Interconnection Agreement-Texas - Southwestern Bell Telephone Co. and Birch Telecom of Texas Ltd. LLP
INTERCONNECTION AGREEMENT-TEXAS
between
Southwestern Bell Telephone Company
and
Birch Telecom of Texas Ltd., L.L.P.
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TABLE OF CONTENTS
INTERCONNECTION AGREEMENT-TEXAS
BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
BIRCH TELECOM OF TEXAS LTD., L.L.P.
1. Introduction.........................................................1
2. Effective Date.......................................................2
3. Intervening Law......................................................2
4. Term of Agreement....................................................3
5. Assignment...........................................................4
6. Confidentiality and Proprietary Information..........................4
7. Liability and Indemnification........................................6
8. Payment of Rates and Charges.........................................9
9. Dispute Resolution...................................................9
10. Termination of Service to CLEC......................................11
11. Notices.............................................................13
12. Taxes...............................................................13
13. Force Majeure.......................................................15
14. Publicity...........................................................15
15. Network Maintenance and Management..................................16
16. Law Enforcement and Civil Process...................................16
17. Changes in Subscriber Carrier Selection.............................17
18. Amendments or Waivers...............................................18
19. Authority...........................................................18
20. Binding Effect......................................................18
21. Consent.............................................................18
22. Expenses............................................................18
23. Headings............................................................19
24. Relationship of Parties.............................................19
25. Conflict of Interest................................................19
26. Multiple Counterparts...............................................19
27. Third Party Beneficiaries...........................................19
28. Regulatory Approval.................................................19
29. Trademarks and Trade Names..........................................20
30. Regulatory Authority................................................20
31. Effect of Other Agreements..........................................21
32. Verification Reviews................................................21
33. Complete Terms......................................................23
34. Cooperation on Preventing End User Fraud............................23
35. Notice of Network Changes...........................................23
36. Good Faith Performance..............................................23
37. Responsibility of Each Party........................................24
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38. Transmission of Traffic to Third Parties............................24
39. Governmental Compliance.............................................24
40. Responsibility for Environmental Contamination......................25
41. Subcontracting......................................................25
42. Referenced Documents................................................25
43. Severability........................................................26
44. Survival of Obligations.............................................26
45. Governing Law.......................................................26
46. Performance Criteria................................................26
47 Other Obligations of CLEC...........................................27
48. Dialing Parity; Interim Number Portability..........................27
49. Branding............................................................27
50. Customer Inquiries..................................................27
51. Disclaimer of Warranties............................................27
52. No Waiver...........................................................28
53. Definitions.........................................................28
54. Resale..............................................................28
55. Unbundled Network Elements..........................................28
56. Ordering and Provisioning, Maintenance, Connectivity Billing
and Reordering, and Provision of Customer Usage Data................29
57. Network Interconnection Architecture................................29
58. Compensation for Delivery of Traffic................................29
59. Ancillary Functions.................................................29
60. Conforming Amendments...............................................29
61. Other Requirement and Attachments...................................30
ATTACHMENTS.........................................................
RESALE
Attachment 1: Resale
Appendix Services/Pricing
Exhibit A: SWBT's Telecommunications Services Available for
Resale
Exhibit B: SWBT's Other Services Available for Resale
Appendix Customized Routing-Resale
Appendix DA-Resale
Appendix OS-Resale
Appendix White Pages (WP)-Resale
Attachment 2: Ordering and Provisioning-Resale
Attachment 3: Maintenance-Resale
Attachment 4: Connectivity Billing-Resale
Attachment 5: Provision of Customer Usage Data-Resale
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UNBUNDLED NETWORK ELEMENTS
Attachment 6: Unbundled Network Elements (UNE)
Appendix Pricing-UNE
Appendix Pricing-UNE Schedule of Prices
Attachment 7: Ordering and Provisioning-UNE
Attachment 8: Maintenance-UNE
Attachment 9: Billing-Other
Attachment 10: Provision of Customer Usage Data-UNE
NETWORK INTERCONNECTION ARCHITECTURE AND COMPENSATION
Attachment 11: Network Interconnection Architecture
Appendix Interconnection Trunking Requirement (ITR)
Appendix Network Interconnection Methods (NIM)
Appendix SS7 Interconnection
Attachment 12: Compensation
Appendix Cellular
Appendix FGA
ANCILLARY FUNCTIONS
Attachment 13: Ancillary Functions
Appendix Collocation
Appendix Poles, Conduit, ROW
OTHER REQUIREMENTS
Attachment 14: Interim Number Portability
Attachment 15: E911
Attachment 16: Network Security and Law Enforcement
Attachment 17: Failure to Meet Performance Criteria
Attachment 18: Mutual Exchange of Directory Listing Information
Attachment 19: White Pages-Other (WP-O)
Attachment 20: Clearinghouse
Attachment 21: Numbering
Attachment 22: DA-Facilities Based
Attachment 23: OS-Facilities Based
Attachment 24: Recording-Facilities Based
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INTERCONNECTION AGREEMENT - TEXAS
This Interconnection Agreement - Texas (Agreement) is between Birch
Telecom of Texas Ltd., L.L.P. ("CLEC"), having an office at 1004 Baltimore Ave.,
Suite 900, Kansas City, MO 64105, and Southwestern Bell Telephone Company
(SWBT), a Missouri corporation, having an office at 1010 Pine Street, St. Louis,
Missouri 63101, (collectively the Parties).
WHEREAS, pursuant to the Telecommunications Act of 1996 (the Act), the
Parties wish to establish terms for the resale of SWBT services and for the
provision by SWBT of Interconnection, unbundled Network Elements, and Ancillary
Functions as designated in the Attachments hereto. Pursuant to Section 252(i) of
the Federal Telecommunications Act of 1996 CLEC and SWBT have entered into an
Agreement on the same terms and conditions contained in the SWBT/AT&T Agreement
for the State of Texas.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of this Agreement CLEC and SWBT hereby agree as follows:
1.0 INTRODUCTION
1.1 This Agreement sets forth the terms, conditions and prices under which
SWBT agrees to provide (a) services for resale (hereinafter referred to
as Resale services), (b) unbundled Network Elements, or combinations of
such Network Elements (Combinations), (c) Ancillary Functions and (d)
Interconnection to CLEC. This Agreement also sets forth the terms and
conditions for the interconnection of CLEC's network to SWBT's network
and reciprocal compensation for the transport and termination of
telecommunications.
1.2 The Network Elements, Combinations or Resale services provided pursuant
to this Agreement may be connected to other Network Elements,
Combinations or Resale services provided by SWBT or to any network
components provided by CLEC itself or by any other vendor. Subject to
the requirements of this Agreement, CLEC may at any time add, delete,
relocate or modify the Resale services, Network Elements or
Combinations purchased hereunder.
1.3 During the term of this Agreement, SWBT will not discontinue, as to
CLEC, any Network Element, Combination, or Ancillary Functions offered
to CLEC hereunder. During the term of this Agreement, SWBT will not
discontinue any Resale services or features offered to CLEC hereunder
except as provided in Attachment 1: Resale hereto and subject to the
provisions of Section 30.2 of the General Terms and Conditions of this
Agreement. This Section is not intended to impair SWBT's ability to
make changes in its Network, so long as such changes are consistent
with the Act and do not result in the
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discontinuance of the offerings of Network Elements, Combinations, or
Ancillary Functions made by SWBT to CLEC as set forth in an during the
terms of this Agreement.
1.4 SWBT may fulfill the requirements imposed upon it by this Agreement by
itself or may cause its Affiliates to take such actions to fulfill the
responsibilities.
1.5 This Agreement includes and incorporates herein the Attachments listed
in Section 6 of this Agreement, and all accompanying Appendices,
Addenda and Exhibits.
1.6 Unless otherwise provided in the Agreement, SWBT will perform all of
its obligations concerning its offering of Resale services and
unbundled Network Elements under this Agreement throughout the entire
service area where SWBT is the incumbent local exchange carrier;
provided, that SWBT's obligations to provide Ancillary Functions or to
meet other requirements of the Act covered by this Agreement are not
necessarily limited to such service areas.
2.0 EFFECTIVE DATE
2.1 This Agreement becomes effective (1) when executed by each Party and
approved by the State Commission; or (2) by operation of law pursuant
to the Order of the State Commission, whichever is earlier.
3.0 INTERVENING LAW
3.1 This Agreement is entered into as a result of both private negotiation
between the Parties and arbitration by the Public Utility Commission of
Texas (PUC), acting pursuant to FTA96, PURA95, and the PUC's
Substantive Rules. If the actions of Texas or federal legislative
bodies, courts, or regulatory agencies of competent jurisdiction
invalidate, modify, or stay the enforcement of laws or regulations that
were the basis for a provision of the contract required by the
Arbitration Award approved by the PUC, the affected provision will be
invalidated, modified, or stayed as required by action of the
legislative body, court, or regulatory agency. In such event, the
Parties will expend diligent efforts to arrive at an agreement
respecting the modifications to the Agreement required. If negotiations
fail, disputes between the Parties concerning the interpretation of the
actions required or provisions affected by such governmental actions
will be resolved pursuant to the dispute resolution process provided
for in this Agreement. The invalidation, stay, or modification of the
pricing provisions of the FCC's First Report and Order in CC Docket
No.96-98 (August 8, 1996) and the FCC's Order on Reconsideration
(September 27, 1996) will not be considered an invalidation, stay, or
modification requiring changes to provisions of the Agreement required
by the PUC Arbitration Award, in that the FCC's pricing provisions are
not the basis for the costing and pricing provisions of the PUC's
Arbitration Award.
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3.2 In the event a court or regulatory agency of competent jurisdiction
should determine that modifications of this Agreement are required to
bring the services being provided hereunder into compliance with the
Act, the affected Party will promptly give the other Party written
notice of the modifications deemed required. Upon delivery of such
notice, the Parties will expend diligent efforts to arrive at an
agreement respecting such modifications required, and if the Parties
are unable to arrive at such agreement within sixty (60) days after
such notice, either Party may invoke the Dispute Resolution process set
forth in Section 9.5 of this Agreement.
4.0 TERM OF AGREEMENT
4.1 This Agreement will become effective as of the Effective Date stated
above, and will expire on January 22, 2000 plus two one year
extensions, unless written Notice of Non Renewal and Request for
Negotiation (Non Renewal Notice) is provided by either Party in
accordance with the provisions of this Section. Any such Non Renewal
Notice must be provided not later than 180 days before the day this
Agreement would otherwise renew for an additional year. The noticing
Party will delineate the items desired to be negotiated. Not later than
30 days from receipt of said notice, the receiving Party will notify
the sending Party of additional items desired to be negotiated, if any.
Not later than 135 days from the receipt of the Non Renewal Notice,
both parties will commence negotiations.
4.2 The same terms, conditions, and prices will continue in effect, on a
month-to-month basis as were in effect at the end of the latest term,
or renewal, so long as negotiations are continuing without impasse and
then until resolution pursuant to this Section. The Parties agree to
resolve any impasse by submission of the disputed matters to the Texas
PUC for arbitration. Should the PUC decline jurisdiction, the Parties
will resort to a commercial provider of arbitration services.
4.3 Upon termination of this Agreement, CLEC's liability will be limited to
payment of the amounts due for Network Elements, Combinations,
Ancillary Functions and Resale Services provided up to and including
the date of termination and thereafter as reasonably requested by CLEC
to prevent service interruption, but not to exceed one (1) year. The
Network Elements, Combinations, Ancillary Functions and Resale services
provided hereunder are vital to CLEC and must be continued without
interruption. When CLEC provides or retains another vendor to provide
such comparable Network Elements, Combinations, Ancillary Functions or
Resale services, SWBT and CLEC agree to co-operate in an orderly and
efficient transition to CLEC or another vendor. SWBT and CLEC further
agree to coordinate the orderly transition to CLEC or another vendor
such that the level and quality of the Network Elements, Combinations,
Ancillary Functions and Resale Services is not degraded and each Party
will exercise its best efforts to effect an orderly and efficient
transition.
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5.0 ASSIGNMENT
5.1 Neither Party hereto may assign or otherwise transfer its rights or
obligations under this Agreement, except with the prior written consent
of the other Party hereto, which consent will not be unreasonably
withheld; provided, that SWBT may assign its rights and delegate its
benefits and delegate its duties and obligations under this Agreement
without the consent of CLEC to a 100 per cent owned affiliate of SWBT,
provided the performance of any such assignee is guaranteed by the
assignor. Nothing in this Section is intended to impair the right of
either Party to utilize subcontractors.
5.2 Each Party will notify the other in writing not less than 60 days in
advance of anticipated assignment.
6.0 CONFIDENTIALITY AND PROPRIETARY INFORMATION.
6.1 For the purposes of this Agreement, "Confidential Information" means
confidential or proprietary technical or business information given by
the Discloser to the Recipient. All information which is disclosed by
one party to the other in connection with this Agreement, during
negotiations (also see the Confidentiality Agreement between the
Parties dated April 1, 1996) and the term of this Agreement, will
automatically be deemed proprietary to the Discloser and subject to
this Agreement, unless otherwise confirmed in writing by the Discloser.
In addition, by way of example and not limitation, all orders for
Resale Services, Network Elements or Combinations placed by CLEC
pursuant to this Agreement, and information that would constitute
Customer Proprietary Network Information of CLEC's customers pursuant
to the Act and the rules and regulations of the Federal Communications
Commission (FCC), and Recorded Usage Data as described in Attachments 5
and 10 concerning Recorded Usage Data, whether disclosed by CLEC to
SWBT or otherwise acquired by SWBT in the course of the performance of
this Agreement, will be deemed Confidential Information of CLEC for all
purposes under this Agreement.
6.2 For a period of five (5) years from the receipt of Confidential
Information from the Discloser, except as otherwise specified in this
Agreement, the Recipient agrees (a) to use it only for the purpose of
performing under this Agreement, (b) to hold it in confidence and
disclose it to no one other than its employees having a need to know
for the purpose of performing under this Agreement, and (c) to
safeguard it from unauthorized use or disclosure using at least the
same degree of care with which the Recipient safeguards its own
Confidential Information. If the Recipient wishes to disclose the
Discloser's Confidential Information to a third-party agent or
consultant, such disclosure must be agreed to in writing by the
Discloser, and the agent or consultant must have executed a written
agreement of nondisclosure and nonuse comparable in scope to the terms
of this Section.
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6.3 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations under this Agreement.
All such copies will be subject to the same restrictions and
protections as the original and will bear the same copyright and
proprietary rights notices as are contained on the original.
6.4 The Recipient agrees to return all Confidential Information in tangible
form received from the Discloser, including any copies made by the
Recipient within thirty (30) days after a written request is delivered
to the Recipient, or to destroy all such Confidential Information if
directed to do so by Discloser except for Confidential Information that
the Recipient reasonably requires to perform its obligations under this
Agreement. If either Party loses or makes an unauthorized disclosure of
the other Party's Confidential Information, it will notify such other
party immediately and use reasonable efforts to retrieve the lost or
wrongfully disclosed information.
6.5 The Recipient will have no obligation to safeguard Confidential
Information: (a) which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser, (b) after it
becomes publicly known or available through no breach of this Agreement
by the Recipient; (c) after it is rightfully acquired by the Recipient
free of restrictions on its disclosure; or (d) after it is
independently developed by personnel of the Recipient to whom the
Discloser's Confidential Information had not been previously disclosed.
In addition, either Party will have the right to disclose Confidential
Information to any mediator, arbitrator, state, or federal regulatory
body, or a court in the conduct of any mediation, arbitration or
approval of this Agreement, so long as, in the absence of an applicable
protective order, the Discloser has been promptly notified by the
Recipient and so long as the Recipient undertakes all lawful measures
to avoid disclosing such information until Discloser has had reasonable
time to negotiate a protective order with any such mediator,
arbitrator, state or regulatory body or a court, and complies with any
protective order that covers the Confidential Information.
6.6 The Parties acknowledge that an individual end user may simultaneously
seek to become or be a customer of both Parties. Nothing in this
Agreement is intended to limit the ability of either Party to use
customer specific information lawfully obtained from end users or
sources other than the Disclosing Party.
6.7 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration or termination of this Agreement will
survive such expiration or termination.
6.8 Except as otherwise expressly provided elsewhere in this Agreement, no
license is hereby granted under any patent, trademark, or copyright,
nor is any such license implied solely by virtue of the disclosure of
any Confidential Information.
6.9 Each Party agrees that the Discloser may be irreparably injured by a
disclosure in breach of this Agreement by the Recipient or its
representatives and the Discloser will be entitled
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to seek equitable relief, including injunctive relief and specific
performance, in the event of any breach or threatened breach of the
confidentiality provisions of this Agreement. Such remedies will not
be deemed to be the exclusive remedies for a breach of this Agreement,
but will be in addition to all other remedies available at law or in
equity.
7.0 LIABILITY AND INDEMNIFICATION
7.1 LIMITATION OF LIABILITIES
7.1.1 The Parties' liability to each other during any Contract Year
resulting from any and all causes, other than as specified below in
Sections 7.3.1 and 7.3.3, following, and for willful or intentional
misconduct (including gross negligence), will not exceed the total of
any amounts due and owing to CLEC pursuant to Section 46 (Performance
Criteria) and the Attachment referenced in that Section, plus the
amounts charged to CLEC by SWBT under this Agreement during the
Contract Year in which such cause accrues or arises. For purposes of
this Section, the first Contract Year commences on the first day this
Agreement becomes effective and each subsequent Contract Year
commences on the day following that anniversary date.
7.1.2 Except for losses alleged or made by an end user of either Party, or
except as otherwise provided in specific appendices, in the case of any
loss alleged or made by a third party arising under the negligence or
willful misconduct of both Parties, each Party shall bear, and its
obligation under this section shall be limited to, that portion (as
mutually agreed to by the Parties) of the resulting expense caused by
its own negligence or willful misconduct or that of its agents,
servants, contractors, or others acting in aid or concert with it.
7.2 NO CONSEQUENTIAL DAMAGES
7.2.1 NEITHER CLEC NOR SWBT WILL BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, INCIDENTAL CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES
SUFFERED BY SUCH OTHER PARTIES (INCLUDING WITHOUT LIMITATION DAMAGES
FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS, OR LOST PROFITS
SUFFERED BY SUCH OTHER PARTIES), REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT, INCLUDING
WITHOUT LIMITATION NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE,
AND REGARDLESS OF WHETHER THE PARTIES KNEW OF THE POSSIBILITY THAT
SUCH DAMAGES COULD RESULT. EACH PARTY HEREBY RELEASES THE OTHER PARTY
(AND SUCH OTHER PARTY'S SUBSIDIARIES AND AFFILIATES, AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM ANY SUCH
CLAIM. NOTHING CONTAINED IN THIS SECTION WILL LIMIT SWBT'S OR CLEC'S
LIABILITY TO THE OTHER FOR (i)
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WILLFUL OR INTENTIONAL MISCONDUCT (INCLUDING GROSS NEGLIGENCE); (ii)
BODILY INJURY, DEATH, OR DAMAGE TO TANGIBLE REAL OR TANGIBLE PERSONAL
PROPERTY PROXIMATELY CAUSED BY SWBT OR CLEC'S NEGLIGENT ACT OR
OMISSION OR THAT OF THEIR RESPECTIVE AGENTS, SUBCONTRACTORS OR
EMPLOYEES, NOR WILL ANYTHING CONTAINED IN THIS SECTION LIMIT THE
PARTIES INDEMNIFICATION OBLIGATIONS, AS SPECIFIED BELOW.
7.3 OBLIGATION TO INDEMNIFY
7.3.1 Each Party will and hereby agrees to defend at the other's request,
indemnify, and hold harmless the other Party and each of its officers,
directors, employees, and agents (each, an Indemnitee) against and in
respect of any loss, debt, liability, damage, obligation, claim,
demand, judgment, or settlement of any nature or kind, known or
unknown, liquidated or unliquidated, including without limitation all
reasonable costs and expenses incurred (legal, account or otherwise)
(collectively, Damages) arising out of, resulting from, or based upon
any pending or threatened claim, action, proceeding or suit by any
third party (a Claim) (i) alleging any omissions, breach of any
representation, warranty, or covenant made by such indemnifying Party
(the Indemnifying Party) in this Agreement, (ii) based upon injuries
or damages to any person or property or the environment arising out of
or in connection with this Agreement that are the result of the
Indemnifying Party's actions, breach of Applicable Law, or the
actions, omissions or status of its employees, agents, and
subcontractors.
7.3.1.1 In the case of any loss alleged or made by an end user of either Party,
the Party whose end user alleged or made such loss (Indemnifying Party)
shall defend and indemnify the other party (Indemnified Party) against
any and all such claims or loss by its end users regardless of whether
the underlying service was provided or unbundled element was
provisioned by the Indemnified Party, unless the loss was caused by the
gross negligence or intentional or willful misconduct or breach of
applicable law of the other (Indemnified) Party.
7.3.2 CLEC is responsible for obtaining any license or right to use
agreement associated with a Network Element purchased from SWBT, and
further will provide SWBT, prior to using any such Network Element,
with either: (1) a copy of the applicable license or right to use
agreement (or letter from the licenser attesting as such); or (2) an
affidavit signed by CLEC attesting to the acquisition of any known and
necessary licenses or right to use agreements. SWBT will provide a
list of all known and necessary licenses or right to use agreements
applicable to the subject Network Element(s) within seven days of a
request for such a list by CLEC. SWBT agrees to use its best efforts
to facilitate the obtaining of any necessary license or right to use
agreement. In the event such an agreement is not forthcoming for a
Network Element ordered by CLEC, the Parties commit to negotiate in
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good faith for the provision of alternative Elements or services which
shall be equivalent to or superior to the Element for which CLEC is
unable to obtain such license or agreement.
7.3.3 Each Party will and hereby agrees to defend at the other's request,
indemnify, and hold harmless the other Party and each of its officers,
directors, employees, and agents (each, an "Indemnitee") against and
in respect of any loss, debt, liability, damage, obligation, claim
demand, judgment, or settlement of any nature or kind, known or
unknown, liquidated or unliquidated, including without limitation all
reasonable costs and expenses incurred (legal, account or otherwise)
arising out of, resulting from, or based upon any pending or
threatened claim, action, proceeding or suit by any third party for
actual infringement of any patent, copyright, trademark, service mark,
trade name, trade dress, trade secret or any other intellectual
property right now known or later developed to the extent that such
claim or action arises from the actions of the respective Parties, or
failure to act, as required pursuant to this Agreement.
7.3.4 SWBT makes no warranties, express or implied, concerning CLEC's (or
any third party's) rights with respect to intellectual property
(including without limitation, patent, copyright and trade secret
rights) or contract rights associated with CLEC's rights to
interconnect with SWBT's network and to Unbundled Network Elements
and/or combine SWBT's network elements (including combining with
CLEC's Network Elements) such interconnection or unbundling and/or
combining of Elements (including combining with components of CLEC's
network) in SWBT's network. Section 7 applies solely to this Agreement.
Nothing in this Section will be deemed to supersede or replace any
other agreements, if any, between the Parties with respect to CLEC's
intellectual property or contract rights.
7.4 OBLIGATION TO DEFEND; NOTICE; COOPERATION
7.4.1 Whenever a Claim will arise for indemnification under this Section,
the relevant Indemnitee, as appropriate, will promptly notify the
Indemnifying party and request the Indemnifying Party to defend the
same. Failure to so notify the Indemnifying Party will not relieve the
Indemnifying Party of any liability that the Indemnifying Party might
have, except to the extent that such failure prejudices the
Indemnifying Party's ability to defend such Claim. The Indemnifying
Party will have the right to defend against such liability or
assertion in which event the Indemnifying Party will give written
notice to the Indemnitee of acceptance of the defense of such Claim
and the identity of counsel selected by the Indemnifying Party. Except
as set forth below, such notice to the relevant Indemnitee will give
the Indemnifying Party full authority to defend, adjust, compromise,
or settle such Claim with respect to which such notice will have been
given, except to the extent that any compromise or settlement might
prejudice the Intellectual Property Rights of the relevant Indemnities.
The Indemnifying Party will consult with the relevant Indemnitee prior
to any compromise or settlement that would affect the Intellectual
Property Rights
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or other rights of any Indemnitee, and the relevant Indemnitee will
have the right to refuse such compromise or settlement and, at the
refusing Party's or refusing Party's cost, to take over such defense,
provided that in such event the Indemnifying Party will not be
responsible for, nor will it be obligated to indemnify the relevant
Indemnitee against any cost or liability in excess of such refused
compromise or settlement. With respect to any defense accepted by the
Indemnifying Party, the relevant Indemnitee will be entitled to
participate with the Indemnifying Party in such defense if the Claim
requests equitable relief or other relief that could affect the rights
of the Indemnitee and also will be entitled to employ separate counsel
for such defense at such Indemnitee's expense. In the event the
Indemnifying Party does not accept the defense of any indemnified
Claim as provided above, the relevant Indemnitee will have the right
to employ counsel for such defense at the expense of the Indemnifying
Party. Each Party agrees to cooperate and to cause its employees and
agents to cooperate with the other Party in the defense of any such
Claim.
7.5 OSHA STATEMENT
7.5.1 CLEC, in recognition of SWBT's status as an employer, agrees to abide
by and to undertake the duty of compliance on behalf of SWBT with all
federal, state and local laws, safety and health regulations relating
to CLEC's activities concerning Collocated Space, and to indemnify and
hold SWBT harmless for any judgments, citations, fines, or other
penalties which are assessed against SWBT as the result solely of
CLEC's failure to comply with any of the foregoing. SWBT, in its status
as an employer, will comply with all federal, state and local laws,
safety and health standards and regulations with respect to all other
portions of the Premises, and agrees to indemnify and hold CLEC
harmless for any judgments, citations, fines or other penalties which
are assessed against CLEC as a result solely of SWBT's failure to
comply with any of the foregoing.
8.0 PAYMENT OF RATES AND CHARGES
8.1 Except as otherwise specifically provided elsewhere in this Agreement,
the Parties will pay all rates and charges due and owing under this
Agreement within thirty (30) days of receipt of an invoice. Except as
otherwise specifically provided in this Agreement interest on overdue
invoices will apply at the six (6) month Commercial Paper Rate
applicable on the first business day of each calendar year.
9.0 DISPUTE RESOLUTION
9.1 FINALITY OF DISPUTES
9.1.1 Except as otherwise specifically provided in this Agreement, no claims
will be brought for disputes arising from this Agreement more than 24
months from the date the occurrence which gives rise to the dispute is
discovered or reasonably should have been discovered with the exercise
of due care and attention.
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9.2 ALTERNATIVE TO LITIGATION
9.2.1 The Parties desire to resolve disputes arising out of this Agreement
without litigation. Accordingly, except for action seeking a temporary
restraining order or an injunction related to the purposes of this
Agreement, or suit to compel compliance with this Dispute Resolution
process, the Parties agree to use the following Dispute Resolution
procedure with respect to any controversy or claim arising out of or
relating to this Agreement or its breach.
9.3 INFORMAL RESOLUTION OF DISPUTES
9.3.1 In the case of any dispute and at the written request of a Party, each
Party will appoint a knowledgeable, responsible representative to meet
and negotiate in good faith to resolve any dispute arising under this
Agreement. The location, form, frequency, duration, and conclusion of
these discussions will be left to the discretion of the
representatives. Upon agreement, the representatives may utilize other
alternative informal dispute resolution procedures such as mediation
to assist in the negotiations. Discussions and the correspondence
among the representatives for purposes of settlement are exempt from
discovery and production and will not be admissible in the arbitration
described below or in any lawsuit without the concurrence of both
parties. Documents identified in or provided with such communications,
which are not prepared for purposes of the negotiations, are not so
exempted and, if otherwise admissible, may be admitted in evidence in
the arbitration or lawsuit.
9.4 BILLING DISPUTES
9.4.1 The Parties agree that with respect to matters that are purely
unresolved billing disputes, all bills, including bills disputed in
whole or in part, are to be paid when due, that interest applies to all
overdue invoices as set forth in Section 8.1 to this Agreement, and
that no other late payment fee or charge applies to overdue invoices.
The Parties further agree that if any billing dispute is resolved in
favor of the disputing Party the disputing Party will receive, by
crediting or otherwise, interest applied to the disputed amount as set
forth in Section 8.1.
9.4.2 To the extent that any other portions of this Agreement provide for a
bill closure process between the parties, or if such a process is
mutually agreed to by the Parties, the procedures involved in such
processes will not be deemed to place a particular billing item in
dispute for purposes of this Section.
9.4.3 Each Party agrees to notify the other Party of a billing dispute and
may invoke the informal dispute resolution process described in Section
9.2. The parties will endeavor to resolve the dispute within thirty
(30) calendar days of the Bill Date on which such
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disputed charges appear, or, if the charges have been subject to the
bill closure process described in Section 9.4.2, above, within thirty
(30) calendar days of the closure of the billing period covered by such
bill closure process.
9.5 FORMAL RESOLUTION OF DISPUTES
9.5.1 Except as otherwise specifically set forth in this Agreement, for all
disputes arising out of or pertaining to this Agreement, including but
not limited to matters not specifically addressed elsewhere in this
Agreement which require clarification, renegotiation, modifications or
additions to this Agreement, either party may invoke dispute resolution
procedures available pursuant to the dispute resolution rules, as
amended from time to time, of the Public Utility Commission of Texas.
Also, upon mutual agreement, the parties may seek commercial binding
arbitration as specified in Section 9.6.
9.5.2 The Parties agree that the Dispute Resolution procedures set forth in
this Agreement are not intended to conflict with applicable
requirements of the Act or the state commission with regard to
procedures for the resolution of disputes arising out of this
Agreement.
9.6 ARBITRATION
9.6.1 When both parties agree to binding arbitration, disputes will be
submitted to a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association or pursuant
to such other provider of arbitration services or rules as the Parties
may agree. The place where each separate arbitration will be held will
alternate between Dallas, Texas, and St. Louis, Missouri, unless the
Parties agree otherwise. The arbitration hearing will be requested to
commence within 60 days of the demand for arbitration. The arbitrator
will control the scheduling so as to process the matter expeditiously.
The Parties may submit written briefs upon a schedule determined by
the arbitrator. The Parties will request that the arbitrator rule on
the dispute by issuing a written opinion within 30 days after the
close of hearings. The arbitrator has no authority to order punitive
or consequential damages. The times specified in this Section may be
extended or shortened upon mutual agreement of the Parties or by the
arbitrator upon a showing of good cause. Each Party will bear its own
costs of these procedures. The Parties will equally split the fees of
the arbitration and the arbitrator. Judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction.
10.0 TERMINATION OF SERVICE TO CLEC
10.1 Failure of CLEC to pay charges may be grounds for termination of this
Agreement. If CLEC fails to pay when due, any and all charges billed to
them under this Agreement, (Unpaid Charges), and any portion of such
charges remain unpaid more than fifteen (15) calendar days after the
due date of such Unpaid Charges, SWBT will notify CLEC in writing that
in order to avoid having service disconnected, CLEC must remit all
Unpaid
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Charges, whether disputed or undisputed, to SWBT within fifteen (15)
calendar days after receipt of said notice. Disputes hereunder will be
resolved in accordance with the Dispute Resolution Procedures set out
in Section 9 of this Agreement.
10.2 If any CLEC charges remain unpaid at the conclusion of the time period
as set forth in Section 10.1 above (30 calendar days from the due date
of such unpaid charges), SWBT will notify CLEC, the appropriate
commission(s) and the end user's IXC(s) of Record in writing, that
unless all charges are paid within fifteen (15) calendar days, CLEC's
service will be disconnected and CLEC's end users may be switched to
SWBT local service. SWBT will also suspend order acceptance at this
time.
10.3 If any CLEC charges remain unpaid or undisputed thirty (30) calendar
days past the due date of the unpaid charges as described in Section
10.2 above, CLEC will, at its sole expense, notify its end users, the
Commission and the end user's of Record that their service may be
disconnected for CLEC failure to pay unpaid charges, and that its end
users must select a new local service provider within fifteen (15)
calendar days. The notice will also advise the end user that SWBT will
assume the end user's account at the end of the fifteen (15) calendar
day period should the end user fail to select a new local service
provider.
10.4 If any CLEC charges remain unpaid or undisputed forty-five (45)
calendar days past the due date, SWBT will disconnect CLEC and transfer
all CLEC's end users who have not selected another local service
provider directly to SWBT's service. These end users will receive the
same services provided through CLEC at the time of service. These end
users will receive the same services provided through CLEC at the time
of transfer. SWBT will inform the Commission and the end user's IXC(s)
of Record of the names of all end users transferred through this
process. Applicable service establishment charges for switching end
users from CLEC to SWBT will be assessed to CLEC.
10.5 Within five (5) calendar days of the transfer (50 calendar days past
CLEC's due date), SWBT will notify all affected end users that because
of a CLEC's failure to pay, their service is now being provided by
SWBT. SWBT will also notify the end user that they have thirty (30)
calendar days to select a local service provider. If the end user does
not select an LSP within 30 calendar days the customer will remain a
SWBT local customer.
10.6 SWBT may discontinue service to CLEC upon failure to pay undisputed
charges as provided in this section, and will have no liability to CLEC
in the event of such disconnection.
10.7 After disconnect procedures have begun, SWBT will not accept service
orders from CLEC until all unpaid charges are paid. SWBT will have the
right to require a deposit equal to one month's charges (based on the
highest previous month of service from SWBT) prior to resuming service
to CLEC after disconnect for nonpayment.
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10.8 Beyond the specifically set out limitations in this section, nothing
herein will be interpreted to obligate SWBT to continue to provide
service to any such end users or to limit any and all disconnection
rights SWBT may have with regard to such end users.
11.0 NOTICES
11.1 In the event any notices are required to be sent under the terms of
this Agreement, they may be sent by mail and are deemed to have been
given on the date received. Notice may also be effected by personal
delivery or by overnight courier, and will be effective upon receipt.
Notice may also be provided by facsimile, which will be effective on
the next business day following the date of transmission; provided,
however, notices to a Party's 24-hour maintenance contact number will
be by telephone and/or facsimile and will be deemed to have been
received on the date transmitted. The Parties will provide the
appropriate telephone and facsimile numbers to each other. Unless
otherwise specifically provided in this Agreement, notice will be
directed as follows:
11.2 If to CLEC:
Birch Telecom of Texas Ltd., L.L.P.
Greg Lawhon, Sr. VP & General Counsel
1004 Baltimore Ave., Suite 900
Kansas City, MO 64105
816-842-7560 x225 (voice contact); 816-842-7507 (fax)
11.3 If to SWBT:
Account Manager
Four Bell Plaza, 7th Flr
311 S. Akard St.
Dallas, Tx 75202-5398
214-464-5969
Either Party may unilaterally change its designated representative
and/or address, telephone contact number or facsimile number for the
receipt of notices by giving seven (7) days' prior written notice to
the other Party in compliance with this Section. Any notice or other
communication will be deemed given when received.
12.0 TAXES
12.1 With respect to any purchase of service under this Agreement, if any
Federal, state or local government tax, fee, surcharge, or other
tax-like charge (a "Tax") is required or permitted by applicable law,
ordinance or tariff to be collected from a purchasing Party by
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the providing Party, then (i) the providing Party will bill, as a
separately stated item, the purchasing Party for such Tax, (ii) the
purchasing Party will timely remit such Tax to the providing Party,
and (iii) the providing Party will remit such collected Tax to the
applicable taxing authority.
12.2 If the providing Party does not collect a Tax because the purchasing
Party asserts that it is not responsible for the tax, or is otherwise
excepted from the obligation which is later determined by formal action
to be wrong then, as between the providing Party and the purchasing
Party, the purchasing Party will be liable for such uncollected Tax and
any interest due and/or penalty assessed on the uncollected Tax by the
applicable taxing authority or governmental entity.
12.3 If either Party is audited by a taxing authority or other governmental
entity the other Party agrees to reasonably cooperate with the Party
being audited in order to respond to any audit inquiries in a proper
and timely manner so that the audit and/or any resulting controversy
may be resolved expeditiously.
12.4 If applicable law excludes or exempts a purchase of services under this
Agreement from a Tax, and if such applicable law also provides an
exemption procedure, such as an exemption certificate requirement,
then, if the purchasing Party complies with such procedure, the
providing Party, subject to Section 12.2, will not collect such Tax
during the effective period of the exemption. Such exemption will be
effective upon receipt of the exemption certificate or affidavit in
accordance with Section 12.7.
12.5 If applicable law excludes or exempts a purchase of services under this
Agreement from a Tax, but does not also provide an exemption procedure,
then the providing Party will not collect such Tax if the purchasing
Party (i) furnishes the providing Party with a letter signed by an
officer of the purchasing Party claiming an exemption and identifying
the applicable law which allows such exemption, and (ii) supplies the
providing Party with an indemnification agreement, reasonably
acceptable to the providing Party, which holds the providing Party
harmless on an after-tax basis with respect to forbearing to collect
such Tax.
12.6 With respect to any Tax or Tax controversy covered by this Section 12,
the purchasing Party will be entitled to contest, pursuant to
applicable law, and at its own expense, any Tax that it is ultimately
obligated to pay. The purchasing Party will be entitled to the benefit
of any refund or recovery resulting from such a contest. The providing
Party will cooperate in any such contest.
12.7 All notices, affidavits, exemption certificates or other communications
required or permitted to be given by either Party to the other under
this Section 12, will be made in writing and will be delivered by
certified mail, and sent to the addresses stated in Section 11 and to
the following:
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To SWBT: Executive Director - Tax
Southwestern Bell - Room 34/L/1
One Bell Center
St. Louis, Missouri 63101
To: Birch Telecom of Texas Ltd., L.L.P.
Greg Lawhon, Sr. VP & General Counsel
1004 Baltimore Ave., Suite 900
Kansas City, MO 64105
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
12.7.
Any notice or other communication will be deemed to be given when
received.
13.0 FORCE MAJEURE
Except as otherwise specifically provided in this Agreement, neither
Party will be liable for any delay or failure in performance of any
part of this Agreement caused by a Force Majeure condition, including
acts of the United States of America or any state, territory, or
political subdivision thereof, acts of God or a public enemy, fires,
floods, labor disputes such as strikes and lockouts, freight embargoes,
earthquakes, volcanic actions, wars, civil disturbances, cable cuts, or
other causes beyond the reasonable control of the Party claiming
excusable delay or other failure to perform. Provided, Force Majeure
will not include acts of any Governmental Authority relating to
environmental, health, or safety conditions at work locations. If any
Force Majeure condition occurs the Party whose performance fails or is
delayed because of such Force Majeure conditions will give prompt
notice to the other Party, and upon cessation of such Force Majeure
condition, will give like notice and commence performance hereunder as
promptly as reasonably practicable.
14.0 PUBLICITY
14.1 The Parties agree not to use in any advertising or sales promotion,
press releases or other publicity matters, any endorsements, direct or
indirect quotes or pictures implying endorsement by the other Party or
any of its employees without such Party's prior written approval. The
Parties will submit to each other for written approval, prior to
publication, all such publicity endorsement matters that mention or
display the other's name and/or marks or contain language from which a
connection to said name and/or marks may be inferred or implied.
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14.2 Neither Party will offer any services using the trademarks, service
marks, trade names, brand names, logos, insignia, symbols or decorative
designs of the other Party or its affiliates without the other Party's
written authorization.
15.0 NETWORK MAINTENANCE AND MANAGEMENT
15.1 The Parties will work cooperatively to implement this Agreement. The
Parties will exchange appropriate information (e.g., maintenance
contact numbers, network information, information required to comply
with law enforcement and other security agencies of the Government,
etc.) to achieve this desired reliability.
15.2 Each Party will provide a 24-hour contact number for Network Traffic
Management issues to the other's surveillance management center. A
facsimile (FAX) number must also be provided to facilitate event
notifications for planned mass calling events. Additionally, both
Parties agree that they will work cooperatively to ensure that all such
events will attempt to be conducted in such a manner as to avoid
disruption or loss of service to other end users. Each party will
maintain the capability of respectively implementing basic protective
controls such as "Cancel To" or "Call Gap."
15.3 Neither Party will use any service provided under this Agreement in a
manner that impairs the quality of service to other carriers or to
either Party's subscribers. Either Party will provide the other Party
notice of said impairment at the earliest practicable time.
16.0 LAW ENFORCEMENT AND CIVIL PROCESS
16.1 INTERCEPT DEVICES
16.1.1 Local and federal law enforcement agencies periodically request
information or assistance from local telephone service providers. When
either Party receives a request associated with a customer of the other
Party, the receiving Party will refer such request to the appropriate
Party, unless the request directs the receiving Party to attach a pen
register, trap-and-trace or form of intercept on the Party's own
facilities, in which case that Party will comply with any valid
request, to the extent the receiving party is able to do so; if such
compliance requires the assistance of the other Party such assistance
will be provided.
16.2 SUBPOENAS
16.2.1 If a Party receives a subpoena for information concerning an end user
the Party knows to be an end user of the other Party, the receiving
Party will refer the subpoena to the requesting entity with an
indication that the other Party is the responsible company.
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Provided, however, if the subpoena requests records for a period of
time during which the receiving Party was the end user's service
provider, the receiving Party will respond to any valid request to the
extent the receiving party is able to do so; if response requires the
assistance of the other party such assistance will be provided.
16.3 LAW ENFORCEMENT EMERGENCIES
16.3.1 If a Party receives a request from a law enforcement agency to
implement at its switch a temporary number change, temporary
disconnect, or one-way denial of outbound calls for an end user of the
other Party, the receiving Party will comply so long as it is a valid
emergency request. Neither Party will be held liable for any claims or
damages arising from compliance with such requests, and the Party
serving the end user agrees to indemnify and hold the other Party
harmless against any and all such claims.
17.0 CHANGES IN SUBSCRIBER CARRIER SELECTION
17.1 With respect to Resale services and unbundled Network Elements provided
to end users, each Party must obtain end user authorization prior to
requesting a change in the end users' provider of local exchange
service (including ordering end user specific Network Elements) and
must retain such authorizations for twelve (12) months. The
authorization must conform with federal rules regarding changes of
presubscribed interexchange carriers until such time as there are
federal or state rules applicable to changes of local exchange service
providers. Thereafter, the authorization must comply with each such
rule. The Party submitting the change request assumes responsibility
for applicable charges as specified in Section 258(b) of the
Telecommunications Act of 1996.
17.2 Only an end user can initiate a challenge to a change in its local
exchange service provider. In connection with such challenges each
Party will follow procedures which conform with federal rules regarding
challenges to changes of presubscribed interexchange carriers until
such time as there are federal or state rules applicable to challenges
to changes of Local Exchange Service Providers. Thereafter, the
procedures each Party will follow concerning challenges to changes of
local exchange service providers will comply with such rule. If an end
user notified SWBT or CLEC that the end user requests local exchange
service, the Party receiving such request shall be free to immediately
provide service to such end user. SWBT shall be free to connect the end
user to any local service provider based upon the local service
provider's request and assurance that proper end user authorization has
been obtained. CLEC shall make authorization available to SWBT upon
request and at no charge.
17.3 When an end user changes or withdraws authorization, each Party will
release customer specific facilities in accordance with the end user
customer's directions, or the directions
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of the end user's agent. Further, when an end user abandons the
premise, SWBT is free to reclaim the facilities for use by another
customer and is free to issue service orders required to reclaim such
facilities.
17.4 Neither Party shall be obligated by this Agreement to investigate any
allegations of unauthorized changes in local exchange service
("slamming") on behalf of the other Party or a third party. If SWBT, on
behalf of CLEC, agrees to investigate an alleged incidence of slamming,
SWBT shall charge CLEC a cost-based or mutually agreed investigation
fee.
18.0 AMENDMENTS OR WAIVERS
18.1 Except as otherwise provided in this Agreement, no amendment or waiver
of any provision of this Agreement and no consent to any default under
this Agreement will be effective unless the same is in writing and
signed by an officer of the Party against whom such amendment, waiver
or consent is claimed. In addition, no course of dealing or failure of
a Party strictly to enforce any term, right or condition of this
Agreement will be construed as a waiver of such term, right, or
condition. By entering into this Agreement, the Parties do not waive
any right granted to them pursuant to the Act; however, the Parties
enter into this Agreement without prejudice to any positions they have
taken previously, or may take in the future in any legislative,
regulatory or other public forum addressing any matters, including
matters related to the types of arrangements prescribed by this
Agreement.
19.0 AUTHORITY
19.1 Each person whose signature appears below represents and warrants that
he or she has authority to bind the Party on whose behalf he or she has
executed this Agreement.
20.0 BINDING EFFECT
20.1 This Agreement will be binding on and inure to the benefit of the
respective successors and permitted assigns of the Parties.
21.0 CONSENT
21.1 Where consent, approval, or mutual agreement is required of a Party, it
will not be unreasonably withheld or delayed.
22.0 EXPENSES
22.1 Except as specifically set out in this Agreement, each party will be
solely responsible for its own expenses involved in all activities
related to the subject of this Agreement.
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23.0 HEADINGS
23.1 The headings in this Agreement are inserted for convenience and
identification only and will not be considered in the interpretation of
this Agreement.
24.0 RELATIONSHIP OF PARTIES
24.1 This Agreement will not establish, be interpreted as establishing, or
be used by either party to establish or to represent their relationship
as any form of agency, partnership or joint venture. Neither Party will
have any authority to bind the other or to act as an agent for the
other unless written authority, separate from this Agreement, is
provided. Nothing in the Agreement will be construed as providing for
the sharing of profits or losses arising out of the efforts of either
or both of the Parties. Nothing herein will be construed as making
either Party responsible or liable for the obligations and undertakings
of the other Party.
25.0 CONFLICT OF INTEREST
25.1 The Parties represent that no employee or agent of either Party has
been or will be employed, retained, paid a fee, or otherwise received
or will receive any personal compensation or consideration from the
other Party, or any of the other Party's employees or agents in
connection with the arranging or negotiation of this Agreement or
associated documents.
26.0 MULTIPLE COUNTERPARTS
26.1 This Agreement may be executed in multiple counterparts, each of which
will be deemed an original but all of which will together constitute
but one, and the same document.
27.0 THIRD PARTY BENEFICIARIES
27.1 Except as may be specifically set forth in this Agreement, this
Agreement does not provide and will not be construed to provide third
parties with any remedy, claim, liability, reimbursement, cause of
action, or other privilege.
28.0 REGULATORY APPROVAL
28.1 Each Party agrees to cooperate with the other and with any regulatory
agency to obtain regulatory approval. During the term of this
Agreement, each Party agrees to continue to cooperate with each other
and any regulatory agency so that the benefits of this Agreement may be
achieved.
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29.0 TRADEMARKS AND TRADE NAMES
29.1 Except as specifically set out in this Agreement, nothing in this
Agreement will grant, suggest, or imply any authority for one Party to
use the name, trademarks, service marks, or trade names of the other
for any purpose whatsoever, absent written consent of the other Party.
30.0 REGULATORY AUTHORITY
30.1 SWBT will be responsible for obtaining and keeping in effect all
Federal Communications Commission, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with the performance of its obligations under this
Agreement. CLEC will be responsible for obtaining and keeping in effect
all Federal Communications Commission, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with its offering of services to CLEC Customers
contemplated by this Agreement. CLEC will reasonably cooperate with
SWBT in obtaining and maintaining any required approvals for which SWBT
is responsible, and SWBT will reasonably cooperate with CLEC in
obtaining and maintaining any required approvals for which CLEC is
responsible.
30.2 SWBT will not, of its own volition, file a tariff or make another
similar filing which supersedes this Agreement in whole or in part.
SWBT will make no filings which are inconsistent with this commitment.
This Section is not intended to apply to any SWBT tariffs or filings
which do not affect CLEC's rights or SWBT's obligations to CLEC under
this Agreement. This Section does not impair SWBT's right to file
tariffs nor does it impair SWBT's right to file tariffs proposing new
products and services and changes in the prices, terms and conditions
of existing products and services, including discontinuance or
grandfathering of existing features or services, of any
telecommunications services that SWBT provides or hereafter provides to
CLEC under this Agreement pursuant to the provision of Attachment 1:
Resale, nor does it impair CLEC's right to contest such tariffs before
the appropriate Commission.
30.3 SWBT will provide CLEC notice of any tariff or filing which concerns
the subject matter of this Agreement at the time a Preliminary Rate
Authority (PRA) is transmitted to the state commission, or, in
situations where a PRA would not be issued, within ninety (90) days
(forty five (45) days for price changes) of the expected effective date
of the tariff or filing.
30.4 In the event that SWBT is required by any governmental authority to
file a tariff or make another similar filing in connection with the
performance of any action that would otherwise be governed by this
Agreement, SWBT will provide CLEC notice of the same as set forth in
Section 30.3 above.
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30.5 If any tariff referred to in Section 30.4 becomes ineffective by
operation of law, through deregulation or otherwise, the terms and
conditions of such tariffs, as of the date on which the tariffs became
ineffective, will be deemed incorporated if not inconsistent with this
Agreement.
31.0 EFFECT OF OTHER AGREEMENTS
31.1 If SWBT enters into an agreement (the "Other Agreement") approved by
the Texas Public Utility Commission pursuant to Section 252 of the Act,
which provides for the provision of arrangements covered in this
Agreement, to another requesting Telecommunications Carrier, SWBT will
make available in Texas, to CLEC such arrangements upon the same rates,
terms and conditions as those provided in the Other Agreement. At its
sole option, CLEC may avail itself of either (i) the Other Agreement in
its entirety or (ii) the prices, terms and all material conditions of
the Other Agreement that directly relate to any of the following duties
as a whole:
(1) All Interconnection Rates - Section 251 (c) (2) of the Act;
or Access to Unbundled Network Elements - Section 251 (c)
(3) of the Act;
(2) Resale - Section 251 (c) (4) of the Act; or
(3) Collocation - Section 251 (c) (6) of the Act; or
(4) Number Portability - Section 251(b)(2) of the Act of this
STC; or
(5) Access to Rights of Way - Section 251(b)(4) of the Act; or
(6) Cellular Traffic;
(7) White Pages;
(8) Operator Services;
(9) Directory Assistance.
32.0 VERIFICATION REVIEWS
32.1 Subject to each Party's reasonable security requirements and except as
may be otherwise specifically provided in this Agreement, either Party
may audit the other Party's books, records and other documents once in
each Contract Year for the purpose of evaluating the accuracy of the
other Party's billing and invoicing. The Parties may employ other
persons or firms for this purpose. Such audit will take place at a time
and place agreed on by the Parties no later than thirty (30) days after
notice thereof.
32.2 Each Party will promptly correct any billing error that is revealed in
an audit, including making refund of any overpayment by the other Party
in the form of a credit on the invoice for the first full billing cycle
after the Parties have agreed upon the accuracy of the audit results.
Any disputes concerning audit results will be resolved pursuant to the
Dispute Resolution procedures described in Section 9 of this Agreement.
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32.3 Each Party will cooperate fully in any such audit, providing reasonable
access to any and all appropriate employees and books, records and
other documents reasonably necessary to assess the accuracy of the
Party's bills.
32.4 Either Party may audit the other Party's books, records and documents
more than once during any Contract Year if the previous audit found
previously uncorrected net variances or errors in invoices in the other
Party's favor with an aggregate value of at least two percent (2%) of
the amounts payable by CLEC for Resale services, Network Elements or
Combinations provided during the period covered by the audit.
32.5 Audits will be at the auditing Party's expense.
32.6 Upon (i) the discovery by either Party of overcharges not previously
reimbursed to the other Party or (ii) the resolution of disputed
audits, the affected Party will promptly reimburse the other Party the
amount of any overpayment times the commercial paper rate applicable on
the last day of the month preceding the month of discovery or
resolution as above. In no event, however, will interest be assessed on
any previously assessed or accrued late payment charges.
32.7 CLEC may require that, at the end of the first year of implementation
of this Agreement, SWBT submit to an audit or examination of services
performed under the interconnection agreement. Subsequent to the first
year of implementation, CLEC may require that audits or examinations be
performed if: (1) CLEC can show cause that it has a commercially
reasonable basis to seek an audit or examination; and (2) the request
for audit or examination specifically defines the particular services
that it seeks to audit or examine. All audits requested by CLEC under
this section shall be conducted at its expense. The dispute resolution
provisions of this Agreement shall be used to resolve disputes arising
concerning requests for audits or examinations, or the results of the
audits or examinations.
32.8 For a period of fourteen (14) months from the Effective Date of this
Agreement, SWBT may audit CLEC's operations, books, records, and other
documents related to the development of the percent local usage (PLU)
to be used to measure and settle untransmitted calling party numbers
(CPN) in connection with Attachment 12: Compensation. SWBT will bear
the reasonable expenses associated with this inspection.
32.9 Information obtained or received by CLEC in conducting the inspections
described in Section 32.7 and information obtained or received by
either Party in connection with Sections 32.1 through 32.6 and 32.8
will be subject to the confidentiality provisions of Section 6 of this
Agreement.
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33.0 COMPLETE TERMS
33.1 This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes any prior
agreements, representations, statements, negotiations, understandings,
proposals or undertakings, oral or written, with respect to the subject
matter expressly set forth herein.
33.2 Neither Party will be bound by an amendment, modification or additional
term unless it is reduced to writing signed by an authorized
representative of the Party sought to be bound.
34.0 COOPERATION ON PREVENTING END USER FRAUD
34.1 The Parties agree to cooperate with one another to investigate,
minimize, and take corrective action in cases of fraud. The Parties'
fraud minimization procedures are to be cost-effective and implemented
so as not to unduly burden or harm one Party as compared to the other.
34.2 In cases of suspected fraudulent activity by an end user, at a minimum,
the cooperation referenced in the above paragraph will include
providing to the other Party, upon request, information concerning end
users who terminate services to that Party without paying all
outstanding charges. The Party seeking such information is responsible
for securing the end user's permission to obtain such information.
35.0 NOTICE OF NETWORK CHANGES
SWBT agrees to provide CLEC reasonable notice consistent with
applicable FCC rules of changes in the information necessary for the
transmission and routing of services using SWBT's facilities or
networks, as well as other changes that affect the interoperability of
those respective facilities and networks. This Agreement is not
intended to limit SWBT's ability to upgrade its network through the
incorporation of new equipment, new software or otherwise so long as
such upgrades are not inconsistent with SWBT's obligations to CLEC
under the terms of this Agreement.
36.0 GOOD FAITH PERFORMANCE
36.1 In the performance of their obligations under this Agreement the
Parties will act in good faith and consistently with the intent of the
Act. Where notice, approval or similar action by a Party is permitted
or required by any provision of this Agreement, (including, without
limitation, the obligation of the parties to further negotiate the
resolution of new or open issues under this Agreement) such action will
not be unreasonably delayed, withheld or conditioned.
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37.0 RESPONSIBILITY OF EACH PARTY
37.1 Each Party is an independent contractor, and has and hereby retains the
right to exercise full control of and supervision over its own
performance of its obligations under this Agreement and retains full
control over the employment, direction, compensation and discharge of
its employees assisting in the performance of such obligations. Each
Party will be solely responsible for all matters relating to payment of
such employees, including compliance with social security taxes,
withholding taxes and all other regulations governing such matters.
Each party will be solely responsible for proper handling, storage,
transport and disposal at its own expense of all (i) substances or
materials that it or its contractors or agents bring to, create or
assume control over at Work Locations or, (ii) Waste resulting
therefrom or otherwise generated in connection with its or its
contractors' or agents' activities at the Work Locations. Subject to
the limitations on liability and except as otherwise provided in this
Agreement, each Party will be responsible for (i) its own acts and
performance of all obligations imposed by applicable law in connection
with its activities, legal status and property, real or personal and,
(ii) the acts of its own affiliates, employees, agents and contractors
during the performance of the Party's obligations hereunder.
38.0 TRANSMISSION OF TRAFFIC TO THIRD PARTIES
38.1 CLEC will not send to SWBT local traffic that is destined for the
network of a third party unless CLEC has the authority to exchange
traffic with that third party.
39.0 GOVERNMENTAL COMPLIANCE
39.1 CLEC and SWBT each will comply at its own expense with all applicable
law related to i) its obligations under or activities in connection
with this Agreement; of ii) its activities undertaken at, in connection
with or relating to Work Locations. CLEC and SWBT each agree to
indemnify, defend, (at the other party's request) and save harmless the
other, each of its officers, directors and employees from and against
any losses, damages, claims, demands, suits, liabilities, fines,
penalties, and expenses (including reasonable attorneys' fees) that
arise out of or result from i) its failure or the failure of its
contractors or agents to so comply or ii) any activity, duty or status
of it or its contractors or agents that triggers any legal obligation
to investigate or remediate environmental contamination. SWBT, at its
own expense, will be solely responsible for obtaining from governmental
authorities, building owners, other carriers, and any other persons or
entities, all rights and privileges (including, but not limited to,
space and power), which are necessary for SWBT to provide the Network
Elements and Resale services pursuant to this Agreement.
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40.0 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
40.1 CLEC will in no event be liable to SWBT for any costs whatsoever
resulting from the presence or Release of any Environmental Hazard that
CLEC did not introduce to the affected Work Location. SWBT will
indemnify, defend (at CLEC's request) and hold harmless CLEC, each of
its officers, directors and employees from and against any losses,
damages, claims, demands, suits, liabilities, fines, penalties and
expenses (including reasonable attorneys' fees) that arise out of or
result from (i) any Environmental Hazard that SWBT, its contractors or
agents introduce to the Work locations or (ii) the presence or Release
of any Environmental Hazard for which SWBT is responsible under
applicable law.
40.2 SWBT will in no event be liable to CLEC for any costs whatsoever
resulting from the presence or Release of any Environmental Hazard that
SWBT did not introduce to the affected Work Location. CLEC will
indemnify, defend (at SWBT's request) and hold harmless SWBT, each of
its officers, directors and employees from and against any losses,
damages, claims, demands, suits, liabilities, fines, penalties and
expenses (including reasonable attorneys' fees) that arise out of or
result from i) any Environmental Hazard that CLEC, its contractors or
agents introduce to the Work Locations or ii) the presence or Release
of any Environmental Hazard for which CLEC is responsible under
applicable law.
41.0 SUBCONTRACTING
41.1 If any obligation is performed through a subcontractor, each party will
remain fully responsible for the performance of this Agreement in
accordance with its terms, including any obligations either party
performs through subcontractors, and each party will be solely
responsible for payments due the party's subcontractors. No contract,
subcontract or other Agreement entered into by either Party with any
third party in connection with the provision of Resale services or
Network Elements hereunder will provide for any indemnity, guarantee or
assumption of liability by, or other obligation of, the other Party to
this Agreement with respect to such arrangement, except as consented to
in writing by the other Party. No subcontractor will be deemed a third
party beneficiary for any purposes under this Agreement. Any
subcontractor who gains access to CPNI or Confidential Information
covered by this Agreement will be required by the subcontracting Party
to protect such CPNI or Confidential Information to the same extent the
subcontracting Party is required to protect the same under the terms of
this Agreement.
42.0 REFERENCED DOCUMENTS
42.1 Whenever any provision of this Agreement refers to a technical
reference, technical publication, CLEC Practice, SWBT Practice, any
publication of telecommunications
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industry administrative or technical standards, or any other document
specifically incorporated into this Agreement, it will be deemed to be
a reference to the most recent version or edition (including any
amendments, supplements, addenda, or successors) of each document that
is in effect, and will include the most recent version or edition
(including any amendments, supplements, addenda, or successors) of
each document incorporated by reference in such a technical reference,
technical publication, CLEC Practice, SWBT Practice, or publication of
industry standards.
43.0 SEVERABILITY
43.1 If any term, condition or provision of this Agreement is held to be
invalid or unenforceable for any reason, such invalidity or
unenforceability will not invalidate the entire Agreement, unless such
construction would be unreasonable. The Agreement will be construed as
if it did not contain the invalid or unenforceable provision or
provisions, and the rights and obligations of each party will be
construed and enforced accordingly; provided, however, that in the
event such invalid or unenforceable provision or provisions are
essential elements of this Agreement and substantially impair the
rights or obligations of either Party, the Parties will promptly
negotiate a replacement provision or provisions. If impasse is reached,
the Parties will resolve said impasse under the dispute resolution
procedures set forth in Section 9.5.
44.0 SURVIVAL OF OBLIGATIONS
44.1 Any liabilities or obligations of a Party for acts or omissions prior
to the cancellation or termination of this Agreement, any obligation of
a Party under the provisions regarding indemnification, Confidential
Information, limitations on liability, and any other provisions of this
Agreement which, by their terms, are contemplated to survive (or to be
performed after) termination of this Agreement, will survive
cancellation or termination thereof.
45.0 GOVERNING LAW
45.1 The validity of this Agreement, the construction and enforcement of its
terms, and the interpretation of the rights and duties of the Parties
will be governed by the laws of the State of Texas other than as to
conflicts of laws, except insofar as federal law may control any aspect
of this Agreement, in which case federal law will govern such aspect.
The Parties submit to personal jurisdiction in Dallas, Texas, and waive
any and all objections to a Texas venue.
46.0 PERFORMANCE CRITERIA
46.1 Specific provisions governing failure to meet Performance Criteria are
contained in Attachment 17: Failure to Meet Performance Criteria.
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47.0 OTHER OBLIGATIONS OF CLEC
47.1 For the purposes of establishing service and providing efficient and
consolidated billing to CLEC, CLEC is required to provide SWBT its
authorized and nationally recognized Operating Company Number (OCN).
48.0 DIALING PARITY; INTERIM NUMBER PORTABILITY
48.1 SWBT will ensure that all CLEC Customers experience the same dialing
parity as similarly-situated customers of SWBT services, such that, for
all call types: (i) an CLEC Customer is not required to dial any
greater number of digits than a similarly-situated SWBT customer; (ii)
the post-dial delay (time elapsed between the last digit dialed and the
first network response), call completion rate and transmission quality
experienced by an CLEC Customer is at least equal in quality to that
experienced by a similarly-situated SWBT customer; and (iii) the CLEC
Customer may retain its local telephone number. SWBT further agrees to
provide Interim Number Portability in accordance with the requirements
of the Act. Specific requirements concerning Interim Number Portability
are set forth in Attachment 14: Interim Number Portability.
49.0 BRANDING
49.1 Specific provisions concerning the branding of services provided to
CLEC by SWBT under this Agreement are contained in the following
Attachments and Appendices to this Agreement: Attachment 1: Resale;
Appendix OS-Resale; Appendix DA-Resale; Attachment 2: Ordering &
Provisioning-Resale; Attachment 3: Maintenance-Resale; Attachment 7:
Ordering & Provision in-Unbundled Network Elements; Attachment 8:
Maintenance-Unbundled Network Elements.
50.0 CUSTOMER INQUIRIES
50.1 Each Party will refer all questions regarding the other Party's
services or products directly to the other Party at a telephone number
specified by that Party.
50.2 Each Party will ensure that all of their representatives who receive
inquiries regarding the other Party's services: (i) provide the numbers
described in Section 50.1 to callers who inquire about the other
Party's services or products; and (ii) do not in any way disparage or
discriminate against the other Party or its products or services.
51.0 DISCLAIMER OF WARRANTIES
51.1 TO THE EXTENT CONSISTENT WITH ITS OBLIGATIONS UNDER THE ACT, SWBT MAKES
NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
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IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO
MERCHANTABILITY OR FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH
RESPECT TO SERVICES PROVIDED HEREUNDER.
52.0 NO WAIVER
52.1 CLEC's agreement herein to accept less than fully operational
electronic interfaces to operations support systems functions on and
after January 1, 1997, will not be deemed a waiver of Section 251(c)(3)
of the Act to receive such interfaces on that date.
53.0 DEFINITIONS
53.1 For purposes of this Agreement, certain terms have been defined in this
Agreement to encompass meanings that may differ from, or be in addition
to, the normal connotation of the defined word. Unless the context
clearly indicates otherwise, any term defined or used in the singular
will include the plural. The words "will" and "shall" are used
interchangeably throughout this Agreement and the use of either
connotes a mandatory requirement. The use of one or the other will not
mean a different degree of right or obligation for either Party. A
defined word intended to convey its special meaning is capitalized when
used. Other terms that are capitalized and not defined in this
Agreement will have the meaning in the Act.
54.0 RESALE
54.1 At the request of CLEC, and pursuant to the requirements of the Act,
any telecommunications service that SWBT currently provides or
hereafter offers to any customer in the geographic area where SWBT is
the incumbent LEC will be made available to CLEC by SWBT for Resale in
accordance with the terms, conditions and prices set forth in this
Agreement. Specific provisions concerning Resale are addressed in
Attachment 1: Resale, and other applicable Attachments.
55.0 UNBUNDLED NETWORK ELEMENTS
55.1 At the request of CLEC and pursuant to the requirements of the Act,
SWBT will offer in the geographic area where SWBT is the incumbent LEC
Network Elements to CLEC on an unbundled basis on rates, terms and
conditions set forth in this Agreement that are just, reasonable, and
non-discriminatory. Specific Provisions concerning Unbundled Network
Elements are addressed in Attachment 6: Unbundled Network Elements, and
other applicable Attachments.
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56.0 ORDERING AND PROVISIONING, MAINTENANCE, CONNECTIVITY BILLING AND
RECORDING, AND PROVISION OF CUSTOMER USAGE DATA
56.1 In connection with its Resale of services to CLEC, SWBT agrees to
provide to CLEC Ordering and Provisioning Services, Maintenance
services, Connectivity Billing and Recording services and Provision of
Customer Usage Data services pursuant to the terms specified in
Attachments 2, 3, 4 and 5, respectively.
56.2 In connection with its furnishing Unbundled Networks Elements to CLEC,
SWBT agrees to provide to CLEC Ordering and Provisioning Services,
Maintenance services, Connectivity Billing and Recording services and
Provision of Customer Usage Data services pursuant to the terms
specified in Attachments 7, 8, 9 and 10, respectively.
57.0 NETWORK INTERCONNECTION ARCHITECTURE
57.1 Where the Parties interconnect their networks, for purposes of
exchanging traffic between their networks, the Parties agree to utilize
the interconnection methods specified in Attachment 11: Network
Interconnection Architecture. SWBT expressly recognizes that this
provision and said Attachment are in no way intended to impair in any
way CLEC's right to interconnect with unbundled Network Elements
furnished by SWBT at any technically feasible point within SWBT's
network, as provided in the Act.
58.0 COMPENSATION FOR DELIVERY OF TRAFFIC
58.1 The Parties agree to compensate each other for the transport and
termination of traffic as provided in Attachment 12: Compensation.
59.0 ANCILLARY FUNCTIONS
Ancillary Functions may include, but are not limited to, Collocation,
Rights-of-Way, Conduit and Pole Attachments. SWBT agrees to provide
Ancillary Functions to CLEC as set forth in Attachment 13: Ancillary
Functions.
60.0 CONFORMING AMENDMENTS
60.1 SWBT and CLEC have already entered into an interconnection agreement in
Texas which has been approved by the Texas Public Utility Commission
and on file with the Texas Public Utility Commission since April 10,
1998 ("Agreement"). This document is an amendment to the Agreement, and
except as otherwise provided herein, the Agreement remains in full
force and effect. For the convenience of the parties, the parties have
separately prepared a document that includes the operative terms of the
Agreement and this amendment ("Conforming Agreement"), and the parties
agree that the Conforming Agreement accurately reflect all the terms of
the Agreement, as amended.
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61.0 OTHER REQUIREMENTS AND ATTACHMENTS
61.1 This Agreement incorporates a number of listed Attachments which,
together with their associated Appendices, Exhibits, and Addenda,
constitute the entire Agreement between the Parties. In order to
facilitate use and comprehension of the Agreement, the Attachments have
been grouped under the following broad headings: Resale; Unbundled
Network Elements; Network Interconnection Architecture; Ancillary
Functions; and Other Requirements. It is understood that these
groupings are for convenience of reference only, and are not intended
to limit the applicability which any particular Attachment may
otherwise have.
61.2 Appended to this Agreement and incorporated herein are the Attachments
listed below. To the extent that any definitions, terms or conditions
in any given Attachment differ from those contained in the main body of
this Agreement, those definitions, terms or conditions will supersede
those contained in the main body of this Agreement, but only in regard
to the services or activities listed in that particular Attachment. In
particular, if an Attachment contains a term length that differs from
the term length in the main body of this Agreement, the term length of
that Attachment will control the length of time that services or
activities are to occur under the Attachment, but will not affect the
term length of the remainder of this Agreement, except as may be
necessary to interpret the Attachment.
RESALE
Attachment 1: Resale
Appendix Services/Pricing
Exhibit A: SWBT's Telecommunications Services Available for
Resale
Exhibit B: SWBT's Other Services Available for Resale
Appendix Customized Routing-Resale
Appendix DA-Resale
Appendix OS-Resale
Appendix White Pages (WP)-Resale
Attachment 2: Ordering and Provisioning-Resale
Attachment 3: Maintenance-Resale
Attachment 4: Connectivity Billing-Resale
Attachment 5: Provision of Customer Usage Data-Resale
UNBUNDLED NETWORK ELEMENTS
Attachment 6: Unbundled Network Elements (UNE)
Appendix Pricing-UNE
Appendix Pricing-UNE Schedule of Prices
Attachment 7: Ordering and Provisioning-UNE
Exhibit A-Electronic Ordering and Provisioning-UNE
Attachment 8: Maintenance-UNE
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Attachment 9: Billing-Other
Attachment 10: Provision of Customer Usage Data-UNE
NETWORK INTERCONNECTION ARCHITECTURE AND COMPENSATION
Attachment 11: Network Interconnection Architecture
Appendix Interconnection Trunking Requirement (ITR)
Appendix Network Interconnection Methods (NIM)
Appendix SS7 Interconnection
Attachment 12: Compensation
Appendix Cellular
Appendix FGA
ANCILLARY FUNCTIONS
Attachment 13: Ancillary Functions
Appendix Collocation
Appendix Poles, Conduit, ROW
OTHER REQUIREMENTS
Attachment 14: Interim Number Portability
Attachment 15: E911
Attachment 16: Network Security and Law Enforcement
Attachment 17: Failure to Meet Performance Criteria
Attachment 18: Mutual Exchange of Directory Listing Information
Attachment 19: White Pages-Other (WP-O)
Attachment 20: Clearinghouse
Attachment 21: Numbering
Attachment 22: DA-Facilities Based
Attachment 23: OS-Facilities Based
Attachment 24: Recording-Facilities Based
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
/s/ Gregory C. Lawhon 1/4/99 /s/ Larry B. Cooper 1/5/99
------------------------------------- -----------------------------------
Sign and Print Name: Date Sign and Print Name: Date
Gregory C. Lawhon
Senior Vice President of
Birch Texas Holdings, Inc., the
General Partner of Birch Telecom Larry B. Cooper
of Texas Ltd., L.L.P. President-industry Markets
------------------------------------- -----------------------------------
Position/Title *Position/Title
BIRCH TELECOM OF TEXAS LTD., L.L.P. SOUTHWESTERN BELL TELEPHONE COMPANY
* Although Southwestern Bell Telephone (Southwestern Bell) intends to fully
comply with the PUC's December 19, 1996 Order pending appeal and/or stay,
Southwestern Bell Telephone Company has not voluntarily signed this document.
Instead, Southwestern Bell has signed the document under specific compulsion of
the Texas Public Utility Commission's directive at the Open Meeting on February
25, 1998 that Southwestern Bell must sign the document. Southwestern Bell
reserves all of its appellate rights under federal and state law and, by signing
this document under compulsion, Southwestern Bell does not waive any legal
arguments that the Arbitration Awards of November 7, 1996, September 30, 1997,
December 19, 1997, and associated Orders and resulting document is, in whole or
in part, unlawful. Because the arbitration/negotiation process has been tainted
by the FCC's rules, as has been recognized by the US Eighth Circuit Court of
Appeals, Southwestern Bell reserves its rights regarding all aspects of the
document whether reflecting negotiated, stipulated or arbitrated provisions.
Furthermore, in signing this document Southwestern Bell does not agree to the
application of the dispute resolution provisions of the document (General Terms
and Conditions, sections 9.0 through 9.6.1) to any nonarbitrated, nonstipulated
and/or nonagreed-to language not contained in this document.