,
▇▇▇▇ Atlantic shall flow those indemnity protections through to MCIm. ▇▇▇▇
Atlantic will inform MCIm of any pending or threatened intellectual
property claims relating to ▇▇▇▇ Atlantic's network of which ▇▇▇▇ Atlantic
is aware and will update that notification periodically as needed, so that
MCIm receives maximum notice of any intellectual property risks it might
want to address. Notwithstanding any part of this Section 10, MCIm retains
the right to pursue legal remedies against ▇▇▇▇ Atlantic if ▇▇▇▇ Atlantic
is at fault in causing intellectual property liability to MCIm.
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10.2.1 For purposes of Section 10.2, ▇▇▇▇ Atlantic's obligation to
indemnify include the obligation to indemnify and hold MCIm harmless
from and against any loss, cost, expense or liability arising out of a
claim that MCIm's use, pursuant to the terms of this Agreement, of
such new ▇▇▇▇ Atlantic network equipment or software infringes the
intellectual property rights of a third party. Moreover, should any
such network equipment or software or any portion there provided by
▇▇▇▇ Atlantic hereunder become, or, in ▇▇▇▇ Atlantic's reasonable
opinion, be likely to become, the subject of a claim of infringement,
or should MCIm's use thereof be finally enjoined, ▇▇▇▇ Atlantic shall,
at its immediate expense and at its choice:
10.2.1.1 Procure for MCIm the right to continue using such
material; or
10.2.1.2 Replace or modify such material to make it non-
infringing provided such replacement or modification is
functionally equivalent.
10.3 Unless otherwise mutually agreed upon, neither Party shall publish or
use the other Party's logo, trademark, or service ▇▇▇▇ in any product,
service, advertisement, promotion, or any other publicity matter, except
that nothing herein shall prohibit lawful comparative advertising or
comparative marketing.
Section 11. Indemnification
11.1 Each Party agrees to release, indemnify, defend and hold harmless the
other Party from and against all losses, claims, demands, damages,
expenses, suits or other actions, or any liability whatsoever, including,
but not limited to, costs and attorneys' fees (collectively, a "Loss")
incurred by the indemnified Party to the extent that such Loss is: (a)
suffered, made, instituted, or asserted by any other person, relating to
personal injury to or death of any person, or for loss, damage to, or
destruction of real and/or personal property, whether or not owned by
others, incurred during the term of this Agreement and to the extent
legally caused by the acts or omissions of the indemnifying Party,
regardless of the form of action; or (b) suffered, made, instituted, or
asserted by the indemnifying Party's own customer(s) against the
indemnified Party arising out of the indemnified Party's provision of
services to the indemnifying Party under this Agreement, except to the
extent the Loss arises from a breach of this Agreement by the indemnified
Party. Notwithstanding the foregoing indemnification, nothing in this
Section 11 shall affect or limit any claims, remedies, or other actions the
indemnifying Party may have against the indemnified Party under this
Agreement, any other contract, or any applicable Tariff(s), regulations or
laws.
11.2 MCIm shall indemnify, defend and hold harmless ▇▇▇▇ Atlantic, ▇▇▇▇
Atlantic's Affiliates, and the directors, officers and employees of
▇▇▇▇ Atlantic and ▇▇▇▇ Atlantic's Affiliates, from and against any
claim, demand, suit, action, judgment, liability, damage or loss (including
reasonable costs, expenses and attorneys' fees on account thereof), that
arises out of or results from: (i) MCIm's negligent use or occupancy of a
▇▇▇▇ Atlantic
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NID; (ii) wiring, facilities, equipment or other apparatus, negligently
installed by MCIm in or on a ▇▇▇▇ Atlantic NID, or negligently connected by
MCIm to a ▇▇▇▇ Atlantic NID; or (iii) the negligent acts or omissions of
MCIm, MCIm's Affiliates, or the employees, agents or contractors of MCIm or
MCIm's Affiliates, in connection with a ▇▇▇▇ Atlantic NID. Where the NID is
not used by ▇▇▇▇ Atlantic or another Telecommunications Carrier (except
MCIm) to provide service to the premise, MCIm shall have the burden, as
between ▇▇▇▇ Atlantic and MCIm, to rebut the presumption that the claim,
demand, suit, action, judgment, liability, damage or loss arises from
wiring, facilities, equipment or other apparatus, negligently installed by
MCIm in or on a ▇▇▇▇ Atlantic NID, or negligently connected by MCIm to a
▇▇▇▇ Atlantic NID. For the purposes of this Section 11.2, references to
"negligence" or "negligently" shall be read to also encompass acts of gross
negligence and/or intentional misconduct.
11.3 The indemnification provided herein shall be conditioned upon:
11.3.1 The indemnified Party shall promptly notify the indemnifying
Party of any action taken against the indemnified Party relating to
the indemnification, provided that failure to notify the indemnifying
Party shall not relieve it of any liability it might otherwise have
under this Section 11 to the extent it was not materially prejudiced
by such failure of notification.
11.3.2 The indemnifying Party shall have sole authority to defend any
such action, including the selection of legal counsel, and the
indemnified Party may engage separate legal counsel only at its sole
cost and expense. In the event the indemnifying Party does not accept
the defense of any such action, the indemnified Party shall have the
right to employ counsel for its own defense at the expense of the
indemnifying Party.
11.3.3 In no event shall the indemnifying Party settle or consent to
any judgment pertaining to any such action without the prior written
consent of the indemnified Party, which consent shall not be
unreasonably withheld.
11.3.4 In any action for which indemnity is sought, the indemnified
Party shall assert any and all provisions in applicable Tariffs that
limit liability to third parties as a bar to any recovery by the third
party claimant in excess of applicable limitations of liability.
11.3.5 The indemnified Party shall offer the indemnifying Party all
reasonable cooperation and assistance in the defense of any such
action.
Section 12. Limitation of Liability
12.1 Neither Party shall be liable to the other for any indirect,
incidental, special or consequential damages arising out of or related to
this Agreement or the provision of service hereunder. Notwithstanding the
foregoing limitation, a Party's liability shall not
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be limited by the provisions of this Section 12 in the event of its willful
or intentional misconduct, including gross negligence. ▇▇▇▇ Atlantic shall be
liable to MCIm for lost revenues resulting from ▇▇▇▇ Atlantic's breach of
this Agreement only to the same extent that ▇▇▇▇ Atlantic's Tariffs provide
liability for ▇▇▇▇ Atlantic end user subscribers' revenue losses. A Party's
liability shall not be limited with respect to its indemnification
obligations.
Section 13. Warranties
13.1 As more specifically set forth herein, each Party shall perform its
obligations hereunder at Parity, as defined in Part B of this Agreement,
which definition is intended to embody the performance provisions set forth
in 47 U.S.C. (S) 251, and any implementing regulations thereunder, as those
provisions may apply to the Party and obligation in question.
13.2 As more specifically set forth in Attachment II, ▇▇▇▇ Atlantic shall
provide Local Resale at Parity.
13.3 As more specifically set forth in Attachment III, ▇▇▇▇ Atlantic shall
provide Network Elements at Parity.
13.4 As more specifically set forth in Attachment IV, ▇▇▇▇ Atlantic shall
provide Interconnection at Parity and on a Non-Discriminatory Basis. MCIm
shall provide Interconnection on a Non-Discriminatory Basis.
13.5 As more specifically set forth in Attachment V, ▇▇▇▇ Atlantic shall
provide Collocation in accordance with the legally effective rules,
regulations and orders of the FCC and the Commission.
13.6 As more specifically set forth in Attachment VI, ▇▇▇▇ Atlantic shall
provide Non-Discriminatory access to poles, ducts, conduits, and ROW owned or
controlled by ▇▇▇▇ Atlantic, in accordance with the requirements of section
224 of the Act and legally effective rules, regulations and orders of the FCC
and the Commission.
13.7 As more specifically set forth in Attachment VII, ▇▇▇▇ Atlantic and MCIm
shall provide Interim Number Portability and Number Portability in accordance
with the legally effective rules, regulations and orders of the FCC and the
Commission.
13.8 As more specifically set forth in Attachment VIII, ▇▇▇▇ Atlantic and
MCIm shall meet Business Process Requirements.
13.9 As more specifically set forth in Attachment VIII, ▇▇▇▇ Atlantic shall
provide Non-Discriminatory access to telephone numbers for as long as ▇▇▇▇
Atlantic remains the code administrator for the North American Numbering
Plan.
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13.10 As more specifically set forth in Attachment VIII, ▇▇▇▇ Atlantic and
MCIm shall provide dialing parity in accordance with the legally effective
rules, regulations and orders of the FCC and the Commission.
13.11 As more specifically set forth in Attachment IX, ▇▇▇▇ Atlantic and MCIm
shall meet security requirements, to the extent applicable to the security
requirement in question.
13.12 As more specifically set forth in Attachment X, ▇▇▇▇ Atlantic shall
provide performance reporting.
EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES
WITH RESPECT TO ITS SERVICES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN
FACT OR IN LAW. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE A PARTY'S
EXCLUSIVE WARRANTIES WITH RESPECT TO ITS SERVICES AND ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW.
EACH PARTY DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO ITS
SERVICES, INCLUDING , BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND
---------------------------------
FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST INFRINGEMENT.
--------------------------------
Section 14. Notices
14.1 Except as otherwise provided herein, or where context or services
dictate that immediate notice be given, all notices or other communication
hereunder shall be deemed to have been duly given when made in writing and
delivered in person or deposited in the United States mail, certified mail,
postage prepaid, return receipt requested and addressed as follows:
To MCIm: MCImetro Access Transmission Services, Inc.
Attention: Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Copy to: General Counsel
MCI Communications Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To ▇▇▇▇ Atlantic: ▇▇▇▇ Atlantic Network Services, Inc.
Attention: Director, Interconnection Initiatives
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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copy to: Legal Department
▇▇▇▇ Atlantic Network Services, Inc.
Attention: Counsel, Carrier Services
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If personal delivery is selected to give notice, a receipt of such delivery
shall be obtained. The address to which notices or communications may be given
to either Party may be changed by written notice given by such Party to the
other pursuant to this Section 14.
Section 15. Technical References
15.1 The Parties agree that the ▇▇▇▇ Atlantic technical references set forth
in Appendix I to this Part A (Technical Reference Schedule) provide the
current technical specifications for the services offered by ▇▇▇▇ Atlantic
under this Agreement. ▇▇▇▇ Atlantic reserves the right with reasonable
notification to revise its technical references for any reason including, but
not limited to, laws or regulations, conformity with updates and changes in
standards promulgated by various agencies, utilization of advances in the
state of technical arts, or the reflection of changes in the design of any
facilities, equipment, techniques, or procedures described or referred to in
the technical references. Notification of changes that are made to the
underlying ▇▇▇▇ Atlantic services will; be made in conformance with the
requirements of Section 251(c)(5), Notice of Changes, of the Act, and the
FCC's Rules and Regulations. The Parties acknowledge that the general
technical references set forth below contain certain generally accepted
industry guidelines for particular interface and performance parameters for
telecommunications equipment used by LECs in the United States. Such accepted
technical references may be used by LECs to specify suitable equipment and
facilities components for use in their respective networks, to assure
interoperability between components that collectively comprise such networks,
and to specify the interface characteristics and typical end-to-end
performance of certain services.
15.2 The Parties acknowledge that they and their vendors and suppliers derive
guidance from such technical references, and make reasonable efforts to
conform to them. Requests for specific performance, functionality, or
capabilities not applied in a Party's network should be handled using the BFR
process set forth in Section 25 (BFR Process for Further Unbundling) of this
Part A.
15.3 If one or more of the technical requirements set forth in Appendix I are
in conflict, the Parties shall reasonably agree on which requirement shall
apply.
15.4 The Parties agree that they each intend, to the extent technically
feasible and commercially reasonable, to conform generally to industry
standards applicable to the Parties set by the OBF, within a reasonable time
after publication of final standards. With respect to OBF and other industry
standards, the Parties agree that they will negotiate in good faith the
applicability, technical feasibility and commercial
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reasonableness for implementation of such standards for services and
arrangements under the Agreement.
Section 16. Remedies
16.1 The obligations of the Parties and the services offered under this
Agreement may be unique. Accordingly, in addition to any other available
rights or remedies, either Party may ▇▇▇ in equity for specific performance.
16.2 In the event either Party fails to switch a subscriber to the other
Party's service as requested through a service request from the other Party,
within any applicable intervals set forth in this Agreement or required by
Applicable Law, or erroneously switches the other Party's subscriber away
from that Party, then such act (including the continued provision of
Telecommunications Services to such subscriber by the Party erroneously
switching or failing to switch) shall be deemed an improper change in
subscriber carrier selection commencing with the time at which such Party
erroneously failed to switch such subscriber, or erroneously switched such
subscriber. If such an improper change in subscriber carrier selection
should occur, the rights and obligations of the Parties shall be determined
in accordance with the regulations pertaining to such conduct on the part of
Interexchange Carriers as set forth in the FCC's Rules and Regulations, Part
64, Subpart K, as these may be amended from time to time. For the purpose of
this Section, ▇▇▇▇ Atlantic shall be deemed an Interexchange Carrier.
16.3 At such time as the FCC or other competent regulatory body adopts
regulations implementing 47 U.S.C. Section 258 or otherwise adopt
regulations applicable to illegal or improper changes in local service, then
such regulations shall supersede those applicable to Interexchange Carriers
for the purposes of this Section 16.
16.4 Unless otherwise specifically provided hereunder, all rights of
termination, cancellation or other remedies prescribed in this Agreement, or
otherwise available, are cumulative and are not intended to be exclusive of
other remedies to which the injured Party may be entitled at law or equity.
Section 17 Waivers
17.1 A failure or delay of either Party (including any course of dealing or
course of performance) to enforce any of the provisions of this Agreement,
or any right 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, rights, remedies or
options.
17.2 Waiver by either Party of any default by the other Party shall not be
deemed a waiver of any other default.
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Section 18. Survival
18.1 Any liabilities or obligations of a Party for acts or omissions
occurring prior to the expiration, cancellation or termination of this
Agreement, any obligation of a Party under any provision for
indemnification or defense (including, but not limited to, any of Sections
10, 11, 12, 23, 24, 28 and 29), Section 3, "Termination", Section 22,
"Confidential Information", any provision for limitation of liability, and
any obligation of a Party under any other provisions of this Agreement
which, by their terms, are contemplated to survive (or to be performed
after) expiration, cancellation or termination of this Agreement, shall
survive the expiration, cancellation or termination of the Agreement, but
solely to the minimum extent necessary to effectuate such provisions or
complete such performance.
Section 19. Force Majeure
19.1 Except as otherwise specifically provided in this Agreement
(including, by way of illustration, circumstances where a Party is required
to implement disaster recovery plans to avoid delays or failure in
performance and the implementation of such plans was designed to avoid the
delay or failure in performance), neither Party shall be liable for any
delay or failure in performance of any part of this Agreement by it caused
by acts or failures to act of the United States of America or any state,
district, territory, political subdivision, or other governmental entity,
acts of God or a public enemy, strikes, labor slowdowns, or other labor
disputes, but only to the extent that such strikes, labor slowdowns, or
other labor disputes also affect the performing Party, fires, explosions,
floods, embargoes, earthquakes, volcanic actions, unusually severe weather
conditions, wars, civil disturbances, or other causes beyond the reasonable
control of the Party claiming excusable delay or other failure to perform
("Force Majeure Condition"). In the event of any such excused delay in the
performance of a Party's obligation(s) under this Agreement, the due date
for the performance of the original obligation(s) shall be extended by a
term equal to the time lost by reason of the delay. In the event of such
delay, the delaying Party shall perform its obligations at a performance
level no less than that which it uses for its own operations. In the event
of such performance delay or failure by ▇▇▇▇ Atlantic, ▇▇▇▇ Atlantic
agrees to resume performance at Parity and in a Non-Discriminatory manner.
19.2 If any Force Majeure Condition occurs, the Party whose performance
fails or is delayed because of such Force Majeure Condition shall give
prompt notice to the other Party, and upon cessation of such Force Majeure
Condition, shall give like notice and commence performance hereunder as
promptly as reasonably practicable.
19.3 Notwithstanding Section 19.1, no delay or other failure by a Party to
perform shall be excused pursuant to this Section by the delay or failure
of a Party's subcontractors, materialmen, or suppliers to provide products
or services to the Party, unless such delay or failure is itself the
product of a Force Majeure Condition, and such products or services cannot
be obtained by the Party from other persons on commercially reasonable
terms.
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Section 20. Publicity
20.1 Neither Party shall produce, publish, or distribute any press release
or other publicity referring to the other Party in connection with this
Agreement, without the prior written approval of the other Party, which
approval shall not be unreasonably withheld.
Section 21. Default and Termination
21.1 If a Party ("Breaching Party") 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 the other
Party ("Injured Party"), then, except as otherwise required by Applicable
Law, the Injured Party shall have the right, upon notice to the Breaching
Party, to terminate or suspend this Agreement and/or the provision of
services.
21.2 If a purchasing Party fails to make a payment of any amount billed
under this Agreement by the due date stated on the providing Party's ▇▇▇▇
and such failure continues for more than thirty (30) days after written
notice thereof from the providing Party, then, except as provided in
Section 21.3 or as otherwise required by Applicable Law, the providing
Party shall have the right, upon notice to the purchasing Party, to
terminate or suspend this Agreement and/or the provision of services.
21.3 Billing Disputes.
21.3.1 If a billing dispute arises concerning any charges billed
pursuant to this Agreement by a providing Party to a purchasing
Party, payments withheld or paid pending settlement of the dispute
shall be subject to interest at the rate set forth in ▇▇▇▇ Atlantic's
interstate access tariff.
21.3.2 If the purchasing Party pays the ▇▇▇▇ in full by the payment
due date and later initiates a billing dispute pursuant to Attachment
VIII, Section 3.1.9, interest will apply as follows:
21.3.2.1 If the billing dispute is resolved in favor of the
purchasing Party, the purchasing Party shall receive a credit
from the providing Party. This credit will be an amount equal
to the disputed amount, plus interest at the rate set forth in
▇▇▇▇ Atlantic's interstate access tariff. This amount will apply
from the date of the purchasing Party's payment through the date
on which the purchasing Party receives payment of the
disputed amount and accrued interest from the providing Party.
21.3.2.2 If the dispute is resolved in favor of the providing
Party, neither a late payment charge nor an interest charge is
applicable.
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21.3.3 If the purchasing Party withholds payment on the ▇▇▇▇ (in full or in
part) and initiates a billing dispute pursuant to Attachment VIII, Section
3.1.9, interest will apply as follows:
21.3.3.1 If the billing dispute is resolved in favor of the
providing Party, the purchasing Party shall pay the providing
Party a payment equal to the amount withheld by the purchasing
Party, plus interest at the rate set forth in ▇▇▇▇ Atlantic's
interstate access tariff. This amount will apply from the payment
due date through the date on which the providing Party receives
payment of the disputed amount and accrued interest from the
purchasing Party.
21.3.3.2 If the dispute is resolved in favor of the purchasing
Party, neither a late payment charge nor an interest charge is
applicable.
21.4 Notwithstanding the foregoing, if a Party's material breach is for any
failure to perform in accordance with this Agreement which materially and
adversely affects the provision of service of the non-breaching Party's
subscribers, the non-breaching Party shall give notice of the breach and
the breaching Party shall cure such breach within ten (10) days or within a
period of time equivalent to the applicable interval required by this
Agreement, whichever is shorter, and if the breaching Party does not, the
non-breaching Party may, as its sole option, terminate this Agreement, or
any parts hereof. The nonbreaching Party shall be entitled to pursue all
available legal and equitable remedies for such breach.
21.5 MCIm may terminate this Agreement in whole or in part at any time for
any reason upon sixty (60) days prior written notice, except with respect
to termination of any particular service(s), in which case, upon thirty
(30) days prior written notice. MCIm's sole liability for such termination
shall be payment of amounts due for services provided up to the date of
termination, unless otherwise provided for in this Agreement or in a Tariff
providing a termination liability or minimum term for a service.
21.6 In the event of any termination under this Section 21 and, if
applicable, pursuant to Section 3.3, ▇▇▇▇ Atlantic agrees to provide for an
uninterrupted transition of the services ▇▇▇▇ Atlantic is providing to MCIm
at the time of termination to MCIm or another vendor designated by MCIm,
and MCIm agrees to provide for an uninterrupted transition of services MCIm
is providing to ▇▇▇▇ Atlantic at the time of termination to ▇▇▇▇ Atlantic
or another vendor designated by ▇▇▇▇ Atlantic.
21.7 Notwithstanding any termination hereof, the Parties shall continue to
comply with their obligations under the Act to provide interconnection in
accordance with Applicable Law.
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Section 22. Confidentiality
22.1 For the purposes of this Section 22, "Confidential Information" means
the following information disclosed by one Party ("Discloser") to the other
Party ("Recipient") in connection with this Agreement:
22.1.1 All information disclosed by either Party to the other pursuant
to Attachments I-X of this Agreement arising from the performance of
this Agreement, including, but not limited to, books, records, documents
and other information disclosed in an audit performed pursuant to this
Agreement; and
22.1.2 Such other information as is identified as Confidential
Information in accordance with Section 22.2.
22.2 All information which is to be treated as Confidential Information
under Section 22.1.2 shall:
22.2.1 If in written, graphic, electromagnetic, or other tangible form,
be marked as "Confidential Information"; and
22.2.2 If oral, (i) be identified by the Discloser at the time of
disclosure to be "Confidential Information", and (ii) be set forth in a
written summary which identifies the information as "Confidential
Information" and is delivered by the Discloser to the Recipient within
ten (10) days after the oral disclosure.
22.2.3 Each Party shall have the right to correct an inadvertent
failure to identify such oral information as Confidential Information
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.
22.3 In addition to any requirements imposed by law, including, but not
limited to, 47 U.S.C. (S) 222, for a period of three (3) years from the
receipt of Confidential Information from the Discloser, except as otherwise
specified in this Agreement, the Recipient1 agrees:
22.3.1 To use the Confidential Information only for the purpose of
performing under this Agreement, including, to the extent applicable,
the planning and operation of the Recipient's network; and
22.3.2 To use the same degree of care that it uses with similar
confidential information of its own, to hold the Confidential
Information in confidence and to disclose it to no one other than
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.
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22.4 A Recipient may disclose the Discloser's Confidential Information to a
third party agent or consultant, provided that prior to such disclosure the
agent or consultant has executed a written agreement of non-disclosure and
non-use comparable in scope to the terms of this Section 22.
22.5 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations and exercise its rights
under this Agreement. All such copies shall bear the same copyright and
proprietary rights notices as are contained on the original.
22.6 The Recipient shall return all Confidential Information defined in
Section 22.1.2 in the format in which it was received from the Discloser,
including any copies made by the Recipient, within thirty (30) days after a
written request is delivered to the Recipient, and/or destroy all such
Confidential Information, except for Confidential Information that the
Recipient reasonably requires to perform its obligations under this
Agreement. 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.
22.7 The requirements of this Section 22 shall not apply to Confidential
Information:
22.7.1 Which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser;
22.7.2 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;
22.7.3 After it is rightfully acquired by the Recipient free of
restrictions on its disclosure;
22.7.4 Which is independently developed by personnel of the Recipient;
or
22.7.5 To the extent the disclosure is required by law, or made to a
court, or governmental agency for the purpose of enforcing its rights
under this Agreement; provided the Discloser has been notified
of an intended disclosure promptly after the Recipient becomes aware
of a required disclosure or decides to make such a voluntary
disclosure to enforce its rights, 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.
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22.8 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.
22.9 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.
22.10 Each Party agrees that the Discloser would be irreparably injured by a
breach of this Section 22 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 22. Such
remedies shall not be deemed to be the exclusive remedies for a breach of
this Section 22, but shall be in addition to any other remedies available at
law or in equity.
22.11 The provisions of this Section 22 shall be in addition to and shall
not limit, alter, define or contradict any provisions of Applicable Law,
including, but not limited to, 47 U.S.C. (S) 222, and are not intended to
constitute a waiver by a Party of any right with regard to protection of the
confidentiality of information (whether or not defined as "Confidential
Information" for purposes of this Agreement) of the Party or its customers
provided by Applicable Law.
22.12 Without in any way limiting the foregoing provisions of Section 22,
each Party shall comply with 47 U.S.C. (S) 222, any implementing rules,
regulations, and orders thereunder, and other federal and state rules and
regulations addressing Customer Proprietary Network Information ("CPNI") and
Carrier Information. A Party shall not access (including, but not limited
to, through electronic interfaces and gateways provided under this
Agreement), use or disclose CPNI or other customer information unless the
Party has obtained any customer authorization required by Applicable Law for
such access, use and/or disclosure. By accessing, using or disclosing CPNI
or other customer information, a Party represents and warrants that the
Party has obtained any customer authorization required by Applicable Law
for such access, use or disclosure. A Party accessing, using or disclosing
CPNI or other customer information shall upon request by the other Party
provide proof of any customer authorization for such access, use or
disclosure, required by Applicable Law (including, copies of any written
authorization). Without limiting the foregoing provisions of this Section
22, where required by 47 U.S.C. (S) 222, or other provision of Applicable
Law, a Party shall obtain a signed letter of authorization from the
applicable end user in order to obtain CPNI or other customer information
from the other Party.
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22.13 Each Party ("Auditing Party") shall have the right to audit the other
Party ("Audited Party"), to ascertain whether the Audited Party is
complying with the requirements of Applicable Law and this Agreement with
regard to the Audited Party's access to, and use and disclosure of, CPNI
and other customer information, which is made available by the Auditing
Party to the Audited Party under this Agreement. Any audit conducted under
this Section 22.13 shall be conducted in accordance with Section 23,
"Audits and Inspections". Any information disclosed by the Audited Party to
the Auditing Party or the Auditing Party's employees, Agents or
contractors, in an audit conducted under this Section 22.13 shall be
considered to be Confidential Information under this Section 22.
22.14 To the extent permitted by Applicable Law, each Party ("Auditing
Party") shall have the right to monitor the access of the other Party
("Audited Party") to CPNI and other customer information which is made
available by the Auditing Party to the Audited Party under this Agreement,
to ascertain whether the Audited Party is complying with the requirements
of Applicable Law and this Agreement with regard to the Audited Party's
access to, and use and disclosure of, such CPNI and other customer
information. To the extent permitted by Applicable Law, the foregoing right
shall include, but not be limited to, the right to electronically monitor
the Audited Party's access to and use of CPNI and other customer
information which is made available by the Auditing Party to the Audited
Party under this Agreement through electronic interfaces or gateways, to
ascertain whether the Audited Party is complying with the requirements of
Applicable Law and this Agreement with regard to the Audited Party's access
to, and use and disclosure of, such CPNI and other customer information.
22.15 Nothing herein shall be construed as limiting the rights of either
Party with respect to its own subscriber information under any Applicable
Law, including without limitation Section 222 of the Act.
Section 23. Audits and Examinations
23.1 As applicable consistent with the provision of the relevant services
or functions by a Party under this Agreement, each Party may audit the
other Party's books, records and documents for the purpose of evaluating
the accuracy of the other Party's bills and performance reports rendered
under this Agreement. Such audits may be performed no more than a total
of four (4) times in a calendar year nor more often than once every nine
(9) months for a specific subject matter area; provided, that particular
subject matter audits may be conducted more frequently (but no more
frequently than once in each calendar quarter) if the immediately prior
audit for such area found previously uncorrected net inaccuracies or
errors in billing or performance reporting in favor of the audited Party
having an aggregate value of at least five percent (5%) of the amounts
payable by the auditing Party, or statistics reportable by the audited
Party, relating to services provided by the audited Party during the
period covered by the audit.
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23.2 In addition to the audits described in Section 23.1, each Party may
audit the other Party's books, records and documents for the purpose of
evaluating compliance with CPNI where the audited Party has access to CPNI
in the custody of the auditing Party pursuant to this Agreement. Such CPNI
audits must be performed in a minimally disruptive fashion, and an audited
Party may bring objections to the Commission, if the audits are
unnecessarily intrusive and the Parties cannot resolve their disputes. Such
CPNI audits may not be performed more frequently than annually; provided,
however, that the frequency of CPNI audits may be increased to quarterly if
violations of a Party's CPNI obligations exceeds five percent (5%)of the
audit sample.
23.3 The auditing Party may employ other persons or firms for this purpose.
Such audit shall take place at a time and place agreed on by the Parties;
provided, that the auditing Party may require that the audit commence no
later than sixty (60) days after the auditing Party has given notice of the
audit to the other Party.
23.4 The audited Party shall promptly correct any error that is revealed in
a billing audit, including back-billing of any underpayments and making a
refund, in the form of a billing credit, of any over-payments. Such back-
billing and refund shall appear on the audited Party's ▇▇▇▇ no later than
the ▇▇▇▇ for the third full billing cycle after the Parties have agreed
upon the accuracy of the audit results.
23.5 Each Party shall cooperate fully in any audits required hereunder,
providing reasonable access to any and all employees, books, records and
documents, reasonably necessary to assess the accuracy of the audited
Party's bills or performance reports, or compliance with CPNI obligations,
as appropriate.
23.6 Audits shall be performed at the auditing Party's expense, provided
that there shall be no charge for reasonable access to the audited Party's
employees, books, records and documents necessary to conduct the audits
provided for hereunder.
23.7 Books, records, documents, and other information, disclosed by the
audited party to the auditing Party or the Auditing Party's employees,
agents or contractors in an audit under this Section 23, shall be deemed
to be Confidential Information under Section 22.
23.8 This Section 23 shall survive expiration or termination of this
Agreement for a period of two (2) years after expiration or termination of
this Agreement.
Section 24. Dispute Resolution Procedures
24.1 In the event the Commission retains continuing jurisdiction to
implement and enforce the terms and conditions of this Agreement, the
Parties agree that any dispute arising out of or relating to this Agreement
that the Parties themselves cannot resolve, may be submitted to the
Commission for resolution. The Parties agree to seek expedited resolution
by the Commission, pursuant to applicable procedures established by the
Commission. During the Commission proceeding, each Party shall continue to
perform
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its obligations under this Agreement; provided, however that neither Party
shall be required to act in any unlawful fashion. This provision shall not
preclude the Parties from seeking relief available in any other forum.
24.2 The Parties acknowledge that the terms of this Agreement were
established pursuant to an order of the Commission. Any and all of the
terms of this Agreement may be altered or abrogated by a successful
challenge to the Agreement (or to the order approving the Agreement) as
permitted by Applicable Law. By signing this Agreement, the Parties do not
waive the right to pursue such a challenge.
Section 25. Bona Fide Request Process for Further Unbundling
25.1 The Parties recognize that, because MCIm plans to maintain a
technologically advanced network, it is likely to seek further unbundling
of Network Elements or the introduction of new Network Elements.
Accordingly, MCIm may request such new unbundled Network Elements or
arrangements from time to time by submitting a request in writing ("Bona
Fide Request" or "BFR"). ▇▇▇▇ Atlantic shall promptly consider and analyze
MCIm's submission of a Bona Fide Request that ▇▇▇▇ Atlantic provide: (a) a
method of Interconnection or access to a Network Element not otherwise
provided under this Agreement at the time of such Bona Fide Request; (b) a
method of Interconnection or access to a Network Element that is different
in quality to that which ▇▇▇▇ Atlantic provides to itself, its Affiliates,
or its subscribers at the time of such request; (c) Collocation at a
location other than a ▇▇▇▇ Atlantic Central Office; and (d)such other
arrangement, service, or Network Element for which a Bona Fide Request is
required under this Agreement. Items (a) through (d) above may be referred
to individually as a "BFR Item." The Bona Fide Request process set forth
herein does not apply to those services requested pursuant to Report &
Order and Notice of Proposed Rulemaking 91-141 (rel. October 19, 1992),
Paragraph 259 and Footnote 603 or subsequent orders.
25.2 A Bona Fide Request shall be submitted in writing and shall contain
information required to perform a preliminary analysis of the requested BFR
Item. Such information will include a technical description of each BFR
Item and reasonable estimates of the number or volume requested, the
location(s)of each BFR Item, and the date(s) each BFR Item is desired. MCIm
shall submit each BFR via United States Postal Service or private courier,
return receipt requested.
25.3 MCIm may cancel a Bona Fide Request at any time, but shall pay ▇▇▇▇
Atlantic's reasonable and demonstrable costs of processing and/or
implementing the Bona Fide Request up to the date of cancellation;
except MCIm shall not be charged for preliminary analysis if costs do not
exceed one hundred dollars ($100). ▇▇▇▇ Atlantic shall notify MCIm if
costs will exceed five thousand dollars ($5,000). ▇▇▇▇ Atlantic shall
provide MCIm with weekly status reports on the progress of its analysis and
shall include the cost of such status reports in the costs of processing
the BFR.
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25.4 Within fifteen (15) business days after its receipt of a Bona Fide
Request, ▇▇▇▇ Atlantic shall provide to MCIm a preliminary analysis of the
BFR Item. The preliminary analysis shall respond in one of the following
ways:
25.4.1 confirm that ▇▇▇▇ Atlantic will offer the BFR Item and
identify the date (no more than ninety (90) days after the date of
the preliminary analysis) when ▇▇▇▇ Atlantic will deliver a firm
price proposal, including service description, pricing and an
estimated schedule for availability ("Bona Fide Request Price
Proposal");
25.4.2 provide a detailed explanation that such BFR Item is not
technically feasible and/or that the BFR Item does not qualify as one
that is required to be provided under the Act;
25.4.3 inform MCIm that ▇▇▇▇ Atlantic must do laboratory testing to
determine whether the BFR Item is technically feasible;
25.4.4 inform MCIm that ▇▇▇▇ Atlantic must do field testing to
determine whether the BFR Item is technically feasible;
25.4.5 inform MCIm that it is necessary for the Parties to undertake
a joint technical/operational field test in order to determine both
technical feasibility and operational cost impacts of the BFR Item;
or
25.4.6 request face-to-face meetings between technical
representatives of both Parties to further explain the BFR Item. No
later than five (5) business days following such meetings, ▇▇▇▇
Atlantic will provide a preliminary analysis in one of the ways
identified in Sections 25.4.1 through 25.4.5. Both Parties shall make
reasonable efforts to schedule such meetings as expeditiously as
possible.
25.5 Within ten (10) business days after receiving ▇▇▇▇ Atlantic's
preliminary analysis from Section 25.4.3, 25.4.4, or 25.4.5, MCIm shall:
25.5.1 in the case of Sections 25.4.3 or 25.4.4, (i) negotiate a
mutually agreeable, reasonably expeditious schedule for ▇▇▇▇
Atlantic's testing, (ii) a mutually agreeable date (no more than
ninety (90) days after the testing has shown the BFR Item is
technically feasible) when ▇▇▇▇ Atlantic will deliver a Bona Fide
Request Price Proposal, and (iii) a mutually agreeable arrangement
for sharing the testing costs; or
25.5.2 in the case of Section 25.4.5, (i) negotiate a mutually
agreeable, reasonably expeditious schedule for joint
technical/operational field testing, (ii) a mutually agreeable date
(no more than 90 days after the testing has shown the BFR Item is
technically feasible) when ▇▇▇▇ Atlantic will deliver a Bona Fide
Request Price Proposal, and a mutually agreeable arrangement for
sharing the testing costs.
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25.6 In handling a Bona Fide Request pursuant to ▇▇▇▇▇▇▇ ▇▇.▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ shall, to the extent possible, utilize information from previously
developed Bona Fide Requests in order to shorten its response times. MCIm
may take advantage of previously canceled BFR work performed by ▇▇▇▇
Atlantic on the same BFR Item or a substantially similar BFR Item, to the
extent applicable.
25.7 Within ten (10) business days after receiving ▇▇▇▇ Atlantic's
preliminary analysis from Section 25.4.1, MCIm shall:
25.7.1 accept ▇▇▇▇ Atlantic's date to deliver a Bona Fide Request
Price Proposal;
25.7.2 negotiate as expeditiously as possible a different date for
▇▇▇▇ Atlantic to deliver a Bona Fide Request Price Proposal; or
25.7.3 cancel the Bona Fide Request.
25.8 Unless the Parties otherwise agree, a BFR Item shall be priced in
accordance with Section 252(d)(1)of the Act and any applicable FCC or
Commission rules, regulations, or orders. Consistent with Applicable Law,
the price for each BFR Item shall include the reasonable and demonstrable
costs incurred by ▇▇▇▇ Atlantic in responding to the BFR, to the extent
that ▇▇▇▇ Atlantic has not previously been reimbursed for such costs.
25.9 Within ninety (90) days after its receipt of the Bona Fide Request
Price Proposal, MCIm must either place an order for such BFR Item pursuant
to the Bona Fide Request Price Proposal or, if it believes such Bona Fide
Request Price Proposal is inconsistent with the requirements of the Act,
seek arbitration by the Commission, including the use of any available
expedited procedures. If, within ninety (90)days after its receipt of the
Bona Fide Request Price Proposal, MCIm fails to confirm an order for such
BFR Item or seek arbitration by the Commission, ▇▇▇▇ Atlantic may treat
the Bona Fide Request as canceled by MCIm. If within ninety (90) days after
issuance of a Commission order finding that a Bona Fide Request Price
Proposal is consistent with the requirements of the Act, MCIm fails to
place an order for such BFR Item, ▇▇▇▇ Atlantic may treat the Bona Fide
Request as canceled by MCIm.
25.10 If a Party to a Bona Fide Request believes that the other Party is
not requesting, or negotiating, or processing the Bona Fide Request in
good faith, or disputes a determination, or price or cost quote, or is
failing to act in accordance with Section 251 of the Act, such Party may
seek mediation or arbitration by the Commission, including the use of any
available expedited procedures, after giving the other Party written notice
at least ten (10) days in advance.
Section 26. Branding
26.1 In all cases in which a Party has control over handling of services
provided to customers of the other Party using services procured under this
Agreement, the Party so
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handling such services shall brand them at the points of subscriber contact
as set forth in Attachment VIII.
26.2 When ▇▇▇▇ Atlantic technicians (including ▇▇▇▇ Atlantic contractor
technicians) have contact with a customer during a premise visit on behalf of
MCIm, the ▇▇▇▇ Atlantic technicians shall identify themselves as ▇▇▇▇
Atlantic employees (or ▇▇▇▇ Atlantic contractor employees) performing
services on behalf of MCIm. When a ▇▇▇▇ Atlantic technician leaves a status
card during a premise visit on behalf of MCIm, the card will be a standard
card used for other local service providers'customers, will be in
substantially the form set forth in Exhibit A of this Part A, and will
include the name and telephone number of each local service provider that
elects to be listed on the card and agrees to compensate ▇▇▇▇ Atlantic for
that provider's share of ▇▇▇▇ Atlantic's cost of printing and distributing
the card. The ▇▇▇▇ Atlantic technicians shall not leave any promotional or
marketing literature for or otherwise market ▇▇▇▇ Atlantic Telecommunications
Services to the MCIm customer during a premise visit on behalf of MCIm, but
may provide a telephone number for ▇▇▇▇ Atlantic's customer service or sales
department, in response to customer query about ▇▇▇▇ Atlantic services.
26.3 This Section 26 shall not confer on either Party any rights to the
service marks, trademarks and trade names owned by or used in connection with
services by the either Party or its Affiliates, except as expressly permitted
by this Section 26.
Section 27. Taxes
27.1 With respect to any purchase of services under this Agreement, if any
Federal, state or local government tax, fee, duty, surcharge (including, but
not limited to, any 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 a Purchasing Party by the
Providing Party, then: (i) the Providing Party shall ▇▇▇▇ the Purchasing
Party for such Tax; (ii) the Purchasing Party shall timely remit such Tax to
the Providing Party; and (iii) the Providing Party shall remit such collected
Tax to the applicable taxing authority.
27.2 With respect to any purchase of services under this Agreement, if any
Tax is imposed by Applicable Law on the receipts of the Providing Party,
which Applicable Law permits the Providing Party to exclude certain receipts
received from sales of services for resale by the Purchasing Party, such
exclusion being based solely on the fact that the Purchasing Party is also
subject to a tax based upon receipts ("Receipts Tax"), then the Purchasing
Party (i) shall provide the Providing Party with notice in writing in
accordance with Section 27.7 of its intent to pay the Receipts Tax, and (ii)
shall timely pay the Receipts Tax to the applicable taxing authority.
27.3 With respect to any purchase of services under this Agreement, that are
resold by the Purchasing Party to a subscriber of the Purchasing Party, if
any Tax is imposed by Applicable Law on the subscriber of the Purchasing
Party in connection with its purchase
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of the resold Offered Services which the Purchasing Party is required to
impose and/or collect from the subscriber, then the Purchasing Party
(i) shall impose and/or collect such Tax from the subscriber, and (ii)shall
timely remit such Tax to the applicable taxing authority.
27.3.1 If the Providing Party has not received an exemption
certificate from the Purchasing Party and fails to collect any Tax as
required by Section 27.1, then, as between the Providing Party and the
Purchasing Party, (i) the Purchasing Party shall remain liable for
such uncollected Tax, and (ii) the Providing Party shall be liable for
any interest and/or penalty assessed on the uncollected Tax by the
applicable taxing authority.
27.3.2 If the Providing Party properly bills the Purchasing Party for
any Tax but the Purchasing Party fails to remit the Tax to the
Providing Party as required by Section 27.1, then, as between the
Providing Party and the Purchasing Party, the Purchasing Party shall
be liable for such uncollected Tax and any interest and/or penalty
assessed on the uncollected Tax by the applicable taxing authority.
The Providing Party shall give timely notice to the Purchasing Party
if any proposed assessment of Taxes, interest or penalties by the
applicable taxing authority so as to afford the Purchasing Party an
opportunity to cure any defect or inadequacy with its exemption
certificate before assessment of any additional Taxes, interest or
penalties is made by the taxing authority.
27.3.3 If the Providing Party does not collect a Tax because the
Purchasing Party has provided the Providing Party with an exemption
certificate which is later found to be inadequate by the applicable
taxing authority, then, as between the Providing Party and the
Purchasing Party, the Purchasing Party shall be liable for such
uncollected Tax and any interest and/or penalty assessed on the
uncollected Tax by the applicable taxing authority.
27.3.4 Except as provided in Section 27.3.5, if the Purchasing Party
fails to pay the Receipts Tax as required by Section 27.2, then, as
between the Providing Party and the Purchasing Party, (i) the
Providing Party shall be liable for any Tax imposed on the Providing
Party's receipts, and (b) the Purchasing Party shall be liable for any
Tax imposed on the Purchasing Party's receipts and any interest and/or
penalty assessed by the applicable taxing authority on either the
Purchasing Party or the Providing Party with respect to the Tax on the
Providing Party's receipts.
27.3.5 If any discount or portion of a discount in price provided to
the Purchasing Party under this Agreement (including, but not limited
to, the discount provided for in Attachment I) represents Tax savings
to the Providing Party which it was assumed the Providing Party would
receive, because it was anticipated that receipts from sales of
services (that would otherwise be subject to a Tax on such receipts)
could be excluded from such Tax under Applicable Law, because the
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services would be sold to a Telecommunications Services provider, and
the Providing Party is, in fact, required by Applicable Law to pay such
Tax on receipts from sales of services to the Purchasing Party, then,
as between the Providing Party and the Purchasing Party, the Purchasing
Party shall be liable for any such Tax and any interest and/or penalty
assessed by the applicable taxing authority on either the Purchasing
Party or the Providing Party with respect to the Tax on the Providing
Party's receipts.
27.3.6 With respect to any Tax imposed on subscribers of the Purchasing
Party that the Purchasing Party is required to collect, as between the
Providing Party and the Purchasing Party, the Purchasing Party shall
remain liable for such Tax and any interest and/or penalty assessed on
such Tax by the applicable taxing authority.
27.4 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.
27.5 If Applicable Law clearly exempts a purchase of 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 the
Purchasing Party complies with such procedure, the Providing Party 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 27.7.
27.6 If Applicable Law appears to exempt a purchase of services under this
Agreement from a Tax, but does not also provide an exemption procedure, then
the Providing Party shall not collect such Tax if the Purchasing Party
(i) furnishes the Providing Party with a letter signed by an officer of the
Purchasing Party requesting an exemption and citing the provision in the
Applicable Law which appears to allow such exemption, and (ii) supplies the
Providing Party with an indemnification agreement, reasonably acceptable to
the Providing Party, which holds the Providing Party harmless on an after-
tax basis with respect to forbearing to collect such Tax.
27.7 All notices, affidavits, exemption certificates or other communications
required or permitted to be given by either Party to the other under this
Section 27, shall be made in writing and shall be delivered personally or
sent by prepaid overnight express service, and sent to the addresses stated
in Section 14 and to the following:
To ▇▇▇▇ Atlantic: Tax Administration
▇▇▇▇ Atlantic Network Services, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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To MCIm: MCI Carrier Group
MCI Telecommunications Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either Party may from time-to-time designate another address or addressee
by giving notice in accordance with the terms of this Section 27.7. Any
notice or other communication shall be deemed to be given when received.
Section 28. Responsibility for Environmental Contamination
28.1 MCIm shall in no event be liable to ▇▇▇▇ Atlantic for any costs
whatsoever resulting from a violation of a federal, state or local
environmental law by ▇▇▇▇ Atlantic, its contractors or agents arising out
of this Agreement (a "▇▇▇▇ Atlantic Environmental Violation"). ▇▇▇▇
Atlantic shall, at MCIm's request, indemnify, defend, and hold harmless
MCIm, each of its officers, directors and employees from and against any
losses, damages, claims, demands, suits, liabilities, fines, penalties and
expenses (including reasonable attorneys fees) that are caused by a ▇▇▇▇
Atlantic Environmental Violation.
28.2 ▇▇▇▇ Atlantic shall in no event be liable to MCIm for any costs
whatsoever resulting from a violation of a federal, state or local
environmental law by MCIm, its contractors or agents arising out of this
Agreement (an "MCIm Environmental Violation"). MCIm shall, at ▇▇▇▇
Atlantic's request, indemnify, defend, and hold harmless ▇▇▇▇ Atlantic,
each of its officers, directors and employees from and against any losses,
damages, claims, demands, suits, liabilities, fines, penalties and expenses
(including reasonable attorneys fees)that are caused by an MCIm
Environmental Violation.
28.3 In the event any suspect materials within ▇▇▇▇ Atlantic-owned,
operated or leased facilities are identified to be asbestos-containing,
MCIm will ensure that to the extent any activities which it undertakes in
the facility disturb such suspect materials, such MCIm activities will be
in accordance with applicable local, state and federal environmental and
health and safety statutes and regulations. Except for abatement activities
undertaken by MCIm or equipment placement activities that result in the
generation or placement of asbestos containing material, MCIm shall not
have any responsibility for managing, nor be the owner of, not have any
liability for, or in connection with, any asbestos containing material at
▇▇▇▇ Atlantic-owned, operated or leased facilities. ▇▇▇▇ Atlantic agrees to
immediately notify MCIm if ▇▇▇▇ Atlantic undertakes any asbestos control or
asbestos abatement activities that potentially could affect MCIm equipment
or operations, including, but not limited to, contamination of equipment.
Section 29. Facilities
29.1 A providing Party or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment, software, and
wiring, used to provide the
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providing Party's services. During the period in which services are
provided, the providing Party shall have access at all reasonable times to
the purchasing Party's and the purchasing Party's customers' locations for
the purpose of installing, maintaining, repairing, and inspecting all
facilities, equipment, software, and wiring, used to provide the services.
At the conclusion of the period in which services are provided, the
providing Party shall have access at the purchasing Party's and the
purchasing Party's customers' locations at all reasonable times to remove
all facilities, equipment, software, and wiring used to provide the
services. The purchasing Party shall, at the purchasing Party's expense,
obtain any rights and authorizations necessary for such access.
29.2 Except as otherwise stated in this Agreement or agreed to in writing
by a providing Party, a providing Party shall not be responsible for the
installation, maintenance, repair or inspection, of facilities, equipment,
software, or wiring furnished by the purchasing Party or the purchasing
Party's customers for use with the providing Party's services.
Section 30. Option to Obtain Services Under Other Agreements
30.1 In accordance with the requirements of 47 U.S.C. (S) 252(i), each
Party shall, upon written request by the other Party, make available to the
requesting Party any interconnection, service, or network element provided
under an agreement with a third party, and which is approved by the
Commission pursuant to 47 U.S.C. (S) 252, upon the same terms and
conditions (including prices) provided in the agreement with the third
party. This Agreement shall thereafter be amended to incorporate the terms
and conditions (including prices) from the third party agreement applicable
to the interconnection, service, or network element that the requesting
Party has elected to purchase pursuant to the terms and conditions of the
third party agreement. The amended rates, terms and conditions from the
third party agreement shall be effective upon: (i) amendment by the
Parties, or (ii) sixty (60) days after the date of written request,
whichever is earlier.
30.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by the providing Party, the requesting Party
shall be liable for the non-recurring charges associated therewith, as well
as for any termination charges, if any, associated with the termination of
existing facilities or services.
Section 31. Other Services
31.1 This Agreement applies only to "services" as defined in this
Agreement. To the extent that services subscribed to under this Agreement
by a purchasing Party are interconnected to or used with other services,
facilities, equipment, software, or wiring, provided by the providing Party
or by other persons, such other services, facilities, equipment, software,
or wiring, shall not be construed to be provided under this Agreement. Any
providing Party services, facilities, equipment, software, or wiring, to be
used by the purchasing Party which are not subscribed to by the purchasing
Party
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under this Agreement must be subscribed to by the purchasing Party separately,
pursuant to other written agreements (including, but not limited to, applicable
providing Party Tariffs).
31.2 Without in any way limiting Section 31.1, the Parties agree that this
Agreement does not apply to the following ▇▇▇▇ Atlantic services and
products: ▇▇▇▇ Atlantic Answer Call, ▇▇▇▇ Atlantic Answer Call Plus, ▇▇▇▇
Atlantic Basic Mailbox, ▇▇▇▇ Atlantic Voice Mail, and other ▇▇▇▇ Atlantic
voice mail and voice messaging services; ▇▇▇▇ Atlantic Optional Wire
Maintenance Plan, ▇▇▇▇ Atlantic Guardian Enhanced Maintenance Service, ▇▇▇▇
Atlantic Sentry I Enhanced Maintenance Service, ▇▇▇▇ Atlantic Sentry II
Enhanced Maintenance Service, ▇▇▇▇ Atlantic Sentry III Enhanced Maintenance
Service, and other inside wire maintenance services; customer premises
equipment; Telephone Directory advertisements (except as stated in
Attachment VIII); and any service that incorporates the payphone station
equipment.
31.3 Without in any way limiting Section 31.1 or Section 31.2, the
Parties also agree that this Agreement does not apply to the installation,
maintenance, repair, inspection, or use of any facilities, equipment,
software, or wiring, located on the purchasing Party's side of the Network
Rate Demarcation Point applicable to the purchasing Party and does not
grant to the purchasing Party a right to installation, maintenance, repair,
inspection, or use, of any such facilities, equipment, software, or wiring.
Installation, maintenance, repair, inspection, or use of facilities,
equipment, software, or wiring, located on the purchasing Party's side of
the Network Rate Demarcation Point applicable to the purchasing Party must
be contracted for by the purchasing Party separately, pursuant to other
written agreements, at rates stated in such other written agreements.
Section 32. Provision and Use of Services
32.1 A Party may fulfill its obligations under this Agreement itself or may
cause an Affiliate of the Party to take the action necessary to fulfill the
Party's obligations; provided that a Party's use of an Affiliate to perform
this Agreement shall not release the Party from any liability or duty to
fulfill its obligations under this Agreement.
32.2 Except as otherwise expressly stated in this Agreement, each Party, at
its own expense, shall be responsible for obtaining from governmental
authorities, property owners, other Telecommunications Carriers, and any
other persons or entities, all rights and privileges (including, but not
limited to, Rights of Way, space and power), which are necessary for the
Party to provide its services pursuant to this Agreement.
32.3 Except as otherwise provided in this Agreement, this Agreement does
not prevent a purchasing Party from using the services provided by a
providing Party pursuant to this Agreement in connection with other
technically compatible services provided by the providing Party pursuant to
this Agreement or with any services provided by the purchasing Party or a
third party, provided, however, that unless otherwise provided herein,
interconnection services, call transport and termination services, and
unbundled
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Network Elements shall be available under the terms and conditions (including
prices) set forth in this Agreement and shall be used by the purchasing Party
solely for purposes consistent with obligations set forth in the Act and any
rules, regulations or orders thereunder.
Section 33. Selection of IntraLATA Telecommunications Service Provider
33.1 The Parties agree to apply the principles and procedures set forth in
Sections 64.1100 and 64.1150 of the FCC Rules, 47 C.F.R. (S)(S) 64.1100 and
64.1150, to the process for end user selection of an IntraLATA
Telecommunications Service provider; provided that if the FCC or the
Commission adopts rules governing the process for end user selection of an
IntraLATA Telecommunications Service provider, the Parties shall apply such
rules rather than the principles and procedures set forth in (S)(S) 64.1100
and 64.1150.
33.2 In the event a Party ("Requesting Party")which requests the other
Party to change an end user's Telecommunications Service (including, but
not limited to, an end user's selection of an IntraLATA Telecommunications
Service provider): (a) fails to provide documentary evidence of the end
user's IntraLATA Telecommunications Service provider selection upon
request; or (b) requests changes in the end user's Telecommunications
Service without having obtained authorization for such change from the end
user pursuant to the principles and procedures set forth in Sections
64.1100 and 64.1150 or other applicable FCC or Commission rules, the
Requesting Party shall indemnify, defend and hold harmless the other Party
for any resulting Claims. In addition, the Requesting Party shall be liable
to the other Party for all charges that would be applicable to the end user
for the initial change in the end user's Telecommunications Service and any
charges for restoring the end user's Telecommunications Service to its end
user authorized condition, including to the appropriate IntraLATA
Telecommunications Service provider.
33.3 A Providing Party shall not require the Purchasing Party to produce a
letter of authorization, disconnect order, or other writing, from the
Purchasing Party's subscriber as a pre-condition to processing an Order
from the Purchasing Party.
Section 34. Service Standards
34.1 ▇▇▇▇ Atlantic shall provide service to MCIm at a level of performance
that ▇▇▇▇ Atlantic is required by Applicable Law (including 47 U.S.C. (S)
251)to meet in providing service to MCIm.
34.2 ▇▇▇▇ Atlantic shall offer premium service (services provided at a
higher level than that required by Section 34.1) to MCIm, if MCIm requests
premium service in accordance with Section 25 and MCIm compensates ▇▇▇▇
Atlantic for the incremental cost of providing such premium service.
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July 8, 1997 PART A
34.3 Upon MCIm's request, ▇▇▇▇ Atlantic shall provide to MCIm reports on
all material measures of service Parity. MCIm may request a report on all
measures that are reasonably related to establishing the Parity level and
whether MCIm is receiving services at Parity. Such reports shall indicate
for each material measure the service and performance level provided by
▇▇▇▇ Atlantic to itself, its Affiliates, MCIm, and other CLECs. The reports
required by this Section 34 are identified in Attachment X of this
Agreement.
34.4 To the extent ▇▇▇▇ Atlantic through its Tariffs provides credits for
substandard performance, ▇▇▇▇ Atlantic shall provide MCIm such credits for
substandard performance of services provided under this Agreement.
34.5 Pursuant to Section 23 of this Part A, MCIm shall have the right, at
its expense, to conduct reasonable audits or other verifications of
information and reports provided by ▇▇▇▇ Atlantic under this Section 34.
Section 35. Subcontracting
35.1 If any obligation under this Agreement is performed through a
subcontractor, the subcontracting Party shall remain fully responsible for
the performance of this Agreement in accordance with its terms, including
any obligations it performs through the subcontractor. The subcontracting
Party shall be solely responsible for payments due its subcontractors. No
subcontractor shall be deemed a third party beneficiary for any purposes
under this Agreement.
Section 36. Amendments and Modifications
36.1 No provision of this Agreement shall be deemed waived, amended or
modified by either Party unless such a waiver, amendment or modification is
in writing, dated, and signed by both Parties.
Section 37. Severability
37.1 If any term, condition or provision of this Agreement is held to be
invalid or unenforceable for any reason, such invalidity or
unenforceability shall not invalidate the entire Agreement (unless such
construction would be unreasonable), and the Agreement shall be construed
as if it did not contain the invalid or unenforceable provision or
provisions, and the rights and obligations of each Party construed and
enforced accordingly.
MCIm-▇▇▇▇ ATLANTIC INTERCONNECTION AGREEMENT - PENNSYLVANIA PART A-33
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Section 38. Headings Not Controlling
38.1 The headings of Articles and Sections of this Agreement are for
convenience of reference only, and shall in no way define, modify or
restrict the meaning or interpretation of the terms or provisions of this
Agreement.
Section 39. Entire Agreement
39.1 This Agreement 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 this Agreement, the terms in this Agreement
may not be waived or modified except by a written document which is signed
by the Parties.
Section 40. Counterparts
40.1 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original; but such counterparts shall together
constitute one and the same instrument.
Section 41. Successors and Assigns
41.1 This Agreement shall be binding upon, and inure to the benefit of,
the Parties hereto and their respective successors and permitted assigns.
Section 42. Good Faith Performance
42.1 In the performance of their obligations under this Agreement, the
Parties shall cooperate fully and act in good faith and consistently with
the intent of the Act. Where notice, approval or similar action by a Party
is permitted or required by any provision of this Agreement (including,
without limitation, the obligation of the Parties to further negotiate the
resolution of new or open issues under this Agreement), such action shall
not be unreasonably delayed, withheld or conditioned.
Section 43. Joint Work Product
43.1 This Agreement is the joint work product of the representatives of the
Parties. For convenience, this Agreement has been drafted in final form by
one of the Parties. Accordingly, in the event of ambiguities, no inferences
shall be drawn against either Party solely on the basis of authorship of
this Agreement.
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July 8, 1997 PART A
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed by its duly authorized representatives.
MCImetro Access Transmission ▇▇▇▇ Atlantic Pennsylvania, Inc.
Services, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By:
-------------------------- -----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name:
------------------------ ---------------------------
Title: Vice President Title:
----------------------- --------------------------
Date: 7/7/97 Date:
------------------------ --------------------------
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July 8, 1997 PART A
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed by its duly authorized representatives.
MCImetro Access Transmission ▇▇▇▇ Atlantic-Pennsylvania, Inc.
Services, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:___________________________ By:_____________________________
Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________ ___________________________
Title: Title: President and CEO
________________________ __________________________
Date: Date: 7/8/97
_________________________ ___________________________
MCIm-▇▇▇▇ ATLANTIC INTERCONNECTION AGREENENT - PENNSYLVANIA PART A-35
July 8, 1997 ATTACHMENT II
TABLE OF CONTENTS
-----------------
Attachment II
LOCAL RESALE
Section 1. Telecommunications Services Provided for Resale II-1
Section 2. General Terms and Conditions for Resale II-1
Section 3. Service Functions II-4
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July 8, 1997 ATTACHMENT II
ATTACHMENT II
LOCAL RESALE
Section 1. Telecommunications Services Provided for Resale
1.1 In accordance with and subject to the requirements of Applicable Law, ▇▇▇▇
Atlantic shall make available to MCIm for resale any Telecommunications
Service that ▇▇▇▇ Atlantic currently provides or may offer hereafter,
including the service functions described in Section 3 below. Such
Telecommunications Services and service functions are collectively referred to
as "Local Resale."
1.2 To the extent that this Attachment describes services which ▇▇▇▇ Atlantic
shall make available to MCIm for resale pursuant to this Agreement, this list
of services is neither all inclusive nor exclusive. All Telecommunications
Services which are to be offered for resale are subject to the terms herein.
1.3 ▇▇▇▇ Atlantic shall make all of its Telecommunications Services available
for resale to MCIm on terms and conditions that are reasonable and Non-
Discriminatory.
1.4 ▇▇▇▇ Atlantic will provide services to MCIm for resale that are equal in
quality, subject to the same conditions, and provided within the same
provisioning time intervals that ▇▇▇▇ Atlantic provides itself, including end
users. To the extent applicable, ▇▇▇▇ Atlantic shall also conform to the
specific requirements of Attachment VIII.
1.5 The specific business process requirements and systems interface
requirements are set forth in Attachment VIII.
1.6 Notwithstanding any other provision of this Attachment II, ▇▇▇▇ Atlantic
shall be entitled to change its Telecommunications Services offerings, subject
to the notice provisions of Attachment VIII, Section 1.
1.7 MCIm acknowledges that it has a duty under Section 25 l(b)(1)of the Act
not to prohibit, and not to impose unreasonable and discriminatory conditions
or limitations on the resale of its Telecommunications Services. MCIm will
develop its services with the knowledge that when they are available, ▇▇▇▇
Atlantic may request negotiations with MCIm for the resale of such services.
MCIm will negotiate in good faith the terms and conditions necessary for ▇▇▇▇
Atlantic to purchase such services for resale from MCIm.
Section 2. General Terms and Conditions for Resale
2.1 Pricing. The prices regarding Local Resale are set forth in Attachment I
of this Agreement.
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2.2 Restrictions on Resale
2.2.1 Local Resale services may be purchased by MCIm under this
Agreement solely for the purpose of resale by MCIm. Local services to
be purchased for other purposes (including, but not limited to, MCIm's
own use) must be purchased pursuant to separate written agreements,
including, but not limited to, applicable Tariffs of ▇▇▇▇ Atlantic.
MCIm may purchase Local Resale services under this Agreement for resale
to its Affiliates if MCIm resells such services as a Telecommunications
Carrier pursuant to terms and conditions that comply with all
applicable Commission rules, including non-discrimination rules.
2.2.2 MCIm shall not resell ▇▇▇▇ Atlantic's residential Local Resale
services to customers who are ineligible to subscribe to such Local
Resale services from ▇▇▇▇ Atlantic.
2.2.3 MCIm shall not resell Lifeline or any other means-tested service
offerings to customers not eligible to subscribe to such service
offerings from ▇▇▇▇ Atlantic.
2.2.4 MCIm shall not resell grandfathered Local Resale services to
customers who are ineligible to subscribe to such Local Resale services
from ▇▇▇▇ Atlantic.
2.2.5 The Parties agree to negotiate the applicability of any category-
to-category restriction on the resale of ▇▇▇▇ Atlantic's Local Resale
services that may be offered by ▇▇▇▇ Atlantic in the future. If the
Parties are unable to reach agreement, the Parties will submit the
dispute to the Commission under the dispute resolution procedures of
Part A, Section 24 (Dispute Resolution Procedures), and ▇▇▇▇ Atlantic
shall bear the burden of proving that the category-to-category
restriction is reasonable and nondiscriminatory.
2.3 Requirements for Specific Services
2.3.1 CENTREX Requirements
2.3.1.l MCIm may purchase CENTREX features (including system
management, call forwarding, digital facility termination and
ARS), in accordance with applicable Tariffs.
2.3.1.2 All service levels and features of CENTREX service
provided by ▇▇▇▇ Atlantic for resale by MCIm shall conform to
▇▇▇▇ Atlantic's prevailing service requirements and be at Parity
with the service and features provided to its end user customers.
2.3.1.3 MCIm may aggregate multiple MCIm subscribers on dedicated
access facilities. Any aggregation of multiple location
subscribers may have the effect of changing the retail CENTREX
service offered under
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July 8, 1997 ATTACHMENT II
applicable Tariff, in which case MCIm must purchase the
appropriate tariffed service or, if such changed service is not
available under Tariff, the Parties shall attempt to negotiate a
separate agreement for such service.
2.3.2 Federal and State Programs
When a ▇▇▇▇ Atlantic subscriber eligible for the Voluntary Federal
Subscriber Financial Assistance Program or other similar state
programs, including Life Line and Link-Up services, chooses to obtain
Local Resale from MCIm, MCIm shall be responsible for obtaining the
necessary information for its records regarding such subscriber's
eligibility.
2.3.3 Grandfathered Services. ▇▇▇▇ Atlantic shall offer for resale to
MCIm all grandfathered services eligible for resale hereunder. For
purposes of this Agreement, a grandfathered service is a service that
▇▇▇▇ Atlantic offers to continue for existing retail subscribers of
that service, but not to new subscribers.
2.3.4 N11 Service. ▇▇▇▇ Atlantic agrees to offer for resale to MCIm any
N11 Telecommunications Service it offers under Tariff.
2.3.5 Contract Service Arrangements, Special Arrangements, and
Promotions. ▇▇▇▇ Atlantic shall offer for resale Telecommunications
Services, including but not limited to contract service arrangements,
special arrangements, and promotions, as required by Applicable Law.
2.3.6 Inside Wire Maintenance Service. [RESERVED]
2.3.7 Voice Mail Service
2.3.7.1 [RESERVED]
2.3.7.2 ▇▇▇▇ Atlantic shall make available SMDI-E (Station
Message Desk Interface-Enhanced) features where available, or
SMDI (Station Message Desk Interface) features where SMDI-E is
not available. ▇▇▇▇ Atlantic shall make available the MWI
(Message Waiting Indicator), stutter dialtone, and message
waiting light feature capabilities. ▇▇▇▇ Atlantic shall make
available CF-B/DA (Call Forward on Busy/Don't Answer), CF/B (Call
Forward on Busy), and CF/DA (Call Forward/Don't Answer) feature
capabilities allowing for voice mail services.
2.3.8 Hospitality Service
2.3.8.1 ▇▇▇▇ Atlantic shall provide all blocking, screening, and
all other applicable functions available for hospitality (e.g.,
hospitals, hotels and the like) lines, pursuant to Tariff.
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2.3.9 Telephone Line Number Calling Cards. ▇▇▇▇ Atlantic shall
maintain customer information for MCIm customers who subscribe to
resold ▇▇▇▇ Atlantic Local Service residential or business dial tone
lines in ▇▇▇▇ Atlantic's Line Information Database ("LIDB")in the
same manner that it maintains information in LIDB on its own similarly
situated end user customers. ▇▇▇▇ Atlantic shall update and maintain,
on the same schedule that it uses for its own similarly situated end
user customers, the MCIm customer information in LIDB.
Section 3. Service Functions
3.1 When ▇▇▇▇ Atlantic converts one of its subscribers to MCIm's service,
▇▇▇▇ Atlantic shall inform MCIm, to the extent such information is available
through ▇▇▇▇ Atlantic's electronic interfaces for CLECs, whether such
subscriber is currently participating in any program of reduced or exempt
charges, including those for the indigent, the handicapped, governmental
bodies and public institutions.
3.2 Each Party will work cooperatively with the other Party with respect to
practices and procedures for handling of law enforcement and service
annoyance calls.
3.3 The Parties will cooperate in the development of an industry standard of
"700" number test lines.
MCIm-▇▇▇▇ ATLANTIC INTERCONNECTION AGREEMENT - PENNSYLVANIA II-4
