Interconnection Agreement - Southwestern Bell Telephone Co. and Birch Telecom of Kansas inc.
GENERAL TERMS AND CONDITIONS - KS
PAGE 1 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF
THE TELECOMMUNICATIONS ACT OF 1996
BY AND BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
BIRCH TELECOM OF KANSAS, INC.
<PAGE> 2
GENERAL TERMS AND CONDITIONS - KS
PAGE 2 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
TABLE OF CONTENTS
1.0 DEFINITIONS.............................................................5
2.0 INTERPRETATION AND CONSTRUCTION.........................................9
3.0 IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES............9
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)..........................10
4.1 Scope............................................................10
4.2 Interconnection Coverage.........................................10
4.3 Methods for Interconnection......................................11
4.4 Physical Architecture............................................12
4.5 Technical Specifications.........................................13
4.6 Interconnection in Additional Metropolitan Exchange Areas........13
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE
TRAFFIC PURSUANT TO SECTION 251(c)(2)..................................14
5.1 Scope of Traffic.................................................14
5.2 Responsibilities of the Parties..................................15
5.3 Reciprocal Compensation for Termination of Local Traffic.........15
5.4 Reciprocal Compensation for Transit Traffic......................17
5.5 Reciprocal Compensation for Termination of IntraLATA
Interexchange Traffic............................................18
5.6 Compensation for Origination and Termination of Switched
Access Service Traffic to or From an IXC (Meet-Point
Billing (MPB) Arrangements)......................................18
5.7 Billing Arrangements for Compensation for Termination
of IntraLATA, Local, Transit, and Optional Calling
Area Traffic.....................................................20
5.8 Compensation for "Porting" Optional Calling Area Numbers.........21
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT
TO 251(c)(2)...........................................................21
6.1 Scope of Traffic.................................................21
6.2 Trunk Group Architecture Traffic Routing.........................21
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC....................22
7.1 Information Services Traffic.....................................22
7.2 Line Status Verification (LSV)/Busy Line
Interrupt (BLI) Traffic..........................................22
7.3 Wireless Traffic.................................................22
8.0 SIGNALING..............................................................23
9.0 NUMBERING..............................................................23
<PAGE> 3
GENERAL TERMS AND CONDITIONS - KS
PAGE 3 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
10.0 RESALE -- SECTIONS 251(b)(1); 251(c)(4); 252(d)(3);
and 271(c)(2)(B)(xiv)..................................................25
11.0 UNBUNDLED NETWORK ELEMENTS - SECTIONS 251(c)(3), 271(c)(2)(B)
(ii),(iv),(v),(vi),(x).................................................25
12.0 NOTICE OF CHANGES -- SECTION 251(c)(5).................................25
13.0 COLLOCATION -- SECTION 251(c)(6).......................................26
14.0 NUMBER PORTABILITY -- SECTIONS 251(b)(2)and 271(c)(2)(B)(xi)...........26
15.0 DIALING PARITY -- SECTION 251(b)(3); 271(c)(2)(B)(xii);
and 271(e)(2)..........................................................26
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) and 271(c)(2)(B)(iii).....26
17.0 DATABASE ACCESS -- SECTION 271(c)(2)(B)(x)............................27
18.0 INTERCEPT REFERRAL ANNOUNCEMENTS.......................................27
19.0 COORDINATED REPAIR CALLS...............................................27
20.0 OTHER SERVICES 271(c)(B)(2)(vii) and 271(c)(2)(B)(viii)................28
20.1 White Pages......................................................28
20.2 Calling Name Information.........................................28
20.3 Billing/Collecting/Remitting ...................................28
20.4 911/E911 Service ...............................................28
20.5 Directory Assistance (DA)........................................28
20.6 Direct Access (DIRECT)...........................................28
20.7 Operator Services................................................28
20.8 Clearinghouse Services ..........................................28
20.9 Hosting..........................................................29
20.10 Signaling System 7 Interconnection...............................29
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES................................29
22.0 EFFECTIVE DATE, TERM, AND TERMINATION..................................31
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES...........................32
24.0 CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION..........32
25.0 SEVERABILITY...........................................................33
26.0 INTELLECTUAL PROPERTY..................................................33
<PAGE> 4
GENERAL TERMS AND CONDITIONS - KS
PAGE 4 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
27.0 INDEMNIFICATION........................................................33
28.0 LIMITATION OF LIABILITY................................................36
29.0 REGULATORY APPROVAL....................................................36
30.0 MISCELLANEOUS..........................................................36
30.1 Authorization...................................................36
30.2 Compliance and Certification....................................37
30.3 Law Enforcement.................................................37
30.4 Independent Contractor..........................................38
30.5 Force Majeure...................................................38
30.6 Confidentiality.................................................39
30.7 Governing Law...................................................40
30.8 Taxes...........................................................40
30.9 Non-Assignment..................................................41
30.10 Non-Waiver......................................................42
30.11 Audits..........................................................42
30.12 Disputed Amounts................................................42
30.13 Disputed Resolutions............................................43
30.14 Notices.........................................................47
30.15 Publicity and Use of Trademarks or Service Marks................47
30.16 Section 252(i) Obligations......................................48
30.17 Joint Work Product..............................................48
30.18 Intervening Law.................................................48
30.19 No Third Party Beneficiaries; Disclaimer of Agency..............48
30.20 No License......................................................48
30.21 Survival........................................................48
30.22 Scope of Agreement..............................................49
30.23 Entire Agreement................................................49
30.24 Performance Measurements........................................49
30.25 Remedies........................................................49
<PAGE> 5
GENERAL TERMS AND CONDITIONS - KS
PAGE 5 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
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 ("Agreement"), is by and between Southwestern
Bell Telephone Company, a Missouri Corporation ("SWBT"), and Birch Telecom of
Kansas, Inc., formerly known as Valu-Line of Kansas, Inc. ("CLEC").
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 predominantly over their respective telephone exchange service facilities
in Kansas; 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 provide other services as
required by the Telecommunications Act of 1996 ("the Act") and additional
services as set forth herein; and
WHEREAS, for purposes of this Agreement, the Parties intend to operate
where SWBT is the incumbent local exchange carrier and CLEC, a competitive local
exchange carrier, is certified by the State Corporation Commission of the State
of Kansas as required.
NOW, THEREFORE, CLEC and SWBT hereby agree as follows:
The terms of this Agreement shall supersede and replace the Resale
Agreement Between Southwestern Bell Telephone Company and Valu-Line of Kansas,
Inc., approved on July 14, 1997 (including the amendment which was approved on
August 7, 1998), which shall terminate upon the effective date of this
Agreement.
1.0 DEFINITIONS
1.1 "Act" means the Communications Act of 1934, 47 U.S.C. 151 et. seq.,
as amended by the Telecommunications Act of 1996.
1.2 "Affiliate" is as defined in the Act.
1.3 "Automatic Number Identification" or "ANI" is a switching system
feature that forwards the telephone number of the calling party and is used for
screening, routing and billing purposes.
1.4 "Busy Line Interrupt" or "BLI" is performed when one Party's
operator bureau interrupts a telephone number in progress after Line Status
Verification has occurred. The operator bureau will interrupt the busy line and
inform the called party that there is a call waiting.
<PAGE> 6
GENERAL TERMS AND CONDITIONS - KS
PAGE 6 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
1.5 "Calling Party Number" or "CPN" is a feature of signaling system
7 (SS7) protocol whereby the ten (10) digit number of the calling party is
forwarded from the end office.
1.6 "Central Office Switch" means a single switching system within the
public switched telecommunications network, including the following:
(i) "End Office Switches" which are Class 5 switches where
end user Exchange Services are directly connected and
offered; and
(ii) "Tandem Office Switches" or "Tandems" which are Class 4
switches used to connect and switch trunk circuits between
Central Office Switches.
Central Office Switches may be employed as combination End Office/Tandem Office
switches (combination Class 5/Class 4).
1.7 "CLASS Features" mean certain CCS-based features available to end
users including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification and related blocking features; Distinctive Ringing/Call Waiting;
Selective Call Forward; and Selective Call Rejection.
1.8 "Collocation" means an arrangement whereby one Party's (the
"Collocating Party") facilities are terminated in its equipment necessary for
Interconnection or for access to Network Elements on an unbundled basis which
has been installed and maintained at the premises of a second Party (the
"Housing Party"). Collocation may be "physical" or "virtual." In "Physical
Collocation," the Collocating Party installs and maintains its own equipment in
the Housing Party's premises. In "Virtual Collocation," the Housing Party
installs and maintains the collocated equipment in the Housing Party's premises.
Collocation includes, but is not limited to, collocation of 38 GHz basic
transmission equipment, provided it complies with the guidelines in SWBT's
current Physical Collocation Technical Publication provided to CLEC.
1.9 "Commission" or "SCC" means the State Corporation Commission of the
State of Kansas.
1.10 "Common Channel Signaling" or "CCS" is a special network, fully
separate from the transmission path of the public switched network, that
digitally transmits call set-up and network control data. Unless otherwise
agreed by the Parties, the CCS used by the Parties shall be SS7.
1.11 "Cross Connect" means the unbundled network element cross connect
rate element which is used to designate connection between: i) the SWBT
distribution frame and an unbundled network element component, or ii) two
unbundled network element components, or iii) the SWBT distribution frame and
the tie cable termination point for CLEC collocation.
<PAGE> 7
GENERAL TERMS AND CONDITIONS - KS
PAGE 7 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
1.12 "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.
1.13 "Digital Signal Level" means one of several transmission rates in
the time-division multiplex hierarchy.
1.14 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level
signal in the time-division multiplex hierarchy.
1.15 "Digital Signal Level 1" or "DS1" means the 1.544 Mbps first-level
signal in the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS1 is the initial level of
multiplexing.
1.16 "Digital Signal Level 3" or "DS3" means the 44.736 Mbps
third-level in the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS3 is defined as the third
level of multiplexing.
1.17 "End User" means a third-party residence or business, that
subscribes to Telecommunications Services provided by either of the Parties, or
by another telecommunications service provider.
1.18 "Exchange Access" is as defined in the Act.
1.19 "Exchange Message Record" or "EMR" means the standard used for
exchange of Telecommunications message information among Telecommunications
Carriers for billable, non-billable, sample, settlement and study data. EMR
format is contained in Bellcore Practice BR-010-200-010 CRIS Exchange Message
Record.
1.20 "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.
1.21 "Interconnection" is as Described in the Act and refers to the
connection of separate pieces of equipment, facilities, or platforms between or
within networks for the purpose of transmission and routing of Telephone
Exchange Service traffic and Exchange Access traffic.
1.22 "Interconnection Activation Date" is the date that the
construction of the joint facility Interconnection arrangement has been
completed, trunk groups have been established, and joint trunk testing is
completed.
1.23 "Interexchange Carrier" or "IXC" means a carrier that provides,
directly or indirectly, interLATA or intraLATA Telephone Toll Services. For
purposes of Section 6.0 of this Agreement, the term "IXC" includes any entity
which purchases FGB or FGD Switched Exchange Access Service in order to
originate or terminate traffic to/from CLEC's end users.
<PAGE> 8
GENERAL TERMS AND CONDITIONS - KS
PAGE 8 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
1.24 "IntraLATA Toll Traffic" means those intraLATA station calls that
are not defined as Local Traffic in this Agreement.
1.25 "Line Status Verification" or "LSV" or "Busy Line Verify" or "BLV"
is performed when one Party's end user requests assistance from the operator
bureau to determine if the called line of the other Party is in use.
1.26 "Local Traffic," for purposes of intercompany compensation, is if
(i) the call originates and terminates in the same SWBT exchange area; or (ii)
originates and terminates within different SWBT Exchanges that share a common
mandatory local calling area, e.g., mandatory Extended Area Service (EAS),
mandatory Extended Local Calling Service (ELCS), or other like types of
mandatory expanded local calling scopes.
1.27 "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).
1.28 "MECAB" refers to the Multiple Exchange Carrier Access Billing
(MECAB) 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 Bellcore as Special Report SR-BDS-000983, 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.
The latest release is issue No. 5, dated June 1994.
1.29 "MECOD" refers to the Multiple Exchange Carriers Ordering and
Design (MECOD) Guidelines for Access Services - Industry Support Interface, a
document developed by the Ordering/Provisioning 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 MECOD document, published by Bellcore as Special Report SR
STS-002643, establishes methods for processing orders for access service which
is to be provided to an IXC by two or more telecommunications providers. The
latest release is issue No. 3, dated February 1996.
1.30 "Meet-Point Billing" or "MPB" refers to a billing arrangement
whereby two or more Telecommunications Carriers jointly provide for switched
access service to an IXC, with each LEC receiving an appropriate share of its
switched access revenues as defined by its effective access tariffs.
1.31 "Metropolitan Exchange Area" means a geographical area defined in
SWBT current tariffs effective as a metropolitan exchange local calling area.
For example, Dallas, Ft. Worth, Houston, Little Rock, Oklahoma City, St. Louis,
Austin and would be examples of Metropolitan Exchange Areas.
<PAGE> 9
GENERAL TERMS AND CONDITIONS - KS
PAGE 9 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
1.32 "Network Element Bona Fide Request" means the process described in
Appendix UNE that is attached hereto and incorporated herein that prescribes the
terms and conditions relating to a Party's request that the other Party provide
a Network Element.
1.33 "Switched Exchange Access Service" means the offering of
transmission or switching services to Telecommunications Carriers for the
purpose of the origination or termination of Telephone Toll Service. Switched
Exchange Access Services include, but are not necessarily limited to: Feature
Group A, Feature Group B, Feature Group D, 800/888 access, and 900 access and
their successors or similar Switched Exchange Access services.
1.34 "Synchronous Optical Network" or "SONET" means 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 Gpbs.
1.35 "Telephone Exchange Service" is as defined in the Act.
1.36 "Wire Center" means an occupied structure or portion thereof in
which a Party has the exclusive right of occupancy and which serves as a Routing
Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION
In the event of any amendment of the Act or any legislative,
regulatory, judicial order, rule or regulations, or other legal action that
revises or reverses the Act, the FCC's Orders in FCC Docket Nos. 96-98 and
95-185 or any applicable order or arbitration award purporting to apply the
provisions of the federal Act, the Parties reserve all of their rights and
remedies, including those to amend, alter, or revise this Agreement.
3.0 IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES
Subject to the terms and conditions of this Agreement, Interconnection
of the Parties' facilities and equipment pursuant to Sections 4.0, 5.0 and 6.0
for the transmission and routing of Telephone Exchange Service traffic and
Exchange Access traffic shall be established on or before the corresponding
"Interconnection Activation Date" shown for each such Metropolitan Exchange Area
on Appendix DCO attached hereto and incorporated by reference. Appendix DCO may
be revised and supplemented from time to time upon the mutual agreement of the
Parties to reflect the Interconnection of additional Metropolitan Exchange Areas
pursuant to Section 4.6 by modifying or updating Appendix DCO.
<PAGE> 10
GENERAL TERMS AND CONDITIONS - KS
PAGE 10 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
4.0 INTERCONNECTION PURSUANT TO SECTION 251(C)(2)(A),(B),(C); 47 CFR
SS. 51.305(a)(1)
4.1 SCOPE
This Section 4.0 describes the physical architecture for
Interconnection of the Parties' facilities and equipment for the transmission
and routing of Telephone Exchange Service traffic and Exchange Access traffic
pursuant to Section 251(c)(2) of the Act. Such Interconnections shall be equal
in quality to that provided by the Parties to themselves or to any subsidiary,
affiliate or Third Party. Appendix ITR attached hereto and incorporated by
reference prescribes the specific trunk groups (and traffic routing parameters)
which will be configured over the physical connections described in this Section
4.0 to provide the facilities for the transmission and routing of Telephone
Exchange Service traffic (as described in Section 5.0), Exchange Access traffic
(as described in Section 6.0), LSV/BLI traffic (as described in sub-section
7.2).
4.2 INTERCONNECTION COVERAGE SS. 251(c)(2)(B) AND (C), 47 CFR SS.
51.305(a)(2)
The Parties shall provide for interoperation of their networks that is
at least equal in quality to that provided by SWBT to itself or to any
subsidiary, affiliate, or any other party to which SWBT provides interconnection
and shall interconnect at any technically feasible point in their network as
stated below:
4.2.1. CLEC shall interconnect with SWBT's facilities as follows:
a. In each SWBT exchange area in which CLEC chooses to offer
local exchange service, CLEC, at a minimum, will
interconnect its network facilities to: (a) the SWBT access
tandem(s) for which the CLEC's NXX subtend in the Local
Exchange Routing Guide (LERG), and (b) to either each SWBT
local tandem(s) or each SWBT end office(s) ("EO") subtending
that local tandem(s) or (c) all end offices serving such
exchange where SWBT has no local tandem. SWBT EOs and tandems
through which CLEC will terminate its traffic will be called
SWBT Interconnection Wire Centers and are identified in
Appendix DCO. As CLEC initiates Exchange Service operations
in additional SWBT exchange areas, SWBT and CLEC shall agree
upon additional SWBT Interconnection Wire Centers in each
new exchange area. CLEC agrees that if SWBT establishes
additional tandems in an exchange area within which CLEC
offers local exchange service, CLEC will interconnect to the
additional tandems.
b. Interconnection to a SWBT local tandem(s) will provide CLEC
local access to the SWBT end offices and NXXs which subtend
that tandem(s), and to other Local Exchange Carriers ("LECs")
(subject to sub-section 5.4) which are connected to that
tandem(s). Interconnection to SWBT EO(s) will
<PAGE> 11
GENERAL TERMS AND CONDITIONS - KS
PAGE 11 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
provide CLEC access only to the NXXs served by that
individual EO(s) to which CLEC interconnects.
c. Interconnection to a SWBT access tandem will provide CLEC
interexchange access to SWBT, IXCs, LECs and CRMS providers
(subject to sub-section 7.3) which are connected to that
tandem. Where an access tandem also provides local tandem
functions, interconnection to a SWBT access tandem serving
that exchange will also provide CLEC access to SWBT's EOs
with the same functionality described in (b) above.
d. Where CLEC requires ancillary services (e.g., Directory
Assistance, Operator Assistance, E911/911) additional
interconnection to SWBT's Interconnection Wire Center(s) or
special trunking will be required for interconnection to
such ancillary services.
4.2.2. SWBT shall interconnect with CLEC's facilities under terms
and conditions no less favorable than those identified in sub-section 4.2.1,
above.
4.3 METHODS FOR INTERCONNECTION
Where the Parties interconnect, for the purpose of exchanging traffic
between networks, the Parties may use the following interconnection methods for
each Tandem and End Office identified in Appendix DCO making use of facilities
they own or lease from a third party or SWBT.
4.3.1 Physical Collocation Interconnection ("PCI") - Where CLEC
provides fiber cable and connects to its equipment located in the SWBT Wire
Center. CLEC owns and maintains CLEC's equipment.
4.3.2 Virtual Collocation Interconnection ("VCI") - Where CLEC
provides fiber cable to SWBT for connection to CLEC-designated basic
transmission equipment dedicated solely for CLEC's use, located in the SWBT
Interconnection Wire Center. SWBT owns and maintains the basic transmission
equipment at the SWBT Interconnection Wire Center. This option shall be
consistent with the terms of SWBT's virtual collocation tariff.
4.3.3 SONET-Based Interconnection ("SBI") - Where CLEC provides
fiber cable to SWBT for connection to SWBT-designated basic transmission
equipment located at the SWBT Interconnection Wire Center and dedicated solely
for CLEC's use. SWBT owns and maintains the basic transmission equipment. This
option shall be consistent with SWBT's SBI tariff.
4.3.4 Leased Facility Interconnection ("LFI") - Where facilities
exist, either Party may lease facilities from the other Party as defined in
Section 7 of Appendix NIM.
<PAGE> 12
GENERAL TERMS AND CONDITIONS - KS
PAGE 12 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
4.3.5 Mid-span Fiber Interconnection ("NIM") - Where the Parties
agree to interconnect through SONET technology, using a Fujitsu originating line
terminating multiplexer fiber optic terminal ("FOT") details of this
architecture are addressed in Appendix NIM attached hereto and incorporated by
reference. This interconnection arrangement is limited to interconnecting
trunks.
4.3.6 Other interconnection methods, as negotiated by the parties,
which interconnect CLEC's and SWBT's networks (1) for the transmission and
routing of telephone exchange traffic, exchange access traffic, or both; (2) at
any technically feasible point within SWBT's network including: (1) the
line-side of a local switch; (ii) the trunk-side of a local switch, (iii) the
trunk interconnection points for a tandem switch; (iv) central office
cross-connect points; (v) out-of-band signaling transfer points necessary to
exchange traffic at these points and access call related databases, and (vi) the
points of access to unbundled network elements; (3) that is a level of quality
that is equal to that which SWBT provides itself, a subsidiary, an affiliate, or
any other party. If CLEC requests, and to the extent technically feasible, SWBT
shall negotiate interconnection that is superior or lesser in quality to that
provided by SWBT to itself or any subsidiary, affiliate, or any other party to
which the incumbent LEC provides interconnection.
4.4 PHYSICAL ARCHITECTURE. Using one or more of the Interconnection
Methods described in Section 4.3 above, the Parties will agree on a physical
architecture plan. This plan will be documented within Appendix DCO. The Parties
agree to deploy one physical architecture plan per Metropolitan Serving Area.
The two architecture arrangements, End Point Meet and Mid-Point Meet, are
discussed below. Additional physical architectures, as yet undefined, may evolve
during the term of this Agreement. These future as yet undefined architectures
can be deployed if mutually agreed upon.
4.4.1 End Point Meet. Using the "End Point Meet" architecture,
the Parties will establish transport facilities from their own Central Office(s)
to the other party's Central Office(s) utilizing any method of interconnection
described in Section 4.3 above. Unless otherwise mutually agreed upon, each
Party will use its own transport facilities to provide its trunking as set forth
in Appendix ITR. Each Party will be responsible for the appropriate sizing,
operation, and maintenance of its own transport facilities. If initially
deployed as an End Point Architecture, the deployment architecture may be
migrated or groomed, upon mutual agreement, to a Mid-Point Meet architecture.
4.4.2 Mid-Point Meet. Using the Mid-Point Meet architecture, the
Parties will agree upon a Point of Interconnection (POI). The POI functions as a
demarcation point for each Party. Each Party is responsible to transport all
trunking to its side of the POI utilizing any method of interconnection
described in Section 4.3 above. Each Party is responsible for the appropriate
sizing, operation, and maintenance of the transport facility and trunking to the
POI.
4.4.2.1 A second POI can be established to eliminate a
"single point of failure" when mutually agreed upon. The establishment of the
second POI should not
<PAGE> 13
GENERAL TERMS AND CONDITIONS - KS
PAGE 13 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
require additional or increased trunking or facilities of either Party. Trunking
from the initial POI will be groomed or augmented to the second POI upon mutual
agreement.
4.4.2.2 When required, based on guidelines established
pursuant to Appendix ITR, either Party may trunk directly to the other Party's
EO. If the Party is virtually or physically collocated to the EO, then that
collocation will be designated a POI. This collocation will be used for the
transport of direct EO trunking, in addition to other uses. The collocated Party
is responsible for the appropriate sizing, operation, and maintenance of the
transport facility. In the instance where the Party is not collocated, the EO
trunk group will be handed off at the original POI and both Parties will be
responsible for the transport facility on their side of that POI.
4.4.2.3 Unless otherwise mutually agreed upon, when
Mid-Point Meet architecture has been deployed, it will remain as the
architecture of choice during the term of this Agreement.
4.5 TECHNICAL SPECIFICATIONS
4.5.1 CLEC and SWBT shall work cooperatively to install and
maintain a reliable network. CLEC and SWBT shall exchange appropriate
information (e.g., maintenance contact numbers, network information, information
required to comply with law enforcement and other security agencies of the
Government and such other information as the Parties shall mutually agree) to
achieve this desired reliability.
4.5.2 CLEC and SWBT shall work cooperatively to apply sound
network management principles by invoking network management controls to
alleviate or to prevent congestion.
4.5.3 Technical Publications describe the practices,
procedures, specifications and interfaces generally utilized by SWBT, are listed
in Appendix TP attached hereto and incorporated by reference. Appendix TP will
herein assist the Parties in meeting their respective Interconnection
responsibilities. Copies of the publications listed in Appendix TP have been or
shall be provided to CLEC by SWBT.
4.6 INTERCONNECTION IN ADDITIONAL METROPOLITAN EXCHANGE AREAS
4.6.1 If CLEC decides to offer Telephone Exchange Services in
any other Metropolitan Exchange and Areas in which SWBT also offers Telephone
Exchange Services, CLEC shall provide written notice to SWBT of the need to
establish Interconnection in such Metropolitan Exchange Areas pursuant to this
Agreement.
4.6.2 The notice provided in Section 4.6.1 shall include: (i)
the initial Routing Point CLEC has designated in the Metropolitan Exchange Area;
(ii) CLEC's requested
<PAGE> 14
GENERAL TERMS AND CONDITIONS - KS
PAGE 14 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
Interconnection Activation Date; and (iii) a non-binding forecast of CLEC's
trunking requirements.
4.6.3 Unless otherwise agreed by the Parties, the Parties
shall designate the Wire Center that CLEC has identified as its initial Routing
Point in the Metropolitan Exchange Area as CLEC Interconnection Wire Center
("IWC") in that Metropolitan Exchange Area and shall designate the SWBT Tandem
Office Wire Center within the Metropolitan Exchange Area nearest to the IWC (as
measured in airline miles utilizing the V&H coordinates method) as the SWBT
Interconnection Wire Center (SIWC) in that Metropolitan Exchange Area.
4.6.4 Unless otherwise agreed by the Parties, the
Interconnection Activation Date in each new Metropolitan Exchange Area shall be
the one-hundred and fiftieth (150th) day following the date on which CLEC
delivered notice to SWBT of the need to establish Interconnection pursuant to
Section 4.6.1 above. Within ten (10) business days of SWBT's receipt of CLEC's
notice, SWBT and CLEC shall confirm their respective Wire Centers to be
Interconnected and the Interconnection Activation Date for the new Metropolitan
Exchange Area by attaching a supplementary schedule to Appendix DCO.
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT
TO SECTION 251(c)(2)(D); 252(d)(1) AND (2); 47 CFR SS. 51.305(a)(5)
5.1 SCOPE OF TRAFFIC
This Section 5.0 prescribes parameters for Traffic Exchange trunk
groups the Parties shall establish over the Interconnections specified in
Section 4.0. The Parties shall allow for the Traffic Exchange trunk groups
specified in this Section 5.0 and in Appendix ITR for the transmission and
routing of all Local and IntraLATA Toll Traffic between the Parties' respective
Telephone Exchange Service end users.
5.1.1 For purposes of compensation under this Agreement, the
telecommunications traffic traded between CLEC and SWBT will be classified as
either Local Traffic, Transit Traffic, Optional Calling Area Traffic, IntraLATA
Interexchange Traffic, InterLATA Interexchange Traffic, or FGA Traffic. The
compensation arrangement for the joint provision of Feature Group A (FGA)
Services is covered in Appendix FGA, attached hereto and incorporated herein by
reference. The Parties agree that, notwithstanding the classification of traffic
under this Agreement, either Party is free to define its own "local" calling
area(s) for purposes of its provision of Telecommunications Services to its end
users.
5.1.2 For purposes of reciprocal compensation this Agreement
recognizes the unique status of traffic originated by and passed to Internet
Service Providers (ISP). These providers have historically been subject to an
access charge exemption by the FCC which permits the use of Basic Exchange
Telecommunications Service as a substitute for switched access service. The
Parties recognize the interstate, or at the very least, interexchange, nature of
the
<PAGE> 15
GENERAL TERMS AND CONDITIONS - KS
PAGE 15 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
great majority of internet calls. Therefore the Parties agree that such calls
are not properly the subject of reciprocal compensation under the Act. The
Parties will exempt traffic originated to an ISP from the reciprocal
compensation arrangements of this Agreement.
5.1.3 Calls originated by one Party's end user and terminated
to the other Party's end user will be classified as "Local Traffic" under this
Agreement if the call: (i) originates and terminates in the same SWBT exchange
area; or (ii) originates and terminates within different SWBT Exchanges that
share a common mandatory local calling area, e.g., mandatory Extended Area
Service (EAS), mandatory Extended Local Calling Service (ELCS), or other like
types of mandatory expanded local calling scopes.
5.2 RESPONSIBILITIES OF THE PARTIES
5.2.1 Each Party to this Agreement will be responsible for the
accuracy and quality of its data as submitted to the respective Parties
involved.
5.2.2 Each Party will include in the information transmitted
to the other for each call being terminated on the other's network (where
available), the originating Calling Party Number (CPN).
5.2.3 If the percentage of calls passed with CPN is greater
than ninety percent (90%), all calls exchanged without CPN information will be
billed as either Local Traffic or IntraLATA Toll Traffic in direct proportion to
the minutes of use (MOU) of calls exchanged with CPN information. If the
percentage of calls passed with CPN is less than ninety percent (90%), the
parties agree to investigate the reason and work together to correct any
solvable problems uncovered. In the interim, where CPN is not passed, the
parties will bill switched access.
5.2.4 The type of originating calling number transmitted
depends on the protocol of the trunk signaling used for interconnection.
Traditional toll protocol will be used with Multi-Frequency (MF) signaling, and
ANI will be sent from the originating Party's end office switch to the
terminating Party's tandem or end office switch.
5.2.5 Where one Party is passing CPN but the other party is
not properly receiving information, the Parties will cooperate to rate the
traffic correctly.
5.3 RECIPROCAL COMPENSATION FOR TERMINATION OF LOCAL TRAFFIC
5.3.1 The Compensation set forth below will apply to all Local
Traffic as defined in sub-section 5.1.2 of this Agreement.
5.3.2 Applicability of Rates
i) The rates, terms, conditions in this Section 5.3
apply only to the termination of Local Traffic,
except as explicitly noted.
<PAGE> 16
GENERAL TERMS AND CONDITIONS - KS
PAGE 16 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
ii) The Parties agree to compensate each other for
the termination of Local Traffic on a minute of
use (MOU) basis.
5.3.3 Rate Elements
5.3.3.1 A Tandem Served rate element is applicable to
Tandem Routed Local Traffic on a terminating local MOU basis and includes
compensation for the following sub-elements:
i) Tandem Switching - compensation for the use
of tandem switching functions.
ii) Tandem Transport - compensation for the
transmission facilities between the local
tandem and the end offices subtending that
tandem.
iii) End Office Switching - compensation for
the local EO office switching and line
termination functions necessary to complete the
transmission.
5.3.3.2 An End Office Served rate element applies to
direct-routed Local Traffic on a terminating local MOU basis and includes
compensation for End Office Switching. This includes direct-routed Local Traffic
that terminates to offices that have combined tandem and End Office functions.
5.3.4 Local Traffic Interconnection Rates
-----------------------------------------------------------------------
Serving Method Prices Per Prices Per Prices Per
MOU MOU MOU
Zone A Zone B Zone C
----------------------------------------------------------------------
Tandem Served
- Tandem Switching $0.002335 $0.002335 $0.002335
- Tandem Transport $0.000609 $0.000609 $0.000609
- End Office Switching $0.006708 $0.006405 $0.006891
-----------------------------------------------------------------------
End Office Served
- End Office Switching $0.006708 $0.006405 $0.006891
-----------------------------------------------------------------------
5.3.5 If the difference between the local traffic volumes
flowing between the two networks is within a 10%
differential, the Parties will assess each other the
full symmetrical transport and termination rates as
outlined in Section 5.3.4. The ten percent threshold
should be calculated on a per-minute basis. When
local traffic exceeds the 10% differential, the Parties
<PAGE> 17
GENERAL TERMS AND CONDITIONS - KS
PAGE 17 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
will discount all amounts over the 10% differential by
75% of the rates outlined in Section 5.3.4.
5.4 RECIPROCAL COMPENSATION FOR TRANSIT TRAFFIC
5.4.1 Transit Traffic allows one Party to send traffic to a
third party network through the other Party's tandem. A Transit Traffic rate
element applies to all MOUs between a Party and third party networks that
transit the other Party's tandem switch. The originating Party is responsible
for the appropriate rates unless otherwise specified. The Transit Traffic rate
element is only applicable when calls do not originate with (or terminate to)
the transit Party's end user. The two categories of Transit Traffic are: i)
Local, and ii) Optional Area. The following details when each element applies:
i) The Local Transit Traffic rate element applies when
both the originating and terminating end users are
within SWBT local and mandatory exchanges.
ii) The Optional Area Transit Traffic rate element
applies when one end user is in a SWBT optional
exchange which is listed in Appendix Map and the
other end user is within the SWBT local or mandatory
exchanges. The Parties agree also to apply the
Optional Area Transit rate to traffic terminating
to third party incumbent LECs that share a common
mandatory local calling area with all SWBT exchanges
included in a specific metropolitan exchange area.
ILEC mandatory exchanges are listed in Appendix Map.
5.4.1.1 The Parties acknowledge that traffic
originated in third party incumbent LEC mandatory exchange areas as
listed in Appendix Map, which is attached hereto and incorporated by
reference, may traverse the SWBT tandem and terminate in other third
party LEC exchange areas. Although direct connections could be used for
this traffic, SWBT agrees to transit this traffic for the rate of
$0.006 per MOU if the other LEC exchanges share a common mandatory
local calling area with all SWBT exchanges included in a specific
exchange area.
--------------------------------------------------------------------
Type of Transit Traffic Prices Per Prices Per Prices Per
MOU MOU MOU
Zone A Zone B Zone C
--------------------------------------------------------------------
Local Transit
- Tandem Switching $0.002335 $0.002335 $0.002335
- Tandem Transport $0.000609 $0.000609 $0.000609
--------------------------------------------------------------------
Optional Area Transit $0.004
--------------------------------------------------------------------
<PAGE> 18
GENERAL TERMS AND CONDITIONS - KS
PAGE 18 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
5.4.2 All other traffic which transits a tandem shall be
treated as Meet-Point Billing Traffic as described in Section 5.6 below or as
intraLATA interexchange traffic as described in Section 5.5.3 below, unless
otherwise agreed.
5.4.3 The Parties agree to enter into their own agreement with
third party telecommunications carrier. In the event one party originates
traffic that transits the second Party's network to reach a third party
telecommunications carrier with whom the originating Party does not have a
traffic interchange agreement, then originating Party will indemnify the second
Party against any and all charges levied by such third party telecommunications
carrier, including any termination charges related to such traffic and any
attorneys fees and expenses.
5.5 RECIPROCAL COMPENSATION FOR TERMINATION OF INTRALATA
INTEREXCHANGE TRAFFIC
5.5.1 Intentionally Left Blank
5.5.2 The Parties also agree to apply the OCA compensation
rate of $0.0210 per MOU for traffic terminating to CLEC end users in other
incumbent LEC exchange that share a common mandatory local calling area with all
SWBT exchanges that are included in the metropolitan exchange area. Appendix Map
lists the shared mandatory local calling areas. This rate is independent of any
retail service arrangement established by either Party to their respective end
users.
5.5.3 For intrastate intraLATA interexchange service traffic,
compensation for termination of intercompany traffic will be at terminating
access rates for Message Telephone Service (MTS) and originating access rates
for 800 Service, including the Carrier Common Line (CCL) charge, as set forth in
each Party's Intrastate Access Service Tariff, not to exceed SWBT's Intrastate
Access Services Tariff. For interstate intraLATA intercompany service traffic,
compensation for termination of intercompany traffic will be at terminating
access rates for MTS and originating access rates for 800 Service including the
CCL charge, as set forth in each Party's interstate Access Service Tariff, not
to exceed SWBT's Interstate Access Services Tariff.
5.6 COMPENSATION FOR ORIGINATION AND TERMINATION OF SWITCHED
ACCESS SERVICE TRAFFIC TO OR FROM AN IXC (MEET-POINT BILLING
(MPB) ARRANGEMENTS)
5.6.1 For interstate, interLATA traffic, terminating
compensation will be at access rates as set forth in each Party's own applicable
access tariffs.
5.6.2 The Parties will establish MPB arrangements in order to
provide Switched Access Services to IXCs via SWBT's access tandem switch in
accordance with the MPB guidelines adopted by and contained in the Ordering and
Billing Forum's MECOD and MECAB documents. CLEC's Meet Points with SWBT shall be
those identified in Appendix DCO and any supplements thereto.
<PAGE> 19
GENERAL TERMS AND CONDITIONS - KS
PAGE 19 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
5.6.3 Billing to IXCs for the Switched Exchange Access
Services jointly provided by the Parties via Meet-Point Billing arrangement
shall be according to the multiple bill/single tariff method. As described in
the MECAB document, each Party will render a bill in accordance with its own
tariff for that portion of the service it provides. For the purpose of this
Agreement, CLEC is the Initial Billing Company (IBC) and SWBT is the Subsequent
Billing Company (SBC). The assignment of revenues, by rate element, and the
Meet-Point Billing percentages applicable to this Agreement are set forth in
Appendix DCO. The actual rate values for each element shall be the rates
contained in that Party's own applicable access tariffs.
5.6.4 The Parties will maintain provisions in their respective
federal and state access tariffs, or provisions within the National Exchange
Carrier Association (NECA) Tariff No. 4, or any successor tariff, sufficient to
reflect this MPB arrangement, including MPB percentages.
5.6.5 As detailed in the MECAB document, the Parties will, in
accordance with accepted time intervals, exchange all information necessary to
accurately, reliably and promptly bill third Parties for Switched Access
Services traffic jointly handled by the Parties via the Meet Point Arrangement.
Each Party reserves the right to charge the other Party for the
recording/processing functions it performs pursuant to the terms and conditions
of Appendix Recording attached hereto and incorporated by reference. Information
shall be exchanged in Exchange Message Record (EMR) format, on magnetic tape or
via a mutually acceptable electronic file transfer protocol.
5.6.6 Initially, billing to IXCs for the Switched Access
Services jointly provided by the parties via the MPB arrangement will be
according to the multiple bill single tariff method, as described in the MECAB
document. Each Party will render a bill to the IXC in accordance with its own
tariff for that portion of the service it provides. Each Party will bill its own
network access service rates to the IXC. The residual interconnection charge
(RIC), if any, will be billed by the Party providing the End Office function.
5.6.7 Meet-Point Billing shall also apply to all jointly
provided MOU traffic bearing the 900, 800, and 888 NPAs or any other
non-geographic NPAs which may likewise be designated for such traffic in the
future where the responsible party is an IXC. When SWBT performs 800 database
queries, SWBT will charge the provider of the Signaling Service Point for the
database query in accordance with standard industry practices.
5.6.8 Each Party shall coordinate and exchange the billing
account reference ("BAR") and billing account cross reference ("BACR") numbers
for the Meet Point Billing service. Each Party shall notify the other if the
level of billing or other BAR/BACR elements change, resulting in a new BAR/BACR
number.
5.6.9 Each Party will provide the other with the Exchange
Access detailed usage data within thirty (30) days of the end of the billing
period. SWBT will perform assembly and editing, messages processing and
provision of Access Usage Records in accordance with
<PAGE> 20
GENERAL TERMS AND CONDITIONS - KS
PAGE 20 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
Appendix Recording, attached hereto and incorporated by reference. Each Party
will provide to the other the Exchange Access summary usage data within ten (10)
working days after the date that a bill is rendered to the IXC by the initial
Party. To the extent CLEC provides SWBT with Access Usage Records, SWBT will
compensate CLEC on the same terms as CLEC compensates SWBT per Appendix
Recording. SWBT acknowledges that currently there is no charge for Summary Usage
Data Records but that such a charge may be appropriate. At CLEC's request, SWBT
will negotiate a mutual and reciprocal charge for provision of Summary Usage
Data Records.
5.6.10 Errors may be discovered by CLEC, the IXC or SWBT. Both
SWBT and CLEC agree to provide the other Party with notification of any
discovered errors within two (2) business days of the discovery.
5.6.11 In the event of a loss of data, both Parties shall
cooperate to reconstruct the lost data within sixty (60) days of notification
and if such reconstruction is not possible, shall accept a reasonable estimate
of the lost data, based upon no more than three (3) to twelve (12) months of
prior usage data, if available.
5.7 BILLING ARRANGEMENTS FOR COMPENSATION FOR TERMINATION OF
INTRALATA, LOCAL, TRANSIT, AND OPTIONAL CALLING AREA TRAFFIC
5.7.1 Other than for traffic described in sub-section 5.6
above, each Party shall deliver monthly settlement statements for terminating
the other Party's traffic based on the following:
5.7.1.1 Each Party shall, unless otherwise agreed,
adhere to the detailed technical descriptions and requirements for the
recording, record exchange, and billing of traffic using the guidelines as set
forth in the Technical Exhibit Settlement Procedures (TESP), previously provided
by SWBT to CLEC. Reference to this technical publication is included in Appendix
TP.
(a) Where CLEC has direct/high usage trunks to a SWBT
end office with overflow trunking through a SWBT
tandem, billing for the Tandem Traffic will be
calculated as follows:
Total Originating MOUs Recorded By CLEC
Less Direct End Office Terminating MOUs Recorded
By SWBT
Equals Total MOUs To Be Compensated As Tandem
Traffic
(b) Where CLEC has direct/high usage trunks to a third
party with overflow trunking through a SWBT
tandem, CLEC must differentiate the originating
MOU records for the Parties to ascertain how many
MOUs should be compensated as Transit Traffic.
If CLEC is unable to so differentiate the
originating
<PAGE> 21
GENERAL TERMS AND CONDITIONS - KS
PAGE 21 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
MOU records, the Parties shall mutually agree upon
a surrogate method for calculating Transit Traffic
charges owed to SWBT.
5.7.1.2 On a monthly basis, each Party will record its
originating MOU including identification of the originating and terminating NXX
for all intercompany calls.
5.7.1.3 Each Party will transmit the summarized
originating MOU from Section 5.7.1.1 above to the transiting and/or terminating
Party for subsequent monthly intercompany settlement billing.
5.7.1.4 Bills rendered by either Party will be paid
within thirty (30) days of receipt subject to subsequent audit verification.
5.7.1.5 MOUs for the rates contained herein will be
measured in seconds by call type, and accumulated each billing period into one
(1) minute increments for billing purposes in accordance with industry rounding
standards.
5.7.1.6 Each Party will multiply the tandem routed and
end office routed terminating MOUs by the appropriate rate contained in this
Section to determine the total monthly billing to each Party.
5.8 COMPENSATION FOR "PORTING" OPTIONAL CALLING AREA NUMBERS
In those instances where an Optional Calling Area telephone number is
ported, CLEC will compensate SWBT $12.20 monthly, per ported number.
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO
251(c)(2)
6.1 SCOPE OF TRAFFIC
Section 6.0 prescribes parameters for certain trunk groups ("Access
Toll Connecting Trunks") to be established over the Interconnections specified
in Section 4.0 above, for the transmission and routing of Exchange Access
traffic between CLEC Telephone Exchange Service end users and IXCs via a SWBT
access tandem.
6.2 TRUNK GROUP ARCHITECTURE AND TRAFFIC ROUTING
6.2.1 The Parties shall jointly establish Access Toll
Connecting Trunks as described in Appendix ITR, by which will jointly provide
tandem-transported Switched Exchange Access Services to IXCs to enable CLEC's
end users to originate and terminate traffic to/from such IXCs.
<PAGE> 22
GENERAL TERMS AND CONDITIONS - KS
PAGE 22 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
6.2.2 Access Toll Connecting Trunks shall be used solely for
the transmission and routing of Switched Exchange Access to allow CLEC end users
to originate and terminate traffic to/from any IXCs which is connected to a SWBT
Access Tandem. In addition, the trunks shall be used to allow CLEC's end users
to connect to, or be connected to, the 800 Services of any Telecommunications
Carrier connected to the SWBT Access Tandem.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 INFORMATION SERVICES TRAFFIC
7.1.1 At such time as the Parties agree to route intraLATA
Information Services Traffic to one another, they shall agree to exchange rating
and billing information to effectively allow the Parties to bill their end users
and to charge reciprocal rates.
7.2 LINE STATUS VERIFICATION (LSV)/BUSY LINE INTERRUPT (BLI)
TRAFFIC
7.2.1 Each Party's operator bureau shall accept LSV and BLI
inquiries from the operator bureau of the other Party in order to allow
transparent provision of LSV/BLI Traffic between the Parties' networks. Only one
LSV attempt will be made per end user operator bureau call, and the applicable
charge shall apply whether or not the line is busy at the time of verification
or if the called party agrees to release the line. Only one BLI attempt will be
made per end user operator telephone call, and the applicable charge shall apply
whether or not the line is in use at the to time of interrupt or the called
party releases the line.
7.2.2 Each Party shall route LSV/BLI Traffic inquiries between
the Parties' respective operator bureaus over trunks described in Appendix ITR.
7.3 WIRELESS TRAFFIC
7.3.1 Appendix Wireless, attached hereto and incorporated by
reference sets forth the terms and conditions under which the Parties will
distribute revenue from their joint provision of Wireless Interconnection
Service for mobile to landline traffic terminating through the Parties'
respective wireline switching networks within a LATA. If one Party enters into
an interconnection agreement with a CMRS provider, Appendix Wireless shall no
longer be applicable between the Parties with respect to such CMRS providers,
and the other Party shall be obligated to enter into an agreement with such CMRS
provider for the termination of wireless to landline traffic.
7.3.2 CLEC shall pay the Local Transit Traffic rate to SWBT
for calls that originate on CLEC's network and are sent to SWBT for termination
to a CMRS Provider as long as such Traffic can be identified as wireless
traffic. SWBT shall pay the Local Transit Traffic rate to CLEC for such calls
that originate on SWBT's network are sent through CLEC for termination on a CMRS
Provider's network. Each Party shall be responsible for interconnection
agreements with CMRS providers for terminating compensation regarding traffic
originating on
<PAGE> 23
GENERAL TERMS AND CONDITIONS - KS
PAGE 23 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
the Party's network and terminating on the CMRS provider's network. The
originating Party agrees to indemnify the transiting Party for any claims of
compensation that may be made by the CMRS provider against the transiting Party
regarding compensation for such traffic.
7.3.3 When traffic is originated by either Party to a CMRS
Provider, and the traffic cannot be specifically identified as wireless traffic
for purposes of compensation between SWBT and CLEC, the traffic will be rated
either as Local, Optional or Access and the appropriate compensation rate shall
be paid by the originating Party to the transiting Party.
8.0 SIGNALING
8.1 The SWBT signaling publications that describe the practices,
procedures and specifications generally utilized by SWBT for signaling purposes
and are listed in Appendix TP which is attached hereto and incorporated herein.
A copy of these publications have been provided to CLEC.
8.2 The Parties will cooperate on the exchange of Transactional
Capabilities Application Part (TCAP) messages to facilitate 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 end users. All CCS signaling parameters will be provided
including, without limitation, calling party number (CPN), originating line
information (OLI), calling party category and charge number.
9.0 NUMBERING
9.1 Nothing in this Agreement shall be construed to limit or otherwise
adversely impact in any manner either Party's right to employ or to request and
be assigned any North American Numbering Plan (NANP) number resources including,
but not limited to, central office (NXX) codes pursuant to the Central Office
Code Assignment Guidelines(1), or to establish, by tariff or otherwise,
Exchanges and Rating Points corresponding to such NXX codes. Each Party is
responsible for administering the NXX codes it is assigned.
9.2 At a minimum, in those Metropolitan Exchange Areas where CLEC
intends to provide local exchange service, CLEC shall obtain a separate NXX code
for each SWBT rate center which is required to ensure compliance with the
industry-approved Central Office Code (NXX) Assignment Guidelines (April 1997)
and the FCC's Second Report & Order in CC Docket 95-116, released August 18,
1997 (Local Number Portability). This will enable CLEC and SWBT to identify the
jurisdictional nature of traffic for intercompany compensation until such time
as both Parties have implemented billing and routing capabilities to determine
traffic jurisdiction on a basis other than NXX codes.
-----------------
(1) Last published by the Industry Numbering Committee ("INC") as INC
95-0407-008, Revision 4/7/95 former ICCF 93-0729-010.
<PAGE> 24
GENERAL TERMS AND CONDITIONS - KS
PAGE 24 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
9.3 Each Party agrees to make available to the other, up-to-date
listings of its own assigned NPA-NXX codes, along with associated Rating Points
and Exchanges.
9.4 To the extent SWBT serves as Central Office Code Administrator for
a given region, SWBT commits to treat CLEC requests for assignment of central
office code(s) in a neutral and nondiscriminatory manner, consistent with
regulatory requirements, and (NXX) Central Office Code Assignment Guidelines.
9.5 Each Party is responsible to program and update its own switches
and network systems to recognize and route traffic to the other Party's assigned
NXX codes at all times. Neither Party shall impose fees or charges on the other
Party for such required programming and updating activities.
9.6 Each Party is responsible to input required data into the Routing
Data Base Systems (RDBS) and into the Bellcore Rating Administrative Data
Systems (BRADS) or other appropriate system(s) necessary to update the Local
Exchange Routing Guide (LERG), unless negotiated otherwise.
9.7 Upon the request of CLEC, SWBT shall perform LERG input for CLEC.
CLEC agrees to pay SWBT the sum of $110 per NXX in exchange for SWBT's input of
required data necessary to update the Local Exchange Routing Guide (LERG) on
CLEC's behalf. SWBT shall not be liable for any losses or damages arising out of
errors, defects, or failures associated with the input of CLEC's data into the
LERG, except for gross negligence or willful misconduct.
9.8 Neither Party is responsible for notifying the other Parties' end
users of any changes in dialing arrangements, including those due to NPA
exhaust, unless otherwise ordered by the Commission, the FCC, or a court.
9.9 NXX MIGRATION. Where either Party has activated an entire NXX for a
single end user, or activated more than half of an NXX for a single end user
with the remaining numbers in that NXX either reserved for future use or
otherwise unused, if such end user chooses to receive service from the other
Party, the first Party shall cooperate with the second Party to have the entire
NXX reassigned in the LERG (and associated industry databases, routing tables,
etc.) to an End Office operated by the second Party. Such transfer will require
development of a transition process to minimize impact on the Network and on the
end user(s)' service and will be subject to appropriate industry lead times
(currently forty-five (45) days) for movements of NXXs from one switch to
another. The Party to whom the NXX is migrated will pay NXX migration charges of
$10,000 per NXX to the Party formerly assigned the NXX.
<PAGE> 25
GENERAL TERMS AND CONDITIONS - KS
PAGE 25 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
10.0 RESALE -- SECTIONS 251(b)(1); 251(c)(4); 252(d)(3); AND
271(c)(2)(B)(xiv);
10.1 AVAILABILITY OF SWBT RETAIL TELECOMMUNICATIONS SERVICES FOR
RESALE
SWBT shall offer to CLEC for resale at wholesale rates its
Telecommunications Services, as described in Section 251(c)(4) of the Act,
pursuant to the terms and conditions of Appendix Resale attached hereto and
incorporated herein by this reference.
10.2 AVAILABILITY OF CLEC RETAIL TELECOMMUNICATION SERVICES FOR RESALE
CLEC shall make available its Telecommunications Services for resale at
wholesale rates to SWBT in accordance with Section 251(b)(1) of the Act.
11.0 UNBUNDLED NETWORK ELEMENTS -- SECTIONS 251(c)(3), 271(c)(2)(B)
(ii),(iv),(v),(vi),(x)
Pursuant to Appendix UNE, which is attached hereto and made a part
hereof, SWBT will provide the CLEC access to unbundled network elements for the
provision of a telecommunication service as required by Sections 251 and 252 of
the Act and in compliance with those portions of the FCC's First Report and
Order in CC Docket No. 96-98 that are in effect, subject to any modifications on
reconsideration, stay or appeal, under the terms and conditions described herein
and in the attachments hereto. The CLEC agrees to provide access to network
elements to SWBT under the same terms, conditions and prices contained herein.
12.0 NOTICE OF CHANGES -- SECTION 251(c)(5)
Nothing in this Agreement shall limit either Party's ability to upgrade
its network through the incorporation of new equipment, new software or
otherwise. If a Party makes a change in its network which it believes will
materially affect the interoperability of its network with the other Party, the
Party making the change shall provide at least ninety (90) days advance written
notice of such change to the other Party. The Party upgrading its network shall
be solely responsible for the cost and effort of accommodating such changes in
its own network. Notwithstanding the foregoing, if either Party establishes
additional tandems in an exchange area in which the other Party offers local
exchange service, that Party will provide the other Party with not less than
one-hundred eighty (180) days' advance notification of same, and with greater
notification when practicable. In addition, SWBT may elect to conduct central
office switch conversions for the improvement of its network. During such
conversions, CLEC orders for interconnection trunks and unbundled network
elements from that switch shall be suspended for a period of three days prior
and one day after the conversion date consistent with the suspension SWBT places
on itself for orders from its customers. SWBT shall notify the CLEC of the
planned conversion in advance via an assessible letter.
Both Parties agree to coordinate interconnection matters consistent
with the requirements of the Americans with Disabilities Act (42 U.S.C. 12101)
and with Sections 255 and 256 of the
<PAGE> 26
GENERAL TERMS AND CONDITIONS - KS
PAGE 26 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
Act. In addition, the Parties will comply with the Network Disclosure rules
adopted by the FCC in CC Docket No. 96-98, Second Report and Order, as may be
amended from time to time.
13.0 COLLOCATION -- SECTION 251(c)(6)
13.1 SWBT shall provide to CLEC Physical Collocation space necessary
for Interconnection (pursuant to Section 4.0 of this Agreement) or access to
Network Elements on an unbundled basis except that SWBT may provide for Virtual
Collocation if SWBT demonstrates that Physical Collocation is not practical for
technical reasons or because of space limitations, as provided in Section
251(c)(6) of the Act. SWBT shall provide such Collocation for the purpose of
Interconnection or access to Network Elements on an unbundled basis, except as
otherwise mutually agreed to in writing by the Parties or as required by the FCC
or the appropriate Commission, subject to applicable federal and state tariffs.
13.2 Except as otherwise ordered by the Commission or the FCC, or as
mutually agreed to by CLEC and SWBT, Physical Collocation shall be available at
a Central Office Switch location classified as an end office location, a serving
wire center, a tandem office location, or a remote node that serves as a rating
point for special access or switched access transport.
14.0 NUMBER PORTABILITY -- SECTIONS 251(b)(2) and 271(c)(2)(B)(xi)
The Parties shall provide to each other Interim Number Portability
(INP) and Permanent Number Portability (PNP) on a reciprocal basis. Pursuant to
the provisions in the Act and FCC First Report and Order, and in accordance with
the terms and conditions outlined in Appendix PORT, which is attached hereto and
incorporated herein, SWBT will provide CLEC Interim Number Portability through
Remote Call Forwarding and Direct Inward Dialing technology.
15.0 DIALING PARITY -- SECTION 251(b)(3); 271(c)(2)(B)(xii); AND 27l(e)(2)
15.1 The Parties shall provide Local Dialing Parity to each other as
required under Section 251(b)(3) of the Act.
15.2 SWBT shall provide IntraLATA Dialing Parity in accordance with
Section 271(e)(2) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) AND 271(c)(2)(B)(iii)
Each Party shall provide the other Party access to its poles, ducts,
rights-of-way and conduits it owns or controls in accordance with Section 224 of
the Act on terms, conditions and prices comparable to those offered to any other
entity pursuant to each Party's applicable tariffs and/or standard agreements.
<PAGE> 27
GENERAL TERMS AND CONDITIONS - KS
PAGE 27 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
17.0 DATABASE ACCESS -- SECTION 271(c)(2)(B)(x)
In accordance with Section 271(c)(2)(B)(x) of the Act, SWBT shall
provide CLEC with nondiscriminatory access to databases and associated signaling
necessary for call routing and completion. When requesting access to databases
not otherwise provided for in this Agreement, or appropriate interfaces,
regardless of whether they constitute Unbundled Network Elements, CLEC will use
the Network Element Bona Fide Request process. This process is defined in
Appendix UNE, which is attached hereto and incorporated herein by reference.
18.0 INTERCEPT REFERRAL ANNOUNCEMENTS
The Party formerly providing service to an end user shall provide a
Basic Referral announcement, reciprocally and free of charge on the abandoned
telephone number. The announcement states that the called number has been
disconnected or changed and provides the end user's new telephone number to the
extent that it is listed.
(a) Basic Intercept Referral Announcements are to be provided on
residential numbers for a minimum of thirty (30) days where
facilities exist and the threat of telephone number exhaustion
is not imminent.
(b) Basic Intercept Referral Announcements for a single line
business end user and the primary listed telephone number for
DID and "Centrex-type" end users, shall be available for a
minimum of thirty (30) days or the life of the White Pages
directory, whichever is greater. If the threat of telephone
number exhaustion becomes imminent for a particular Central
Office, the service provider may reissue a disconnected number
prior to the expiration of the directory, but no earlier than
thirty (30) days after the disconnection of the business
telephone number.
19.0 COORDINATED REPAIR CALLS
To avoid and minimize the potential for end user confusion, each Party
shall inform their respective end users of their respective repair bureau
telephone number(s) to access such bureaus. In the event that either Party
receives a misdirected repair call, the Parties agree to employ the following
procedures for handling such calls:
(a) To the extent the correct provider can be determined,
misdirected repair calls will be referred to the proper provider
of local exchange service in a courteous manner, at no charge,
and the end user will be provided the correct contact telephone
number.
(b) In responding to repair calls, neither Party shall make
disparaging remarks about the other, nor shall they use these
repair calls as the basis for internal referrals or
<PAGE> 28
GENERAL TERMS AND CONDITIONS - KS
PAGE 28 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
to solicit customers or to market services, nor shall they
initiate extraneous communications beyond the direct referral to
the correct repair telephone number.
20.0 OTHER SERVICES 271(c)(B)(2)(vii) AND 271(c)(2)(B)(viii)
20.1 WHITE PAGES. In accordance with Section 271(c)(2)(B)(viii) of the
Act, SWBT will make nondiscriminatory access to White Pages service available
under the terms and conditions of Appendix WP, attached hereto and incorporated
by reference.
20.2 CALLING NAME INFORMATION. The Parties shall provide, on mutually
agreeable and reciprocal terms, each other with access to Calling Name
information of their respective end users whenever one Party initiates a query
from a Signaling System Point for such information associated with a call
terminating to an end user who subscribes to a calling name service. SWBT will
provide Calling Name Information in accordance with and under the terms and
conditions of Appendix CNAM, attached hereto and incorporated by reference.
20.3 BILLING/COLLECTING/REMITTING. The Parties will jointly agree to
terms and conditions for Billing, Collecting and Remitting for alternated billed
local message as described in Appendix BCR, attached hereto and incorporated by
reference.
20.4 911 AND E911 SERVICES. Pursuant to Section 271(c)(2)(B)(vii) of
the Act, SWBT will make nondiscriminatory access to 911 and E911 services
available under the terms and conditions of Appendix 911, attached hereto and
incorporated by reference.
20.5 DIRECTORY ASSISTANCE (DA). Pursuant to Section
271(c)(2)(B)(vii)(II) of the Act, SWBT will provide nondiscriminatory access to
DA services under the terms and conditions identified in Appendix DA, attached
hereto and incorporated by reference.
20.6 DIRECT ACCESS (DIRECT). Pursuant to Section 271(c)(2)(B)(ii) of
the Act, SWBT will provide nondiscriminatory access to subscriber listing
information contained in SWBT's Directory Assistance database under the terms
and conditions identified in Appendix DIRECT, attached hereto and incorporated
by reference.
20.7 OPERATOR SERVICES. Pursuant to Section 271(c)(2)(B)(vii)(III) of
the Act, SWBT shall provide nondiscriminatory access to Operator Services under
the terms and conditions identified in Appendix OS, attached hereto and
incorporated by reference.
20.8 CLEARINGHOUSE SERVICES. To the extent requested by CLEC, SWBT
shall provide for the tracking of message revenues from certain messages to
facilitate the transfer of revenues between the billing company and the earning
company through the Clearinghouse Services provided by SWBT pursuant to the
terms and conditions in Appendix CH, attached hereto and incorporated by
reference.
<PAGE> 29
GENERAL TERMS AND CONDITIONS - KS
PAGE 29 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
20.9 HOSTING. At CLEC's request, SWBT 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 SWBT's internal
network or the nationwide CMDS network pursuant to Appendix HOST, attached
hereto and incorporated by reference
20.10 SIGNALING SYSTEM 7 INTERCONNECTION. At CLEC's request, SWBT shall
perform SS7 interconnection services for CLEC pursuant to Appendix SS7, attached
hereto and incorporated by reference.
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES
21.1 IMPLEMENTATION SCHEDULE. Upon approval by the SCC, the Parties
shall convene an Implementation Team and meet to develop an Implementation Plan
whose purpose is to take all steps necessary to allow the Parties to exchange
traffic as soon as possible consistent with the Parties' business plans.
21.2 SWBT and CLEC shall each use their best efforts to meet the
Interconnection Activation Dates.
21.3 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 SWBT's
network as referenced in Bellcore's 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.
21.4 Neither Party shall use any service related to or use any of the
services or elements provided in this Agreement in any manner that interferes
with other persons in the use of their service, prevents other persons from
using their service, or otherwise impairs the quality of service to other
carriers or to either Party's end users, and 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. The Party receiving
notice of such violation may invoke the Dispute Resolution procedures of this
Agreement and service shall not be interrupted until the Dispute Resolution
procedures are completed, provided however, that in the event the Party giving
notice of the violation reasonably believes the alleged violation of this
provision is causing imminent network harm or significantly interfering with the
Party's ability to serve its customers, the Party may discontinue or refuse to
provide service as provided for in this provision but either Party may
thereafter invoke the Dispute Resolution procedures.
<PAGE> 30
GENERAL TERMS AND CONDITIONS - KS
PAGE 30 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
21.5 Each Party is solely responsible for the services it provides to
its end users and to other Telecommunications Carriers.
21.6 The Parties shall work cooperatively to minimize fraud associated
with third-number billed calls, calling card calls, and any other services
related to this Agreement.
21.7 At all times during the term of this Agreement, each Party shall
keep and maintain in force at each Party's expense all insurance required by law
(e.g. workers' compensation insurance) as well as general liability insurance
for personal injury or death to any one person, property damage resulting from
any one incident, automobile liability with coverage for bodily injury for
property damage. Upon request from the other Party, each Party shall provide to
the other Party evidence of such insurance (which may be provided through a
program of self insurance).
21.8 Intentionally left blank.
21.9 Unless otherwise stated, each Party will render a monthly bill to
the other for service(s) provided hereunder. Remittance in full will be due
within thirty (30) days of that billing date. Interest shall apply on overdue
amounts (other than disputed amounts which are subject to Section 30.12) at the
rate specified in Section 30.12, unless otherwise specified in an applicable
tariff. Each Party reserves the right to net delinquent amounts against amounts
otherwise due the other.
21.10 SWBT is participating with the industry to develop standardized
methods through the OBF and shall implement ordering and billing
formats/processes consistent with industry guidelines as capabilities are
deployed. Where such guidelines are not available or SWBT decides not to fully
utilize industry guidelines, SWBT will provide CLEC with information on its
ordering and billing format/process and requirements at the earliest practicable
time.
21.11 Each Party represents that it shall not send Local Traffic to the
other Party that is destined for the network of a third party unless and until
such Party has the authority to exchange traffic with the third party; provided,
however, if such traffic is passed without a third party agreement, the CLEC
will hold SWBT harmless/indemnify/defend or impose a penalty so that SWBT has
protection against third party claims including recovery of attorney fees.
21.12 Unless otherwise agreed, if the designated Party fails to file
the jointly signed agreement with the Commission within thirty (30) days of both
Parties signatures, then the signed agreement is null and no longer valid. If
the contract becomes null, either Party can initiate negotiations to a new
agreement.
<PAGE> 31
GENERAL TERMS AND CONDITIONS - KS
PAGE 31 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
22.0 EFFECTIVE DATE, TERM, AND TERMINATION
22.1 This Agreement shall be effective ten (10) days after approval by
the Kansas Commission when it has determined that the Agreement complies with
Sections 251 and 252 of the Act ("Effective Date").
22.2 The initial term of this Agreement shall be one (1) year (the
"Term") which shall commence on the Date of Execution. Absent the receipt by one
Party of written notice from the other Party at least sixty (60) days prior to
the expiration of the Term to the effect that such Party does not intend to
extend the Term of this Agreement, this Agreement shall automatically renew and
remain in full force and effect on and after the expiration of the Term until
terminated by either Party pursuant to Section 22.3, below.
22.3 Either Party may terminate this Agreement in the event that the
other Party fails to perform a material obligation that disrupts the operation
of either Party's network and/or end user service and fails to cure such
material nonperformance within forty-five (45) days after written notice
thereof. The Party receiving notice of such violation may invoke the Dispute
Resolution procedures of this Agreement and such forty-five (45) day period
shall not begin to run until the Dispute Resolution procedures are completed,
provided however, that in the event the Party giving notice of the violation
reasonably believes the alleged violation of the Agreement is causing imminent
network harm or significantly interfering with the Party's ability to serve its
customers, the Party may discontinue or refuse to provide service as provided
for in Section 21.4 but either Party may thereafter invoke the Dispute
Resolution procedures.
22.4 If pursuant to Section 22.2, above, this Agreement continues in
full force and effect after the expiration of the Term, either Party may
terminate this Agreement ninety (90) days after delivering written notice to the
other Party of its intention to terminate this Agreement, subject to Section
22.5, below. Neither Party shall have any liability to the other Party for
termination of this Agreement pursuant to this Section 22.4 other than its
obligations under Section 22.5, below.
22.5 Upon termination or expiration of this Agreement in accordance
with this Section 22.0, above:
(a) each Party shall comply immediately with its obligations set
forth in Section 30.6.2, below; and
(b) each Party shall promptly pay all amounts (including any
late payment charges) owed under this Agreement; and
(c) each Party 's indemnification obligations shall survive.
<PAGE> 32
GENERAL TERMS AND CONDITIONS - KS
PAGE 32 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
22.6 In the event the Agreement would otherwise terminate (other than
by being superseded by a new agreement between the Parties), CLEC may elect to
continue to operate under the terms and conditions of the Agreement (or upon
such other terms and conditions as the Parties may agree) during a holdover
period as herein described ("Holdover Period") provided CLEC complies with the
steps detailed herein. Within ten (10) days of receiving notice of termination
from SWBT, CLEC shall send a request for negotiations for a new agreement under
Sections 251 and 252 of the Communications Act. CLEC may then operate under the
terms of this Agreement until the Parties reach agreement or have completed the
processes provided for in Section 252 of the Communications Act provided that if
the Parties have not reached agreement, CLEC must seek arbitration at the
earliest time permitted under Section 252. In any event, SWBT may not terminate
this Agreement while any agreement between the Parties that would supersede this
Agreement is pending approval at the Commission.
22.7 No remedy set forth in this Agreement 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.
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR
RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES,
FUNCTIONS AND PRODUCTS IT PROVIDES UNDER OR CONTEMPLATED BY THIS AGREEMENT AND
THE PARTIES DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR
A PARTICULAR PURPOSE. ADDITIONALLY, NEITHER SWBT NOR CLEC ASSUMES RESPONSIBILITY
WITH REGARD TO THE CORRECTNESS OF DATA OR INFORMATION SUPPLIED BY THE OTHER WHEN
THIS DATA OR INFORMATION IS ACCESSED AND USED BY A THIRD PARTY.
24.0 CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION
Each Party will abide by applicable state or federal laws and
regulations in obtaining end user authorization prior to changing end user's
Competitive 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. CLEC shall make authorization available to SWBT upon request and at
no charge. Only an end user can initiate a challenge to a change in its local
exchange service provider. If an end user notifies 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, except in those instances
where the end user's account is local PIC protected. It is the responsibility of
the end user to provide express authorization to the current provider or record
to remove local service provider protection before any changes in local exchange
service provider are processed.
<PAGE> 33
GENERAL TERMS AND CONDITIONS - KS
PAGE 33 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
When an end user changes or withdraws authorization, each Party shall
release customer-specific facilities in accordance with the end user's direction
or the end user's authorized agent. Further, when an end user abandons the
premise, SWBT is free to reclaim the unbundled network element facilities for
use by another customer and is free to issue service orders required to reclaim
such facilities.
25.0 SEVERABILITY
25.1 The Parties negotiated the services, arrangements,
Interconnection, terms and conditions of this Agreement by the Parties as a
total arrangement and are intended to be nonseverable, subject only to Section
30.16 of this Agreement.
25.2 In the event the Commission, the FCC, or a court rejects any
portion or determines that any provision of this Agreement is contrary to law,
or is invalid or unenforceable for any reason, the Parties shall continue to be
bound by the terms of this Agreement, insofar as possible, except for the
portion rejected or determined to be unlawful, invalid, or unenforceable. In
such event, the Parties shall negotiate in good faith to replace the rejected,
unlawful, invalid, or unenforceable provision and shall not discontinue service
to the other party during such period if to do so would disrupt existing service
being provided to an end user. Nothing in this Agreement shall be construed as
requiring or permitting either Party to contravene any mandatory requirement of
federal or state law, or any regulations or orders adopted pursuant to such law.
26.0 INTELLECTUAL PROPERTY
CLEC is responsible for obtaining any license or right to use agreement
associated with a Unbundled Network Element purchased from SWBT. 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. SWBT makes no
warranties, express or implied, concerning CLEC's (or any third party's) rights
with respect to intellectual property (including with 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.
27.0 INDEMNIFICATION
27.1 Except as otherwise provided herein or in specific appendices,
each Party shall be responsible only for service(s) and facility(ies) 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 service(s) and facility(ies) provided by the other Party, its agents,
subcontractors, or others retained by such parties.
<PAGE> 34
GENERAL TERMS AND CONDITIONS - KS
PAGE 34 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
27.2 Except as otherwise provided herein or in specific appendices, and
to the extent not prohibited by law and not otherwise controlled by tariff, each
Party (the "Indemnifying Party") shall 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 by such
Indemnifying Party, its agents, its end user, contractors, or others retained by
such parties, in connection with the provision of services or functions under
this Agreement.
27.3 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
misconduct of the other (Indemnified) Party.
27.4 CLEC agrees to indemnify, defend and hold harmless SWBT from any
Loss arising out of SWBT's provision of 911 services or out of CLEC's end users'
use of the 911 service, whether suffered, made, instituted, or asserted by CLEC
or its end users, including for any personal injury or death of any person or
persons, except for Loss which is the direct result of SWBT's own negligence or
willful misconduct.
27.5 SWBT shall not be liable for damages to an end user's premises
resulting from the furnishing of unbundled elements, including the installation
and removal of equipment and associated wiring, unless the damage is caused by
SWBT's negligence or willful misconduct. SWBT does not guarantee or make any
warranty with respect to unbundled elements when used in an explosive
atmosphere.
27.6 Each Party shall be indemnified, defended and held harmless by the
other Party against any Loss arising from a Party's use of services or elements
provided under this Agreement involving: tort claims, including claims for
libel, slander, invasion of privacy, or infringement of copyright arising from a
Party's own communications. This includes, but is not limited to, suits arising
from disclosure of any customer-specific information associated with either the
originating or terminating numbers used to provision unbundled elements provided
hereunder or all other claims arising out of any act or omission of the end user
in the course of using services or functions provided pursuant to this
Agreement.
27.7 The Indemnifying Party agrees to defend any suit brought against
the Indemnified Party for any Loss identified in this Section or specific
appendices. The Indemnified Party agrees to notify the Indemnifying Party
promptly in writing of any written claims, lawsuits or demands for which the
Indemnifying Party may be responsible under this Agreement. The Indemnified
Party shall cooperate in every reasonable way to facilitate defense or
settlement. The Indemnifying Party shall have the right to control and conduct
the defense and settlement of any action or claim subject to the consultation of
the Indemnified Party. The Indemnifying Party
<PAGE> 35
GENERAL TERMS AND CONDITIONS - KS
PAGE 35 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
shall not be responsible for any settlement unless the Indemnifying Party
approved such settlement in advance and agrees to be bound by the settlement
agreement.
27.8 CLEC acknowledges that its right under this contract to
interconnect with SWBT's network and to unbundle and/or combine SWBT's network
elements (including combining with the CLEC's network elements) may be subject
to or limited by intellectual property (including, without limitation, patent,
copyright, and trade secret rights) and contract rights of third parties. It is
the sole obligation of CLEC to obtain any consents, authorizations, or licenses
under intellectual property or proprietary rights held by third parties that may
be necessary for its use of SWBT network facilities under this Agreement. SWBT
hereby conveys no licenses to use such intellectual property rights and makes no
warranties, express or implied, concerning CLEC's (or any third party's) rights
with respect to such intellectual property and contract rights, including,
without limitation, whether such rights will be violated by such interconnection
or unbundling and/or combining or elements (including combining with the CLEC's
network elements) in SWBT's network. SWBT does not and shall not indemnify or
defend, nor be responsible for indemnifying or defending, CLEC for any liability
losses, claims, costs, damages, demand, penalties, or other expenses arising out
of, caused by, or relating to CLEC's interconnection with SWBT's network and
unbundling and/or combining SWBT's network elements (including combining with
CLEC's network elements).
27.9 CLEC agrees to indemnify and hold SWBT harmless from and against
all liability, losses, claims, costs, damages, demand, penalties, or other
expenses, including but not limited to costs of litigation and reasonable
attorneys fees, arising out of, caused by, or relating to any real or potential
claim, demand, or action that CLEC's interconnection with SWBT's network, or
CLEC's use of services or functions offered hereunder, or unbundling and/or
combining of SWBT's network elements (including combining with CLEC's network
elements) violates or infringes upon any intellectual property rights of any
third party or constitutes a breach of contract. CLEC shall notify SWBT in
writing within ten (10) days after CLEC receives notification of any claim or
suit subject to this provision. CLEC shall undertake and control the defense and
settlement of any such claim or suit and CLEC shall cooperate fully with SWBT in
connection herewith. In no event shall SWBT be liable for any consequential
damages or loss of profits which CLEC may suffer arising out of same.
27.10 CLEC shall reimburse SWBT for damages to SWBT facilities utilized
to provide unbundled elements hereunder caused by the negligence or willful act
of the CLEC or resulting from CLEC's improper use of SWBT facilities, or due to
malfunction of any facilities or equipment provided by other than SWBT. Nothing
in the foregoing provision shall be interpreted to hold one CLEC liable for
another Competitive Local Exchange Carrier or end user's actions. Upon
reimbursement for damages, SWBT will cooperate with CLEC in prosecuting a claim
against the person causing such damage. CLEC shall be subrogated to the right of
recovery by SWBT for the damages to the extent of such payment.
<PAGE> 36
GENERAL TERMS AND CONDITIONS - KS
PAGE 36 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
28.0 LIMITATION OF LIABILITY
28.1 Except for indemnity obligations under this Agreement, grossly
negligent or willful misconduct, or except as otherwise provided in specific
appendices, each Party's liability to the other Party for any Loss relating to
or arising out of any negligent act or omission in its performance under this
Agreement, whether in contract or tort, shall not exceed in total the amount
SWBT or CLEC has to or would have charged the other Party for the affected
service(s) or function(s) which were not performed or were otherwise improperly
performed.
28.2 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.
28.3 In no event shall either Party have any liability whatsoever to
the other Party for any indirect, special, consequential, incidental, or
punitive damages, including but not limited to, loss of anticipated profits or
revenue or other economic loss in connection with or arising from anything said,
omitted, or done hereunder (collectively, "Consequential Damages"), even if the
other Party has been advised of the possibility of such damages; provided that
the foregoing shall not limit a Party's obligation under this Agreement to
indemnify, defend, and hold the other Party harmless against any amounts payable
to a third party, including any losses, costs, fines, penalties, criminal or
civil judgments or settlements, expenses (including attorney's fees) and
Consequential Damages of such third party, unless the other Party has engaged in
gross negligence or willful misconduct.
29.0 REGULATORY APPROVAL
29.1 The Parties understand and agree that this Agreement will be filed
with the Commission 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 satisfy the specifically mentioned sections of the Act and 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.
29.2 Intentionally Left Blank
30.0 MISCELLANEOUS
30.1 AUTHORIZATION.
(a) SWBT is a corporation duly organized, validly existing and in
good standing under the laws of the State of Missouri and has
full power and
<PAGE> 37
GENERAL TERMS AND CONDITIONS - KS
PAGE 37 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
authority to execute and deliver this Agreement and to
perform the obligations hereunder.
(b) CLEC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Kansas and has
full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.
30.2 COMPLIANCE AND CERTIFICATION.
30.2.1 Each Party shall be responsible for its own compliance
with all federal, state, and local laws, rules, and regulations applicable to
its performance under this Agreement.
30.2.2 Each Party warrants that it has obtained all necessary
state certification required in those states in which it has ordered services
from the other Party pursuant to this Agreement. Upon request by any state
governmental entity, each Party shall provide proof of certification.
30.2.3 Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this Agreement comply
with the Communications Law Enforcement Act ("CALEA"). Each Party shall
indemnify and hold the other Party harmless from any and all penalties imposed
upon the other Party for such noncompliance and shall at the non-compliant
Party's sole cost and expense, modify or replace any equipment, facilities or
services provided to the other Party under this Agreement to ensure that such
equipment, facilities and services fully comply with CALEA.
30.2.4 For the purposes of establishing, provisioning and billing
service to the CLEC, the CLEC is required to provide to SWBT its state-specific
authorized and nationally recognized OCN/AECNs for facilities-based business
(interconnection and/or unbundled network elements) in each SWBT state and a
single separate and distinct OCN/AECN for resale services in any SWBT state.
CLEC name associated with specific OCN/AECN must be consistent among SWBT
states.
30.3 LAW ENFORCEMENT.
30.3.1 SWBT and CLEC shall handle law enforcement requests as
follows:
(a) Intercept Devices: 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
<PAGE> 38
GENERAL TERMS AND CONDITIONS - KS
PAGE 38 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
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.
(b) Subpoenas: 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 Party was the end user's service
provider, in which case the Party will respond to any
valid request.
(c) Emergencies: If a Party receives a request from a law
enforcement agency for temporary number change,
temporary disconnect, or one-way denial of outbound
calls for an end user of the other Party by the
receiving Party's switch, that Party will comply with
an valid emergency request. However, neither Party
shall be held liable for any claims or damages 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.
30.4 INDEPENDENT CONTRACTOR. Each Party and each Party's contractor
shall be solely responsible for 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. Each Party has sole authority and responsibility to hire,
fire and otherwise control its employees.
30.5 FORCE MAJEURE. Neither Party shall be liable for any delay or
failure in performance of any part of this Agreement from any cause beyond its
control and without its fault or negligence including, without limitation, acts
of nature, acts of civil or military authority, government regulations,
embargoes, epidemics, terrorist acts, riots, insurrections, fires, explosions,
earthquakes, nuclear accidents, floods, work stoppages, equipment failure, 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 In such event, the Party affected shall, upon giving
prompt notice to the other Party, be excused from such performance on a
day-to-day basis to the extent of such interference (and the other Party shall
likewise be excused from performance of its obligations on a day-for-day basis
to the extent such Party's obligations related to the performance so interfered
with). The affected Party shall use its best efforts to avoid or remove the
cause of nonperformance and both Parties shall proceed to perform with dispatch
once the causes are removed or cease.
<PAGE> 39
GENERAL TERMS AND CONDITIONS - KS
PAGE 39 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
30.6 CONFIDENTIALITY.
30.6.1 All information, including but not limited to
specifications, microfilm, photocopies, magnetic disks, magnetic tapes,
drawings, sketches, models, samples, tools, technical information, data,
employee records, maps, financial reports, and market data; (i) furnished by one
Party (the "Disclosing Party") to the other Party (the "Receiving Party")
dealing with customer-specific, facility-specific, or usage-specific
information, other than customer information communicated for the purpose of
publication or directory database inclusion, 911, call processing, billing or
settlement or as otherwise mutually agreed upon; or (ii) in written, graphic,
electromagnetic, or other tangible form and marked at the time of delivery as
"Confidential" or "Proprietary;" or (iii) communicated orally and declared to
the Receiving Party at the time of delivery, or by written notice given to the
Receiving Party within ten (10) days after declaration to be "Confidential" or
"Proprietary" (collectively referred to as "Proprietary Information"), shall
remain the property of the Disclosing Party.
30.6.2 Upon request by the Disclosing Party, the Receiving
Party shall return all tangible copies of Proprietary Information, whether
written, graphic, or otherwise. In the event of the expiration or termination of
this Agreement for any reason whatsoever, each Party shall return to the other
Party or destroy all Proprietary Information and other documents, work papers
and other material (including all copies thereof) obtained from the other Party
in connection with this Agreement.
30.6.3 Each Party shall keep all the other Party's Proprietary
Information confidential in the same manner in which it keeps its own
Proprietary Information confidential, and shall use the other Party's
Proprietary Information only for performing the covenants contained in the
Agreement and shall disclose such Proprietary Information only to those
employees, contractors, agents or Affiliates who have a need to know. Neither
Party shall use the other Party's Proprietary Information for any other purpose
except upon such terms and conditions as may be agreed upon between the Parties
in writing.
30.6.4 Unless otherwise agreed, the obligations of
confidentiality and nonuse set forth in the Agreement do not apply to such
Proprietary Information that:
(a) 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;
(b) is, or becomes publicly known through no wrongful act
of the receiving Party;
(c) is rightfully received from a third person having no
direct or indirect secrecy or confidentiality
obligation to the Disclosing Party with respect to such
information;
<PAGE> 40
GENERAL TERMS AND CONDITIONS - KS
PAGE 40 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
(d) is independently developed by an employee, agent, or
contractor of the Receiving Party which individual is
not involved in any manner with the provision of
services pursuant to the Agreement and does not have
any direct or indirect access to the Proprietary
Information;
(e) is disclosed to a third person by the Disclosing Party
without similar restrictions on such third person's
rights;
(f) is approved for release by written authorization of the
Disclosing Party;
(g) is required to be made public by the Receiving Party
pursuant to applicable law or regulation provided that
the Receiving party shall provide the Disclosing Party
with written notice of such requirement as soon as
possible and prior to such disclosure. The Disclosing
Party may then either seek appropriate protective
relief from all or part of such requirement or, if it
fails to successfully do so, it shall be deemed to
have waived the Receiving Party's compliance with
Section 30.6 with respect to all or part of such
requirement. 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 obtain.
Notwithstanding the foregoing, SWBT shall be entitled
to disclose confidential information on a confidential
basis to regulatory agencies upon request for
information as to SWBT's activities under the Act.
30.6.5 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.
30.6.6 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 purposed identified in the Act.
30.7 GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Kansas without reference to conflict of law
provisions. In no event shall either Party seek the jurisdiction of the FCC
except pursuant 252 of the Act.
30.8 TAXES.
30.8.1 Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local sales, use, excise,
gross receipts, transaction or similar taxes, fees, or surcharges (hereinafter
"Tax") imposed on or with respect to the services provided by or to such Party,
except for any Tax on either party's corporate existence,
<PAGE> 41
GENERAL TERMS AND CONDITIONS - KS
PAGE 41 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
status, or income. Whenever possible, these amounts shall be billed as a
separate item on the invoice. To the extent a sale is claimed to be for resale
tax exemption, the purchasing party shall furnish the providing party a proper
resale tax exemption certificate as authorized or required by statute or
regulation by the jurisdiction providing said resale tax exemption. Failure to
timely provide said resale tax exemption certificate will result in no exemption
being available to the purchasing Party until such time as the purchasing Party
presents a valid certificate.
30.8.2 With respect to any purchase of services, facilities or
other arrangements, 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.
30.8.3 With respect to any purchase hereunder of services,
facilities or arrangements 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 providing party on an after-tax basis for any costs incurred by the
providing party as a result of actions taken by the applicable taxing authority
to collect the Tax from the providing party due to the failure of the purchasing
party to pay or collect and remit such tax to such authority.
30.8.4 If the providing party fails 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.
30.8.5 If the purchasing party fails to impose and/or collect
any Tax from end users as required herein, then, as between the providing party
and the purchasing party, the purchasing party shall remain liable for such
uncollected Tax and any interest and penalty assessed thereon with respect to
the uncollected Tax by the applicable taxing authority. With respect to any Tax
that the purchasing party has agreed to pay or impose on and/or collect from end
users, the purchasing party agrees to indemnify and hold harmless the providing
party on an after-tax basis for any costs incurred by the providing party as a
result of actions taken by the applicable taxing authority to collect the Tax
from the providing Party due to the failure of the purchasing party to pay or
collect and remit such Tax to such authority.
30.9 NON-ASSIGNMENT. Each Party covenants that, if it sells or
otherwise transfers to a third party its Telephone Exchange and Exchange Access
network facilities within any territory
<PAGE> 42
GENERAL TERMS AND CONDITIONS - KS
PAGE 42 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
within which SWBT is an Incumbent Local Exchange Carrier as of the date of this
Agreement (the SWBT Territory), or any portion thereof, to a third party, it
will require as a condition of such transfer that the transferee agree to be
bound by this Agreement with respect to services provided over the transferred
facilities. Except as provided in this paragraph, neither Party may assign or
transfer (whether by operation of law or otherwise) this Agreement (or any
rights or obligations hereunder) to a third party without the prior written
consent of the other Party; provided that each Party may assign this Agreement
to a corporate Affiliate or an entity under its common control or an entity
acquiring all or substantially all of its assets or equity by providing prompt
written notice to the other Party of such assignment or transfer. Provided
however, any costs associated with updating CLEC's accounts in SWBT's systems to
accept the identity or name of the new entity shall be paid by CLEC prior to
when such assignment shall be effective. Any attempted assignment or transfer
that is not permitted is void ab initio. Without limiting the generality of the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the Parties' respective successors and assigns.
30.10 NON-WAIVER. 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.
30.11 AUDITS. Each Party to this Agreement will be responsible for the
accuracy and quality of its data as submitted to the respective Parties
involved.
30.11.1 Upon reasonable written notice and at its own expense,
each Party or its authorized representative (providing such authorized
representative does not have a conflict of interest related to other matters
before one of the Parties) shall have the right to conduct an audit of the other
Party to give assurances of compliance with the provisions of this Agreement;
provided, that neither Party may request more than two (2) such audits within
any twelve (12) month period. This includes on-site audits at the other Party's
or the Party's vendor locations. Each Party, whether or not in connection with
an audit, shall maintain reasonable records for a minimum of twenty-four (24)
months and provide the other Party with reasonable access to such information as
is necessary to determine amounts receivable or payable under this Agreement.
Each Party's right to access information for audit purposes is limited to data
not in excess of twenty-four (24) months in age.
30.12 DISPUTED AMOUNTS. If any portion of an amount due to a Party (the
"Billing Party") under this Agreement is subject to a bona fide dispute between
the Parties, the Party billed (the "Billed Party") shall within sixty (60) days
of its receipt of the invoice containing such disputed amount give notice to the
Billing Party of the amounts it disputes ("Disputed Amounts") and include in
such notice the specific details and reasons for disputing each item. The Billed
Party shall pay when due: (i) all undisputed amounts to the Billing Party; and
(ii) all Disputed Amounts to Billing Party. Any amounts not paid when due shall
accrue interest from the date such amounts were due at the lesser of: (i) one
and one-half percent (1-1/2%) interest per month; or (ii) the highest rate of
interest that may be charged under applicable law. If the Billed Party prevails
with regard to any of the amount disputed, it shall be entitled to interest on
such amount
<PAGE> 43
GENERAL TERMS AND CONDITIONS - KS
PAGE 43 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
from date of payment at the lesser of (i) one and one-half percent (1-1/2%) per
month; or (ii) the highest rate of interest that may be charged under applicable
law.
30.13 DISPUTE RESOLUTION.
30.13.1 Finality of Disputes
30.13.1.1 Except as otherwise specifically provided
for 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.
30.13.2 Alternative to Litigation
30.13.2.1 The Parties desire to resolve disputes
arising out of this Agreement without litigation.
Accordingly, the Parties agree to use the following
Dispute Resolution procedure with respect to any
controversy or claim arising out of or relating to
this Agreement or its breach.
30.13.3 Commencing Dispute Resolution
30.13.3.1 Dispute Resolution shall commence upon the
sending from one Party to the other 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.
30.13.4 Informal Resolution of Disputes
30.13.4.1 When such written notice has been given, as
required by Section 30.13.3.1, 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, 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
<PAGE> 44
GENERAL TERMS AND CONDITIONS - KS
PAGE 44 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
30.13.5 Formal Dispute Resolution
30.13.5.1 If the Parties are unable to resolve the
dispute through the informal procedure described
above in Section 30.13.4, then either Party may invoke
the following formal Dispute Resolution procedures.
Unless agreed upon by the Parties, formal dispute
resolution procedures described below, including
arbitration or other procedures as appropriate, may
be invoked not earlier than sixty (60) days after the
date of the letter initiating dispute resolution under
Section 30.13.3.1.
30.13.5.2 Claims Subject to Mandatory Arbitration.
The following claims, if not settled through informal
dispute resolution, will be subject to mandatory
arbitration pursuant to Section 30.13.6 below:
30.13.5.2.1 All unresolved billing disputes involving
one (1) percent or less of the amounts charged to
CLEC by SWBT under this Agreement during the Contract
Year in which the dispute arises. During the first
Contract Year the Parties will annualize the initial
months up to one year.
30.13.5.2.2 All other claims involving one (1)
percent or less of the amounts charged to CLEC by
SWBT under this Agreement during the Contract Year in
which the matter in dispute arises, whether measured
by the disputing Party in terms of actual amounts
owed or owing, or as amounts representing its
business or other risks or obligations relating to
the matter in dispute. During the first Contract Year
the Parties will annualize the initial months up to
one year.
30.13.5.3 Claims Subject to Elective Arbitration. The
following claims will be subject to arbitration
pursuant to Section 30.13.6 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.
30.13.5.3.1 All unresolved billing disputes involving
more than one (1) percent of the amounts charged to
CLEC by SWBT under this Agreement during the Contract
Year in which the matter in dispute arises, whether
measured by the disputing Party in terms of actual
amounts owed or owning, or as amounts representing
its business or other risks or obligation relating to
the matter in dispute. During the first Contract Year
the Parties will annualize the initial months up to
one year.
<PAGE> 45
GENERAL TERMS AND CONDITIONS - KS
PAGE 45 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
30.13.5.3.2 All other claims involving more than one
(1) percent of the amounts charged to CLEC by SWBT
under this Agreement during the Contract Year in
which the matter in dispute arises, whether measured
by the disputing Party in terms of actual amounts
owed or owing, or as amounts representing its
business or other risks or obligations relating to
the matter in dispute. During the first Contract Year
the Parties will annualize the initial months up to
one year.
30.13.5.4 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.
30.13.5.4.1 Actions seeking a temporary restraining
order or an injunction related to the purposes of
this Agreement.
30.13.5.4.2 Actions to compel compliance with the
Dispute Resolution process.
30.13.5.4.3 All claims arising under federal or state
statute(s), including, but not limited to, antitrust
claims.
30.13.6 Arbitration
30.13.6.1 Disputes subject to mandatory or elective
arbitration under the provisions of this
Agreement will be submitted to a single
arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association or
pursuant to such other provider of arbitration
services or rules as the Parties may agree. Each
arbitration will be held in Dallas, Texas, unless
the parties agree otherwise. The arbitration
hearing will be requested to commence within
sixty (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 thirty (30)
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
the Agreement. The arbitrator shall be
knowledgeable of telecommunications issues. The
times specified in
<PAGE> 46
GENERAL TERMS AND CONDITIONS - KS
PAGE 46 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
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.
30.13.7 Billing Disputes
30.13.7.1 The following provisions apply specifically
to billing disputes.
30.13.7.1.1 The Parties agree that 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 the applicable provisions of 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 the
applicable provisions of this Agreement.
30.13.7.1.2 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 Section 30.13--Dispute
Resolution.
30.13.7.1.3 Each Party agrees to notify the
other Party of a billing dispute and may
invoke the informal dispute resolution
process described in Section 30.13.2. The
parties will endeavor to resolve the dispute
within sixty (60) calendar days of the Bill
Date on which such disputed charges appear,
or, if the charges have been subject to the
bill closure process described in Section
30.13.5.1, above, within sixty (60) calendar
days of the closure of the billing period
covered by such bill closure process.
30.13.8 No Conflict
30.13.8.1 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.
<PAGE> 47
GENERAL TERMS AND CONDITIONS - KS
PAGE 47 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
30.14 NOTICES. Any notice to a Party required or permitted under this
Agreement shall be in writing and shall be deemed to have been received on the
date of service if served personally; on the date receipt is acknowledged in
writing by the recipient if delivered by regular mail; or on the date stated on
the receipt if delivered by certified or registered mail or by a courier service
that obtains a written receipt. Notice may also be provided by facsimile, which
shall be effective on the next Business Day following the date of transmission
as reflected in the facsimile confirmation sheet. "Business Day" shall mean
Monday through Friday, SWBT/CLEC holidays excepted. Any notice shall be
delivered using one of the alternatives mentioned in this section and shall be
directed to the applicable address indicated below or such address as the Party
to be notified has designated by giving notice in compliance with this section,
except that notices to a Party's twenty-four (24) hour contact number shall be
by telephone and/or facsimile and shall be deemed to have been received on the
date transmitted.
--------------------------------------------------------------------------------
NOTICE CONTACT CLEC CONTACT SWBT CONTACT
--------------------------------------------------------------------------------
NAME/TITLE Greg Lawhon Account Manager
--------------------------------------------------------------------------------
STREET ADDRESS 1004 Baltimore Ave., Four Bell Plaza,
Suite 900 7th Floor
311 S. Akard St.
--------------------------------------------------------------------------------
CITY, STATE, ZIP CODE Kansas City, MO 64105 Dallas, TX 75202-5398
--------------------------------------------------------------------------------
TELEPHONE NUMBER 816 842-7560 X 225 214 464-5969
--------------------------------------------------------------------------------
FAX NUMBER 816 842-7507 214 464-1486
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
24-HOUR NETWORK CLEC CONTACT SWBT CONTACT
MGMT CONTACT
--------------------------------------------------------------------------------
NAME/TITLE NOC Mgr. NSMC Control
--------------------------------------------------------------------------------
TELEPHONE NUMBER 1 800-813-4653 1-800-792-2662
--------------------------------------------------------------------------------
FAX NUMBER 816 221-5025 972 301-6702
--------------------------------------------------------------------------------
30.15 PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS.
30.15.1 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
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.
30.15.2 Nothing in this Agreement shall grant, suggest, or
imply any authority for one Party to use the name, trademarks, service marks, or
trade names of the other for commercial purposes without prior written approval.
<PAGE> 48
GENERAL TERMS AND CONDITIONS - KS
PAGE 48 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
30.16 SECTION 252(I) OBLIGATIONS. If SWBT enters into an agreement with
another CLEC in Kansas (the "Other Agreement") approved by the Kansas Commission
or FCC pursuant to Section 252 of the Act (regardless of whether the approved
agreement was negotiated or arbitrated), SWBT will make available to CLEC the
Other Agreement in its entirety. SWBT will have no obligation to offer any part
of the Other Agreement separately from the whole, nor to offer the Other
Agreement (even in its entirety) beyond the termination date of the Other
Agreement.
30.17 JOINT WORK PRODUCT. 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.
30.18 INTERVENING LAW. 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 State Corporation Commission of the State of
Kansas. If the actions of Kansas 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, the affected provision shall be invalidated, modified, or stayed,
consistent with the action of the legislative body, court, or regulatory agency.
In such event, the Parties shall expend diligent efforts to arrive at an
agreement respecting the 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.
30.19 NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY. This
Agreement is for the sole benefit of the Parties and their permitted assigns,
and nothing herein express or implied shall create or be construed to create
any third-party beneficiary rights hereunder. 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.
30.20 NO LICENSE. 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.
30.21 SURVIVAL. 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.
<PAGE> 49
GENERAL TERMS AND CONDITIONS - KS
PAGE 49 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
30.22 SCOPE OF AGREEMENT. This Agreement is intended to describe and
enable specific Interconnection and compensation arrangements between the
Parties. This Agreement does not obligate either Party to provide arrangements
not specifically provided herein.
30.23 ENTIRE AGREEMENT. The terms contained in this Agreement and any
Schedules, Exhibits, Appendices, tariffs and other documents or instruments
referred to herein, which are incorporated into this Agreement by this
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. 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. This Agreement
may only be modified by a writing signed by an officer of each Party.
30.24 PERFORMANCE MEASUREMENTS. Pursuant to Appendix Performance
Measurements, which is attached hereto and made a part hereof SWBT will pay
liquidated damages, as negotiated, in the event of a Specified Performance
Breach as defined in Appendix Performance Measurements.
30.25 REMEDIES. Liquidated Damages shall be the sole remedy of CLEC if
SWBT fails to meet Specified Performance Criteria set forth in the terms and
conditions of Appendix Performance Measurements.
<PAGE> 50
GENERAL TERMS AND CONDITIONS - KS
PAGE 50 OF 50
SWBT/BIRCH TELECOM OF KANSAS, INC.
100198
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of this 12th day of January, 1999.
BIRCH TELECOM OF KANSAS, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
AECN/OCN # 8856
Signature: /s/ Rick Tidwell Signature: /s/ Larry B. Cooper
------------------------- --------------------------
Name: Rick Tidwell Name: Larry B. Cooper
------------------------------ -------------------------------
(Print or Type) (Print or Type)
Title: Vice President Title: President-Industry Markets
---------------------------- ------------------------------