EXHIBIT 10.2
[BUSINESS TELECOM, INC. LOGO]
Carrier Services Agreement
This Agreement, dated July 16, 2001, is between Business Telecom, Inc., a North
Carolina corporation with its principal office at 0000 Xxx Xxxxx Xxxx, Xxxxxxx,
Xxxxx Xxxxxxxx 00000, hereinafter called "BTI" and Knology, Inc. hereinafter
called "Customer" located at 0000 X.X. Xxxxxxx Xxxxx, Xxxx Xxxxx, XX. 00000.
WITNESSED: BTI agrees to provide telecommunications services, attached hereto
and incorporated herein, to Customer on the following terms and conditions, and
Customer hereby agrees to accept such services pursuant to this Agreement.
1. Entire Agreement. This Agreement covers the entire understanding of the
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parties and any oral representations or agreements are hereby merged in this
Agreement upon its execution.
2. Agreement Modifications. This Agreement may be modified only by mutual
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consent and in writing, with notice to BTI sent to:
BTI
President & Chief Operating Officer
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
and notice to Customer sent to:
Knology, Inc.
Attn: General Counsel
X.X. Xxx 000, 0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
3. Scope of Agreement. BTI agrees to provide Customer with telecommunications
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services to include, but not limited to:
A. InterState Termination and Directory Assistance Services, as per Exhibit
B.1
B. IntraState Termination Services, as per Exhibit B.2.
C. Toll Free Origination and RespOrg Services, as per Exhibit C
D. International Services, as per Exhibit D
E. Payphone Owner Compensation, as per Exhibit E
4. Nondisclosure. Neither party shall disclose to any third party during the
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service term any of the terms and conditions set forth in this Agreement
unless such disclosure is lawfully required by any federal governmental
agency or is otherwise required to be disclosed by law or is necessary in
any proceeding establishing rights and obligations under this Agreement.
Either party reserves the right to terminate this Agreement immediately
upon delivering written notice to Customer of any unpermitted third party
disclosure thereunder.
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5. No-Waiver. No term or provision of this Agreement shall be deemed waived
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and no breach or default shall be deemed excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived
or consented. No consent by any party to, or waiver of, a breach or
default by the other, whether expressed or implied, shall constitute a
consent to, waiver of, or excuse for any different or subsequent breach or
default.
6. Term. The term of this Agreement shall be effective, and its obligations
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shall commence, upon the date of execution by the parties. This Agreement
shall be effective for a period of one (1) year from the date of
commencement of services hereof, notwithstanding violation of nondisclosure
clause of Agreement. This Agreement will be automatically renewed every
month after the expiration of the initial term. If either party desires to
cancel this Agreement after the initial or subsequent terms, it shall give
the other party notice of its intent to cancel at least ninety (90) days
prior to the cancellation. This Agreement shall continue and remain in full
force and effect, until canceled by either party under the provisions for
due notice contained herein.
7. Payment. Customer hereby acknowledges that xxxxxxxx are done on a monthly
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basis for service at the rates described in the aforementioned Exhibits and
must be paid within twenty-five (25) days of date of xxxx by Customer. If
payment is not received by BTI within twenty-five (25) days, Customer
agrees to pay BTI a one and one-half percent (1.5%) late charge on all
undisputed outstanding balances. Furthermore, if payment of services is
past due, BTI also reserves the right to terminate service upon five (5)
days prior written notice to Customer. This termination does not relieve
Customer of payment performance for the period of time in which service was
actually provided (i.e., prior to termination).
8. Billing Disputes. Notwithstanding the foregoing, Customer may deduct from
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BTI Service xxxxxxxx for amounts reasonably disputed by customer, provided
Customer: (I) pays all undisputed charges on or before the Due Date, (ii)
presents a written statement of any billing discrepancies to BTI in
reasonable detail on or before the Due Date of the invoice in question, and
(iii) negotiates in good faith with BTI for the purpose of resolving such
dispute. In the event such dispute is resolved in favor of BTI, Customer
agrees to pay BTI the disputed amounts together with any late fees within
five (5) days of the resolution. In the event the dispute cannot be
resolved within a period of sixty (60) days following the Due Date of the
invoice in question, (unless BTI has agreed in writing to extend such
period) all disputed amounts together with late fees shall become
immediately due and payable, and this provision shall not be construed to
prevent Customer from pursuing any available legal remedies. BTI shall not
be obligated to consider any Customer notice of billing discrepancies which
are received by BTI more than sixty (60) days following the Due Date of the
invoice in question. In the event that Customer fails to pay an invoice in
full because of a billing dispute, BTI shall have the right to suspend all
or any portion of the Service to Customer until such time as the dispute is
resolved.
9. Technical Standards and Requirements for Interconnection.
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a. Access Facilities; Minimum Loading. BTI shall, to the extent
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available and subject to BTI's standard terms and conditions, provide
space at its POP for interconnection of Customer facilities. Customer
shall use only DS-1/DS-3 access facilities to connect to BTI's POP
facilities. Commencing on the first full calendar month of service
after installation of each DS-1/DS-3, Customer shall be required to
maintain an average 150,000 minutes per DS-1 per month minimum loading
requirement. Should Customer's usage fall below the minimum loading
requirement, BTI reserves the right to disconnect the access
facilities.
b. Facility Installation. Customer must supply a Traffic Forecast and pay
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a nonrecurring charge of $500.00 per DS-1 and $2000.00 per DS-3
requested.
10. General Network Charges. Customer shall compensate BTI for the general
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network services associated with the BTI Services as follows:
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a. Point-of-Presence Interconnects. Customer shall be responsible for
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all costs and expenses, nonrecurring, recurring or otherwise,
associated with obtaining interconnection, including cross connections
if applicable, into the meet points identified in Exhibit A.
b. Expedite Charges. Should Customer request expeditious service and/or
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changes to orders, BTI will pass through the charges assessed by any
supplying parties involved at the same rate to Customer.
11. Warranty. BTI will use its best efforts to maintain overall network
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quality. The quality of the services provided hereunder shall be
consistent with other common carrier industry standards, government
regulations and sound business practices.
12. Indemnification. In no event, will either party hereto, be liable to the
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other party for any indirect, special, incidental or consequential losses
or damages, including without limitation, loss of revenue, loss of
customers or clients, loss of goodwill or loss of profits arising in any
manner from this Agreement and the performance or nonperformance of
obligations hereunder.
13. Execution. This Agreement may be executed in one or more counterparts,
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each of which shall be deemed an original. It shall not be necessary in
making proof of the Agreement to produce or account for more than one of
such counterparts.
14. Choice of Law/Forum. This Agreement shall be governed by the laws of the
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state of North Carolina.
15. Partial Invalidity.
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a. If any term or provision of this Agreement shall be found to be
illegal or unenforceable, then, notwithstanding such illegality or
unenforceability, this Agreement shall remain in full force and effect
and such term or provision shall be deemed deleted.
b. In addition to the foregoing, this Agreement shall be terminated upon
a determination by a governmental entity having jurisdiction over the
services provided under this Agreement and the relationship of the
parties and/or services provided hereunder are contrary to then
existing law.
16. Cumulative Remedies. Except as otherwise provided herein, the remedies
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provided for in this Agreement are in addition to any other remedies
available at law or otherwise.
17. Independent Telco Surcharge. An 80/20 rule applies to all traffic
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terminating to, or originating from, Independent Telcos that are defined as
telephone companies originating traffic outside of the RBOC service
territory. If traffic, originating from, or terminating to, Independent
Telcos exceeds 20% of all originating or terminating traffic, a $.0330 per
minute surcharge will apply to all minutes terminating to or originating
from Independent Telcos. GTE and Sprint are not considered Independent
Telcos.
18. Rate Adjustments. BTI reserves the right to change either the rates
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disclosed in this Agreement or any amendment to this Agreement upon forty-
five (45) days prior notification for Domestic Termination Services.
Customer may elect to terminate this Agreement upon written notification of
rate changes for Domestic Termination Services, provided Customer gives
notification of such election at least five (5) days prior to effective
date of such changes. BTI reserves the right to change either the rates
disclosed in this Agreement or any amendment to this Agreement upon five
(5) days prior notification for International Termination Services.
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19. Credit Limit. BTI reserves the right to establish a credit limit for
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Customer to include but not be limited to all fees, charges and usage
(billed and/or unbilled). Customer's credit limit will be reviewed on a
monthly basis by the BTI Credit department and is subject to adjustment at
any time. When Customer has reached or exceeded the preset credit limit,
Customer will be notified via a phone call to the authorized contact
person, and phone number, as stated on the credit application. The
Customer will then have forty-eight (48) hours to cure the balance via wire
transfer. BTI reserves the right to disconnect facilities when Customer
has reached or exceeded the preset credit limit if Customer has not shown
good faith to cure the existing balance or if evidence of funding is not
available.
20. Universal Service Fund. The Federal Communications Commission (FCC)
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mandates all telecommunications carriers who provide interstate,
intrastate, and international telecommunications services to contribute to
various universal service support funds. Carriers are required to complete
a worksheet detailing gross billed revenues for submission to the FCC on a
semi-annual basis. Revenues from services provided to Resellers are
excluded from the funding base for determining Universal Service
Contributions of the underlying contributor. A reseller is defined as a
telecommunications service provider that:
(1) Incorporates the purchased telecommunications services into its
own offerings; and
(2) Can reasonably be expected to contribute to support Universal
Service based on revenues from these offerings.
BTI will not be reporting revenues, received from Customer in its funding
base for determining Universal Service Contributions. As a Reseller,
Customer is responsible for remitting universal service support payments
directly to the Universal Service Fund Administrator.
21. Length of Offer; Entire Agreement. This offer shall remain open and be
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capable of being accepted by Customer until July 31, 2001. Any and all
prior agreements made with Customer, whether written or oral, shall be
superseded by this offer. Exclusive of any rates modifications initiated
by BTI, once this Agreement has been executed, any amendments hereto must
be made in writing and signed by both parties.
In witness whereof, the parties hereto have executed this Agreement, as of the
day and year first above written.
Knology, Inc. Business Telecom, Inc.
By: By:
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R. Xxxxxxx Xxxxxxx
Title: Title: President & Chief Operating
---------------------------- Officer
Date: Date:
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Exhibit A
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Interconnect Facilities
MEET POINT:
Customer will provision and pay for facilities into the "To be defined" POP site
to include local loops and all associated costs.
X BTI Raleigh Switch 0000-000 Xxxxxx Xxxxxx, Xxxxxxx, XX., 00000
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X BTI Atlanta Switch 00 Xxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX., 00000
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Knology, Inc. BTI
Initial: Initial:
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Date: Date:
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Exhibit E
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PAYPHONE OWNER COMPENSATION UNDERTAKING
The undersigned entity ("Customer") and Business Telecom, Inc., ("BTI")
have heretofore entered into an agreement ("Agreement") pursuant to which
Customer shall purchase telecommunications and related services from BTI ("BTI
Services"). Pursuant to 47 C.F.R. 64.1300 et. seq. and the Federal
Communications Commission ("FCC") Orders in CC Docket 96-128 ("Payphone
Orders"), facilities-based carriers are required to pay compensation to payphone
owners for each completed payphone call routed to the carrier ("payphone
charges"). Customer is providing this undertaking to BTI, or any successor in
interest, pursuant to 47 C.F.R. 64.1300 et. seq. and the FCC's Payphone Orders,
confirming that Customer is responsible for payment of payphone charges routed
to any of its switches.
Customer hereby certifies, represents, warrants and undertakes the
following:
1. Customer maintains its own switching capability and, thus, is a
facilities-bases carrier pursuant to 47 C.F.R. 64.1300 et. seq. and
the FCC's Payphone Orders.
2. As a facilities-based carrier, pursuant to 47 C.F.R. 64.1300 et. seq.
and the FCC's Payphone Orders, Customer is responsible for accurately
tracking and computing compensation for every completed payphone
originated call routed to any switch maintained by Customer.
3. Customer will, in accordance with 47 C.F.R. 64.1300 et. seq. and the
FCC's Payphone Orders, track and pay compensation to the appropriate
payphone owner for each and every completed payphone originated call
routed to any of the switches it maintains.
4. Customer understands, that because it is a facilities-based carrier,
BTI is not responsible for payment of any payphone charges arising
from payphone originated calls routed to any of Customer's switches
and BTI and Customer have no agreement that BTI will track and/or pay
any payphone charges on behalf of Customer.
5. Customer hereby agrees, to indemnify, defend and hold harmless BTI,
its shareholders, affiliates, subsidiaries, successors and assigns
("indemnified parties") from any claims, losses, liabilities, fines,
penalties, charges and expenses (including reasonable attorneys fees)
arising out of or related to payphone charges that may be imposed upon
such indemnified parties as a result of: (1) any calls originated by
Customer's end users at a payphone; or (2) any payphone originated
calls routed to any of Customer's switches.
6. Customer has received good and valid consideration for its execution
and delivery of this undertaking. This undertaking will be effective
as of the date BTI Services are provided to Customer.
IN WITNESS WHEREOF, the undersigned, as a duly authorized officer of the
Customer, does hereby execute and deliver this undertaking on behalf of the
Customer.
Knology, Inc. BTI
By: By:
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R. Xxxxxxx Xxxxxxx
Date: Date:
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