Interconnection Agreement-Oklahoma - Southwestern Bell Telephone Co. and Birch Telecom of Oklahoma Inc.
INTERCONNECTION AGREEMENT-OKLAHOMA
between
Southwestern Bell Telephone Company
and
Birch Telecom of Oklahoma, Inc.
<PAGE>
TABLE OF CONTENTS
INTERCONNECTION AGREEMENT-OKLAHOMA
BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
BIRCH TELECOM OF OKLAHOMA, INC.
1. INTRODUCTION.............................................................2
2. EFFECTIVE DATE...........................................................3
3. DEPOSITS.................................................................3
4. TERM OF AGREEMENT........................................................6
5. ASSIGNMENT...............................................................8
6. CONFIDENTIALITY AND PROPRIETARY INFORMATION..............................8
7. LIABILITY AND INDEMNIFICATION...........................................10
8. PAYMENT OF RATES AND CHARGES............................................14
9. DISPUTE RESOLUTION......................................................15
10. TERMINATION OF SERVICE TO CLEC..........................................17
11. NOTICES.................................................................18
12. TAXES...................................................................19
13. FORCE MAJEURE...........................................................21
14. PUBLICITY...............................................................21
15. NETWORK MAINTENANCE AND MANAGEMENT......................................21
16. LAW ENFORCEMENT AND CIVIL PROCESS.......................................22
17. CHANGES IN SUBSCRIBER CARRIER SELECTION.................................23
18. AMENDMENTS OR WAIVERS...................................................23
19. AUTHORITY...............................................................25
20. BINDING EFFECT..........................................................25
21. CONSENT.................................................................25
22. EXPENSES................................................................25
23. HEADINGS................................................................25
24. RELATIONSHIP OF PARTIES.................................................25
25. CONFLICT OF INTEREST....................................................26
26. MULTIPLE COUNTERPARTS...................................................26
27. THIRD PARTY BENEFICIARIES...............................................26
28. REGULATORY APPROVAL.....................................................26
29. TRADEMARKS AND TRADE NAMES..............................................26
30. REGULATORY AUTHORITY....................................................26
31. COMMISSION INTERPRETATION OF SAME OR SUBSTANTIVELY SIMILAR LANGUAGE.....27
32. VERIFICATION REVIEWS....................................................28
33. COMPLETE TERMS..........................................................29
34. COOPERATION ON PREVENTING END USER FRAUD................................29
35. NOTICE OF NETWORK CHANGES...............................................30
36. GOOD FAITH PERFORMANCE..................................................30
37. RESPONSIBILITY OF EACH PARTY............................................30
38. TRANSMISSION OF TRAFFIC TO THIRD PARTIES................................30
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39. GOVERNMENTAL COMPLIANCE.................................................31
40. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION..........................31
41. SUBCONTRACTING..........................................................33
42. REFERENCED DOCUMENTS....................................................33
43. SEVERABILITY............................................................34
44. SURVIVAL OF OBLIGATIONS.................................................34
45. GOVERNING LAW...........................................................34
46. PERFORMANCE CRITERIA....................................................34
47 OTHER OBLIGATIONS OF CLEC...............................................34
48. DIALING PARITY; INTERIM NUMBER PORTABILITY..............................35
49. BRANDING................................................................35
50. CUSTOMER INQUIRIES......................................................35
51. DISCLAIMER OF WARRANTIES................................................35
52. NO WAIVER...............................................................36
53. DEFINITIONS.............................................................36
54. RESALE..................................................................36
55. UNBUNDLED NETWORK ELEMENTS..............................................36
56. ORDERING AND PROVISIONING, MAINTENANCE, CONNECTIVITY BILLING
AND REORDERING, AND PROVISION OF CUSTOMER USAGE DATA....................36
57. NETWORK INTERCONNECTION ARCHITECTURE....................................37
58. COMPENSATION FOR DELIVERY OF TRAFFIC....................................37
59. ANCILLARY FUNCTIONS.....................................................37
60. SEPARATE AFFILIATE COMMITMENTS..........................................37
61. OTHER REQUIREMENTS AND ATTACHMENTS......................................38
ATTACHMENTS
RESALE
Attachment 1: Resale
Appendix Services/Pricing
Exhibit A: SWBT's Telecommunications Services Available
for Resale
Exhibit B: SWBT's Other Services Available for Resale
Appendix Customized Routing-Resale
Appendix DA-Resale
Appendix OS-Resale
Appendix White Pages (WP)-Resale
Attachment 2: Ordering and Provisioning-Resale
Attachment 3: Maintenance-Resale
Attachment 4: Connectivity Billing-Resale
Attachment 5: Provision of Customer Usage Data-Resale
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UNBUNDLED NETWORK ELEMENTS
Attachment 6: Unbundled Network Elements (UNE)
Appendix Pricing-UNE
Appendix Pricing-UNE Schedule of Prices
Attachment 7: Ordering and Provisioning-UNE
Attachment 8: Maintenance-UNE
Attachment 9: Billing-Other
Attachment 10: Provision of Customer Usage Data-UNE
NETWORK INTERCONNECTION ARCHITECTURE AND COMPENSATION
Attachment 11: Network Interconnection Architecture
Appendix Interconnection Trunking Requirement (ITR)
Appendix Network Interconnection Methods (NIM)
Appendix SS7 Interconnection
Attachment 12: Compensation
Appendix Cellular
Appendix FGA
ANCILLARY FUNCTIONS
Attachment 13: Ancillary Functions
Appendix Collocation
Appendix Poles, Conduit, ROW
OTHER REQUIREMENTS
Attachment 14: Interim Number Portability
Appendix Location Routing Number - PNP
Attachment 15: E911
Attachment 16: Network Security and Law Enforcement
Attachment 17: Performance Remedy Plan
Appendix Measurements Subject to Per Occurrence Damages or
Assessment with a Cap and Measurements Subject to Per Measure
Damages or Assessment
Appendix Performance Measures Subject to
Tier-1 and Tier-2 Damages Identified as High, Medium and Low
Appendix 3 Performance Measurement Business Rules (Version 1.7)
Attachment 18: Mutual Exchange of Directory Listing Information
Attachment 19: White Pages-Other (WP-O)
Attachment 20: Clearinghouse
Attachment 21: Numbering
Attachment 22: DA-Facilities Based
Attachment 23: OS-Facilities Based
Attachment 24: Recording-Facilities Based
Attachment 25: DSL
Attachment 26: Legitimately Related Provisions
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INTERCONNECTION AGREEMENT - OKLAHOMA
This Interconnection Agreement - OKLAHOMA (Agreement) is between Birch
Telecom of Oklahoma, Inc. ("CLEC"), a Delaware corporation, having an office at
2020 Baltimore Ave., Kansas City, MO, 64108, and Southwestern Bell Telephone
Company (SWBT), a Missouri corporation, having an office at 1010 Pine Street,
St. Louis, Missouri 63101, (collectively the Parties).
WHEREAS, pursuant to the Telecommunications Act of 1996 (the Act), the
Parties wish to establish terms for the resale of SWBT services and for the
provision by SWBT of Interconnection, unbundled Network Elements, and Ancillary
Functions as designated in the Attachments hereto.
WHEREAS, in Texas SWBT participated in a collaborative process with the
Public Utility Commission of Texas ("Texas PUC", "Commission", or "Texas
Commission") and numerous competitive local exchange carriers ("CLECs") as part
of the process for SWBT to obtain in-region interLATA authority in Texas.
WHEREAS, SWBT hereby files an Oklahoma 271 Interconnection Agreement
("Oklahoma Agreement" or "O2A") modeled on the Texas 271 Interconnection
Agreement ("Texas Agreement" or "T2A"), in order to bring more of the benefits
of competition to the State of Oklahoma, and to bring the commitments made by
SWBT in Texas to the State of Oklahoma, with Oklahoma-specific modifications,
subject to the Oklahoma Corporation Commission's ("OCC", or "Commission", or
Oklahoma Commission") support for SWBT application for in-region interLATA
relief for the State of Oklahoma; and
WHEREAS, in Texas SWBT made the following representations as part of
the public interest phase of the Texas collaborative process , and, subject to
Oklahoma-specific arbitrations, appeals, conditions and commitments, makes these
same representations in Oklahoma, subject to the Oklahoma Corporation
Commission's approval of SWBT's application for in-region interLATA relief for
the State of Oklahoma:
(1) SWBT represented that it has already made several, and
represented that it would continue, process improvements
designed to foster better relationships with and provide
better service to its CLEC customers (such improvements
include, but are not limited to: the restructuring of its
organizations and the creation of new departments to provide
faster and better responses to CLECs; the improvement of
communications with CLECs through a greatly expanded Internet
website, internal broadcast e-mails and user group meetings;
the distribution of customer satisfaction surveys; and the
creation of an Internal Escalation Process Intervals Policy);
(2) SWBT represented that it would follow certain Commission's
arbitration awards and other decisions, as set forth elsewhere
in this Agreement (SWBT, however,
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made such commitment without waiving its right to appeal
awards or decisions specifically set forth in this Section
18.1, 18.2, and 18.3 of General Terms and Conditions);
(3) SWBT represented that it would continue to work with its CLEC
customers, and invite their feedback, to provide them a
meaningful opportunity to compete in Texas ;
(4) SWBT represented that it will comply with the FCC's rules and
subsequent Section 271 decisions relating to the structural
and nonstructural requirements for a Section 272 affiliate;
WHEREAS SWBT offered as part of said Texas collaborative process to
make certain modifications to the Interconnection Agreement-Texas between
Southwestern Bell Telephone Company and AT&T Communications of the Southwest,
Inc. ("the AT&T Interconnection Agreement") available to other CLECs, and now
offers the bring those same modifications subject to certain additional
Oklahoma-specific modifications, to the State of Oklahoma, subject to the
Oklahoma Corporation Commission's approval of SWBT's application for in-region
interLATA relief for the State of Oklahoma.
WHEREAS, CLEC wishes to enter an agreement containing those terms and
conditions.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of this Agreement CLEC and SWBT hereby agree as follows:
1.0 INTRODUCTION
1.1 This Agreement sets forth the terms, conditions and prices under which
SWBT agrees to provide (a) services for resale (hereinafter referred to
as Resale services), (b) unbundled Network Elements, or combinations of
such Network Elements (Combinations), (c) Ancillary Functions and (d)
Interconnection to CLEC. This Agreement also sets forth the terms and
conditions for the interconnection of CLEC's network to SWBT's network
and reciprocal compensation for the transport and termination of
telecommunications.
1.2 The Network Elements, Combinations or Resale services provided pursuant
to this Agreement may be connected to other Network Elements,
Combinations or Resale services provided by SWBT or to any network
components provided by CLEC itself or by any other vendor. Subject to
the requirements of this Agreement, CLEC may at any time add, delete,
relocate or modify the Resale services, Network Elements or
Combinations purchased hereunder.
1.3 Except as provided in this Agreement, during the term of this
Agreement, SWBT will not discontinue, as to CLEC, any Network Element,
Combination, or Ancillary Functions offered to CLEC hereunder. During
the term of this Agreement, SWBT will not
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discontinue any Resale services or features offered to CLEC hereunder
except as provided in this Agreement. This Section is not intended to
impair SWBT's ability to make changes in its Network, so long as such
changes are consistent with the Act and do not result in the
discontinuance of the offerings of Network Elements, Combinations, or
Ancillary Functions made by SWBT to CLEC as set forth in and during
the terms of this Agreement.
1.4 SWBT may fulfill the requirements imposed upon it by this Agreement by
itself or may cause its Affiliates to take such actions to fulfill the
responsibilities.
1.5 This Agreement includes and incorporates herein the Attachments listed
in Section 61 of this Agreement, and all accompanying Appendices,
Addenda and Exhibits.
1.6 Unless otherwise provided in the Agreement, SWBT will perform all of
its obligations concerning its offering of Resale services and
unbundled Network Elements under this Agreement throughout the entire
service area where SWBT is the incumbent local exchange carrier;
provided, that SWBT's obligations to provide Ancillary Functions or to
meet other requirements of the Act covered by this Agreement are not
necessarily limited to such service areas.
2.0 EFFECTIVE DATE
2.1 Any CLEC that wants to accept this entire Agreement, after the Oklahoma
Corporation Commission has issued an order finding that this agreement
satisfies the competitive checklist under 47 U. S. C. Section 271(c)
shall notify SWBT in writing. Within 5 business days of such
notification, SWBT shall present the CLEC with a signed Interconnection
Agreement substantively identical to this Agreement. Within 5 business
days of receipt of the SWBT signed Interconnection Agreement, the CLEC
shall sign the Interconnection Agreement and file it with this
Commission. The signed Interconnection Agreement between SWBT and the
CLEC shall become effective upon approval of the Commission (the
"Effective Date").
3.0 THIS SECTION LEFT BLANK INTENTIONALLY.
4.0 TERM OF AGREEMENT
4.1 This Agreement will become effective as of the Effective Date stated
above, and will expire March 28, 2002, unless the Federal
Communications Commission (FCC) approves SWBT's application to provide
in-region interLATA service in Oklahoma under 47 U.S.C. Section 271 by
January 31, 2001, in which event the terms of this Agreement will
automatically be extended until September 28, 2004. In the event the
FCC approves SWBT's application to provide in-region interLATA service
in Oklahoma under 47 U.S.C. Section 271 after January 31, 2001, but
prior to March 28, 2002, SWBT shall have the option of extending the
Agreement until September 28, 2004. In such event, SWBT will
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provide notice to the Commission and to CLEC, within five business
days of FCC approval, of its agreement to extend the Agreement until
September 28, 2004. If either party desires to negotiate a successor
agreement to this Agreement, such party must provide the other party
with a written request to negotiate such successor agreement (Request
to Negotiate) not later than 180 days prior to the expiration of this
Agreement. A Request to Negotiate does not activate the negotiation
timeframe set forth in this Agreement, nor does it shorten the life of
this Agreement. The noticing Party will delineate the items desired to
be negotiated. Not later than 30 days from receipt of said Notice to
Negotiate, the receiving Party will notify the sending Party of
additional items desired to be negotiated, if any. The Parties will
begin negotiations not later than 135 days prior to expiration of this
Agreement. If the FCC approves SWBT's application to provide in-region
interLATA service in Oklahoma after January 31, 2001 and SWBT provides
notice of its agreement under this Section to extend the Agreement
until September 28, 2004, CLEC may withdraw its Request to Negotiate.
4.1.1 This Agreement will not go into effect until the Oklahoma Corporation
Commission has issued an Order finding that this agreement satisfies
the competitive checklist under 47 U.S.C. Section 271(c) and
supporting SWBT's application for in-region interLATA relief for the
State of Oklahoma. SWBT's offering of this Agreement and all sections,
attachments and offerings therein are expressly conditioned upon the
Oklahoma Corporation Commission's support for SWBT's application for
in-region interLATA relief for the State of Oklahoma. If the Oklahoma
Corporation Commission does not support SWBT's application for
in-region interLATA relief for the State of Oklahoma, then SWBT's
offering of this Agreement and all sections, attachments and offerings
therein is immediately withdrawn and this Agreement will not go into
effect.
4.1.2 Should CLEC opt to incorporate any provision of another interconnection
agreement into this Agreement pursuant to Section 252(i) of the Act,
such incorporated provision shall expire on the date it would have
expired under the interconnection agreement from which it was taken.
Should CLEC opt to incorporate any provision of this Agreement into
another interconnection agreement pursuant to Section 252(i) of the
Act, the provision from this Agreement shall expire on the date
provided in Section 4.1 above and shall not control the expiration date
of the provisions of the other interconnection agreement.
4.2 If either party has served a Notice to Negotiate pursuant to paragraph
4.1 above then, notwithstanding the expiration of the Agreement in
accordance with paragraph 4.1 above, the terms, conditions, and prices
of this Agreement will remain in effect for a maximum of 135 days after
expiration of the Agreement for completion of said negotiations and any
necessary arbitration. The Parties agree to resolve any impasse by
submission of the disputed matters to the Oklahoma OCC for arbitration.
Should the OCC decline jurisdiction, the Parties will resort to a
commercial provider of arbitration services.
4.2.1 Pursuant to Sections 18.2 and 18.3, SWBT and CLEC agree not to
challenge the lawfulness of any provision of this Agreement. In the
event that one of the Parties to this
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Agreement nonetheless challenges the lawfulness of any provision of
this Agreement in a judicial, dispute resolution, or regulatory
proceeding, then the other Party, at its option, may terminate this
Agreement immediately. In such event, the Parties shall have a period
not to exceed 135 days in which to negotiate, and 135 additional days
to arbitrate any disputes for, a replacement interconnection
agreement. However, should a non-party successfully challenge the
lawfulness of any provision of this Agreement, SWBT and CLEC agree
that, despite such challenge, the terms and conditions of this
Agreement will continue to apply and be effective between SWBT and
CLEC. Nothing in this Section 4.2.1 is intended to imply that pursuit
of resolution of disputes concerning a Party's clarifications or
interpretations of the provisions of this Agreement, as provided in
Sections 18.2 and 18.3, is a challenge to the lawfulness of this
Agreement.
4.3 Upon termination of this Agreement, CLEC's liability will be limited to
payment of the amounts due for Network Elements, Combinations,
Ancillary Functions and Resale Services provided up to and including
the date of termination and thereafter as reasonably requested by CLEC
to prevent service interruption, but not to exceed 135 days after the
expiration of this agreement to allow for completion of negotiations,
and any arbitration for, a successor agreement (such 135 day
negotiation/arbitration period being in addition to the pre-expiration
negotiation period of a minimum of 135 days, as provided for in Section
4.1 above). The Network Elements, Combinations, Ancillary Functions and
Resale services provided hereunder are vital to CLEC and must be
continued without interruption. When CLEC provides or retains another
vendor to provide such comparable Network Elements, Combinations,
Ancillary Functions or Resale services, SWBT and CLEC agree to
co-operate in an orderly and efficient transition to CLEC or another
vendor. SWBT and CLEC further agree to coordinate the orderly
transition to CLEC or another vendor such that the level and quality of
the Network Elements, Combinations, Ancillary Functions and Resale
Services is not degraded and each Party will exercise its best efforts
to effect an orderly and efficient transition.
5.0 ASSIGNMENT
5.1 Neither Party hereto may assign or otherwise transfer its rights or
obligations under this Agreement, except with the prior written consent
of the other Party hereto, which consent will not be unreasonably
withheld; provided, that SWBT may assign its rights and delegate its
benefits and delegate its duties and obligations under this Agreement
without the consent of CLEC to a 100 per cent owned affiliate of SWBT,
provided the performance of any such assignee is guaranteed by the
assignor. Nothing in this Section is intended to impair the right of
either Party to utilize subcontractors.
5.2 Each Party will notify the other in writing not less than 60 days in
advance of anticipated assignment.
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6.0 CONFIDENTIALITY AND PROPRIETARY INFORMATION.
6.1 For the purposes of this Agreement, "Confidential Information" means
confidential or proprietary technical or business information given by
the Discloser to the Recipient. All information which is disclosed by
one party to the other in connection with this Agreement, during
negotiations and the term of this Agreement, will automatically be
deemed proprietary to the Discloser and subject to this Agreement,
unless otherwise confirmed in writing by the Discloser. In addition, by
way of example and not limitation, all orders for Resale Services,
Network Elements or Combinations placed by CLEC pursuant to this
Agreement, and information that would constitute Customer Proprietary
Network Information of CLEC's customers pursuant to the Act and the
rules and regulations of the Federal Communications Commission (FCC),
and Recorded Usage Data as described in Attachments 5 and 10 concerning
Recorded Usage Data, whether disclosed by CLEC to SWBT or otherwise
acquired by SWBT in the course of the performance of this Agreement,
will be deemed Confidential Information of CLEC for all purposes under
this Agreement.
6.2 For a period of five (5) years from the receipt of Confidential
Information from the Discloser, except as otherwise specified in this
Agreement, the Recipient agrees (a) to use it only for the purpose of
performing under this Agreement, (b) to hold it in confidence and
disclose it to no one other than its employees having a need to know
for the purpose of performing under this Agreement, and (c) to
safeguard it from unauthorized use or disclosure using at least the
same degree of care with which the Recipient safeguards its own
Confidential Information. If the Recipient wishes to disclose the
Discloser's Confidential Information to a third-party agent or
consultant, such disclosure must be agreed to in writing by the
Discloser, and the agent or consultant must have executed a written
agreement of nondisclosure and nonuse comparable in scope to the terms
of this Section.
6.3 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations under this Agreement.
All such copies will be subject to the same restrictions and
protections as the original and will bear the same copyright and
proprietary rights notices as are contained on the original.
6.4 The Recipient agrees to return all Confidential Information in tangible
form received from the Discloser, including any copies made by the
Recipient within thirty (30) days after a written request is delivered
to the Recipient, or to destroy all such Confidential Information if
directed to do so by Discloser except for Confidential Information that
the Recipient reasonably requires to perform its obligations under this
Agreement. If either Party loses or makes an unauthorized disclosure of
the other Party's Confidential Information, it will notify such other
party immediately and use reasonable efforts to retrieve the lost or
wrongfully disclosed information.
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6.5 The Recipient will have no obligation to safeguard Confidential
Information: (a) which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser, (b) after it
becomes publicly known or available through no breach of this Agreement
by the Recipient; (c) after it is rightfully acquired by the Recipient
free of restrictions on its disclosure; or (d) after it is
independently developed by personnel of the Recipient to whom the
Discloser's Confidential Information had not been previously disclosed.
In addition, either Party will have the right to disclose Confidential
Information to any mediator, arbitrator, state, or federal regulatory
body, or a court in the conduct of any mediation, arbitration or
approval of this Agreement, so long as, in the absence of an applicable
protective order, the Discloser has been promptly notified by the
Recipient and so long as the Recipient undertakes all lawful measures
to avoid disclosing such information until Discloser has had reasonable
time to negotiate a protective order with any such mediator,
arbitrator, state or regulatory body or a court, and complies with any
protective order that covers the Confidential Information.
6.6 The Parties acknowledge that an individual end user may simultaneously
seek to become or be a customer of both Parties. Nothing in this
Agreement is intended to limit the ability of either Party to use
customer specific information lawfully obtained from end users or
sources other than the Disclosing Party.
6.7 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration or termination of this Agreement will
survive such expiration or termination.
6.8 Except as otherwise expressly provided elsewhere in this Agreement, no
license is hereby granted under any patent, trademark, or copyright,
nor is any such license implied solely by virtue of the disclosure of
any Confidential Information.
6.9 Each Party agrees that the Discloser may be irreparably injured by a
disclosure in breach of this Agreement by the Recipient or its
representatives and the Discloser will be entitled to seek equitable
relief, including injunctive relief and specific performance, in the
event of any breach or threatened breach of the confidentiality
provisions of this Agreement. Such remedies will not be deemed to be
the exclusive remedies for a breach of this Agreement, but will be in
addition to all other remedies available at law or in equity.
7.0 LIABILITY AND INDEMNIFICATION
7.1 LIMITATION OF LIABILITIES
7.1.1 Except as specifically provided in Attachment 25 DSL-OK, the Parties'
liability to each other during any Contract Year resulting from any
and all causes, other than as specified below in Sections 7.3.1 and
7.3.3, following, and for willful or intentional misconduct (including
gross negligence), will not exceed the total of any amounts due and
owing to CLEC pursuant to Section 46 (Performance Criteria) and the
Attachment referenced in that Section, plus the amounts charged to
CLEC by SWBT under this Agreement during
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the Contract Year in which such cause accrues or arises. For purposes
of this Section, the first Contract Year commences on the first day
this Agreement becomes effective and each subsequent Contract Year
commences on the day following that anniversary date.
7.1.2 Except for losses alleged or made by an end user of either Party, or
except as otherwise provided in specific appendices, in the case of any
loss alleged or made by a third party arising under the negligence or
willful misconduct of both Parties, each Party shall bear, and its
obligation under this section shall be limited to, that portion (as
mutually agreed to by the Parties) 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.
7.2 NO CONSEQUENTIAL DAMAGES
7.2.1 EXCEPT AS OTHERWISE PROVIDED IN ATTACHMENT 17, NEITHER CLEC NOR SWBT
WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL
CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES SUFFERED BY SUCH OTHER
PARTY (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST
REVENUES, LOST SAVINGS, OR LOST PROFITS SUFFERED BY SUCH OTHER
PARTIES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT,
WARRANTY, STRICT LIABILITY, OR TORT, INCLUDING WITHOUT LIMITATION,
NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE, AND REGARDLESS OF
WHETHER THE PARTIES KNEW OF THE POSSIBILITY THAT SUCH DAMAGES COULD
RESULT. EACH PARTY HEREBY RELEASES THE OTHER PARTY (AND SUCH OTHER
PARTY'S SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AND AGENTS) FROM ANY SUCH CLAIM. NOTHING
CONTAINED IN THIS SECTION WILL LIMIT SWBT'S OR CLEC'S LIABILITY TO THE
OTHER FOR (i) WILLFUL OR INTENTIONAL MISCONDUCT (INCLUDING GROSS
NEGLIGENCE); (ii) BODILY INJURY, DEATH, OR DAMAGE TO TANGIBLE REAL OR
TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY SWBT OR CLEC'S
NEGLIGENT ACT OR OMISSION OR THAT OF THEIR RESPECTIVE AGENTS,
SUBCONTRACTORS OR EMPLOYEES, NOR WILL ANYTHING CONTAINED IN THIS
SECTION LIMIT THE PARTIES INDEMNIFICATION OBLIGATIONS, AS SPECIFIED
BELOW.
7.3 OBLIGATION TO INDEMNIFY
7.3.1 Each Party will and hereby agrees to defend at the other's request,
indemnify, and hold harmless the other Party and each of its officers,
directors, employees, and agents (each, an Indemnitee) against and in
respect of any loss, debt, liability, damage, obligation, claim,
demand, judgment, or settlement of any nature or kind, known or
unknown, liquidated or unliquidated, including without limitation all
reasonable costs and expenses incurred (legal, account or otherwise)
(collectively, Damages) arising out of, resulting
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from, or based upon any pending or threatened claim, action,
proceeding or suit by any third party (a Claim) (i) alleging any
omissions, breach of any representation, warranty, or covenant made by
such indemnifying Party (the Indemnifying Party) in this Agreement,
(ii) based upon injuries or damages to any person or property or the
environment arising out of or in connection with this Agreement that
are the result of the Indemnifying Party's actions, breach of
Applicable Law, or the actions, omissions or status of its employees,
agents, and subcontractors.
7.3.1.1 In the case of any loss alleged or made by an end user
of either Party, the Party whose end user alleged or made such
loss (Indemnifying Party) shall defend and indemnify the other
party (Indemnified Party) against any and all such claims or
loss by its end users regardless of whether the underlying
service was provided or unbundled element was provisioned by
the Indemnified Party, unless the loss was caused by the gross
negligence or intentional or willful misconduct or breach of
applicable law of the other (Indemnified) Party.
7.3.2 CLEC acknowledges that its right under this Agreement to interconnect
with SWBT's Oklahoma network and to unbundle and/or combine SWBT's
network elements (including combining with CLEC's network elements) may
be subject to or limited by Intellectual Property rights (including
without limitation, patent, copyright, trade secret, trade mark,
service mark, trade name and trade dress rights) and contract rights of
third parties.
7.3.3 The Parties acknowledge that on April 27, 2000, the FCC released its
Memorandum Opinion and Order in CC Docket No. 96-98 (File No. CCBPol.
97-4), IN THE MATTER OF PETITION OF MCI FOR DECLARATORY RULING. 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 decision and any remand thereof, including its right to
seek legal review or a stay pending appeal of such decision.
7.3.3.1 SWBT agrees to use its best efforts to obtain for CLEC, under
commercially reasonable terms, Intellectual Property rights to
each unbundled network element necessary for CLEC to use such
unbundled network element in the same manner as SWBT.
7.3.3.2 SWBT shall have no obligation to attempt to obtain for CLEC
any Intellectual Property right(s) that would permit CLEC to
use any unbundled network element in a different manner than
used by SWBT.
7.3.3.3 For all Intellectual Property associated with unbundled
network elements that is owned or licensed to SWBT by third
parties, SWBT agrees to reveal to CLEC the specific facilities
or equipment associated with such Intellectual Property, the
name of the third party vendor, the Intellectual Property
rights licensed to
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SWBT under the vendor contract and the relevant terms of the
contract (excluding cost terms). The parties agree that
nondisclosure provisions in vendor contracts may preclude
SWBT from disclosing contract terms to CLEC, however, SWBT
shall exercise its best efforts to negotiate among the
parties a reasonable means of disclosing such information
without violating the terms of any confidentiality
agreements.
7.3.4 SWBT hereby conveys no licenses to use such Intellectual Property
rights and makes no warranties, express or implied, concerning CLEC's
(or any third party's) 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 SWBT's network or CLEC's use of other functions,
facilities, products or services furnished under this Agreement. Any
licenses or warranties for Intellectual Property rights associated
with unbundled network elements are vendor licenses and warranties and
are a part of the Intellectual Property rights SWBT agrees in Section
7.3.3.1 to use its best efforts to obtain.
7.3.5 SWBT 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 Damages 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 SWBT's network and unbundling and/or
combining SWBT'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. Any indemnities
for Intellectual Property rights associated with unbundled network
elements shall be vendor's indemnities and are a part of the
Intellectual Property rights SWBT agrees in Section 7.3.3.1 to use its
best efforts to obtain.
7.3.6 CLEC hereby agrees to release, indemnify and hold SWBT harmless from
and against all Damages arising out of, caused by, or relating to any
Claim that CLEC's interconnection with SWBT's network, or CLEC's use of
SWBT's network elements, or unbundling and/or combining of SWBT'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
rights of third parties.
7.3.7 Both parties agree to promptly inform the other of any pending or
threatened Intellectual Property Claims of third parties that may arise
in the performance of this Agreement.
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7.3.8 All costs associated with the extension of Intellectual Property rights
to CLEC pursuant to Section 7.3.3.1, including the cost of the license
extension itself and the costs associated with the effort to obtain the
license, shall be a part of the cost of providing the unbundled network
element to which the Intellectual Property rights relate and
apportioned to all requesting carriers using that unbundled network
element including SWBT.
7.4 OBLIGATION TO DEFEND; NOTICE; COOPERATION
7.4.1 Whenever a Claim will arise for indemnification under this Section,
the relevant Indemnitee, as appropriate, will promptly notify the
Indemnifying party and request the Indemnifying Party to defend the
same. Failure to so notify the Indemnifying Party will 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. The Indemnifying
Party will have the right to defend against such liability or
assertion in which event the Indemnifying Party will give written
notice to the Indemnitee of acceptance of the defense of such Claim
and the identity of counsel selected by the Indemnifying Party. Except
as set forth below, such notice to the relevant Indemnitee will give
the Indemnifying Party full authority to defend, adjust, compromise,
or settle such Claim with respect to which such notice will have been
given, except to the extent that any compromise or settlement might
prejudice the Intellectual Property Rights of the relevant
Indemnities. The Indemnifying Party will consult with the relevant
Indemnitee prior to any compromise or settlement that would affect the
Intellectual Property Rights or other rights of any Indemnitee, and
the relevant Indemnitee will have the right to refuse such compromise
or settlement and, at the refusing Party's or refusing Party's cost,
to take over such defense, provided that in such event the
Indemnifying Party will not be responsible for, nor will it be
obligated to indemnify the relevant Indemnitee against any cost or
liability in excess of such refused compromise or settlement. With
respect to any defense accepted by the Indemnifying Party, the
relevant Indemnitee 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 Indemnitee
and also will be entitled to employ separate counsel for such defense
at such Indemnitee's expense. In the event the Indemnifying Party does
not accept the defense of any indemnified Claim as provided above, the
relevant Indemnitee will have the right to employ counsel for such
defense at the expense of the Indemnifying Party. 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.
7.5 OSHA STATEMENT
7.5.1 CLEC, in recognition of SWBT's status as an employer, agrees to abide
by and to undertake the duty of compliance on behalf of SWBT with all
federal, state and local laws, safety and health regulations relating
to CLEC's activities concerning Collocated Space, and to indemnify and
hold SWBT harmless for any judgments, citations, fines, or
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other penalties which are assessed against SWBT as the result solely
of CLEC's failure to comply with any of the foregoing. SWBT, in its
status as an employer, will comply with all federal, state and local
laws, safety and health standards and regulations with respect to all
other portions of the Premises, and agrees to indemnify and hold CLEC
harmless for any judgments, citations, fines or other penalties which
are assessed against CLEC as a result solely of SWBT's failure to
comply with any of the foregoing.
8.0 PAYMENT OF RATES AND CHARGES
8.1 Except as otherwise specifically provided elsewhere in this Agreement,
the Parties will pay all rates and charges due and owing under this
Agreement within thirty (30) days of receipt of an invoice.
8.2 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
SWBT as of the Bill Due Date (individually and collectively, "PAST
DUE"), then a late payment charge shall be assessed as provided in
Sections 8.2.1 through 8.2.2, as applicable.
8.2.1 If any charge incurred under this Agreement that is billed out of any
SWBT billing system other than the 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 SWBT 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.
8.2.2 If any charge incurred under this Agreement that is billed out of
SWBT's CRIS is Past Due, the unpaid amounts shall bear interest from
the Bill Due Date until paid. The interest rate applied to 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
SWBT intrastate retail Commission-approved tariff governing Late
Payment Charges to SWBT's retail End Users that are business End Users
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.
9.0 DISPUTE RESOLUTION
9.1 FINALITY OF DISPUTES
9.1.1 Except as otherwise specifically provided in this Agreement, no claims
will be brought for disputes arising from this Agreement more than 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.
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9.2 ALTERNATIVE TO LITIGATION
9.2.1 The Parties desire to resolve disputes arising out of this Agreement
without litigation. Accordingly, except for action seeking a temporary
restraining order or an injunction related to the purposes of this
Agreement, or suit to compel compliance with this Dispute Resolution
process, the Parties agree to use the following Dispute Resolution
procedure with respect to any controversy or claim arising out of or
relating to this Agreement or its breach.
9.3 INFORMAL RESOLUTION OF DISPUTES
9.3.1 In the case of any dispute and at the written request of a Party, 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 informal 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,
which are 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.
9.4 BILLING DISPUTES
9.4.1 The Parties agree that with respect to matters that are purely
unresolved billing disputes, all bills, including bills disputed in
whole or in part, are to be paid when due, that interest applies to all
overdue invoices as set forth in Section 8.1 to this Agreement, and
that no other late payment fee or charge applies to overdue invoices.
The Parties further agree that if any billing dispute is resolved in
favor of the disputing Party the disputing Party will receive, by
crediting or otherwise, interest applied to the disputed amount as set
forth in Section 8.1.
9.4.2 To the extent that any other portions of this Agreement provide for a
bill closure process between the parties, or if such a process is
mutually agreed to by the Parties, the procedures involved in such
processes will not be deemed to place a particular billing item in
dispute for purposes of this Section.
9.4.3 Each Party agrees to notify the other Party of a billing dispute and
may invoke the informal dispute resolution process described in Section
9.2. The parties will endeavor to resolve the dispute within thirty
(30) calendar days of the Bill Date on which such disputed charges
appear, or, if the charges have been subject to the bill closure
process
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described in Section 9.4.2, above, within thirty (30) calendar days of
the closure of the billing period covered by such bill closure
process.
9.5 FORMAL RESOLUTION OF DISPUTES
9.5.1 Except as otherwise specifically set forth in this Agreement, for all
disputes arising out of or pertaining to this Agreement, including but
not limited to matters not specifically addressed elsewhere in this
Agreement which require clarification, renegotiation, modifications or
additions to this Agreement, either party may invoke dispute resolution
procedures available pursuant to the dispute resolution rules, as
amended from time to time, of the Oklahoma Corporation Commission.
Also, upon mutual agreement, the parties may seek commercial binding
arbitration as specified in Section 9.6.
9.5.2 The Parties agree that the Dispute Resolution procedures set forth in
this Agreement are not intended to conflict with applicable
requirements of the Act or the state commission with regard to
procedures for the resolution of disputes arising out of this
Agreement.
9.6 ARBITRATION
9.6.1 When both parties agree to binding arbitration, disputes will be
submitted to a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association or pursuant
to such other provider of arbitration services or rules as the Parties
may agree. The place where each separate arbitration will be held will
alternate between Dallas, Texas, and St. Louis, Missouri, unless the
Parties agree otherwise. The arbitration hearing will be requested to
commence within 60 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 30 days after the
close of hearings. The arbitrator has no authority to order punitive
or consequential damages. 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. The Parties will equally split the fees of
the arbitration and the arbitrator. Judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction.
10.0 TERMINATION OF SERVICE TO CLEC
10.1 Failure of CLEC to pay charges may be grounds for termination of this
Agreement. If CLEC fails to pay when due, any and all charges billed
to them under this Agreement, (Unpaid Charges), and any portion of
such charges remain unpaid more than fifteen (15) calendar days after
the due date of such Unpaid Charges, SWBT will notify CLEC in writing
that in order to avoid having service disconnected, CLEC must remit
all Unpaid Charges, whether disputed or undisputed, to SWBT within
fifteen (15) calendar days
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after receipt of said notice. Disputes hereunder will be resolved in
accordance with the Dispute Resolution Procedures set out in Section 9
of this Agreement.
10.2 If any CLEC charges remain unpaid at the conclusion of the time period
as set forth in Section 10.1 above (30 calendar days from the due date
of such unpaid charges), SWBT will notify CLEC, the appropriate
commission(s) and the end user's IXC(s) of Record in writing, that
unless all charges are paid within fifteen (15) calendar days, CLEC's
service will be disconnected and CLEC's Resale end users may be
switched to SWBT local service. SWBT will also suspend order acceptance
at this time.
10.3 If any CLEC charges remain unpaid or undisputed thirty (30) calendar
days past the due date of the unpaid charges as described in Section
10.2 above, CLEC will, at its sole expense, notify its end users, the
Commission and the end user's IXC of Record that their service may be
disconnected for CLEC failure to pay unpaid charges, and that its end
users must select a new local service provider within fifteen (15)
calendar days. The notice will also advise the Resale end user that
SWBT will assume the Resale end user's account at the end of the
fifteen (15) calendar day period should the end user fail to select a
new local service provider.
10.4 If any CLEC charges remain unpaid or undisputed forty-five (45)
calendar days past the due date, SWBT will disconnect CLEC and transfer
all CLEC's Resale end users who have not selected another local service
provider directly to SWBT's service. These transferred end users will
receive the same services provided through CLEC at the time of
transfer. SWBT will inform the Commission and the end user's IXC(s) of
Record of the names of all end users transferred through this process.
Applicable service establishment charges for switching end users from
CLEC to SWBT will be assessed to CLEC.
10.5 Within five (5) calendar days of the transfer (50 calendar days past
CLEC's due date), SWBT will notify all transferred end users that
because of a CLEC's failure to pay, their service is now being provided
by SWBT. SWBT will also notify the transferred end user that they have
thirty (30) calendar days to select a local service provider. If the
transferred end user does not select an LSP within 30 calendar days the
customer will remain a SWBT local customer.
10.6 SWBT may discontinue service to CLEC upon failure to pay undisputed
charges as provided in this section, and will have no liability to CLEC
in the event of such disconnection.
10.7 After disconnect procedures have begun, SWBT will not accept service
orders from CLEC until all unpaid charges are paid. SWBT will have the
right to require a deposit equal to the average billing to CLEC for a
two (2) month period and the amount of any charges that would be
applicable to transfer all of CLEC's then-existing End-Users of Resale
Services prior to resuming service to CLEC after disconnect for
nonpayment.
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10.8 Beyond the specifically set out limitations in this section, nothing
herein will be interpreted to obligate SWBT to continue to provide
service to any such end users or to limit any and all disconnection
rights SWBT may have with regard to such end users.
11.0 NOTICES
11.1 In the event any notices are required to be sent under the terms of
this Agreement, they may be sent by mail and are deemed to have been
given on the date received. Notice may also be effected by personal
delivery or by overnight courier, and will be effective upon receipt.
Notice may also be provided by facsimile, which will be effective on
the next business day following the date of transmission; provided,
however, notices to a Party's 24-hour maintenance contact number will
be by telephone and/or facsimile and will be deemed to have been
received on the date transmitted. The Parties will provide the
appropriate telephone and facsimile numbers to each other. Unless
otherwise specifically provided in this Agreement, notice will be
directed as follows:
11.2 If to CLEC:
Birch Telecom of Oklahoma, Inc.
Greg Lawhon, Sr. Vice President and General Counsel
2020 Baltimore
Kansas City, MO 64108
11.3 If to SWBT:
Contract Management
ATTN: Notices Manager
Four Bell Plaza, 9th Flr.
311 S. Akard St.
Dallas, Tx 75202-5398
Either Party may unilaterally change its designated representative
and/or address, telephone contact number or facsimile number for the
receipt of notices by giving seven (7) days' prior written notice to
the other Party in compliance with this Section. Any notice or other
communication will be deemed given when received.
12.0 TAXES
12.1 With respect to any purchase of service under this Agreement, if any
Federal, state or local government tax, fee, surcharge, or other
tax-like charge (a "Tax") is required or permitted by applicable law,
ordinance or tariff to be collected from a purchasing Party by the
providing Party, then (i) the providing Party will bill, as a
separately stated item, the purchasing Party for such Tax, (ii) the
purchasing Party will timely remit such Tax to
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the providing Party, and (iii) the providing Party will remit such
collected Tax to the applicable taxing authority.
12.2 If the providing Party does not collect a Tax because the purchasing
Party asserts that it is not responsible for the tax, or is otherwise
excepted from the obligation which is later determined by formal action
to be wrong then, as between the providing Party and the purchasing
Party, the purchasing Party will be liable for such uncollected Tax and
any interest due and/or penalty assessed on the uncollected Tax by the
applicable taxing authority or governmental entity.
12.3 If either Party is audited by a taxing authority or other governmental
entity the other Party agrees to reasonably cooperate with the Party
being audited in order to respond to any audit inquiries in a proper
and timely manner so that the audit and/or any resulting controversy
may be resolved expeditiously.
12.4 If applicable law excludes or exempts a purchase of services under this
Agreement from a Tax, and if such applicable law also provides an
exemption procedure, such as an exemption certificate requirement,
then, if the purchasing Party complies with such procedure, the
providing Party, subject to Section 12.2, will not collect such Tax
during the effective period of the exemption. Such exemption will be
effective upon receipt of the exemption certificate or affidavit in
accordance with Section 12.7.
12.5 If applicable law excludes or exempts a purchase of services under this
Agreement from a Tax, but does not also provide an exemption procedure,
then the providing Party will not collect such Tax if the purchasing
Party (i) furnishes the providing Party with a letter signed by an
officer of the purchasing Party claiming an exemption and identifying
the applicable law which allows such exemption, and (ii) supplies the
providing Party with an indemnification agreement, reasonably
acceptable to the providing Party, which holds the providing Party
harmless on an after-tax basis with respect to forbearing to collect
such Tax.
12.6 With respect to any Tax or Tax controversy covered by this Section 12,
the purchasing Party will be entitled to contest, pursuant to
applicable law, and at its own expense, any Tax that it is ultimately
obligated to pay. The purchasing Party will be entitled to the benefit
of any refund or recovery resulting from such a contest. The providing
Party will cooperate in any such contest.
12.7 All notices, affidavits, exemption certificates or other communications
required or permitted to be given by either Party to the other under
this Section 12, will be made in writing and will be delivered by
certified mail, and sent to the addresses stated in Section 11 and to
the following:
To SWBT:
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Director-Taxes
1010 N. St. Mary's, Room 11-X-1
San Antonio, TX 78215
To CLEC:
Birch Telecom of Oklahoma, Inc.
Stephen Spohrer
2020 Baltimore
Kansas City, MO 64108
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
12.7.
Any notice or other communication will be deemed to be given when
received.
13.0 FORCE MAJEURE
Except as otherwise specifically provided in this Agreement, neither
Party will be liable for any delay or failure in performance of any
part of this Agreement caused by a Force Majeure condition, including
acts of the United States of America or any state, territory, or
political subdivision thereof, acts of God or a public enemy, fires,
floods, labor disputes such as strikes and lockouts, freight embargoes,
earthquakes, volcanic actions, wars, civil disturbances, cable cuts, or
other causes beyond the reasonable control of the Party claiming
excusable delay or other failure to perform. Provided, Force Majeure
will not include acts of any Governmental Authority relating to
environmental, health, or safety conditions at work locations. If any
Force Majeure condition occurs the Party whose performance fails or is
delayed because of such Force Majeure conditions will give prompt
notice to the other Party, and upon cessation of such Force Majeure
condition, will give like notice and commence performance hereunder as
promptly as reasonably practicable.
14.0 PUBLICITY
14.1 The Parties agree not to use in any advertising or sales promotion,
press releases or other publicity matters, any endorsements, direct or
indirect quotes or pictures implying endorsement by the other Party or
any of its employees without such Party's prior written approval. The
Parties will submit to each other for written approval, prior to
publication, all such publicity endorsement matters that mention or
display the other's name and/or marks or contain language from which a
connection to said name and/or marks may be inferred or implied.
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14.2 Neither Party will offer any services using the trademarks, service
marks, trade names, brand names, logos, insignia, symbols or decorative
designs of the other Party or its affiliates without the other Party's
written authorization.
15.0 NETWORK MAINTENANCE AND MANAGEMENT
15.1 The Parties will work cooperatively to implement this Agreement. The
Parties will exchange appropriate information (e.g., maintenance
contact numbers, network information, information required to comply
with law enforcement and other security agencies of the Government,
etc.) to achieve this desired reliability.
15.2 Each Party will provide a 24-hour contact number for Network Traffic
Management issues to the other's surveillance management center. A
facsimile (FAX) number must also be provided to facilitate event
notifications for planned mass calling events. Additionally, both
Parties agree that they will work cooperatively to ensure that all such
events will attempt to be conducted in such a manner as to avoid
disruption or loss of service to other end users. Each party will
maintain the capability of respectively implementing basic protective
controls such as "Cancel To" or "Call Gap."
15.3 Neither Party will use any service provided under this Agreement in a
manner that impairs the quality of service to other carriers or to
either Party's subscribers. Either Party will provide the other Party
notice of said impairment at the earliest practicable time.
16.0 LAW ENFORCEMENT AND CIVIL PROCESS
16.1 INTERCEPT DEVICES
16.1.1 Local and federal law enforcement agencies periodically request
information or assistance from local telephone service providers. When
either Party receives a request associated with a customer of the other
Party, the receiving Party will refer such request to the appropriate
Party, unless the request directs the receiving Party to attach a pen
register, trap-and-trace or form of intercept on the Party's own
facilities, in which case that Party will comply with any valid
request, to the extent the receiving party is able to do so; if such
compliance requires the assistance of the other Party such assistance
will be provided.
16.2 SUBPOENAS
16.2.1 If a Party receives a subpoena for information concerning an end user
the Party knows to be an end user of the other Party, the receiving
Party will refer the subpoena to the requesting entity with an
indication that the other Party is the responsible company.
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Provided, however, if the subpoena requests records for a period of
time during which the receiving Party was the end user's service
provider, the receiving Party will respond to any valid request to the
extent the receiving party is able to do so; if response requires the
assistance of the other party such assistance will be provided.
16.3 LAW ENFORCEMENT EMERGENCIES
16.3.1 If a Party receives a request from a law enforcement agency to
implement at its switch a temporary number change, temporary
disconnect, or one-way denial of outbound calls for an end user of the
other Party, the receiving Party will comply so long as it is a valid
emergency request. Neither Party will be held liable for any claims or
damages arising from compliance with such requests, and the Party
serving the end user agrees to indemnify and hold the other Party
harmless against any and all such claims.
17.0 CHANGES IN SUBSCRIBER CARRIER SELECTION
17.1 With respect to Resale services and unbundled Network Elements provided
to end users, each Party must obtain end user authorization prior to
requesting a change in the end users' provider of local exchange
service (including ordering end user specific Network Elements) and
must retain such authorizations for twelve (12) months. The
authorization must conform with federal rules regarding changes of
presubscribed interexchange carriers until such time as there are
federal or state rules applicable to changes of local exchange service
providers. Thereafter, the authorization must comply with each such
rule. The Party submitting the change request assumes responsibility
for applicable charges as specified in Section 258(b) of the
Telecommunications Act of 1996.
17.2 Only an end user can initiate a challenge to a change in its local
exchange service provider. In connection with such challenges each
Party will follow procedures which conform with federal rules regarding
challenges to changes of presubscribed interexchange carriers until
such time as there are federal or state rules applicable to challenges
to changes of Local Exchange Service Providers. Thereafter, the
procedures each Party will follow concerning challenges to changes of
local exchange service providers will comply with such rule. If an end
user notified SWBT or CLEC that the end user requests local exchange
service, the Party receiving such request shall be free to immediately
provide service to such end user. SWBT shall be free to connect the end
user to any local service provider based upon the local service
provider's request and assurance that proper end user authorization has
been obtained. CLEC shall make authorization available to SWBT upon
request and at no charge.
17.3 When an end user changes or withdraws authorization, each Party will
release customer specific facilities in accordance with the end user
customer's directions, or the directions of the end user's agent.
Further, when an end user abandons the premise, SWBT is free to reclaim
the facilities for use by another customer and is free to issue service
orders required to reclaim such facilities.
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17.4 Neither Party shall be obligated by this Agreement to investigate any
allegations of unauthorized changes in local exchange service
("slamming") on behalf of the other Party or a third party. If SWBT, on
behalf of CLEC, agrees to investigate an alleged incidence of slamming,
SWBT shall charge CLEC a cost-based or mutually agreed investigation
fee.
18.0 AMENDMENTS OR WAIVERS
18.1 Except as otherwise provided in this Agreement, no amendment or waiver
of any provision of this Agreement and no consent to any default under
this Agreement will be effective unless the same is in writing and
signed by an officer of the Party against whom such amendment, waiver
or consent is claimed. In addition, no course of dealing or failure of
a Party strictly to enforce any term, right or condition of this
Agreement will be construed as a waiver of such term, right, or
condition.
18.2 Pursuant to Attachment 6, Section 14.8, and for the time periods
specified in Attachment 6, Section 14, SWBT expressly waives its right
to assert that it need not provide pursuant to the "necessary and
impair" standard of FTA Section 251(d)(2) a network element set forth
in Attachment 6, Unbundled Network Elements, Sections 3-11 of this
Agreement, and/or its rights with regard to the combination of any such
network elements that are not already assembled pursuant to the
provisions in Attachment 6, Section 14. By entering into this Agreement
to obtain the benefits set forth herein in whole or in part, SWBT
expressly waives its right to challenge the terms of this Agreement in
any judicial, dispute resolution or regulatory proceeding, except that
SWBT expressly reserves the right to seek clarification or
interpretation of the terms of this Agreement through the dispute
resolution process established by the Commission or challenge in any
judicial, dispute resolution or regulatory proceeding the
interpretation of this agreement or any agreement containing the same
or substantively similar language to this Agreement such right to seek
clarification or interpretation or challenge the interpretation also
includes the right to appeal the final judicial, dispute resolution or
regulatory decision and to continue to pursue pending appeals. SWBT
expressly reserves the right to contest any order or decision requiring
the payment of reciprocal compensation for ISP traffic, including the
right to seek refunds or to implement an alternate approach to such
reciprocal compensation pursuant to regulatory or judicial approval
Except as provided in this section, SWBT reserves the right to appeal
any other state or federal regulatory decision, but, absent a stay or
reversal, will comply with any such final decision. Nothing in this
Agreement limits SWBT's right or ability to participate in any
proceedings regarding the proper interpretation and/or application of
the FTA.
18.3 By entering into this Agreement to obtain the benefits set forth herein
in whole or in part, CLEC expressly waives its right to challenge the
terms of this Agreement in any judicial, dispute resolution or
regulatory proceeding, except that CLEC expressly reserves the right to
seek clarification or interpretation of the terms of this Agreement
through the
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dispute resolution process established by the Commission or challenge
in any judicial, dispute resolution or regulatory proceeding the
interpretation of this agreement or any agreement containing the same
or substantially similar language to this agreement; such right to
seek clarification or interpretation or challenge the interpretation
also includes the right to appeal the final judicial, dispute
resolution or regulatory decision and to continue to pursue pending
appeals. When a final decision is rendered by the appellate court, the
affected contract provision shall be revised to reflect the result of
such appeal. Any dispute between the Parties regarding the manner in
which this Agreement should be modified to reflect the effect of the
appellate court decision shall be resolved by the Commission. CLEC
expressly reserves the right to contest any order or decision
requiring the payment of reciprocal compensation for ISP traffic,
including the right to seek refunds or to implement an alternate
approach to such reciprocal compensation pursuant to regulatory or
judicial approval. Except as provided in this section, CLEC reserves
the right to pursue pending appeals and to appeal any other state or
federal regulatory decision, but, absent a stay or reversal, will
comply with any such final decision. Nothing in this Agreement limits
CLEC's right or ability to participate in any proceedings regarding
the proper interpretation and/or application of the FTA.
19.0 AUTHORITY
19.1 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.
20.0 BINDING EFFECT
20.1 This Agreement will be binding on and inure to the benefit of the
respective successors and permitted assigns of the Parties.
21.0 CONSENT
21.1 Where consent, approval, or mutual agreement is required of a Party,
it will not be unreasonably withheld or delayed.
22.0 EXPENSES
22.1 Except as specifically set out in this Agreement, each party will be
solely responsible for its own expenses involved in all activities
related to the subject of this Agreement.
23.0 HEADINGS
23.1 The headings in this Agreement are inserted for convenience and
identification only and will not be considered in the interpretation of
this Agreement.
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24.0 RELATIONSHIP OF PARTIES
24.1 This Agreement will not establish, be interpreted as establishing, or
be used by either party to establish or to represent their relationship
as any form of agency, partnership or joint venture. Neither Party will
have any authority to bind the other or to act as an agent for the
other unless written authority, separate from this Agreement, is
provided. Nothing in the Agreement will be construed as providing for
the sharing of profits or losses arising out of the efforts of either
or both of the Parties. Nothing herein will be construed as making
either Party responsible or liable for the obligations and undertakings
of the other Party.
25.0 CONFLICT OF INTEREST
25.1 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 arranging or negotiation of this Agreement or
associated documents.
26.0 MULTIPLE COUNTERPARTS
26.1 This Agreement may be executed in multiple counterparts, each of which
will be deemed an original but all of which will together constitute
but one, and the same document.
27.0 THIRD PARTY BENEFICIARIES
27.1 Except as may be specifically set forth in this Agreement, this
Agreement does not provide and will not be construed to provide third
parties with any remedy, claim, liability, reimbursement, cause of
action, or other privilege.
28.0 REGULATORY APPROVAL
28.1 Each Party agrees to cooperate with the other and with any regulatory
agency to obtain regulatory approval. During the term of this
Agreement, each Party agrees to continue to cooperate with each other
and any regulatory agency so that the benefits of this Agreement may be
achieved.
29.0 TRADEMARKS AND TRADE NAMES
29.1 Except as specifically set out in this Agreement, nothing in this
Agreement will grant, suggest, or imply any authority for one Party to
use the name, trademarks, service marks, or trade names of the other
for any purpose whatsoever, absent written consent of the other Party.
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30.0 REGULATORY AUTHORITY
30.1 SWBT will be responsible for obtaining and keeping in effect all
Federal Communications Commission, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with the performance of its obligations under this
Agreement. CLEC will be responsible for obtaining and keeping in effect
all Federal Communications Commission, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with its offering of services to CLEC Customers
contemplated by this Agreement. CLEC will reasonably cooperate with
SWBT in obtaining and maintaining any required approvals for which SWBT
is responsible, and SWBT will reasonably cooperate with CLEC in
obtaining and maintaining any required approvals for which CLEC is
responsible.
30.2 SWBT will not, of its own volition, file a tariff or make another
similar filing which supersedes this Agreement in whole or in part.
SWBT will make no filings which are inconsistent with this commitment.
This Section is not intended to apply to any SWBT tariffs or filings
which do not affect CLEC's rights or SWBT's obligations to CLEC under
this Agreement. This Section does not impair SWBT's right to file
tariffs nor does it impair SWBT's right to file tariffs proposing new
products and services and changes in the prices, terms and conditions
of existing products and services, including discontinuance or
grandfathering of existing features or services, of any
telecommunications services that SWBT provides or hereafter provides to
CLEC under this Agreement pursuant to the provision of Attachment 1:
Resale, nor does it impair CLEC's right to contest such tariffs before
the appropriate Commission.
30.3 SWBT will provide CLEC notice of any tariff or filing which concerns
the subject matter of this Agreement at the time a Preliminary Rate
Authority (PRA) is transmitted to the state commission, or, in
situations where a PRA would not be issued, within ninety (90) days
(forty five (45) days for price changes) of the expected effective date
of the tariff or filing.
30.4 In the event that SWBT is required by any governmental authority to
file a tariff or make another similar filing in connection with the
performance of any action that would otherwise be governed by this
Agreement, SWBT will provide CLEC notice of the same as set forth in
Section 30.3 above.
30.5 If any tariff referred to in Section 30.4 becomes ineffective by
operation of law, through deregulation or otherwise, the terms and
conditions of such tariffs, as of the date on which the tariffs became
ineffective, will be deemed incorporated if not inconsistent with this
Agreement.
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31.0 COMMISSION INTERPRETATION OF SAME OR SUBSTANTIVELY SIMILAR LANGUAGE
31.1 Any ruling by the Commission interpreting the same or substantively
similar language in another Interconnection Agreement is applicable to
the same or substantively similar language in this Agreement.
32.0 VERIFICATION REVIEWS
32.1 Subject to each Party's reasonable security requirements and except as
may be otherwise specifically provided in this Agreement, either Party
may audit the other Party's books, records and other documents once in
each Contract Year for the purpose of evaluating the accuracy of the
other Party's billing and invoicing. The Parties may employ other
persons or firms for this purpose. Such audit will take place at a time
and place agreed on by the Parties no later than thirty (30) days after
notice thereof.
32.2 Each Party will promptly correct any billing error that is revealed in
an audit, including making refund of any overpayment by the other Party
in the form of a credit on the invoice for the first full billing cycle
after the Parties have agreed upon the accuracy of the audit results.
Any disputes concerning audit results will be resolved pursuant to the
Dispute Resolution procedures described in Section 9 of this Agreement.
32.3 Each Party will cooperate fully in any such audit, providing reasonable
access to any and all appropriate employees and books, records and
other documents reasonably necessary to assess the accuracy of the
Party's bills.
32.4 Either Party may audit the other Party's books, records and documents
more than once during any Contract Year if the previous audit found
previously uncorrected net variances or errors in invoices in the other
Party's favor with an aggregate value of at least two percent (2%) of
the amounts payable by CLEC for Resale services, Network Elements or
Combinations provided during the period covered by the audit.
32.5 Audits will be at the auditing Party's expense.
32.6 Upon (i) the discovery by either Party of overcharges not previously
reimbursed to the other Party or (ii) the resolution of disputed
audits, the affected Party will promptly reimburse the other Party the
amount of any overpayment times the commercial paper rate applicable on
the last day of the month preceding the month of discovery or
resolution as above. In no event, however, will interest be assessed on
any previously assessed or accrued late payment charges.
32.7 CLEC may require that, at the end of the first year of implementation
of this Agreement, SWBT submit to an audit or examination of services
performed under the interconnection agreement. Subsequent to the first
year of implementation, CLEC may require that audits
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or examinations be performed if: (1) CLEC can show cause that it has a
commercially reasonable basis to seek an audit or examination; and (2)
the request for audit or examination specifically defines the
particular services that it seeks to audit or examine. All audits
requested by CLEC under this section shall be conducted at its
expense. The dispute resolution provisions of this Agreement shall be
used to resolve disputes arising concerning requests for audits or
examinations, or the results of the audits or examinations.
32.8 For a period of fourteen (14) months from the Effective Date of this
Agreement, SWBT may audit CLEC's operations, books, records, and other
documents related to the development of the percent local usage (PLU)
to be used to measure and settle untransmitted calling party numbers
(CPN) in connection with Attachment 12: Compensation. SWBT will bear
the reasonable expenses associated with this inspection.
32.9 Information obtained or received by CLEC in conducting the inspections
described in Section 32.7 and information obtained or received by
either Party in connection with Sections 32.1 through 32.6 and 32.8
will be subject to the confidentiality provisions of Section 6 of this
Agreement.
33.0 COMPLETE TERMS
33.1 This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes any prior
agreements, representations, statements, negotiations, understandings,
proposals or undertakings, oral or written, with respect to the subject
matter expressly set forth herein.
33.2 Neither Party will be bound by an amendment, modification or additional
term unless it is reduced to writing signed by an authorized
representative of the Party sought to be bound.
34.0 COOPERATION ON PREVENTING END USER FRAUD
34.1 The Parties agree to cooperate with one another to investigate,
minimize, and take corrective action in cases of fraud. The Parties'
fraud minimization procedures are to be cost-effective and implemented
so as not to unduly burden or harm one Party as compared to the other.
34.2 In cases of suspected fraudulent activity by an end user, at a minimum,
the cooperation referenced in the above paragraph will include
providing to the other Party, upon request, information concerning end
users 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.
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35.0 NOTICE OF NETWORK CHANGES
SWBT agrees to provide CLEC reasonable notice consistent with
applicable FCC rules of changes in the information necessary for the
transmission and routing of services using SWBT's facilities or
networks, as well as other changes that affect the interoperability of
those respective facilities and networks. This Agreement is not
intended to limit SWBT's ability to upgrade its network through the
incorporation of new equipment, new software or otherwise so long as
such upgrades are not inconsistent with SWBT's obligations to CLEC
under the terms of this Agreement.
36.0 GOOD FAITH PERFORMANCE
36.1 In the performance of their obligations under this Agreement the
Parties will act in good faith and consistently with the intent of the
Act. Where notice, approval or similar action by a Party is permitted
or required by any provision of this Agreement, (including, without
limitation, the obligation of the parties to further negotiate the
resolution of new or open issues under this Agreement) such action will
not be unreasonably delayed, withheld or conditioned.
37.0 RESPONSIBILITY OF EACH PARTY
37.1 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 will be solely responsible for all matters relating to payment of
such employees, including compliance with social security taxes,
withholding taxes and all other regulations governing such matters.
Each party will be solely responsible for proper handling, storage,
transport and disposal at its own expense of all (i) substances or
materials that it or its contractors or agents bring to, create or
assume control over at Work Locations or, (ii) Waste resulting
therefrom or otherwise generated in connection with its or its
contractors' or agents' activities at the Work Locations. Subject to
the limitations on liability and except as otherwise provided in this
Agreement, each Party will be responsible for (i) its own acts and
performance of all obligations imposed by applicable law in connection
with its activities, legal status and property, real or personal and,
(ii) the acts of its own affiliates, employees, agents and contractors
during the performance of the Party's obligations hereunder.
38.0 TRANSMISSION OF TRAFFIC TO THIRD PARTIES
38.1 CLEC will not send to SWBT local traffic that is destined for the
network of a third party unless CLEC has the authority to exchange
traffic with that third party.
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39.0 GOVERNMENTAL COMPLIANCE
39.1 CLEC and SWBT each will comply at its own expense with all applicable
law related to i) its obligations under or activities in connection
with this Agreement; of ii) its activities undertaken at, in connection
with or relating to Work Locations. CLEC and SWBT each agree to
indemnify, defend, (at the other party's request) and save harmless the
other, each of its officers, directors and employees from and against
any losses, damages, claims, demands, suits, liabilities, fines,
penalties, and expenses (including reasonable attorneys' fees) that
arise out of or result from i) its failure or the failure of its
contractors or agents to so comply or ii) any activity, duty or status
of it or its contractors or agents that triggers any legal obligation
to investigate or remediate environmental contamination. SWBT, at its
own expense, will be solely responsible for obtaining from governmental
authorities, building owners, other carriers, and any other persons or
entities, all rights and privileges (including, but not limited to,
space and power), which are necessary for SWBT to provide the Network
Elements and Resale services pursuant to this Agreement.
40.0 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
40.1 DISCLOSURE OF POTENTIAL HAZARDS: When and if CLEC notifies SWBT that
CLEC intends to enter or perform work pursuant to this Agreement in,
on, or within the vicinity of any particular SWBT building, manhole,
pole, duct, conduit, right-of-way, or other facility (hereinafter "Work
Location"), SWBT shall timely notify CLEC of any Environmental Hazard
at that Work Location of which SWBT has actual knowledge, except that
this duty shall not apply to any Environmental Hazard (i) of which CLEC
already has actual knowledge or (ii) was caused solely by CLEC or (iii)
would be obvious and apparent to anyone coming to the Work Location.
For purposes of this Agreement, "Environmental Hazard" shall mean (i)
the presence of petroleum vapors or other gases in hazardous
concentrations in a manhole or other confined space, or conditions
reasonably likely to give rise to such concentrations; (ii) the
presence of electrical cable in a conduit system; (iii)
asbestos-containing materials; (iv) emergency exit routes and warning
systems, if and to the extent owned or operated by SWBT; and (v) any
potential hazard that would not be obvious to an individual entering
the Work Location or detectable using work practices standard in the
industry.
40.2 EVALUATION OF POTENTIAL HAZARDS: Without limiting the foregoing, after
providing prior notice to SWBT, CLEC shall have the right to inspect,
test, or monitor any Work Location for possible Environmental Hazards
as necessary or appropriate to comply with law or to protect its
employees, contractors or others from the possible effects of
Environmental Hazards. CLEC shall be responsible for conducting such
inspections, testing or monitoring in a way that does not unreasonably
interfere with SWBT's business operations after consultation with SWBT,
and shall return SWBT's property to substantially the same condition as
it would have been without such inspections, testing or monitoring.
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40.3 MANAGING DISTURBED MATERIALS AND MEDIA: If and to the extent that
CLEC's activity at any Work Location involves the excavation,
extraction, or removal of asbestos or other manmade materials or
contaminated soil, groundwater, or other environmental media, then CLEC
rather than SWBT shall be responsible in the first instance for the
subsequent treatment, disposal, or other management of such materials
and media.
40.4 INDEMNIFICATION:
40.4.1 Each party shall indemnify, on request defend, and hold harmless the
other party and each of its officers, directors and employees from any
and all suits, claims, demands, losses, damages, liabilities, fines,
penalties, or expenses, of every kind and character (including
reasonable attorneys' fees), on account of or in connection with any
injury, loss, or damage to any person or property, or to the
environment, to the extent any of them arise out of or in connection
with the violation or breach, by any employee of the indemnifying
party or other person acting on the indemnifying party's behalf, of
this Section 40.0 or any federal, state, or local environmental
statute, rule, regulation, ordinance, or other applicable law or
provision of this agreement dealing with hazardous substances or
protection of human health or the environment.
40.4.2 CLEC shall indemnify, on request defend, and hold harmless SWBT and
each of its officers, directors and employees from any and all suits,
claims, demands, losses, damages, liabilities, fines, penalties, or
expenses, of every kind and character (including reasonable attorneys'
fees), on account of or in connection with any injury, loss, or damage
to any person or property, or to the environment, to the extent any of
them arise out of or in connection with (i) the release or discharge,
onto any public or private property, of any hazardous substances,
regardless of the source of such hazardous substances, by any employee
of CLEC, or by any person acting on CLEC's behalf, while at a Work
Location or (ii) the removal or disposal of any hazardous substances
by any employee of CLEC or by any person acting on CLEC's behalf, or
the subsequent storage, processing or other handling of such hazardous
substances by any person or entity, after such substances have thus
been removed from a Work Location or (iii) any environmental
contamination or Environmental Hazard or release of a hazardous
substance caused or created by CLEC or its contractors or agents.
40.4.3 SWBT shall indemnify, on request defend, and hold harmless CLEC and
each of its officers, directors and employees from any and all suits,
claims, demands, losses, damages, liabilities, fines, penalties, or
expenses, of every kind and character (including reasonable attorneys'
fees), asserted by any government agency or other third party on
account of or in connection with any injury, loss, or damage to any
person or property, or to the environment, to the extent any of them
arise out of or in connection with (i) the release or discharge, onto
any public or private property, of any hazardous substances,
regardless of the source of such hazardous substances, by any employee
of SWBT or by any person acting on SWBT's behalf, at a Work Location
or (ii) the removal or disposal
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of any hazardous substances by any employee of SWBT or by any person
acting on SWBT's behalf, or the subsequent storage, processing or
other handling of such hazardous substances by any person or entity,
after such substances have thus been removed from a Work Location or
(iii) any environmental contamination or Environmental Hazard or
release of a hazardous substance either (x) existing or occurring at
any Work Location on or before the date of this agreement or (y)
caused or created by SWBT or its contractors or agents.
41.0 SUBCONTRACTING
41.1 If any obligation is performed through a subcontractor, 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, and each party will be solely
responsible for payments due the party's subcontractors. No contract,
subcontract or other Agreement entered into by either Party with any
third party in connection with the provision of Resale services or
Network Elements hereunder will provide for any indemnity, guarantee or
assumption of liability by, or other obligation of, the other Party to
this Agreement with respect to such arrangement, except as consented to
in writing by the other Party. No subcontractor will be deemed a third
party beneficiary for any purposes under this Agreement. Any
subcontractor who gains access to CPNI or Confidential Information
covered by this Agreement will be required by the subcontracting Party
to protect such CPNI or Confidential Information to the same extent the
subcontracting Party is required to protect the same under the terms of
this Agreement.
42.0 REFERENCED DOCUMENTS
42.1 Whenever any provision of this Agreement refers to a technical
reference, technical publication, CLEC Practice, SWBT Practice, any
publication of telecommunications industry administrative or technical
standards, or any other document specifically incorporated into this
Agreement, it will be deemed to be a reference to the most recent
version or edition (including any amendments, supplements, addenda, or
successors) of each document that is in effect, and will include the
most recent version or edition (including any amendments, supplements,
addenda, or successors) of each document incorporated by reference in
such a technical reference, technical publication, CLEC Practice, SWBT
Practice, or publication of industry standards.
43.0 SEVERABILITY
43.1 Except as otherwise specifically provided in Sections 4.2.1, 18.1, 18.2
and 18.3 of the General Terms & Conditions, if any term, condition or
provision of this Agreement is held to be invalid or unenforceable for
any reason, such invalidity or unenforceability will not invalidate the
entire Agreement, unless such construction would be unreasonable. The
Agreement will be construed as if it did not contain the invalid or
unenforceable
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provision or provisions, and the rights and obligations of each party
will be construed and enforced accordingly; provided, however, that in
the event such invalid or unenforceable provision or provisions are
essential elements of this Agreement and substantially impair the
rights or obligations of either Party, the Parties will promptly
negotiate a replacement provision or provisions. If impasse is
reached, the Parties will resolve said impasse under the dispute
resolution procedures set forth in Section 9.5.
44.0 SURVIVAL OF OBLIGATIONS
44.1 Any liabilities or obligations of a Party for acts or omissions prior
to the cancellation or termination of this Agreement, any obligation of
a Party under the provisions regarding indemnification, Confidential
Information, limitations on liability, and any other provisions of this
Agreement which, by their terms, are contemplated to survive (or to be
performed after) termination of this Agreement, will survive
cancellation or termination thereof.
45.0 GOVERNING LAW
45.1 The validity of this Agreement, the construction and enforcement of its
terms, and the interpretation of the rights and duties of the Parties
will be governed by the laws of the State of Oklahoma other than as to
conflicts of laws, except insofar as federal law may control any aspect
of this Agreement, in which case federal law will govern such aspect.
The Parties submit to personal jurisdiction in Oklahoma City, Oklahoma,
and waive any and all objections to an Oklahoma venue.
46.0 PERFORMANCE CRITERIA
46.1 Specific provisions governing failure to meet Performance Criteria are
contained in Attachment 17: Performance Remedy Plan.
47.0 OTHER OBLIGATIONS OF CLEC
47.1 For the purposes of establishing service and providing efficient and
consolidated billing to CLEC, CLEC is required to provide SWBT its
authorized and nationally recognized Operating Company Number (OCN).
48.0 DIALING PARITY; INTERIM NUMBER PORTABILITY
48.1 SWBT will ensure that all CLEC Customers experience the same dialing
parity as similarly-situated customers of SWBT services, such that, for
all call types: (i) an CLEC Customer is not required to dial any
greater number of digits than a similarly-situated SWBT customer; (ii)
the post-dial delay (time elapsed between the last digit dialed and the
first network response), call completion rate and transmission quality
experienced by an CLEC Customer is at least equal in quality to that
experienced by a similarly-situated
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SWBT customer; and (iii) the CLEC Customer may retain its local
telephone number. SWBT further agrees to provide Interim Number
Portability in accordance with the requirements of the Act. Specific
requirements concerning Interim Number Portability are set forth in
Attachment 14: Interim Number Portability.
49.0 BRANDING
49.1 Specific provisions concerning the branding of services provided to
CLEC by SWBT under this Agreement are contained in the following
Attachments and Appendices to this Agreement: Attachment 1: Resale;
Appendix OS-Resale; Appendix DA-Resale; Attachment 2: Ordering &
Provisioning-Resale; Attachment 3: Maintenance-Resale; Attachment 7:
Ordering & Provision in-Unbundled Network Elements; Attachment 8:
Maintenance-Unbundled Network Elements.
50.0 CUSTOMER INQUIRIES
50.1 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.
50.2 Each Party will ensure that all of their representatives who receive
inquiries regarding the other Party's services: (i) provide the numbers
described in Section 50.1 to callers who inquire about the other
Party's services or products; and (ii) do not in any way disparage or
discriminate against the other Party or its products or services.
51.0 DISCLAIMER OF WARRANTIES
51.1 TO THE EXTENT CONSISTENT WITH ITS OBLIGATIONS UNDER THE ACT, SWBT MAKES
NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR INTENDED
OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED HEREUNDER.
52.0 NO WAIVER
52.1 CLEC's agreement herein to accept less than fully operational
electronic interfaces to operations support systems functions on and
after January 1, 1997, will not be deemed a waiver of Section 251(c)(3)
of the Act to receive such interfaces on that date.
53.0 DEFINITIONS
53.1 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. The words "will" and "shall" are used
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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 this
Agreement will have the meaning in the Act.
54.0 RESALE
54.1 At the request of CLEC, and pursuant to the requirements of the Act,
any telecommunications service that SWBT currently provides or
hereafter offers to any customer in the geographic area where SWBT is
the incumbent LEC will be made available to CLEC by SWBT for Resale in
accordance with the terms, conditions and prices set forth in this
Agreement. Specific provisions concerning Resale are addressed in
Attachment 1: Resale, and other applicable Attachments.
55.0 UNBUNDLED NETWORK ELEMENTS
55.1 At the request of CLEC and pursuant to the requirements of the Act,
SWBT will offer in the geographic area where SWBT is the incumbent LEC
Network Elements to CLEC on an unbundled basis on rates, terms and
conditions set forth in this Agreement that are just, reasonable, and
non-discriminatory. Specific Provisions concerning Unbundled Network
Elements are addressed in Attachment 6: Unbundled Network Elements, and
other applicable Attachments.
56.0 ORDERING AND PROVISIONING, MAINTENANCE, CONNECTIVITY BILLING AND
RECORDING, AND PROVISION OF CUSTOMER USAGE DATA
56.1 In connection with its Resale of services to CLEC, SWBT agrees to
provide to CLEC Ordering and Provisioning Services, Maintenance
services, Connectivity Billing and Recording services and Provision of
Customer Usage Data services pursuant to the terms specified in
Attachments 2, 3, 4 and 5, respectively.
56.2 In connection with its furnishing Unbundled Networks Elements to CLEC,
SWBT agrees to provide to CLEC Ordering and Provisioning Services,
Maintenance services, Connectivity Billing and Recording services and
Provision of Customer Usage Data services pursuant to the terms
specified in Attachments 7, 8, 9 and 10, respectively.
57.0 NETWORK INTERCONNECTION ARCHITECTURE
57.1 Where the Parties interconnect their networks, for purposes of
exchanging traffic between their networks, the Parties agree to utilize
the interconnection methods specified in Attachment 11: Network
Interconnection Architecture. SWBT expressly recognizes that this
provision and said Attachment are in no way intended to impair in any
way CLEC's
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right to interconnect with unbundled Network Elements furnished by
SWBT at any technically feasible point within SWBT's network, as
provided in the Act.
58.0 COMPENSATION FOR DELIVERY OF TRAFFIC
58.1 The Parties agree to compensate each other for the transport and
termination of traffic as provided in Attachment 12: Compensation.
59.0 ANCILLARY FUNCTIONS
Ancillary Functions may include, but are not limited to, Collocation,
Rights-of-Way, Conduit and Pole Attachments. SWBT agrees to provide
Ancillary Functions to CLEC as set forth in Attachment 13: Ancillary
Functions.
60.0 SEPARATE AFFILIATE COMMITMENTS
SWBT will comply with all FCC rules and orders relating to the
structural and nonstructural requirements for Section 272 affiliates.
To satisfy its obligation to publicly disclose all transactions between
SWBT and any Section 272 affiliate, SWBT will:
(a) Post the full text of all agreements between SWBT and
Southwestern Bell Long Distance (SBLD) within 10 days on its
Internet website, including rates, terms, and conditions of those
agreements, frequency of occurrence of transactions under the
agreements, and information concerning the level, rate of pay,
and quantity of employees who perform work under the agreements,
and post summaries of the agreements on the Internet;
(b) Post, for each agreement, the states where SBLD's operations are
supported by the agreement;
(c) Maintain, for each agreement, information indicating the specific
FCC pricing methodology used by SWBT to determine the rates for
the agreement;
(d) Maintain on the Internet a posting of the title, address,
telephone number, and fax number of the person to contact to
review paper copies of the agreements; and SWBT will also
maintain at its headquarters in San Antonio detailed information
concerning all affiliate transactions between SWBT and SBLD.
(This information includes the information posted on the Internet
as well as the Detailed Billing Reports, which provide the
month-by-month billing detail by specific contract, contract
schedule, and pricing addendum. SWBT represented that it would
update the Detailed Billing Reports, which are available for
inspection upon execution of a Protective Agreement, on a
semi-annual basis).
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61.0 OTHER REQUIREMENTS AND ATTACHMENTS
61.1 This Agreement incorporates a number of listed Attachments which,
together with their associated Appendices, Exhibits, and Addenda,
constitute the entire Agreement between the Parties. In order to
facilitate use and comprehension of the Agreement, the Attachments have
been grouped under the following broad headings: Resale; Unbundled
Network Elements; Network Interconnection Architecture; Ancillary
Functions; and Other Requirements. It is understood that these
groupings are for convenience of reference only, and are not intended
to limit the applicability which any particular Attachment may
otherwise have.
61.2 Appended to this Agreement and incorporated herein are the Attachments
listed below. To the extent that any definitions, terms or conditions
in any given Attachment 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 Attachment. In
particular, if an Attachment contains a term length that differs from
the term length in the main body of this Agreement, the term length of
that Attachment will control the length of time that services or
activities are to occur under the Attachment, but will not affect the
term length of the remainder of this Agreement, except as may be
necessary to interpret the Attachment.
RESALE
Attachment 1: Resale
Appendix Services/Pricing
Exhibit A: SWBT's Telecommunications Services Available
for Resale
Exhibit B: SWBT's Other Services Available for Resale
Appendix Customized Routing-Resale
Appendix DA-Resale
Appendix OS-Resale
Appendix White Pages (WP)-Resale
Attachment 2: Ordering and Provisioning-Resale
Attachment 3: Maintenance-Resale
Attachment 4: Connectivity Billing-Resale
Attachment 5: Provision of Customer Usage Data-Resale
UNBUNDLED NETWORK ELEMENTS
Attachment 6: Unbundled Network Elements (UNE)
Appendix Pricing-UNE
Appendix Pricing-UNE Schedule of Prices
Attachment 7: Ordering and Provisioning-UNE
Exhibit A-Electronic Ordering and Provisioning-UNE
Attachment 8: Maintenance-UNE
Attachment 9: Billing-Other
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Attachment 10: Provision of Customer Usage Data-UNE
NETWORK INTERCONNECTION ARCHITECTURE AND COMPENSATION
Attachment 11: Network Interconnection Architecture
Appendix Interconnection Trunking Requirement (ITR)
Appendix Network Interconnection Methods (NIM)
Appendix SS7 Interconnection
Attachment 12: Compensation
Appendix Cellular
Appendix FGA
ANCILLARY FUNCTIONS
Attachment 13: Ancillary Functions
Appendix Collocation
Appendix Poles, Conduit, ROW
OTHER REQUIREMENTS
Attachment 14: Interim Number Portability
Appendix Location Routing Number - PNP
Attachment 15: E911
Attachment 16: Network Security and Law Enforcement
Attachment 17: Performance Remedy Plan
Appendix Measurements Subject to Per Occurrence Damages or
Assessment with a Cap and Measurements Subject to Per Measure
Damages or Assessment
Appendix Performance Measures Subject to
Tier-1 and Tier-2 Damages Identified as High, Medium and Low
Appendix 3 Performance Measurement Business Rules (Version 1.7)
Attachment 18: Mutual Exchange of Directory Listing Information
Attachment 19: White Pages-Other (WP-O)
Attachment 20: Clearinghouse
Attachment 21: Numbering
Attachment 22: DA-Facilities Based
Attachment 23: OS-Facilities Based
Attachment 24: Recording-Facilities Based
OTHER ATTACHMENTS
Attachment 25: DSL
Attachment 26: Legitimately Related Provisions
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
Signature: Signature:
-------------------------- ------------------------------
Print Name: Print Name: Willena Slocum
-------------------------- ------------------------------
Title: Title: For/President-Industry Markets
-------------------------- ------------------------------
Date: Date:
-------------------------- ------------------------------
BIRCH TELECOM OF OKLAHOMA, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
OCN/AECN: 3642