Interconnection Agreement - SBC Communications Inc. and Talk.com Holding Corp.
GENERAL TERMS AND CONDITIONS-SBC-13STATE
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SBC-13STATE/TALK.COM HOLDING, CORP.
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INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE TELECOMMUNICATIONS
ACT OF 1996
BETWEEN ONE OR MORE OF
ILLINOIS BELL TELEPHONE COMPANY,
INDIANA BELL TELEPHONE COMPANY INCORPORATED,
MICHIGAN BELL TELEPHONE COMPANY,
NEVADA BELL TELEPHONE COMPANY,
THE OHIO BELL TELEPHONE COMPANY,
PACIFIC BELL TELEPHONE COMPANY,
THE SOUTHERN NEW ENGLAND TELEPHONE COMPANY, SOUTHWESTERN BELL TELEPHONE COMPANY,
WISCONSIN BELL, INC. D/B/A AMERITECH WISCONSIN
AND
TALK.COM HOLDING, CORP.
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TABLE OF CONTENTS
1. DEFINITIONS 6
2. INTERPRETATION, CONSTRUCTION AND SEVERABILITY 27
3. NOTICE OF CHANGES -- SECTION 251(C)(5) 32
4. GENERAL RESPONSIBILITIES OF THE PARTIES 32
5. EFFECTIVE DATE, TERM, AND TERMINATION 36
6. FRAUD 38
7. DEPOSITS (SBC-12STATE) 40
8. BILLING AND PAYMENT OF CHARGES 43
9. NONPAYMENT AND PROCEDURES FOR DISCONNECTION 49
10. DISPUTE RESOLUTION 54
11. AUDITS - APPLICABLE IN SBC-12STATE ONLY 58
12. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES 61
13. LIMITATION OF LIABILITY 61
14. INDEMNITY 63
15. REMEDIES 69
16. INTELLECTUAL PROPERTY 69
17. NOTICES 69
18. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS 71
19. NO LICENSE 72
20. CONFIDENTIALITY 72
21. INTERVENING LAW 77
22. GOVERNING LAW 78
23. REGULATORY APPROVAL 79
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24. CHANGES IN END USER LOCAL EXCHANGE
SERVICE PROVIDER SELECTION 79
25. COMPLIANCE AND CERTIFICATION 80
26. LAW ENFORCEMENT 81
27. RELATIONSHIP OF THE PARTIES/INDEPENDENT CONTRACTOR 82
28. NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY 82
29. ASSIGNMENT 83
30. DELEGATION TO AFFILIATE 83
31. SUBCONTRACTING 84
32. HAZARDOUS SUBSTANCES AND RESPONSIBILITY FOR
ENVIRONMENTAL CONTAMINATION 84
33. FORCE MAJEURE 85
34. TAXES 86
35. NON-WAIVER 88
36. NETWORK MAINTENANCE AND MANAGEMENT 88
37. SIGNALING 89
38. TRANSMISSION OF TRAFFIC TO THIRD PARTIES 90
39. CUSTOMER INQUIRIES 90
40. EXPENSES 91
41. CONFLICT OF INTEREST 91
42. SURVIVAL 91
43. SCOPE OF AGREEMENT 91
44. AMENDMENTS AND MODIFICATIONS 92
45. IN-REGION MOST FAVORED NATIONS BETWEEN SBC STATES 92
46. APPENDICES INCORPORATED BY REFERENCE 93
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47. AUTHORITY 97
48. COUNTERPARTS 98
49. ENTIRE AGREEMENT 98
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INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE TELECOMMUNICATIONS
ACT OF 1996
This Interconnection Agreement under Sections 251 and 252 of the
Telecommunications Act of 1996 (THE AGREEMENT), is dated as of October 11, 2000
by and between one or more of the SBC Communications Inc.-owned ILEC's ILLINOIS
BELL TELEPHONE, INDIANA BELL TELEPHONE COMPANY INCORPORATED, MICHIGAN BELL
TELEPHONE COMPANY, NEVADA BELL TELEPHONE COMPANY (A NEVADA CORPORATION), THE
OHIO BELL TELEPHONE COMPANY, PACIFIC BELL TELEPHONE COMPANY (A CALIFORNIA
CORPORATION), THE SOUTHERN NEW ENGLAND TELEPHONE COMPANY (A CONNECTICUT
CORPORATION) AND SOUTHWESTERN BELL TELEPHONE COMPANY (A MISSOURI CORPORATION),
WISCONSIN BELL, INC. D/B/A AMERITECH WISCONSIN, (only to the extent that the
agent for each such SBC-owned ILEC executes this Agreement for such SBC-owned
ILEC and only to the extent that such SBC-owned ILEC provides Telephone Exchange
Services as an ILEC in each of the state(s) listed below) and TALK.COM HOLDING,
CORP. (CLEC), (a Pennsylvania corporation), shall apply to the state(s) of
Arkansas, California, Connecticut, Illinois, Indiana, Kansas, Michigan,
Missouri, Nevada, Ohio, Oklahoma, Texas and Wisconsin.
WHEREAS, CLEC represents that it is, or intends to become, a provider of
Telephone Exchange Service to residential and business End Users offered
exclusively over its own Telephone Exchange Service facilities or predominantly
over its own Telephone Exchange Service facilities in combination with the use
of unbundled Network Elements purchased from other entity(ies) and the resale of
Telecommunications Services of other carriers.
WHEREAS, the Parties want to Interconnect their networks at mutually agreed upon
points of interconnection to provide, directly or indirectly, Telephone Exchange
Services and Exchange Access to residential and business End Users over their
respective Telephone Exchange Service facilities in the states which are subject
to this Agreement; and
WHEREAS, the Parties are entering into this Agreement to set forth the
respective obligations of the Parties and the terms and conditions under which
the Parties will Interconnect their networks and facilities and provide to each
other services as required by the Telecommunications Act of 1996 as specifically
set forth herein; and
WHEREAS, for purposes of this Agreement, CLEC intends to operate where one or
more of ILLINOIS BELL TELEPHONE, INDIANA BELL TELEPHONE COMPANY INCORPORATED,
MICHIGAN BELL TELEPHONE COMPANY, NEVADA BELL TELEPHONE COMPANY (A NEVADA
CORPORATION), THE OHIO BELL TELEPHONE COMPANY, PACIFIC BELL TELEPHONE COMPANY (A
CALIFORNIA CORPORATION), THE SOUTHERN NEW ENGLAND TELEPHONE COMPANY (A
CONNECTICUT CORPORATION) AND SOUTHWESTERN BELL TELEPHONE COMPANY (A MISSOURI
CORPORATION), WISCONSIN BELL, INC. D/B/A AMERITECH WISCONSIN is the incumbent
Local
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Exchange Carrier(s) and CLEC, a competitive Local Exchange Carrier, has or,
prior to the provisioning of any Interconnection, access to unbundled Network
Elements, Telecommunications Services or any other functions, facilities,
products or services hereunder, will have been granted authority to provide
certain local Telephone Exchange Services in the foregoing ILEC Service areas by
the appropriate State Commission(s);
NOW, THEREFORE, the Parties hereby agree as follows:
This Agreement is composed of General Terms and Conditions, which are set forth
below, together with certain Appendices, Schedules, Exhibits and Addenda which
immediately follow this Agreement, all of which are hereby incorporated in this
Agreement by this reference and constitute a part of this Agreement.
GENERAL TERMS AND CONDITIONS
----------------------------
1. DEFINITIONS
Capitalized Terms used in this Agreement shall have the respective
meanings specified below in, Section 1.x of each Appendix attached hereto,
and/or as defined elsewhere in this Agreement.
1.1 GENERAL DEFINITIONS
--------------------
1.1.1 "A-LINK" means a diverse pair of facilities connecting local end
office switching centers with Signaling Transfer Points.
1.1.2 "ACT" means the Communications Act of 1934 [47 U.S.C. 153(R)],
as amended by the Telecommunications Act of 1996, Public Law 104-104,
110 Stat. 56 (1996) codified throughout 47 U.S.C.
1.1.3 "ACCESS COMPENSATION" is the compensation paid by one Party to
the other Party for the origination/termination of intraLATA toll
calls to/from its End User. Access compensation is in accordance with
the LEC's tariffed access rates.
1.1.4 "ACCESS SERVICE REQUEST" (ASR) is an industry standard form used
by the Parties to add, establish, change or disconnect trunks for the
purposes of Interconnection.
1.1.5 "ADVANCED SERVICES" means intrastate or interstate wireline
Telecommunications Services, such as ADSL, IDSL, xDSL, Frame Relay,
Cell Relay and VPOP-Dial Access Service (an SBC-13STATE Frame
Relay-based service) that rely on packetized technology and have the
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capability of supporting transmissions speeds of at least 56 kilobits
per second in both directions. This definition of Advanced Services
does not include:
1.1.5.1 Data services that are not primarily based on packetized
technology, such as ISDN,
1.1.5.2 x.25-based and x.75-based packet technologies, or
1.1.5.3 Circuit switched services (such as circuit switched voice
grade service) regardless of the technology, protocols or speeds
used for the transmission of such services.
1.1.6 "AFFILIATE" is As Defined in the Act.
1.1.7 "ALTERNATE BILLING SERVICE (ABS)" means a service that allows
End Users to bill calls to accounts that may not be associated with
the originating line. There are three types of ABS calls: calling
card, collect and third number billed calls.
1.1.8 AM-IL - As used herein, AM-IL means the applicable SBC-owned
ILEC doing business in Illinois.
1.1.9 AM-IN - As used herein, AM-IN means the applicable SBC-owned
ILEC doing business in Indiana.
1.1.10 AM-MI - As used herein, AM-MI means the applicable SBC-owned
doing business in Michigan.
1.1.11 AM-OH - As used herein, AM-OH means the applicable SBC-owned
ILEC doing business in Ohio.
1.1.12 AM-WI - As used herein, AM-WI means the applicable SBC-owned
ILEC doing business in Wisconsin.
1.1.13 "APPLICABLE LAW" means all laws, statutes, common law,
regulations, ordinances, codes, rules, guidelines, orders, permits,
tariffs and approvals, including those relating to the environment or
health and safety, of any Governmental Authority that apply to the
Parties or the subject matter of this Agreement.
1.1.14 "AS DEFINED IN THE ACT" means as specifically defined by the
Act.
1.1.15 "AS DESCRIBED IN THE ACT" means as described in or required by
the Act.
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1.1.16 "AUTOMATED MESSAGE ACCOUNTING" (AMA) is a structure inherent in
switch technology that initially records Telecommunication message
information. AMA format is contained in the Automated Message
Accounting document published by Telcordia (formerly known as
Bellcore) as GR-1100-CORE, which defines and amends the industry
standard for message recording.
1.1.17 "BILLED NUMBER SCREENING (BNS)" means a validation of toll
billing exception (TBE) data and performance of public telephone
checks; i.e., determining if a billed line is a public (including
those classified as semi-public) telephone number.
1.1.18 "BONA FIDE REQUEST" (BFR) is the process described in the
applicable Appendix UNE.
1.1.19 "BUSINESS DAY" means Monday through Friday, excluding holidays
on which the applicable SBC-owned ILEC does not provision new retail
services and products.
1.1.20 "BUSY LINE VERIFICATION" (BLV) means a service whereby an End
User requests an operator to confirm the busy status of a line.
1.1.21 "CABS" means the Carrier Access Billing System.
1.1.22 "CALLING CARD SERVICE" means a service that enables a calling
End User to bill a telephone call to a calling card number with or
without the help of an operator.
1.1.23 "CALLING NAME DATABASE" means a Party's database containing
current Calling Name Information, including the Calling Name
Information of any telecommunications company participating in that
Party's Calling Name Database. A Calling Name Database may be part of,
or separate from, a LIDB.
1.1.24 "CALLING NAME DELIVERY SERVICE (CNDS)" means a service that
enables a terminating End User to identify the calling party by a
displayed name before a call is answered. The calling party's name is
retrieved from a Calling Name Database and delivered to the End User's
premise between the first and second ring for display on compatible
End User premises equipment.
1.1.25 "CALLING NAME INFORMATION" means a Telecommunications Carrier's
records of its End Users names associated with one or more assigned
ten-digit telephone numbers.
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1.1.26 "CALLING NUMBER DELIVERY" means a feature that enables an End
User to view the directory number of the calling party on a display
unit.
1.1.27 "CALLING PARTY NUMBER" (CPN) means a Signaling System 7 "SS7"
parameter whereby the ten (10) digit number of the calling Party is
forwarded from the End Office.
1.1.28 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS) means the
transport system that LECs use to exchange outcollect and Carrier
Access Billing System "CABS" access messages among each other and
other Parties connected to CMDS.
1.1.29 "CENTRAL OFFICE SWITCH" (CENTRAL OFFICE) is a switching entity
within the public switched telecommunications network, including but
not limited to:
1.1.29.1 "END OFFICE SWITCH" OR "END OFFICE" is a switching
machine that directly terminates traffic to and receives traffic
from purchasers of local exchange services. An End Office Switch
does not include a PBX.
1.1.29.2 "TANDEM OFFICE SWITCH" OR "TANDEM(S)" are used to
connect and switch trunk circuits between and among other Central
Office Switches. A Tandem Switch does not include a PBX.
1.1.30 "CNAM QUERY" means a LIDB Service Application that allows CLEC
to query a Calling Name Database for Calling Name Information in order
to deliver that information to CLEC's local CNDS subscribers.
1.1.31 "CNAM QUERY RATE" means a rate that applies to each CNAM Query
received at the SCP where the Calling Name Database resides.
1.1.32 "COLLOCATION" is As Described in the Act. Terms related to
collocation are defined in the applicable Appendix Collocation or
applicable collocation tariff, as appropriate.
1.1.33 "COMMERCIAL MOBILE RADIO SERVICES" (CMRS) means Commercial
Mobile Radio Service, As Defined in the Act and FCC rules.
1.1.34 "COMMISSION" means the applicable State agency with regulatory
authority over Telecommunications. Unless the context otherwise
requires, use of the term "COMMISSIONS" means all of the thirteen
agencies listed in this Section. The following is a list of the
appropriate State agencies:
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1.1.34.1 THE ARKANSAS PUBLIC SERVICE COMMISSION (AR-PSC);
1.1.34.2 THE PUBLIC UTILITIES COMMISSION OF THE STATE OF
CALIFORNIA (CA-PUC);
1.1.34.3 THE CONNECTICUT DEPARTMENT OF PUBLIC UTILITY CONTROL
(CT-DPUC);
1.1.34.4 THE ILLINOIS COMMERCE COMMISSION (IL-CC);
1.1.34.5 THE INDIANA UTILITIES REGULATORY COMMISSION (IN-URC);
1.1.34.6 THE KANSAS CORPORATION COMMISSION (KS-CC);
1.1.34.7 THE MICHIGAN PUBLIC SERVICE COMMISSION (MI-PSC);
1.1.34.8 THE MISSOURI PUBLIC SERVICE COMMISSION (MO-PSC);
1.1.34.9 THE PUBLIC UTILITIES COMMISSION OF NEVADA (NV-PUC);
1.1.34.10 THE PUBLIC UTILITIES COMMISSION OF OHIO (PUC-OH);
1.1.34.11 THE OKLAHOMA CORPORATION COMMISSION (OK-CC);
1.1.34.12 THE PUBLIC UTILITY COMMISSION OF TEXAS (PUC-TX); AND
1.1.34.13 THE PUBLIC SERVICE COMMISSION OF WISCONSIN (PSC-WI)
1.1.35 "COMMON CHANNEL SIGNALING" (CCS) means an out-of-band,
packet-switched, signaling network used to transport supervision
signals, control signals, and data messages. It is a special network,
fully separate from the transmission path of the public switched
network. Unless otherwise agreed by the Parties, the CCS protocol used
by the Parties shall be SS7.
1.1.36 "COMMON LANGUAGE LOCATION IDENTIFIER" (CLLI) codes provide a
unique 11-character representation of a network interconnection point.
The first 8 characters identify the city, state and building location,
while the last 3 characters identify the network component.
1.1.37 "CONSEQUENTIAL DAMAGES" means Losses claimed to have resulted
from any indirect, incidental, reliance, special, consequential,
punitive, exemplary, multiple or any other Loss, including damages
claimed to have resulted from harm to business, loss of anticipated
revenues, savings, or profits, or other economic Loss claimed to have
been suffered not measured by the prevailing Party's actual damages,
and regardless of whether the Parties knew or had been advised of the
possibility that such damages could result in connection with or
arising from anything said, omitted, or done hereunder or related
hereto, including willful acts or omissions.
1.1.38 "CUSTOMER USAGE DATA" means the Telecommunications Services
usage data of a CLEC End User measured in minutes, sub-minute
increments, message units, or otherwise, that is recorded by
SBC-13STATE and forwarded to CLEC.
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1.1.39 "CUSTOM LOCAL AREA SIGNALING SERVICE FEATURES" (CLASS FEATURES)
means certain Common Channel Signaling based features available to End
Users, including: Automatic Call Back; Call Trace; Distinctive
Ringing/Call Waiting; Selective Call Forward; and Selective Call
Rejection.
1.1.40 "END USERS" means a third-party residence or business that
subscribes to Telecommunications Services provided by any of the
Parties at retail. As used herein, the term "End Users" does not
include any of the Parties to this Agreement with respect to any item
or service obtained under this Agreement.
1.1.41 "CUSTOMER NAME AND ADDRESS INFORMATION" (CNA) means the name,
service address and telephone numbers of a Party's End Users for a
particular Exchange Area. CNA includes nonpublished listings, coin
telephone information and published listings.
1.1.42 "DELAYING EVENT" means (a) any failure of a Party to perform
any of its obligations set forth in this Agreement, caused in whole or
in part by:
1.1.42.1 the failure of the other Party to perform any of its
obligations set forth in this Agreement, including but not
limited to a Party's failure to provide the other Party with
accurate and complete Service Orders;
1.1.42.2 any delay, act or failure to act by the other Party or
its End User, agent or subcontractor; or
1.1.42.3 any Force Majeure Event.
1.1.43 "DIALING PARITY" is As Defined in the Act. As used in this
Agreement, Dialing Parity refers to both Local Dialing Parity and Toll
Dialing Parity.
1.1.44 "DIGITAL SIGNAL LEVEL" is one of several transmission rates in
the time-division multiplex hierarchy.
1.1.44.1 "DIGITAL SIGNAL LEVEL 0" (DS-0) is the 64 Kbps
zero-level signal in the time-division multiplex hierarchy.
1.1.44.2 "DIGITAL SIGNAL LEVEL 1" (DS-1) is the 1.544 Mbps
first-level signal in the time-division multiplex hierarchy.
1.1.44.3 "DIGITAL SIGNAL LEVEL 3" (DS-3) is the 44.736 Mbps
third-level signal in the time-division multiplex hierarchy.
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DIGITAL SUBSCRIBER LINE" (DSL) is as defined in the applicable
Appendix DSL and/or the applicable tariff, as appropriate.
1.1.45 "ELECTRONIC FILE TRANSFER" is any system or process that
utilizes an electronic format and protocol to send or receive data
files.
1.1.46 "ENHANCED SERVICE PROVIDER" (ESP) is a provider of enhanced
services as those services are defined in 47 CFR Section 64.702.
1.1.47 "EXCHANGE ACCESS" is As Defined in the Act.
1.1.48 "EXCHANGE AREA" means an area, defined by the Commission, for
which a distinct local rate schedule is in effect.
1.1.49MESSAGE INTERFACE" (EMI) (formerly Exchange Message Record -
EMR) is the standard used for exchange of Telecommunications message
information among Telecommunications Carriers for billable,
non-billable, sample, settlement and study data. EMI format is
contained in Telcordia Practice BR-010-200-010, CRIS Exchange Message
Record.
1.1.50 "EXCHANGE SERVICE" means Telephone Exchange Service, As Defined
in the Act.
1.1.51 "FEATURE GROUP A" (FGA) means calls either originated by, or
delivered to, an End User who has purchased switched access FGA
service from the interstate or intrastate tariffs of either Party. FGA
also includes, but is not limited to, FGA-like services provided by
either Party, where calls are originated from and/or delivered to
numbers which are assigned to a Rate Center within one LATA but where
the Party receiving the call is physically located in a LATA different
than the LATA of the Party originating the call. The intercarrier
compensation mechanism as well as additional definitions for FGA are
specified in the appropriate Appendix FGA.
1.1.52 "FEATURE GROUP D" (FG-D) is access available to all customers,
providing trunk side access to a Party's End Office Switches with an
associated uniform 101XXXX access code for customer's use in
originating and terminating communications.
1.1.53 "FCC" means the Federal Communications Commission.
1.1.55 "FOREIGN EXCHANGE" (FX) means a service whereby calls either
originated by or delivered to a customer who has purchased FX service
from the state or interstate tariffs of either Party. FX also
includes, but is not limited to,
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FX-like services provided by either Party where calls are originated
from and/or delivered to numbers which are assigned to a Rate Center
within one local calling area but where the Party receiving the call
is physically located outside of that local calling area. FX service
can be either interLATA or intraLATA. InterLATA FX, where the
originating and receiving parties are physically located in different
LATAs, is considered equivalent to FGA and the intercarrier
compensation mechanism is the same as FGA. IntraLATA FX, when provided
by two or more local exchange carriers "LECs", is considered a jointly
provided service and meet-point billed by those providing it utilizing
a mutually agreed to meet-point billing, or meet-point billing like
procedure.
1.1.56 "GOVERNMENTAL AUTHORITY" means any federal, state, local,
foreign, or international court, government, department, commission,
board, bureau, agency, official, or other regulatory, administrative,
legislative, or judicial authority with jurisdiction over the subject
matter at issue.
1.1.57 "GROUP RECORD" means information in LIDB and/or the LIDB
administrative system that is common to all telephone numbers in an
NPA-NXX or all Special Billing Numbers in an NPA-0/1XX.
1.1.58 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC) is As Defined in the
Act.
1.1.59 "INTELLECTUAL PROPERTY" means copyrights, patents, trademarks,
trade secrets, mask works and all other intellectual property rights.
1.1.60 "INTEGRATED SERVICES DIGITAL NETWORK" (ISDN) means a switched
network service that provides end-to-end digital connectivity for the
simultaneous transmission of voice and data. Basic Rate Interface-ISDN
(BRI-ISDN) provides for a digital transmission of two 64 Kbps bearer
channels and one 16 Kbps data channel (2B+D).
1.1.61 "INTERCONNECTION" is As Defined in the Act.
1.1.62 "INTEREXCHANGE CARRIER" (IXC) means a carrier that provides,
directly or indirectly, interLATA or intraLATA Telephone Toll
Services.
1.1.63 "INTERLATA" is As Defined in the Act.
1.1.64 "INTERMEDIATE DISTRIBUTION FRAME" (IDF) is a second frame that
augments an existing Main Distribution Frame. Lines or outside cables
do not terminate on the IDF.
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1.1.65 "INTERNET SERVICE PROVIDER" (ISP) is an Enhanced Service
Provider that provides Internet Services, and is defined in paragraph
341 of the FCC's First Report and Order in CC Docket No. 97-158.
1.1.66 "INTRALATA TOLL TRAFFIC" means the IntraLATA traffic between
two locations within one LATA where one of the locations lies outside
of the normal local calling area as defined by the applicable
Commission.
1.1.67 "LIDB EDITOR" means a SCP tool that bypasses the LIDB
administrative system and provides emergency access to LIDB for data
administration.
1.1.68 "LINE INFORMATION DATA BASE" (LIDB) means a
transaction-oriented database system that functions as a centralized
repository for data storage and retrieval. LIDB is accessible through
CCS networks. LIDB contains records associated with End User line
numbers and special billing numbers. LIDB accepts queries from other
network elements and provides return result, return error, and return
reject responses as appropriate. Examples of information that Data
Owners might store in LIDB and in their Line Records are: ABS
Validation Data, Originating Line Number Screening (OLNS) data, ZIP
Code data, and Calling Name Information.
1.1.69 "LIDB SERVICE APPLICATIONS" means the query types accepted for
access to LIDB information.
1.1.70 "LINE RECORD" means information in LIDB and/or the LIDB
administrative system that is specific to a single telephone number or
Special Billing Number.
1.1.71 "LOCAL ACCESS TRANSPORT AREA" (LATA) is As Defined in the Act.
1.1.72 "LOCAL EXCHANGE CARRIER" (LEC) is As Defined in the Act.
1.1.73 "LOCAL EXCHANGE ROUTING GUIDE" (LERG) is a Telcordia Reference
document used by Telecommunications Carriers to identify NPA-NXX
routing and homing information as well as Network element and
equipment designations.
1.1.74 "LOCAL CALLS", for purposes of intercarrier compensation, is
traffic where all calls are within the same common local and common
mandatory local calling area, i.e., within the same or different SBC
Exchange(s) that participate in the same common local mandatory local
calling area approved by the applicable state Commission. Local Calls
must actually originate and actually terminate to parties physically
located within the same common local or common mandatory local calling
area.
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1.1.75 "LOCAL NUMBER PORTABILITY" means the ability of users of
Telecommunications Services to retain, at the same location, the
presence of a previously existing telephone number(s).
1.1.76 "LOCATION ROUTING NUMBER" (LRN) is a ten (10) digit number that
is assigned to the network switching elements (Central Office - Host
and Remotes as required) for the routing of calls in the network. The
first six (6) digits of the LRN will be one of the assigned NPA NXX of
the switching element. The purpose and functionality of the last four
(4) digits of the LRN have not yet been defined but are passed across
the network to the terminating switch.
1.1.77 "LOCAL SERVICE PROVIDER" (LSP) is the LEC that provides retail
local Exchange Service to an End User. The LSP may or may not provide
any physical network components to support the provision of that End
User's service.
1.1.78 "LOSS" or "LOSSES" means any and all losses, costs (including
court costs), claims, damages (including fines, penalties, and
criminal or civil judgments and settlements), injuries, liabilities
and expenses (including attorneys' fees).
1.1.79 "MECAB" refers to the Multiple Exchange Carrier Access Billing
document prepared by the Billing Committee of the Ordering and Billing
Forum "OBF", which functions under the auspices of the Carrier Liaison
Committee "CLC of the Alliance for Telecommunications Industry
Solutions "ATIS". The MECAB document, published by ATIS as ATIS/OBF-
MECAB- Issue 6, February 1998, contains the recommended guidelines for
the billing of access services provided to an IXC by two or more LECs,
or by one LEC in two or more states within a single LATA.
1.1.80 "MECOD" refers to the Multiple Exchange Carriers Ordering and
Design Guidelines for Access Services - Industry Support Interface, a
document developed by the Ordering/Provisioning Committee of the OBF,
which functions under the auspices of the CLC of ATIS. The MECOD
document, published by ATIS as ATIS/OBF- MECAB- Issue 3, February
1993, establishes methods for processing orders for access service
which is to be provided to an IXC by two or more telecommunications
providers.
1.1.81 "MEET-POINT BILLING" (MPB) refers to the billing associated
with interconnection of facilities between two or more LECs for the
routing of traffic to and from an IXC with which one of the LECs does
not have a direct connection. In a multi-bill environment, each Party
bills the
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appropriate tariffed rate for its portion of a jointly provided
Switched Exchange Access Service.
1.1.82 "MEET-POINT TRUNKS/TRUNK GROUPS" (MPTGS) are used for the joint
provision of Switched Access services, pursuant to Telcordia Technical
References GR-394-CORE "GR-394" and GR-317-CORE "GR-317". MPTGs are
those between a local End Office and an Access Tandem as described in
FSD 20-24-0000 and 20-24-0300.
1.1.83 "MULTIPLE BILL/SINGLE TARIFF" is the meet-point billing method
where each LEC prepares and renders its own meet point bill to the IXC
in accordance with its own tariff for that portion of the jointly
provided Switched Access Service which that LEC provides. The MECAB
documents refer to this method as Multiple Bill/reflecting a single
tariff (MM).
1.1.84 "MUTUAL COMPENSATION" is the compensation agreed upon by the
Parties for those "Local Calls" that originate on one network and
terminate on the other network.
1.1.85 "NETWORK DATA MOVER" (NDM) is an industry standard protocol for
transferring information electrically.
1.1.86 "NETWORK ELEMENT" is As Defined in the Act.
1.1.87 "NORTH AMERICAN NUMBERING PLAN" (NANP) A numbering architecture
in which every station in the NANP Area is identified by a unique
ten-digit address consisting of a three-digit NPA code, a three digit
central office code of the form NXX, and a four-digit line number of
the form XXXX.
1.1.88 "NUMBERING PLAN AREA" (NPA) also called area code. An NPA is
the 3-digit code that occupies the A, B, C positions in the 10-digit
NANP format that applies throughout the NANP Area. NPAs are of the
form NXX, where N represents the digits 2-9 and X represents any digit
0-9. In the NANP, NPAs are classified as either geographic or
non-geographic. a) Geographic NPAs are NPAs which correspond to
discrete geographic areas within the NANP Area. b) Non-geographic NPAs
are NPAs that do not correspond to discrete geographic areas, but
which are instead assigned for services with attributes,
functionalities, or requirements that transcend specific geographic
boundaries. The common examples are NPAs in the N00 format, e.g., 800.
1.1.89 "NUMBER PORTABILITY" is As Defined in the Act.
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1.1.90 "NXX" OR "CENTRAL OFFICE CODE" is the three-digit switch entity
indicator that is defined by the fourth through sixth digits of a
10-digit telephone number within the NANP. Each NXX Code contains
10,000 station numbers.
1.1.91 "ORDERING AND BILLING FORUM" (OBF) is a forum comprised of
local telephone companies and inter-exchange carriers whose
responsibility is to create and document Telecommunication industry
guidelines and standards.
1.1.92 "ORIGINATING POINT CODE" (OPC) means a code assigned to
identify CLEC's system(s) that originate SS7 messages, including LIDB
Service Queries.
1.1.93 "PARTY" means either CLEC or the SBC-owned ILEC; use of the
term "Party" includes each of the SBC-owned ILEC(s) that is a party to
this Agreement. "PARTIES" means both CLEC and the SBC-owned ILEC; use
of the term "Parties" includes each of the SBC-owned ILEC(s) that is a
party to this Agreement.
1.1.94 "PERMANENT NUMBER PORTABILITY" (PNP) is a long term method of
providing LNP using LRN.
1.1.95 "POINT OF INTERCONNECTION" (POI) is a physical location at
which the Parties' networks meet for the purpose of establishing
Interconnection. POIs include a number of different technologies and
technical interfaces based on the Parties' mutual agreement.
1.1.96 "PHYSICAL COLLOCATION" is as defined in applicable Appendix
Collocation or applicable tariff, where applicable.
1.1.97 "RATE CENTER AREA" means the following in each applicable area:
1.1.97.1 SBC-AMERITECH
1.1.97.1.1 "Rate Center" means the specific geographic point
that has been designated by a given LEC as being associated
with a particular NPA-NXX code that has been assigned to the
LEC for its provision of Telephone Exchange Service. The
Rate Center is the finite geographic point identified by a
specific V&H coordinate, which is used by that LEC to
measure, for billing purposes, distance sensitive
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transmission services associated with the specific Rate
Center.
1.1.97.2 NEVADA
1.1.97.2.1 "Rate Center"denotes the designated points,
representing exchanges, (or locations outside exchange
areas), between which mileage measurements are made for the
application of interexchange mileage rates. Rate Centers are
defined in PUC-NV tariff A6.2.7.
1.1.97.3 PACIFIC
1.1.97.3.1 "Rate Center" denotes the designated points,
representing exchanges or district area (or locations
outside exchange areas), between which mileage measurements
are made for the application of interexchange and
interdistrict mileage rates, as defined by the CA-PUC.A2,
2.1.1 Definition of Terms.
1.1.97.4 SNET
1.1.97.4.1 "Rate Center means the specific geographic point
and corresponding area that have been identified by a given
LEC as being associated with a particular NPA-NXX code that
has been assigned to the LEC for its provision of Exchange
Services.
1.1.97.5 SBC-SWBT
1.1.97.5.1 "Rate Center" means an uniquely defined
geographical location within an exchange area (or a location
outside the exchange area) for which mileage measurements
are determined for the application of interstate tariffs."
1.1.98 "RATING POINT" means the V&H coordinates associated with a
particular telephone number for rating purposes.
1.1.99 "REFERENCE OF CALLS" refers to a process by which calls are
routed to an announcement that states the new telephone number of an
End User.
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1.1.100 SBC COMMUNICATIONS INC. (SBC) means the holding company which
owns the following ILECs: Illinois Bell Telephone Company, Indiana
Bell Telephone Company Incorporated, Michigan Bell Telephone Company,
Nevada Bell Telephone Company, The Ohio Bell Telephone Company,
Pacific Bell Telephone Company, The Southern New England Telephone
Company, Southwestern Bell Telephone Company, and/or Wisconsin Bell,
Inc. d/b/a Ameritech Wisconsin.
1.1.101 SBC-AMERITECH - As used herein, SBC-AMERITECH means the
applicable SBC owned ILEC(s) doing business in Illinois, Indiana,
Michigan, Ohio, and Wisconsin.
1.1.102 SBC-7STATE - As used herein, SBC-7STATE means the applicable
SBC owned ILEC(s) doing business in Arkansas, California, Kansas,
Missouri, Nevada, Oklahoma, and Texas.
1.1.103 SBC-8STATE - As used herein, SBC-8STATE means the applicable
SBC owned ILEC(s) doing business in Arkansas, California, Connecticut,
Kansas, Missouri, Nevada, Oklahoma, and Texas.
1.1.104 SBC-10STATE - As used herein, SBC-10STATE means an the
applicable SBC owned ILEC(s) doing business in Arkansas, Illinois,
Indiana, Kansas, Michigan, Missouri, Ohio, Oklahoma, Texas, and
Wisconsin.
1.1.105 SBC-12STATE - As used herein, SBC-12STATE means the applicable
SBC owned ILEC(s) doing business in Arkansas, California, Illinois,
Indiana, Kansas, Michigan, Missouri, Nevada, Ohio, Oklahoma, Texas,
and Wisconsin.
1.1.106 SBC-13STATE - As used herein, SBC-13STATE means the applicable
SBC owned ILEC(s) doing business in Arkansas, California, Connecticut,
Illinois, Indiana, Kansas, Michigan, Missouri, Nevada, Ohio, Oklahoma,
Texas, and Wisconsin.
1.1.107 "SERVICE CONTROL POINT" (SCP) is the node in the common
channel signaling network that accepts Queries for certain Database
services. The SCP is a real time database system that receives Queries
from service platforms, performs subscriber or application-specific
service logic, and then sends a Response back to the Query-originating
platform. Such service platforms can be Service Switching Points
(SSPs) or other network nodes capable of properly formatting and
launching Queries.
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1.1.108 "SERVICE MANAGEMENT SYSTEM" (SMS) means an off-line system
used to access, create, modify, or update information in a Database.
1.1.109 "SERVICE PROVIDER NUMBER PORTABILITY" (SPNP) is synonymous
with Permanent Number Portability "PNP".
1.1.110 "SERVICE SWITCHING POINT" (SSP) is a telephone central office
switch equipped with a Signaling System 7 (SS7) interface.
1.1.111 "SIGNALING SYSTEM 7" (SS7) means a signaling protocol used by
the CCS Network.
1.1.112 "SIGNAL TRANSFER POINT" (STP) performs a packet switching
function that routes signaling messages among Service Switching Points
(SSP), Service Control Points (SCP), Signaling Points (SP), and other
STPs in order to set up calls and to query databases for Advanced
Services.
1.1.113 "SLEUTH" means an off-line administration system that monitors
suspected occurrences of ABS-related fraud.
1.1.114 "SPECIAL BILLING NUMBER" SBN means a Line Record in LIDB that
is based on an NXX-o/1XX numbering format. NXX-0/1XX numbering formats
are similar to NPA-NXX formats except that the fourth digit of a SBN
is either a zero (0) or a one (1).
1.1.115 "STATE ABBREVIATION" means the following:
1.1.115.1 "AR" means Arkansas
1.1.115.2 "CA" means California
1.1.115.3 "CT" means Connecticut
1.1.115.4 "IL" means Illinois
1.1.115.5 "IN" means Indiana
1.1.115.6 "KS" means Kansas
1.1.115.7 "MI" means Michigan
1.1.115.8 "MO" means Missouri
1.1.115.9 "NV" means Nevada
1.1.115.10 "OH" means Ohio
1.1.115.11 "OK" means Oklahoma
1.1.115.12 "TX" means Texas
1.1.115.13 "WI" means Wisconsin
1.1.116 SWBT-AR - As used herein, SWBT-AR means the applicable SBC
owned ILEC doing business in Arkansas.
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1.1.117 SWBT-KS - As used herein, SWBT-KS means the applicable SBC
owned ILEC doing business in Kansas.
1.1.118 SWBT-MO - As used herein, SWBT-MO means the applicable SBC
owned ILEC doing business in Missouri.
1.1.119 SWBT-OK - As used herein, SWBT-OK means the applicable SBC
owned ILEC doing business in Oklahoma.
1.1.120 SWBT-TX - As used herein, SWBT-TX means the applicable SBC
owned ILEC doing business in Texas.
1.1.121 "SWITCHED ACCESS DETAIL USAGE DATA" means a category 1101xx
record as defined in the EMR Telecordia Practice BR 010-200-010.
1.1.122 "SYNCHRONOUS OPTICAL NETWORK" (SONET) is an optical interface
standard that allows inter-networking of transmission products from
multiple vendors. The base rate is 51.84 Mbps ("OC-1/STS-1") and
higher rates are direct multiples of the base rate, up to 13.22 Gbps.
1.1.123 "TAPE LOAD FACILITY" means data entry points at the LIDB
administrative system and/or the SCPs where LIDB resides.
1.1.124 "TELECOMMUNICATIONS" is As Defined in the Act.
1.1.125 "TELECOMMUNICATIONS CARRIER" is As Defined in the Act.
1.1.126 "TELECOMMUNICATIONS SERVICE" is As Defined in the Act.
1.1.127 "TELEPHONE EXCHANGE SERVICE" is As Defined in the Act.
1.1.128 "TELEPHONE TOLL SERVICE" is As Defined in the Act.
1.1.129 "TOLL BILLING EXCEPTION SERVICE" (TBE) means a service that
allows End Users to restrict third number billing or collect calls to
their lines.
1.1.130 "TOLL FREE SERVICE" is service provided with any dialing
sequence that invokes toll-free, 800-like, service processing, for
example for illustration only, 800 or 800-like services. Toll Free
Service includes but is not limited to calls placed to 800/888 NPA
Service Access Codes (SAC).
1.1.131 "TRANSLATION TYPE" means a code in the Signaling Connection
Control Part (SCCP) of the SS7 signaling message. Signal Transfer
Points (STPs) use Translation Types to identify the routing table used
to route a LIDB
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query. All LIDB queries that use the same Translation Type are routed
to the same LIDB for a particular Line Record or, prior to number
portability, for a particular NPA-NXX.
1.1.132 "TRUNK" means a communication line between two switching
systems.
1.1.133 "WIRE CENTER" is the location of one or more local switching
systems. A point at which End User's loops within a defined geographic
area converge. Such local loops may be served by one (1) or more
Central Office Switches within such premises.
1.2 DEFINITIONS APPLICABLE TO (SBC-12STATE) ONLY
------------------------------------------------
1.2.1 "DATA BASE ADMINISTRATION CENTER" (DBAC) means an SBC-12STATE
location where facility and administrative personnel are located for
administering LIDB and/or Sleuth.
1.2.2 "DESIGNATED CENTRAL OFFICE DOCUMENT" (DOCUMENT DCO) is a
document that is referenced in SBC-12STATE Appendix NIM. The purpose
of the DCO is to document the physical architectural plan for
interconnection and specifies the CLEC Central Offices, CLEC Routing
Points, Activation Dates, the POI(s) and the applicable SBC-12STATE
Central Offices.
1.2.3 "DIGITAL CROSS CONNECT PANEL" (DSX PANEL) means a cross-connect
bay or panel used for the termination of equipment and facilities
operating at digital rates.
1.2.4 "FIBER MEET" means an Interconnection architecture method
whereby the Parties physically Interconnect their networks via an
optical fiber interface (as opposed to an electrical interface) at a
mutually agreed upon location, at which one Party's responsibility or
service begins and the other Party's responsibility ends.
1.2.5 "INTERCONNECTION ACTIVATION DATE" is the date that the
construction of the joint facility Interconnection arrangement has
been completed, trunk groups have been established, joint trunk
testing is completed and trunks have been mutually accepted by the
Parties.
1.2.6 "MAIN DISTRIBUTION FRAME" (MDF) is termination frame for outside
facility and inter-exchange office equipment at the central office for
DS-0 and DSL services.
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1.2.7 "PLAIN OLD TELEPHONE SERVICE" (POTS) means telephone service for
the transmission of human speech.
1.2.8 "ROUTING POINT" is a location which a LEC has designated on its
own network as the homing or routing point for traffic inbound to
Exchange Service provided by the LEC which bears a certain NPA-NXX
designation. The Routing Point is employed to calculate mileage
measurements for the distance-sensitive transport element charges of
Switched Access services. The Routing Point need not be the same as
the Rating Point, nor must it be located within the Rate Center area,
but must be in the same LATA as the NPA-NXX.
1.3 DEFINITIONS APPLICABLE TOSBC-8STATE ONLY
-------------------------------------------
1.3.1 "ACCESSIBLE LETTERS" are correspondence used to communicate
pertinent information regarding SBC-8STATE to the client/End User
community.
1.3.2 "TRUNK-SIDE" refers to a Central Office Switch connection that
is capable of, and has been programmed to treat the circuit as
connecting to another switching entity (for example another Central
Office switch). Trunk-Side connections offer those transmission and
signaling features appropriate for the connection of switching
entities and cannot be used for the direct connection of ordinary
telephone station sets.
1.3.3 "PORT" is the point of interface/access connection to the SNET
public switched network. This may be a switch line side interface or
switch trunk side interface.
1.4 DEFINITIONS APPLICABLE TO SBC-7STATE ONLY
-------------------------------------------
1.4.1 "LINE SIDE" refers to End Office switch connections that have
been programmed to treat the circuit as a local line connected to a
terminating station (e.g., an ordinary subscriber's telephone station
set, a PBX, answering machine, facsimile machine or computer). Line
Side connections offer only those transmission and signal features
appropriate for a connection between an End Office and such
terminating station.
1.4.2 "MID-POINT MEET" is as defined in the appropriate Appendix NIM.
The facility hand off point may differ from the billing point of
interconnection.
1.4.3 "SERVING WIRE CENTER" (SWC) means a Wire Center that serves the
area in which the other Party's or a third party's Wire Center,
aggregation point, point of termination, or point of presence is
located
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1.4.4 "CONTROL OFFICE" means the appropriate exchange carrier center
or office designated as its company's single point of contact for the
provisioning and maintenance of its portion of interconnection
arrangements.
1.4.5 "DATA INTEREXCHANGE CARRIER" (DIXC) is a process designed to
facilitate the reciprocal exchange of voice traffic load data between
the SBC-7STATE and CLECs interconnecting with its network. This
reciprocal exchange of data enables SBC-7STATE and each CLEC to have a
complete view of traffic loads on both ends of two-way trunk groups.
The knowledge of call attempt and overflow data counts on both ends of
a two-way trunk group enables each company to more accurately estimate
the offered, and thereby better estimate, the required quantities of
trunks.
1.4.6 "LOCAL INTERCONNECTION TRUNKS/TRUNK GROUPS" are used for the
termination of Local Exchange Traffic, pursuant to Telcordia Technical
Reference GR-317-CORE "GR-317.
1.4.7 "MID-SPAN MEET" is an interconnection between two LECs whereby
each provides its own cable and equipment up to the meet point of the
cable facilities. The meet point is the demarcation establishing
ownership of and responsibility for each LEC's portion of the
transmission facility.
1.5 DEFINITIONS APPLICABLE TO SNET and SBC-AMERITECH ONLY
--------------------------------------------------------
1.5.1 "CENTRALIZED AMA" (CAMA) is an arrangement where the AMA
equipment is centralized in, for example, a Tandem and is used by
offices that do not have LAMA (Local AMA). The End Office Switch must
send ANI digits to the CAMA office for billing a calling subscriber.
1.5.2 "INTER-WIRE CENTER TRANSPORT" means the transmission facilities
between serving wire centers.
1.6 DEFINITIONS APPLICABLE TO SBC-AMERITECH ONLY
--------------------------------------------
1.6.1 "AUTOMATIC ROUTE SELECTION" or "ARS" means a service feature
associated with a specific grouping of lines that provides for
automatic selection of the least expensive or most appropriate
transmission facility for each call based on criteria programmed into
the system.
1.6.2 "CONTROL OFFICE" means the Central Office providing Tandem
Switching Capability for E9-1-1 calls. The Control Office controls
switching of ANI information to the PSAP and also provides the
Selective Routing feature, standard speed calling features, call
transfer capability and certain
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maintenance functions for each PSAP. These definitions appear to be
related to two different scenarios and will need to remain in tact.
1.6.3 "ENHANCED LECLINK" is an customer access service to the national
distribution of billing records via Telcordia's Centralized Message
Distribution System (CMDS).
1.6.4 "INTEGRATED DIGITAL LOOP CARRIER" means a subscriber loop
carrier system that is twenty-four (24) local Loop transmission paths
combined into a 1.544 Mbps digital signal which integrates within the
switch at a DS1 level.
1.6.5 "LINE SIDE" refers to the switch port toward the CLEC's side of
the equipment.
1.6.6 "LOCAL LOOP TRANSMISSION", "UNBUNDLED LOCAL LOOP", "LOOP" means
the transmission path which extends from the Network Interface Device
or demarcation point at an End User's premise to the Main Distribution
Frame or other designated frame or panel in the SBC-AMERITECH Serving
Wire Center.
1.6.7 "SWITCHED EXCHANGE ACCESS SERVICE" means the offering of
transmission or switching cervices to Telecommunications Carriers for
the purpose of the origination or termination of telephone toll
service. Switched Exchange Access Services include: Feature Group A,
Feature Group B, Feature Group D, 800/888 access, and 900 access and
their successors or similar Switched Exchange Access Services.
1.7 DEFINITIONS APPLICABLE TO SNET ONLY
-----------------------------------
1.7.1 "800 SERIES" is a Telecommunications Service for business or
residence that allows calls to be made to a specific location at no
charge to the calling party. Use of the "800" Service Access Code
(e.g., 800, 888) denotes calls that are to be billed to the receiving
party. A computer database in the provider's network translates the
800 series number into a conventional 7 or 10 digit phone number for
network switching and routing.
1.7.2 "CHARGE NUMBER" is a CCS signaling parameter that refers to the
number transmitted through the network identifying the billing number
of the calling party.
1.7.3 "CONNNET" is a CT packet switching network used for data
communication to and from hosts and databases.
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1.7.4 "DATABASE ADMINISTRATIVE SERVICE LIDB OPERATING GUIDELINES"
(Operating Guidelines) means the document developed by SNET that
provides detailed instructions as to the working parameters of SNET's
provision of the LIDB Administrative System to CLEC, as may be updated
by SNET from time to time. SNET shall provide such Operating
Guidelines to CLEC upon execution of this Agreement.
1.7.5 "INITIAL BILLING COMPANY" (IBC) refers to the LEC that provides
Feature Group B or D services at an End Office.
1.7.6 "LIDB/AS" means the LIDB administrative system for SNET.
1.7.7 "LOOP" is a transmission path between the Minimum Point of
Presence/Entry (MPOP/E) at any End User location and the Main
Distribution Frame (MDF) or Digital Crossconnect Bay (DSX-1) of the
SNET designated serving wire centers.
1.7.8 "SUBSEQUENT BILLING COMPANY" refers to SNET when it provides a
segment of transport or switching services in connection with Feature
Group B or D switched access service. (For purposes of this Agreement,
the Tandem operator is the Subsequent Billing Company.)
1.7.9 "SWITCHED ACCESS SERVICE" means an offering of facilities for
the purpose of the origination or termination of traffic from or to
Exchange Service customer in a given area pursuant to a Switched
Access tariff. Switched Access Services include: Feature Group A,
Feature Group B, Feature Group D, 800 Series, and 900 access. Switched
Access does not include traffic exchanged between LECs for purpose of
local exchange interconnection.
1.7.10 "UNIVERSAL DIGITAL LOOP CARRIER" (UDLC) describes a DLC system
that has a Central Office terminal channel bank that is connected to
the CO switches on the analog side.
1.8 DEFINITIONS APPLICABLE TO SBC-SWBT only
-----------------------------------------
1.8.1 "JURISDICTIONAL IDENTIFICATION PARAMETER" (JIP) is an existing
six (6) digit (NPA-NXX) field in the SS7 message. This field
designates the first point of switching. (JIP is applicable to
SBC-SWBT only)
1.8.2 "LINE VALIDATION ADMINISTRATION SYSTEM" (LVAS) means the LIDB
administrative system for SBC-SWBT.
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1.8.3 "ORIGINATING LINE INFORMATION" (OLI) is an SS7 Feature Group D
signaling parameter which refers to the number transmitted through the
network identifying the billing number of the calling Party. (OLI is
applicable to SBC-SWBT only.)
2. INTERPRETATION, CONSTRUCTION AND SEVERABILITY
2.1 Definitions
-----------
2.1.1 For purposes of this Agreement, certain terms have been defined
in this Agreement to encompass meanings that may differ from, or be in
addition to, the normal connotation of the defined word. Unless the
context clearly indicates otherwise, any term defined or used in the
singular will include the plural. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation" and/or "but
not limited to". The words "will" and "shall" are used interchangeably
throughout this Agreement and the use of either connotes a mandatory
requirement. The use of one or the other will not mean a different
degree of right or obligation for either Party. A defined word
intended to convey its special meaning is capitalized when used. Other
terms that are capitalized and not defined in this Agreement will have
the meaning in the Act, or in the absence of their inclusion in the
Act, their customary usage in the Telecommunications industry as of
the Effective Date.
2.2 Headings Not Controlling
--------------------------
2.2.1 The headings and numbering of Sections, Parts, Appendices
Schedules and Exhibits to this Agreement are for convenience only and
shall not be construed to define or limit any of the terms herein or
affect the meaning or interpretation of this Agreement.
2.2.2 This Agreement incorporates a number of Appendices which,
together with their associated Attachments, Exhibits, Schedules and
Addenda, constitute the entire Agreement between the Parties. In order
to facilitate use and comprehension of the Agreement, the Appendices
have been grouped under broad headings. It is understood that these
groupings are for convenience of reference only, and are not intended
to limit the applicability that any particular appendix, attachment,
exhibit, schedule or addenda may otherwise have.
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2.3 Referenced Documents
---------------------
2.3.1 Unless the context shall otherwise specifically require, and
subject to SECTION 21, whenever any provision of this Agreement refers
to a technical reference, technical publication, CLEC Practice,
SBC-13STATE Practice, any publication of telecommunications industry
administrative or technical standards, or any other document
specifically incorporated into this Agreement (collectively, a
"REFERENCED INSTRUMENT"), it will be deemed to be a reference to the
then-current version or edition (including any amendments,
supplements, addenda, or successors) of each Referenced Instrument
that is in effect, and will include the then-current version or
edition (including any amendments, supplements, addenda, or
successors) of any other Referenced Instrument incorporated by
reference therein.
2.4 References
----------
2.4.1 References herein to Sections, Paragraphs, Exhibits, Parts,
Schedules, and Appendices shall be deemed to be references to
Sections, Paragraphs and Parts of, and Exhibits, Schedules and
Appendices to, this Agreement unless the context shall otherwise
require.
2.5 Tariff References
------------------
2.5.1 Wherever any Commission ordered tariff provision or rate is
cited or quoted herein, it is understood that said cite encompasses
any revisions or modifications to said tariff.
2.5.2 Wherever any Commission ordered tariff provision or rate is
incorporated, cited or quoted herein, it is understood that said
incorporation or reference applies only to the entity within the state
whose Commission ordered that tariff.
2.6 Conflict in Provisions
------------------------
2.6.1 In the event of a conflict between the provisions of this
Agreement and the Act, the provisions of the Act shall govern.
2.6.2 If any definitions, terms or conditions in any given Appendix,
Attachment, Exhibit, Schedule or Addenda differ from those contained
in the main body of this Agreement, those definitions, terms or
conditions will supersede those contained in the main body of this
Agreement, but only in regard to the services or activities listed in
that particular Appendix, Attachment, Exhibit, Schedule or Addenda. In
particular, if an Appendix contains a Term length that differs from
the Term length in the main body
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of this Agreement, the Term length of that Appendix will control the
length of time that services or activities are to occur under that
Appendix, but will not affect the Term length of the remainder of this
Agreement.
2.6.3 In SNET only, in the event of a conflict between any provision
in this Agreement and any provision in the DPUC-ordered tariffs
covering the services that are the subject of this Agreement with
SNET, such DPUC-ordered tariffs will prevail.
2.7 Joint Work Product
--------------------
2.7.1 This Agreement is the joint work product of the Parties and has
been negotiated by the Parties and their respective counsel and shall
be fairly interpreted in accordance with its terms and, in the event
of any ambiguities, no inferences shall be drawn against either Party.
2.8 Severability
------------
2.8.1 If any provision of this Agreement is rejected or held to be
illegal, invalid or unenforceable, each Party agrees that such
provision shall be enforced to the maximum extent permissible so as to
effect the intent of the Parties, and the validity, legality and
enforceability of the remaining provisions of this Agreement shall not
in any way be affected or impaired thereby. If necessary to effect the
intent of the Parties, the Parties shall negotiate in good faith to
amend this Agreement to replace the unenforceable language with
enforceable language that reflects such intent as closely as possible.
The Parties negotiated the terms and conditions of this Agreement for
Interconnection, services and Network Elements as a total arrangement
and it is intended to be nonseverable.
2.9 Incorporation by Reference
----------------------------
2.9.1 The General Terms and Conditions of this Agreement, and every
Interconnection, Resale Service Network Element, function, facility,
product or service provided hereunder, shall be subject to all rates,
terms and conditions contained in the Appendices to this Agreement
which are legitimately related to such Interconnection, Resale
Service, Network Element, function, facility, product or service; and
all such rates, terms and conditions are incorporated by reference
herein and deemed a part of every Interconnection, Resale Service,
Network Element, function, facility, product or service provided
hereunder. Without limiting the general applicability of the
foregoing, the following terms and conditions of the General Terms and
Conditions are specifically agreed by the Parties to be legitimately
related to, and to be applicable to, each Interconnection,
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Resale Service, Network Element, function, facility, product or
service provided hereunder: definitions; interpretation, construction
and severability; notice of changes; general responsibilities of the
Parties; effective date, term and termination; fraud; deposits;
billing and payment of charges; non-payment and procedures for
disconnection; dispute resolution; audits; disclaimer of
representations and warranties; limitation of liability; indemnity;
remedies; intellectual property; publicity and use of trademarks and
service marks; no license; confidentiality; intervening law; governing
law; regulatory approval; changes in End User local exchange service
provider selection; compliance and certification; law enforcement;
relationship of the Parties/independent contractor; no third Party
beneficiaries, disclaimer of agency; assignment; subcontracting;
hazardous substances and responsibility for environmental
contamination; force majeure; taxes; non-waiver; network maintenance
and management; customer inquiries; expenses; conflict of interest;
survival; scope of agreement; amendments and modifications; and entire
agreement.
2.10 Non-Voluntary Provisions
-------------------------
2.10.1 This Agreement incorporates certain rates, terms and conditions
that were not voluntarily negotiated by SBC-13STATE, but instead
resulted from determinations made in arbitrations under Section 252 of
the Act or from other requirements of regulatory agencies or state law
(individually and collectively, a "Non-Voluntary Arrangement").
SBC-13STATE has identified some, but not all, of the Non-Voluntary
Arrangements contained in this Agreement, by designating such
provisions with asterisks. If any Non-Voluntary Arrangement is
modified as a result of any order or finding by the FCC, the
appropriate Commission or a court of competent jurisdiction, any Party
may, by providing written notice to the other Party, require that any
affected Non-Voluntary Arrangement (and any related rates, terms and
conditions) be deleted or renegotiated, as applicable, in good faith
and this Agreement amended accordingly. If such modifications to this
Agreement are not executed within sixty (60) calendar days after the
date of such notice, a Party may pursue its rights under Section 10.
2.10.2 The Parties acknowledge that the Non-Voluntary Arrangements
contained in this Agreement shall not be available in any state other
than the state that originally imposed/required such Non-Voluntary
Arrangement. By way of example only, the Parties acknowledge that the
PUCO's imposition in Ohio of the Minimum Telephone Service Standards
(and all terms and conditions relating thereto) shall not apply in or
be "portable to" any state other than Ohio.
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2.11 State-Specific Rates, Terms and Conditions
----------------------------------------------
2.11.1 For ease of administration, this multistate Agreement contains
certain specified rates, terms and conditions which apply only in a
designated state ("STATE-SPECIFIC TERMS"). To the extent that this
Agreement contains specified rates, terms and conditions which apply
only in a given state, such rates, terms and conditions shall not
apply and shall have no effect in any other state(s) to which this
Agreement is submitted for approval under Section 252(e) of the Act.
2.11.2 State-specific terms, as the phrase is described in Section
2.11.1 above, have been negotiated (or in the case of 2.10.2 above,
included in the agreement per state requirement) by the Parties only
as to the states where this Agreement has been executed, filed and
approved. When the Parties negotiate an agreement for an additional
state, neither Party shall be precluded by any language in this
Agreement from negotiating state-specific terms for the state in which
are to apply.
2.11.3 SUCCESSOR RATES. Certain of the rates, prices and charges set
forth in the applicable Appendix Pricing have been established by the
appropriate Commissions in cost proceedings or dockets initiated under
or pursuant to the Act. If during the Term that Commission or the FCC
changes a rate, price or charge in an order or docket that applies to
any of the Interconnection, Resale Services, Network Elements,
functions, facilities, products and services available hereunder, the
Parties agree to amend this Agreement to incorporate such new rates,
prices and charges, with such rates, prices and charges to be
effective as of the date specified in such order or docket (including
giving effect to any retroactive application, if so ordered). If
either Party refuses to execute an amendment to this Agreement within
sixty (60) calendar days after the date of such order or docket, the
other Party may pursue its rights under Section 10.
2.12 Scope of Obligations
2.12.1 Notwithstanding anything to the contrary contained herein,
SBC-13STATE's obligations under this Agreement shall apply only to:
2.12.1.1 the specific operating area(s) or portion thereof in
which SBC-13 STATE is then deemed to be the ILEC under the Act
(THE "ILEC TERRITORY"), and
2.12.1.2 assets that SBC-13STATE owns or leases and which are
used in connection with SBC-13STATE's provision to CLEC of any
Interconnection, Resale Services, Network Elements, functions,
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facilities, products or services provided or contemplated under
this Agreement, the Act or any tariff or ancillary agreement
referenced herein (individually and collectively, THE "ILEC
ASSETS").
3. NOTICE OF CHANGES -- SECTION 251(C)(5)
3.1 Nothing in this Agreement shall limit either Party's ability to upgrade
its network through the incorporation of new equipment, new software or
otherwise. Each Party agrees to comply with the Network Disclosure rules
adopted by the FCC in CC Docket No. 96-98, Second Report and Order,
codified at 47 C.F.R. 51.325 through 51.335, as such rules may be amended
from time to time (the "NETWORK DISCLOSURE RULES").
4. GENERAL RESPONSIBILITIES OF THE PARTIES
4.1 Upon approval by the Commission, CLEC agrees to begin providing
Telephone Exchange Service within its certificated service area to business
End Users within _____ calendar days and to residential End Users within
_____ calendar days.
4.2 SBC-12STATE and CLEC shall each use their best efforts to meet the
Interconnection Activation Dates.
4.3 Each Party is individually responsible to provide facilities within its
network that are necessary for routing, transporting, measuring, and
billing traffic from the other Party's network and for delivering such
traffic to the other Party's network in the standard format compatible with
SBC-13STATE's network as referenced in Telcordia BOC Notes on LEC Networks
Practice No. SR-TSV-002275, and to terminate the traffic it receives in
that standard format to the proper address on its network. The Parties are
each solely responsible for participation in and compliance with national
network plans, including the National Network Security Plan and the
Emergency Preparedness Plan.
4.4 The Parties shall exchange technical descriptions and forecasts of
their Interconnection and traffic requirements in sufficient detail
necessary to establish the Interconnections required to assure traffic
completion to and from all End Users in their respective designated service
areas.
4.5 Each Party is solely responsible for all products and services it
provides to its End Users and to other Telecommunications Carriers.
4.6 Facilities-based carriers and UNE-based Switch Port providers are
responsible for administering their End User records in a LIDB.
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4.6.1 PACIFIC reserves the right on one hundred eighty (180) calendar
days notice to require UNE-Based Switch Port providers to administer
their End User records in PACIFIC's LIDB.
4.6.2 NEVADA does not have a line information database and/or Calling
Name database. Line information database services can be purchased
from PACIFIC.
4.7 At all times during the term of this Agreement, each Party shall keep
and maintain in force at its own expense the following minimum insurance
coverage and limits and any additional insurance and/or bonds required by
Applicable Law:
4.7.1 Workers' Compensation insurance with benefits afforded under the
laws of each state covered by this Agreement and Employers Liability
insurance with minimum limits of $1,000,000 for Bodily Injury-each
accident, $500,000 for Bodily Injury by disease-policy limits and
$1,000,000 for Bodily Injury by disease-each employee.
4.7.2 Commercial General Liability insurance with minimum limits of:
$10,000,000 General Aggregate limit; $5,000,000 each occurrence
sub-limit for all bodily injury or property damage incurred in any one
occurrence; $1,000,000 each occurrence sub-limit for Personal Injury
and Advertising; $10,000,000 Products/Completed Operations Aggregate
limit, with a $5,000,000 each occurrence sub-limit for
Products/Completed Operations. Fire Legal Liability sub-limits of
$2,000,000 are also required if this Agreement involves collocation.
The other Party must be named as an Additional Insured on the
Commercial General Liability policy.
4.7.3 If use of an automobile is required, Automobile Liability
insurance with minimum limits of $1,000,000 combined single limits per
occurrence for bodily injury and property damage, which coverage shall
extend to all owned, hired and non-owned vehicles.
4.7.4 Each Party shall require subcontractors providing services under
this Agreement to maintain in force the insurance coverage and limits
required in Sections 4.7 through 4.7.3 of this Agreement.
4.7.5 The Parties agree that companies affording the insurance
coverage required under Section 4.7 shall have a rating of B+ or
better and a Financial Size Category rating of VII or better, as rated
in the A.M. Best Key Rating Guide for Property and Casualty Insurance
Companies. Upon request from the other Party, each Party shall provide
to the other Party evidence of such insurance coverage.
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4.7.6 Each Party agrees to provide the other Party with at least
thirty (30) calendar days advance written notice of cancellation,
material reduction or non-renewal of any of the insurance policies
required herein.
4.7.7 Each Party agrees to accept the other Party's program of
self-insurance in lieu of insurance coverage if certain requirements
are met. These requirements are as follows:
4.7.7.1 The Party desiring to satisfy its Workers' Compensation
and Employers Liability obligations through self-insurance shall
submit to the other Party a copy of its Certificate of Authority
to Self-Insure its Workers' Compensation obligations issued by
each state covered by this Agreement or the employer's state of
hire; and
4.7.7.2 The Party desiring to satisfy its automobile liability
obligations through self-insurance shall submit to the other
Party a copy of the state-issued letter approving self-insurance
for automobile liability issued by each state covered by this
Agreement; and
4.7.7.3 The Party desiring to satisfy its general liability
obligations through self-insurance must provide evidence
acceptable to the other Party that it maintains at least an
investment grade (e.g., B+ or higher) debt or credit rating as
determined by a nationally recognized debt or credit rating
agency such as Moody's, Standard and Poor's or Duff and Phelps.
4.7.8 This Section 4.7 is a general statement of insurance
requirements and shall be in addition to any specific requirement of
insurance referenced elsewhere in this Agreement or a Referenced
Instrument.
4.8 Upon CLEC signature of this Agreement, CLEC shall provide SBC-13STATE
with CLEC's state-specific authorized and nationally recognized OCN/AECNs
for facilities-based (Interconnection and/or unbundled Network Elements)
and a separate and distinct OCN/AECN for Resale Services.
4.9 In the event that CLEC makes any corporate name change (including
addition or deletion of a d/b/a), change in OCN/AECN, or makes or accepts a
transfer or assignment of interconnection trunks or facilities (including
leased facilities), or a change in any other CLEC identifier (collectively,
a "CLEC CHANGE"), CLEC shall submit written notice to SBC-13STATE within
thirty (30) calendar days of the first action taken to implement such CLEC
Change. Within thirty (30) calendar days following receipt of that notice,
the Parties shall negotiate rates to compensate SBC-13STATE for the costs
to be incurred by SBC-13STATE to
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make the CLEC Change to the applicable SBC-13STATE databases, systems,
records and/or recording announcement(s) for CLEC branded/repair calls. In
addition, CLEC shall compensate SBC-13STATE for any service order charges
and/or service request charges associated with such CLEC Change.
SBC-13STATE's agreement to implement a CLEC Change is conditioned upon
CLEC's agreement to pay all reasonable charges billed to CLEC for such CLEC
Change.
4.10 When a End User changes its service provider from SBC-13STATE to CLEC
or from CLEC to SBC-13STATE and does not retain its original telephone
number, the Party formerly providing service to such End User shall furnish
a referral announcement ("REFERRAL ANNOUNCEMENT") on the original telephone
number that specifies the End User's new telephone number.
4.10.1 The following pertains to AM-IL, AM-WI and PACIFIC only:
4.10.1.1 Referral Announcements shall be provided by a Party to
the other Party for the period of time and at the rates set forth
in the referring Party's tariff(s); provided, however, if either
Party provides Referral Announcements for a period different
(either shorter or longer) than the period(s) stated in its
tariff(s) when its End Users change their telephone numbers, such
Party shall provide the same level of service to End Users of the
other Party.
4.10.2 The following applies to AM-IN only:
4.10.2.1 Referral Announcements shall be provided by a Party to
the other Party for the period specified in 170 IAC
7-1.1-11(I)(3)(a) and (b) and at the rates set forth in the
referring Party's tariff(s). However, if either Party provides
Referral Announcements for a period different than the above
period(s) when its End Users change their telephone numbers, such
Party shall provide the same level of service to End Users of the
other Party.
4.10.3 The following applies to AM-MI only:
4.10.3.1 Referral Announcements shall be provided by a Party to
the other Party for the period specified in Michigan
Administrative Rule 484.134 and at the rates set forth in the
referring Party's tariff(s). However, if either Party provides
Referral Announcements for a period longer than the above
period(s) when its End Users change their telephone numbers, such
Party shall provide the same level of service to End Users of the
other Party.
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4.10.4 The following applies to AM-OH only:
4.10.4.1 Referral Announcements shall be provided by a Party to
the other Party for the period of time specified in Rule
4901:1-5-12, Ohio Administrative Code and at the rates set forth
in the referring Party's tariff(s). However, if either Party
provides Referral Announcements for a period longer than the
above period(s) when its End Users change their telephone
numbers, such Party shall provide the same level of service to
End Users of the other Party.
4.11 Each Party shall be responsible for labor relations with its own
employees. Each Party agrees to notify the other Party as soon as
practicable whenever such Party has knowledge that a labor dispute
concerning its employees is delaying or threatens to delay such Party's
timely performance of its obligations under this Agreement and shall
endeavor to minimize impairment of service to the other Party (for example,
by using its management personnel to perform work or by other means) in the
event of a labor dispute to the extent permitted by Applicable Law.
4.12 Each Party shall act in good faith in its performance under this
Agreement and, in each case in which a Party's consent or agreement is
required or requested hereunder, such Party shall not unreasonably withhold
or delay such consent or agreement.
5. EFFECTIVE DATE, TERM, AND TERMINATION
5.1 This Effective Date of this Agreement shall be ten (10) calendar days
after the Commission approves this Agreement under Section 252(e) of the
Act or, absent such Commission approval, the date this Agreement is deemed
approved under Section 252(e)(4) of the Act.
5.2 The term of this Agreement shall commence upon the Effective Date of
this Agreement and shall expire on September 24, 2001 (the "TERM"). Absent
the receipt by one Party of written notice from the other Party within 180
calendar days prior to the expiration of the Term to the effect that such
Party does not intend to extend the Term, this Agreement shall remain in
full force and effect on and after the expiration of the Term until
terminated by either Party pursuant to Section 5.3 or 5.4.
5.3 Notwithstanding any other provision of this Agreement, either Party may
terminate this Agreement and the provision of any Interconnection, Resale
Services, Network Elements, functions, facilities, products or services
provided pursuant to this Agreement, at the sole discretion of the
terminating Party, in the
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event that the other Party fails to perform a material obligation or
breaches a material term of this Agreement and the other Party fails to
cure such nonperformance or breach within forty-five (45) calendar days
after written notice thereof. Any termination of this Agreement pursuant to
this Section 5.3 shall take effect immediately upon delivery of written
notice to the other Party that it failed to cure such nonperformance or
breach within forty-five (45) calendar days after written notice thereof.
5.4 If pursuant to Section 5.2, this Agreement continues in full force and
effect after the expiration of the Term, either Party may terminate this
Agreement after delivering written notice to the other Party of its
intention to terminate this Agreement, subject to Sections 5.5 and 5.6.
Neither Party shall have any liability to the other Party for termination
of this Agreement pursuant to this Section 5.4 other than its obligations
under Sections 5.5 and 5.6.
5.5 Upon termination or expiration of this Agreement in accordance with
Sections 5.2, 5.3 or 5.4:
5.5.1 Each Party shall continue to comply with its obligations set
forth in Section 42; and
5.5.2 Each Party shall promptly pay all amounts owed under this
Agreement or place any Disputed Amounts into an escrow account that
complies with Section 8.4 hereof;
5.5.3 Each Party's confidentiality obligations shall survive; and
5.5.4 Each Party 's indemnification obligations shall survive.
5.6 If either Party serves notice of expiration pursuant to Section 5.2 or
Section 5.4, CLEC shall have ten (10) calendar days to provide SBC-13STATE
written confirmation if CLEC wishes to pursue a successor agreement with
SBC-13STATE or terminate its agreement. CLEC shall identify the action to
be taken on each applicable (13) state(s). If CLEC wishes to pursue a
successor agreement with SBC-13STATE, CLEC shall attach to its written
confirmation or notice of expiration/termination, as applicable, a written
request to commence negotiations with SBC-13STATE under Sections 251/252 of
the Act and identify each of the state(s) the successor agreement will
cover. Upon receipt of CLEC's Section 252(a)(1) request, the Parties shall
commence good faith negotiations on a successor agreement
5.7 The rates, terms and conditions of this Agreement shall continue in
full force and effect until the earlier of (i) the effective date of its
successor agreement, whether such successor agreement is established via
negotiation, arbitration or pursuant to
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Section 252(i) of the Act; or (ii) the date that is ten (10) months after
the date on which SBC-13STATE received CLEC's Section 252(a)(1) request;
provided, however, when a successor agreement becomes effective, the terms,
rates and charges of such successor Agreement shall apply retroactively
back to the date this Agreement is terminated or expires, whichever is
later, and that the retro-active true-up shall be completed within ninety
(90) calendar days following the effective date of such successor
Agreement.
5.8 If at any time during the Section 252(a)(1) negotiation process (prior
to or after the expiration date or termination date of this Agreement),
CLEC withdraws its Section 252(a)(1) request, CLEC must include in its
notice of withdrawal a request to adopt a successor agreement under Section
252(i) of the Act or affirmatively state that CLEC does not wish to pursue
a successor agreement with SBC-13STATE for a given state. The rates, terms
and conditions of this Agreement shall continue in full force and effect
for a period of ninety (90) calendar days after the date CLEC provides
notice of withdrawal of its Section 252(a)(1) request. On the earlier of
(i) the ninety-first (91st) calendar day following SBC-13STATE's receipt of
CLEC's notice of withdrawal of its Section 252(a)(1) request or (ii) the
effective date of the agreement following approval by the COMMISSION of the
adoption of an agreement under 252(i) , the Parties shall, have no further
obligations under this Agreement except those set forth in Section 5.5 of
this Agreement.
5.9 If CLEC does not affirmatively state that it wishes to pursue a
successor agreement with SBC-13STATE in its, as applicable, notice of
expiration or termination or the written confirmation required after
receipt of the SBC-owned ILEC's notice of expiration or termination, then
the rates, terms and conditions of this Agreement shall continue in full
force and effect for a period of ninety (90) calendar days after the date
CLEC provided or received notice of expiration or termination. On the
ninety-first (91st) day following CLEC provided or received notice of
expiration or termination, the Parties shall have no further obligations
under this Agreement except those set forth in Section 5.5 of this
Agreement.
5.10 In the event of termination of this Agreement pursuant to Section 5.9,
SBC-13STATE and CLEC shall cooperate in good faith to effect an orderly
transition of service under this Agreement; provided that CLEC shall be
solely responsible (from a financial, operational and administrative
standpoint) to ensure that its End Users have been transitioned to a new
LEC by the expiration date or termination date of this Agreement.
6. FRAUD
6.1 SBC-13STATE shall not be liable to CLEC for any fraud associated with
CLEC's End User's account, including 1+ IntraLATA toll, ported numbers, and
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Alternate Billing Service (ABS). ABS is a service that allows End Users to
bill calls to account(s) that might not be associated with the originating
line. There are three types of ABS calls: calling card, collect, and third
number billed calls.
6.2 The Parties agree to cooperate with one another to investigate,
minimize, and take corrective action in cases of fraud involving 1+
IntraLATA toll calls, ABS, and ported numbers. The Parties' fraud
minimization procedures are to be cost-effective and implemented so as not
to unduly burden or harm one Party as compared to the other.
6.3 In cases of suspected fraudulent activity by an End User, at a minimum,
the cooperation referenced in Section 6.2 will include providing to the
other Party, upon request, information concerning Customers who terminate
services to that Party without paying all outstanding charges. The Party
seeking such information is responsible for securing the End User's
permission to obtain such information.
6.4 SBC-AMERITECH, SBC-SWBT, PACIFIC, SNET will provide notification
messages to CLEC on suspected occurrences of ABS-related fraud on CLEC
accounts stored in the applicable LIDB. PACIFIC will provide such alert
messages by e-mail. SBC-AMERITECH, SBC-SWBT AND SNET will provide via fax.
6.4.1 SBC-SWBT (ON BEHALF OF ITSELF AND SNET) AND PACIFIC will use a
Sleuth system to determine suspected occurrences of ABS-related fraud
for CLEC using the same criteria SBC-SWBT AND PACIFIC use to monitor
fraud on their respective accounts.
6.4.2 CLEC understands that Sleuth alerts only identify potential
occurrences of fraud. CLEC understands and agrees that it will need to
perform its own investigations to determine whether a fraud situation
actually exists. CLEC understands and agrees that it will also need to
determine what, if any, action CLEC should take as a result of a
Sleuth alert.
6.4.3 The Parties will provide contact names and numbers to each other
for the exchange of Sleuth alert notification information twenty-four
(24) hours per day seven (7) days per week.
6.4.4 For each alert notification provided to CLEC, CLEC may request a
corresponding thirty-day (30-day) historical report of ABS-related
query processing. CLEC may request up to three reports per alert.
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6.5 In SBC-SWBT AND PACIFIC ABS-related alerts are provided to CLEC at no
additional charge, except as related in 6.6 below.
6.5.1 In PACIFIC, 1+ IntraLATA toll fraud alerts are offered for
Resale only under the product name Traffic Alert Referral Service
(TARS). For TARS, CLEC agrees to pay a recurring usage rate as
outlined in Appendix Pricing.
6.6 Traffic Alert Referral Service ("TARS") 1+ Intra-LATA Toll Fraud
Monitoring
6.6.1 For terms and conditions for TARS, see Appendix Resale.
6.6.2 TARS is offered in PACIFIC only.
7. DEPOSITS (SBC-12STATE)
7.1 The deposit requirements set forth in this Section 7 apply to the
Resale Services and Network Elements furnished under this Agreement. A CLEC
furnished both Resale Services and Network Elements in one (1) state under
this Agreement shall make two (2) separate deposits for that state, each
calculated separately as set forth below in Sections 7.2 through 7.10,
inclusive.
7.2 If CLEC has not established a minimum of twelve (12) consecutive months
good credit history with all SBC-owned ILECs (that is, AMERITECH, NEVADA,
PACIFIC, SNET AND SWBT) where CLEC is doing or has done business as a local
service provider, CLEC shall remit an initial cash deposit to SBC-12STATE
prior to the furnishing of Resale Services or Network Elements in each
state covered by this Agreement. The deposit required by the previous
sentence shall be determined as follows:
7.2.1 for NEVADA, PACIFIC or SWBT, if immediately prior to the
Effective Date, CLEC was not operating as a Local Service Provider in
a state covered by this Agreement, the initial deposit for that state
shall be in the amount of $17,000; or
7.2.2 for NEVADA, PACIFIC or SWBT, if immediately prior to the
Effective Date, CLEC was operating as a Local Service Provider in a
state covered by this Agreement, the deposit for that state shall be
in the amount calculated using the method set forth in Section 7.7 of
this Agreement; or
7.2.3 for SBC-AMERITECH, subject to external credit check verification
and/or financial statement review, SBC-AMERITECH may require two (2)
to four (4) months of projected average monthly billings as a deposit.
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7.2.4 If CLEC has established a minimum of twelve (12) consecutive
months good credit history with all SBC-owned ILEC(s) (that is,
AMERITECH, NEVADA, PACIFIC, SNET and SWBT) with which CLEC is doing or
has done business as a Local Service Provider, SBC-12STATE shall waive
the initial deposit requirement; provided, however, that the terms and
conditions set forth in Section 7.1 through Section 7.10 of this
Agreement shall continue to apply in each state for the Term . In
determining whether CLEC has established a minimum of twelve (12)
consecutive months good credit history with each SBC-owned ILEC with
which CLEC is doing or has done business, CLEC's payment record with
each SBC-owned ILEC for the most recent twelve (12) months occurring
within the twenty-four (24) month period immediately prior to the
Effective Date shall be considered.
7.3 Any cash deposit for one state shall be held by SBC-12STATE as a
guarantee of payment of charges billed to CLEC, provided, however,
SBC-12STATE may exercise its right to credit any cash deposit to CLEC's
account upon the occurrence of any one of the following events:
7.3.1 when SBC-12STATE sends CLEC the second delinquency notification
for that state during the most recent twelve (12) months; or
7.3.2 when SBC-12STATE suspends CLEC's ability to process orders in
accordance with Section 9.6.1.1; or
7.3.3 when CLEC files for protection under the bankruptcy laws; or
7.3.4 when an involuntary petition in bankruptcy is filed against CLEC
and is not dismissed within sixty (60) days; or
7.3.5 when this Agreement expires or terminates; or
7.3.6 during the month following the expiration of twelve (12) months
after that cash deposit was remitted, SBC-12STATE shall credit any
cash deposit to CLEC's account so long as CLEC has not been sent more
than one delinquency notification letter for that state during the
most recent twelve (12) months.
7.3.7 For the purposes of this Section 7.3, interest will be
calculated as specified in Section 8.1 and shall be credited to CLEC's
account at the time that the cash deposit is credited to CLEC's
account.
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7.4 So long as CLEC maintains timely compliance with its payment
obligations, SBC-12STATE will not increase the deposit amount required. If
CLEC fails to maintain timely compliance with its payment obligations,
SBC-12STATE reserves the right to require additional deposit(s) in
accordance with Section 7.1 and Section 7.5 through Section 7.10.
7.5 If during the first six (6) months of operations in a state covered by
this Agreement, CLEC has been sent one delinquency notification letter by
SBC-12STATE, the deposit amount for that state shall be re-evaluated based
upon CLEC's actual billing totals and shall be increased if CLEC's actual
billing average:
7.5.1 for NEVADA, PACIFIC or SWBT for a two (2) month period exceeds
the deposit amount held; or
7.5.2 for AMERITECH for a two (2) to four (4) month period exceeds the
deposit amount held.
7.6 Throughout the Term, any time CLEC has been sent two (2) delinquency
notification letters for any one state by SBC-12STATE, the deposit amount
for that state shall be re-evaluated based upon CLEC's actual billing
totals and shall be increased if CLEC's actual billing average:
7.6.1 or NEVADA, PACIFIC or SWBT for a two (2) month period exceeds
the deposit amount held; or
7.6.2 for AMERITECH for a two (2) to four (4) month period exceeds the
deposit amount held.
7.7 Whenever a deposit is re-evaluated as specified in Section 7.5 or
Section 7.6, such deposit shall be calculated in an amount equal to the
average billing to CLEC for that state for a two (2) to four (4) month
period. The most recent three (3) months billing on all of CLEC's
CBAs/ESBAs/ASBS ("CBA" is utilized in SWBT only; "ESBA" is utilized in
PACIFIC and NEVADA only; "ASBS" is utilized in AMERITECH only) and BANs for
Resale Services or Network Elements within that state shall be used to
calculate CLEC's monthly average.
7.7.1 In SBC-7STATE only, after calculating the amount equal to the
average billing to CLEC for that state for a two (2) month period, add
the amount of any charges that would be applicable to transfer all of
CLEC's then-existing End-Users of Resale Services to SBC-7STATE in the
event of CLEC's disconnection for non-payment of charges. The
resulting sum is the amount of the deposit.
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7.8 Whenever a deposit is re-evaluated as specified in Section 7.5 and
Section 7.6, CLEC shall remit the additional deposit amount to SBC-12STATE
within thirty (30) calendar days of receipt of written notification from
SBC-12STATE requiring such deposit. If CLEC fails to furnish the required
deposit within thirty (30) calendar days of receipt of written notice
requesting such deposit, SBC-12STATE shall begin the process set forth in
Section 9 of this Agreement for that state. If CLEC continues to fail to
furnish the required deposit at the expiration of the fourteen (14)
calendar days specified in Section 9.3 of this Agreement, then SBC-12STATE
shall begin the procedure(s) set forth in Sections 9.5 and 9.6 of this
Agreement for that state.
7.9 This cash deposit requirement may be satisfied in whole or in part with
an irrevocable bank letter of credit acceptable to SBC-7STATE. No interest
shall be paid by SBC-7STATE for any portion of the deposit requirement
satisfied by an irrevocable bank letter of credit. SBC-7STATE may demand
payment from the issuing bank of any irrevocable bank letter of credit upon
the occurrence of any of the events listed in Section 7.3.1 through 7.3.4.
7.10 The fact that SBC-12STATE holds either a cash deposit or irrevocable
bank letter of credit does not relieve CLEC from timely compliance with its
payment obligations under this Agreement.
7.11 For Deposit requirements for SNET, see the applicable DPUC ordered
tariff.
8. BILLING AND PAYMENT OF CHARGES
8.1 Unless otherwise stated, each Party will render monthly bill(s) to the
other for Interconnection, Resale Services, Network Elements, functions,
facilities, products and services provided hereunder at the rates set forth
in the applicable Appendix Pricing, as set forth in applicable tariffs or
other documents specifically referenced herein and, as applicable, as
agreed upon by the Parties or authorized by a Party.
8.1.1 Remittance in full of all bills rendered by SBC-AMERITECH,
SBC-SWBT and PACIFIC is due within thirty (30) calendar days of each
bill date (the "BILL DUE DATE") and shall be paid in accordance with
the terms of Section 8.3 of this Agreement.
8.1.2 Remittance in full of all bills rendered by NEVADA is due in
accordance with the terms set forth in the Commission C2-A Tariff,
with the date on which amounts are due referred to herein as the "BILL
DUE DATE".
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8.1.3 Remittance in full of all bills rendered by SNET is due in
accordance with the terms set forth in the Connecticut Access Service
Tariff approved by the DPUC, with the date on which amounts are due
referred to herein as the "BILL DUE DATE".
8.1.4 Remittance in full of all bills rendered by CLEC is due within
thirty (30) calendar days of each bill date (the "BILL DUE DATE").
8.1.5 If CLEC fails to remit payment for any charges for services by
the Bill Due Date, or if a payment or any portion of a payment is
received from CLEC after the Bill Due Date, or if a payment or any
portion of a payment is received in funds which are not immediately
available to SBC-13STATE as of the Bill Due Date (individually and
collectively, "PAST DUE"), then a late payment charge shall be
assessed as provided in Sections 8.1.5.1 through 8.1.5.3, as
applicable.
8.1.5.1 If any charge incurred under this Agreement that is
billed out of any SBC-8STATE billing system other than the
SBC-SWBT Customer Records Information System (CRIS) is Past Due,
the unpaid amounts shall bear interest from the Bill Due Date
until paid at the lesser of (i) the rate used to compute the Late
Payment Charge in the applicable SBC-8STATE intrastate access
services tariff in that state and (ii) the highest rate of
interest that may be charged under Applicable Law, compounded
daily from the Bill Due Date to and including the date that the
payment is actually made and available.
8.1.5.2 If any charge incurred under this Agreement that is
billed out of SBC-SWBT's CRIS is Past Due, the unpaid amounts
shall bear interest from the Bill Due Date until paid. The
interest rate applied to SBC-SWBT CRIS-billed Past Due unpaid
amounts shall be the lesser of (i) the rate used to compute the
Late Payment Charge contained in the applicable SBC-SWBT
intrastate retail Commission-approved tariff governing Late
Payment Charges to SBC-SWBT's retail End Users that are business
End Users in that state and (ii) the highest rate of interest
that may be charged under Applicable Law, compounded daily from
the Bill Due Date to and including the date that the payment is
actually made and available.
8.1.5.3 If any charge incurred under this Agreement that is
billed out of any SBC-AMERITECH billing system is Past Due, the
unpaid amounts shall accrue interest from the Bill Due Date at
the lesser of (i) one and one-half percent (1 %) per month and
(ii) the
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highest rate of interest that may be charged under Applicable
Law, compounded daily from the Bill Due Date to and including the
date that the payment is actually made and available.
8.2 If any charge incurred by SBC-12STATE under this Agreement is Past Due,
the unpaid amounts shall bear interest from the Bill Due Date until paid.
The interest rate applied shall be the lesser of (i) the rate used to
compute the Late Payment Charge contained in the applicable SBC-12STATE's
intrastate access services tariff in that state and (ii) the highest rate
of interest that may be charged under Applicable Law, compounded daily from
the Bill Due Date to and including the date that the payment is actually
made and available.
8.3 CLEC shall make all payments to SBC-12STATE via electronic funds credit
transfers through the Automated Clearing House Association (ACH) network to
the financial institution designated by SBC-12STATE. Remittance information
will be communicated together with the funds transfer via the ACH network.
CLEC shall use the CCD+ or the CTX transaction set. CLEC and SBC-12STATE
shall abide by the National Automated Clearing House Association (NACHA)
Rules and Regulations. Each ACH credit transfer shall be received by
SBC-12STATE no later than the Bill Due Date of each bill or Late Payment
Charges will apply. SBC-12STATE shall not be liable for any delays in
receipt of funds or errors in entries caused by CLEC or Third Parties,
including CLEC's financial institution. CLEC is responsible for its own
banking fees.
8.3.1 CLEC shall make all payments to SNET in "immediately available
funds." All payments to SNET shall be made using one of the methods
set forth in the Connecticut Access Service Tariff approved by the
CT-DPUC or via electronic funds credit transfers through the Automated
Clearing House Association (ACH) network to the financial institution
designated by SNET. If CLEC makes payment through funds transfer via
the ACH network, remittance information will be communicated together
with the funds transfer via the ACH network. If CLEC makes payment
through funds transfer via the ACH network, CLEC shall use the CCD+ or
the CTX transaction set. CLEC and SNET shall abide by the National
Automated Clearing House Association (NACHA) Rules and Regulations.
Each payment shall be received by SNET no later than the Bill Due Date
of each bill or Late Payment Charges will apply. SNET shall not be
liable for any delays in receipt of funds or errors in entries caused
by CLEC or Third Parties, including CLEC's financial institution. CLEC
is responsible for its own banking fees.
8.4 If any portion of an amount due to a Party (the "BILLING PARTY") for
Resale Services or Network Elements under this Agreement is subject to a
bona fide dispute between the Parties, the Party billed (the "NON-PAYING
PARTY") shall,
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prior to the Bill Due Date, give written notice to the Billing Party of the
amounts it disputes ("DISPUTED AMOUNTS") and include in such written notice
the specific details and reasons for disputing each item listed in Section
10.4.1. The Non-Paying Party shall pay when due (i) all undisputed amounts
to the Billing Party, and (ii) all Disputed Amounts into an interest
bearing escrow account with a Third Party escrow agent mutually agreed upon
by the Parties. To be acceptable, the Third Party escrow agent must meet
all of the following criteria:
8.4.1 The financial institution proposed as the Third Party escrow
agent must be located within the continental United States;
8.4.2 The financial institution proposed as the Third Party escrow
agent may not be an Affiliate of either Party; and
8.4.3 The financial institution proposed as the Third Party escrow
agent must be authorized to handle Automatic Clearing House (ACH)
(credit transactions) (electronic funds) transfers.
8.4.4 In addition to the foregoing requirements for the Third Party
escrow agent, the disputing Party and the financial institution
proposed as the Third Party escrow agent must agree that the escrow
account will meet all of the following criteria:
8.4.4.1 The escrow account must be an interest bearing account;
8.4.4.2 All charges associated with opening and maintaining the
escrow account will be borne by the disputing Party;
8.4.4.3 That none of the funds deposited into the escrow account
or the interest earned thereon may be subjected to the financial
institution's charges for serving as the Third Party escrow
agent;
8.4.4.4 All interest earned on deposits to the escrow account
shall be disbursed to the Parties in the same proportion as the
principal; and
8.4.4.5 Disbursements from the escrow account shall be limited to
those:
8.4.4.5.1 authorized in writing by both the disputing Party
and the Billing Party (that is, signature(s) from
representative(s) of the disputing Party only are not
sufficient to properly authorize any disbursement); or
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8.4.4.5.2 made in accordance with the final, non-appealable
order of the arbitrator appointed pursuant to the provisions
of Section 10.7; or
8.4.4.5.3 made in accordance with the final, non-appealable
order of the court that had jurisdiction to enter the
arbitrator's award pursuant to Section 10.7.
8.5 Disputed Amounts in escrow shall be subject to Late Payment Charges as
set forth in Section 8.1.
8.6 Issues related to Disputed Amounts shall be resolved in accordance with
the procedures identified in the Dispute Resolution provisions set forth in
Section 10.
8.7 If the Non-Paying Party disputes any charges for Resale Services or
Network Elements and any portion of the dispute is resolved in favor of
such Non-Paying Party, the Parties shall cooperate to ensure that all of
the following actions are taken:
8.7.1 the Billing Party shall credit the invoice of the Non-Paying
Party for that portion of the Disputed Amounts resolved in favor of
the Non-Paying Party, together with any Late Payment Charges assessed
with respect thereto no later than the second Bill Due Date after the
resolution of the Dispute;
8.7.2 within fifteen (15) calendar days after resolution of the
Dispute, the portion of the escrowed Disputed Amounts resolved in
favor of the Non-Paying Party shall be released to the Non-Paying
Party, together with any accrued interest thereon;
8.7.3 within fifteen (15) calendar days after resolution of the
Dispute, the portion of the Disputed Amounts resolved in favor of the
Billing Party shall be released to the Billing Party, together with
any accrued interest thereon; and
8.7.4 no later than the third Bill Due Date after the resolution of
the dispute regarding the Disputed Amounts, the Non-Paying Party shall
pay the Billing Party the difference between the amount of accrued
interest such Billing Party received from the escrow disbursement and
the amount of Late Payment Charges such Billing Party is entitled to
receive pursuant to Section 8.1.
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8.8 Failure by the Non-Paying Party to pay any charges determined to be
owed to the Billing Party within the time specified in Section 8.6 shall be
grounds for termination of this Agreement.
8.9 Exchange of Billing Message Information
-------------------------------------------
8.9.1 SBC-13 STATE will provide CLEC a specific Daily Usage File
("DUF" OR "USAGE EXTRACT") for Resale Services and Network Element
usage sensitive services provided hereunder ("CUSTOMER USAGE DATA").
Such Customer Usage Data shall be provided by SBC-13STATE in
accordance with Exchange Message Interface (EMI) guidelines supported
by OBF. Any exceptions to the supported formats will be noted in the
DUF implementation requirements documentation for each ILEC. The DUF
shall include (i) specific daily usage, including both Local Traffic
(if and where applicable) and LEC-carried IntraLATA Toll Traffic, in
EMI format for usage sensitive services furnished in connection with
each Resale Service and Network Element to the extent that similar
usage sensitive information is provided to retail End Users of
SBC-13STATE within that state, (ii) with sufficient detail to enable
CLEC to bill its End Users for usage sensitive services furnished by
SBC-13STATE in connection with Resale Services and Network Elements
provided by SBC-13STATE. Procedures and processes for implementing the
interfaces with SBC-AMERITECH, PACIFIC, NEVADA, SNET, and SBC-SWBT
will be included in implementation requirements documentation.
8.9.2 To establish file transmission for the DUF, CLEC must provide a
separate written request for each state to SBC-AMERITECH, PACIFIC,
NEVADA, SNET and SBC-SWBT no less than sixty (60) calendar days prior
to the desired first transmission date for each file.
8.9.3 Call detail for LEC-carried calls that are alternately billed to
CLEC End Users will be forwarded to CLEC as rated call detail on the
DUF.
8.9.4 SBC-SWBT shall bill CLEC for DUF furnished by SBC-SWBT in
accordance with the price(s) provided in the applicable Appendix
Pricing under "Electronic Billing Information."
8.9.5 Interexchange call detail on Resale Services or Network Elements
(ports) that is forwarded to SBC-13STATE for billing, which would
otherwise be processed by SBC-13STATE for its retail End Users, will
be returned to the IXC and will not be passed through to CLEC. This
call detail will be returned to the IXC with a transaction code
indicating that the returned call originated from a resold account.
Billing for Information Services and
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other ancillary services traffic on Resale Services and Network
Elements (ports) will be passed through when SBC-13STATE records the
message.
8.9.6 SBC-AMERITECH, NEVADA and PACIFIC Ancillary Services messages
originated on or billed to a Resale Service or Network Element (port)
in those seven (7) states shall be subject to the rates, terms and
conditions of Appendix MESSAGE EXCHANGE.
8.9.7 CLEC shall be responsible for providing all billing information
to each of its End Users, regardless of the method used to provision
the End User's service.
9. NONPAYMENT AND PROCEDURES FOR DISCONNECTION
9.1 Unless otherwise specified therein, Sections 9.1, 9.2, 9.3, 9.4 and 9.5
shall apply to all charges billed for all services Interconnection, Resale
Services, Network Elements, functions, facilities, products and services
furnished under this Agreement. Section 9.6 shall apply only to Resale
Services and Network Elements furnished under this Agreement.
9.1.1 If a Party is furnished services under the terms of this
Agreement in more than one (1) state, Sections 9.1 through 9.7,
inclusive, shall be applied separately for each such state.
9.2 Failure to pay charges may be grounds for disconnection of
Interconnection, Resale Services, Network Elements, functions, facilities,
products and services furnished under this Agreement. If a Party fails to
pay by the Bill Due Date, any and all charges billed to it under this
Agreement, including any Late Payment Charges or miscellaneous charges
("UNPAID CHARGES"), and any portion of such Unpaid Charges remain unpaid
after the Bill Due Date, the Billing Party shall notify the Non-Paying
Party in writing that in order to avoid disruption or disconnection of the
applicable Interconnection, Resale Services, Network Elements, functions,
facilities, products and services furnished under this Agreement, the
Non-Paying Party must remit all Unpaid Charges to the Billing Party.
9.2.1 With respect to Resale Services and Network Elements,
SBC-13STATE will notify CLEC of any Unpaid Charges that remain unpaid
fifteen (15) calendar days after the Bill Due Date and that CLEC must
remit payment within fourteen (14) calendar days following receipt of
SBC-13STATE's notice.
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9.3 If the Non-Paying Party desires to dispute any portion of the Unpaid
Charges, the Non-Paying Party shall take all of the following actions not
later than fourteen (14) calendar days following receipt of the Billing
Party's notice of Unpaid Charges:
9.3.1 notify the Billing Party in writing which portion(s) of the
Unpaid Charges it disputes, including the total amount disputed
("DISPUTED AMOUNTS") and the specific details listed in Section 10.4.1
of this Agreement, together with the reasons for its dispute; and
9.3.2 immediately pay to the Billing Party all undisputed Unpaid
Charges; and
9.3.3 pay all Disputed Amounts relating to Resale Services and Network
Elements into an interest bearing escrow account that complies with
the requirements set forth in Section 8.4.
9.3.4 With respect to Resale Services and Network Elements, evidence
that the Non-Paying Party has established an interest bearing escrow
account that complies with all of the terms set forth in Section 8.4
and deposited a sum equal to the Disputed Amounts into that account
must be furnished to the Billing Party before the Unpaid Charges will
be deemed to be "disputed" under Section 10 of this Agreement.
9.4 Issues related to Disputed Amounts shall be resolved in accordance with
the procedures identified in the Dispute Resolution provision set forth in
Section 10.
9.5 SBC-AMERITECH ONLY
9.5.1 Notwithstanding anything to the contrary herein, if the
Non-Paying Party fails to (i) pay any undisputed amounts by the Bill
Due Date, (ii) pay the disputed portion of a past due bill into an
interest-bearing escrow account with a Third Party escrow agent, (iii)
pay any revised deposit or (iv) make a payment in accordance with the
terms of any mutually agreed upon payment arrangement, the Billing
Party may, in addition to exercising any other rights or remedies it
may have under Applicable Law, provide written demand to the
Non-Paying Party for failing to comply with the foregoing. If the
Non-Paying Party does not satisfy the written demand within five (5)
Business Days of receipt, the Billing Party may exercise any, or all,
of the following options:
9.5.1.1 assess a late payment charge and where appropriate, a
dishonored check charge;
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9.5.1.2 require provision of a deposit or increase an existing
deposit pursuant to a revised deposit request;
9.5.1.3 refuse to accept new, or complete pending, orders; and/or
9.5.1.4 discontinue service.
9.5.2 Notwithstanding anything to the contrary in this Agreement, the
Billing Party's exercise of any of the above options:
9.5.2.1 shall not delay or relieve the Non-Paying Party's
obligation to pay all charges on each and every invoice on or
before the applicable Bill Due Date, and
9.5.2.2 Sections 9.5.1.3 and 9.5.1.4 shall exclude any affected
order or service from any applicable performance interval or
Performance Benchmark.
9.5.3 Once disconnection has occurred, additional charges may apply.
9.6 SBC-7STATE ONLY
9.6.1 If any Unpaid Charges for Resale Services or Network Elements
remain unpaid and undisputed twenty-nine (29) calendar days past the
Bill Due Date of such Unpaid Charges, SBC-7STATE shall notify CLEC and
the Commission in writing that unless all Unpaid Charges for Resale
Services and Network Elements are paid within sixteen (16) calendar
days following CLEC's receipt of such notice, the Resale Services
and/or Network Elements furnished to CLEC under this Agreement for
which Unpaid Charges are outstanding (i.e., delinquent and undisputed)
shall be disconnected. This notice shall further specify that
SBC-7STATE shall cause any of CLEC's End Users provisioned through
Resale Services to be defaulted to SBC-7STATE local service.
9.6.1.1 On the same day that it sends the letter required by
Section 9.6.1, SBC-7STATE will suspend acceptance of any new
order and completion of any pending order (other than a
disconnect order) from CLEC for any Resale Service or Network
Element that could be furnished under this Agreement.
9.6.1.2 Section 9.6.1.1 shall exclude any affected order for
Resale Services or Network Elements from any applicable
performance interval and computation of any Performance
Measurement.
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9.6.2 If any Unpaid Charges for Resale Services or Network Elements
remain unpaid and undisputed forty (40) calendar days past the Bill
Due Date of the Unpaid Charges, CLEC shall, at its sole expense,
notify its End Users and the Commission that the End Users' service
may be disconnected due to CLEC's failure to pay Unpaid Charges, and
that its End Users must affirmatively select a new Local Service
Provider within five (5) calendar days. This notice shall also advise
CLEC's End Users provisioned through Resale Services that SBC-7STATE
will transfer provisioning of the End User's account to SBC-7STATE at
the end of the five (5) calendar day period should the Resale End User
fail to select a new Local Service Provider in the interim.
9.6.3 If any Unpaid Charges for Resale Services or Network Elements
furnished to CLEC under this Agreement remain unpaid and undisputed
forty-five (45) calendar days past the Bill Due Date of such Unpaid
Charges, SBC-7STATE shall disconnect such Resale Services and/or
Network Elements.
9.6.3.1 On the same date that these Resale Services are
disconnected, SBC-7STATE shall cause such End Users provisioned
through Resale Services to be transferred directly to
SBC-7STATE's local service. To the extent available at retail
from SBC-7STATE, the Resale End Users transferred to SBC-7STATE's
local service shall receive the same services provided through
CLEC immediately prior to the time of transfer; provided,
however, SBC-7STATE reserves the right to toll restrict (both
interLATA and intraLATA) such transferred End Users.
9.6.3.2 Applicable conversion charges and service establishment
charges for transferring End Users from CLEC to SBC-7STATE as
specified in this Section 9.6 shall be billed to CLEC.
9.6.3.3 SBC-7STATE shall inform the Commission of the names of
all Resale End Users transferred through this process.
9.6.4 Within five (5) calendar days of the transfer, SBC-7STATE shall
notify all transferred Resale End Users that because of CLEC's failure
to pay SBC-7STATE, their local service is now being provided by
SBC-7STATE. SBC-7STATE shall also notify each transferred Resale End
User that the End User has thirty (30) calendar days to select a new
Local Service Provider.
9.6.5 Within twenty (20) calendar days of transfer, SWBT-KS shall
again notify all transferred Resale End Users who have not exercised
their option to select a new Local Service Provider that because of
CLEC's failure to pay
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SWBT-KS, their local service is now being provided by SWBT-KS. SWBT-KS
shall also notify the End Users that they have fifteen (15) calendar
days remaining to select a local service provider.
9.6.6 If any End User transferred to SBC-7STATE's local service
pursuant to Section 9.6.3 of this Agreement fails to select a new
Local Service Provider within thirty (30) calendar days of the
transfer to SBC-7STATE's local service, SBC-7STATE shall terminate the
transferred End User's service.
9.6.6.1 The transferred End User shall be responsible for any and
all charges incurred during the selection period.
9.6.6.2 SBC-7STATE shall notify the Commission of the names of
all transferred End Users whose service has been terminated
pursuant to this Section 9.6.5
9.6.7 SBC-7STATE may discontinue service to CLEC as provided in
Section 9.6.3 and shall have no liability to CLEC or CLEC's End Users
in the event of such disconnection or any transfer of Resale End Users
to SBC-7STATE service in connection with such disconnection.
9.6.8 Nothing in this Agreement shall be interpreted to obligate
SBC-7STATE to continue to provide service to any transferred End User
beyond the thirty (30) calendar day selection period. Nothing herein
shall be interpreted to limit any and all disconnection rights
SBC-7STATE has with regard to such transferred End Users under
Applicable Law; provided, however,
9.6.8.1 in PACIFIC only, following expiration of the selection
period and disconnection of such transferred End Users, where
facilities permit, PACIFIC will furnish transferred and
subsequently disconnected residential End Users with "quick dial
tone."
9.6.9 Once the letter required by Section 9.6.1 has been sent to CLEC,
SBC-7STATE shall not accept any order (other than a disconnect order)
relating to Resale Services or Network Elements from CLEC until
9.6.9.1 All Unpaid Charges are paid, and
9.6.9.2 CLEC has furnished SBC-7STATE a cash deposit calculated
pursuant to the terms and conditions of Section 7.
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9.7 SNET ONLY
9.7.1 For nonpayment and procedures for disconnection for SNET, see
the applicable DPUC ordered tariff.
10. DISPUTE RESOLUTION
10.1 Finality of Disputes
----------------------
10.1.1 Except as otherwise specifically provided for in this
Agreement, no claim may be brought for any dispute arising from this
Agreement more than twenty-four (24) months from the date the
occurrence which gives rise to the dispute is discovered or reasonably
should have been discovered with the exercise of due care and
attention.
10.1.2 Notwithstanding anything contained in this Agreement to the
contrary, a Party shall be entitled to dispute only those charges for
which the Bill Due Date occurred within the twelve (12) months
immediately preceding the date on which the other Party received
notice of such Disputed Amounts.
10.2 Alternative to Litigation
---------------------------
10.2.1 The Parties desire to resolve disputes arising out of this
Agreement without litigation. Accordingly, the Parties agree to use
the following Dispute Resolution procedures with respect to any
controversy or claim arising out of or relating to this Agreement or
its breach.
10.3 Commencing Dispute Resolution
-------------------------------
10.3.1 Dispute Resolution shall commence upon one Party's receipt of
written notice of a controversy or claim arising out of or relating to
this Agreement or its breach. No Party may pursue any claim unless
such written notice has first been given to the other Party. There are
three (3) separate Dispute Resolution methods:
10.3.1.1 Service Center (SBC-AMERITECH), LSC (SBC-7STATE) or
LEC-C (SNET);
10.3.1.2 Informal Dispute Resolution; and
10.3.1.3 Formal Dispute Resolution,
each of which is described below.
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10.4 LSC/ Service Center/LEC-C Dispute Resolution -the following Dispute
Resolution procedures will apply with respect to any billing dispute
arising out of or relating to the Agreement.
10.4.1 If the written notice given pursuant to Section 10.3 discloses
that a CLEC dispute relates to billing, then the procedures set forth
in this Section 10.4 shall be used and the dispute shall first be
referred to the appropriate service center [SBC-AMERITECH Service
Center; SBC-7STATE Local Service Center (LSC); SNET Local Exchange
Carrier Center (LEC-C)] for resolution. In order to resolve a billing
dispute, CLEC shall furnish SBC-13STATE written notice of (i) the date
of the bill in question, (ii) CBA/ESBA/ASBS or BAN number of the bill
in question, (iii) telephone number, circuit ID number or trunk number
in question, (iv) any USOC information relating to the item
questioned, (v) amount billed and (vi) amount in question and (vii)
the reason that CLEC disputes the billed amount. To be deemed a
"dispute" under this Section 10.4, CLEC must provide evidence that it
has established an interest bearing escrow account that complies with
the requirements set forth in Section 8.4 of this Agreement and
deposited all Unpaid Charges relating to Resale Services and Network
Elements into that escrow account. Failure to provide the information
and evidence required by this Section 10.4.1 not later than
twenty-nine (29) calendar days following the Bill Due Date shall
constitute CLEC's irrevocable and full waiver of its right to dispute
the subject charges.
10.4.2 The Parties shall attempt to resolve Disputed Amounts appearing
on SBC-13STATE's current billing statements thirty (30) to sixty (60)
calendar days from the Bill Due Date (provided the CLEC furnishes all
requisite information and evidence under Section 10.4.1 by the Bill
Due Date). If not resolved within thirty (30) calendar days, upon
request, SBC-13STATE will notify CLEC of the status of the dispute and
the expected resolution date.
10.4.3 The Parties shall attempt to resolve Disputed Amounts appearing
on statements prior to the current billing statement within thirty
(30) to ninety (90) calendar days, but resolution may take longer
depending on the complexity of the dispute. If not resolved within
thirty (30) calendar days from the date notice of the Disputed Amounts
was received (provided that CLEC furnishes all requisite information
and evidence under Section 10.4.1), SBC-13STATE will notify CLEC of
the status of the dispute and the expected resolution date.
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10.4.4 Any notice of Disputed Amounts given by SBC-13STATE to CLEC
pursuant to Section 10.3 shall furnish CLEC written notice of: (i) the
date of the bill in question, (ii) the account number or other
identification of the bill in question, (iii) any telephone number,
circuit ID number or trunk number in question, (iv) any USOC (or other
descriptive information) questioned, (v) the amount billed, (vi) the
amount in question, and (vii) the reason that SBC-13STATE disputes the
billed amount. The Parties shall attempt to resolve Disputed Amounts
appearing on current billing statement(s) thirty (30) to sixty (60)
calendar days from the Bill Due Date (provided SBC-13STATE, furnishes
all requisite information by the Bill Due Date) and Disputed Amounts
appearing on statements prior to the current billing statement within
thirty (30) to ninety (90) calendar days, but resolution may take
longer depending on the complexity of the dispute. If not resolved
within thirty (30) calendar days, CLEC will notify SBC-13STATE of the
status of the dispute and the expected resolution date.
10.4.5 If the Non-Paying Party is not satisfied by the resolution of
the billing dispute under this Section 10.4, the Non-Paying Party may
notify the Billing Party in writing that it wishes to invoke the
Informal Resolution of Disputes afforded pursuant to Section 10.5 of
this Agreement.
10.5 Informal Resolution of Disputes
----------------------------------
10.5.1 Upon receipt by one Party of notice of a dispute by the other
Party pursuant to Section 10.3 or Section 10.4.5, each Party will
appoint a knowledgeable, responsible representative to meet and
negotiate in good faith to resolve any dispute arising under this
Agreement. The location, form, frequency, duration, and conclusion of
these discussions will be left to the discretion of the
representatives. Upon agreement, the representatives may utilize other
alternative Dispute Resolution procedures such as mediation to assist
in the negotiations. Discussions and the correspondence among the
representatives for purposes of settlement are exempt from discovery
and production and will not be admissible in the arbitration described
below or in any lawsuit without the concurrence of both Parties.
Documents identified in or provided with such communications that were
not prepared for purposes of the negotiations are not so exempted,
and, if otherwise admissible, may be admitted in evidence in the
arbitration or lawsuit.
10.6 Formal Dispute Resolution
---------------------------
10.6.1 If the Parties are unable to resolve the dispute through the
informal procedure described in Section 10.5, then either Party may
invoke the formal Dispute Resolution procedures described in this
Section 10.6.
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Unless agreed among all Parties, formal Dispute Resolution procedures,
including arbitration or other procedures as appropriate, may be
invoked not earlier than sixty (60) calendar days after receipt of the
letter initiating Dispute Resolution under Section 10.3.
10.6.2 Claims Subject to Mandatory Arbitration. The following claims,
if not settled through informal Dispute Resolution, will be subject to
mandatory arbitration pursuant to Section 10.7 below:
10.6.2.1 Each unresolved billing dispute involving one percent
(1%) or less of the amounts charged to the Disputing Party under
this Agreement in the state in which the dispute arises during
the twelve (12) months immediately preceding receipt of the
letter initiating Dispute Resolution under Section 10.3. If the
disputing Party has not been billed for a minimum of twelve (12)
months immediately preceding receipt of the letter initiating
Dispute Resolution under Section 10.3, the Parties will annualize
the actual number of months billed.
10.6.3 Claims Subject to Elective Arbitration. Claims will be subject
to elective arbitration pursuant to Section 10.7 if, and only if, the
claim is not settled through informal Dispute Resolution and both
Parties agree to arbitration. If both Parties do not agree to
arbitration, then either Party may proceed with any remedy available
to it pursuant to law, equity or agency mechanism.
10.6.4 Claims Not Subject to Arbitration. If the following claims are
not resolved through informal Dispute Resolution, they will not be
subject to arbitration and must be resolved through any remedy
available to a Party pursuant to law, equity or agency mechanism.
10.6.4.1 Actions seeking a temporary restraining order or an
injunction related to the purposes of this Agreement.
10.6.4.2 Actions to compel compliance with the Dispute Resolution
process.
10.6.4.3 All claims arising under federal or state statute(s),
including antitrust claims.
10.7 Arbitration
-----------
10.7.1 Disputes subject to mandatory or elective arbitration under the
provisions of this Agreement will be submitted to a single arbitrator
pursuant to the
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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 arbitrator shall be knowledgeable of
telecommunications issues. Each arbitration will be held in DALLAS,
TEXAS (SBC-SWBT); CHICAGO, ILLINOIS (SBC-AMERITECH), SAN FRANCISCO,
CALIFORNIA (PACIFIC); RENO, NEVADA (NEVADA); OR NEW HAVEN, CONNECTICUT
(SNET), as appropriate, unless the Parties agree otherwise. The
arbitration hearing will be requested to commence within sixty (60)
calendar days of the demand for arbitration. The arbitrator will
control the scheduling so as to process the matter expeditiously. The
Parties may submit written briefs upon a schedule determined by the
arbitrator. The Parties will request that the arbitrator rule on the
dispute by issuing a written opinion within thirty (30) calendar days
after the close of hearings. The Federal Arbitration Act, 9 U.S.C.
Secs. 1-16, not state law, shall govern the arbitrability of all
disputes. The arbitrator will have no authority to award punitive
damages, exemplary damages, Consequential Damages, multiple damages,
or any other damages not measured by the prevailing Party's actual
damages, and may not, in any event, make any ruling, finding or award
that does not conform to the terms and conditions of this Agreement.
The times specified in this Section may be extended or shortened upon
mutual agreement of the Parties or by the arbitrator upon a showing of
good cause. Each Party will bear its own costs of these procedures,
including attorneys' fees. The Parties will equally split the fees of
the arbitration and the arbitrator. The arbitrator's award shall be
final and binding and may be entered in any court having jurisdiction
thereof. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
11. AUDITS - APPLICABLE IN SBC-12STATE ONLY
11.1 Subject to the restrictions set forth in Section 20 and except as may
be otherwise expressly provided in this Agreement, a Party (the "AUDITING
PARTY") may audit the other Party's (the "AUDITED PARTY") books, records,
data and other documents, as provided herein, once annually, with the audit
period commencing not earlier than the date on which services were first
supplied under this Agreement ("SERVICE START DATE") for the purpose of
evaluating (i) the accuracy of Audited Party's billing and invoicing of the
services provided hereunder and (ii) verification of compliance with any
provision of this Agreement that affects the accuracy of Auditing Party's
billing and invoicing of the services provided to Audited Party hereunder.
Notwithstanding the foregoing, an Auditing Party may audit the Audited
Party's books, records and documents more than once annually if the
previous audit found (i) previously uncorrected net variances or errors in
invoices in Audited Party's favor with an aggregate value of at least five
percent (5%) of the amounts payable by Auditing Party for audited services
provided
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during the period covered by the audit or (ii) non-compliance by Audited
Party with any provision of this Agreement affecting Auditing Party's
billing and invoicing of the services provided to Audited Party with an
aggregate value of at least five percent (5%) of the amounts payable by
Audited Party for audited services provided during the period covered by
the audit.
11.1.1 The scope of the audit shall be limited to the period which is
the shorter of (i) the period subsequent to the last day of the period
covered by the audit which was last performed (or if no audit has been
performed, the service start date and (ii) the twelve (12) month
period immediately preceding the date the Audited Party received
notice of such requested audit, but in any event not prior to the
service start date. Such audit shall begin no fewer than thirty (30)
calendar days after Audited Party receives a written notice requesting
an audit and shall be completed no later than thirty (30) calendar
days after the start of such audit.
11.1.2 Such audit shall be conducted either by the Auditing Party's
employee(s) or an independent auditor acceptable to both Parties;
provided, however, if the Audited Party requests that an independent
auditor be engaged and the Auditing Party agrees, the Audited Party
shall pay one-quarter (1/4) of the independent auditor's fees and
expenses. If an independent auditor is to be engaged, the Parties
shall select an auditor by the thirtieth day following Audited Party's
receipt of a written audit notice. Auditing Party shall cause the
independent auditor to execute a nondisclosure agreement in a form
agreed upon by the Parties.
11.1.3 Each audit shall be conducted on the premises of the Audited
Party during normal business hours. Audited Party shall cooperate
fully in any such audit and shall provide the auditor reasonable
access to any and all appropriate Audited Party employees and any
books, records and other documents reasonably necessary to assess (i)
the accuracy of Audited Party's bills and (ii) Audited Party's
compliance with the provisions of this Agreement that affect the
accuracy of Auditing Party's billing and invoicing of the services
provided to Audited Party hereunder. Audited Party may redact from the
books, records and other documents provided to the auditor any Audited
Party Proprietary Information that reveals the identity of End Users
of Audited Party.
11.1.4 Each Party shall maintain reports, records and data relevant to
the billing of any services that are the subject matter of this
Agreement for a period of not less than twenty-four (24) months after
creation thereof, unless a longer period is required by Applicable
Law.
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11.1.5 If any audit confirms any undercharge or overcharge, then
Audited Party shall (i) promptly correct any billing error, including
making refund of any overpayment by Auditing Party in the form of a
credit on the invoice for the first full billing cycle after the
Parties have agreed upon the accuracy of the audit results and (ii)
for any undercharge caused by the actions of the Audited Party,
immediately compensate Auditing Party for such undercharge, and (iii)
in each case, calculate and pay interest as provided in Section 8.1
(depending on the SBC-owned ILEC(s) involved), for the number of
calendar days from the date on which such undercharge or overcharge
originated until the date on which such credit is issued or payment is
made and available.
11.1.6 Except as may be otherwise provided in this Agreement, audits
shall be performed at Auditing Party's expense, subject to
reimbursement by Audited Party of one-quarter (1/4) of any independent
auditor's fees and expenses in the event that an audit finds, and the
Parties subsequently verify, a net adjustment in the charges paid or
payable by Auditing Party hereunder by an amount that is, on an
annualized basis, greater than five percent (5%) of the aggregate
charges for the audited services during the period covered by the
audit.
11.1.7 Any disputes concerning audit results shall be referred to the
Parties' respective personnel responsible for informal resolution. If
these individuals cannot resolve the dispute within thirty (30)
calendar days of the referral, either Party may request in writing
that an additional audit shall be conducted by an independent auditor
acceptable to both Parties, subject to the requirements set out in
Section 11.1. Any additional audit shall be at the requesting Party's
expense.
11.2 Audits - SNET only
11.2.1 Except as provided in Appendix Compensation, SNET shall arrange
for one (1) annual independent audit to be conducted by a "Big Six"
independent public accounting firm or an accounting firm mutually
agreed to by SNET, CLEC and all other CLECs doing business with SNET
under the terms of an agreement adopted pursuant to Sections 251 and
252 of the Act for the purpose of evaluating the accuracy of SNET's
billing and invoicing.
11.2.2 SNET will cooperate fully with the independent auditor in such
audit and provide reasonable access to any and all appropriate SNET
employees, books, records and other documents reasonably necessary to
perform the audit.
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11.2.3 SNET shall promptly correct any billing error that is revealed
in the audit, including making refund of any overpayment to CLEC in
the form of a credit on the invoice for the first full billing cycle
after the audit report is issued; such refund shall include interest
on the overpayment at the rate of eight percent (8%) per year. In the
event that the audit reveals any underbilling and resulting
underpayment to SNET by CLEC, the underpayment shall be reflected in
CLEC's invoice for the first full billing cycle after the audit report
is issued. SNET will not be entitled to recover interest on any
underbilling to CLEC revealed by the audit for the time preceding the
amount appearing on CLEC's bill from SNET, however, SNET shall be
entitled to recover interest at the interest rate referenced in
Section 8.1.5.1 on such underbilling and CLEC shall pay interest for
the number of calendar days from the Bill Due Date of the bill on
which such underbilling was rectified until the date on which payment
is made and available to SNET.
12. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
12.1 EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR
RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
INTERCONNECTION, RESALE SERVICES, NETWORK ELEMENTS, FUNCTIONS, FACILITIES,
PRODUCTS AND SERVICES IT PROVIDES UNDER OR IS CONTEMPLATED TO PROVIDE UNDER
THIS AGREEMENT AND EACH PARTY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND/OR OF FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY,
NO PARTY TO THIS AGREEMENT ASSUMES RESPONSIBILITY WITH REGARD TO THE
CORRECTNESS OF DATA OR INFORMATION SUPPLIED BY ANY OTHER PARTY TO THIS
AGREEMENT WHEN SUCH DATA OR INFORMATION IS ACCESSED AND USED BY A THIRD
PARTY.
13. LIMITATION OF LIABILITY
13.1 Except for indemnity obligations expressly set forth herein or as
otherwise expressly provided in specific appendices, each Party's liability
to the other Party for any Loss relating to or arising out of such Party's
performance under this Agreement, including any negligent act or omission
(whether willful or inadvertent), whether in contract, tort or otherwise,
including alleged breaches of this Agreement and causes of action alleged
to arise from allegations that breach of this Agreement also constitute a
violation of a statute, including the Act, shall not exceed in total the
amount SBC-13STATE or CLEC has charged or would have charged to the other
Party for the affected Interconnection, Resale Services,
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Network Elements, functions, facilities, products and service(s) that were
not performed or were improperly performed.
13.2 Except as otherwise expressly provided in specific appendices, in the
case of any Loss alleged or claimed by a Third Party to have arisen out of
the negligence or willful misconduct of any Party, each Party shall bear,
and its obligation shall be limited to, that portion (as mutually agreed to
by the Parties or as otherwise established) of the resulting expense caused
by its own negligence or willful misconduct or that of its agents,
servants, contractors, or others acting in aid or concert with it.
13.3 A Party may, in its sole discretion, provide in its tariffs and
contracts with its End Users or Third Parties that relate to any
Interconnection, Resale Services, Network Elements, functions, facilities,
products and services provided or contemplated under this Agreement that,
to the maximum extent permitted by Applicable Law, such Party shall not be
liable to such End User or Third Party for (i) any Loss relating to or
arising out of this Agreement, whether in contract, tort or otherwise, that
exceeds the amount such Party would have charged the End User or Third
Party for the Interconnection, Resale Services, Network Elements,
functions, facilities, products and services that gave rise to such Loss
and (ii) any Consequential Damages. If a Party elects not to place in its
tariffs or contracts such limitation(s) of liability, and the other Party
incurs a Loss as a result thereof, the first Party shall indemnify and
reimburse the other Party for that portion of the Loss that would have been
limited had the first Party included in its tariffs and contracts the
limitation(s) of liability described in this Section 13.3.
13.4 Neither CLEC nor SBC-13STATE shall be liable to the other Party for
any Consequential Damages suffered by the other Party, regardless of the
form of action, whether in contract, warranty, strict liability, tort or
otherwise, including negligence of any kind, whether active or passive (and
including alleged breaches of this Agreement and causes of action alleged
to arise from allegations that breach of this Agreement constitutes a
violation of the Act or other statute), and regardless of whether the
Parties knew or had been advised of the possibility that such damages could
result in connection with or arising from anything said, omitted, or done
hereunder or related hereto, including willful acts or omissions; provided
that the foregoing shall not limit a Party's obligation under Section 14.2
to indemnify, defend, and hold the other Party harmless against any amounts
payable to a Third Party, including any Losses, and Consequential Damages
of such Third Party; provided, however, that nothing in this Section 13.4
shall impose indemnity obligations on a Party for any Loss or Consequential
Damages suffered by a Party's End User in connection with any affected
Interconnection,
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Resale Services, Network Elements, functions, facilities, products and
services. Except as provided in the prior sentence, each Party hereby
releases and holds harmless the other Party (and such other Party's
Affiliates, and their respective officers, directors, employees and agents)
from any such Claim.
13.5 SBC-13STATE shall not be liable for damages to a End User's premises
resulting from the furnishing of any Interconnection, Resale Services,
Network Elements, functions, facilities, products or services, including,
if applicable, the installation and removal of equipment and associated
wiring, unless the damage is caused by SBC-13STATE's gross negligence or
willful misconduct. SBC-13STATE does not guarantee or make any warranty
with respect to Interconnection, Resale Services, Network Elements,
functions, facilities, products or services when used in an explosive
atmosphere.
13.6 CLEC hereby releases SBC-13STATE from any and all liability for
damages due to errors or omissions in CLEC's End User listing information
as provided by CLEC to SBC-13STATE under this Agreement, including any
errors or omissions occurring in CLEC's End User listing information as it
appears in the White Pages directory, including, but not limited to,
special, indirect, Consequential, punitive or incidental damages.
13.7 SBC-13 STATE shall not be liable to CLEC, its End User or any other
Person for any Loss alleged to arise out of the provision of access to 911
service or any errors, interruptions, defects, failures or malfunctions of
911 service.
13.8 This Section 13 is not intended to exempt any Party from all liability
under this Agreement, but only to set forth the scope of liability agreed
to and the type of damages that are recoverable. Both Parties acknowledge
that they negotiated regarding alternate limitation of liability provisions
but that such provisions would have altered the cost, and thus the price,
of providing the Interconnection, Resale Services, Network Elements,
functions, facilities, products and services available hereunder, and no
different pricing reflecting different costs and different limits of
liability was agreed to.
14. INDEMNITY
14.1 Except as otherwise expressly provided herein or in specific
appendices, each Party shall be responsible only for the Interconnection,
Resale Services, Network Elements, functions, facilities, products and
services which are provided by that Party, its authorized agents,
subcontractors, or others retained by such Parties, and neither Party shall
bear any responsibility for the Interconnection, Resale Services, Network
Elements, functions, facilities, products and services provided by the
other Party, its agents, subcontractors, or others retained by such
Parties.
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14.2 Except as otherwise expressly provided herein or in specific
appendices, and to the extent not prohibited by Applicable Law and not
otherwise controlled by tariff, each Party (the "INDEMNIFYING PARTY") shall
release, defend and indemnify the other Party (the "INDEMNIFIED PARTY") and
hold such Indemnified Party harmless against any Loss to a Third Party
arising out of the negligence or willful misconduct ("FAULT") of such
Indemnifying Party, its agents, its End Users, contractors, or others
retained by such Parties, in connection with the Indemnifying Party's
provision of Interconnection, Resale Services, Network Elements, functions,
facilities, products and services under this Agreement; provided, however,
that (i) with respect to employees or agents of the Indemnifying Party,
such Fault occurs while performing within the scope of their employment,
(ii) with respect to subcontractors of the Indemnifying Party, such Fault
occurs in the course of performing duties of the subcontractor under its
subcontract with the Indemnifying Party, and (iii) with respect to the
Fault of employees or agents of such subcontractor, such Fault occurs while
performing within the scope of their employment by the subcontractor with
respect to such duties of the subcontractor under the subcontract.
14.3 In the case of any Loss alleged or claimed by a End User of either
Party, the Party whose End User alleged or claimed such Loss (the
"INDEMNIFYING PARTY") shall defend and indemnify the other Party (the
"INDEMNIFIED PARTY") against any and all such Claims or Losses by its End
User regardless of whether the underlying Interconnection, Resale Service,
Network Element, function, facility, product or service giving rise to such
Claim or Loss was provided or provisioned by the Indemnified Party, unless
the Claim or Loss was caused by the gross negligence or willful misconduct
of the Indemnified Party.
14.4 A Party (the "INDEMNIFYING PARTY") shall defend, indemnify and hold
harmless the other Party ("INDEMNIFIED PARTY") against any Claim or Loss
arising from the Indemnifying Party's use of Interconnection, Resale
Services, Network Elements, functions, facilities, products and services
provided under this Agreement involving:
14.4.1 any Claim or Loss arising from such Indemnifying Party's use of
Interconnection, Resale Services, Network Elements, functions,
facilities, products and services offered under this Agreement,
involving any Claim for libel, slander, invasion of privacy, or
infringement of Intellectual Property rights arising from the
Indemnifying Party's or its End User's use.
14.4.1.1 The foregoing includes any Claims or Losses arising from
disclosure of any End User-specific information associated with
either the originating or terminating numbers used to provision
Interconnection, Resale Services, Network Elements, functions,
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facilities, products or services provided hereunder and all other
Claims arising out of any act or omission of the End User in the
course of using any Interconnection, Resale Services, Network
Elements, functions, facilities, products or services provided
pursuant to this Agreement.
14.4.1.2 The foregoing includes any Losses arising from Claims
for actual or alleged infringement of any Intellectual Property
right of a Third Party to the extent that such Loss arises from
an Indemnifying Party's or an Indemnifying Party's End User's use
of Interconnection, Resale Services, Network Elements, functions,
facilities, products or services provided under this Agreement;
provided, however, that an Indemnifying Party's obligation to
defend and indemnify the Indemnified Party shall not apply:
14.4.1.2.1 where an Indemnified Party or its End User
modifies Interconnection, Resale Services, Network Elements,
functions, facilities, products or services; and
14.4.1.2.3 no infringement would have occurred without such
modification.
14.4.2 any and all penalties imposed on either Party because of the
Indemnifying Party's failure to comply with the Communications
Assistance to Law Enforcement Act of 1994 (CALEA); provided that the
Indemnifying Party shall also, at its sole cost and expense, pay any
amounts necessary to modify or replace any equipment, facilities or
services provided to the Indemnified Party under this Agreement to
ensure that such equipment, facilities and services fully comply with
CALEA.
14.5 CLEC acknowledges that its right under this Agreement to Interconnect
with SBC-13STATE's network and to unbundle and/or combine SBC-13STATE'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.
14.5.1 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. Absent any stay, reconsideration or appeal, such Order will
become effective thirty (30) days following the future publication of
such Order
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in the Federal Register. 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.
14.5.1.1 When the Order referenced in Section 14.5.1 (or any
reconsideration or appeal therefrom) is effective, SBC-13STATE
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 SBC-13STATE.
14.5.1.2 SBC-13STATE 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 SBC-13STATE.
14.5.1.3 When the Order referenced in Section 14.5.1 (or any
reconsideration or appeal therefrom) is effective, to the extent
not prohibited by a contract with the vendor of the network
element sought by CLEC that contains Intellectual Property
licenses, SBC-13STATE shall reveal to CLEC the name of the
vendor, the Intellectual Property rights licensed to SBC-13STATE
under the vendor contract and the terms of the contract
(excluding cost terms). SBC-13STATE shall, at CLEC's request,
contact the vendor to attempt to obtain permission to reveal
additional contract details to CLEC.
14.5.1.4 All costs associated with the extension of Intellectual
Property rights to CLEC pursuant to Section 14.5.1.1, 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 SBC-13STATE.
14.5.2 SBC-13STATE hereby conveys no licenses to use such Intellectual
Property rights and makes no warranties, express or implied,
concerning CLEC's (or any Third Parties') rights with respect to such
Intellectual Property rights and contract rights, including whether
such rights will be violated by such Interconnection or unbundling
and/or combining of Network Elements (including combining with CLEC's
Network
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Elements) in SBC-13STATE'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 SBC-13STATE agrees in
Section 14.5.1.1 to use its best efforts to obtain.
14.5.3 SBC-13STATE does not and shall not indemnify, defend or hold
CLEC harmless, nor be responsible for indemnifying or defending, or
holding CLEC harmless, for any Claims or Losses for actual or alleged
infringement of any Intellectual Property right or interference with
or violation of any contract right that arises out of, is caused by,
or relates to CLEC's Interconnection with SBC-13STATE's network and
unbundling and/or combining SBC-13STATE's Network Elements (including
combining with CLEC's Network Elements) or CLEC's use of other
functions, facilities, products or services furnished under this
Agreement. 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
14.5.1.1 to use its best efforts to obtain.
14.6 CLEC shall reimburse SBC-13STATE for damages to SBC-13STATE's
facilities utilized to provide Interconnection or unbundled Network
Elements hereunder caused by the negligence or willful act of CLEC, its
agents or subcontractors or CLEC's End User or resulting from CLEC's
improper use of SBC-13STATE's facilities, or due to malfunction of any
facilities, functions, products, services or equipment provided by any
person or entity other than SBC-13STATE. Upon reimbursement for damages,
SBC-13STATE will cooperate with CLEC in prosecuting a claim against the
person causing such damage. CLEC shall be subrogated to the right of
recovery by SBC-13STATE for the damages to the extent of such payment.
14.7 Indemnification Procedures
---------------------------
14.7.1 Whenever a claim shall arise for indemnification under this
Section 14, the relevant Indemnified Party, as appropriate, shall
promptly notify the Indemnifying Party and request in writing the
Indemnifying Party to defend the same. Failure to so notify the
Indemnifying Party shall not relieve the Indemnifying Party of any
liability that the Indemnifying Party might have, except to the extent
that such failure prejudices the Indemnifying Party's ability to
defend such claim.
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14.7.2 The Indemnifying Party shall have the right to defend against
such liability or assertion, in which event the Indemnifying Party
shall give written notice to the Indemnified Party of acceptance of
the defense of such claim and the identity of counsel selected by the
Indemnifying Party.
14.7.3 Until such time as Indemnifying Party provides written notice
of acceptance of the defense of such claim, the Indemnified Party
shall defend such claim, at the expense of the Indemnifying Party,
subject to any right of the Indemnifying Party to seek reimbursement
for the costs of such defense in the event that it is determined that
Indemnifying Party had no obligation to indemnify the Indemnified
Party for such claim.
14.7.4 Upon accepting the defense, the Indemnifying Party shall have
exclusive right to control and conduct the defense and settlement of
any such claims, subject to consultation with the Indemnified Party.
So long as the Indemnifying Party is controlling and conducting the
defense, the Indemnifying Party shall not be liable for any settlement
by the Indemnified Party unless such Indemnifying Party has approved
such settlement in advance and agrees to be bound by the agreement
incorporating such settlement.
14.7.5 At any time, an Indemnified Party shall have the right to
refuse a compromise or settlement, and, at such refusing Party's cost,
to take over such defense; provided that, in such event the
Indemnifying Party shall not be responsible for, nor shall it be
obligated to indemnify the refusing Party against, any cost or
liability in excess of such refused compromise or settlement.
14.7.6 With respect to any defense accepted by the Indemnifying Party,
the Indemnified Party will be entitled to participate with the
Indemnifying Party in such defense if the claim requests equitable
relief or other relief that could affect the rights of the Indemnified
Party, and shall also be entitled to employ separate counsel for such
defense at such Indemnified Party's expense.
14.7.7 If the Indemnifying Party does not accept the defense of any
indemnified claim as provided above, the Indemnified Party shall have
the right to employ counsel for such defense at the expense of the
Indemnifying Party.
14.7.8 In the event of a failure to assume the defense, the
Indemnified Party may negotiate a settlement, which shall be presented
to the Indemnifying Party. If the Indemnifying Party refuses to agree
to the presented settlement, the Indemnifying Party may take over the
defense. If the Indemnifying Party refuses to agree to the presented
settlement and refuses to take over the
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defense, the Indemnifying Party shall be liable for any reasonable
cash settlement not involving any admission of liability by the
Indemnifying Party, though such settlement may have been made by the
Indemnified Party without approval of the Indemnifying Party, it being
the Parties' intent that no settlement involving a non-monetary
concession by the Indemnifying Party, including an admission of
liability by such Party, shall take effect without the written
approval of the Indemnifying Party.
14.7.9 Each Party agrees to cooperate and to cause its employees and
agents to cooperate with the other Party in the defense of any such
claim and the relevant records of each Party shall be available to the
other Party with respect to any such defense, subject to the
restrictions and limitations set forth in Section 20.
15. REMEDIES
15.1 Except as otherwise provided in this Agreement, no remedy set forth
herein is intended to be exclusive and each and every remedy shall be
cumulative and in addition to any other rights or remedies now or hereafter
existing under Applicable Law or otherwise.
16. INTELLECTUAL PROPERTY
16.1 Any Intellectual Property originating from or developed by a Party
shall remain in the exclusive ownership of that Party.
17. NOTICES
17.1 Subject to Section 17.2, notices given by one Party to the other Party
under this Agreement shall be in writing (unless specifically provided
otherwise herein), and unless otherwise expressly required by this
Agreement to be delivered to another representative or point of contact,
shall be
17.1.1 delivered personally;
17.1.2 delivered by express overnight delivery service;
17.1.3 mailed, via certified mail or first class U.S. Postal Service,
with postage prepaid, and a return receipt requested; or
17.1.4 delivered by facsimile; provided that a paper copy is also sent
by a method described in (a), (b) or (c) of this Section 17.
17.1.5 Notices will be deemed given as of the earliest of:
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17.1.5.1 the date of actual receipt,
17.1.5.2 the next Business Day when sent via express overnight
delivery service,
17.1.5.3 five (5) calendar days after mailing in the case of
first class or certified U.S. Postal Service, or
17.1.5.4 on the date set forth on the confirmation produced by
the sending facsimile machine when delivered by facsimile prior
to 5:00 p.m. in the recipient's time zone, but the next Business
Day when delivered by facsimile at 5:00 p.m. or later in the
recipient's time zone.
17.1.6 Notices will be addressed to the Parties as follows:
NOTICE CONTACT CLEC CONTACT SBC-13STATECONTACT
--------------- ------------- ------------------
NAME/TITLE Marshall Howard- Contract Administration
VP Local Operations ATTN: Notices Manager
STREET ADDRESS 6805 Rt. 202 311 S. Akard, 9th Floor
Four Bell Plaza
CITY, STATE, ZIP CODE New Hope, PA 18938 Dallas, TX 75202-5398
FACSIMILE NUMBER 215-862-1085 214-464-2006
17.1.7 Either Party may unilaterally change its designated contact,
address, telephone number and/or facsimile number for the receipt of
notices by giving written notice to the other Party in compliance with
this Section. Any notice to change the designated contact, address,
telephone and/or facsimile number for the receipt of notices shall be
deemed effective ten (10) calendar days following receipt by the other
Party.
17.2 SBC-8STATE communicates official information to CLECs via its
Accessible Letter notification process. This process covers a variety of
subjects, including updates on products/services promotions; deployment of
new products/services; modifications and price changes to existing
products/services; cancellation or retirement of existing
products/services; and operational issues.
17.3 In the SBC-8STATES, CLEC may elect in writing to receive Accessible
Letter notification via electronic mail ("E-MAIL") distribution, either in
lieu of or in addition to United States Postal Service (postage prepaid)
distribution. CLEC acknowledges that United States Postal Service (postage
prepaid) delivery will delay receipt of the information for a minimum of
three (3) to five (5) calendar
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days from the date the information is made available via e-mail. Accessible
Letter notification via e-mail will be deemed given as of the earlier of
the date of actual receipt and the date set forth on the e-mail receipt.
17.4 In SBC-8STATE, CLEC may designate an unlimited number of recipients
for Accessible Letter notification via e-mail, but CLEC is limited to
designating a maximum of four (4) recipients (in addition to the CLEC
contact designated in Section 17.1) for Accessible Letter notification via
United States Postal Service (postage prepaid).
17.5 In SBC-8STATE, CLEC shall submit a completed Notices / Accessible
Letter Recipient Change Request Form (available on the applicable
SBC-8STATE's CLEC Handbook website) to the individual specified on that
form to designate in writing each individual (other than the CLEC contact
designated in Section 17.1) to whom CLEC requests Accessible Letter
notification be sent, whether via e-mail or United States Postal Service.
CLEC shall submit a completed Notices / Accessible Letter Recipient Change
Request Form to add, remove or change recipient information for any CLEC
recipient of Accessible Letters (other than the CLEC contact designated in
Section 17.1). Any completed Notices / Accessible Letter Recipient Change
Request Form shall be deemed effective ten (10) calendar days following
receipt by SBC-8STATE.
17.6 SBC-SWBT ONLY:
17.6.1 SBC-SWBT shall provide a toll free facsimile number to CLEC for
the submission of requests for Resale Services and Network Elements
under this Agreement; CLEC shall provide SBC-SWBT with a toll free
facsimile number for notices from SBC-SWBT relating to requests for
Resale Services and Network Elements under this Agreement.
17.7 SBC-AMERITECH ONLY:
17.7.1 SBC-AMERITECH communicates official information to CLECs via
its TCNet notification process. This process covers a variety of
subjects, including updates on products/services promotions;
deployment of new products/services; modifications and price changes
to existing products/services; cancellation or retirement of existing
products/services; and operational issues.
18. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
18.1 Neither Party nor its subcontractors or agents shall use in any
advertising or sales promotion, press releases, or other publicity matters
any endorsements, direct or indirect quotes, or pictures that imply
endorsement by the other Party or any of its
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employees without such first Party's prior written approval. The Parties
will submit to each other for written approval, prior to publication, all
publicity matters that mention or display one another's name and/or marks
or contain language from which a connection to said name and/or marks may
be inferred or implied; the Party to whom a request is directed shall
respond promptly. Nothing herein, however, shall be construed as preventing
either Party from publicly stating the fact that it has executed this
Agreement with the other Party.
18.2 Nothing in this Agreement shall grant, suggest, or imply any authority
for one Party to use the name, trademarks, service marks, logos,
proprietary trade dress or trade names of the other Party in any
advertising, press releases, publicity matters, marketing and/or
promotional materials or for any other commercial purpose without prior
written approval from such other Party.
19. NO LICENSE
19.1 Except at otherwise expressly provided in this Agreement, no license
under patents, copyrights or any other Intellectual Property right (other
than the limited license to use consistent with the terms, conditions and
restrictions of this Agreement) is granted by either Party or shall be
implied or arise by estoppel with respect to any transactions contemplated
under this Agreement.
20. CONFIDENTIALITY
20.1 All information, including specifications, microfilm, photocopies,
magnetic disks, magnetic tapes, audit information, models, system
interfaces, forecasts, computer programs, software, documentation,
drawings, sketches, models, samples, tools, technical information, data,
employee records, maps, financial reports, and market data shall be deemed
"Confidential" or "Proprietary" (COLLECTIVELY "PROPRIETARY INFORMATION")
if:
20.1.1 Furnished or made available or otherwise disclosed by one Party
(the "DISCLOSING PARTY") or its agent, employee, representative or
Affiliate to the other Party (the "RECEIVING PARTY") or its agent,
employee, representative or Affiliate dealing with End User-specific,
facility-specific, or usage-specific information, other than End User
information communicated for the purpose of publication or directory
database inclusion, 911, call processing, billing or settlement or for
such other purposes as mutually agreed upon;
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20.1.2 In written, graphic, electromagnetic, or other tangible form
and marked at the time of delivery as "Confidential" or
"Proprietary;"; or
20.1.3 Communicated orally and declared to the Receiving Party at the
time of delivery to be "Confidential" or "Proprietary", and which
shall be summarized in writing and marked "Confidential" or
"Proprietary" and delivered to the Receiving Party within ten (10)
calendar days following such disclosure; and
20.1.4 Any portion of any notes, analyses, data, compilations,
studies, interpretations or other documents prepared by any Receiving
Party to the extent the same contain, reflect, are derived from, or
are based upon, any of the information described in this Section 20,
unless such information contained or reflected in such notes,
analyses, etc. is so commingled with the Receiving Party's information
that disclosure could not possibly disclose the underlying proprietary
or confidential information (such portions of such notes, analyses,
etc. referred to herein as "DERIVATIVE INFORMATION").
20.2 Proprietary Information Shall be Held in Confidence
---------------------------------------------------------
20.2.1 Each Receiving Party agrees that:
(a) all Proprietary Information communicated to it or any of its
agents, employees, representatives and Affiliates in connection
with this Agreement shall be held in confidence to the same
extent as such Receiving Party holds its own confidential
information of like importance; provided that such Receiving
Party and its agents, employees, representatives and Affiliates
shall not use less than a reasonable standard of care in
maintaining the confidentiality of such information;
(b) it will not, and it will not permit any of its agents,
employees, representatives and Affiliates to disclose such
Proprietary Information to any Third Party;
(c) it will disclose Proprietary Information only to those of its
agents, employees, representatives and Affiliates who have a need
for it in connection with the use or provision of any services
required to fulfill this Agreement; and
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(d) it will, and will cause each of its agents, employees,
representatives and Affiliates, to use such Proprietary
Information only to perform its obligations under this Agreement
or to use services provided by the Disclosing Party hereunder and
for no other purpose, including its own marketing purposes.
20.2.2 A Receiving Party may disclose Proprietary Information of a
Disclosing Party to the Receiving Party's agents, employees,
representatives and Affiliates who need to know such information to
perform their obligations under this Agreement; provided that before
disclosing any Proprietary Information to any agent, employee,
representative or Affiliate, the Receiving Party shall notify such
agent, employee, representative or Affiliate of such Party's
obligation to comply with this Agreement. Any Receiving Party so
disclosing Proprietary Information shall be jointly and severally
liable for any breach of this Agreement by any of its agents,
employees, representatives and Affiliates and such Receiving Party
agrees, at its sole expense, to use its reasonable efforts (including
court proceedings) to restrain its agents, employees, representatives
and Affiliates from any prohibited or unauthorized disclosure or use
of the Proprietary Information. Each Receiving Party making such
disclosure shall notify the Disclosing Party as soon as possible if it
has knowledge of a breach of this Agreement in any material respect. A
Disclosing Party shall not disclose Proprietary Information directly
to an agent, employee, representative or Affiliate of the Receiving
Party without the prior written authorization of the Receiving Party.
20.2.3 Proprietary Information shall not be reproduced by any
Receiving Party in any form except to the extent (i) necessary to
comply with the provisions of Section 20.5 and (ii) reasonably
necessary to perform its obligations under this Agreement. All such
reproductions shall bear the same copyright and proprietary rights
notices as are contained in or on the original.
20.3 Unless otherwise agreed, the obligations of confidentiality and
non-use set forth in this Agreement do not apply to such Proprietary
Information that:
20.3.1 Was at the time of receipt, already known to the Receiving
Party, free of any obligation to keep confidential and evidenced by
written records prepared prior to delivery by the Disclosing Party; or
20.3.2 Is, or becomes publicly known through no wrongful act of the
Receiving Party; or
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20.3.3 Is rightfully received from a Third Party having no direct or
indirect secrecy or confidentiality obligation to the Disclosing Party
with respect to such information; provided that such Receiving Party
has exercised commercially reasonable efforts to determine whether
such Third Party has any such obligation; or
20.3.4 Is independently developed by an agent, employee representative
or Affiliate of the Receiving Party and such Party is not involved in
any manner with the provision of services pursuant to this Agreement
and does not have any direct or indirect access to the Proprietary
Information; or
20.3.5 Is disclosed to a Third Party by the Disclosing Party without
similar restrictions on such Third Party's rights; or
20.3.6 Is approved for release by written authorization of the
Disclosing Party, but only to the extent of the authorization granted;
or
20.3.7 Is required to be made public by the Receiving Party pursuant
to Applicable Law or regulation, provided that such production or
disclosure shall have been made in accordance with Section 20.5.
20.4 Proposed Disclosure of Proprietary Information to a Governmental
Authority
20.4.1 If a Receiving Party desires to disclose or provide to a
Commission, the FCC or any other governmental authority any
Proprietary Information of the Disclosing Party, such Receiving Party
shall, prior to and as a condition of such disclosure, (i) provide the
Disclosing Party with written notice and the form of such proposed
disclosure as soon as possible but in any event early enough to allow
the Disclosing Party to protect its interests in the Proprietary
Information to be disclosed and (ii) attempt to obtain in accordance
with the applicable procedures of the intended recipient of such
Proprietary Information an appropriate order for protective relief or
other reliable assurance that confidential treatment shall be accorded
to such Proprietary Information.
20.4.2 If a Receiving Party is required by any Governmental Authority
or by Applicable Law to disclose any Proprietary Information, then
such Receiving Party shall provide the Disclosing Party with written
notice of such requirement as soon as possible, and in no event later
than five (5) calendar days after receipt of such requirement, and
prior to such disclosure. Upon receipt of written notice of the
requirement to disclose
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Proprietary Information, the Disclosing Party at its expense, may then
either seek appropriate protective relief in advance of such
requirement to prevent all or part of such disclosure or waive the
Receiving Party's compliance with this Section 20.4 with respect to
all or part of such requirement.
20.4.3 The Receiving Party shall use all commercially reasonable
efforts to cooperate with the Disclosing Party in attempting to obtain
any protective relief which such Disclosing Party chooses to seek
pursuant to this Section 20.4. In the absence of such relief, if the
Receiving Party is legally compelled to disclose any Proprietary
Information, then the Receiving Party shall exercise all commercially
reasonable efforts to preserve the confidentiality of the Proprietary
information, including cooperating with the Disclosing Party to obtain
an appropriate order for protective relief or other reliable assurance
that confidential treatment will be accorded the Proprietary
Information.
20.5 Notwithstanding any of the foregoing, SBC-13STATE shall be entitled to
disclose Proprietary Information on a confidential basis to regulatory
agencies upon request for information as to SBC-13STATE's activities under
the Act and SBC-13STATE need not provide prior written notice of such
disclosure to CLEC if SBC-13STATE has obtained an appropriate order for
protective relief or other reliable assurance that confidential treatment
shall be accorded to such Proprietary Information.
20.6 Return of Proprietary Information
------------------------------------
20.6.1 All Proprietary Information, other than Derivative Information,
shall remain the property of the Disclosing Party, and all documents
or other tangible media delivered to the Receiving Party that embody
such Proprietary Information shall be, at the option of the Disclosing
Party, either promptly returned to Disclosing Party or destroyed,
except as otherwise may be required from time to time by Applicable
Law (in which case the use and disclosure of such Proprietary
Information will continue to be subject to this Agreement), upon the
earlier of (i) the date on which the Receiving Party's need for it has
expired and (ii) the expiration or termination of this Agreement.
20.6.2 At the request of the Disclosing Party, any Derivative
Information shall be, at the option of the Receiving Party, either
promptly returned to the Disclosing Party or destroyed, except as
otherwise may be required from time to time by Applicable Law (in
which case the use and disclosure of such Derivative Information will
continue to be subject to this
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Agreement), upon the earlier of (i) the date on which the Receiving
Party's need for it has expired and (ii) the expiration or termination
of this Agreement.
20.6.3 The Receiving Party may at any time either return the
Proprietary Information to the Disclosing Party or destroy such
Proprietary Information. If the Receiving Party elects to destroy
Proprietary Information, all copies of such information shall be
destroyed and upon the written request of the Disclosing Party, the
Receiving Party shall provide to the Disclosing Party written
certification of such destruction. The destruction or return of
Proprietary information shall not relieve any Receiving Party of its
obligation to continue to treat such Proprietary Information in the
manner required by this Agreement.
20.7 Notwithstanding any other provision of this Agreement, the Proprietary
Information provisions of this Agreement shall apply to all information
furnished by either Party to the other in furtherance of the purpose of
this Agreement, even if furnished before the date of this Agreement and
each Party's obligation to safeguard Proprietary Information disclosed
prior to expiration or termination of this Agreement will survive such
expiration or termination.
20.8 Pursuant to Section 222(b) of the Act, both Parties agree to limit
their use of Proprietary Information received from the other to the
permitted purposes identified in the Act.
20.9 Each Party has the right to refuse to accept any Confidential
Information under this Agreement, and nothing herein shall obligate either
Party to disclose to the other Party any particular information.
20.10 The Parties agree that an impending or existing violation of any
provision of this Section 20 would cause the Disclosing Party irreparable
injury for which it would have no adequate remedy at law, and agree that
Disclosing Party shall be entitled to obtain immediate injunctive relief
prohibiting such violation, in addition to any other rights and remedies
available to it at law or in equity, including both specific performance
and monetary damages. In the event of any breach of this Section 20 for
which legal or equitable relief is sought, all reasonable attorney's fees
and other reasonable costs associated therewith shall be recoverable by the
prevailing Party.
21. INTERVENING LAW
21.1 This Agreement is entered into as a result of both private negotiation
between the Parties and the incorporation of some of the results of
arbitration by the Commissions. In the event that any of the rates, terms
and/or conditions herein, or
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21.2 any of the laws or regulations that were the basis or rationale for
such rates, terms and/or conditions in the Agreement, are invalidated,
modified or stayed by any action of any state or federal regulatory or
legislative bodies or courts of competent jurisdiction, including but not
limited to any decision by the Eighth Circuit relating to any of the
costing/pricing rules adopted by the FCC in its First Report and Order, In
re: Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, 11 FCC Rcd 15499 (1996)(e.g., Section
51.501, et seq.), upon review and remand from the United States Supreme
Court, in AT&T Corp. v. Iowa Utilities Bd., 119 S. Ct. 721 (1999) or
Ameritech v. FCC, No. 98-1381, 1999 WL 116994, 1999 Lexis 3671 (June 1,
1999), the affected provision shall be immediately invalidated, modified,
or stayed, consistent with the action of the legislative body, court, or
regulatory agency upon the written request of either Party. In such event,
the Parties shall expend diligent efforts to arrive at an agreement
regarding the appropriate conforming modifications to the Agreement. If
negotiations fail, disputes between the Parties concerning the
interpretation of the actions required or provisions affected by such
governmental actions shall be resolved pursuant to the dispute resolution
process provided for in this Agreement. Without limiting the general
applicability of the foregoing, the Parties acknowledge that on January 25,
1999, the United States Supreme Court issued its opinion in AT&T Corp. v.
Iowa Utilities Bd., 119 S. Ct. 721 (1999) and on June 1, 1999, the United
States Supreme Court issued its opinion in Ameritech v. FCC, No. 98-1381,
1999 WL 116994, 1999 Lexis 3671 (1999). In addition, the Parties
acknowledge that on November 5, 1999, the FCC issued its Third Report and
Order and Fourth Further Notice of Proposed Rulemaking in CC Docket No.
96-96 (FCC 99-238), including the FCC's Supplemental Order issued In the
Matter of the Local Competition Provisions of the Telecommunications Act of
1996, in CC Docket No. 96-98 (FCC 99-370) (rel. November 24, 1999),
portions of which become effective thirty (30) days following publication
of such Order in the Federal Register (February 17, 2000) and other
portions of which become effective 120 days following publication of such
Order in the Federal Register (May 17, 2000). The Parties further
acknowledge and agree that by executing this Agreement, neither Party
waives any of its rights, remedies, or arguments with respect to such
decisions and any remand thereof, including its right to seek legal review
or a stay pending appeal of such decisions or its rights under this
Intervening Law paragraph.
22. GOVERNING LAW
22.1 Unless otherwise provided by Applicable Law, this Agreement shall be
governed by and construed in accordance with the Act, the FCC Rules and
Regulations interpreting the Act and other applicable federal law. To the
extent that federal law would apply state law in interpreting this
Agreement, the domestic laws of the state in which the Interconnection,
Resale Services, Network Elements, functions, facilities, products and
services at issue are furnished or sought shall apply, without regard to
that state's conflict of laws principles. The Parties submit to
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personal jurisdiction in Little Rock, Arkansas; San Francisco, California;
New Haven, Connecticut; Chicago, Illinois; Indianapolis, Indiana; Topeka,
Kansas; Detroit, Michigan; St. Louis, Missouri; Reno, Nevada; Columbus,
Ohio; Oklahoma City, Oklahoma; Dallas, Texas and Milwaukee, Wisconsin, and
waive any and all objection to any such venue.
23. REGULATORY APPROVAL
23.1 The Parties understand and agree that this Agreement and any amendment
or modification hereto will be filed with the Commission for approval in
accordance with Section 252 of the Act and may thereafter be filed with the
FCC. The Parties believe in good faith and agree that the services to be
provided under this Agreement are in the public interest. Each Party
covenants and agrees to fully support approval of this Agreement by the
Commission or the FCC under Section 252 of the Act without modification.
24. CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION
24.1 Applies to SBC-12STATE ONLY
24.1.1 Each Party will abide by applicable federal and state laws and
regulations in obtaining End User authorization prior to changing an
End User's Local Exchange Carrier to itself and in assuming
responsibility for any applicable charges as specified in Section
258(b) of the Telecommunications Act of 1996. Each Party shall deliver
to the other Party a representation of authorization that applies to
all orders submitted by a Party under this Agreement requiring a LEC
change. A Party's representation of authorization shall be delivered
to the other Party prior to the first order submitted to the other
Party. Each Party shall retain on file all applicable letters and
other documentation of authorization relating to its End User's
selection of such Party as its LEC, which documentation shall be
available for inspection by the other Party at its request during
normal business hours and at no charge.
24.1.2 Only an End User can initiate a challenge to a change in its
LEC. If an End User notifies one Party that the End User requests
local exchange service, and the other Party is such End User's LEC,
then the Party receiving such request shall be free to immediately
access such End User's CPNI subject to the requirements of the
applicable Appendix OSS restricting access to CPNI in order to
immediately provide service to such End User.
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24.1.3 When an End User changes or withdraws authorization from its
LEC, each Party shall release End User-specific facilities belonging
to the ILEC in accordance with the End User's direction or that of the
End User's authorized agent. Further, when an End User abandons its
premise (that is, its place of business or domicile), SBC-12STATE is
free to reclaim the unbundled Network Element facilities for use by
another End User and is free to issue service orders required to
reclaim such facilities.
24.2 Applies to SNET only
24.2.1 The Parties agree that CLEC will not submit a Local Exchange
Carrier order for an End User to the Local Service Provider currently
serving that End User without proper authorization from that End User,
as required by the FCC in Subpart K, Part 64 rules and regulations and
by the DPUC in its applicable rules and regulations. SNET's wholesale
tariff, Section 18, further documents requirements for Local Exchange
Carrier changes and required End User authorizations.
24.2.2 The Parties agree to the re-use of existing network facilities
when an End User changes its provider of local exchange service and
the network facilities are provided by the same network provider.
25. COMPLIANCE AND CERTIFICATION
25.1 Each Party shall comply at its own expense with all Applicable Laws
that relate to that Party's obligations to the other Party under this
Agreement. Nothing in this Agreement shall be construed as requiring or
permitting either Party to contravene any mandatory requirement of
Applicable Law.
25.2 Each Party warrants that it has obtained all necessary state
certification required in each state covered by this Agreement prior to
ordering any Interconnection, Resale Services, Network Elements, functions,
facilities, products and services from the other Party pursuant to this
Agreement. Upon request, each Party shall provide proof of certification.
25.3 Each Party shall be responsible for obtaining and keeping in effect
all approvals from, and rights granted by, Governmental Authorities,
building and property owners, other carriers, and any other Third Parties
that may be required in connection with the performance of its obligations
under this Agreement.
25.4 Each Party represents and warrants that any equipment, facilities or
services provided to the other Party under this Agreement comply with the
CALEA.
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26. LAW ENFORCEMENT
26.1 SBC-12 STATE and CLEC shall reasonably cooperate with the other Party
in handling law enforcement requests as follows:
26.1.1 Intercept Devices:
26.1.1.1 Local and federal law enforcement agencies periodically
request information or assistance from local telephone service
providers. When either Party receives a request associated with
an End User of the other Party, it shall refer such request to
the Party that serves such End User, unless the request directs
the receiving Party to attach a pen register, trap-and-trace or
form of intercept on the Party's facilities, in which case that
Party shall comply with any valid request.
26.1.2. Subpoenas:
26.1.2.1 If a Party receives a subpoena for information
concerning an End User the Party knows to be an End User of the
other Party, it shall refer the subpoena to the Requesting Party
with an indication that the other Party is the responsible
company, unless the subpoena requests records for a period of
time during which the receiving Party was the End User's service
provider, in which case that Party will respond to any valid
request.
26.1.3 Emergencies:
26.1.3.1 If a Party receives a request from a law enforcement
agency for a temporary number change, temporary disconnect, or
one-way denial of outbound calls by the receiving Party's switch
for an End User of the other Party, that Receiving Party will
comply with a valid emergency request. However, neither Party
shall be held liable for any claims or Losses arising from
compliance with such requests on behalf of the other Party's End
User and the Party serving such End User agrees to indemnify and
hold the other Party harmless against any and all such claims or
Losses.
26.2 SNET and CLEC shall reasonably cooperate with the other Party in
handling law enforcement requests as follows:
26.2.1 Each of the Parties agree to comply with the applicable state
and federal law enforcement authorities, laws, and requirements,
including but not limited to, the Communications Assistance for Law
Enforcement Act
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(CALEA) and to report to applicable State and Federal law enforcement
authorities as required by law, the Telecommunications Services and
related information provided by each of the Parties in Connecticut.
27. RELATIONSHIP OF THE PARTIES/INDEPENDENT CONTRACTOR
27.1 Each Party is an independent contractor, and has and hereby retains
the right to exercise full control of and supervision over its own
performance of its obligations under this Agreement and retains full
control over the employment, direction, compensation and discharge of its
employees assisting in the performance of such obligations. Each Party and
each Party's contractor(s) shall be solely responsible for all matters
relating to payment of such employees, including the withholding or payment
of all applicable federal, state and local income taxes, social security
taxes and other payroll taxes with respect to its employees, as well as any
taxes, contributions or other obligations imposed by applicable state
unemployment or workers' compensation acts and all other regulations
governing such matters. Each Party has sole authority and responsibility to
hire, fire and otherwise control its employees.
27.2 Nothing contained herein shall constitute the Parties as joint
venturers, partners, employees or agents of one another, and neither Party
shall have the right or power to bind or obligate the other. Nothing herein
will be construed as making either Party responsible or liable for the
obligations and undertakings of the other Party. Except for provisions
herein expressly authorizing a Party to act for another, nothing in this
Agreement shall constitute a Party as a legal representative or agent of
the other Party, nor shall a Party have the right or authority to assume,
create or incur any liability or any obligation of any kind, express or
implied, against or in the name or on behalf of the other Party unless
otherwise expressly permitted by such other Party. Except as otherwise
expressly provided in this Agreement, no Party undertakes to perform any
obligation of the other Party, whether regulatory or contractual, or to
assume any responsibility for the management of the other Party's business.
28. NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY
28.1 This Agreement is for the sole benefit of the Parties and their
permitted assigns, and nothing herein expressed or implied shall create or
be construed to create any Third Party beneficiary rights hereunder. This
Agreement shall not provide any Person not a party hereto with any remedy,
claim, liability, reimbursement, cause of action, or other right in excess
of those existing without reference hereto.
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29. ASSIGNMENT
29.1 CLEC may not assign or transfer (whether by operation of law or
otherwise) this Agreement (or any rights or obligations hereunder) to a
third person without the prior written consent of SBC-13STATE; provided
that CLEC may assign or transfer this Agreement to its Affiliate by
providing ninety (90) calendar days' prior written notice to SBC-13STATE of
such assignment or transfer; provided, further, that such assignment is not
inconsistent with Applicable Law (including the Affiliate's obligation to
obtain proper Commission certification and approvals) or the terms and
conditions of this Agreement. Notwithstanding the foregoing, CLEC may not
assign or transfer this Agreement (or any rights or obligations hereunder)
to its Affiliate if that Affiliate is a party to a separate agreement with
SBC-13STATE under Sections 251 and 252 of the Act. Any attempted assignment
or transfer that is not permitted is void ab initio.
29.2 As a condition of any assignment or transfer of this Agreement (or any
rights hereunder) that is permitted under or consented to by SBC-13STATE
pursuant to this Section 29, CLEC agrees that any change, modification or
other activity required for SBC-13STATE to accommodate or recognize the
successor to or assignee of CLEC shall be a CLEC Change and shall be
subject to Section 4.9. SBC-13STATE shall have no obligation to proceed
with such activities nor shall any otherwise acceptable assignment or
transfer be effective against SBC-13STATE until the Parties agree upon the
charges that apply to such CLEC Change.
29.3 If during the Term, SBC-13STATE sells, assigns or otherwise transfers
any ILEC Territory or ILEC Assets to a person other than an Affiliate or
subsidiary, SBC-13STATE shall provide CLEC not less than ninety (90)
calendar days prior written notice of such sale, assignment or transfer.
Upon the consummation of such sale, assignment or transfer, CLEC
acknowledges that SBC-13STATE shall have no further obligations under this
Agreement with respect to the ILEC Territories and/or ILEC Assets subject
to such sale, assignment or transfer, and that CLEC must establish its own
Section 251 and 252 arrangement with the successor to such ILEC Territory
and/or ILEC Assets.
30. DELEGATION TO AFFILIATE
30.1 Each Party may without the consent of the other Party fulfill its
obligations under this Agreement by itself or may cause its Affiliate(s) to
take some or all of such actions to fulfill such obligations. Upon such
delegation, the Affiliate shall become a primary obligor hereunder with
respect to the delegated matter, but such delegation shall not relieve the
delegating Party of its obligations as co-obligor hereunder. Any Party
which elects to perform its obligations through an Affiliate shall cause
its Affiliate to take all action necessary for the performance of such
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Party's obligations hereunder. Each Party represents and warrants that if
an obligation under this Agreement is to be performed by an Affiliate, such
Party has the authority to cause such Affiliate to perform such obligation
and such Affiliate will have the resources required to accomplish the
delegated performance.
31. SUBCONTRACTING
31.1 If either Party retains or engages any subcontractor to perform any of
that Party's obligations under this Agreement, each Party will remain fully
responsible for the performance of this Agreement in accordance with its
terms, including any obligations either Party performs through
subcontractors.
31.2 Each Party will be solely responsible for payments due that Party's
subcontractors.
31.3 No subcontractor will be deemed a Third Party beneficiary for any
purposes under this Agreement.
31.4 No contract, subcontract or other agreement entered into by either
Party with any Third Party in connection with the provision of
Interconnection, Resale Services, Network Elements, functions, facilities,
products and services hereunder will provide for any indemnity, guarantee
or assumption of liability by the other Party to this Agreement with
respect to such arrangement, except as consented to in writing by the other
Party.
31.5 Any subcontractor that gains access to CPNI or Proprietary Information
covered by this Agreement shall be required by the subcontracting Party to
protect such CPNI or Proprietary Information to the same extent the
subcontracting Party is required to protect such CPNI or Proprietary
Information under the terms of this Agreement.
32. HAZARDOUS SUBSTANCES AND RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
32.1 Each Party will be solely responsible at it own expense for the proper
handling, storage, transport, treatment, disposal and use of all Hazardous
Substances by such Party and its contractors and agents. "Hazardous
Substances" includes those substances:
32.1.1 included within the definition of hazardous substance,
hazardous waste, hazardous material, toxic substance, solid waste or
pollutant or contaminant under any Applicable Law, and
32.1.2 listed by any governmental agency as a hazardous substance.
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32.2 CLEC will in no event be liable to SBC-13 STATE for any costs
whatsoever resulting from the presence or release of any environmental
hazard, including Hazardous Substances, that CLEC did not introduce to the
affected work location. SBC-13STATE will indemnify, defend (at CLEC's
request) and hold CLEC and each of its officers, directors and employees
harmless from and against any Loss that arises out of or results from:
32.2.1 Any Environmental Hazard that SBC-13STATE, its contractors or
agents introduce to the work locations, or
32.2.2 The presence or Release of any Environmental Hazard for which
SBC-13STATE is responsible under Applicable Law.
32.3 SBC-13STATE will in no event be liable to CLEC for any costs
whatsoever resulting from the presence or Release of any Environmental
Hazard that SBC-13STATE did not introduce to the affected work location.
CLEC will indemnify, defend (at SBC-13STATE's request) and hold SBC-13STATE
and each of its officers, directors and employees harmless from and against
any Loss that arises out of or results from:
32.3.1 any Environmental Hazard that CLEC, its contractors or agents
introduce to the work locations, or
32.3.2 the presence or Release of any Environmental Hazard for which
CLEC is responsible under Applicable Law.
33. FORCE MAJEURE
33.1 No Party shall be responsible for delays or failures in performance of
any part of this Agreement (other than an obligation to make money
payments) resulting from acts or occurrences beyond the reasonable control
of such Party, including acts of nature, acts of civil or military
authority, any law, order, regulation, ordinance of any Governmental
Authority, embargoes, epidemics, terrorist acts, riots, insurrections,
fires, explosions, earthquakes, nuclear accidents, hurricanes, floods, work
stoppages, equipment failures, cable cuts, power blackouts, volcanic
action, other major environmental disturbances, unusually severe weather
conditions, inability to secure products or services of other persons or
transportation facilities or acts or omissions of transportation carriers
(individually or collectively, a "FORCE MAJEURE EVENT") or any Delaying
Event caused by the other Party or any other circumstances beyond the
Party's reasonable control. If a Force Majeure Event shall occur, the Party
affected shall give prompt notice to the other Party of such Force Majeure
Event specifying the nature, date of inception and expected duration of
such Force Majeure Event, whereupon such obligation or performance shall be
suspended to the extent such Party is affected by such Force Majeure
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Event during the continuance thereof or be excused from such performance
depending on the nature, severity and duration of such Force Majeure Event
(and the other Party shall likewise be excused from performance of its
obligations to the extent such Party's obligations relate to the
performance so interfered with). The affected Party shall use its
reasonable efforts to avoid or remove the cause of nonperformance and the
Parties shall give like notice and proceed to perform with dispatch once
the causes are removed or cease.
34. TAXES
34.1 Each Party purchasing Interconnection, Resale Services, Network
Elements, functions, facilities, products and services under this Agreement
shall pay or otherwise be responsible for all federal, state, or local
sales, use, excise, gross receipts, municipal fees, transfer, transaction
or similar taxes, fees, or surcharges (hereinafter "Tax") imposed on, or
with respect to, the Interconnection, Resale Services, Network Elements,
functions, facilities, products and services under this Agreement provided
by or to such Party, except for (a) any Tax on either party's corporate
existence, status, or income or (b) any corporate franchise Taxes. Whenever
possible, Taxes shall be billed as a separate item on the invoice.
34.2 With respect to any purchase of Interconnection, Resale Services,
Network Elements, functions, facilities, products and services under this
Agreement if any Tax is required or permitted by Applicable Law to be
collected from the purchasing Party by the providing Party, then: (i) the
providing Party shall bill the purchasing Party for such Tax; (ii) the
purchasing Party shall remit such Tax to the providing Party; and (iii) the
providing Party shall remit such collected Tax to the applicable taxing
authority. Failure to include Taxes on an invoice or to state a Tax
separately shall not impair the obligation of the purchasing Party to pay
any Tax. Nothing shall prevent the providing Party from paying any Tax to
the appropriate taxing authority prior to the time: (1) it bills the
purchasing Party for such Tax, or (2) it collects the Tax from the
purchasing Party. Notwithstanding anything in this Agreement to the
contrary, the purchasing Party shall be liable for and the providing Party
may collect Taxes which were assessed by or paid to an appropriate taxing
authority within the statute of limitations period but not included on an
invoice within four (4) years after the Tax otherwise was owed or due.
34.3 With respect to any purchase hereunder of Interconnection, Resale
Services, Network Elements, functions, facilities, products and services
under this Agreement that are resold to a third party, if any Tax is
imposed by Applicable Law on the End User in connection with any such
purchase, then: (i) the purchasing Party shall be required to impose and/or
collect such Tax from the End User; and (ii) the purchasing Party shall
remit such Tax to the applicable taxing authority. The purchasing Party
agrees to indemnify and hold harmless the
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providing Party for any costs incurred by the providing Party as a result
of actions taken by the applicable taxing authority to collect the Tax from
the providing Party due to the failure of the purchasing Party to pay or
collect and remit such tax to such authority.
34.4 If the providing Party fails to bill or to collect any Tax as required
herein, then, as between the providing Party and the purchasing Party: (i)
the purchasing Party shall remain liable for such uncollected Tax; and (ii)
the providing Party shall be liable for any penalty and interest assessed
with respect to such uncollected Tax by such authority. However, if the
purchasing Party fails to pay any Taxes properly billed, then, as between
the providing Party and the purchasing Party, the purchasing Party will be
solely responsible for payment of the Taxes, penalty and interest.
34.5 If the purchasing Party fails to impose and/or collect any Tax from
End Users as required herein, then, as between the providing Party and the
purchasing Party, the purchasing Party shall remain liable for such
uncollected Tax and any interest and penalty assessed thereon with respect
to the uncollected Tax by the applicable taxing authority. With respect to
any Tax that the purchasing Party has agreed to pay or impose on and/or
collect from End Users, the purchasing Party agrees to indemnify and hold
harmless the providing Party for any costs incurred by the providing Party
as a result of actions taken by the applicable taxing authority to collect
the Tax from the providing Party due to the failure of the purchasing Party
to pay or collect and remit such Tax to such authority.
34.6 If either Party is audited by a taxing authority or other Governmental
Authority, the other Party agrees to reasonably cooperate with the Party
being audited in order to respond to any audit inquiries in a proper and
timely manner so that the audit and/or any resulting controversy may be
resolved expeditiously.
34.7 To the extent a sale is claimed to be for resale and thus subject to
tax exemption, the purchasing Party shall furnish the providing Party a
proper resale tax exemption certificate as authorized or required by
statute or regulation of the jurisdiction providing said resale tax
exemption. Failure to timely provide said resale tax exemption certificate
will result in no exemption being available to the purchasing Party for any
period prior to the date that the purchasing Party presents a valid
certificate. If Applicable Law excludes or exempts a purchase of
Interconnection, Resale Services, Network Elements, functions, facilities,
products and 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 (a) furnishes the providing Party with a
letter signed by an officer of the purchasing Party claiming an exemption
and identifying the Applicable Law that both allows such exemption and does
not require an exemption certificate; and (b) supplies the providing Party
with an
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indemnification agreement, reasonably acceptable to the providing Party,
which holds the providing Party harmless from any tax, interest, penalties,
loss, cost or expense with respect to forbearing to collect such Tax.
34.8 With respect to any Tax or Tax controversy covered by this SECTION 34,
the purchasing Party is entitled to contest with the imposing jurisdiction,
pursuant to Applicable Law and at its own expense, any Tax that it is
ultimately obligated to pay or collect. The purchasing Party will ensure
that no lien is attached to any asset of the providing Party as a result of
any contest. The purchasing Party shall be entitled to the benefit of any
refund or recovery of amounts that it had previously paid resulting from
such a contest. Amounts previously paid by the providing Party shall be
refunded to the providing Party. The providing Party will cooperate in any
such contest.
34.9 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 34 shall be sent in accordance with Section 17
hereof.
35. NON-WAIVER
35.1 Except as otherwise specified in this Agreement, no waiver of any
provision of this Agreement and no consent to any default under this
Agreement shall be effective unless the same is in writing and properly
executed by or on behalf of the Party against whom such waiver or consent
is claimed. Waiver by either Party of any default by the other Party shall
not be deemed a waiver of any other default. Failure of either Party to
insist on performance of any term or condition of this Agreement or to
exercise any right or privilege hereunder shall not be construed as a
continuing or future waiver of such term, condition, right or privilege. No
course of dealing or failure of any Party to strictly enforce any term,
right, or condition of this Agreement in any instance shall be construed as
a general waiver or relinquishment of such term, right or condition.
36. NETWORK MAINTENANCE AND MANAGEMENT
36.1 The Parties will work cooperatively to implement this Agreement. The
Parties will exchange appropriate information (for example, maintenance
contact numbers, network information, information required to comply with
law enforcement and other security agencies of the Government, escalation
processes, etc.) to achieve this desired result.
36.2 Each Party will administer its network to ensure acceptable service
levels to all users of its network services. Service levels are generally
considered acceptable only when End Users are able to establish connections
with little or no delay
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encountered in the network. Each Party will provide a 24-hour contact
number for Network Traffic Management issues to the other's surveillance
management center.
36.3 Each Party maintains the right to implement protective network traffic
management controls, such as "cancel to", "call gapping" or 7-digit and
10-digit code gaps, to selectively cancel the completion of traffic over
its network, including traffic destined for the other Party's network, when
required to protect the public-switched network from congestion as a result
of occurrences such as facility failures, switch congestion or failure or
focused overload. Each Party shall immediately notify the other Party of
any protective control action planned or executed.
36.4 Where the capability exists, originating or terminating traffic
reroutes may be implemented by either Party to temporarily relieve network
congestion due to facility failures or abnormal calling patterns. Reroutes
shall not be used to circumvent normal trunk servicing. Expansive controls
shall be used only when mutually agreed to by the Parties.
36.5 The Parties shall cooperate and share pre-planning information
regarding cross-network call-ins expected to generate large or focused
temporary increases in call volumes to prevent or mitigate the impact of
these events on the public-switched network, including any disruption or
loss of service to the other Party's End Users. Facsimile (FAX) numbers
must be exchanged by the Parties to facilitate event notifications for
planned mass calling events.
36.6 Neither Party shall use any Interconnection, Resale Service, Network
Element, function, facility, product or service provided under this
Agreement or any other service related thereto or used in combination
therewith in any manner that interferes with any Party in the use of such
Party's Telecommunications Service, prevents any Party from using its
Telecommunications Service, impairs the quality of Telecommunications
Service to other carriers or to either Party's End Users, causes electrical
hazards to either Party's personnel, damage to either Party's facilities or
equipment or malfunction of either Party's ordering or billing systems or
equipment. Upon such occurrence either Party may discontinue or refuse
service, but only for so long as the other Party is violating this
provision. Upon such violation, either Party shall provide the other Party
notice of the violation at the earliest practicable time.
37. SIGNALING
37.1 The Parties will Interconnect their networks using SS7 signaling as
defined in GR-000317-CORE and GR-000394-CORE, including ISDN User Part
(ISUP) for trunk signaling and Transaction Capabilities Application Part
(TCAP) for CCS-
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based features in the Interconnection of their networks. Each Party may
establish CCS interconnections either directly and/or through a Third
Party. If CCS interconnection is established through a Third Party, the
rates, terms, and conditions of the Parties' respective tariffs will apply.
If CCS interconnection is established directly between CLEC and
SBC-13STATE, the rates, terms, and conditions of Appendix SS7 will apply.
37.2 The Parties will cooperate in the exchange of TCAP messages to
facilitate full interoperability of CCS-based features between their
respective networks, including all CLASS features and functions, to the
extent each Party offers such features and functions to its own End Users.
All CCS signaling parameters deployed by both Parties will be provided
including CPN. All privacy indicators will be honored.
38. TRANSMISSION OF TRAFFIC TO THIRD PARTIES
38.1 CLEC will not send to SBC-13STATE local traffic that is destined for
the network of a Third Party unless CLEC has the authority to exchange
traffic with that Third Party.
39. CUSTOMER INQUIRIES
39.1 Each Party will refer all questions regarding the other Party's
services or products directly to the other Party at a telephone number
specified by that Party.
39.2 Each Party will ensure that all of its representatives who receive
inquiries regarding the other Party's services:
39.2.1 Provide the number described in Section 39.1 to callers who
inquire about the other Party's services or products; and
39.2.2 Do not in any way disparage or discriminate against the other
Party or its products or services.
39.3 Except as otherwise provided in this Agreement, CLEC shall be the
primary point of contact for CLEC's End Users with respect to the services
CLEC provides such End Users.
39.4 CLEC acknowledges that SBC-13STATE may, upon End User request, provide
services directly to such End User similar to those offered to CLEC under
this Agreement.
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40. EXPENSES
40.1 Except as expressly set forth in this Agreement, each Party will be
solely responsible for its own expenses involved in all activities related
to the matters covered by this Agreement.
40.2 SBC-12STATE and CLEC shall each be responsible for one-half (1/2) of
expenses payable to a Third Party for Commission fees or other charges
(including regulatory fees and any costs of notice or publication, but not
including attorney's fees) associated with the filing of this agreement.
41. CONFLICT OF INTEREST
41.1 The Parties represent that no employee or agent of either Party has
been or will be employed, retained, paid a fee, or otherwise received or
will receive any personal compensation or consideration from the other
Party, or any of the other Party's employees or agents in connection with
the negotiation of this Agreement or any associated documents.
42. SURVIVAL
42.1 The Parties' obligations under this Agreement which by their nature
are intended to continue beyond the termination or expiration of this
Agreement shall survive the termination or expiration of this Agreement.
Without limiting the general applicability of the foregoing, the following
terms and conditions of the General Terms and Conditions are specifically
agreed by the Parties to continue beyond the termination or expiration of
this Agreement: Section 5.5; Section 5.6, Section 7.3; Section 8.1; Section
8.4; Section 8.5; Section 8.6; Section 8.7; Section 10, Section 11; Section
13; Section 14; Section 15; Section 16.1; Section 18; Section 19; Section
20; Section 22; Section 25.4; Section 26.1.3; Section 32; Section 34 and
Section 42.
43. SCOPE OF AGREEMENT
43.1 This Agreement is intended to describe and enable specific
Interconnection and compensation arrangements between the Parties. This
Agreement is the arrangement under which the Parties may purchase from each
other the products and services described in Section 251 of the Act and
obtain approval of such arrangement under Section 252 of the Act. Except as
agreed upon in writing, neither Party shall be required to provide the
other Party a function, facility, product, service or arrangement described
in the Act that is not expressly provided herein.
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43.2 Except as specifically contained herein or provided by the FCC or any
Commission within its lawful jurisdiction, nothing in this Agreement shall
be deemed to affect any access charge arrangement.
44. AMENDMENTS AND MODIFICATIONS
44.1 No provision of this Agreement shall be deemed amended or modified by
either Party unless such an amendment or modification is in writing, dated,
and signed by an authorized representative of both Parties. The rates,
terms and conditions contained in the amendment shall become effective upon
approval of such amendment by the appropriate Commissions.
44.2 Neither Party shall be bound by any preprinted terms additional to or
different from those in this Agreement that may appear subsequently in the
other Party's form documents, purchase orders, quotations, acknowledgments,
invoices or other communications.
45. IN-REGION MOST FAVORED NATIONS (MFN) BETWEEN SBC STATES
45.1 Subject to the conditions and limitations specified in Paragraph 43 of
the SBC/Ameritech Merger Conditions (See the FCC's Memorandum Opinion and
Order approving the SBC/Ameritech Merger Conditions, In re Applications of
Ameritech Corp., Transferor and SBC Communications, Inc., Transferee, For
Consent to Transfer Control of Corporations Holding Commission Licenses and
Lines Pursuant to Sections 214 and 310(d) of the Communications Act and
Parts 5, 22, 24, 25, 63, 90, 95 and 101 of the Commission's Rules, CC
Docket 98-141, issued on October 8, 1999 ("FCC 99-279)), SBC-13STATE shall
make available to any requesting telecommunication carrier in the
SBC/Ameritech Area within any SBC/Ameritech State any interconnection
arrangement or UNE in the SBC/Ameritech Service Area within any other
SBC/Ameritech state that (1) was negotiated with a telecommunications
carrier, pursuant to 47 U.S.C. 252(a)(1), by SBC-13STATE (that at all times
during the interconnection agreement negotiations was AN SBC-owned ILEC)
and (2) has been made available under an agreement to which SBC-13STATE is
a party.
45.2 The Parties acknowledge and agree that it may require additional time
to implement an interconnection arrangement or UNE ported from one
SBC-owned ILEC state to another SBC-owned ILEC state pursuant to Paragraph
43 of
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the SBC/Ameritech Merger Conditions. Thus, when a CLEC exercises its option
to adopt an interconnection arrangement or UNE in accordance with Paragraph
43 of the SBC/Ameritech Merger Conditions, the Parties shall meet within
thirty (30) calendar days of state commission approval of the
interconnection agreement or amendment containing such interconnection
arrangement and/or UNE to agree upon an implementation schedule for such
interconnection arrangement and/or UNE.
45.3 Paragraph 43 of the SBC/Ameritech Merger Conditions as well as this
Section 45 shall expire the earliest of October 8, 2002 or the termination
date outlined in section 5 of the General Terms and Conditions of this
Agreement, whichever is earlier.
46. APPENDICES INCORPORATED BY REFERENCE
46.1 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4)
46.1.1 SBC-13STATE- shall provide to CLEC access to Poles, Conduits
and Rights of Ways pursuant to the applicable Appendix ROW, which
is/are attached hereto and incorporated herein by reference.
46.2 COLLOCATION -- SECTION 251(c)(6)
46.2.1 Collocation will be provided pursuant to the applicable
Appendix Collocation, which is attached hereto and incorporated herein
by reference.
46.3 DATABASE ACCESS
46.3.1 SBC13STATE shall provide to CLEC nondiscriminatory access to
databases and associated signaling necessary for call routing and
completion pursuant to the applicable Appendix UNE, which IS/ARE
attached hereto and incorporated herein by reference.
46.4 DIALING PARITY -- SECTION 251(b)(3)
46.4.1 The Parties shall provide Local Dialing Parity to each other as
required under Section 251(b)(3) of the Act.
46.4.2 SBC12STATE shall provide IntraLATA Dialing Parity in accordance
with Section 271(e)(2) of the Act.
46.5 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)(A),(B),(C); 47 CFR
51.305(a)(1)
46.5.1 SBC-13STATE shall provide to CLEC Interconnection of the
Parties' facilities and equipment for the transmission and routing of
Telephone
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Exchange Service traffic and Exchange Access traffic pursuant to the
applicable Appendix ITR, which IS/ARE attached hereto and incorporated
herein by reference. Methods for Interconnection and Physical
Architecture shall be as defined in the applicable Appendix NIM, which
IS/ARE attached hereto and incorporated herein by reference.
46.6 NUMBER PORTABILITY -- SECTIONS 251(b)(2)
46.6.1 The Parties shall provide to each other Permanent Number
Portability (PNP) on a reciprocal basis as outlined in the applicable
Appendix Number Portability, which IS/ARE attached hereto and
incorporated herein by reference.
46.7 OTHER SERVICES
46.7.1 911 and E911 Services
46.7.1.1 SBC-13STATE will make nondiscriminatory access to 911
and E911 services available under the terms and conditions of the
applicable Appendix 911, which IS/ARE attached hereto and
incorporated herein by reference.
46.7.1.2 The Parties agree that for "data only" providers the
following rules concerning 911 requirements apply:
46.7.1.2.1 Having represented and warranted to SBC-13STATE
that it will only offer data services, CLEC agrees that it
will not provide voice service to its end users over the
network elements furnished by SBC-13STATE; and
46.7.1.2.2 CLEC understands and agrees that, should it
decide to provide voice service, it is required to meet all
applicable Commission 911 service requirements; and
46.7.1.2.3 CLEC agrees to begin implementing access to 911
sufficiently in advance of the planned implementation of
voice service to meet its 911 requirements. CLEC understands
that the steps it must take to fulfill its 911 obligation
include, but are not limited to, obtaining NXX(s) from NECA
for the exchange area(s) CLEC plans to serve, submission of
the appropriate form(s) to SBC-13STATE, and, following
SBC-13STATE's processing of such form(s), obtaining approval
from the appropriate PSAP(s) for the CLEC's 911 service
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architecture. CLEC further understands that PSAP approval
may include testing 911 trunks with appropriate PSAP(s).
CLEC understands that, based on SBC-13STATE's prior
experience with CLEC implementation of 911, these steps
require a minimum of sixty (60) days.
46.7.2 AIN
46.7.2.1 One or more of the ILECs making up SBC-13STATE have
deployed a set of AIN features and functionalities unique to the
particular ILEC(s). As such, the AIN network architecture,
methods of access and manner of provisioning are specific to that
ILEC or those ILECs. Accordingly, any request for AIN access
pursuant to this Agreement must be reviewed for technical
feasibility, with all rates, terms and conditions related to such
request to be determined on an individual case basis and to be
negotiated between the Parties. Upon request by CLEC, and where
technically feasible, SBC-13STATE will provide CLEC with access
to SBC-13STATE's Advanced Intelligent Network (AIN) platform, AIN
Service Creation Environment (SCE) and AIN Service Management
System (SMS) based upon ILEC-specific rates, terms, conditions
and means of access to be negotiated by the Parties pursuant to
Section 252 of the Act, and incorporated into this Agreement by
Appendix or amendment, as applicable, subject to approval by the
appropriate state Commission.
46.7.3 Directory Assistance (DA)
45.7.3.1 SBC-13STATE will provide nondiscriminatory access to
Directory Assistance services under the terms and conditions
identified in the applicable Appendix DA, which IS/ARE attached
hereto and incorporated herein by reference.
46.7.4 Hosting
45.7.4.1 At CLEC's request, SBC-SWBT and SBC-AMERITECH shall
perform hosting responsibilities for the provision of billable
message data and/or access usage data received from CLEC for
distribution to the appropriate billing and/or processing
location or for delivery to CLEC of such data via SBC-SWBT's and
SBC-AMERITECH's internal network or the nationwide
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CMDS network pursuant to the applicable Appendix HOST, which
IS/ARE attached hereto and incorporated herein by reference.
46.7.5 Operator Services (OS)
45.7.5.1 SBC-13STATE shall provide nondiscriminatory access to
Operator Services under the terms and conditions identified in
the applicable Appendix OS, which IS/ARE attached hereto and
incorporated herein by reference.
46.7.6 Signaling System 7 Interconnection
45.7.6.1 At CLEC's request, SBC-13STATE shall perform SS7
interconnection services for CLEC pursuant to the applicable
Appendix SS7, which IS/ARE attached hereto and incorporated
herein by reference.
46.7.7 Publishing and Directory
46.7.7.1 SBC-13STATE will make nondiscriminatory access to
Publishing and Directory service available under the terms and
conditions of the applicable Appendix White Pages, which IS/ARE
attached hereto and incorporated herein by reference.
46.7.8 RESALE--SECTIONS 251(b)(1)
46.7.8.1 SBC-13STATE shall provide to CLEC Telecommunications
Services for resale at wholesale rates pursuant to the applicable
Appendix Resale, which IS/ARE attached hereto and incorporated
herein by reference.
46.7.9 TRANSMISSION AND ROUTING OF SWITCHED ACCESS TRAFFIC PURSUANT TO
251(c)(2)
46.7.9.1 SBC-13STATE shall provide to CLEC certain trunk groups
(Meet Point Trunks) under certain parameters pursuant to the
applicable Appendix ITR, which IS/ARE attached hereto and
incorporated herein by reference.
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46.7.10 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC
PURSUANT TO SECTION 251(c)(2)(D); 252(d)(1) and (2); 47 CFR
51.305(a)(5).
46.7.10.1 The applicable Appendix Compensation, which IS/ARE
attached hereto and incorporated herein by reference, prescribe
traffic routing parameters for Local Interconnection Trunk
Group(s) the Parties shall establish over the Interconnections
specified in the applicable Appendix ITR, which IS/ARE attached
hereto and incorporated herein by reference.
46.7.11 UNBUNDLED NETWORK ELEMENTS -- SECTIONS 251(c)(3)
45.7.11.1 Pursuant to the applicable Appendix UNE, which IS/ARE
attached hereto and incorporated herein by reference, SBC-13STATE
will provide CLEC access to Unbundled Network elements for the
provision of Telecommunications Service as required by Sections
251 and 252 of the Act and in the Appendices hereto. CLEC agrees
to provide access to its Network Elements to SBC-13STATE under
the same terms, conditions and prices contained herein and in the
applicable Appendices hereto.
47. AUTHORITY
47.1 Each of the SBC-owned ILEC(s) for which this Agreement is executed
represents and warrants that it is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation.
Each of the SBC-owned ILEC(s) for which this Agreement is executed
represents and warrants that SBC Telecommunications, Inc. has full power
and authority to execute and deliver this Agreement as agent for that
SBC-owned ILEC. Each of the SBC-owned ILEC(s) for which this Agreement is
executed represents and warrants that it has full power and authority to
perform its obligations hereunder.
47.2 CLEC represents and warrants that it is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Pennsylvania and has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. CLEC represents and
warrants that it has been or will be certified as a LEC by the
Commission(s) prior to submitting any orders hereunder and is or will be
authorized to provide the Telecommunications Services contemplated
hereunder in the territory contemplated hereunder prior to submission of
orders for such Service.
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47.3 Each Person whose signature appears below represents and warrants that
he or she has authority to bind the Party on whose behalf he or she has
executed this Agreement.
48. COUNTERPARTS
48.1 This Agreement may be executed in counterparts. Each counterpart shall
be considered an original and such counterparts shall together constitute
one and the same instrument.
49. ENTIRE AGREEMENT
49.1 SBC-12STATE
49.1.1 The terms contained in this Agreement and any Appendices,
Attachments, Exhibits, Schedules, and Addenda constitute the entire
agreement between the Parties with respect to the subject matter
hereof, superseding all prior understandings, proposals and other
communications, oral or written.
49.2 SNET
49.2.1 The terms contained in this Agreement and any Appendices,
Attachments, Exhibits, Schedules, Addenda, Commission approved tariffs
and other documents or instruments referred to herein and incorporated
into this Agreement by reference constitute the entire agreement
between the Parties with respect to the subject matter hereof,
superseding all prior understandings, proposals and other
communications, oral or written.
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SBC-13STATE AGREEMENT
SIGNATURES
----------
TALK.COM HOLDING, CORP. ILLINOIS BELL TELEPHONE COMPANY, INDIANA
BELL TELEPHONE COMPANY INCORPORATED,
MICHIGAN BELL TELEPHONE COMPANY, THE
OHIO BELL TELEPHONE COMPANY, AND
WISCONSIN BELL INC. D/B/A AMERITECH
WISCONSIN, NEVADA BELL TELEPHONE
COMPANY, PACIFIC BELL TELEPHONE COMPANY,
THE SOUTHERN NEW ENGLAND TELEPHONE
COMPANY, SOUTHWESTERN BELL TELEPHONE
COMPANY BY SBC TELECOMMUNICATIONS,
INC., ITS AUTHORIZED AGENT
Signature:/s/ Warren Brasselle Signature: /s/ O.R. Stanley
Name: Warren Brasselle Name: O.R. Stanley
(Print or Type)
Title: Senior VP Operations Title: President - Industry Markets
(Print or Type)
Date: 9/22/00 Date: 10/11/00
AECN/OCN# 0067
(Facility Based - if applicable)