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EXHIBIT 10.33
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252
OF THE TELECOMMUNICATIONS ACT OF 1996
BY AND AMONG
ILLINOIS BELL TELEPHONE COMPANY,
INDIANA BELL TELEPHONE COMPANY INCORPORATED,
MICHIGAN BELL TELEPHONE COMPANY,
NEVADA BELL TELEPHONE COMPANY,
THE OHIO BELL TELEPHONE COMPANY,
PACIFIC BELL TELEPHONE COMPANY,
THE SOUTHERN NEW ENGLAND TELEPHONE COMPANY,
SOUTHWESTERN BELL TELEPHONE COMPANY,
WISCONSIN BELL, INC. D/B/A AMERITECH
WISCONSIN
AND
BIRCH TELECOM OF OKLAHOMA, INC.
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TABLE OF CONTENTS
1. DEFINITIONS............................................................................................6
2. INTERPRETATION, CONSTRUCTION AND SEVERABILITY.........................................................27
3. NOTICE OF CHANGES -- SECTION 251(C)(5)................................................................32
4. GENERAL RESPONSIBILITIES OF THE PARTIES...............................................................32
5. EFFECTIVE DATE, TERM, AND TERMINATION.................................................................35
6. FRAUD.................................................................................................38
7. DEPOSITS (SBC-12STATE)................................................................................39
8. BILLING AND PAYMENT OF CHARGES........................................................................42
9. NONPAYMENT AND PROCEDURES FOR DISCONNECTION...........................................................48
10. DISPUTE RESOLUTION....................................................................................53
11. AUDITS -APPLICABLE IN SBC-12STATEONLY.................................................................57
12. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES..........................................................60
13. LIMITATION OF LIABILITY...............................................................................60
14. INDEMNITY.............................................................................................62
15. REMEDIES..............................................................................................67
16. INTELLECTUAL PROPERTY.................................................................................67
17. NOTICES...............................................................................................68
18. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS......................................................71
19. NO LICENSE............................................................................................71
20. CONFIDENTIALITY.......................................................................................71
21. INTERVENING LAW.......................................................................................77
22. GOVERNING LAW.........................................................................................77
23. REGULATORY APPROVAL...................................................................................78
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24. CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION.........................................78
25. COMPLIANCE AND CERTIFICATION..........................................................................79
26. LAW ENFORCEMENT.......................................................................................79
27. RELATIONSHIP OF THE PARTIES/INDEPENDENT CONTRACTOR....................................................81
28. NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY....................................................81
29. ASSIGNMENT............................................................................................81
30. DELEGATION TO AFFILIATE...............................................................................82
31. SUBCONTRACTING........................................................................................83
32. HAZARDOUS SUBSTANCES AND RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION...............................83
33. FORCE MAJEURE.........................................................................................84
34. TAXES.................................................................................................85
35. NON-WAIVER............................................................................................88
36. NETWORK MAINTENANCE AND MANAGEMENT....................................................................89
37. SIGNALING.............................................................................................90
38. TRANSMISSION OF TRAFFIC TO THIRD PARTIES..............................................................90
39. CUSTOMER INQUIRIES....................................................................................90
40. EXPENSES..............................................................................................91
41. CONFLICT OF INTEREST..................................................................................91
42. SURVIVAL..............................................................................................91
43. SCOPE OF AGREEMENT....................................................................................92
44. AMENDMENTS AND MODIFICATIONS..........................................................................92
45. APPENDICES INCORPORATED BY REFERENCE..................................................................92
46. AUTHORITY.............................................................................................96
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47. COUNTERPARTS..........................................................................................96
48. ENTIRE AGREEMENT......................................................................................97
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INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement under Sections 251 and 252 of the
Telecommunications Act of 1996 (THE AGREEMENT), is dated as of
January 27, 2000 by and among SBC Communications Inc. covering
ILLINOIS BELL TELEPHONE, INDIANA BELL TELEPHONE COMPANY INCORPORATED,
MICHIGAN BELL TELEPHONE COMPANY, NEVADA BELL TELEPHONE COMPANY (A
NEVADA CORPORATION), THE OHIO BELL TELEPHONE COMPANY, PACIFIC BELL
TELEPHONE COMPANY (A CALIFORNIA CORPORATION), THE SOUTHERN NEW ENGLAND
TELEPHONE COMPANY (A CONNECTICUT CORPORATION) AND SOUTHWESTERN BELL
TELEPHONE COMPANY (A MISSOURI CORPORATION), WISCONSIN BELL, INC. D/B/A
AMERITECH WISCONSIN, and, Birch Telecom of Oklahoma, Inc. (CLEC), (a
Delaware corporation), shall apply to the state(s) of Oklahoma.
WHEREAS, CLEC represents that it is, or intends to become, a provider
of Telephone Exchange Service to residential and business End Users
offered exclusively over its own Telephone Exchange Service facilities
or predominantly over its own Telephone Exchange Service facilities in
combination with the use of unbundled Network Elements purchased from
other entity(ies) and the resale of Telecommunications Services of
other carriers.
WHEREAS, the Parties want to Interconnect their networks at mutually
agreed upon points of interconnection to provide, directly or
indirectly, Telephone Exchange Services and Exchange Access to
residential and business End Users over their respective Telephone
Exchange Service facilities in the states which are subject to this
Agreement; and
WHEREAS, the Parties are entering into this Agreement to set forth the
respective obligations of the Parties and the terms and conditions
under which the Parties will Interconnect their networks and facilities
and provide to each other services as required by the
Telecommunications Act of 1996 as specifically set forth herein; and
WHEREAS, for purposes of this Agreement, CLEC intends to operate where
ILLINOIS BELL TELEPHONE, INDIANA BELL TELEPHONE COMPANY INCORPORATED,
MICHIGAN BELL TELEPHONE COMPANY, NEVADA BELL TELEPHONE COMPANY (A
NEVADA CORPORATION), THE OHIO BELL TELEPHONE COMPANY, PACIFIC BELL
TELEPHONE COMPANY (A CALIFORNIA CORPORATION), THE SOUTHERN NEW ENGLAND
TELEPHONE COMPANY (A CONNECTICUT CORPORATION) AND SOUTHWESTERN BELL
TELEPHONE COMPANY (A MISSOURI CORPORATION), WISCONSIN BELL, INC. D/B/A
AMERITECH WISCONSIN are the incumbent Local Exchange Carrier(s) and
CLEC, a competitive Local Exchange Carrier, has or, prior to the
provisioning of any Interconnection, access to unbundled Network
Elements, Telecommunications Services or any other functions,
facilities, products or services
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hereunder, will have been granted authority to provide certain local
Telephone Exchange Services in the foregoing ILEC Service areas by the
appropriate State Commission(s);
NOW, THEREFORE, the Parties hereby agree as follows:
This Agreement is composed of General Terms and Conditions, which are
set forth below, together with certain Appendices, Schedules, Exhibits
and Addenda which immediately follow this Agreement, all of which are
hereby incorporated in this Agreement by this reference and constitute
a part of this Agreement.
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
[1] Capitalized Terms used in this Agreement shall have the respective
meanings specified below in, Section 1.x of each Appendix attached
hereto, and/or as defined elsewhere in this Agreement.
1.1 GENERAL DEFINITIONS
1.1.1 "A-LINK" means a diverse pair of facilities
connecting local end office switching centers with
Signaling Transfer Points.
1.1.2 "ACT" means the Communications Act of 1934 [47 U.S.C.
153(R)], as amended by the Telecommunications Act of
1996, Public Law 104-104, 110 Stat. 56 (1996)
codified throughout 47 U.S.C.
1.1.3 "ACCESS COMPENSATION" is the compensation paid by one
Party to the other Party for the
origination/termination of intraLATA toll calls
to/from its End User. Access compensation is in
accordance with the LEC's tariffed access rates.
1.1.4 "ACCESS SERVICE REQUEST" (ASR) is an industry
standard form used by the Parties to add, establish,
change or disconnect trunks for the purposes of
Interconnection.
1.1.5 "ADVANCED SERVICES" means intrastate or interstate
wireline Telecommunications Services, such as ADSL,
IDSL, xDSL, Frame Relay, Cell Relay and VPOP-Dial
Access Service (an SBC Frame Relay-based service)
that rely on packetized technology and have the
capability of supporting transmissions speeds of at
least 56 kilobits per second in both directions. This
definition of Advanced Services does not include:
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1.1.5.1 Data services that are not primarily based on
packetized technology, such as ISDN,
1.1.5.2 x.25-based and x.75-based packet technologies, or
1.1.5.3 Circuit switched services (such as circuit switched
voice grade service) regardless of the technology,
protocols or speeds used for the transmission of such
services.
1.1.6 "AFFILIATE" is As Defined in the Act.
1.1.7 "ALTERNATE BILLING SERVICE (ABS)" means a service that allows
End Users to bill calls to accounts that may not be associated
with the originating line. There are three types of ABS calls:
calling card, collect and third number billed calls.
1.1.8 AM-IL - As used herein, AM-IL means the applicable SBC owned
ILEC doing business in Illinois.
1.1.9 AM-IN - As used herein, AM-IN means the applicable SBC owned
ILEC doing business in Indiana.
1.1.10 AM-MI - As used herein, AM-MI means the applicable SBC owned
doing business in Michigan.
1.1.11 AM-OH - As used herein, AM-OH means the applicable SBC owned
ILEC doing business in Ohio.
1.1.12 AM-WI - As used herein, AM-WI means the applicable SBC owned
ILEC doing business in Wisconsin.
1.1.13 "APPLICABLE LAW" means all laws, statutes, common law,
regulations, ordinances, codes, rules, guidelines, orders,
permits, tariffs and approvals, including those relating to
the environment or health and safety, of any Governmental
Authority that apply to the Parties or the subject matter of
this Agreement.
1.1.14 "AS DEFINED IN THE ACT" means as specifically defined by the
Act.
1.1.15 "AS DESCRIBED IN THE ACT" means as described in or required by
the Act.
1.1.16 "AUTOMATED MESSAGE ACCOUNTING" (AMA) is a structure inherent
in switch technology that initially records Telecommunication
message
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information. AMA format is contained in the Automated Message
Accounting document published by Telcordia (formerly known as
Bellcore) as GR-1100-CORE, which defines and amends the
industry standard for message recording.
1.1.17 "BILLED NUMBER SCREENING (BNS)" means a validation of toll
billing exception (TBE) data and performance of public
telephone checks; i.e., determining if a billed line is a
public (including those classified as semi-public) telephone
number.
1.1.18 "BONA FIDE REQUEST" (BFR) is the process described in the
applicable Appendix UNE.
1.1.19 "BUSINESS DAY" means Monday through Friday, excluding holidays
on which the applicable SBC ILEC does not provision new retail
services and products.
1.1.20 "BUSY LINE VERIFICATION" (BLV) means a service whereby an End
User requests an operator to confirm the busy status of a
line.
1.1.21 "CABS" means the Carrier Access Billing System.
1.1.22 "CALLING CARD SERVICE" means a service that enables a calling
End User to bill a telephone call to a calling card number
with or without the help of an operator.
1.1.23 "CALLING NAME DATABASE" means a Party's database containing
current Calling Name Information, including the Calling Name
Information of any telecommunications company participating in
that Party's Calling Name Database. A Calling Name Database
may be part of, or separate from, a LIDB.
1.1.24 "CALLING NAME DELIVERY SERVICE (CNDS)" means a service that
enables a terminating End User to identify the calling party
by a displayed name before a call is answered. The calling
party's name is retrieved from a Calling Name Database and
delivered to the End User's premise between the first and
second ring for display on compatible End User premises
equipment.
1.1.25 "CALLING NAME INFORMATION" means a Telecommunications
Carrier's records of its End Users names associated with one
or more assigned ten-digit telephone numbers.
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1.1.26 "CALLING NUMBER DELIVERY" means a feature that enables an End
User to view the directory number of the calling party on a
display unit.
1.1.27 "CALLING PARTY NUMBER" (CPN) means a Signaling System 7 "SS7"
parameter whereby the ten (10) digit number of the calling
Party is forwarded from the End Office.
1.1.28 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS) means the
transport system that LECs use to exchange outcollect and
Carrier Access Billing System "CABS" access messages among
each other and other Parties connected to CMDS.
1.1.29 "CENTRAL OFFICE SWITCH" (CENTRAL OFFICE) is a switching entity
within the public switched telecommunications network,
including but not limited to:
1.1.29.1 "END OFFICE SWITCH" OR "END OFFICE" is a switching
machine that directly terminates traffic to and
receives traffic from purchasers of local exchange
services. An End Office Switch does not include a
PBX.
1.1.29.2 "TANDEM OFFICE SWITCH"OR "TANDEM(S)" are used to
connect and switch trunk circuits between and among
other Central Office Switches. A Tandem Switch does
not include a PBX.
1.1.30 "CNAM QUERY" means a LIDB Service Application that allows CLEC
to query a Calling Name Database for Calling Name Information
in order to deliver that information to CLEC's local CNDS
subscribers.
1.1.31 "CNAM QUERY RATE" means a rate that applies to each CNAM Query
received at the SCP where the Calling Name Database resides.
1.1.32 "COLLOCATION" is As Described in the Act. Terms related to
collocation are defined in the applicable Appendix Collocation
or applicable collocation tariff, as appropriate.
1.1.33 "COMMERCIAL MOBILE RADIO SERVICES" (CMRS) means Commercial
Mobile Radio Service, As Defined in the Act and FCC rules.
1.1.34 "COMMISSION" means the applicable State agency with regulatory
authority over Telecommunications. Unless the context
otherwise requires,
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use of the term "COMMISSIONS" means all of the thirteen
agencies listed in this Section. The following is a list of
the appropriate State agencies:
1.1.34.1 THE ARKANSAS PUBLIC SERVICE COMMISSION (AR-PSC);
1.1.34.2 THE PUBLIC UTILITIES COMMISSION OF THE STATE OF
CALIFORNIA (CA-PUC);
1.1.34.3 THE CONNECTICUT DEPARTMENT OF PUBLIC UTILITY CONTROL
(CT-DPUC);
1.1.34.4 THE ILLINOIS COMMERCE COMMISSION (IL-CC);
1.1.34.5 THE INDIANA UTILITIES REGULATORY COMMISSION (IN-URC);
1.1.34.6 THE KANSAS CORPORATION COMMISSION (KS-CC);
1.1.34.7 THE MICHIGAN PUBLIC SERVICE COMMISSION (MI-PSC);
1.1.34.8 THE MISSOURI PUBLIC SERVICE COMMISSION (MO-PSC);
1.1.34.9 THE PUBLIC UTILITIES COMMISSION OF NEVADA (NV-PUC);
1.1.34.10 THE PUBLIC UTILITIES COMMISSION OF OHIO (PUC-OH);
1.1.34.11 THE OKLAHOMA CORPORATION COMMISSION (OK-CC);
1.1.34.12 THE PUBLIC UTILITY COMMISSION OF TEXAS (PUC-TX); AND
1.1.34.13 THE PUBLIC SERVICE COMMISSION OF WISCONSIN (PSC-WI)
1.1.35 "COMMON CHANNEL SIGNALING" (CCS) means an out-of-band,
packet-switched, signaling network used to transport
supervision signals, control signals, and data messages. It is
a special network, fully separate from the transmission path
of the public switched network. Unless otherwise agreed by the
Parties, the CCS protocol used by the Parties shall be SS7.
1.1.36 "COMMON LANGUAGE LOCATION IDENTIFIER" (CLLI) codes provide a
unique 11-character representation of a network
interconnection point. The first 8 characters identify the
city, state and building location, while the last 3 characters
identify the network component.
1.1.37 "CONSEQUENTIAL DAMAGES" means Losses claimed to have resulted
from any indirect, incidental, reliance, special,
consequential, punitive, exemplary, multiple or any other
Loss, including damages claimed to have resulted from harm to
business, loss of anticipated revenues, savings, or profits,
or other economic Loss claimed to have been suffered not
measured by the prevailing Party's actual damages, and
regardless of whether the Parties knew or had been advised of
the possibility that such damages could result in connection
with or arising from anything said, omitted, or done hereunder
or related hereto, including willful acts or omissions.
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1.1.38 "CUSTOMER USAGE DATA" means the Telecommunications Services
usage data of a CLEC End User measured in minutes, sub-minute
increments, message units, or otherwise, that is recorded by
SBC-13STATE and forwarded to CLEC.
1.1.39 "CUSTOM LOCAL AREA SIGNALING SERVICE FEATURES" (CLASS
FEATURES) means certain Common Channel Signaling based
features available to End Users, including: Automatic Call
Back; Call Trace; Distinctive Ringing/Call Waiting; Selective
Call Forward; and Selective Call Rejection.
1.1.40 "END USERS" means a third-party residence or business that
subscribes to Telecommunications Services provided by any of
the Parties at retail. As used herein, the term "End Users"
does not include any of the Parties to this Agreement with
respect to any item or service obtained under this Agreement.
1.1.41 "CUSTOMER NAME AND ADDRESS INFORMATION" (CNA) means the name,
service address and telephone numbers of a Party's End Users
for a particular Exchange Area. CNA includes nonpublished
listings, coin telephone information and published listings.
1.1.42 "DELAYING EVENT" means (a) any failure of a Party to perform
any of its obligations set forth in this Agreement, caused in
whole or in part by:
1.1.42.1 the failure of the other Party to perform any of its
obligations set forth in this Agreement, including
but not limited to a Party's failure to provide the
other Party with accurate and complete Service
Orders;
1.1.42.2 any delay, act or failure to act by the other Party
or its End User, agent or subcontractor; or
1.1.42.3 any Force Majeure Event.
1.1.43 "DIALING PARITY" is As Defined in the Act. As used in this
Agreement, Dialing Parity refers to both Local Dialing Parity
and Toll Dialing Parity.
1.1.44 "DIGITAL SIGNAL LEVEL" is one of several transmission rates in
the time-division multiplex hierarchy.
1.1.44.1 "DIGITAL SIGNAL LEVEL 0" (DS-0) is the 64 Kbps
zero-level signal in the time-division multiplex
hierarchy.
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1.1.44.2 "DIGITAL SIGNAL LEVEL 1" (DS-1) is the 1.544 Mbps
first-level signal in the time-division multiplex
hierarchy.
1.1.44.3 "DIGITAL SIGNAL LEVEL 3" (DS-3) is the 44.736 Mbps
third-level signal in the time-division multiplex
hierarchy.
1.1.45 "DIGITAL SUBSCRIBER LINE" (DSL) is as defined in the
applicable Appendix DSL and/or the applicable tariff, as
appropriate.
1.1.46 "ELECTRONIC FILE TRANSFER" is any system or process that
utilizes an electronic format and protocol to send or receive
data files.
1.1.47 "ENHANCED SERVICE PROVIDER" (ESP) is a provider of enhanced
services as those services are defined in 47 CFR Section
64.702.
1.1.48 "EXCHANGE ACCESS" is As Defined in the Act.
1.1.49 "EXCHANGE AREA" means an area, defined by the Commission, for
which a distinct local rate schedule is in effect.
1.1.50 "EXCHANGE MESSAGE INTERFACE" (EMI) (formerly Exchange Message
Record - EMR) is the standard used for exchange of
Telecommunications message information among
Telecommunications Carriers for billable, non-billable,
sample, settlement and study data. EMI format is contained in
Telcordia Practice BR-010-200-010, CRIS Exchange Message
Record.
1.1.51 "EXCHANGE SERVICE" means Telephone Exchange Service, As
Defined in the Act.
1.1.52 "FEATURE GROUP A" (FGA) means calls either originated by, or
delivered to, an End User who has purchased switched access
FGA service from the interstate or intrastate tariffs of
either Party. FGA also includes, but is not limited to,
FGA-like services provided by either Party, where calls are
originated from and/or delivered to numbers which are assigned
to a Rate Center within one LATA but where the Party receiving
the call is physically located in a LATA different than the
LATA of the Party originating the call. The intercarrier
compensation mechanism as well as additional definitions for
FGA are specified in the appropriate Appendix FGA.
1.1.53 "FEATURE GROUP D" (FG-D) is access available to all customers,
providing trunk side access to a Party's End Office Switches
with an
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associated uniform 101XXXX access code for customer's use in
originating and terminating communications.
1.1.54 "FCC" means the Federal Communications Commission.
1.1.55 "FOREIGN EXCHANGE" (FX) means a service whereby calls either
originated by or delivered to a customer who has purchased FX
service from the state or interstate tariffs of either Party.
FX also includes, but is not limited to, FX-like services
provided by either Party where calls are originated from
and/or delivered to numbers which are assigned to a Rate
Center within one local calling area but where the Party
receiving the call is physically located outside of that local
calling area. FX service can be either interLATA or intraLATA.
InterLATA FX, where the originating and receiving parties are
physically located in different LATAs, is considered
equivalent to FGA and the intercarrier compensation mechanism
is the same as FGA. IntraLATA FX, when provided by two or more
local exchange carriers "LECs", is considered a jointly
provided service and meet-point billed by those providing it
utilizing a mutually agreed to meet-point billing, or
meet-point billing like procedure.
1.1.56 "GOVERNMENTAL AUTHORITY" means any federal, state, local,
foreign, or international court, government, department,
commission, board, bureau, agency, official, or other
regulatory, administrative, legislative, or judicial authority
with jurisdiction over the subject matter at issue.
1.1.57 "GROUP RECORD" means information in LIDB and/or the LIDB
administrative system that is common to all telephone numbers
in an NPA-NXX or all Special Billing Numbers in an NPA-0/1XX.
1.1.58 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC) is As Defined in the
Act.
1.1.59 "INTELLECTUAL PROPERTY" means copyrights, patents, trademarks,
trade secrets, mask works and all other intellectual property
rights.
1.1.60 "INTEGRATED SERVICES DIGITAL NETWORK" (ISDN) means a switched
network service that provides end-to-end digital connectivity
for the simultaneous transmission of voice and data. Basic
Rate Interface-ISDN (BRI-ISDN) provides for a digital
transmission of two 64 Kbps bearer channels and one 16 Kbps
data channel (2B+D).
1.1.61 "INTERCONNECTION" is As Defined in the Act.
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1.1.62 "INTEREXCHANGE CARRIER" (IXC) means a carrier that provides,
directly or indirectly, interLATA or intraLATA Telephone Toll
Services.
1.1.63 "INTERLATA" is As Defined in the Act.
1.1.64 "INTERMEDIATE DISTRIBUTION FRAME" (IDF) is a second frame that
augments an existing Main Distribution Frame. Lines or outside
cables do not terminate on the IDF.
1.1.65 "INTERNET SERVICE PROVIDER" (ISP) is an Enhanced Service
Provider that provides Internet Services, and is defined in
paragraph 341 of the FCC's First Report and Order in CC Docket
No. 97-158.
1.1.66 "INTRALATA TOLL TRAFFIC" means the IntraLATA traffic between
two locations within one LATA where one of the locations lies
outside of the normal local calling area as defined by the
applicable Commission.
1.1.67 "LIDB EDITOR" means an SCP tool that bypasses the LIDB
administrative system and provides emergency access to LIDB
for data administration.
1.1.68 "LINE INFORMATION DATA BASE" (LIDB) means a
transaction-oriented database system that functions as a
centralized repository for data storage and retrieval. LIDB is
accessible through CCS networks. LIDB contains records
associated with End User line numbers and special billing
numbers. LIDB accepts queries from other network elements and
provides return result, return error, and return reject
responses as appropriate. Examples of information that Data
Owners might store in LIDB and in their Line Records are: ABS
Validation Data, Originating Line Number Screening (OLNS)
data, ZIP Code data, and Calling Name Information.
1.1.69 "LIDB SERVICE APPLICATIONS" means the query types accepted for
access to LIDB information.
1.1.70 "LINE RECORD" means information in LIDB and/or the LIDB
administrative system that is specific to a single telephone
number or Special Billing Number.
1.1.71 "LOCAL ACCESS TRANSPORT AREA" (LATA) is As Defined in the Act.
1.1.72 "LOCAL EXCHANGE CARRIER" (LEC) is As Defined in the Act.
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1.1.73 "LOCAL EXCHANGE ROUTING GUIDE" (LERG) is a Telcordia Reference
document used by Telecommunications Carriers to identify
NPA-NXX routing and homing information as well as Network
element and equipment designations.
1.1.74 "LOCAL CALLS", for purposes of intercarrier compensation, is
traffic where all calls are within the same common local and
common mandatory local calling area, i.e., within the same or
different SBC Exchange(s) that participate in the same common
local mandatory local calling area approved by the applicable
state Commission. Local Calls must actually originate and
actually terminate to parties physically located within the
same common local or common mandatory local calling area.
1.1.75 "LOCAL NUMBER PORTABILITY" means the ability of users of
Telecommunications Services to retain, at the same location,
the presence of a previously existing telephone number(s).
1.1.76 "LOCATION ROUTING NUMBER" (LRN) is a ten (10) digit number
that is assigned to the network switching elements (Central
Office - Host and Remotes as required) for the routing of
calls in the network. The first six (6) digits of the LRN will
be one of the assigned NPA NXX of the switching element. The
purpose and functionality of the last four (4) digits of the
LRN have not yet been defined but are passed across the
network to the terminating switch.
1.1.77 "LOCAL SERVICE PROVIDER" (LSP) is the LEC that provides retail
local Exchange Service to an End User. The LSP may or may not
provide any physical network components to support the
provision of that End User's service.
1.1.78 "LOSS" or "LOSSES" means any and all losses, costs (including
court costs), claims, damages (including fines, penalties, and
criminal or civil judgments and settlements), injuries,
liabilities and expenses (including attorneys' fees).
1.1.79 "MECAB" refers to the Multiple Exchange Carrier Access Billing
document prepared by the Billing Committee of the Ordering and
Billing Forum "OBF", which functions under the auspices of the
Carrier Liaison Committee "CLC of the Alliance for
Telecommunications Industry Solutions "ATIS". The MECAB
document, published by ATIS as ATIS/OBF- MECAB- Issue 6,
February 1998, contains the recommended guidelines for the
billing of access services provided to an IXC by two or more
LECs, or by one LEC in two or more states within a single
LATA.
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1.1.80 "MECOD" refers to the Multiple Exchange Carriers Ordering and
Design Guidelines for Access Services - Industry Support
Interface, a document developed by the Ordering/Provisioning
Committee of the OBF, which functions under the auspices of
the CLC of ATIS. The MECOD document, published by ATIS as
ATIS/OBF- MECAB- Issue 3, February 1993, establishes methods
for processing orders for access service which is to be
provided to an IXC by two or more telecommunications
providers.
1.1.81 "MEET-POINT BILLING" (MPB) refers to the billing associated
with interconnection of facilities between two or more LECs
for the routing of traffic to and from an IXC with which one
of the LECs does not have a direct connection. In a multi-bill
environment, each Party bills the appropriate tariffed rate
for its portion of a jointly provided Switched Exchange Access
Service.
1.1.82 "MEET-POINT TRUNKS/TRUNK GROUPS" (MPTGS) are used for the
joint provision of Switched Access services, pursuant to
Telcordia Technical References GR-394-CORE "GR-394" and
GR-317-CORE "GR-317". MPTGs are those between a local End
Office and an Access Tandem as described in FSD 20-24-0000 and
20-24-0300.
1.1.83 "MULTIPLE BILL/SINGLE TARIFF" is the meet-point billing method
where each LEC prepares and renders its own meet point bill to
the IXC in accordance with its own tariff for that portion of
the jointly provided Switched Access Service which that LEC
provides. The MECAB documents refer to this method as Multiple
Bill/reflecting a single tariff (MM).
1.1.84 "MUTUAL COMPENSATION" is the compensation agreed upon by the
Parties for those "Local Calls" that originate on one network
and terminate on the other network.
1.1.85 "NETWORK DATA MOVER" (NDM) is an industry standard protocol
for transferring information electrically.
1.1.86 "NETWORK ELEMENT" is As Defined in the Act.
1.1.87 "NORTH AMERICAN NUMBERING PLAN" (NANP) A numbering
architecture in which every station in the NANP Area is
identified by a unique ten-digit address consisting of a
three-digit NPA code, a three digit central office code of the
form NXX, and a four-digit line number of the form XXXX.
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1.1.88 "NUMBERING PLAN AREA" (NPA) also called area code. An NPA is
the 3-digit code that occupies the A, B, C positions in the
10-digit NANP format that applies throughout the NANP Area.
NPAs are of the form NXX, where N represents the digits 2-9
and X represents any digit 0-9. In the NANP, NPAs are
classified as either geographic or non-geographic. a)
Geographic NPAs are NPAs which correspond to discrete
geographic areas within the NANP Area. b) Non-geographic NPAs
are NPAs that do not correspond to discrete geographic areas,
but which are instead assigned for services with attributes,
functionalities, or requirements that transcend specific
geographic boundaries. The common examples are NPAs in the N00
format, e.g., 800.
1.1.89 "NUMBER PORTABILITY" is As Defined in the Act.
1.1.90 "NXX" OR "CENTRAL OFFICE CODE" is the three-digit switch
entity indicator that is defined by the fourth through sixth
digits of a 10-digit telephone number within the NANP. Each
NXX Code contains 10,000 station numbers.
1.1.91 "ORDERING AND BILLING FORUM" (OBF) is a forum comprised of
local telephone companies and inter-exchange carriers whose
responsibility is to create and document Telecommunication
industry guidelines and standards.
1.1.92 "ORIGINATING POINT CODE" (OPC) means a code assigned to
identify CLEC's system(s) that originate SS7 messages,
including LIDB Service Queries.
1.1.93 "PARTY" means either CLEC or SBC use of the term "Party"
includes each of the ILECs that is a party to this Agreement.
"PARTIES" means both CLEC and SBC; use of the term "Parties"
includes each of the ILECs that is a party to this Agreement.
1.1.94 "PERMANENT NUMBER PORTABILITY" (PNP) is a long term method of
providing LNP using LRN.
1.1.95 "POINT OF INTERCONNECTION" (POI) is a physical location at
which the Parties' networks meet for the purpose of
establishing Interconnection. POIs include a number of
different technologies and technical interfaces based on the
Parties' mutual agreement.
1.1.96 "PHYSICAL COLLOCATION" is as defined in applicable Appendix
Collocation or applicable tariff, where applicable.
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1.1.97 "RATE CENTER AREA" means the following in each applicable
area:
1.1.97.1 SBC-AMERITECH
1.1.97.1.1 "Rate Center" means the specific
geographic point that has been designated by
a given LEC as being associated with a
particular NPA-NXX code that has been
assigned to the LEC for its provision of
Telephone Exchange Service. The Rate Center
is the finite geographic point identified by
a specific V&H coordinate, which is used by
that LEC to measure, for billing purposes,
distance sensitive transmission services
associated with the specific Rate Center.
1.1.97.2 NEVADA
1.1.97.2.1 "Rate Center" denotes the designated
points, representing exchanges, (or
locations outside exchange areas), between
which mileage measurements are made for the
application of interexchange mileage rates.
Rate Centers are defined in PUC-NV tariff
A6.2.7.
1.1.97.3 PACIFIC
1.1.97.3.1 "Rate Center" denotes the designated
points, representing exchanges or district
area (or locations outside exchange areas),
between which mileage measurements are made
for the application of interexchange and
interdistrict mileage rates, as defined by
the CA-PUC.A2, 2.1.1 Definition of Terms.
1.1.97.4 SNET
1.1.97.4.1 "Rate Center means the specific geographic
point and corresponding area that have been
identified by a given LEC as being
associated with a particular NPA-NXX code
that has been assigned to the LEC for its
provision of Exchange Services.
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1.1.97.5 SBC-SWBT
1.1.97.5.1 "Rate Center" means an uniquely defined
geographical location within an exchange
area (or a location outside the exchange
area) for which mileage measurements are
determined for the application of interstate
tariffs."
1.1.98 "RATING POINT" means the V&H coordinates associated
with a particular telephone number for rating
purposes.
1.1.99 "REFERENCE OF CALLS" refers to a process by which
calls are routed to an announcement that states the
new telephone number of an End User.
1.1.100 SBC COMMUNICATIONS INC. (SBC) means the holding
company which owns the following ILECs: Illinois
Bell Telephone Company, Indiana Bell Telephone
Company Incorporated, Michigan Bell Telephone
Company, Nevada Bell Telephone Company, The Ohio
Bell Telephone Company, Pacific Bell Telephone
Company, The Southern New England Telephone Company,
Southwestern Bell Telephone Company, and/or
Wisconsin Bell, Inc. d/b/a Ameritech Wisconsin.
1.1.101 SBC-AMERITECH - As used herein, SBC-AMERITECH means
the applicable SBC owned ILEC(s) doing business in
Illinois, Indiana, Michigan, Ohio, and Wisconsin.
1.1.102 SBC-7STATE - As used herein, SBC-7STATE means the
applicable SBC owned ILEC(s) doing business in
Arkansas, California, Kansas, Missouri, Nevada,
Oklahoma, and Texas.
1.1.103 SBC-8STATE - As used herein, SBC-8STATE means the
applicable SBC owned ILEC(s) doing business in
Arkansas, California, Connecticut, Kansas, Missouri,
Nevada, Oklahoma, and Texas.
1.1.104 SBC-10STATE - As used herein, SBC-10STATE means an
the applicable SBC owned ILEC(s) doing business in
Arkansas, Illinois, Indiana, Kansas, Michigan,
Missouri, Ohio, Oklahoma, Texas, and Wisconsin.
1.1.105 SBC-12STATE - As used herein, SBC-12STATE means the
applicable SBC owned ILEC(s) doing business in
Arkansas, California, Illinois, Indiana, Kansas,
Michigan, Missouri, Nevada, Ohio, Oklahoma, Texas,
and Wisconsin.
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1.1.106 SBC-13STATE - As used herein, SBC-13STATE means the
applicable SBC owned ILEC(s) doing business in
Arkansas, California, Connecticut, Illinois, Indiana,
Kansas, Michigan, Missouri, Nevada, Ohio, Oklahoma,
Texas, and Wisconsin.
1.1.107 "SERVICE CONTROL POINT" (SCP) is the node in the
common channel signaling network that accepts Queries
for certain Database services. The SCP is a real time
database system that receives Queries from service
platforms, performs subscriber or
application-specific service logic, and then sends a
Response back to the Query-originating platform. Such
service platforms can be Service Switching Points
(SSPs) or other network nodes capable of properly
formatting and launching Queries.
1.1.108 "SERVICE MANAGEMENT SYSTEM" (SMS) means an off-line
system used to access, create, modify, or update
information in a Database.
1.1.109 "SERVICE PROVIDER NUMBER PORTABILITY" (SPNP) is
synonymous with Permanent Number Portability "PNP".
1.1.110 "SERVICE SWITCHING POINT" (SSP) is a telephone
central office switch equipped with a Signaling
System 7 (SS7) interface.
1.1.111 "SIGNALING SYSTEM 7" (SS7) means a signaling protocol
used by the CCS Network.
1.1.112 "SIGNAL TRANSFER POINT" (STP) performs a packet
switching function that routes signaling messages
among Service Switching Points (SSP), Service Control
Points (SCP), Signaling Points (SP), and other STPs
in order to set up calls and to query databases for
Advanced Services.
1.1.113 "SLEUTH" means an off-line administration system that
monitors suspected occurrences of ABS-related fraud.
1.1.114 "SPECIAL BILLING NUMBER" SBN means a Line Record in
LIDB that is based on an NXX-o/1XX numbering format.
NXX-0/1XX numbering formats are similar to NPA-NXX
formats except that the fourth digit of an SBN is
either a zero (0) or a one (1).
1.1.115 "STATE ABBREVIATION" means the following:
1.1.115.1 "AR" means Arkansas
1.1.115.2 "CA" means California
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1.1.115.3 "CT" means Connecticut
1.1.115.4 "IL" means Illinois
1.1.115.5 "IN" means Indiana
1.1.115.6 "KS" means Kansas
1.1.115.7 "MI" means Michigan
1.1.115.8 "MO" means Missouri
1.1.115.9 "NV" means Nevada
1.1.115.10 "OH" means Ohio
1.1.115.11 "OK" means Oklahoma
1.1.115.12 "TX" means Texas
1.1.115.13 "WI" means Wisconsin
1.1.116 SWBT-AR - As used herein, SWBT-AR means the
applicable SBC owned ILEC doing business in Arkansas.
1.1.117 SWBT-KS - As used herein, SWBT-KS means the
applicable SBC owned ILEC doing business in Kansas.
1.1.118 SWBT-MO - As used herein, SWBT-MO means the
applicable SBC owned ILEC doing business in Missouri.
1.1.119 SWBT-OK - As used herein, SWBT-OK means the
applicable SBC owned ILEC doing business in Oklahoma.
1.1.120 SWBT-TX - As used herein, SWBT-TX means the
applicable SBC owned ILEC doing business in Texas.
1.1.121 "SWITCHED ACCESS DETAIL USAGE DATA" means a category
1101xx record as defined in the EMR Telecordia
Practice BR 010-200-010.
1.1.122 "SYNCHRONOUS OPTICAL NETWORK" (SONET) is an optical
interface standard that allows inter-networking of
transmission products from multiple vendors. The
base rate is 51.84 Mbps ("OC-1/STS-1") and higher
rates are direct multiples of the base rate, up to
13.22 Gbps.
1.1.123 "TAPE LOAD FACILITY" means data entry points at the
LIDB administrative system and/or the SCPs where LIDB
resides.
1.1.124 "TELECOMMUNICATIONS" is As Defined in the Act.
1.1.125 "TELECOMMUNICATIONS CARRIER" is As Defined in the
Act.
1.1.126 "TELECOMMUNICATIONS SERVICE" is As Defined in the
Act.
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1.1.127 "TELEPHONE EXCHANGE SERVICE" is As Defined in the
Act.
1.1.128 "TELEPHONE TOLL SERVICE" is As Defined in the Act.
1.1.129 "TOLL BILLING EXCEPTION SERVICE" (TBE) means a
service that allows End Users to restrict third
number billing or collect calls to their lines.
1.1.130 "TOLL FREE SERVICE" is service provided with any
dialing sequence that invokes toll-free, 800-like,
service processing, for example for illustration
only, 800 or 800-like services. Toll Free Service
includes but is not limited to calls placed to
800/888 NPA Service Access Codes (SAC).
1.1.131 "TRANSLATION TYPE" means a code in the Signaling
Connection Control Part (SCCP) of the SS7 signaling
message. Signal Transfer Points (STPs) use
Translation Types to identify the routing table used
to route a LIDB query. All LIDB queries that use the
same Translation Type are routed to the same LIDB
for a particular Line Record or, prior to number
portability, for a particular NPA-NXX.
1.1.132 "TRUNK" means a communication line between two
switching systems.
1.1.133 "WIRE CENTER" is the location of one or more local
switching systems. A point at which End User's loops
within a defined geographic area converge. Such local
loops may be served by one (1) or more Central Office
Switches within such premises.
1.2 DEFINITIONS APPLICABLE TO (SBC-12STATE) ONLY
1.2.1 "DATA BASE ADMINISTRATION CENTER" (DBAC) means an
SBC-12STATE location where facility and
administrative personnel are located for
administering LIDB and/or Sleuth.
1.2.2 "DESIGNATED CENTRAL OFFICE DOCUMENT" (DOCUMENT DCO)
is a document that is referenced in SBC-12STATE
Appendix NIM. The purpose of the DCO is to document
the physical architectural plan for interconnection
and specifies the CLEC Central Offices, CLEC Routing
Points, Activation Dates, the POI(s) and the
applicable SBC-12STATE Central Offices.
1.2.3 "DIGITAL CROSS CONNECT PANEL" (DSX PANEL) means a
cross-connect bay or panel used for the termination
of equipment and facilities operating at digital
rates.
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1.2.4 "FIBER MEET" means an Interconnection architecture
method whereby the Parties physically Interconnect
their networks via an optical fiber interface (as
opposed to an electrical interface) at a mutually
agreed upon location, at which one Party's
responsibility or service begins and the other
Party's responsibility ends.
1.2.5 "INTERCONNECTION ACTIVATION DATE" is the date that
the construction of the joint facility
Interconnection arrangement has been completed, trunk
groups have been established, joint trunk testing is
completed and trunks have been mutually accepted by
the Parties.
1.2.6 "MAIN DISTRIBUTION FRAME" (MDF) is termination frame
for outside facility and inter-exchange office
equipment at the central office for DS-0 and DSL
services.
1.2.7 "PLAIN OLD TELEPHONE SERVICE" (POTS) means telephone
service for the transmission of human speech.
1.2.8 "ROUTING POINT" is a location which a LEC has
designated on its own network as the homing or
routing point for traffic inbound to Exchange Service
provided by the LEC which bears a certain NPA-NXX
designation. The Routing Point is employed to
calculate mileage measurements for the
distance-sensitive transport element charges of
Switched Access services. The Routing Point need not
be the same as the Rating Point, nor must it be
located within the Rate Center area, but must be in
the same LATA as the NPA-NXX.
1.3 DEFINITIONS APPLICABLE TO SBC-8STATE ONLY
1.3.1 "ACCESSIBLE LETTERS" are correspondence used to
communicate pertinent information regarding
SBC-8STATE to the client/End User community.
1.3.2 "TRUNK-SIDE" refers to a Central Office Switch
connection that is capable of, and has been
programmed to treat the circuit as connecting to
another switching entity (for example another Central
Office switch). Trunk-Side connections offer those
transmission and signaling features appropriate for
the connection of switching entities and cannot be
used for the direct connection of ordinary telephone
station sets.
1.3.3 "PORT" is the point of interface/access connection to
the SNET public switched network. This may be a
switch line side interface or switch trunk side
interface.
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1.4 DEFINITIONS APPLICABLE TO SBC-7STATE ONLY
1.4.1 "LINE SIDE" refers to End Office switch connections
that have been programmed to treat the circuit as a
local line connected to a terminating station (e.g.,
an ordinary subscriber's telephone station set, a
PBX, answering machine, facsimile machine or
computer). Line Side connections offer only those
transmission and signal features appropriate for a
connection between an End Office and such terminating
station.
1.4.2 "MID-POINT MEET" is as defined in the appropriate
Appendix NIM. The facility hand off point may differ
from the billing point of interconnection.
1.4.3 "SERVING WIRE CENTER" (SWC) means a Wire Center that
serves the area in which the other Party's or a third
party's Wire Center, aggregation point, point of
termination, or point of presence is located
1.4.4 "CONTROL OFFICE" means the appropriate exchange
carrier center or office designated as its company's
single point of contact for the provisioning and
maintenance of its portion of interconnection
arrangements.
1.4.5 "DATA INTEREXCHANGE CARRIER" (DIXC) is a process
designed to facilitate the reciprocal exchange of
voice traffic load data between the SBC-7STATE and
CLECs interconnecting with its network. This
reciprocal exchange of data enables SBC-7STATE and
each CLEC to have a complete view of traffic loads on
both ends of two-way trunk groups. The knowledge of
call attempt and overflow data counts on both ends of
a two-way trunk group enables each company to more
accurately estimate the offered, and thereby better
estimate, the required quantities of trunks.
1.4.6 "LOCAL INTERCONNECTION TRUNKS/TRUNK GROUPS" are used
for the termination of Local Exchange Traffic,
pursuant to Telcordia Technical Reference GR-317-CORE
"GR-317.
1.4.7 "MID-SPAN MEET" is an interconnection between two
LECs whereby each provides its own cable and
equipment up to the meet point of the cable
facilities. The meet point is the demarcation
establishing ownership of and responsibility for each
LEC's portion of the transmission facility.
1.5 DEFINITIONS APPLICABLE TO SNET AND SBC-AMERITECH ONLY
1.5.1 "CENTRALIZED AMA" (CAMA) is an arrangement where the
AMA equipment is centralized in, for example, a
Tandem and is used by offices
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that do not have LAMA (Local AMA). The End Office
Switch must send ANI digits to the CAMA office for
billing a calling subscriber.
1.5.2 "INTER-WIRE CENTER TRANSPORT" means the transmission
facilities between serving wire centers.
1.6 DEFINITIONS APPLICABLE TO SBC-AMERITECH ONLY
1.6.1 "AUTOMATIC ROUTE SELECTION" or "ARS" means a service
feature associated with a specific grouping of lines
that provides for automatic selection of the least
expensive or most appropriate transmission facility
for each call based on criteria programmed into the
system.
1.6.2 "CONTROL OFFICE" means the Central Office providing
Tandem Switching Capability for E9-1-1 calls. The
Control Office controls switching of ANI information
to the PSAP and also provides the Selective Routing
feature, standard speed calling features, call
transfer capability and certain maintenance functions
for each PSAP. These definitions appear to be related
to two different scenarios and will need to remain in
tact.
1.6.3 "ENHANCED LECLINK" is an customer access service to
the national distribution of billing records via
Telcordia's Centralized Message Distribution System
(CMDS).
1.6.4 "INTEGRATED DIGITAL LOOP CARRIER" means a subscriber
loop carrier system that is twenty-four (24) local
Loop transmission paths combined into a 1.544 Mbps
digital signal which integrates within the switch at
a DS1 level.
1.6.5 "LINE SIDE" refers to the switch port toward the
CLEC's side of the equipment.
1.6.6 "LOCAL LOOP TRANSMISSION", "UNBUNDLED LOCAL LOOP",
"LOOP" means the transmission path which extends from
the Network Interface Device or demarcation point at
an End User's premise to the Main Distribution Frame
or other designated frame or panel in the
SBC-AMERITECH Serving Wire Center.
1.6.7 "SWITCHED EXCHANGE ACCESS SERVICE" means the offering
of transmission or switching cervices to
Telecommunications Carriers for the purpose of the
origination or termination of telephone toll service.
Switched Exchange Access Services include: Feature
Group A, Feature Group B,
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Feature Group D, 800/888 access, and 900 access and
their successors or similar Switched Exchange Access
Services.
1.7 DEFINITIONS APPLICABLE TO SNET ONLY
1.7.1 "800 SERIES" is a Telecommunications Service for
business or residence that allows calls to be made to
a specific location at no charge to the calling
party. Use of the "800" Service Access Code (e.g.,
800, 888) denotes calls that are to be billed to the
receiving party. A computer database in the
provider's network translates the 800 series number
into a conventional 7 or 10 digit phone number for
network switching and routing.
1.7.2 "CHARGE NUMBER" is a CCS signaling parameter that
refers to the number transmitted through the network
identifying the billing number of the calling party.
1.7.3 "CONNNET" is a CT packet switching network used for
data communication to and from hosts and databases.
1.7.4 "DATABASE ADMINISTRATIVE SERVICE LIDB OPERATING
GUIDELINES" (Operating Guidelines) means the document
developed by SNET that provides detailed instructions
as to the working parameters of SNET's provision of
the LIDB Administrative System to CLEC, as may be
updated by SNET from time to time. SNET shall provide
such Operating Guidelines to CLEC upon execution of
this Agreement.
1.7.5 "INITIAL BILLING COMPANY" (IBC) refers to the LEC
that provides Feature Group B or D services at an End
Office.
1.7.6 "LIDB/AS" means the LIDB administrative system for
SNET.
1.7.7 "LOOP" is a transmission path between the Minimum
Point of Presence/Entry (MPOP/E) at any End User
location and the Main Distribution Frame (MDF) or
Digital Crossconnect Bay (DSX-1) of the SNET
designated serving wire centers.
1.7.8 "SUBSEQUENT BILLING COMPANY" refers to SNET when it
provides a segment of transport or switching services
in connection with Feature Group B or D switched
access service. (For purposes of this Agreement, the
Tandem operator is the Subsequent Billing Company.)
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1.7.9 "SWITCHED ACCESS SERVICE" means an offering of
facilities for the purpose of the origination or
termination of traffic from or to Exchange Service
customer in a given area pursuant to a Switched
Access tariff. Switched Access Services include:
Feature Group A, Feature Group B, Feature Group D,
800 Series, and 900 access. Switched Access does not
include traffic exchanged between LECs for purpose of
local exchange interconnection.
1.7.10 "UNIVERSAL DIGITAL LOOP CARRIER" (UDLC) describes a
DLC system that has a Central Office terminal channel
bank that is connected to the CO switches on the
analog side.
1.8 DEFINITIONS APPLICABLE TO SBC-SWBT ONLY
1.8.1 "JURISDICTIONAL IDENTIFICATION PARAMETER" (JIP) is an
existing six (6) digit (NPA-NXX) field in the SS7
message. This field designates the first point of
switching. (JIP is applicable to SBC-SWBT only)
1.8.2 "LINE VALIDATION ADMINISTRATION SYSTEM" (LVAS) means
the LIDB administrative system for SBC-SWBT.
1.8.3 "ORIGINATING LINE INFORMATION" (OLI) is an SS7
Feature Group D signaling parameter which refers to
the number transmitted through the network
identifying the billing number of the calling Party.
(OLI is applicable to SBC-SWBT only.)
2. INTERPRETATION, CONSTRUCTION AND SEVERABILITY
2.1 DEFINITIONS
2.1.1 For purposes of this Agreement, certain terms have
been defined in this Agreement to encompass meanings
that may differ from, or be in addition to, the
normal connotation of the defined word. Unless the
context clearly indicates otherwise, any term defined
or used in the singular will include the plural.
Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the
phrase "without limitation" and/or "but not limited
to". The words "will" and "shall" are used
interchangeably throughout this Agreement and the use
of either connotes a mandatory requirement. The use
of one or the other will not mean a different degree
of right or obligation for either Party. A defined
word intended to convey its special meaning is
capitalized when used. Other terms that are
capitalized and not defined in
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this Agreement will have the meaning in the Act, or
in the absence of their inclusion in the Act, their
customary usage in the Telecommunications industry as
of the Effective Date.
2.2 HEADINGS NOT CONTROLLING
2.2.1 The headings and numbering of Sections, Parts,
Appendices Schedules and Exhibits to this Agreement
are for convenience only and shall not be construed
to define or limit any of the terms herein or affect
the meaning or interpretation of this Agreement.
2.2.2 This Agreement incorporates a number of Appendices
which, together with their associated Attachments,
Exhibits, Schedules and Addenda, constitute the
entire Agreement between the Parties. In order to
facilitate use and comprehension of the Agreement,
the Appendices have been grouped under broad
headings. It is understood that these groupings are
for convenience of reference only, and are not
intended to limit the applicability that any
particular appendix, attachment, exhibit, schedule or
addenda may otherwise have.
2.3 REFERENCED DOCUMENTS
2.3.1 Unless the context shall otherwise specifically
require, and subject to SECTION 21, whenever any
provision of this Agreement refers to a technical
reference, technical publication, CLEC Practice,
SBC-13STATE Practice, any publication of
telecommunications industry administrative or
technical standards, or any other document
specifically incorporated into this Agreement
(collectively, a "REFERENCED INSTRUMENT"), it will be
deemed to be a reference to the then-current version
or edition (including any amendments, supplements,
addenda, or successors) of each Referenced Instrument
that is in effect, and will include the then-current
version or edition (including any amendments,
supplements, addenda, or successors) of any other
Referenced Instrument incorporated by reference
therein.
2.4 REFERENCES
2.4.1 References herein to Sections, Paragraphs, Exhibits,
Parts, Schedules, and Appendices shall be deemed to
be references to Sections, Paragraphs and Parts of,
and Exhibits, Schedules and Appendices to, this
Agreement unless the context shall otherwise require.
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2.5 TARIFF REFERENCES
2.5.1 Wherever any Commission ordered tariff provision or
rate is cited or quoted herein, it is understood that
said cite encompasses any revisions or modifications
to said tariff.
2.5.2 Wherever any Commission ordered tariff provision or
rate is incorporated, cited or quoted herein, it is
understood that said incorporation or reference
applies only to the entity within the state whose
Commission ordered that tariff.
2.6 CONFLICT IN PROVISIONS
2.6.1 In the event of a conflict between the provisions of
this Agreement and the Act, the provisions of the Act
shall govern.
2.6.2 If any definitions, terms or conditions in any given
Appendix, Attachment, Exhibit, Schedule or Addenda
differ from those contained in the main body of this
Agreement, those definitions, terms or conditions
will supersede those contained in the main body of
this Agreement, but only in regard to the services or
activities listed in that particular Appendix,
Attachment, Exhibit, Schedule or Addenda. In
particular, if an Appendix contains a Term length
that differs from the Term length in the main body of
this Agreement, the Term length of that Appendix will
control the length of time that services or
activities are to occur under that Appendix, but will
not affect the Term length of the remainder of this
Agreement.
2.6.3 In SNET only, in the event of a conflict between any
provision in this Agreement and any provision in the
DPUC-ordered tariffs covering the services that are
the subject of this Agreement with SNET, such
DPUC-ordered tariffs will prevail.
2.7 JOINT WORK PRODUCT
2.7.1 This Agreement is the joint work product of the
Parties and has been negotiated by the Parties and
their respective counsel and shall be fairly
interpreted in accordance with its terms and, in the
event of any ambiguities, no inferences shall be
drawn against either Party.
2.8 SEVERABILITY
2.8.1 If any provision of this Agreement is rejected or
held to be illegal, invalid or unenforceable, each
Party agrees that such provision shall be enforced
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to the maximum extent permissible so as to effect the
intent of the Parties, and the validity, legality and
enforceability of the remaining provisions of this
Agreement shall not in any way be affected or
impaired thereby. If necessary to effect the intent
of the Parties, the Parties shall negotiate in good
faith to amend this Agreement to replace the
unenforceable language with enforceable language that
reflects such intent as closely as possible. The
Parties negotiated the terms and conditions of this
Agreement for Interconnection, services and Network
Elements as a total arrangement and it is intended to
be nonseverable.
2.9 INCORPORATION BY REFERENCE
2.9.1 The General Terms and Conditions of this Agreement,
and every Interconnection, Resale Service Network
Element, function, facility, product or service
provided hereunder, shall be subject to all rates,
terms and conditions contained in the Appendices to
this Agreement which are legitimately related to such
Interconnection, Resale Service, Network Element,
function, facility, product or service; and all such
rates, terms and conditions are incorporated by
reference herein and deemed a part of every
Interconnection, Resale Service, Network Element,
function, facility, product or service provided
hereunder. Without limiting the general applicability
of the foregoing, the following terms and conditions
of the General Terms and Conditions are specifically
agreed by the Parties to be legitimately related to,
and to be applicable to, each Interconnection, Resale
Service, Network Element, function, facility, product
or service provided hereunder: definitions;
interpretation, construction and severability; notice
of changes; general responsibilities of the Parties;
effective date, term and termination; fraud;
deposits; billing and payment of charges; non-payment
and procedures for disconnection; dispute resolution;
audits; disclaimer of representations and warranties;
limitation of liability; indemnity; remedies;
intellectual property; publicity and use of
trademarks and service marks; no license;
confidentiality; intervening law; governing law;
regulatory approval; changes in End User local
exchange service provider selection; compliance and
certification; law enforcement; relationship of the
Parties/independent contractor; no third Party
beneficiaries, disclaimer of agency; assignment;
subcontracting; hazardous substances and
responsibility for environmental contamination; force
majeure; taxes; non-waiver; network maintenance and
management; customer inquiries; expenses; conflict of
interest; survival; scope of agreement; amendments
and modifications; and entire agreement.
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2.10 NON-VOLUNTARY PROVISIONS
2.10.1 This Agreement incorporates certain rates, terms and
conditions that were not voluntarily negotiated by
SBC-13STATE, but instead resulted from determinations
made in arbitrations under Section 252 of the Act or
from other requirements of regulatory agencies or
state law (individually and collectively, a
"Non-Voluntary Arrangement"). SBC-13STATE has
identified some, but not all, of the Non-Voluntary
Arrangements contained in this Agreement, by
designating such provisions with asterisks. If any
Non-Voluntary Arrangement is modified as a result of
any order or finding by the FCC, the appropriate
Commission or a court of competent jurisdiction, any
Party may, by providing written notice to the other
Party, require that any affected Non-Voluntary
Arrangement (and any related rates, terms and
conditions) be deleted or renegotiated, as
applicable, in good faith and this Agreement amended
accordingly. If such modifications to this Agreement
are not executed within sixty (60) days after the
date of such notice, a Party may pursue its rights
under Section 10.
2.10.2 The Parties acknowledge that the Non-Voluntary
Arrangements contained in this Agreement shall not be
available in any state other than the state that
originally imposed/required such Non-Voluntary
Arrangement. By way of example only, the Parties
acknowledge that the PUCO's imposition in Ohio of the
Minimum Telephone Service Standards (and all terms
and conditions relating thereto) shall not apply in
or be "portable to" any state other than Ohio.
2.11 STATE-SPECIFIC RATES, TERMS AND CONDITIONS
2.11.1 For ease of administration, this multistate Agreement
contains certain specified rates, terms and
conditions which apply only in a designated state. To
the extent that this Agreement contains specified
rates, terms and conditions which apply only in a
given state, such rates, terms and conditions shall
not apply and shall have no effect in any other
state(s) to which this Agreement is submitted for
approval under Section 252(e) of the Act.
2.11.2 SUCCESSOR RATES. Certain of the rates, prices and
charges set forth in the applicable Appendix Pricing
have been established by the appropriate Commissions
in cost proceedings or dockets initiated under or
pursuant to the Act. If during the Term that
Commission or the FCC changes a rate, price or charge
in an order or docket that applies to any of the
Interconnection, Resale Services, Network Elements,
functions, facilities,
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products and services available hereunder, the
Parties agree to amend this Agreement to incorporate
such new rates, prices and charges, with such rates,
prices and charges to be effective as of the date
specified in such order or docket (including giving
effect to any retroactive application, if so
ordered). If either Party refuses to execute an
amendment to this Agreement within sixty (60) days
after the date of such order or docket, the other
Party may pursue its rights under Section 10.
2.12 Scope of Obligations
2.12.1 Notwithstanding anything to the contrary contained
herein, SBC-13STATE's obligations under this
Agreement shall apply only to:
2.12.1 the specific operating area(s) or portion
thereof in which SBC-13 STATE is then
deemed to be the ILEC under the Act (THE
"ILEC TERRITORY"), and
2.12.2 assets that SBC-13STATE owns or leases and
which are used in connection with
SBC-13STATE's provision to CLEC of any
Interconnection, Resale Services, Network
Elements, functions, facilities, products
or services provided or contemplated under
this Agreement, the Act or any tariff or
ancillary agreement referenced herein
(individually and collectively, THE "ILEC
ASSETS").
3. NOTICE OF CHANGES -- SECTION 251(C)(5)
3.1 Nothing in this Agreement shall limit either Party's ability
to upgrade its network through the incorporation of new
equipment, new software or otherwise. Each Party agrees to
comply with the Network Disclosure rules adopted by the FCC in
CC Docket No. 96-98, Second Report and Order, codified at 47
C.F.R. 51.325 through 51.335, as such rules may be amended
from time to time (the "NETWORK DISCLOSURE RULES").
4. GENERAL RESPONSIBILITIES OF THE PARTIES
4.1 Upon approval by the Commission, CLEC agrees to begin
providing Telephone Exchange Service within its certificated
service area to business End Users within _____ days and to
residential End Users within _____ days.
4.2 SBC-12STATE and CLEC shall each use their best efforts to meet
the Interconnection Activation Dates.
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4.3 Each Party is individually responsible to provide facilities
within its network that are necessary for routing,
transporting, measuring, and billing traffic from the other
Party's network and for delivering such traffic to the other
Party's network in the standard format compatible with
SBC-13STATE's network as referenced in Telcordia BOC Notes on
LEC Networks Practice No. SR-TSV-002275, and to terminate the
traffic it receives in that standard format to the proper
address on its network. The Parties are each solely
responsible for participation in and compliance with national
network plans, including the National Network Security Plan
and the Emergency Preparedness Plan.
4.4 The Parties shall exchange technical descriptions and
forecasts of their Interconnection and traffic requirements in
sufficient detail necessary to establish the Interconnections
required to assure traffic completion to and from all End
Users in their respective designated service areas.
4.5 Each Party is solely responsible for all products and services
it provides to its End Users and to other Telecommunications
Carriers.
4.6 Facilities-based carriers and UNE-based Switch Port providers
are responsible for administering their End User records in a
LIDB.
4.6.1 PACIFIC reserves the right on one hundred eighty
(180) calendar days notice to require UNE-Based
Switch Port providers to administer their End User
records in PACIFIC's LIDB.
4.6.2 NEVADA does not have a line information database
and/or Calling Name database. Line information
database services can be purchased from PACIFIC.
4.7 At all times during the Term, each Party shall keep and
maintain in force at each Party's expense all insurance
required by Applicable Law (e.g. workers' compensation
insurance) as well as general liability insurance in the
amount of (at least) $10,000,000 for personal injury or death
to any one person, property damage resulting from any one
incident, and automobile liability with coverage for bodily
injury and for property damage. Upon request from the other
Party, each Party shall provide to the other Party evidence of
such insurance (which may be provided through a program of
self-insurance). This Section 4.7 is a general statement of
insurance requirements and shall be in addition to any
specific requirement of insurance referenced elsewhere in this
Agreement or a Referenced Instrument.
4.8 Upon CLEC signature of this Agreement, CLEC shall provide
SBC-13STATE with CLEC's state-specific authorized and
nationally recognized OCN/AECNs for
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facilities-based (Interconnection and/or unbundled Network
Elements) and a separate and distinct OCN/AECN for Resale
Services.
4.9 In the event that CLEC makes any corporate name change
(including addition or deletion of a d/b/a), change in
OCN/AECN, or makes or accepts a transfer or assignment of
interconnection trunks or facilities (including leased
facilities), or a change in any other CLEC identifier
(collectively, a "CLEC Change"), CLEC shall submit written
notice to SBC-13STATE within thirty (30) days of the first
action taken to implement such CLEC Change. Within thirty (30)
days following receipt of that notice, the Parties shall
negotiate rates to compensate SBC-13STATE for the costs to be
incurred by SBC-13STATE to make the CLEC Change to the
applicable SBC-13STATE databases, systems, records and/or
recording announcement(s) for CLEC branded/repair calls. In
addition, CLEC shall compensate SBC-13STATE for any service
order charges and/or service request charges associated with
such CLEC Change. SBC-13STATE's agreement to implement a CLEC
Change is conditioned upon CLEC's agreement to pay all
reasonable charges billed to CLEC for such CLEC Change.
4.10 When a End User changes its service provider from SBC-13STATE
to CLEC or from CLEC to SBC-13STATE and does not retain its
original telephone number, the Party formerly providing
service to such End User shall furnish a referral announcement
("REFERRAL ANNOUNCEMENT") on the original telephone number
that specifies the End User's new telephone number.
4.10.1 The following pertains to AM-IL, AM-WI and PACIFIC
only:
4.10.1.1 Referral Announcements shall be provided by
a Party to the other Party for the period of
time and at the rates set forth in the
referring Party's tariff(s); provided,
however, if either Party provides Referral
Announcements for a period different (either
shorter or longer) than the period(s) stated
in its tariff(s) when its End Users change
their telephone numbers, such Party shall
provide the same level of service to End
Users of the other Party.
4.10.2 The following applies to AM-IN only:
4.10.2.1 Referral Announcements shall be provided
by a Party to the other Party for the
period specified in 170 IAC
7-1.1-11(I)(3)(a) and (b) and at the rates
set forth in the referring Party's
tariff(s). However, if either Party
provides Referral Announcements for a
period different than the above period(s)
when its End Users change their telephone
numbers, such Party shall provide the same
level of service to End Users of the other
Party.
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4.10.3 The following applies to AM-MI only:
4.10.3.1 Referral Announcements shall be provided
by a Party to the other Party for the
period specified in Michigan
Administrative Rule 484.134 and at the
rates set forth in the referring Party's
tariff(s). However, if either Party
provides Referral Announcements for a
period longer than the above period(s)
when its End Users change their telephone
numbers, such Party shall provide the same
level of service to End Users of the other
Party.
4.10.4 The following applies to AM-OH only:
4.10.4.1 Referral Announcements shall be provided
by a Party to the other Party for the
period of time specified in Rule
4901:1-5-12, Ohio Administrative Code and
at the rates set forth in the referring
Party's tariff(s). However, if either
Party provides Referral Announcements for
a period longer than the above period(s)
when its End Users change their telephone
numbers, such Party shall provide the same
level of service to End Users of the other
Party.
4.11 Each Party shall be responsible for labor relations with its
own employees. Each Party agrees to notify the other Party as
soon as practicable whenever such Party has knowledge that a
labor dispute concerning its employees is delaying or
threatens to delay such Party's timely performance of its
obligations under this Agreement and shall endeavor to
minimize impairment of service to the other Party (for
example, by using its management personnel to perform work or
by other means) in the event of a labor dispute to the extent
permitted by Applicable Law.
4.12 Each Party shall act in good faith in its performance under
this Agreement and, in each case in which a Party's consent or
agreement is required or requested hereunder, such Party shall
not unreasonably withhold or delay such consent or agreement.
5. EFFECTIVE DATE, TERM, AND TERMINATION
5.1 This Effective Date of this Agreement shall be ten (10)
calendar days after the Commission approves this Agreement
under Section 252(e) of the Act or, absent such Commission
approval, the date this Agreement is deemed approved under
Section 252(e)(4) of the Act.
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5.2 The term of this Agreement shall commence upon the Effective
Date of this Agreement and shall expire on April 19, 2001 (the
"TERM"). Absent the receipt by one Party of written notice
from the other Party at least within 180 days prior to the
expiration of the Term to the effect that such Party does not
intend to extend the Term, this Agreement shall remain in full
force and effect on and after the expiration of the Term until
terminated by either Party pursuant to Section 5.3 or 5.4.
5.3 Notwithstanding any other provision of this Agreement, either
Party may terminate this Agreement and the provision of any
Interconnection, Resale Services, Network Elements, functions,
facilities, products or services provided pursuant to this
Agreement, at the sole discretion of the terminating Party, in
the event that the other Party fails to perform a material
obligation or breaches a material term of this Agreement and
the other Party fails to cure such nonperformance or breach
within forty-five (45) calendar days after written notice
thereof. Any termination of this Agreement pursuant to this
Section 5.3 shall take effect immediately upon delivery of
written notice to the other Party that it failed to cure such
nonperformance or breach within forty-five (45) calendar days
after written notice thereof.
5.4 If pursuant to Section 5.2, this Agreement continues in full
force and effect after the expiration of the Term, either
Party may terminate this Agreement after delivering written
notice to the other Party of its intention to terminate this
Agreement, subject to Sections 5.5 and 5.6. Neither Party
shall have any liability to the other Party for termination of
this Agreement pursuant to this Section 5.4 other than its
obligations under Sections 5.5 and 5.6.
5.5 Upon termination or expiration of this Agreement in accordance
with Sections 5.2, 5.3 or 5.4:
5.5.1 Each Party shall continue to comply with its
obligations set forth in Section 42; and
5.5.2 Each Party shall promptly pay all amounts owed under
this Agreement or place any Disputed Amounts into an
escrow account that complies with Section 8.4 hereof;
5.5.3 Each Party's confidentiality obligations shall
survive; and
5.5.4 Each Party 's indemnification obligations shall survive.
5.6 If either Party serves notice of expiration pursuant to
Section 5.2 or Section 5.4, CLEC shall have ten (10) days to
provide SBC-13STATE written confirmation if
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CLEC wishes to pursue a successor agreement with SBC-13STATE
or terminate its agreement. CLEC shall identify the action to
be taken on each applicable (13) state(s). If CLEC wishes to
pursue a successor agreement with SBC-13STATE, CLEC shall
attach to its written confirmation or notice of
expiration/termination, as applicable, a written request to
commence negotiations with SBC-13STATE under Sections 251/252
of the Act and identify each of the state(s) the successor
agreement will cover. Upon receipt of CLEC's Section 252(a)(1)
request, the Parties shall commence good faith negotiations on
a successor agreement
5.7 The rates, terms and conditions of this Agreement shall
continue in full force and effect until the earlier of (i) the
effective date of its successor agreement, whether such
successor agreement is established via negotiation,
arbitration or pursuant to Section 252(i) of the Act; or (ii)
the date that is ten (10) months after the date on which
SBC-13STATE received CLEC's Section 252(a)(1) request;
provided, however, when a successor agreement becomes
effective, the terms, rates and charges of such successor
Agreement shall apply retroactively back to the date this
Agreement is terminated or expires, whichever is later, and
that the retro-active true-up shall be completed within 90
days following the effective date of such successor Agreement.
5.8 If at any time during the Section 252(a)(1) negotiation
process (prior to or after the expiration date or termination
date of this Agreement), CLEC withdraws its Section 252(a)(1)
request, CLEC must include in its notice of withdrawal a
request to adopt a successor agreement under Section 252(i) of
the Act or affirmatively state that CLEC does not wish to
pursue a successor agreement with SBC-13STATE for a given
state. The rates, terms and conditions of this Agreement shall
continue in full force and effect for a period of ninety (90)
days after the date CLEC provides notice of withdrawal of its
Section 252(a)(1) request. On the ninety-first (91) day
following SBC-13STATE's receipt of CLEC's notice of withdrawal
of its Section 252(a)(1) request, unless CLEC provided
SBC-13STATE notice of a Section 252(i) adoption in the
interim, the Parties shall, subject to Section 5.5, have no
further obligations under this Agreement.
5.9 If CLEC does not affirmatively state that it wishes to pursue
a successor agreement with SBC-13STATE in its, as applicable,
notice of expiration or termination or the written
confirmation required after receipt of SBC's notice of
expiration or termination, then the rates, terms and
conditions of this Agreement shall continue in full force and
effect for a period of ninety (90) days after the date CLEC
provided or received notice of expiration or termination. On
the ninety-first (91) day following CLEC provided or received
notice of expiration or termination, the Parties shall,
subject to Section 5.5, have no further obligations under this
Agreement.
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5.10 In the event of termination of this Agreement pursuant to
Section 5.9, SBC-13STATE and CLEC shall cooperate in good
faith to effect an orderly transition of service under this
Agreement; provided that CLEC shall be solely responsible
(from a financial, operational and administrative standpoint)
to ensure that its End Users have been transitioned to a new
LEC by the expiration date, termination date of this
Agreement.
6. FRAUD
6.1 SBC-13STATE shall not be liable to CLEC for any fraud
associated with CLEC's End User's account, including 1+
IntraLATA toll, ported numbers, and Alternate Billing Service
(ABS). ABS is a service that allows End Users to bill calls to
account(s) that might not be associated with the originating
line. There are three types of ABS calls: calling card,
collect, and third number billed calls.
6.2 The Parties agree to cooperate with one another to
investigate, minimize, and take corrective action in cases of
fraud involving 1+ IntraLATA toll calls, ABS, and ported
numbers. The Parties' fraud minimization procedures are to be
cost-effective and implemented so as not to unduly burden or
harm one Party as compared to the other.
6.3 In cases of suspected fraudulent activity by an End User, at a
minimum, the cooperation referenced in Section 6.2 will
include providing to the other Party, upon request,
information concerning Customers who terminate services to
that Party without paying all outstanding charges. The Party
seeking such information is responsible for securing the End
User's permission to obtain such information.
6.4 SBC-AMERITECH, SBC-SWBT, PACIFIC, SNET will provide
notification messages to CLEC on suspected occurrences of
ABS-related fraud on CLEC accounts stored in the applicable
LIDB. PACIFIC will provide such alert messages by e-mail.
SBC-AMERITECH, SBC-SWBT AND SNET will provide via fax.
6.4.1 SBC-SWBT (ON BEHALF OF ITSELF AND SNET) AND PACIFIC
will use a Sleuth system to determine suspected
occurrences of ABS-related fraud for CLEC using the
same criteria SBC-SWBT AND PACIFIC use to monitor
fraud on their respective accounts.
6.4.2 CLEC understands that Sleuth alerts only identify
potential occurrences of fraud. CLEC understands and
agrees that it will need to perform its own
investigations to determine whether a fraud situation
actually exists. CLEC understands and agrees that it
will also need to determine what, if any, action CLEC
should take as a result of a Sleuth alert.
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6.4.3 The Parties will provide contact names and numbers to
each other for the exchange of Sleuth alert
notification information twenty-four (24) hours per
day seven (7) days per week.
6.4.4 For each alert notification provided to CLEC, CLEC
may request a corresponding thirty-day (30-day)
historical report of ABS-related query processing.
CLEC may request up to three reports per alert.
6.5 In SBC-SWBT AND PACIFIC ABS-related alerts are provided to
CLEC at no additional charge, except as related in 6.6 below.
6.5.1 In PACIFIC, 1+ IntraLATA toll fraud alerts are
offered for Resale only under the product name
Traffic Alert Referral Service (TARS). For TARS, CLEC
agrees to pay a recurring usage rate as outlined in
Appendix Pricing.6.6 Traffic Alert Referral Service
("TARS") 1+ Intra-LATA Toll Fraud Monitoring
6.5.2 For terms and conditions for TARS, see Appendix
Resale.
6.5.3 TARS is offered in PACIFIC only.
7. DEPOSITS (SBC-12STATE)
7.1 The deposit requirements set forth in this Section 7 apply to
the Resale Services and Network Elements furnished under this
Agreement. A CLEC furnished both Resale Services and Network
Elements in one (1) state under this Agreement shall make two
(2) separate deposits for that state, each calculated
separately as set forth below in Sections 7.2 through 7.10,
inclusive.
7.2 If CLEC has not established a minimum of twelve (12)
consecutive months good credit history with all telephone
company affiliates of SBC (that is, AMERITECH, NEVADA,
PACIFIC, SNET AND SWBT) where CLEC is doing or has done
business as a local service provider, CLEC shall remit an
initial cash deposit to SBC-12STATE prior to the furnishing of
Resale Services or Network Elements in each state under this
Agreement. The deposit required by the previous sentence shall
be determined as follows:
7.2.1 for NEVADA, PACIFIC and SWBT, if immediately prior to
the Effective Date, CLEC was not operating as a Local
Service Provider in a state covered by this
Agreement, the initial deposit for that state shall
be in the amount of $17,000; or
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7.2.2 for NEVADA, PACIFIC and SWBT, if immediately prior to
the Effective Date, CLEC was operating as a Local
Service Provider in a state covered by this
Agreement, the deposit for that state shall be in the
amount calculated using the method set forth in
Section 7.7 of this Agreement; or
7.2.3 for SBC-AMERITECH, subject to external credit check
verification and/or financial statement review,
SBC-AMERITECH may require two (2) to four (4) months
of projected average monthly billings as a deposit.
7.2.4 If CLEC has established a minimum of twelve (12)
consecutive months good credit history with all ILEC
Affiliates of SBC.(that is, AMERITECH, NEVADA,
PACIFIC, SNET and SWBT) with which CLEC is doing or
has done business as a Local Service Provider,
SBC-12STATE shall waive the initial deposit
requirement; provided, however, that the terms and
conditions set forth in Section 7.1 through Section
7.10 of this Agreement shall continue to apply in
each state for the Term . In determining whether CLEC
has established a minimum of twelve (12) consecutive
months good credit history with each ILEC Affiliate
of SBC with which CLEC is doing or has done business,
CLEC's payment record with each ILEC Affiliate of SBC
for the most recent twelve (12) months occurring
within the twenty-four (24) month period immediately
prior to the Effective Date shall be considered.
7.3 Any cash deposit for one state shall be held by SBC-12STATE as
a guarantee of payment of charges billed to CLEC, provided,
however, SBC-12STATE may exercise its right to credit any cash
deposit to CLEC's account upon the occurrence of any one of
the following events:
7.3.1 when SBC-12STATE sends CLEC the second delinquency
notification for that state during the most recent
twelve (12) months; or
7.3.2 when SBC-12STATE suspends CLEC's ability to process
orders in accordance with Section 9.6.1.1; or
7.3.3 when CLEC files for protection under the bankruptcy
laws; or
7.3.4 when an involuntary petition in bankruptcy is filed
against CLEC and is not dismissed within sixty (60)
days; or
7.3.5 when this Agreement expires or terminates; or
7.3.6 during the month following the expiration of twelve
(12) months after that cash deposit was remitted,
SBC-12STATE shall credit any cash deposit to
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CLEC's account so long as CLEC has not been sent more
than one delinquency notification letter for that
state during the most recent twelve (12) months.
7.3.7 For the purposes of this Section 7.3, interest will
be calculated as specified in Section 8.1 and shall
be credited to CLEC's account at the time that the
cash deposit is credited to CLEC's account.
7.4 So long as CLEC maintains timely compliance with its payment
obligations, SBC-12STATE will not increase the deposit amount
required. If CLEC fails to maintain timely compliance with its
payment obligations, SBC-12STATE reserves the right to require
additional deposit(s) in accordance with Section 7.1 and
Section 7.5 through Section 7.10.
7.5 If during the first six (6) months of operations in a state
under this Agreement, CLEC has been sent one delinquency
notification letter by SBC-12STATE, the deposit amount for
that state shall be re-evaluated based upon CLEC's actual
billing totals and shall be increased if CLEC's actual billing
average:
7.5.1 for NEVADA, PACIFIC or SWBT for a two (2) month
period exceeds the deposit amount held; or
7.5.2 for AMERITECH for a two (2) to four (4) month period
exceeds the deposit amount held.
7.6 Throughout the Term, any time CLEC has been sent two (2)
delinquency notification letters for any one state by
SBC-12STATE, the deposit amount for that state shall be
re-evaluated based upon CLEC's actual billing totals and shall
be increased if CLEC's actual billing average:
7.6.1 or NEVADA, PACIFIC or SWBT for a two (2) month period
exceeds the deposit amount held; or
7.6.2 for AMERITECH for a two (2) to four (4) month period
exceeds the deposit amount held.
7.7 Whenever a deposit is re-evaluated as specified in Section 7.5
or Section 7.6, such deposit shall be calculated in an amount
equal to the average billing to CLEC for that state for a two
(2) to four (4) month period. The most recent three (3) months
billing on all of CLEC's CBAs/ESBAs/ASBS ("CBA" is utilized in
SWBT only; "ESBA" is utilized in PACIFIC and NEVADA only;
"ASBS" is utilized in AMERITECH only) and BANs for Resale
Services or Network Elements within that state shall be used
to calculate CLEC's monthly average.
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7.7.1 In SBC-7STATE only, after calculating the amount
equal to the average billing to CLEC for that state
for a two (2) month period, add the amount of any
charges that would be applicable to transfer all of
CLEC's then-existing End-Users of Resale Services to
SBC-7STATE in the event of CLEC's disconnection for
non-payment of charges. The resulting sum is the
amount of the deposit.
7.8 Whenever a deposit is re-evaluated as specified in Section 7.5
and Section 7.6, CLEC shall remit the additional deposit
amount to SBC-12STATE within thirty (30) calendar days of
receipt of written notification from SBC-12STATE requiring
such deposit. If CLEC fails to furnish the required deposit
within thirty (30) calendar days of receipt of written notice
requesting such deposit, SBC-12STATE shall begin the process
set forth in Section 9 of this Agreement for that state. If
CLEC continues to fail to furnish the required deposit at the
expiration of the fourteen (14) calendar days specified in
Section 9.3 of this Agreement, then SBC-12STATE shall begin
the procedure(s) set forth in Sections 9.5 and 9.6 of this
Agreement for that state.
7.9 This cash deposit requirement may be satisfied in whole or in
part with an irrevocable bank letter of credit acceptable to
SBC-7STATE. No interest shall be paid by SBC-7STATE for any
portion of the deposit requirement satisfied by an irrevocable
bank letter of credit. SBC-7STATE may demand payment from the
issuing bank of any irrevocable bank letter of credit upon the
occurrence of any of the events listed in Section 7.3.1
through 7.3.4.
7.10 The fact that SBC-12STATE holds either a cash deposit or
irrevocable bank letter of credit does not relieve CLEC from
timely compliance with its payment obligations under this
Agreement.
7.11 For Deposit requirements for SNET, see the applicable DPUC
ordered tariff.
8. BILLING AND PAYMENT OF CHARGES
8.1 Unless otherwise stated, each Party will render monthly
bill(s) to the other for Interconnection, Resale Services,
Network Elements, functions, facilities, products and services
provided hereunder at the rates set forth in the applicable
Appendix Pricing, as set forth in applicable tariffs or other
documents specifically referenced herein and, as applicable,
as agreed upon by the Parties or authorized by a Party.
8.1.1 Remittance in full of all bills rendered by
SBC-AMERITECH, SBC-SWBT and PACIFIC is due within
thirty (30) days of each bill date
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(the "BILL DUE DATE") and shall be paid in accordance
with the terms of Section 8.3 of this Agreement.
8.1.2 Remittance in full of all bills rendered by NEVADA is
due in accordance with the terms set forth in the
Commission C2-A Tariff, with the date on which
amounts are due referred to herein as the "BILL DUE
DATE".
8.1.3 Remittance in full of all bills rendered by SNET is
due in accordance with the terms set forth in the
Connecticut Access Service Tariff approved by the
DPUC, with the date on which amounts are due referred
to herein as the "BILL DUE DATE".
8.1.4 Remittance in full of all bills rendered by CLEC is
due within thirty (30) days of each bill date (the
"BILL DUE DATE").
8.1.5 If CLEC fails to remit payment for any charges for
services by the Bill Due Date, or if a payment or any
portion of a payment is received from CLEC after the
Bill Due Date, or if a payment or any portion of a
payment is received in funds which are not
immediately available to SBC-13STATE as of the Bill
Due Date (individually and collectively, "PAST DUE"),
then a late payment charge shall be assessed as
provided in Sections 8.1.5.1 through 8.1.5.3, as
applicable.
8.1.5.1 If any charge incurred under this
Agreement that is billed out of any
SBC-8STATE billing system other than the
SBC-SWBT Customer Records Information
System (CRIS) is Past Due, the unpaid
amounts shall bear interest from the Bill
Due Date until paid at the lesser of (i)
the rate used to compute the Late Payment
Charge in the applicable SBC-8STATE
intrastate access services tariff in that
state and (ii) the highest rate of
interest that may be charged under
Applicable Law, compounded daily from the
Bill Due Date to and including the date
that the payment is actually made and
available.
8.1.5.2 If any charge incurred under this
Agreement that is billed out of SBC-SWBT's
CRIS is Past Due, the unpaid amounts shall
bear interest from the Bill Due Date until
paid. The interest rate applied to
SBC-SWBT CRIS-billed Past Due unpaid
amounts shall be the lesser of (i) the
rate used to compute the Late Payment
Charge contained in the applicable
SBC-SWBT intrastate retail
Commission-approved tariff governing Late
Payment Charges to SBC-SWBT's retail End
Users that are business End Users in that
state and (ii) the highest rate of
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interest that may be charged under
Applicable Law, compounded daily from the
Bill Due Date to and including the date that
the payment is actually made and available.
8.1.5.3 If any charge incurred under this Agreement
that is billed out of any SBC-AMERITECH
billing system is Past Due, the unpaid
amounts shall accrue interest from the Due
Date at the lesser of (i) one and one-half
percent (1 1/2%) per month and (ii) the
highest rate of interest that may be charged
under Applicable Law, compounded daily from
the Bill Due Date to and including the date
that the payment is actually made and
available.
8.2 If any charge incurred by SBC-12STATE under this Agreement is
Past Due, the unpaid amounts shall bear interest from the Bill
Due Date until paid. The interest rate applied shall be the
lesser of (i) the rate used to compute the Late Payment Charge
contained in the applicable SBC-12STATE's intrastate access
services tariff in that state and (ii) the highest rate of
interest that may be charged under Applicable Law, compounded
daily from the Bill Due Date to and including the date that
the payment is actually made and available.
8.3 CLEC shall make all payments to SBC-12STATE via electronic
funds credit transfers through the Automated Clearing House
Association (ACH) network to the financial institution
designated by SBC-12STATE. Remittance information will be
communicated together with the funds transfer via the ACH
network. CLEC shall use the CCD+ or the CTX transaction set.
CLEC and SBC-12STATE shall abide by the National Automated
Clearing House Association (NACHA) Rules and Regulations. Each
ACH credit transfer shall be received by SBC-12STATE no later
than the Bill Due Date of each bill or Late Payment Charges
will apply. SBC-12STATE shall not be liable for any delays in
receipt of funds or errors in entries caused by CLEC or Third
Parties, including CLEC's financial institution. CLEC is
responsible for its own banking fees.
8.3.1 CLEC shall make all payments to SNET in "immediately
available funds." All payments to SNET shall be made
using one of the methods set forth in the Connecticut
Access Service Tariff approved by the CT-DPUC or via
electronic funds credit transfers through the
Automated Clearing House Association (ACH) network to
the financial institution designated by SNET. If CLEC
makes payment through funds transfer via the ACH
network, remittance information will be communicated
together with the funds transfer via the ACH network.
If CLEC makes payment through funds transfer via the
ACH network, CLEC shall use the CCD+ or the CTX
transaction set. CLEC and SNET shall abide by the
National Automated Clearing House Association (NACHA)
Rules and Regulations.
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Each payment shall be received by SNET no later than
the Bill Due Date of each bill or Late Payment
Charges will apply. SNET shall not be liable for any
delays in receipt of funds or errors in entries
caused by CLEC or Third Parties, including CLEC's
financial institution. CLEC is responsible for its
own banking fees.
8.4 If any portion of an amount due to a Party (the "BILLING
PARTY") for Resale Services or Network Elements under this
Agreement is subject to a bona fide dispute between the
Parties, the Party billed (the "NON-PAYING PARTY") shall,
prior to the Bill Due Date, give written notice to the Billing
Party of the amounts it disputes ("DISPUTED AMOUNTS") and
include in such written notice the specific details and
reasons for disputing each item listed in Section 10.4.1. The
Non-Paying Party shall pay when due (i) all undisputed amounts
to the Billing Party, and (ii) all Disputed Amounts into an
interest bearing escrow account with a Third Party escrow
agent mutually agreed upon by the Parties. To be acceptable,
the Third Party escrow agent must meet all of the following
criteria:
8.4.1 The financial institution proposed as the Third Party
escrow agent must be located within the continental
United States;
8.4.2 The financial institution proposed as the Third Party
escrow agent may not be an Affiliate of either Party;
and
8.4.3 The financial institution proposed as the Third Party
escrow agent must be authorized to handle Automatic
Clearing House (ACH) (credit transactions)
(electronic funds) transfers.
8.4.4 In addition to the foregoing requirements for the
Third Party escrow agent, the disputing Party and the
financial institution proposed as the Third Party
escrow agent must agree that the escrow account will
meet all of the following criteria:
8.4.4.1 The escrow account must be an interest
bearing account;
8.4.4.2 All charges associated with opening and
maintaining the escrow account will be borne
by the disputing Party;
8.4.4.3 That none of the funds deposited into the
escrow account or the interest earned
thereon may be subjected to the financial
institution's charges for serving as the
Third Party escrow agent;
8.4.4.4 All interest earned on deposits to the
escrow account shall be disbursed to the
Parties in the same proportion as the
principal; and
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8.4.4.5 Disbursements from the escrow account shall
be limited to those:
8.4.4.5.1 authorized in writing by both the
disputing Party and the Billing
Party (that is, signature(s) from
representative(s) of the disputing
Party only are not sufficient to
properly authorize any
disbursement); or
8.4.4.5.2 made in accordance with the final,
non-appealable order of the
arbitrator appointed pursuant to
the provisions of Section 10.7; or
8.4.4.5.3 made in accordance with the final,
non-appealable order of the court
that had jurisdiction to enter the
arbitrator's award pursuant to
Section 10.7.
8.5 Disputed Amounts in escrow shall be subject to Late Payment
Charges as set forth in Section 8.1.
8.6 Issues related to Disputed Amounts shall be resolved in
accordance with the procedures identified in the Dispute
Resolution provisions set forth in Section 10.
8.7 If the Non-Paying Party disputes any charges for Resale
Services or Network Elements and any portion of the dispute is
resolved in favor of such Non-Paying Party, the Parties shall
cooperate to ensure that all of the following actions are
taken:
8.7.1 the Billing Party shall credit the invoice of the
Non-Paying Party for that portion of the Disputed
Amounts resolved in favor of the Non-Paying Party,
together with any Late Payment Charges assessed with
respect thereto no later than the second Bill Due
Date after the resolution of the Dispute;
8.7.2 within fifteen (15) calendar days after resolution of
the Dispute, the portion of the escrowed Disputed
Amounts resolved in favor of the Non-Paying Party
shall be released to the Non-Paying Party, together
with any accrued interest thereon;
8.7.3 within fifteen (15) calendar days after resolution of
the Dispute, the portion of the Disputed Amounts
resolved in favor of the Billing Party shall be
released to the Billing Party, together with any
accrued interest thereon; and
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8.7.4 no later than the third Bill Due Date after the
resolution of the dispute regarding the Disputed
Amounts, the Non-Paying Party shall pay the Billing
Party the difference between the amount of accrued
interest such Billing Party received from the escrow
disbursement and the amount of Late Payment Charges
such Billing Party is entitled to receive pursuant to
Section 8.1.
8.8 Failure by the Non-Paying Party to pay any charges determined
to be owed to the Billing Party within the time specified in
Section 8.6 shall be grounds for termination of this
Agreement.
8.9 EXCHANGE OF BILLING MESSAGE INFORMATION
8.9.1 SBC-13 STATE will provide CLEC a specific Daily Usage
File ("DUF" OR "USAGE EXTRACT") for Resale Services
and Network Element usage sensitive services provided
hereunder ("CUSTOMER USAGE DATA"). Such Customer
Usage Data shall be provided by SBC-13STATE in
accordance with Exchange Message Interface (EMI)
guidelines supported by OBF. Any exceptions to the
supported formats will be noted in the DUF
implementation requirements documentation for each
ILEC. The DUF shall include (i) specific daily usage,
including both Local Traffic (if and where
applicable) and LEC-carried IntraLATA Toll Traffic,
in EMI format for usage sensitive services furnished
in connection with each Resale Service and Network
Element to the extent that similar usage sensitive
information is provided to retail End Users of
SBC-13STATE within that state, (ii) with sufficient
detail to enable CLEC to bill its End Users for usage
sensitive services furnished by SBC-13STATE in
connection with Resale Services and Network Elements
provided by SBC-13STATE. Procedures and processes for
implementing the interfaces with SBC-AMERITECH,
PACIFIC, NEVADA, SNET, and SBC-SWBT will be included
in implementation requirements documentation.
8.9.2 To establish file transmission for the DUF, CLEC must
provide a separate written request for each state to
SBC-AMERITECH, PACIFIC, NEVADA, SNET and SBC-SWBT no
less than sixty (60) calendar days prior to the
desired first transmission date for each file.
8.9.3 Call detail for LEC-carried calls that are
alternately billed to CLEC End Users will be
forwarded to CLEC as rated call detail on the DUF.
8.9.4 SBC-SWBT shall bill CLEC for DUF furnished by
SBC-SWBT in accordance with the price(s) provided in
the applicable Appendix Pricing under "Electronic
Billing Information."
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8.9.5 Interexchange call detail on Resale Services or
Network Elements (ports) that is forwarded to
SBC-13STATE for billing, which would otherwise be
processed by SBC-13STATE for its retail End Users,
will be returned to the IXC and will not be passed
through to CLEC. This call detail will be returned to
the IXC with a transaction code indicating that the
returned call originated from a resold account.
Billing for Information Services and other ancillary
services traffic on Resale Services and Network
Elements (ports) will be passed through when
SBC-13STATE records the message.
8.9.6 SBC-AMERITECH, NEVADA and PACIFIC Ancillary Services
messages originated on or billed to a Resale Service
or Network Element (port) in those seven (7) states
shall be subject to the rates, terms and conditions
of Appendix MESSAGE EXCHANGE.
8.9.7 CLEC shall be responsible for providing all billing
information to each of its End Users, regardless of
the method used to provision the End User's service.
9. NONPAYMENT AND PROCEDURES FOR DISCONNECTION
9.1 Unless otherwise specified therein, Sections 9.1, 9.2, 9.3,
9.4 and 9.5 shall apply to all charges billed for all services
Interconnection, Resale Services, Network Elements, functions,
facilities, products and services furnished under this
Agreement. Section 9.6 shall apply only to Resale Services and
Network Elements furnished under this Agreement.
9.1.1 If a Party is furnished services under the terms of
this Agreement in more than one (1) state, Sections
9.1 through 9.7, inclusive, shall be applied
separately for each such state.
9.2 Failure to pay charges may be grounds for termination of this
Agreement. If a Party fails to pay by the Bill Due Date, any
and all charges billed to it under this Agreement, including
any Late Payment Charges or miscellaneous charges ("UNPAID
CHARGES"), and any portion of such Unpaid Charges remain
unpaid after the Bill Due Date, the Billing Party shall notify
the Non-Paying Party in writing that in order to avoid
disruption or disconnection of the applicable Interconnection,
Resale Services, Network Elements, functions, facilities,
products and services furnished under this Agreement, the
Non-Paying Party must remit all Unpaid Charges to the Billing
Party.
9.2.1 With respect to Resale Services and Network Elements,
SBC-13STATE will notify CLEC of any Unpaid Charges
that remain unpaid fifteen (15) calendar days after
the Bill Due Date and that CLEC must remit payment
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within fourteen (14) calendar days following receipt
of SBC-13STATE's notice.
9.3 If the Non-Paying Party desires to dispute any portion of the
Unpaid Charges, the Non-Paying Party shall take all of the
following actions not later than fourteen (14) calendar days
following receipt of the Billing Party's notice of Unpaid
Charges:
9.3.1 notify the Billing Party in writing which portion(s)
of the Unpaid Charges it disputes, including the total
amount disputed ("DISPUTED AMOUNTS") and the specific
details listed in Section 10.4.1 of this Agreement,
together with the reasons for its dispute; and
9.3.2 immediately pay to the Billing Party all undisputed
Unpaid Charges; and
9.3.3 pay all Disputed Amounts relating to Resale Services
and Network Elements into an interest bearing escrow
account that complies with the requirements set forth
in Section 8.4.
9.3.4 With respect to Resale Services and Network Elements,
evidence that the Non-Paying Party has established an
interest bearing escrow account that complies with
all of the terms set forth in Section 8.4 and
deposited a sum equal to the Disputed Amounts into
that account must be furnished to the Billing Party
before the Unpaid Charges will be deemed to be
"disputed" under Section 10 of this Agreement.
9.4 Issues related to Disputed Amounts shall be resolved in
accordance with the procedures identified in the Dispute
Resolution provision set forth in Section 10.
9.5 SBC-AMERITECH ONLY
9.5.1 Notwithstanding anything to the contrary herein, if
the Non-Paying Party fails to (i) pay any undisputed
amounts by the Bill Due Date, (ii) pay the disputed
portion of a past due bill into an interest-bearing
escrow account with a Third Party escrow agent, (iii)
pay any revised deposit or (iv) make a payment in
accordance with the terms of any mutually agreed upon
payment arrangement, the Billing Party may, in
addition to exercising any other rights or remedies
it may have under Applicable Law, provide written
demand to the Non-Paying Party for failing to comply
with the foregoing. If the Non-Paying Party does not
satisfy the written demand within five (5) Business
Days of receipt, the Billing Party may exercise any,
or all, of the following options:
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9.5.1.1 assess a late payment charge and where
appropriate, a dishonored check charge;
9.5.1.2 require provision of a deposit or increase
an existing deposit pursuant to a revised
deposit request;
9.5.1.3 refuse to accept new, or complete pending,
orders; and/or
9.5.1.4 discontinue service.
9.5.2 Notwithstanding anything to the contrary in this
Agreement, the Billing Party's exercise of any of the
above options:
9.5.2.1 shall not delay or relieve the Non-Paying
Party's obligation to pay all charges on
each and every invoice on or before the
applicable Bill Due Date, and
9.5.2.2 Sections 9.5.1.3 and 9.5.1.4 shall exclude
any affected order or service from any
applicable performance interval or
Performance Benchmark.
9.5.3 Once disconnection has occurred, additional charges
may apply.
9.6 SBC-7STATE ONLY
9.6.1 If any Unpaid Charges for Resale Services remain
unpaid and undisputed twenty-nine (29) calendar days
past the Bill Due Date of such Unpaid Charges,
SBC-7STATE shall notify CLEC and the Commission in
writing that unless all Unpaid Charges are paid
within sixteen (16) calendar days following CLEC's
receipt of such notice, the Resale Services furnished
to CLEC under this Agreement for which Unpaid Charges
are outstanding (i.e., delinquent and undisputed)
shall be disconnected. This notice shall further
specify that SBC-7STATE shall cause any of CLEC's End
Users provisioned through Resale Services to be
defaulted to SBC-7STATE local service.
9.6.1.1 On the same day that it sends the letter
required by Section 9.6.1, SBC-7STATE will
suspend acceptance of any new order and
completion of any pending order (other than
a disconnect order) from CLEC for any Resale
Service or Network Element that could be
furnished under this Agreement.
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9.6.1.2 Section 9.6.1.1 shall exclude any affected
order for Resale Services or Network
Elements from any applicable performance
interval and computation of any Performance
Measurement.
9.6.2 If any Unpaid Charges for Resale Services remain
unpaid and undisputed forty (40) calendar days past
the Bill Due Date of the Unpaid Charges, CLEC shall,
at its sole expense, notify its End Users and the
Commission that the End Users' service may be
disconnected due to CLEC's failure to pay Unpaid
Charges, and that its End Users must affirmatively
select a new Local Service Provider within five (5)
calendar days. This notice shall also advise CLEC's
End Users provisioned through Resale Services that
SBC-7STATE will transfer provisioning of the End
User's account to SBC-7STATE at the end of the five
(5) calendar day period should the End User fail to
select a new Local Service Provider in the interim.
9.6.3 If any Unpaid Charges for Resale Services furnished
to CLEC under this Agreement remain unpaid and
undisputed forty-five (45) calendar days past the
Bill Due Date of such Unpaid Charges, SBC-7STATE
shall disconnect such Resale Services.
9.6.3.1 On the same date that these Resale Services
are disconnected, SBC-7STATE shall cause
such End Users provisioned through Resale
Services to be transferred directly to
SBC-7STATE's local service. To the extent
available at retail from SBC-7STATE, the
Resale End Users transferred to SBC-7STATE's
local service shall receive the same
services provided through CLEC immediately
prior to the time of transfer; provided,
however, SBC-7STATE reserves the right to
toll restrict (both interLATA and intraLATA)
such transferred End Users.
9.6.3.2 Applicable conversion charges and service
establishment charges for transferring End
Users from CLEC to SBC-7STATE as specified
in this Section 9.6 shall be billed to CLEC.
9.6.3.3 SBC-7STATE shall inform the Commission of
the names of all End Users transferred
through this process.
9.6.4 Within five (5) calendar days of the transfer,
SBC-7STATE shall notify all transferred End Users
that because of CLEC's failure to pay SBC-7STATE,
their local service is now being provided by
SBC-7STATE. SBC-7STATE shall also notify each
transferred End User that the End User has thirty
(30) calendar days to select a new Local Service
Provider.
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9.6.5 If any End User transferred to SBC-7STATE's local
service pursuant to Section 9.6.3 of this Agreement
fails to select a new Local Service Provider within
thirty (30) calendar days of the transfer to
SBC-7STATE's local service, SBC-7STATE shall
terminate the End User's service.
9.6.5.1 The transferred End User shall be
responsible for any and all charges incurred
during the selection period.
9.6.5.2 SBC-7STATE shall notify the Commission of
the names of all End Users whose service has
been terminated pursuant to this Section
9.6.5.
9.6.6 SBC-7STATE may discontinue service to CLEC as
provided in Section 9.6.3 and shall have no liability
to CLEC or CLEC's End Users in the event of such
disconnection or any transfer of End Users to
SBC-7STATE service in connection with such
disconnection.
9.6.7 Nothing in this Agreement shall be interpreted to
obligate SBC-7STATE to continue to provide service to
any transferred End User beyond the thirty (30)
calendar day selection period. Nothing herein shall
be interpreted to limit any and all disconnection
rights SBC-7STATE has with regard to such End Users
under Applicable Law; provided, however,
9.6.7.1 in PACIFIC only, following expiration of the
selection period and disconnection of such
End Users, where facilities permit, PACIFIC
will furnish transferred and subsequently
disconnected residential End Users with
"quick dial tone."
9.6.8 Once the letter required by Section 9.6.1 has been
sent to CLEC, SBC-7STATE shall not accept any order
(other than a disconnect order) relating to Resale
Services or Network Elements from CLEC until
9.6.8.1 All Unpaid Charges are paid, and
9.6.8.2 CLEC has furnished SBC-7STATE a cash deposit
calculated pursuant to the terms and
conditions of Section 7.
9.7 SNET ONLY
9.7.1 For nonpayment and procedures for disconnection for
SNET, see the applicable DPUC ordered tariff.
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10. DISPUTE RESOLUTION
10.1 FINALITY OF DISPUTES
10.1.1 Except as otherwise specifically provided for in this
Agreement, no claim may be brought for any dispute
arising from this Agreement more than twenty-four
(24) months from the date the occurrence which gives
rise to the dispute is discovered or reasonably
should have been discovered with the exercise of due
care and attention.
10.1.2 Notwithstanding anything contained in this Agreement
to the contrary, a Party shall be entitled to dispute
only those charges for which the Bill Due Date
occurred within the twelve (12) months immediately
preceding the date on which the other Party received
notice of such Disputed Amounts.
10.2 ALTERNATIVE TO LITIGATION
10.2.1 The Parties desire to resolve disputes arising out of
this Agreement without litigation. Accordingly, the
Parties agree to use the following Dispute Resolution
procedures with respect to any controversy or claim
arising out of or relating to this Agreement or its
breach.
10.3 COMMENCING DISPUTE RESOLUTION
10.3.1 Dispute Resolution shall commence upon one Party's
receipt of written notice of a controversy or claim
arising out of or relating to this Agreement or its
breach. No Party may pursue any claim unless such
written notice has first been given to the other
Party. There are three (3) separate Dispute
Resolution methods:
10.3.1.1 Service Center (SBC-AMERITECH), LSC
(SBC-SWBT)
10.3.1.2 Informal Dispute Resolution; and
10.3.1.3 Formal Dispute Resolution, each of which is
described below.
10.4 LSC/ SERVICE CENTER DISPUTE RESOLUTION -the following Dispute
Resolution procedures will apply with respect to any billing
dispute arising out of or relating to the Agreement.
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10.4.1 If the written notice given pursuant to Section 10.3
discloses that a CLEC dispute relates to billing,
then the procedures set forth in this Section 10.4
shall be used and the dispute shall first be referred
to the appropriate service center SBC-AMERITECH
SERVICE CENTER; SBC-7STATE LOCAL SERVICE CENTER
(LSC); for resolution. In order to resolve a billing
dispute, CLEC shall furnish SBC-7STATE and
SBC-AMERITECH, written notice of (i) the date of the
bill in question, (ii) CBA/ESBA/ASBS or BAN number of
the bill in question, (iii) telephone number, circuit
ID number or trunk number in question, (iv) any USOC
information questioned, (v) amount billed and (vi)
amount in question and (vii) the reason that CLEC
disputes the billed amount. To be deemed a "dispute"
under this Section 10.4, CLEC must provide evidence
that it has established an interest bearing escrow
account that complies with the requirements set forth
in Section 8.4 of this Agreement and deposited all
Unpaid Charges relating to Resale Services and
Network Elements into that escrow account. Failure to
provide the information and evidence required by this
Section 10.4.1 not later than twenty-nine (29) days
following the Bill Due Date shall constitute CLEC's
irrevocable and full waiver of its right to dispute
the subject charges.
10.4.2 The Parties shall attempt to resolve Disputed Amounts
appearing on SBC-7STATE and SBC-AMERITECH's current
billing statements thirty (30) to sixty (60) calendar
days from the Bill Due Date (provided the CLEC
furnishes all requisite information and evidence
under Section 10.4.1 by the Bill Due Date). If not
resolved within thirty (30) calendar days, upon
request, SBC-7STATE and SBC-AMERITECH will notify
CLEC of the status of the dispute and the expected
resolution date.
10.4.3 The Parties shall attempt to resolve Disputed Amounts
appearing on statements prior to the current billing
statement within thirty (30) to ninety (90) calendar
days, but resolution may take longer depending on the
complexity of the dispute. If not resolved within
thirty (30) calendar days from the date notice of the
Disputed Amounts was received (provided that CLEC
furnishes all requisite information and evidence
under Section 10.4.1), SBC-7STATE and SBC-AMERITECH
will notify CLEC of the status of the dispute and the
expected resolution date.
10.4.4 Any notice of Disputed Amounts given by SBC-7STATE
and SBC-AMERITECH to CLEC pursuant to Section 10.3
shall furnish CLEC written notice of: (i) the date of
the bill in question, (ii) the account number or
other identification of the bill in question, (iii)
any telephone number, circuit ID number or trunk
number in question, (iv) any USOC (or other
descriptive information) questioned, (v) the amount
billed, (vi)
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the amount in question, and (vii) the reason that SBC
disputes the billed amount. The Parties shall attempt
to resolve Disputed Amounts appearing on current
billing statement(s) thirty (30) to sixty (60)
calendar days from the Bill Due Date (provided
SBC-7STATE and SBC-AMERITECH furnishes all requisite
information by the Bill Due Date) and Disputed
Amounts appearing on statements prior to the current
billing statement within thirty (30) to ninety (90)
calendar days, but resolution may take longer
depending on the complexity of the dispute. If not
resolved within thirty (30) calendar days, CLEC will
notify SBC-7STATE and SBC-AMERITECH of the status of
the dispute and the expected resolution date.
10.4.5 If the Non-Paying Party is not satisfied by the
resolution of the billing dispute under this Section
10.4, the Non-Paying Party may notify the Billing
Party in writing that it wishes to invoke the
Informal Resolution of Disputes afforded pursuant to
Section 10.5 of this Agreement.
10.5 INFORMAL RESOLUTION OF DISPUTES
10.5.1 Upon receipt by one Party of notice of a dispute by
the other Party pursuant to Section 10.3 or Section
10.4.5, each Party will appoint a knowledgeable,
responsible representative to meet and negotiate in
good faith to resolve any dispute arising under this
Agreement. The location, form, frequency, duration,
and conclusion of these discussions will be left to
the discretion of the representatives. Upon
agreement, the representatives may utilize other
alternative Dispute Resolution procedures such as
mediation to assist in the negotiations. Discussions
and the correspondence among the representatives for
purposes of settlement are exempt from discovery and
production and will not be admissible in the
arbitration described below or in any lawsuit without
the concurrence of both Parties. Documents identified
in or provided with such communications that were not
prepared for purposes of the negotiations are not so
exempted, and, if otherwise admissible, may be
admitted in evidence in the arbitration or lawsuit.
10.6 FORMAL DISPUTE RESOLUTION
10.6.1 If the Parties are unable to resolve the dispute
through the informal procedure described in Section
10.5, then either Party may invoke the formal Dispute
Resolution procedures described in this Section 10.6.
Unless agreed among all Parties, formal Dispute
Resolution procedures, including arbitration or other
procedures as appropriate, may be invoked
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not earlier than sixty (60) calendar days after
receipt of the letter initiating Dispute Resolution
under Section 10.3.
10.6.2 CLAIMS SUBJECT TO MANDATORY ARBITRATION. The
following claims, if not settled through informal
Dispute Resolution, will be subject to mandatory
arbitration pursuant to Section 10.7 below:
10.6.2.1 Each unresolved billing dispute involving
one percent (1%) or less of the amounts
charged to the Disputing Party under this
Agreement in the state in which the
dispute arises during the twelve (12)
months immediately preceding receipt of
the letter initiating Dispute Resolution
under Section 10.3. If the disputing Party
has not been billed for a minimum of
twelve (12) months immediately preceding
receipt of the letter initiating Dispute
Resolution under Section 10.3, the Parties
will annualize the actual number of months
billed.
10.6.3 CLAIMS SUBJECT TO ELECTIVE ARBITRATION. Claims will
be subject to elective arbitration pursuant to
Section 10.7 if, and only if, the claim is not
settled through informal Dispute Resolution and both
Parties agree to arbitration. If both Parties do not
agree to arbitration, then either Party may proceed
with any remedy available to it pursuant to law,
equity or agency mechanism.
10.6.4 CLAIMS NOT SUBJECT TO ARBITRATION. If the following
claims are not resolved through informal Dispute
Resolution, they will not be subject to arbitration
and must be resolved through any remedy available to
a Party pursuant to law, equity or agency mechanism.
10.6.4.1 Actions seeking a temporary restraining
order or an injunction related to the
purposes of this Agreement.
10.6.4.2 Actions to compel compliance with the
Dispute Resolution process.
10.6.4.3 All claims arising under federal or state
statute(s), including antitrust claims.
10.7 ARBITRATION
10.7.1 Disputes subject to mandatory or elective arbitration
under the provisions of this Agreement will be
submitted to a single arbitrator pursuant to the
Commercial Arbitration Rules of the American
Arbitration Association or
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pursuant to such other provider of arbitration
services or rules as the Parties may agree. The
arbitrator shall be knowledgeable of
telecommunications issues. Each arbitration will be
held in DALLAS, TEXAS (SBC-SWBT); CHICAGO, ILLINOIS
(SBC-AMERITECH), SAN FRANCISCO, CALIFORNIA (PACIFIC);
RENO, NEVADA (NEVADA); as appropriate, unless the
Parties agree otherwise. The arbitration hearing will
be requested to commence within sixty (60) calendar
days of the demand for arbitration. The arbitrator
will control the scheduling so as to process the
matter expeditiously. The Parties may submit written
briefs upon a schedule determined by the arbitrator.
The Parties will request that the arbitrator rule on
the dispute by issuing a written opinion within
thirty (30) calendar days after the close of
hearings. The Federal Arbitration Act, 9 U.S.C. Secs.
1-16, not state law, shall govern the arbitrability
of all disputes. The arbitrator will have no
authority to award punitive damages, exemplary
damages, Consequential Damages, multiple damages, or
any other damages not measured by the prevailing
Party's actual damages, and may not, in any event,
make any ruling, finding or award that does not
conform to the terms and conditions of this
Agreement. The times specified in this Section may be
extended or shortened upon mutual agreement of the
Parties or by the arbitrator upon a showing of good
cause. Each Party will bear its own costs of these
procedures, including attorneys' fees. The Parties
will equally split the fees of the arbitration and
the arbitrator. The arbitrator's award shall be final
and binding and may be entered in any court having
jurisdiction thereof. Judgment upon the award
rendered by the arbitrator may be entered in any
court having jurisdiction.
11. AUDITS - APPLICABLE IN SBC-12STATE ONLY
11.1 Subject to the restrictions set forth in Section 20 and except
as may be otherwise expressly provided in this Agreement, a
Party (the "AUDITING PARTY") may audit the other Party's (the
"AUDITED PARTY") books, records, data and other documents, as
provided herein, once annually, with the audit period
commencing not earlier than the date on which services were
first supplied under this Agreement ("SERVICE START DATE") for
the purpose of evaluating (i) the accuracy of Audited Party's
billing and invoicing of the services provided hereunder and
(ii) verification of compliance with any provision of this
Agreement that affects the accuracy of Auditing Party's
billing and invoicing of the services provided to Audited
Party hereunder. Notwithstanding the foregoing, an Auditing
Party may audit the Audited Party's books, records and
documents more than once annually if the previous audit found
(i) previously uncorrected net variances or errors in invoices
in Audited Party's favor with an aggregate value of at least
five percent (5%) of the amounts payable by Auditing Party for
audited services provided during the period covered by the
audit or (ii) non-compliance by Audited Party with any
provision of this Agreement affecting Auditing Party's billing
and
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invoicing of the services provided to Audited Party with an
aggregate value of at least five percent (5%) of the amounts
payable by Audited Party for audited services provided during
the period covered by the audit.
11.1.1 The scope of the audit shall be limited to the period
which is the shorter of (i) the period subsequent to
the last day of the period covered by the audit which
was last performed (or if no audit has been
performed, the service start date and (ii) the twelve
(12) month period immediately preceding the date the
Audited Party received notice of such requested
audit, but in any event not prior to the service
start date. Such audit shall begin no fewer than
thirty (30) days after Audited Party receives a
written notice requesting an audit and shall be
completed no later than thirty (30) days after the
start of such audit.
11.1.2 Such audit shall be conducted either by the Auditing
Party's employee(s) or an independent auditor
acceptable to both Parties; provided, however, if the
Audited Party requests that an independent auditor be
engaged and the Auditing Party agrees, the Audited
Party shall pay one-quarter (1/4) of the independent
auditor's fees and expenses. If an independent
auditor is to be engaged, the Parties shall select an
auditor by the thirtieth day following Audited
Party's receipt of a written audit notice. Auditing
Party shall cause the independent auditor to execute
a nondisclosure agreement in a form agreed upon by
the Parties.
11.1.3 Each audit shall be conducted on the premises of the
Audited Party during normal business hours. Audited
Party shall cooperate fully in any such audit and
shall provide the auditor reasonable access to any
and all appropriate Audited Party employees and any
books, records and other documents reasonably
necessary to assess (i) the accuracy of Audited
Party's bills and (ii) Audited Party's compliance
with the provisions of this Agreement that affect the
accuracy of Auditing Party's billing and invoicing of
the services provided to Audited Party hereunder.
Audited Party may redact from the books, records and
other documents provided to the auditor any Audited
Party Proprietary Information that reveals the
identity of End Users of Audited Party.
11.1.4 Each Party shall maintain reports, records and data
relevant to the billing of any services that are the
subject matter of this Agreement for a period of not
less than twenty-four (24) months after creation
thereof, unless a longer period is required by
Applicable Law.
11.1.5 If any audit confirms any undercharge or overcharge,
then Audited Party shall (i) promptly correct any
billing error, including making refund of any
overpayment by Auditing Party in the form of a credit
on the invoice for
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the first full billing cycle after the Parties have
agreed upon the accuracy of the audit results and
(ii) for any undercharge caused by the actions of the
Audited Party, immediately compensate Auditing Party
for such undercharge, and (iii) in each case,
calculate and pay interest as provided in Section 8.1
(depending on the SBC Parties involved), for the
number of days from the date on which such
undercharge or overcharge originated until the date
on which such credit is issued or payment is made and
available.
11.1.6 Except as may be otherwise provided in this
Agreement, audits shall be performed at Auditing
Party's expense, subject to reimbursement by Audited
Party of one-quarter (1/4) of any independent
auditor's fees and expenses in the event that an
audit finds, and the Parties subsequently verify, a
net adjustment in the charges paid or payable by
Auditing Party hereunder by an amount that is, on an
annualized basis, greater than five percent (5%) of
the aggregate charges for the audited services during
the period covered by the audit.
11.1.7 Any disputes concerning audit results shall be
referred to the Parties' respective personnel
responsible for informal resolution. If these
individuals cannot resolve the dispute within thirty
(30) days of the referral, either Party may request
in writing that an additional audit shall be
conducted by an independent auditor acceptable to
both Parties, subject to the requirements set out in
Section 11.1. Any additional audit shall be at the
requesting Party's expense.
11.2 Audits - SNET only
11.2.1 Except as provided in Appendix Compensation, SNET
shall arrange for one (1) annual independent audit to
be conducted by a "Big Six" independent public
accounting firm or an accounting firm mutually agreed
to by SNET, CLEC and all other CLECs doing business
with SNET under the terms of an agreement adopted
pursuant to Sections 251 and 252 of the Act for the
purpose of evaluating the accuracy of SNET's billing
and invoicing.
11.2.2 SNET will cooperate fully with the independent
auditor in such audit and provide reasonable access
to any and all appropriate SNET employees, books,
records and other documents reasonably necessary to
perform the audit.
11.2.3 SNET shall promptly correct any billing error that is
revealed in the audit, including making refund of any
overpayment to CLEC in the form of a credit on the
invoice for the first full billing cycle after the
audit report is
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issued; such refund shall include interest on the
overpayment at the rate of eight percent (8%) per
year. In the event that the audit reveals any
underbilling and resulting underpayment to SNET by
CLEC, the underpayment shall be reflected in CLEC's
invoice for the first full billing cycle after the
audit report is issued. SNET will not be entitled to
recover interest on any underbilling to CLEC revealed
by the audit for the time preceding the amount
appearing on CLEC's bill from SNET, however, SNET
shall be entitled to recover interest at the interest
rate referenced in Section 8.1.5.1 on such
underbilling and CLEC shall pay interest for the
number of days from the Bill Due Date of the bill on
which such underbilling was rectified until the date
on which payment is made and available to SNET.
12. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
12.1 EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY
MAKES OR RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO THE INTERCONNECTION, RESALE SERVICES, NETWORK
ELEMENTS, FUNCTIONS, FACILITIES, PRODUCTS AND SERVICES IT
PROVIDES UNDER OR IS CONTEMPLATED TO PROVIDE UNDER THIS
AGREEMENT AND EACH PARTY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND/OR OF FITNESS FOR A PARTICULAR PURPOSE.
ADDITIONALLY, NEITHER SBC NOR CLEC ASSUMES RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF DATA OR INFORMATION SUPPLIED BY
THE OTHER WHEN THIS DATA OR INFORMATION IS ACCESSED AND USED
BY A THIRD PARTY.
13. LIMITATION OF LIABILITY
13.1 Except for indemnity obligations expressly set forth herein or
as otherwise expressly provided in specific appendices, each
Party's liability to the other Party for any Loss relating to
or arising out of such Party's performance under this
Agreement, including any negligent act or omission (whether
willful or inadvertent), whether in contract, tort or
otherwise, including alleged breaches of this Agreement and
causes of action alleged to arise from allegations that breach
of this Agreement also constitute a violation of a statute,
including the Act, shall not exceed in total the amount
SBC-13STATE or CLEC has charged or would have charged to the
other Party for the affected Interconnection, Resale Services,
Network Elements, functions, facilities, products and
service(s) that were not performed or were improperly
performed.
13.2 Except as otherwise expressly provided in specific appendices,
in the case of any Loss alleged or claimed by a Third Party to
have arisen out of the negligence or
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willful misconduct of any Party, each Party shall bear, and
its obligation shall be limited to, that portion (as mutually
agreed to by the Parties or as otherwise established) of the
resulting expense caused by its own negligence or willful
misconduct or that of its agents, servants, contractors, or
others acting in aid or concert with it.
13.3 A Party may, in its sole discretion, provide in its tariffs
and contracts with its End Users or Third Parties that relate
to any Interconnection, Resale Services, Network Elements,
functions, facilities, products and services provided or
contemplated under this Agreement that, to the maximum extent
permitted by Applicable Law, such Party shall not be liable to
such End User or Third Party for (i) any Loss relating to or
arising out of this Agreement, whether in contract, tort or
otherwise, that exceeds the amount such Party would have
charged the End User or Third Party for the Interconnection,
Resale Services, Network Elements, functions, facilities,
products and services that gave rise to such Loss and (ii) any
Consequential Damages. If a Party elects not to place in its
tariffs or contracts such limitation(s) of liability, and the
other Party incurs a Loss as a result thereof, the first Party
shall indemnify and reimburse the other Party for that portion
of the Loss that would have been limited had the first Party
included in its tariffs and contracts the limitation(s) of
liability described in this Section 13.3.
13.4 Neither CLEC nor SBC-13STATE shall be liable to the other
Party for any Consequential Damages suffered by the other
Party, regardless of the form of action, whether in contract,
warranty, strict liability, tort or otherwise, including
negligence of any kind, whether active or passive (and
including alleged breaches of this Agreement and causes of
action alleged to arise from allegations that breach of this
Agreement constitutes a violation of the Act or other
statute), and regardless of whether the Parties knew or had
been advised of the possibility that such damages could result
in connection with or arising from anything said, omitted, or
done hereunder or related hereto, including willful acts or
omissions; provided that the foregoing shall not limit a
Party's obligation under Section 14.2 to indemnify, defend,
and hold the other Party harmless against any amounts payable
to a Third Party, including any Losses, and Consequential
Damages of such Third Party; provided, however, that nothing
in this Section 13.4 shall impose indemnity obligations on a
Party for any Loss or Consequential Damages suffered by a
Party's End User in connection with any affected
Interconnection, Resale Services, Network Elements, functions,
facilities, products and services. Except as provided in the
prior sentence, each Party hereby releases and holds harmless
the other Party (and such other Party's Affiliates, and their
respective officers, directors, employees and agents) from any
such Claim.
13.5 SBC-13STATE shall not be liable for damages to a End User's
premises resulting from the furnishing of any Interconnection,
Resale Services, Network
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Elements, functions, facilities, products or services,
including, if applicable, the installation and removal of
equipment and associated wiring, unless the damage is caused
by SBC-13STATE's gross negligence or willful misconduct.
SBC-13STATE does not guarantee or make any warranty with
respect to Interconnection, Resale Services, Network Elements,
functions, facilities, products or services when used in an
explosive atmosphere.
13.6 CLEC hereby releases SBC-13STATE from any and all liability
for damages due to errors or omissions in CLEC's End User
listing information as provided by CLEC to SBC-13STATE under
this Agreement, including any errors or omissions occurring in
CLEC's End User listing information as it appears in the White
Pages directory, including, but not limited to, special,
indirect, Consequential, punitive or incidental damages.
13.7 SBC-13 STATE shall not be liable to CLEC, its End User or any
other Person for any Loss alleged to arise out of the
provision of access to 911 service or any errors,
interruptions, defects, failures or malfunctions of 911
service.
13.8 This Section 13 is not intended to exempt any Party from all
liability under this Agreement, but only to set forth the
scope of liability agreed to and the type of damages that are
recoverable. Both Parties acknowledge that they negotiated
regarding alternate limitation of liability provisions but
that such provisions would have altered the cost, and thus the
price, of providing the Interconnection, Resale Services,
Network Elements, functions, facilities, products and services
available hereunder, and no different pricing reflecting
different costs and different limits of liability was agreed
to.
14. INDEMNITY
14.1 Except as otherwise expressly provided herein or in specific
appendices, each Party shall be responsible only for the
Interconnection, Resale Services, Network Elements, functions,
facilities, products and services which are provided by that
Party, its authorized agents, subcontractors, or others
retained by such Parties, and neither Party shall bear any
responsibility for the Interconnection, Resale Services,
Network Elements, functions, facilities, products and services
provided by the other Party, its agents, subcontractors, or
others retained by such Parties.
14.2 Except as otherwise expressly provided herein or in specific
appendices, and to the extent not prohibited by Applicable Law
and not otherwise controlled by tariff, each Party (the
"INDEMNIFYING PARTY") shall release, defend and indemnify the
other Party (the "INDEMNIFIED PARTY") and hold such
Indemnified Party harmless against any Loss to a Third Party
arising out of the negligence or willful misconduct ("FAULT")
of such Indemnifying Party, its agents, its End Users,
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contractors, or others retained by such Parties, in connection
with the Indemnifying Party's provision of Interconnection,
Resale Services, Network Elements, functions, facilities,
products and services under this Agreement; provided, however,
that (i) with respect to employees or agents of the
Indemnifying Party, such Fault occurs while performing within
the scope of their employment, (ii) with respect to
subcontractors of the Indemnifying Party, such Fault occurs in
the course of performing duties of the subcontractor under its
subcontract with the Indemnifying Party, and (iii) with
respect to the Fault of employees or agents of such
subcontractor, such Fault occurs while performing within the
scope of their employment by the subcontractor with respect to
such duties of the subcontractor under the subcontract.
14.3 In the case of any Loss alleged or claimed by a End User of
either Party, the Party whose End User alleged or claimed such
Loss (the "INDEMNIFYING PARTY") shall defend and indemnify the
other Party (the "INDEMNIFIED PARTY") against any and all such
Claims or Losses by its End User regardless of whether the
underlying Interconnection, Resale Service, Network Element,
function, facility, product or service giving rise to such
Claim or Loss was provided or provisioned by the Indemnified
Party, unless the Claim or Loss was caused by the gross
negligence or willful misconduct of the Indemnified Party.
14.4 A Party (the "INDEMNIFYING PARTY") shall defend, indemnify and
hold harmless the other Party ("INDEMNIFIED PARTY") against
any Claim or Loss arising from the Indemnifying Party's use of
Interconnection, Resale Services, Network Elements, functions,
facilities, products and services provided under this
Agreement involving:
14.4.1 any Claim or Loss arising from such Indemnifying
Party's use of Interconnection, Resale Services,
Network Elements, functions, facilities, products and
services offered under this Agreement, involving any
Claim for libel, slander, invasion of privacy, or
infringement of Intellectual Property rights arising
from the Indemnifying Party's own communications or
the communications of such Indemnifying Party's End
Users.
14.4.1.1 The foregoing includes any Claims or Losses
arising from disclosure of any End
User-specific information associated with
either the originating or terminating
numbers used to provision Interconnection,
Resale Services, Network Elements,
functions, facilities, products or services
provided hereunder and all other Claims
arising out of any act or omission of the
End User in the course of using any
Interconnection, Resale Services, Network
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Elements, functions, facilities, products or
services provided pursuant to this
Agreement.
14.4.1.2 The foregoing includes any Losses arising
from Claims for actual or alleged
infringement of any Intellectual Property
right of a Third Party to the extent that
such Loss arises from an Indemnified Party's
or an Indemnified Party's End User's use of
Interconnection, Resale Services, Network
Elements, functions, facilities, products or
services provided under this Agreement;
provided, however, that an Indemnifying
Party's obligation to defend and indemnify
the Indemnified Party shall not apply in the
case of:
14.4.1.2.1 any use by an Indemnified Party
or its End User of an
Interconnection, Resale Service,
Network Element, function,
facility, product or service in
combination with an
Interconnection, Resale Service,
Network Element, function,
facility, product or service
supplied by the Indemnified Party
or Persons other than the
Indemnifying Party; or
14.4.1.2.2 where an Indemnified Party or its
End User modifies or directs the
Indemnifying Party to modify such
Interconnection, Resale Services,
Network Elements, functions,
facilities, products or services;
and
14.4.1.2.3 no infringement would have occurred
without such combined use or
modification.
14.4.2 any and all penalties imposed on either Party because
of the Indemnifying Party's failure to comply with
the Communications Assistance to Law Enforcement Act
of 1994 (CALEA); provided that the Indemnifying Party
shall also, at its sole cost and expense, pay any
amounts necessary to modify or replace any equipment,
facilities or services provided to the Indemnified
Party under this Agreement to ensure that such
equipment, facilities and services fully comply with
CALEA.
14.5 CLEC acknowledges that its right under this Agreement to
Interconnect with SBC-13STATE's network and to unbundle and/or
combine SBC's Network Elements (including combining with
CLEC's Network Elements) may be subject to or limited by
Intellectual Property rights and contract rights of Third
Parties.
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14.5.1 Subject to SBC-13STATE's obligations under any
Commission decisions, it is the sole obligation of
CLEC to obtain any consents, authorizations, or
licenses to or for any Third Party Intellectual
Property rights that may be necessary for CLEC's use
of Interconnection, Network Elements, functions,
facilities, products and services furnished under
this Agreement.
14.5.2 SBC-13STATE hereby conveys no licenses to use such
Intellectual Property rights and makes no warranties,
express or implied, concerning CLEC's (or any Third
Parties') rights with respect to such Intellectual
Property rights and contract rights, including
whether such rights will be violated by such
Interconnection or unbundling and/or combining of
Network Elements (including combining with CLEC's
Network Elements) in SBC-13STATE's network or CLEC's
use of other functions, facilities, products or
services furnished under this Agreement.
14.5.3 Subject to SBC-13STATE's obligations under any
Commission decisions and except as expressly stated
in this Agreement, SBC-13STATE does not and shall not
indemnify, defend or hold CLEC harmless, nor be
responsible for indemnifying or defending, or holding
CLEC harmless, for any Claims or Losses for actual or
alleged infringement of any Intellectual Property
right or interference with or violation of any
contract right that arises out of, is caused by, or
relates to CLEC's Interconnection with SBC-13STATE's
network and unbundling and/or combining SBC-13STATE's
Network Elements (including combining with CLEC's
Network Elements) or CLEC's use of other functions,
facilities, products or services furnished under this
Agreement.
14.6 Subject to SBC-13STATE's obligations under any Commission
decision and except as expressly stated in this Agreement,
CLEC agrees to release, indemnify and hold SBC-13STATE
harmless from and against all Losses arising out of, caused
by, or relating to any real or potential claim that CLEC's
Interconnection with SBC-13STATE's network, or CLEC's use of
SBC-13STATE's Network Elements, or unbundling and/or combining
of SBC-13STATE's Network Elements (including combining with
CLEC's Network Elements) or CLEC's use of other functions,
facilities, products or services furnished under this
Agreement violates or infringes upon any Third Party
Intellectual Property rights or constitutes a breach of
contract. In no event shall SBC-13STATE be liable for any
actual or Consequential Damages that CLEC may suffer arising
out of same.
14.7 CLEC shall reimburse SBC-13STATE for damages to SBC-13STATE's
facilities utilized to provide Interconnection or unbundled
Network Elements
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hereundercaused by the negligence or willful act of CLEC, its
agents or subcontractors or CLEC's End User or resulting from
CLEC's improper use of SBC-13STATE's facilities, or due to
malfunction of any facilities, functions, products, services
or equipment provided by any person or entity other than
SBC-13STATE. Upon reimbursement for damages, SBC-13STATE will
cooperate with CLEC in prosecuting a claim against the person
causing such damage. CLEC shall be subrogated to the right of
recovery by SBC-13STATE for the damages to the extent of such
payment.
14.8 INDEMNIFICATION PROCEDURES
14.8.1 Whenever a claim shall arise for indemnification
under this Section 14, the relevant Indemnified
Party, as appropriate, shall promptly notify the
Indemnifying Party and request in writing the
Indemnifying Party to defend the same. Failure to so
notify the Indemnifying Party shall not relieve the
Indemnifying Party of any liability that the
Indemnifying Party might have, except to the extent
that such failure prejudices the Indemnifying Party's
ability to defend such claim.
14.8.2 The Indemnifying Party shall have the right to defend
against such liability or assertion, in which event
the Indemnifying Party shall give written notice to
the Indemnified Party of acceptance of the defense of
such claim and the identity of counsel selected by
the Indemnifying Party.
14.8.3 Until such time as Indemnifying Party provides
written notice of acceptance of the defense of such
claim, the Indemnified Party shall defend such claim,
at the expense of the Indemnifying Party, subject to
any right of the Indemnifying Party to seek
reimbursement for the costs of such defense in the
event that it is determined that Indemnifying Party
had no obligation to indemnify the Indemnified Party
for such claim.
14.8.4 Upon accepting the defense, the Indemnifying Party
shall have exclusive right to control and conduct the
defense and settlement of any such claims, subject to
consultation with the Indemnified Party. So long as
the Indemnifying Party is controlling and conducting
the defense, the Indemnifying Party shall not be
liable for any settlement by the Indemnified Party
unless such Indemnifying Party has approved such
settlement in advance and agrees to be bound by the
agreement incorporating such settlement.
14.8.5 At any time, an Indemnified Party shall have the
right to refuse a compromise or settlement, and, at
such refusing Party's cost, to take over such
defense; provided that, in such event the
Indemnifying Party shall not
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be responsible for, nor shall it be obligated to
indemnify the refusing Party against, any cost or
liability in excess of such refused compromise or
settlement.
14.8.6 With respect to any defense accepted by the
Indemnifying Party, the Indemnified Party will be
entitled to participate with the Indemnifying Party
in such defense if the claim requests equitable
relief or other relief that could affect the rights
of the Indemnified Party, and shall also be entitled
to employ separate counsel for such defense at such
Indemnified Party's expense.
14.8.7 If the Indemnifying Party does not accept the defense
of any indemnified claim as provided above, the
Indemnified Party shall have the right to employ
counsel for such defense at the expense of the
Indemnifying Party.
14.8.8 In the event of a failure to assume the defense, the
Indemnified Party may negotiate a settlement, which
shall be presented to the Indemnifying Party. If the
Indemnifying Party refuses to agree to the presented
settlement, the Indemnifying Party may take over the
defense. If the Indemnifying Party refuses to agree
to the presented settlement and refuses to take over
the defense, the Indemnifying Party shall be liable
for any reasonable cash settlement not involving any
admission of liability by the Indemnifying Party,
though such settlement may have been made by the
Indemnified Party without approval of the
Indemnifying Party, it being the Parties' intent that
no settlement involving a non-monetary concession by
the Indemnifying Party, including an admission of
liability by such Party, shall take effect without
the written approval of the Indemnifying Party.
14.8.9 Each Party agrees to cooperate and to cause its
employees and agents to cooperate with the other
Party in the defense of any such claim and the
relevant records of each Party shall be available to
the other Party with respect to any such defense,
subject to the restrictions and limitations set forth
in Section 20.
15. REMEDIES
15.1 Except as otherwise provided in this Agreement, no remedy set
forth herein is intended to be exclusive and each and every
remedy shall be cumulative and in addition to any other rights
or remedies now or hereafter existing under Applicable Law or
otherwise
16. INTELLECTUAL PROPERTY
16.1 INTELLECTUAL PROPERTY - SBC-8STATE
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16.1.1 SBC-8STATE will provide to CLEC a list of all
vendors/licensors applicable to unbundled Network
Element(s) (which vendors have provided SBC-8STATE a
software license) within seven (7) days of CLEC's
request for such a list. Except as may be required by
Commission decisions, SBC-8STATE makes no warranties,
express or implied, concerning CLEC's (or any Third
Parties) rights with respect to the use of
Intellectual Property rights. SBC-8STATE reserves the
right to amend the Intellectual Property provision of
this Agreement to reflect the FCC ruling (and any
appeal therefrom) in CC Docket No. 96-98 (File No.
CCBPol 97-4), IN THE MATTER OF PETITION OF MCI FOR
DECLARATORY RULING.
16.1.2 Any Intellectual Property that originates from or is
developed by a Party shall remain in the exclusive
ownership of that Party.
16.1.3 SBC-8STATE will indemnify CLEC for any claims of
infringement arising from CLEC's use of Intellectual
Property within the scope of any "right to use"
agreement negotiated by SBC-8STATE for CLEC pursuant
to Section 16.1.1. CLEC will indemnify SBC-8STATE for
any claims of infringement arising from CLEC's use of
Intellectual Property beyond the scope of any "right
to use" agreement negotiated by SBC-8STATE for CLEC
pursuant to Section 16.1.1.
16.2 Intellectual Property-PACIFIC only:
16.2.1 To the extent required by the decision of the CPUC,
PACIFIC will provide CLEC with Intellectual Property
rights related to PACIFIC's unbundled Network
Elements. CLEC, as the provider of service using the
unbundled Network Elements, will provide all
features, functions, and capabilities of the
individual element to the End Users.
17. NOTICES
17.1 Subject to Section 17.2, notices given by one Party to the
other Party under this Agreement shall be in writing (unless
specifically provided otherwise herein), and unless otherwise
expressly required by this Agreement to be delivered to
another representative or point of contact, shall be
17.1.1 delivered personally;
17.1.2 delivered by express overnight delivery service;
17.1.3 mailed, via certified mail or first class U.S. Postal
Service, with postage prepaid, and a return receipt
requested; or
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17.1.4 delivered by facsimile; provided that a paper copy is
also sent by a method described in (a), (b) or (c) of
this Section 17.
17.1.5 Notices will be deemed given as of the earliest of:
17.1.5.1 the date of actual receipt,
17.1.5.2 the next Business Day when sent via express
overnight delivery service,
17.1.5.3 five (5) days after mailing in the case of
first class or certified U.S. Postal
Service, or
17.1.5.4 on the date set forth on the confirmation
produced by the sending facsimile machine
when delivered by facsimile prior to 5:00
p.m. in the recipient's time zone, but the
next Business Day when delivered by
facsimile at 5:00 p.m. or later in the
recipient's time zone.
17.1.6 Notices will be addressed to the Parties as follows:
------------------------------------ -------------------------------- -------------------------
NOTICE CONTACT CLEC CONTACT SBC-13STATE CONTACT
------------------------------------ -------------------------------- -------------------------
NAME/TITLE Greg Lawhon Contract Administration
Senior Vice President and ATTN: Notices Manager
General Council
------------------------------------ -------------------------------- -------------------------
STREET ADDRESS 2020 Baltimore 311 S. Akard, 9th Floor
Four Bell Plaza
------------------------------------ -------------------------------- -------------------------
CITY, STATE, ZIP CODE Kansas City, MO 64108 Dallas, TX 75202-5398
------------------------------------ -------------------------------- -------------------------
TELEPHONE NUMBER 816-300-3225 214-464-1933
------------------------------------ -------------------------------- -------------------------
FACSIMILE NUMBER 816-842-7507 214-464-2006
------------------------------------ -------------------------------- -------------------------
17.1.7 Either Party may unilaterally change its designated
contact, address, telephone number and/or facsimile
number for the receipt of notices by giving written
notice to the other Party in compliance with this
Section. Any notice to change the designated contact,
address, telephone and/or facsimile number for the
receipt of notices shall be deemed effective ten (10)
days following receipt by the other Party.
17.2 SBC-8STATE communicates official information to CLECs via its
Accessible Letter notification process. This process covers a
variety of subjects, including
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updates on products/services promotions; deployment of new
products/services; modifications and price changes to existing
products/services; cancellation or retirement of existing
products/services; and operational issues.
17.3 In the SBC-8STATES, CLEC may elect in writing to receive
Accessible Letter notification via electronic mail ("E-MAIL")
distribution, either in lieu of or in addition to United
States Postal Service (postage prepaid) distribution. CLEC
acknowledges that United States Postal Service (postage
prepaid) delivery will delay receipt of the information for a
minimum of three (3) to five (5) days from the date the
information is made available via e-mail. Accessible Letter
notification via e-mail will be deemed given as of the earlier
of the date of actual receipt and the date set forth on the
e-mail receipt.
17.4 In SBC-8STATE, CLEC may designate an unlimited number of
recipients for Accessible Letter notification via e-mail, but
CLEC is limited to designating a maximum of four (4)
recipients (in addition to the CLEC contact designated in
Section 17.1) for Accessible Letter notification via United
States Postal Service (postage prepaid).
17.5 In SBC-8STATE, CLEC shall submit a completed Notices /
Accessible Letter Recipient Change Request Form (available on
the applicable SBC-8STATE's CLEC Handbook website) to the
individual specified on that form to designate in writing each
individual (other than the CLEC contact designated in Section
17.1) to whom CLEC requests Accessible Letter notification be
sent, whether via e-mail or United States Postal Service. CLEC
shall submit a completed Notices / Accessible Letter Recipient
Change Request Form to add, remove or change recipient
information for any CLEC recipient of Accessible Letters
(other than the CLEC contact designated in Section 17.1). Any
completed Notices / Accessible Letter Recipient Change Request
Form shall be deemed effective ten (10) days following receipt
by SBC-8STATE.
17.6 SBC-SWBT ONLY:
17.6.1 SBC-SWBT shall provide a toll free facsimile number
to CLEC for the submission of requests for Resale
Services and Network Elements under this Agreement;
CLEC shall provide SBC-SWBT with a toll free
facsimile number for notices from SBC-SWBT relating
to requests for Resale Services and Network Elements
under this Agreement.
17.7 SBC-AMERITECH ONLY:
17.7.1 SBC-AMERITECH communicates official information to
CLECs via its TCNet notification process. This
process covers a variety of subjects,
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including updates on products/services promotions;
deployment of new products/services; modifications
and price changes to existing products/services;
cancellation or retirement of existing
products/services; and operational issues.
18. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
18.1 Neither Party nor its subcontractors or agents shall use in
any advertising or sales promotion, press releases, or other
publicity matters any endorsements, direct or indirect quotes,
or pictures that imply endorsement by the other Party or any
of its employees without such first Party's prior written
approval. The Parties will submit to each other for written
approval, prior to publication, all publicity matters that
mention or display one another's name and/or marks or contain
language from which a connection to said name and/or marks may
be inferred or implied; the Party to whom a request is
directed shall respond promptly. Nothing herein, however,
shall be construed as preventing either Party from publicly
stating the fact that it has executed this Agreement with the
other Party.
18.2 Nothing in this Agreement shall grant, suggest, or imply any
authority for one Party to use the name, trademarks, service
marks, logos, proprietary trade dress or trade names of the
other Party in any advertising, press releases, publicity
matters, marketing and/or promotional materials or for any
other commercial purpose without prior written approval from
such other Party.
19. NO LICENSE
19.1 Except at otherwise expressly provided in this Agreement, no
license under patents, copyrights or any other Intellectual
Property right (other than the limited license to use
consistent with the terms, conditions and restrictions of this
Agreement) is granted by either Party or shall be implied or
arise by estoppel with respect to any transactions
contemplated under this Agreement.
20. CONFIDENTIALITY
20.1 All information, including specifications, microfilm,
photocopies, magnetic disks, magnetic tapes, audit
information, models, system interfaces, forecasts, computer
programs, software, documentation, drawings, sketches, models,
samples, tools, technical information, data, employee records,
maps, financial reports, and market data shall be deemed
"Confidential" or "Proprietary" (COLLECTIVELY "PROPRIETARY
INFORMATION") if :
20.1.1 Furnished or made available or otherwise disclosed by
one Party (the "DISCLOSING PARTY") or its agent,
employee, representative or Affiliate to the other
Party (the "RECEIVING PARTY") or its agent, employee,
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representative or Affiliate dealing with End
User-specific, facility-specific, or usage-specific
information, other than End User information
communicated for the purpose of publication or
directory database inclusion, 911, call processing,
billing or settlement or for such other purposes as
mutually agreed upon;
20.1.2 In written, graphic, electromagnetic, or other
tangible form and marked at the time of delivery as
"Confidential" or "Proprietary;"; or
20.1.3 Communicated orally and declared to the Receiving
Party at the time of delivery to be "Confidential" or
"Proprietary", and which shall be summarized in
writing and marked "Confidential" or "Proprietary"
and delivered to the Receiving Party within ten (10)
days following such disclosure; and
20.1.4 Any portion of any notes, analyses, data,
compilations, studies, interpretations or other
documents prepared by any Receiving Party to the
extent the same contain, reflect, are derived from,
or are based upon, any of the information described
in this Section 20, unless such information contained
or reflected in such notes, analyses, etc. is so
commingled with the Receiving Party's information
that disclosure could not possibly disclose the
underlying proprietary or confidential information
(such portions of such notes, analyses, etc. referred
to herein as "DERIVATIVE INFORMATION").
20.2 PROPRIETARY INFORMATION SHALL BE HELD IN CONFIDENCE
20.2.1 Each Receiving Party agrees that:
(a) all Proprietary Information communicated to
it or any of its agents, employees,
representatives and Affiliates in connection
with this Agreement shall be held in
confidence to the same extent as such
Receiving Party holds its own confidential
information of like importance; provided
that such Receiving Party and its agents,
employees, representatives and Affiliates
shall not use less than a reasonable
standard of care in maintaining the
confidentiality of such information;
(b) it will not, and it will not permit any of
its agents, employees, representatives and
Affiliates to disclose such Proprietary
Information to any Third Party;
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(c) it will disclose Proprietary Information
only to those of its agents, employees,
representatives and Affiliates who have a
need for it in connection with the use or
provision of any services required to
fulfill this Agreement; and
(d) it will, and will cause each of its agents,
employees, representatives and Affiliates,
to use such Proprietary Information only to
perform its obligations under this Agreement
or to use services provided by the
Disclosing Party hereunder and for no other
purpose, including its own marketing
purposes.
20.2.2 A Receiving Party may disclose Proprietary
Information of a Disclosing Party to the Receiving
Party's agents, employees, representatives and
Affiliates who need to know such information to
perform their obligations under this Agreement;
provided that before disclosing any Proprietary
Information to any agent, employee, representative or
Affiliate, the Receiving Party shall notify such
agent, employee, representative or Affiliate of such
Party's obligation to comply with this Agreement. Any
Receiving Party so disclosing Proprietary Information
shall be jointly and severally liable for any breach
of this Agreement by any of its agents, employees,
representatives and Affiliates and such Receiving
Party agrees, at its sole expense, to use its
reasonable efforts (including court proceedings) to
restrain its agents, employees, representatives and
Affiliates from any prohibited or unauthorized
disclosure or use of the Proprietary Information.
Each Receiving Party making such disclosure shall
notify the Disclosing Party as soon as possible if it
has knowledge of a breach of this Agreement in any
material respect. A Disclosing Party shall not
disclose Proprietary Information directly to an
agent, employee, representative or Affiliate of the
Receiving Party without the prior written
authorization of the Receiving Party.
20.2.3 Proprietary Information shall not be reproduced by
any Receiving Party in any form except to the extent
(i) necessary to comply with the provisions of
Section 20.5 and (ii) reasonably necessary to perform
its obligations under this Agreement. All such
reproductions shall bear the same copyright and
proprietary rights notices as are contained in or on
the original.
20.3 Unless otherwise agreed, the obligations of confidentiality
and non-use set forth in this Agreement do not apply to such
Proprietary Information that:
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20.3.1 Was at the time of receipt, already known to the
Receiving Party, free of any obligation to keep
confidential and evidenced by written records
prepared prior to delivery by the Disclosing Party;
or
20.3.2 Is, or becomes publicly known through no wrongful act
of the Receiving Party; or
20.3.3 Is rightfully received from a Third Party having no
direct or indirect secrecy or confidentiality
obligation to the Disclosing Party with respect to
such information; provided that such Receiving Party
has exercised commercially reasonable efforts to
determine whether such Third Party has any such
obligation; or
20.3.4 Is independently developed by an agent, employee
representative or Affiliate of the Receiving Party
and such Party is not involved in any manner with the
provision of services pursuant to this Agreement and
does not have any direct or indirect access to the
Proprietary Information; or
20.3.5 Is disclosed to a Third Party by the Disclosing Party
without similar restrictions on such Third Party's
rights; or
20.3.6 Is approved for release by written authorization of
the Disclosing Party, but only to the extent of the
authorization granted; or
20.3.7 Is required to be made public by the Receiving Party
pursuant to Applicable Law or regulation, provided
that such production or disclosure shall have been
made in accordance with Section 20.5.
20.4 PROPOSED DISCLOSURE OF PROPRIETARY INFORMATION TO A
GOVERNMENTAL AUTHORITY
20.4.1 If a Receiving Party desires to disclose or provide
to a Commission, the FCC or any other governmental
authority any Proprietary Information of the
Disclosing Party, such Receiving Party shall, prior
to and as a condition of such disclosure, (i) provide
the Disclosing Party with written notice and the form
of such proposed disclosure as soon as possible but
in any event early enough to allow the Disclosing
Party to protect its interests in the Proprietary
Information to be disclosed and (ii) attempt to
obtain in accordance with the applicable procedures
of the intended recipient of such Proprietary
Information an appropriate order for protective
relief or other reliable assurance that confidential
treatment shall be accorded to such Proprietary
Information.
20.4.2 If a Receiving Party is required by any Governmental
Authority or by Applicable Law to disclose any
Proprietary Information, then such
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Receiving Party shall provide the Disclosing Party
with written notice of such requirement as soon as
possible, and in no event later than five (5)
calendar days after receipt of such requirement, and
prior to such disclosure. Upon receipt of written
notice of the requirement to disclose Proprietary
Information, the Disclosing Party at its expense, may
then either seek appropriate protective relief in
advance of such requirement to prevent all or part of
such disclosure or waive the Receiving Party's
compliance with this Section 20.4 with respect to all
or part of such requirement.
20.4.3 The Receiving Party shall use all commercially
reasonable efforts to cooperate with the Disclosing
Party in attempting to obtain any protective relief
which such Disclosing Party chooses to seek pursuant
to this Section 20.4. In the absence of such relief,
if the Receiving Party is legally compelled to
disclose any Proprietary Information, then the
Receiving Party shall exercise all commercially
reasonable efforts to preserve the confidentiality of
the Proprietary information, including cooperating
with the Disclosing Party to obtain an appropriate
order for protective relief or other reliable
assurance that confidential treatment will be
accorded the Proprietary Information.
20.5 Notwithstanding any of the foregoing, SBC-13STATE shall be
entitled to disclose Proprietary Information on a confidential
basis to regulatory agencies upon request for information as
to SBC-13STATE's activities under the Act and SBC-13STATE need
not provide prior written notice of such disclosure to CLEC if
SBC-13STATE has obtained an appropriate order for protective
relief or other reliable assurance that confidential treatment
shall be accorded to such Proprietary Information.
20.6 RETURN OF PROPRIETARY INFORMATION
20.6.1 All Proprietary Information, other than Derivative
Information, shall remain the property of the
Disclosing Party, and all documents or other tangible
media delivered to the Receiving Party that embody
such Proprietary Information shall be, at the option
of the Disclosing Party, either promptly returned to
Disclosing Party or destroyed, except as otherwise
may be required from time to time by Applicable Law
(in which case the use and disclosure of such
Proprietary Information will continue to be subject
to this Agreement), upon the earlier of (i) the date
on which the Receiving Party's need for it has
expired and (ii) the expiration or termination of
this Agreement.
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20.6.2 At the request of the Disclosing Party, any
Derivative Information shall be, at the option of the
Receiving Party, either promptly returned to the
Disclosing Party or destroyed, except as otherwise
may be required from time to time by Applicable Law
(in which case the use and disclosure of such
Derivative Information will continue to be subject to
this Agreement), upon the earlier of (i) the date on
which the Receiving Party's need for it has expired
and (ii) the expiration or termination of this
Agreement.
20.6.3 The Receiving Party may at any time either return the
Proprietary Information to the Disclosing Party or
destroy such Proprietary Information. If the
Receiving Party elects to destroy Proprietary
Information, all copies of such information shall be
destroyed and upon the written request of the
Disclosing Party, the Receiving Party shall provide
to the Disclosing Party written certification of such
destruction. The destruction or return of Proprietary
information shall not relieve any Receiving Party of
its obligation to continue to treat such Proprietary
Information in the manner required by this Agreement.
20.7 Notwithstanding any other provision of this Agreement, the
Proprietary Information provisions of this Agreement shall
apply to all information furnished by either Party to the
other in furtherance of the purpose of this Agreement, even if
furnished before the date of this Agreement and each Party's
obligation to safeguard Proprietary Information disclosed
prior to expiration or termination of this Agreement will
survive such expiration or termination.
20.8 Pursuant to Section 222(b) of the Act, both Parties agree to
limit their use of Proprietary Information received from the
other to the permitted purposes identified in the Act.
20.9 Each Party has the right to refuse to accept any Confidential
Information under this Agreement, and nothing herein shall
obligate either Party to disclose to the other Party any
particular information.
20.10 The Parties agree that an impending or existing violation of
any provision of this Section 20 would cause the Disclosing
Party irreparable injury for which it would have no adequate
remedy at law, and agree that Disclosing Party shall be
entitled to obtain immediate injunctive relief prohibiting
such violation, in addition to any other rights and remedies
available to it at law or in equity, including both specific
performance and monetary damages. In the event of any breach
of this Section 20 for which legal or equitable relief is
sought, all reasonable attorney's fees and other reasonable
costs associated therewith shall be recoverable by the
prevailing Party.
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21. INTERVENING LAW
21.1 This Agreement is entered into as a result of both
negotiations between the Parties and the incorporation of
results of orders, rules and arbitration decisions of the
Commissions, and/or FCC. If any of the rates, terms and/or
conditions herein, or any of the laws or regulations that were
the basis or rationale for such rates, terms and/or conditions
in the Agreement, are invalidated, modified or stayed by any
action of any state or federal regulatory or legislative
bodies or courts of competent jurisdiction, including any
decision by the Eighth Circuit relating to any of the
costing/pricing rules adopted by the FCC in its First Report
and Order, IN RE: IMPLEMENTATION OF THE LOCAL COMPETITION
PROVISIONS IN THE TELECOMMUNICATIONS ACT OF 1996, 11 FCC Rcd
15499 (1996)(e.g., Section 51.501, et seq.), upon review and
remand from the United States Supreme Court, in AT&T CORP. V.
IOWA UTILITIES BD., 119 S. Ct. 721 (1999) or AMERITECH V. FCC,
No. 98-1381, 1999 WL 116994, 1999 Lexis 3671 (June 1, 1999),
the affected provision shall be immediately invalidated,
modified, or stayed, consistent with the action of the
legislative body, court, or regulatory agency upon the written
request of either Party. In such event, the Parties shall
expend diligent efforts to arrive at an agreement regarding
the appropriate conforming modifications to the Agreement. If
negotiations fail, disputes between the Parties concerning the
interpretation of the actions required or provisions affected
by such governmental actions shall be resolved pursuant to the
Dispute Resolution process provided for in this Agreement.
Without limiting the general applicability of the foregoing,
the Parties acknowledge that on January 25, 1999, the United
States Supreme Court issued its opinion in AT&T CORP. V. IOWA
UTILITIES BD., 119 S. CT. 721 (1999) and on June 1, 1999, the
United States Supreme Court issued its opinion in AMERITECH V.
FCC, No. 98-1381, 1999 WL 116994, 1999 Lexis 3671 (1999). The
Parties further acknowledge and agree that by executing this
Agreement, neither Party waives any of its rights, remedies,
or arguments with respect to such decisions and any remand
thereof, including its rights under this Intervening Law
paragraph.
22. GOVERNING LAW
22.1 Unless otherwise provided by Applicable Law, this Agreement
shall be governed by and construed in accordance with the Act,
the FCC Rules and Regulations interpreting the Act and other
applicable federal law. To the extent that federal law would
apply state law in interpreting this Agreement, the domestic
laws of the state in which the Interconnection, Resale
Services, Network Elements, functions, facilities, products
and services at issue are furnished or sought shall apply,
without regard to that state's conflict of laws principles.
The Parties submit to personal jurisdiction in Little Rock,
Arkansas; San Francisco, California; New Haven, Connecticut;
Chicago, Illinois; Indianapolis, Indiana; Topeka, Kansas;
Detroit, Michigan; St. Louis, Missouri; Reno, Nevada;
Columbus, Ohio;
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Oklahoma City, Oklahoma; Dallas, Texas and Milwaukee,
Wisconsin, and waive any and all objection to any such venue.
23. REGULATORY APPROVAL
23.1 The Parties understand and agree that this Agreement and any
amendment or modification hereto will be filed with the
Commission for approval in accordance with Section 252 of the
Act and may thereafter be filed with the FCC. The Parties
believe in good faith and agree that the services to be
provided under this Agreement are in the public interest. Each
Party covenants and agrees to fully support approval of this
Agreement by the Commission or the FCC under Section 252 of
the Act without modification.
24. CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION
24.1 Applies to SBC-12STATE ONLY
24.1.1 Each Party will abide by applicable federal and state
laws and regulations in obtaining End User
authorization prior to changing an End User's Local
Exchange Carrier to itself and in assuming
responsibility for any applicable charges as
specified in Section 258(b) of the Telecommunications
Act of 1996. Each Party shall deliver to the other
Party a representation of authorization that applies
to all orders submitted by a Party under this
Agreement requiring a LEC change. A Party's
representation of authorization shall be delivered to
the other Party prior to the first order submitted to
the other Party. Each Party shall retain on file all
applicable letters and other documentation of
authorization relating to its End User's selection of
such Party as its LEC, which documentation shall be
available for inspection by the other Party at its
request during normal business hours and at no
charge.
24.1.2 Only an End User can initiate a challenge to a change
in its LEC. If an End User notifies one Party that
the End User requests local exchange service, and the
other Party is such End User's LEC, then the Party
receiving such request shall be free to immediately
access such End User's CPNI subject to the
requirements of the applicable Appendix OSS
restricting access to CPNI in order to immediately
provide service to such End User.
24.1.3 When an End User changes or withdraws authorization
from its LEC, each Party shall release End
User-specific facilities belonging to the ILEC in
accordance with the End User's direction or that of
the End User's authorized agent. Further, when an End
User abandons its premise (that is,
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its place of business or domicile), SBC-12STATE is
free to reclaim the unbundled Network Element
facilities for use by another End User and is free to
issue service orders required to reclaim such
facilities.
24.2 Applies to SNET only
24.2.1 The Parties agree that CLEC will not submit a Local
Exchange Carrier order for an End User to the Local
Service Provider currently serving that End User
without proper authorization from that End User, as
required by the FCC in Subpart K, Part 64 rules and
regulations and by the DPUC in its applicable rules
and regulations. SNET's wholesale tariff, Section 18,
further documents requirements for Local Exchange
Carrier changes and required End User authorizations.
24.2.2 The Parties agree to the re-use of existing network
facilities when an End User changes its provider of
local exchange service and the network facilities are
provided by the same network provider.
25. COMPLIANCE AND CERTIFICATION
25.1 Each Party shall comply at its own expense with all Applicable
Laws that relate to that Party's obligations to the other
Party under this Agreement. Nothing in this Agreement shall be
construed as requiring or permitting either Party to
contravene any mandatory requirement of Applicable Law.
25.2 Each Party warrants that it has obtained all necessary state
certification required in each state covered by this Agreement
prior to ordering any Interconnection, Resale Services,
Network Elements, functions, facilities, products and services
from the other Party pursuant to this Agreement. Upon request,
each Party shall provide proof of certification.
25.3 Each Party shall be responsible for obtaining and keeping in
effect all approvals from, and rights granted by, Governmental
Authorities, building and property owners, other carriers, and
any other Third Parties that may be required in connection
with the performance of its obligations under this Agreement.
25.4 Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this
Agreement comply with the CALEA.
26. LAW ENFORCEMENT
26.1 SBC-12 STATE and CLEC shall reasonably cooperate with the
other Party in handling law enforcement requests as follows:
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26.1.1 INTERCEPT DEVICES:
26.1.1.1 Local and federal law enforcement agencies
periodically request information or
assistance from local telephone service
providers. When either Party receives a
request associated with an End User of the
other Party, it shall refer such request to
the Party that serves such End User, unless
the request directs the receiving Party to
attach a pen register, trap-and-trace or
form of intercept on the Party's facilities,
in which case that Party shall comply with
any valid request.
26.1.2. SUBPOENAS:
26.1.2.1 If a Party receives a subpoena for
information concerning an End User the Party
knows to be an End User of the other Party,
it shall refer the subpoena to the
Requesting Party with an indication that the
other Party is the responsible company,
unless the subpoena requests records for a
period of time during which the receiving
Party was the End User's service provider,
in which case that Party will respond to any
valid request.
26.1.3 EMERGENCIES:
26.1.3.1 If a Party receives a request from a law
enforcement agency for a temporary number
change, temporary disconnect, or one-way
denial of outbound calls by the receiving
Party's switch for an End User of the other
Party, that Receiving Party will comply with
a valid emergency request. However, neither
Party shall be held liable for any claims or
Losses arising from compliance with such
requests on behalf of the other Party's End
User and the Party serving such End User
agrees to indemnify and hold the other Party
harmless against any and all such claims or
Losses.
26.2 SNET and CLEC shall reasonably cooperate with the
other Party in handling law enforcement requests as
follows:
26.2.1 Each of the Parties agree to comply with the
applicable state and federal law enforcement
authorities, laws, and requirements,
including but not limited to, the
Communications Assistance for Law
Enforcement Act (CALEA) and to report to
applicable State and Federal law enforcement
authorities as required by law, the
Telecommunications Services and related
information provided by each of the Parties
in Connecticut.
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27. RELATIONSHIP OF THE PARTIES/INDEPENDENT CONTRACTOR
27.1 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 and retains full control over the employment,
direction, compensation and discharge of its employees
assisting in the performance of such obligations. Each Party
and each Party's contractor(s) shall be solely responsible for
all matters relating to payment of such employees, including
the withholding or payment of all applicable federal, state
and local income taxes, social security taxes and other
payroll taxes with respect to its employees, as well as any
taxes, contributions or other obligations imposed by
applicable state unemployment or workers' compensation acts
and all other regulations governing such matters. Each Party
has sole authority and responsibility to hire, fire and
otherwise control its employees.
27.2 Nothing contained herein shall constitute the Parties as joint
venturers, partners, employees or agents of one another, and
neither Party shall have the right or power to bind or
obligate the other. Nothing herein will be construed as making
either Party responsible or liable for the obligations and
undertakings of the other Party. Except for provisions herein
expressly authorizing a Party to act for another, nothing in
this Agreement shall constitute a Party as a legal
representative or agent of the other Party, nor shall a Party
have the right or authority to assume, create or incur any
liability or any obligation of any kind, express or implied,
against or in the name or on behalf of the other Party unless
otherwise expressly permitted by such other Party. Except as
otherwise expressly provided in this Agreement, no Party
undertakes to perform any obligation of the other Party,
whether regulatory or contractual, or to assume any
responsibility for the management of the other Party's
business.
28. NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY
28.1 This Agreement is for the sole benefit of the Parties and
their permitted assigns, and nothing herein expressed or
implied shall create or be construed to create any Third Party
beneficiary rights hereunder. This Agreement shall not provide
any Person not a party hereto with any remedy, claim,
liability, reimbursement, cause of action, or other right in
excess of those existing without reference hereto.
29. ASSIGNMENT
29.1 CLEC may not assign or transfer (whether by operation of law
or otherwise) this Agreement (or any rights or obligations
hereunder) to a third person without the prior written consent
of SBC-13STATE; provided that CLEC may assign or transfer this
Agreement to its Affiliate by providing ninety (90) days'
prior written
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notice to SBC-13STATE of such assignment or transfer;
provided, further, that such assignment is not inconsistent
with Applicable Law (including the Affiliate's obligation to
obtain proper Commission certification and approvals) or the
terms and conditions of this Agreement. Notwithstanding the
foregoing, CLEC may not assign or transfer this Agreement (or
any rights or obligations hereunder) to its Affiliate if that
Affiliate is a party to a separate agreement with SBC-13STATE
under Sections 251 and 252 of the Act. Any attempted
assignment or transfer that is not permitted is void ab
initio.
29.2 As a condition of any assignment or transfer of this Agreement
(or any rights hereunder) that is permitted under or consented
to by SBC-13STATE pursuant to this Section 29, CLEC agrees
that any change, modification or other activity required for
SBC-13STATE to accommodate or recognize the successor to or
assignee of CLEC shall be a CLEC Change and shall be subject
to Section 4.10. SBC-13STATE shall have no obligation to
proceed with such activities nor shall any otherwise
acceptable assignment or transfer be effective against
SBC-13STATE until the Parties agree upon the charges that
apply to such CLEC Change.
29.3 If during the Term, SBC-13STATE sells, assigns or otherwise
transfers any ILEC Territory or ILEC Assets to a person other
than an Affiliate or subsidiary, SBC-13STATE shall provide
CLEC not less than ninety (90) days prior written notice of
such sale, assignment or transfer. Upon the consummation of
such sale, assignment or transfer, CLEC acknowledges that
SBC-13STATE shall have no further obligations under this
Agreement with respect to the ILEC Territories and/or ILEC
Assets subject to such sale, assignment or transfer, and that
CLEC must establish its own Section 251 and 252 arrangement
with the successor to such ILEC Territory and/or ILEC Assets.
30. DELEGATION TO AFFILIATE
30.1 Each Party may without the consent of the other Party fulfill
its obligations under this Agreement by itself or may cause
its Affiliate(s) to take some or all of such actions to
fulfill such obligations. Upon such delegation, the Affiliate
shall become a primary obligor hereunder with respect to the
delegated matter, but such delegation shall not relieve the
delegating Party of its obligations as co-obligor hereunder.
Any Party which elects to perform its obligations through an
Affiliate shall cause its Affiliate to take all action
necessary for the performance of such Party's obligations
hereunder. Each Party represents and warrants that if an
obligation under this Agreement is to be performed by an
Affiliate, such Party has the authority to cause such
Affiliate to perform such obligation and such Affiliate will
have the resources required to accomplish the delegated
performance.
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31. SUBCONTRACTING
31.1 If either Party retains or engages any subcontractor to
perform any of that Party's obligations under this Agreement,
each Party will remain fully responsible for the performance
of this Agreement in accordance with its terms, including any
obligations either Party performs through subcontractors.
31.2 Each Party will be solely responsible for payments due that
Party's subcontractors.
31.3 No subcontractor will be deemed a Third Party beneficiary for
any purposes under this Agreement.
31.4 No contract, subcontract or other agreement entered into by
either Party with any Third Party in connection with the
provision of Interconnection, Resale Services, Network
Elements, functions, facilities, products and services
hereunder will provide for any indemnity, guarantee or
assumption of liability by the other Party to this Agreement
with respect to such arrangement, except as consented to in
writing by the other Party.
31.5 Any subcontractor that gains access to CPNI or Proprietary
Information covered by this Agreement shall be required by the
subcontracting Party to protect such CPNI or Proprietary
Information to the same extent the subcontracting Party is
required to protect such CPNI or Proprietary Information under
the terms of this Agreement.
32. HAZARDOUS SUBSTANCES AND RESPONSIBILITY FOR
ENVIRONMENTAL CONTAMINATION
32.1 Each Party will be solely responsible at it own expense for
the proper handling, storage, transport, treatment, disposal
and use of all Hazardous Substances by such Party and its
contractors and agents. "Hazardous Substances" includes those
substances:
32.1.1 included within the definition of hazardous
substance, hazardous waste, hazardous material, toxic
substance, solid waste or pollutant or contaminant
under any Applicable Law, and
32.1.2 listed by any governmental agency as a hazardous
substance.
32.2 CLEC will in no event be liable to SBC-13 STATE for any costs
whatsoever resulting from the presence or release of any
environmental hazard, including Hazardous Substances, that
CLEC did not introduce to the affected work location.
SBC-13STATE will indemnify, defend (at CLEC's request) and
hold CLEC and
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each of its officers, directors and employees harmless from
and against any Loss that arises out of or results from:
32.2.1 Any Environmental Hazard that SBC-13STATE, its
contractors or agents introduce to the work
locations, or
32.2.2 The presence or Release of any Environmental Hazard
for which SBC-13STATE is responsible under Applicable
Law.
32.2 SBC-13STATE will in no event be liable to CLEC for any costs
whatsoever resulting from the presence or Release of any
Environmental Hazard that SBC-13STATE did not introduce to the
affected work location. CLEC will indemnify, defend (at
SBC-13STATE's request) and hold SBC-13STATE and each of its
officers, directors and employees harmless from and against
any Loss that arises out of or results from:
32.3.1 any Environmental Hazard that CLEC, its contractors
or agents introduce to the work locations, or
32.3.2 the presence or Release of any Environmental Hazard
for which CLEC is responsible under Applicable Law.
33. FORCE MAJEURE
33.1 No Party shall be responsible for delays or failures in
performance of any part of this Agreement (other than an
obligation to make money payments) resulting from acts or
occurrences beyond the reasonable control of such Party,
including acts of nature, acts of civil or military authority,
any law, order, regulation, ordinance of any Governmental
Authority, embargoes, epidemics, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear
accidents, hurricanes, floods, work stoppages, equipment
failures, cable cuts, power blackouts, volcanic action, other
major environmental disturbances, unusually severe weather
conditions, inability to secure products or services of other
persons or transportation facilities or acts or omissions of
transportation carriers (individually or collectively, a
"FORCE MAJEURE EVENT") or any Delaying Event caused by the
other Party or any other circumstances beyond the Party's
reasonable control. If a Force Majeure Event shall occur, the
Party affected shall give prompt notice to the other Party of
such Force Majeure Event specifying the nature, date of
inception and expected duration of such Force Majeure Event,
whereupon such obligation or performance shall be suspended to
the extent such Party is affected by such Force Majeure Event
during the continuance thereof or be excused from such
performance depending on the nature, severity and duration of
such Force Majeure Event (and the other Party shall likewise
be excused from performance of its obligations to
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the extent such Party's obligations relate to the performance
so interfered with). The affected Party shall use its
reasonable efforts to avoid or remove the cause of
nonperformance and the Parties shall give like notice and
proceed to perform with dispatch once the causes are removed
or cease.
34. TAXES
34.1 The tax provisions set forth below apply as indicated:
34.1.1 TAXES - SWBT-TX
34.1.1.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible for
all federal, state, or local sales, use,
excise, gross receipts, municipal fees,
transaction or similar taxes, fees, or
surcharges (hereinafter "TAX") levied
against or upon such purchasing Party (or
the providing Party when such providing
Party is permitted by applicable law to
pass along to the purchasing Party such
taxes, fees, or surcharges), except for
any Tax on either Party's corporate
existence, status, or income.
34.1.2 TAXES - SWBT-MOKA
34.1.2.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible for
all federal, state, or local sales, use,
excise, gross receipts, municipal fees,
transaction or similar taxes, fees or
surcharges (hereinafter "TAX") imposed on or
with respect to the services provided by or
to such Party, except for any Tax on either
Party's corporate existence, status, or
income.
34.1.3 TAXES - PACIFIC
34.1.3.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible for
all federal, state, or local sales, use,
excise, gross receipts, utility user,
municipal fees, transaction or similar
taxes, fees, or surcharges (hereinafter
"TAX") imposed on or with respect to the
services provided by or to such Party,
except for any Tax on either Party's
corporate existence, status, or income.
34.1.4 TAXES - NEVADA
34.1.4.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible for
all federal, state, or local sales, use,
excise, gross receipts, municipal fees,
transaction or similar taxes, fees,
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or surcharges (hereinafter "TAX") imposed on
or with respect to the services provided by
or to such Party, except for any Tax on
either Party's corporate existence, status,
or income.
34.1.5 TAXES - SNET
34.1.5.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible for
all federal, state, or local sales, use,
excise, gross receipts, transaction or
similar taxes, fees, or surcharges
(hereinafter "TAX") levied against or upon
such purchasing party (or the providing
Party when such providing Party is permitted
by applicable law to pass along to the
purchasing party such taxes, fees, or
surcharges), except for any Tax on either
party's corporate existence, status, or
income.
34.1.6 TAXES - SBC-AMERITECH
34.1.6.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible for
all federal, state, or local sales, use,
excise, gross receipts, transaction or
similar taxes, fees or surcharges levied
against or upon such purchasing Party (or
the providing Party when such providing
Party is permitted to pass along to the
purchasing Party such taxes, fees or
surcharges), except for any tax on either
Party's corporate existence, status or
income. To the extent that a Party includes
gross receipts taxes in any of the charges
or rates of services provided hereunder, no
additional gross receipts taxes shall be
levied against or upon the purchasing Party.
34.2 TAXES - SBC-13STATE
34.2.1 Whenever possible, Tax amounts shall be billed as a
separate item on the invoice. To the extent a sale is
claimed to be for resale tax exemption, the
purchasing Party shall furnish the providing Party a
proper resale tax exemption certificate as authorized
or required by statute or regulation by the
jurisdiction providing said resale tax exemption.
Failure to timely furnish said resale tax exemption
certificate will result in no exemption being
available to the purchasing Party for any charges
invoiced by the providing Party prior to the date the
purchasing Party furnishes the providing Party a
valid resale tax exemption certificate.
34.2.2 With respect to any purchase of Interconnection,
Resale Services, Network Elements, functions,
facilities, products and services under this
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Agreement, if any Tax is required or permitted by
Applicable Law to be collected from the purchasing
Party by the providing Party, then:
34.2.2.1 The providing Party shall bill the
purchasing Party for such Tax;
34.2.2.2 The purchasing Party shall remit such Tax to
the providing Party; and
34.2.2.3 The providing Party shall remit such
collected Tax to the applicable taxing
authority.
34.2.3 With respect to any purchase hereunder of
Interconnection, Resale Services, Network Elements,
functions, facilities, products and services that are
resold to a Third Party, if any Tax is imposed by
applicable law on the End User in connection with any
such purchase, then:
34.2.3.1 The purchasing Party shall be required to
impose and/or collect such Tax from the End
User; and
34.2.3.2 The purchasing Party shall remit such Tax to
the applicable taxing authority.
34.2.3.3 The purchasing Party agrees to indemnify and
hold harmless the providing Party on an
after tax basis for any costs incurred by
the providing Party as a result of actions
taken by the applicable taxing authority to
collect the Tax from the providing Party due
to the failure of the purchasing Party to
pay or collect and remit such Tax to such
authority.
34.2.4 If the providing Party fails to collect any Tax as
required herein, then, as between the providing Party
and the purchasing Party:
34.2.4.1 The purchasing Party shall remain liable for
such uncollected Tax; and
34.2.4.2 The providing Party shall be liable for any
penalty and interest assessed with respect
to such uncollected Tax by such authority.
34.2.4.3 However, if the purchasing Party fails to
pay any Taxes properly billed, then, as
between the providing Party and the
purchasing Party, the purchasing Party will
be solely responsible for payment of the
Taxes, penalty and interest.
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34.2.5 If the purchasing Party fails to impose and/or
collect any Tax from End Users as required herein,
then, as between the providing Party and the
purchasing Party, the purchasing Party shall remain
liable for such uncollected Tax and any interest and
penalty assessed thereon with respect to the
uncollected Tax by the applicable taxing authority.
With respect to any Tax that the purchasing Party has
agreed to pay or impose on and/or collect from End
Users, the purchasing Party agrees to indemnify and
hold harmless the providing Party on an after tax
basis for any costs incurred by the providing Party
as a result of actions taken by the applicable taxing
authority to collect the Tax from the providing Party
due to the failure of the purchasing Party to pay or
collect and remit such Tax to such authority.
34.2.6 The Party obligated to pay any Tax may contest the
same in good faith, at its own expense, and shall be
entitled to the benefit of any refund or recovery;
provided that such contesting Party shall not permit
any lien to exist on any asset of the other Party by
reason of such contest. The Party obligated to
collect and remit shall cooperate in any such contest
by the other Party. As a condition of contesting any
Tax due hereunder, the contesting Party agrees to be
liable and indemnify and reimburse the other Party
for:
34.2.6.1 any additional amounts that may be due by
reason of such contest, including any
interest and penalties; and
34.2.6.2 all costs of cooperating with the contesting
Party in any such contest.
35. NON-WAIVER
35.1 Except as otherwise specified in this Agreement, no waiver of
any provision of this Agreement and no consent to any default
under this Agreement shall be effective unless the same is in
writing and properly executed by or on behalf of the Party
against whom such waiver or consent is claimed. Waiver by
either Party of any default by the other Party shall not be
deemed a waiver of any other default. Failure of either Party
to insist on performance of any term or condition of this
Agreement or to exercise any right or privilege hereunder
shall not be construed as a continuing or future waiver of
such term, condition, right or privilege. No course of dealing
or failure of any Party to strictly enforce any term, right,
or condition of this Agreement in any instance shall be
construed as a general waiver or relinquishment of such term,
right or condition.
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36. NETWORK MAINTENANCE AND MANAGEMENT
36.1 The Parties will work cooperatively to implement this
Agreement. The Parties will exchange appropriate information
(for example, maintenance contact numbers, network
information, information required to comply with law
enforcement and other security agencies of the Government,
escalation processes, etc.) to achieve this desired result.
36.2 Each Party will administer its network to ensure acceptable
service levels to all users of its network services. Service
levels are generally considered acceptable only when End Users
are able to establish connections with little or no delay
encountered in the network. Each Party will provide a 24-hour
contact number for Network Traffic Management issues to the
other's surveillance management center.
36.3 Each Party maintains the right to implement protective network
traffic management controls, such as "cancel to", "call
gapping" or 7-digit and 10-digit code gaps, to selectively
cancel the completion of traffic over its network, including
traffic destined for the other Party's network, when required
to protect the public-switched network from congestion as a
result of occurrences such as facility failures, switch
congestion or failure or focused overload. Each Party shall
immediately notify the other Party of any protective control
action planned or executed.
36.4 Where the capability exists, originating or terminating
traffic reroutes may be implemented by either Party to
temporarily relieve network congestion due to facility
failures or abnormal calling patterns. Reroutes shall not be
used to circumvent normal trunk servicing. Expansive controls
shall be used only when mutually agreed to by the Parties.
36.5 The Parties shall cooperate and share pre-planning information
regarding cross-network call-ins expected to generate large or
focused temporary increases in call volumes to prevent or
mitigate the impact of these events on the public-switched
network, including any disruption or loss of service to other
End User. Facsimile (FAX) numbers must be exchanged by the
Parties to facilitate event notifications for planned mass
calling events.
36.6 Neither Party shall use any Interconnection, Resale Service,
Network Element, function, facility, product or service
provided under this Agreement or any other service related
thereto or used in combination therewith in any manner that
interferes with any Party in the use of such Party's
Telecommunications
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Service,prevents any Party from using its Telecommunications
Service, impairs the quality of Telecommunications Service to
other carriers or to either Party's End Users, causes
electrical hazards to either Party's personnel, damage to
either Party's facilities or equipment or malfunction of
either Party's ordering or billing systems or equipment. Upon
such occurrence either Party may discontinue or refuse
service, but only for so long as the other Party is violating
this provision. Upon such violation, either Party shall
provide the other Party notice of the violation at the
earliest practicable time.
37. SIGNALING
37.1 The Parties will Interconnect their networks using SS7
signaling as defined in GR-000317-CORE and GR-000394-CORE,
including ISDN User Part (ISUP) for trunk signaling and
Transaction Capabilities Application Part (TCAP) for CCS-based
features in the Interconnection of their networks. Each Party
may establish CCS interconnections either directly and/or
through a Third Party. If CCS interconnection is established
through a Third Party, the rates, terms, and conditions of the
Parties' respective tariffs will apply. If CCS interconnection
is established directly between CLEC and SBC-13STATE, the
rates, terms, and conditions of Appendix SS7 will apply.
37.2 The Parties will cooperate in the exchange of TCAP messages to
facilitate full interoperability of CCS-based features between
their respective networks, including all CLASS features and
functions, to the extent each Party offers such features and
functions to its own End Users. All CCS signaling parameters
deployed by both Parties will be provided including CPN. All
privacy indicators will be honored.
38. TRANSMISSION OF TRAFFIC TO THIRD PARTIES
38.1 CLEC will not send to SBC-13STATE local traffic that is
destined for the network of a Third Party unless CLEC has the
authority to exchange traffic with that Third Party.
39. CUSTOMER INQUIRIES
39.1 Each Party will refer all questions regarding the other
Party's services or products directly to the other Party at a
telephone number specified by that Party.
39.2 Each Party will ensure that all of its representatives who
receive inquiries regarding the other Party's services:
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39.2.1 Provide the number described in Section 39.1 to
callers who inquire about the other Party's services
or products; and
39.2.2 Do not in any way disparage or discriminate against
the other Party or its products or services.
39.3 Except as otherwise provided in this Agreement, CLEC shall be
the primary point of contact for CLEC's End Users with respect
to the services CLEC provides such End Users.
39.4 CLEC acknowledges that SBC-13STATE may, upon End User request,
provide services directly to such End User similar to those
offered to CLEC under this Agreement.
40. EXPENSES
40.1 Except as expressly set forth in this Agreement, each Party
will be solely responsible for its own expenses involved in
all activities related to the matters covered by this
Agreement.
40.2 SBC-12STATE and CLEC shall each be responsible for one-half
(1/2) of expenses payable to a Third Party for Commission fees
or other charges (including regulatory fees and any costs of
notice or publication, but not including attorney's fees)
associated with the filing of this agreement.
41. CONFLICT OF INTEREST
41.1 The Parties represent that no employee or agent of either
Party has been or will be employed, retained, paid a fee, or
otherwise received or will receive any personal compensation
or consideration from the other Party, or any of the other
Party's employees or agents in connection with the negotiation
of this Agreement or any associated documents.
42. SURVIVAL
42.1 The Parties' obligations under this Agreement which by their
nature are intended to continue beyond the termination or
expiration of this Agreement shall survive the termination or
expiration of this Agreement. Without limiting the general
applicability of the foregoing, the following terms and
conditions of the General Terms and Conditions are
specifically agreed by the Parties to continue beyond the
termination or expiration of this Agreement: Section 5.5;
Section 5.6, Section 7.3; Section 8.1; Section 8.4; Section
8.5; Section 8.6; Section 8.7; Section 10, Section 11; Section
13; Section 14; Section 15; Section 16.1; Section 18; Section
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19; Section 20; Section 22; Section 25.4; Section 26.1.3;
Section 32; Section 34 and Section 42.
43. SCOPE OF AGREEMENT
43.1 This Agreement is intended to describe and enable specific
Interconnection and compensation arrangements between the
Parties. This Agreement is the arrangement under which the
Parties may purchase from each other the products and services
described in Section 251 of the Act and obtain approval of
such arrangement under Section 252 of the Act. Except as
agreed upon in writing, neither Party shall be required to
provide the other Party a function, facility, product, service
or arrangement described in the Act that is not expressly
provided herein.
43.2 Except as specifically contained herein or provided by the FCC
or any Commission within its lawful jurisdiction, nothing in
this Agreement shall be deemed to affect any access charge
arrangement.
44. AMENDMENTS AND MODIFICATIONS
44.1 No provision of this Agreement shall be deemed amended or
modified by either Party unless such an amendment or
modification is in writing, dated, and signed by an authorized
representative of both Parties. The rates, terms and
conditions contained in the amendment shall become effective
upon approval of such amendment by the appropriate
Commissions.
44.2 Neither Party shall be bound by any preprinted terms
additional to or different from those in this Agreement that
may appear subsequently in the other Party's form documents,
purchase orders, quotations, acknowledgments, invoices or
other communications.
45. APPENDICES INCORPORATED BY REFERENCE
45.1 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(B)(4)
45.1.1 SBC-13STATE- shall provide to CLEC access to Poles,
Conduits and Rights of Ways pursuant to the
applicable Appendix ROW, which is/are attached hereto
and incorporated herein by reference.
45.2 COLLOCATION -- SECTION 251(c)(6)
45.2.1 Collocation will be provided pursuant to the
applicable Appendix Collocation, which is attached
hereto and incorporated herein by reference.
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45.3 DATABASE ACCESS
45.3.1 SBC13STATE shall provide to CLEC nondiscriminatory
access to databases and associated signaling
necessary for call routing and completion pursuant to
the applicable Appendix UNE, which IS/ARE attached
hereto and incorporated herein by reference.
45.4 DIALING PARITY -- SECTION 251(b)(3)
45.4.1 The Parties shall provide Local Dialing Parity to
each other as required under Section 251(b)(3) of the
Act.
45.4.2 SBC12STATE shall provide IntraLATA Dialing Parity in
accordance with Section 271(e)(2) of the Act.
45.5 INTERCONNECTION PURSUANT TO SECTION 251(C)(2)(A),(B),(C); 47
CFR SECTON 51.305(A)(1)
45.5.1 SBC-13STATE shall provide to CLEC Interconnection of
the Parties' facilities and equipment for the
transmission and routing of Telephone Exchange
Service traffic and Exchange Access traffic pursuant
to the applicable Appendix ITR, which IS/ARE attached
hereto and incorporated herein by reference. Methods
for Interconnection and Physical Architecture shall
be as defined in the applicable Appendix NIM, which
IS/ARE attached hereto and incorporated herein by
reference.
45.6 NUMBER PORTABILITY -- SECTIONS 251(b)(2
45.6.1 The Parties shall provide to each other Permanent
Number Portability (PNP) on a reciprocal basis as
outlined in the applicable Appendix Number
Portability, which IS/ARE attached hereto and
incorporated herein by reference.
45.7 OTHER SERVICES
45.7.1 911 AND E911 SERVICES
45.7.1.1 SBC-13STATE will make nondiscriminatory
access to 911 and E911 services available
under the terms and conditions of the
applicable Appendix 911, which IS/ARE
attached hereto and incorporated herein by
reference.
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45.7.2 AIN
45.7.2.1 One or more of the ILECs making up
SBC-13STATE have deployed a set of AIN
features and functionalities unique to the
particular ILEC(s). As such, the AIN network
architecture, methods of access and manner
of provisioning are specific to that ILEC or
those ILECs. Accordingly, any request for
AIN access pursuant to this Agreement must
be reviewed for technical feasibility, with
all rates, terms and conditions related to
such request to be determined on an
individual case basis and to be negotiated
between the Parties. Upon request by CLEC,
and where technically feasible, SBC-13STATE
will provide CLEC with access to
SBC-13STATE's Advanced Intelligent Network
(AIN) platform, AIN Service Creation
Environment (SCE) and AIN Service Management
System (SMS) based upon ILEC-specific rates,
terms, conditions and means of access to be
negotiated by the Parties pursuant to
Section 252 of the Act, and incorporated
into this Agreement by Appendix or
amendment, as applicable, subject to
approval by the appropriate state
Commission.
45.7.3 DIRECTORY ASSISTANCE (DA)
45.7.3.1 SBC-13STATE will provide nondiscriminatory
access to Directory Assistance services
under the terms and conditions identified in
the applicable Appendix DA, which IS/ARE
attached hereto and incorporated herein by
reference.
45.7.4 HOSTING
45.7.4.1 At CLEC's request, SBC-SWBT and
SBC-AMERITECH shall perform hosting
responsibilities for the provision of
billable message data and/or access usage
data received from CLEC for distribution to
the appropriate billing and/or processing
location or for delivery to CLEC of such
data via SBC-SWBT's and SBC-AMERITECH's
internal network or the nationwide CMDS
network pursuant to the applicable Appendix
HOST, which IS/ARE attached hereto and
incorporated herein by reference.
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45.7.5 OPERATOR SERVICES (OS)
45.7.5.1 SBC-13STATE shall provide nondiscriminatory
access to Operator Services under the terms
and conditions identified in the applicable
Appendix OS, which IS/ARE attached hereto
and incorporated herein by reference.
45.7.6 SIGNALING SYSTEM 7 INTERCONNECTION
45.7.6.1 At CLEC's request, SBC-13STATE shall perform
SS7 interconnection services for CLEC
pursuant to the applicable Appendix SS7,
which IS/ARE attached hereto and
incorporated herein by reference.
45.7.7 PUBLISHING AND DIRECTORY
45.7.7.1 SBC-13STATE will make nondiscriminatory
access to Publishing and Directory service
available under the terms and conditions of
the applicable Appendix White Pages, which
IS/ARE attached hereto and incorporated
herein by reference.
45.7.8 RESALE--SECTIONS 251(B)(1)
45.7.8.1 SBC-13STATE shall provide to CLEC
Telecommunications Services for resale at
wholesale rates pursuant to the applicable
Appendix Resale, which IS/ARE attached
hereto and incorporated herein by reference.
45.7.9 TRANSMISSION AND ROUTING OF SWITCHED ACCESS TRAFFIC
PURSUANT TO 251(C)(2)
45.7.9.1 SBC-13STATE shall provide to CLEC certain
trunk groups (Meet Point Trunks) under
certain parameters pursuant to the
applicable Appendix ITR, which IS/ARE
attached hereto and incorporated herein by
reference.
45.7.10 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE
SERVICE TRAFFIC PURSUANT TO SECTION 251(C)(2)(D);
252(D)(1) AND (2); 47 CFR SECTIN 51.305(A)(5).
45.7.10.1The applicable Appendix Compensation, which
IS/ARE attached hereto and incorporated
herein by reference, prescribe traffic
routing parameters for Local Interconnection
Trunk Group(s) the Parties shall establish
over the Interconnections specified in the
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applicable Appendix ITR, which IS/ARE
attached hereto and incorporated herein by
reference.
45.7.11UNBUNDLED NETWORK ELEMENTS -- SECTIONS 251(C)(3)
45.7.11.1Pursuant to the applicable Appendix UNE,
which IS/ARE attached hereto and
incorporated herein by reference,
SBC-13STATE will provide CLEC access to
Unbundled Network elements for the provision
of Telecommunications Service as required by
Sections 251 and 252 of the Act and in the
Appendices hereto. CLEC agrees to provide
access to its Network Elements to
SBC-13STATE under the same terms, conditions
and prices contained herein and in the
applicable Appendices hereto.
46. AUTHORITY
46.1 Each of the SBC Parties represents and warrants that it is a
corporation duly organized, validly existing and in good
standing under the laws of their respective states of
incorporation. SBC COMMUNICATIONS INC., represents and
warrants that it has full power and authority to execute and
deliver this Agreement as agent for the SBC Parties. Each of
the SBC Parties that is an ILEC represents and warrants that
it has full power and authority to perform its obligations
hereunder.
46.2 CLEC represents and warrants that it is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware and has full power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder. CLEC represents and warrants that it
has been or will be certified as a LEC by the Commission(s)
prior to submitting any orders hereunder and is or will be
authorized to provide the Telecommunications Services
contemplated hereunder in the territory contemplated hereunder
prior to submission of orders for such Service.
46.3 Each Person whose signature appears below represents and
warrants that he or she has authority to bind the Party on
whose behalf he or she has executed this Agreement.
47. COUNTERPARTS
47.1 This Agreement may be executed in counterparts. Each
counterpart shall be considered an original and such
counterparts shall together constitute one and the same
instrument.
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48. ENTIRE AGREEMENT
48.1 SBC-12STATE
48.1.1 The terms contained in this Agreement and any
Appendices, Attachments, Exhibits, Schedules, and
Addenda constitute the entire agreement between the
Parties with respect to the subject matter hereof,
superseding all prior understandings, proposals and
other communications, oral or written.
48.2 SNET
48.2.1 The terms contained in this Agreement and any
Appendices, Attachments, Exhibits, Schedules,
Addenda, Commission approved tariffs and other
documents or instruments referred to herein and
incorporated into this Agreement by reference
constitute the entire agreement between the Parties
with respect to the subject matter hereof,
superseding all prior understandings, proposals and
other communications, oral or written.
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SBC-13STATE AGREEMENT
SIGNATURES
BIRCH TELECOM OF OKLAHOMA, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
BY SBC TELECOMMUNICATIONS, INC.,
ITS AUTHORIZED AGENT
Signature: /s/ Gregory C. Lawhon Signature: /s/ Larry B. Cooper
-------------------------- --------------------------
Name: Gregory C. Lawhon Name: Larry B. Cooper
------------------------------- -------------------------------
(Print or Type) (Print or Type)
Title: Senior Vice President Title: President - Industry Markets
------------------------------
(Print or Type)
Date: January 24, 2000 Date: January 27, 2000
------------------------------- -----------------------------
AECN/OCN#
--------------------------
(Facility Based - if applicable)