Interconnection Agreement-Kansas - Southwestern Bell Telephone Co. and Birch Telecom of Kansas inc.
INTERCONNECTION AGREEMENT-KANSAS
between
Southwestern Bell Telephone Company
and
BIRCH TELECOM OF KANSAS, Inc.
<PAGE>
INTERCONNECTION AGREEMENT-KANSAS
between
Southwestern Bell Telephone Company
and
Birch Telecom of Kansas, Inc.
<PAGE>
TABLE OF CONTENTS
INTERCONNECTION AGREEMENT-KANSAS
BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
BIRCH TELECOM OF KANSAS, INC.
1. INTRODUCTION..........................................................1
2. EFFECTIVE DATE........................................................2
3. INTERVENING LAW.......................................................2
4. TERM OF AGREEMENT.....................................................3
5. ASSIGNMENT............................................................4
6. CONFIDENTIALITY AND PROPRIETARY INFORMATION...........................4
7. LIABILITY AND INDEMNITY...............................................6
8. PAYMENT OF RATES AND CHARGES.........................................12
9. DISPUTE RESOLUTION...................................................12
10. TERMINATION OF SERVICE TO CLEC.......................................15
11. NOTICES..............................................................16
12. TAXES................................................................17
13. FORCE MAJEURE........................................................18
14. PUBLICITY............................................................19
15. NETWORK MAINTENANCE AND MANAGEMENT...................................19
16. LAW ENFORCEMENT AND CIVIL PROCESS....................................20
17. CHANGES IN SUBSCRIBER CARRIER SELECTION..............................20
18. AMENDMENTS OR WAIVERS................................................21
19. AUTHORITY............................................................22
20. BINDING EFFECT.......................................................22
21. CONSENT..............................................................22
22. EXPENSES.............................................................22
23. HEADINGS.............................................................22
24. RELATIONSHIP OF PARTIES..............................................23
25. CONFLICT OF INTEREST.................................................23
26. MULTIPLE COUNTERPARTS................................................23
27. THIRD PARTY BENEFICIARIES............................................23
28. REGULATORY APPROVAL..................................................23
29. TRADEMARKS AND TRADE NAMES...........................................23
30. REGULATORY AUTHORITY.................................................24
31. VERIFICATION REVIEWS.................................................24
32. COMPLETE TERMS.......................................................26
33. COOPERATION ON PREVENTING END USER FRAUD.............................26
34. NOTICE OF NETWORK CHANGES............................................26
35. GOOD FAITH PERFORMANCE...............................................27
36. RESPONSIBILITY OF EACH PARTY.........................................27
37. TRANSMISSION OF TRAFFIC TO THIRD PARTIES.............................27
38. GOVERNMENTAL COMPLIANCE..............................................27
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39. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION.......................28
40. SUBCONTRACTING.......................................................30
41. REFERENCED DOCUMENTS.................................................30
42. SEVERABILITY.........................................................30
43. SURVIVAL OF OBLIGATIONS..............................................31
44. GOVERNING LAW........................................................31
45. PERFORMANCE CRITERIA.................................................31
46 OTHER OBLIGATIONS OF CLEC............................................31
47. DIALING PARITY; LOCAL NUMBER PORTABILITY.............................31
48. BRANDING.............................................................32
49. CUSTOMER INQUIRIES...................................................32
50. DISCLAIMER OF WARRANTIES.............................................32
51. NO WAIVER............................................................32
52. EFFECT OF OTHER AGREEMENTS...........................................32
53. DEFINITIONS..........................................................33
54. RESALE...............................................................33
55. UNBUNDLED NETWORK ELEMENTS...........................................33
56. ORDERING AND PROVISIONING, MAINTENANCE, CONNECTIVITY BILLING
AND REORDERING, AND PROVISION OF CUSTOMER USAGE DATA.................33
57. NETWORK INTERCONNECTION ARCHITECTURE.................................34
58. COMPENSATION FOR DELIVERY OF TRAFFIC.................................34
59. ANCILLARY FUNCTIONS..................................................34
60. RETENTION OF APPELLATE RIGHTS........................................34
61. INSURANCE............................................................34
62. INTENTIONALLY LEFT BLANK.............................................34
63. OTHER REQUIREMENT AND ATTACHMENTS....................................35
ATTACHMENTS..........................................................35
RESALE
Attachment 1: Resale
Appendix Services/Pricing
Exhibit A: SWBT's Telecommunications Services Available
for Resale
Exhibit B: SWBT's Other Services Available for Resale
Appendix Customized Routing-Resale
Appendix DA-Resale
Appendix OS-Resale
Appendix White Pages (WP)-Resale
Attachment 2: Ordering and Provisioning-Resale
Attachment 3: Maintenance-Resale
Attachment 4: Connectivity Billing-Resale
Attachment 5: Provision of Customer Usage Data-Resale
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UNBUNDLED NETWORK ELEMENTS
Attachment 6: Unbundled Network Elements (UNE)
Appendix Pricing-UNE
Appendix Pricing-UNE Schedule of Prices
Attachment 7: Ordering and Provisioning-UNE
Attachment 8: Maintenance-UNE
Attachment 9: Billing-Other
Attachment 10: Provision of Customer Usage Data-UNE
NETWORK INTERCONNECTION ARCHITECTURE AND COMPENSATION
Attachment 11: Network Interconnection Architecture
Appendix Interconnection Trunking Requirement (ITR)
Appendix Network Interconnection Methods (NIM)
Appendix SS7 Interconnection
Attachment 12: Compensation
Appendix Cellular
Appendix FGA
ANCILLARY FUNCTIONS
Attachment 13: Ancillary Functions
Appendix Collocation
Appendix Poles, Conduit, ROW
OTHER REQUIREMENTS
Attachment 14: Interim Number Portability
Appendix Location Routing Number-Permanent Number Portability
Attachment 15: E911
Attachment 16: Network Security and Law Enforcement
Attachment 17: Performance Measurements
Attachment 18: Mutual Exchange of Directory Listing Information
Attachment 19: White Pages-Other (WP-O)
Attachment 20: Clearinghouse
Attachment 21: Numbering
Attachment 22: DA-Facilities Based
Attachment 23: OS-Facilities Based
Attachment 24: Recording-Facilities Based
Attachment 25: DSL
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INTERCONNECTION AGREEMENT - KANSAS
This Interconnection Agreement - Kansas (Agreement) is between Birch
Telecom of Kansas, Inc. (CLEC) a Delaware Corporation, having an office at 1004
Baltimore Avenue, Suite 900, Kansas City, Missouri 64105, and Southwestern Bell
Telephone Company (SWBT), a Missouri corporation, having an office at 1010 Pine
Street, St. Louis, Missouri 63101, (collectively the Parties).
WHEREAS, pursuant to Section 252(i) of the Federal Telecommunications
Act of 1996, CLEC and SWBT have entered into an agreement on the same terms and
conditions contained in the SWBT/AT&T Communications of the Southwest, Inc.
Agreement for the State of Kansas ("the underlying Agreement.").
WHEREAS, pursuant to the Telecommunications Act of 1996 (the Act), the
Parties wish to establish terms for the resale of SWBT services and for the
provision by SWBT of Interconnection, unbundled Network Elements, and Ancillary
Functions as designated in the Attachments hereto.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of this Agreement CLEC and SWBT hereby agree as follows:
1.0 INTRODUCTION
1.1 This Agreement sets forth the terms, conditions and prices under which
SWBT agrees to provide (a) services for resale (hereinafter referred to
as Resale services), (b) unbundled Network Elements, or combinations of
such Network Elements (Combinations), ( c ) Ancillary Functions and (d)
Interconnection to CLEC This Agreement also sets forth the terms and
conditions for the interconnection of Birch Telecom of Kansas Inc.'s
network to SWBT's network and reciprocal compensation for the transport
and termination of telecommunications.
1.2 The Network Elements, Combinations or Resale services provided pursuant
to this Agreement may be connected in any lawful manner to other
Network Elements, Combinations or Resale services provided by SWBT or
to any network components provided by CLEC itself or by any other
vendor. Subject to the requirements of this Agreement, CLEC may at any
time add, delete, relocate or modify the Resale services, Network
Elements or Combinations purchased hereunder.
1.3 During the term of this Agreement, SWBT will not discontinue, as to
CLEC, any Network Element, Combination, or Ancillary Functions offered
to CLEC hereunder. During the term of this Agreement, SWBT will not
discontinue any Resale services or features offered to CLEC hereunder
except as provided in Attachment 1: Resale hereto
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and subject to the provisions of Section 30.2 of the General Terms and
Conditions of this Agreement. This Section is not intended to impair
SWBT's ability to make changes in its Network, so long as such changes
are consistent with the Act and do not result in the discontinuance of
the offerings of Network Elements, Combinations, or Ancillary
Functions made by SWBT to CLEC as set forth in and during the term of
this Agreement.
1.4 SWBT may fulfill the requirements imposed upon it by this Agreement by
itself or may cause its Affiliates to take such actions to fulfill the
responsibilities.
1.5 This Agreement includes and incorporates herein the Attachments listed
in Section 62 of this Agreement, and all accompanying Appendices,
Addenda and Exhibits.
1.6 Unless otherwise provided in the Agreement, SWBT will perform all of
its obligations concerning its offering of Resale services and
unbundled Network Elements under this Agreement throughout the entire
service area where SWBT is the incumbent local exchange carrier;
provided, that SWBT's obligations to provide Ancillary Functions or to
meet other requirements of the Act covered by this Agreement are not
necessarily limited to such service areas.
1.7 This Agreement incorporates a number of interconnection arrangements,
UNE arrangements, and other provisions that were not voluntarily
negotiated by SWBT, but instead resulted from determinations made in
arbitrations under section 252 of the Act or from other requirements of
regulatory agencies or state law. Such arrangements and provisions of
this Agreement shall not be available to other parties or beyond the
scope of this contract, except as may be required by law.
2.0 EFFECTIVE DATE
2.1 This Agreement becomes effective (1) when executed by each Party and
approved by the State Commission; or (2) by operation of law
pursuant to the Order of the State Commission, whichever is earlier.
3.0 INTERVENING LAW
3.1 This Agreement is entered into as a result of both private negotiation
between the Parties and arbitration by the State Commission, acting
pursuant to FTA96. 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 required by the
Arbitration Award approved by the State Commission, the affected
provision will be invalidated, modified, or stayed as required by the
legislative body, court, or regulatory agency. In such event, the
Parties will expend diligent efforts to arrive at an agreement
respecting the modifications to the Agreement required. If negotiations
fail, disputes between the Parties concerning the interpretation of the
actions required or provisions affected by such governmental actions
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will be submitted to the Kansas Corporation Commission for resolution,
pursuant to FTA96, Sec. 252(b), (c) and (d), provided that either party
may request expedited resolution by the Kansas Corporation Commission
with both parties retaining all rights of appeal.
3.2 In the event a court or regulatory agency of competent jurisdiction
should determine that modifications of this Agreement are required to
bring the services being provided hereunder into compliance with the
Act, the affected Party will promptly give the other Party written
notice of the modifications deemed required. Upon delivery of such
notice, the Parties will expend diligent efforts to arrive at an
agreement respecting such modifications required, and if the Parties
are unable to arrive at such agreement within sixty (60) days after
such notice, either Party may invoke the Dispute Resolution process set
forth in Section 9.4.2 of this Agreement.
3.3 Without limiting the foregoing, the Parties further agree that, should
the United States Court of Appeals for the Eighth Circuit issue a
decision on remand from the Supreme Court's decision in IOWA UTILITIES
BOARD V. FCC, 142 L.ED. 2d 134 (U.S. 1999), that an ILEC cannot be
required under FTA96 to combine network elements for a CLEC that are
not already combined in the ILEC's network, then on the date such
decision becomes final and not subject to further judicial review,
including any subsequent review of such decision by the Supreme Court,
SWBT shall no longer be required to combine network elements on behalf
of CLEC that are not already combined in SWBT's network,
notwithstanding anything in this Agreement to the contrary.
4.0 TERM OF AGREEMENT
4.1 This Agreement will become effective as of the Effective Date stated
above, and will expire on October 29, 2001 plus two one year
extensions, unless written Notice of Non Renewal and Request for
Negotiation (Non Renewal Notice) is provided by either Party in
accordance with the provisions of this Section. Any such Non Renewal
Notice must be provided not later than 180 days before the day this
Agreement would otherwise renew for an additional year. The noticing
Party will delineate the items desired to be negotiated. Not later than
30 days from receipt of said notice, the receiving Party will notify
the sending Party of additional items desired to be negotiated, if any.
Not later than 135 days from the receipt of the Non Renewal Notice,
both parties will commence negotiations.
4.2 The same terms, conditions, and prices will continue in effect, on a
month-to-month basis as were in effect at the end of the latest term,
or renewal, so long as negotiations are continuing without impasse and
then until resolution pursuant to this Section. The Parties agree to
resolve any impasse by submission of the disputed matters to the State
Commission for arbitration. Should the State Commission decline
jurisdiction, the Parties will resort to a commercial provider of
arbitration services.
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4.3 Upon termination of this Agreement, CLEC's liability will be limited to
payment of the amounts due for Network Elements, Combinations,
Ancillary Functions and Resale Services provided up to and including
the date of termination and thereafter as reasonably requested by CLEC
to prevent service interruption, but not to exceed one (1) year. The
Network Elements, Combinations, Ancillary Functions and Resale services
provided hereunder are vital to CLEC and must be continued without
interruption. When CLEC provides or retains another vendor to provide
such comparable Network Elements, Combinations, Ancillary Functions or
Resale services, SWBT and CLEC agree to co-operate in an orderly and
efficient transition to CLEC or another vendor. SWBT and CLEC further
agree to coordinate the orderly transition to CLEC or another vendor
such that the level and quality of the Network Elements, Combinations,
Ancillary Functions and Resale Services is not degraded and each Party
will exercise its best efforts to effect an orderly and efficient
transition.
5.0 ASSIGNMENT
5.1 Neither Party hereto may assign or otherwise transfer its rights or
obligations under this Agreement, except with the prior written consent
of the other Party hereto, which consent will not be unreasonably
withheld; provided, that SWBT may assign its rights and delegate its
benefits and delegate its duties and obligations under this Agreement
without the consent of CLEC to a 100 per cent owned affiliate of SWBT,
provided the performance of any such assignee is guaranteed by the
assignor. Nothing in this Section is intended to impair the right of
either Party to utilize subcontractors.
5.2 Each Party will notify the other in writing not less than 60 days in
advance of anticipated assignment.
6.0 CONFIDENTIALITY AND PROPRIETARY INFORMATION.
6.1 For the purposes of this Agreement, "Confidential Information" means
confidential or proprietary technical or business information given by
the Discloser to the Recipient. All information which is disclosed by
one party to the other in connection with this Agreement, during
negotiations (also see the Confidentiality Agreement between the
Parties dated April 27, 2000) and the term of this Agreement, will
automatically be deemed proprietary to the Discloser and subject to
this Agreement, unless otherwise confirmed in writing by the Discloser.
In addition, by way of example and not limitation, all orders for
Resale Services, Network Elements or Combinations placed by CLEC
pursuant to this Agreement, and information that would constitute
Customer Proprietary Network Information of CLEC's customers pursuant
to the Act and the rules and regulations of the Federal Communications
Commission (FCC), and Recorded Usage Data as described in Attachments 5
and 10 concerning Recorded Usage Data, whether disclosed by CLEC to
SWBT or otherwise acquired by SWBT in the course of the performance of
this Agreement, will be deemed Confidential Information of CLEC for all
purposes under this Agreement.
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6.2 For a period of five (5) years from the receipt of Confidential
Information from the Discloser, except as otherwise specified in this
Agreement, the Recipient agrees (a) to use it only for the purpose of
performing under this Agreement, (b) to hold it in confidence and
disclose it to no one other than its employees having a need to know
for the purpose of performing under this Agreement, and (c) to
safeguard it from unauthorized use or disclosure using at least the
same degree of care with which the Recipient safeguards its own
Confidential Information. If the Recipient wishes to disclose the
Discloser's Confidential Information to a third-party agent or
consultant, such disclosure must be agreed to in writing by the
Discloser, and the agent or consultant must have executed a written
agreement of nondisclosure and nonuse comparable in scope to the terms
of this Section.
6.3 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations under this Agreement.
All such copies will be subject to the same restrictions and
protections as the original and will bear the same copyright and
proprietary rights notices as are contained on the original.
6.4 The Recipient agrees to return all Confidential Information in tangible
form received from the Discloser, including any copies made by the
Recipient within thirty (30) days after a written request is delivered
to the Recipient, or to destroy all such Confidential Information if
directed to do so by Discloser except for Confidential Information that
the Recipient reasonably requires to perform its obligations under this
Agreement. If either Party loses or makes an unauthorized disclosure of
the other Party's Confidential Information, it will notify such other
party immediately and use reasonable efforts to retrieve the lost or
wrongfully disclosed information.
6.5 The Recipient will have no obligation to safeguard Confidential
Information: (a) which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser; (b) after it
becomes publicly known or available through no breach of this Agreement
by the Recipient; (c) after it is rightfully acquired by the Recipient
free of restrictions on its disclosure; or (d) after it is
independently developed by personnel of the Recipient to whom the
Discloser's Confidential Information had not been previously disclosed.
In addition, either Party will have the right to disclose Confidential
Information to any mediator, arbitrator, state, or federal regulatory
body, or a court in the conduct of any mediation, arbitration or
approval of this Agreement, so long as, in the absence of an applicable
protective order, the Discloser has been promptly notified by the
Recipient and so long as the Recipient undertakes all lawful measures
to avoid disclosing such information until Discloser has had reasonable
time to negotiate a protective order with any such mediator,
arbitrator, state or regulatory body or a court, and complies with any
protective order that covers the Confidential Information.
6.6 The Parties acknowledge that an individual end user may simultaneously
seek to become or be a customer of both Parties. Nothing in this
Agreement is intended to limit the
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ability of either Party to use customer specific information lawfully
obtained from end users or sources other than the Disclosing Party.
6.7 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration or termination of this Agreement will
survive such expiration or termination.
6.8 Except as otherwise expressly provided elsewhere in this Agreement, no
license is hereby granted under any patent, trademark, or copyright,
nor is any such license implied solely by virtue of the disclosure of
any Confidential Information.
6.9 Each Party agrees that the Discloser may be irreparably injured by a
disclosure in breach of this Agreement by the Recipient or its
representatives and the Discloser will be entitled to seek equitable
relief, including injunctive relief and specific performance, in the
event of any breach or threatened breach of the confidentiality
provisions of this Agreement. Such remedies will not be deemed to be
the exclusive remedies for a breach of this Agreement, but will be in
addition to all other remedies available at law or in equity.
7.0 LIABILITY AND INDEMNIFICATION
7.1 LIMITATION OF LIABILITIES
7.1.1 The Parties' liability to each other during any Contract Year resulting
from any and all causes, other than as specified below in Sections
7.3.1, 7.3.2, 7.6.2 and 7.6.9, and other than for willful or
intentional misconduct (including gross negligence) will not exceed the
total of any amounts due and owing to CLEC pursuant to Section 45
(Performance Criteria) and the Attachment referenced in that Section,
plus the amounts charged to CLEC by SWBT under this Agreement during
the Contract Year in which such cause accrues or arises. For purposes
of this Section, the first Contract Year commences on the first day
this Agreement becomes effective and each subsequent Contract Year
commences on the day following that anniversary date.
7.1.2 Except 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 or omission 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 omission or that of its
agents, servants, contractors, or others acting in aid or concert with
it.
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7.2 NO CONSEQUENTIAL DAMAGES
7.2.1 NEITHER CLEC NOR SWBT WILL BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, INCIDENTAL CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES
SUFFERED BY SUCH OTHER PARTIES (INCLUDING WITHOUT LIMITATION DAMAGES
FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS, OR LOST PROFITS
SUFFERED BY SUCH OTHER PARTIES), REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT, INCLUDING
WITHOUT LIMITATION NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE,
AND REGARDLESS OF WHETHER THE PARTIES KNEW OF THE POSSIBILITY THAT
SUCH DAMAGES COULD RESULT. EACH PARTY HEREBY RELEASES THE OTHER PARTY
(AND SUCH OTHER PARTY'S SUBSIDIARIES AND AFFILIATES, AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) FROM ANY SUCH
CLAIM. NOTHING CONTAINED IN THIS SECTION WILL LIMIT SWBT'S OR CLEC'S
LIABILITY TO THE OTHER FOR (i) WILLFUL OR INTENTIONAL MISCONDUCT
(INCLUDING GROSS NEGLIGENCE); (ii) BODILY INJURY, DEATH, OR DAMAGE TO
TANGIBLE REAL OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY SWBT
OR CLEC'S NEGLIGENT ACT OR OMISSION OR THAT OF THEIR RESPECTIVE
AGENTS, SUBCONTRACTORS OR EMPLOYEES, NOR WILL ANYTHING CONTAINED IN
THIS SECTION LIMIT THE PARTIES INDEMNIFICATION OBLIGATIONS, AS
SPECIFIED BELOW.
7.3 OBLIGATION TO INDEMNIFY
7.3.1 Each Party will and hereby agrees to defend at the other's request,
indemnify, and hold harmless the other Party and each of its officers,
directors, employees, and agents (each, an Indemnitee) against and in
respect of any loss, debt, liability, damage, obligation, claim,
demand, judgment, or settlement of any nature or kind, known or
unknown, liquidated or unliquidated, including without limitation all
reasonable costs and expenses incurred (legal, account or otherwise)
(collectively, Damages) arising out of, resulting from, or based upon
any pending or threatened claim, action, proceeding or suit by any
third party (a Claim) (i) alleging any omissions, breach of any
representation, warranty, or covenant made by such indemnifying Party
(the Indemnifying Party) in this Agreement, (ii) based upon injuries
or damages to any person or property or the environment arising out of
or in connection with this Agreement that are the result of the
Indemnifying Party's actions, breach of Applicable Law, or the
actions, omissions or status of its employees, agents, and
subcontractors.
7.3.1.1 Intentionally Left Blank.
7.3.2 Each Party will and hereby agrees to defend at the other's request,
indemnify, and hold harmless the other Party and each of its officers,
directors, employees, and agents (each,
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an "Indemnitee") against and in respect of any loss, debt, liability,
damage, obligation, claim, demand, judgment, or settlement of any
nature or kind, known or unknown, liquidated or unliquidated,
including without limitation all reasonable costs and expenses
incurred (legal, account or otherwise) arising out of, resulting from,
or based upon any pending or threatened claim, action, proceeding or
suit by any third party for actual infringement of any patent,
copyright, trademark, service mark, trade name, trade dress, trade
secret or any other intellectual property right now known or later
developed to the extent that such claim or action arises from the
actions of the respective Parties, or failure to act, as required
pursuant to this Agreement or applicable Commission Orders.
7.3.3 SWBT makes no warranties, express or implied, concerning CLEC's (or any
third party's) rights with respect to intellectual property (including
without limitation, patent, copyright and trade secret rights) or
contract rights associated with CLEC's rights to interconnect with
SWBT's network and to Unbundled Network Elements and/or combine SWBT's
network elements (including combining with CLEC's Network Elements)
such interconnection or unbundling and/or combining of Elements
(including combining with components of CLEC's network) in SWBT's
network. Section 7 applies solely to this Agreement. Nothing in this
Section will be deemed to supersede or replace any other agreements, if
any, between the Parties with respect to CLEC's intellectual property
or contract rights.
7.4 OBLIGATION TO DEFEND; NOTICE; COOPERATION
7.4.1 Whenever a Claim will arise for indemnification under this Section,
the relevant Indemnitee, as appropriate, will promptly notify the
Indemnifying party and request the Indemnifying Party to defend the
same. Failure to so notify the Indemnifying Party will not relieve the
Indemnifying Party of any liability that the Indemnifying Party might
have, except to the extent that such failure prejudices the
Indemnifying Party's ability to defend such Claim. The Indemnifying
Party will have the right to defend against such liability or
assertion in which event the Indemnifying Party will give written
notice to the Indemnitee of acceptance of the defense of such Claim
and the identity of counsel selected by the Indemnifying Party. Except
as set forth below, such notice to the relevant Indemnitee will give
the Indemnifying Party full authority to defend, adjust, compromise,
or settle such Claim with respect to which such notice will have been
given, except to the extent that any compromise or settlement might
prejudice the Intellectual Property Rights of the relevant
Indemnities. The Indemnifying Party will consult with the relevant
Indemnitee prior to any compromise or settlement that would affect the
Intellectual Property Rights or other rights of any Indemnitee, and
the relevant Indemnitee will have the right to refuse such compromise
or settlement and, at the refusing Party's or refusing Party's cost,
to take over such defense, provided that in such event the
Indemnifying Party will not be responsible for, nor will it be
obligated to indemnify the relevant Indemnitee against any cost or
liability in excess of such refused compromise or settlement. With
respect to any defense accepted by the Indemnifying Party, the
relevant Indemnitee will be entitled to participate with the
Indemnifying Party in such defense if the Claim requests equitable
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relief or other relief that could affect the rights of the Indemnitee
and also will be entitled to employ separate counsel for such defense
at such Indemnitee's expense. In the event the Indemnifying Party does
not accept the defense of any indemnified Claim as provided above, the
relevant Indemnitee will have the right to employ counsel for such
defense at the expense of the Indemnifying Party. Each Party agrees to
cooperate and to cause its employees and agents to cooperate with the
other Party in the defense of any such Claim.
7.5 OSHA STATEMENT
7.5.1 CLEC, in recognition of SWBT's status as an employer, agrees to abide
by and to undertake the duty of compliance on behalf of SWBT with all
federal, state and local laws, safety and health regulations relating
to CLEC's activities concerning Collocated Space, and to indemnify and
hold SWBT harmless for any judgments, citations, fines, or other
penalties which are assessed against SWBT as the result solely of
CLEC's failure to comply with any of the foregoing. SWBT, in its status
as an employer, will comply with all federal, state and local laws,
safety and health standards and regulations with respect to all other
portions of the Premises, and agrees to indemnify and hold CLEC
harmless for any judgments, citations, fines or other penalties which
are assessed against CLEC as a result solely of SWBT's failure to
comply with any of the foregoing.
7.6 ALLOCATION OF RISKS ASSOCIATED WITH OUTSIDE PLANT OPERATIONS
7.6.1 APPLICATION. Sections 7.6-7.6.12 apply to the allocation of risks
associated with the outside plant operations described in Appendix
Poles. The Liability and Indemnification provisions of Sections
7.1-7.5.1 above shall also apply to such allocation of risks except as
expressly provided to the contrary in this Section 7.6. Further, in the
event of an ambiguity or conflict between the provisions of
Sections7.6.1-7.6.12 and the provisions of Sections 7.1-7.5.1, the
provisions of Sections 7.6.1-7.6.12 shall govern.
7.6.2 WORKPLACE INJURIES. Except as expressly provided in this Agreement to
the contrary, or except as otherwise prohibited by Kansas law, each
party shall indemnify, on request defend, and hold the other party
harmless from any and all suits, claims, demands, losses, damages,
liabilities, fines, penalties, or expenses of every kind and
character, on account of or in connection with any injury, loss, or
damage suffered by any person, which arises out of or in connection
with the personal injury, sickness, disease, or death of any employee
of the indemnifying party (or other person acting on the indemnifying
party's behalf) if such injury, sickness, disease, or death results,
from any occurrence or condition on, within, or in the vicinity of
SWBT's poles, ducts, conduits, and rights-of-way that is the result of
the indemnifying party's actions, breach of Applicable Law, or the
actions, omissions or status of its employees, agents, and
subcontractors; provided, however, that CLEC's indemnification duties
under this section shall arise only if the person injured, sick,
diseased or dead is present at such site in connection with the
performance or anticipated performance of any act required or
permitted to be performed by CLEC or by
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persons acting on CLEC's behalf pursuant to this Agreement.
Indemnities provided by this section shall be subject to the
exclusions set forth in Section 7.6.12.
7.6.3 Intentionally Left Blank
7.6.4 Intentionally left blank.
7.6.4.1 Intentionally left blank.
7.6.5 Intentionally left blank.
7.6.6 ASSERTION OF LIMITATION OF LIABILITY DEFENSES. Each party shall assert
the limitations of liability provisions of any applicable tariff or
contract in any case involving injury, loss, or damage to any customer
of such party for which the other party is not exempt from
indemnification liabilities to the indemnified party under this
Agreement.
7.6.7 Intentionally left blank.
7.6.8 LIABILITY FOR ACTS OF THIRD PARTIES OR ACTS OF GOD. By affording CLEC
access to poles, ducts, conduits, and rights-of-way owned or
controlled by SWBT, SWBT does not warrant, guarantee, or insure the
uninterrupted use of such facilities by CLEC. Except as specifically
provided in Section 7.6.12 of this Agreement, CLEC assumes all risks
of injury, loss, or damage (and the consequences of any such injury,
loss, or damage) to CLEC's facilities attached to SWBT's poles or
placed in SWBT's ducts, conduits, or rights-of-way, and SWBT shall not
be liable to CLEC for any damages to CLEC's facilities other than as
provided in Section 7.6.12. In no event shall SWBT be liable to CLEC
under this Agreement for any injury, loss, or damage resulting from
the acts or omissions of (1) any joint user or any person acting on a
joint user's behalf, (2) any governmental body or governmental
employee, (3) any third-party property owner or persons acting on
behalf of such property owner, or (4) any licensee, invitee,
trespasser, or other person present at the site or in the vicinity of
any SWBT pole, duct, conduit, or right-of-way in any capacity other
than as a SWBT employee or person acting on SWBT's behalf. In no event
shall SWBT be liable to CLEC under this Agreement for injuries,
losses, or damages resulting from acts of God (including but no
limited to storms, floods, fires, and earthquakes), wars, civil
disturbances, espionage or other criminal acts committed by persons or
entities not acting on SWBT's behalf, cable cuts by persons other than
SWBT's employees or persons acting on SWBT's behalf, or other causes
beyond SWBT's control which occur at sites subject to this Agreement.
7.6.9 DAMAGE TO FACILITIES
7.6.9.1 Each party (the "responsible party"), and persons acting on behalf of
the responsible party, shall exercise due care to avoid damaging the
facilities of the other party (the "injured party"). In the event such
damage occurs, the responsible party or persons acting
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on behalf of the responsible party shall immediately report such
damages to the injured party, and the injured party shall promptly
make such arrangements as may be necessary to restore service to its
customers using the facilities affected.
7.6.9.2 The responsible party shall reimburse the injured party for the actual
costs incurred by the injured party for repair of facilities damaged by
the willful misconduct, grossly negligent acts, grossly negligent
omissions, and negligent acts (but not negligent omissions) of
employees of the responsible party or independent contractors acting on
the responsible party's behalf; provided, however, that the injured
party shall be limited to recovery of those costs which cannot be
recovered from the independent contractor causing the damage. The
responsible party shall not be liable to the injured party under this
section until the injured party's claims against the independent
contractor causing the damage have been adjudicated or settled and the
amount of the indemnified party's claim against the indemnifying party
is determinable.
7.6.10 NO LIMITATIONS OF LIABILITY IN CONTRAVENTION OF FEDERAL OR STATE LAW.
Nothing contained in this Agreement shall be construed as exempting
either party from any liability, or limiting such party's liability, in
contravention of federal law or in contravention of the laws of this
State.
7.6.11 CLAIMS AGAINST THIRD PARTIES. Nothing contained in this Agreement shall
be construed as requiring either party to forego any claims that such
party may have against third parties, including but not limited to
contractors, subcontractors, or persons (other than the other party's
employees) acting on the other party's behalf.
7.6.12 INDEMNITIES EXCLUDED. Except as expressly provided above, neither party
(as an "indemnifying party") shall be required to indemnify or defend
the other party (as an "indemnified party") against, or hold the
indemnified party harmless from, any suit, claim, demand, loss, damage,
liability, fine, penalty, or expense except to the extent proximately
caused by or resulting from:
(a) any breach by the indemnified party of any provision of this
Agreement or any breach by the indemnified party of the parties'
interconnection agreement, if any;
(b) the violation of any law by any employee of the indemnified party
or other person acting on the indemnified party's behalf;
(c) willful or intentional misconduct or gross negligence committed
by any employee of the indemnified party or by any other person
acting on the indemnified party's behalf, or
(d) any negligent act or acts committed by any employee of the
indemnified party or other person acting on the indemnified
party's behalf.
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8.0 PAYMENT OF RATES AND CHARGES
8.1 Except as otherwise specifically provided elsewhere in this Agreement,
the Parties will pay all rates and charges due and owing under this
Agreement within thirty (30) days of receipt of an invoice. Except as
otherwise specifically provided in this Agreement interest on overdue
invoices will apply at the six (6) month Commercial Paper Rate
applicable on the first business day of each calendar year.
9.0 DISPUTE RESOLUTION
9.1 FINALITY OF DISPUTES
9.1.1 Except as otherwise specifically provided in this Agreement, no claims
will be brought for disputes arising from this Agreement more than 24
months from the date the occurrence which gives rise to the dispute is
discovered or reasonably should have been discovered with the exercise
of due care and attention.
9.2 ALTERNATIVE TO LITIGATION
9.2.1 The Parties desire to resolve disputes arising out of this Agreement
without litigation. Accordingly, except for action seeking a temporary
restraining order or an injunction related to the purposes of this
Agreement, or suit to compel compliance with this Dispute Resolution
process, the Parties agree to use the following Dispute Resolution
procedure with respect to any controversy or claim arising out of or
relating to this Agreement or its breach.
9.3 INFORMAL RESOLUTION OF DISPUTES
9.3.1 In the case of any dispute and at the written request of a Party, each
Party will appoint a knowledgeable, responsible representative to meet
and negotiate in good faith to resolve any dispute arising under this
Agreement. The location, form, frequency, duration, and conclusion of
these discussions will be left to the discretion of the
representatives. Upon agreement, the representatives may utilize other
alternative 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. Unless otherwise provided herein, or upon the
Parties' agreement, either Party may invoke formal dispute resolution
procedures including arbitration or other procedures as appropriate,
not earlier than sixty (60) days after the date of the letter
initiating dispute resolution under this paragraph.
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9.4 BILLING DISPUTES
9.4.1 The Parties agree that all unresolved billing disputes which involve
amounts which represent 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 will be submitted to binding arbitration pursuant to
the provisions of Section 9.6. During the first Contract Year the
Parties will annualize the initial months up to one year.
9.4.2 The Parties agree that if they are unable to resolve billing disputes
which involve amounts which represent more than one (1) percent of the
amounts charged to CLEC by SWBT under this Agreement during the
Contract Year in which the dispute arises, then either party may
proceed with any remedy available to it pursuant to law, equity or
agency mechanisms; provided, that upon mutual agreement of the Parties
such disputes may also be submitted to binding arbitration pursuant to
Section 9.6. During the first Contract Year the Parties will annualize
the initial months up to one year.
9.4.3 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 Section 8.1 to this Agreement, and that no
other late payment fee or charge applies to overdue invoices. The
Parties further agree that if any billing dispute is resolved in favor
of the disputing Party the disputing Party will receive, by crediting
or otherwise, interest applied to the disputed amount as set forth in
Section 8.1.
9.4.4 To the extent that any other portions of this Agreement provide for a
bill closure process between the parties, or if such a process is
mutually agreed to by the Parties, the procedures involved in such
processes will not be deemed to place a particular billing item in
dispute for purposes of this Section.
9.4.5 Each Party agrees to notify the other Party of a billing dispute and
may invoke the informal dispute resolution process described in Section
9.3. 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 9.4.4, above, within sixty (60) calendar days of
the closure of the billing period covered by such bill closure process.
9.5 OTHER DISPUTES
9.5.1 DISPUTE RESOLUTION PROCEDURE (DRP) 1 - Except as otherwise specifically
set forth in the Agreement, the Parties agree that for all other
disputes which arise under this Agreement, the dispute will be
submitted to binding arbitration under Section 9.6 of this Agreement if
the matter which is in dispute represents one (1) percent or less of
the amounts charged to CLEC by SWBT under this Agreement during the
Contract Year in which the matter which is disputed arises, whether
measured by the disputing Party in terms of actual amounts owed or
owing, or as amounts representing its business or other
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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.
9.5.2 DISPUTE RESOLUTION PROCEDURE (DRP) 2 - Except as otherwise specifically
set forth in the Agreement, for all other disputes involving matters
which represent more than one (1) percent of the amounts charged to
CLEC by SWBT under this Agreement during the Contract Year in which the
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, then
either Party may proceed with any remedy available to it pursuant to
law, equity or agency mechanisms; provided that upon mutual agreement
of the Parties, the dispute may be submitted to binding arbitration
under Section 9.6. During the first Contract Year the Parties will
annualize the initial months up to one year.
9.5.3 DISPUTE RESOLUTION PROCEDURE (DRP-3) - Except as otherwise specifically
set forth in this agreement, for all disputes involving changes
(including additions) to this Agreement under the Telecommunications
Act of 1996, the Parties agree that such disputes will be submitted to
the Kansas Corporation Commission for resolution pursuant to FTA96,
provided that either Party may request expedited resolution by the
Kansas Corporation Commission, with both Parties retaining all rights
to appeal, and provided that both parties reserve the right to dispute
whether such changes are appropriate.
9.5.4 The Parties agree that the Dispute Resolution procedures set forth in
this Agreement are not intended to conflict with applicable
requirements of the Act or the state commission with regard to
procedures for the resolution of disputes arising out of this
Agreement.
9.6 ARBITRATION
9.6.1 Disputes subject to binding 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. The place where each separate arbitration will
be held will alternate between Dallas, Texas, and St. Louis, Missouri.
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 arbitrator has no authority to order punitive
or consequential damages. The times specified in this Section may be
extended or shortened upon mutual agreement of the Parties or by the
arbitrator upon a showing of good cause. Each Party will bear its own
costs of these procedures. The Parties will equally split the fees of
the arbitration and the arbitrator. Judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction.
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10.0 TERMINATION OF SERVICE TO CLEC
10.1 Failure of CLEC to pay charges may be grounds for termination of this
Agreement. If CLEC fails to pay when due, any and all charges billed to
them under this Agreement, (Unpaid Charges), and any portion of such
charges remain unpaid more than fifteen (15) calendar days after the
due date of such Unpaid Charges, SWBT will notify CLEC in writing that
in order to avoid having service disconnected, CLEC must remit all
Unpaid Charges, whether disputed or undisputed, to SWBT within fifteen
(15) calendar days after receipt of said notice. Disputes hereunder
will be resolved in accordance with the Dispute Resolution Procedures
set out in Section 9 of this Agreement.
10.2 If any CLEC charges remain unpaid at the conclusion of the time period
as set forth in Section 10.1 above (30 calendar days from the due date
of such unpaid charges), SWBT will notify CLEC, the appropriate
commission(s) and the end user's IXC(s) of Record in writing, that
unless all charges are paid within fifteen (15) calendar days, CLEC's
service will be disconnected and CLEC's end users may be switched to
SWBT local service. SWBT will also suspend order acceptance at this
time.
10.3 If any CLEC charges remain unpaid or undisputed thirty (30) calendar
days past the due date of the unpaid charges as described in Section
10.2 above, CLEC will, at its sole expense, notify its end users, the
Commission and the end user's of Record that their service may be
disconnected for CLEC failure to pay unpaid charges, and that its end
users must select a new local service provider within fifteen (15)
calendar days. The notice will also advise the end user that SWBT will
assume the end user's account at the end of the fifteen (15) calendar
day period should the end user fail to select a new local service
provider.
10.4 If any CLEC charges remain unpaid or undisputed forty-five (45)
calendar days past the due date, SWBT will disconnect CLEC and transfer
all CLEC's end users who have not selected another local service
provider directly to SWBT's service. These end users will received the
same services provided through CLEC at the time of service. These end
users will receive the same services provided through CLEC at the time
of transfer. SWBT will inform the Commission and the end user's IXC(s)
of Record of the names of all end users transferred through this
process. Applicable service establishment charges for switching end
users from CLEC to SWBT will be assessed to CLEC.
10.5 Within five (5) calendar days of the transfer (50 calendar days past
CLEC's due date), SWBT will notify all affected end users that because
of CLEC's failure to pay, their service is now being provided by SWBT.
SWBT will also notify the end user that they have thirty (30) calendar
days to select a local service provider. If the end user does not
select an LSP within 30 calendar days the customer will remain a SWBT
local customer.
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10.6 SWBT may discontinue service to CLEC upon failure to pay undisputed
charges as provided in this section, and will have no liability to
CLEC in the event of such disconnection.
10.7 After disconnect procedures have begun, SWBT will not accept service
orders from CLEC until all unpaid charges are paid. SWBT will have the
right to require a deposit equal to one month's charges (based on the
highest previous month of service from SWBT) prior to resuming service
to CLEC after disconnect for nonpayment.
10.8 Beyond the specifically set out limitations in this section, nothing
herein will be interpreted to obligate SWBT to continue to provide
service to any such end users or to limit any and all disconnection
rights SWBT may have with regard to such end users.
11.0 NOTICES
11.1 In the event any notices are required to be sent under the terms of
this Agreement, they may be sent by mail and are deemed to have been
given on the date received. Notice may also be effected by personal
delivery or by overnight courier, and will be effective upon receipt.
Notice may also be provided by facsimile, which will be effective on
the next business day following the date of transmission; provided,
however, notices to a Party's 24-hour maintenance contact number will
be by telephone and/or facsimile and will be deemed to have been
received on the date transmitted. The Parties will provide the
appropriate telephone and facsimile numbers to each other. Unless
otherwise specifically provided in this Agreement, notice will be
directed as follows:
11.2 If to CLEC:
Greg Lawhon
Sr. Vice President and General Counsel
Birch Telecom of Kansas, Inc.
1004 Baltimore Avenue, Suite 900
Kansas City, MO 64105
816-842-7507 (FAX); 816-842-7560 x225 (voice contact)
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11.3 If to SWBT:
Executive Director-Industry Markets
Southwestern Bell Telephone Company
Room 640
Four Bell Plaza
Dallas, Texas 75202
214-858-0281 (FAX); 214-464-1068 (voice contact)
Either Party may unilaterally change its designated representative
and/or address, telephone contact number or facsimile number for the
receipt of notices by giving seven (7) days' prior written notice to
the other Party in compliance with this Section. Any notice or other
communication will be deemed given when received.
12.0 TAXES
12.1 With respect to any purchase of service under this Agreement, if any
Federal, state or local government tax, fee, surcharge, or other
tax-like charge (a "Tax") is required or permitted by applicable law,
ordinance or tariff to be collected from a purchasing Party by the
providing Party, then (i) the providing Party will bill, as a
separately stated item, the purchasing Party for such Tax, (ii) the
purchasing Party will timely remit such Tax to the providing Party, and
(iii) the providing Party will remit such collected Tax to the
applicable taxing authority.
12.2 If the providing Party does not collect a Tax because the purchasing
Party asserts that it is not responsible for the tax, or is otherwise
excepted from the obligation which is later determined by formal action
to be wrong then, as between the providing Party and the purchasing
Party, the purchasing Party will be liable for such uncollected Tax and
any interest due and/or penalty assessed on the uncollected Tax by the
applicable taxing authority or governmental entity.
12.3 If either Party is audited by a taxing authority or other governmental
entity the other Party agrees to reasonably cooperate with the Party
being audited in order to respond to any audit inquiries in a proper
and timely manner so that the audit and/or any resulting controversy
may be resolved expeditiously.
12.4 If applicable law excludes or exempts a purchase of services under this
Agreement from a Tax, and if such applicable law also provides an
exemption procedure, such as an exemption certificate requirement,
then, if the purchasing Party complies with such procedure, the
providing Party, subject to Section 12.2, will not collect such Tax
during the effective period of the exemption. Such exemption will be
effective upon receipt of the exemption certificate or affidavit in
accordance with Section 12.7.
12.5 If applicable law excludes or exempts a purchase of services under this
Agreement from a Tax, but does not also provide an exemption procedure,
then the providing Party will not
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collect such Tax if the purchasing Party (i) furnishes the providing
Party with a letter signed by an officer of the purchasing Party
claiming an exemption and identifying the applicable law which allows
such exemption, and (ii) supplies the providing Party with an
indemnification agreement, reasonably acceptable to the providing
Party, which holds the providing Party harmless on an after-tax basis
with respect to forbearing to collect such Tax.
12.6 With respect to any Tax or Tax controversy covered by this Section 12,
the purchasing Party will be entitled to contest, pursuant to
applicable law, and at its own expense, any Tax that it is ultimately
obligated to pay. The purchasing Party will be entitled to the benefit
of any refund or recovery resulting from such a contest. The providing
Party will cooperate in any such contest.
12.7 All notices, affidavits, exemption certificates or other communications
required or permitted to be given by either Party to the other under
this Section 12, will be made in writing and will be delivered by
certified mail, and sent to the addresses stated in Section 11 and to
the following:
To SWBT: Executive Director - Tax
Southwestern Bell - Room 34/L/1
One Bell Center
St. Louis, Missouri 63101
To CLEC: Greg Lawhon
Sr. Vice President and General Counsel
Birch Telecom of Kansas, Inc.
1004 Baltimore Avenue, Suite 900
Kansas City, MO 64105
816-842-7507 (FAX); 816-842-7560 x225 (voice contact)
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
12.7.
Any notice or other communication will be deemed to be given when
received.
13.0 FORCE MAJEURE
Except as otherwise specifically provided in this Agreement, neither
Party will be liable for any delay or failure in performance of any
part of this Agreement caused by a Force Majeure condition, including
acts of the United States of America or any state, territory, or
political subdivision thereof, acts of God or a public enemy, fires,
floods, labor disputes such as strikes and lockouts, freight embargoes,
earthquakes, volcanic actions, wars, civil disturbances, cable cuts, or
other causes beyond the reasonable control of the Party claiming
excusable delay or other failure to perform. Provided, Force Majeure
will
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not include acts of any Governmental Authority relating to
environmental, health, or safety conditions at work locations. If any
Force Majeure condition occurs the Party whose performance fails or is
delayed because of such Force Majeure conditions will give prompt
notice to the other Party, and upon cessation of such Force Majeure
condition, will give like notice and commence performance hereunder as
promptly as reasonably practicable.
14.0 PUBLICITY
14.1 The Parties agree not to use in any advertising or sales promotion,
press releases or other publicity matters, any endorsements, direct or
indirect quotes or pictures implying endorsement by the other Party or
any of its employees without such Party's prior written approval. The
Parties will submit to each other for written approval, prior to
publication, all such publicity endorsement matters that mention or
display the other's name and/or marks or contain language from which a
connection to said name and/or marks may be inferred or implied.
14.2 Neither Party will offer any services using the trademarks, service
marks, trade names, brand names, logos, insignia, symbols or decorative
designs of the other Party or its affiliates without the other Party's
written authorization.
15.0 NETWORK MAINTENANCE AND MANAGEMENT
15.1 The Parties will work cooperatively to implement this Agreement. The
Parties will exchange appropriate information (e.g., maintenance
contact numbers, network information, information required to comply
with law enforcement and other security agencies of the Government,
etc.) to achieve this desired reliability.
15.2 Each Party will provide a 24-hour contact number for Network Traffic
Management issues to the other's surveillance management center. A
facsimile (FAX) number must also be provided to facilitate event
notifications for planned mass calling events. Additionally, both
Parties agree that they will work cooperatively to ensure that all such
events will attempt to be conducted in such a manner as to avoid
disruption or loss of service to other end users. Each party will
maintain the capability of respectively implementing basic protective
controls such as "Cancel To" or "Call Gap."
15.3 Neither Party will use any service provided under this Agreement in a
manner that impairs the quality of service to other carriers or to
either Party's subscribers. Either Party will provide the other Party
notice of said impairment at the earliest practicable time.
16.0 LAW ENFORCEMENT AND CIVIL PROCESS
16.1 INTERCEPT DEVICES
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16.1.1 Local and federal law enforcement agencies periodically request
information or assistance from local telephone service providers. When
either Party receives a request associated with a customer of the other
Party, the receiving Party will refer such request to the appropriate
Party, unless the request directs the receiving Party to attach a pen
register, trap-and-trace or form of intercept on the Party's own
facilities, in which case that Party will comply with any valid
request, to the extent the receiving party is able to do so; if such
compliance requires the assistance of the other Party such assistance
will be provided.
16.2 SUBPOENAS
16.2.1 If a Party receives a subpoena for information concerning an end user
the Party knows to be an end user of the other Party, the receiving
Party will refer the subpoena to the requesting entity with an
indication that the other Party is the responsible company. Provided,
however, if the subpoena requests records for a period of time during
which the receiving Party was the end user's service provider, the
receiving Party will respond to any valid request to the extent the
receiving party is able to do so; if response requires the assistance
of the other party such assistance will be provided.
16.3 LAW ENFORCEMENT EMERGENCIES
16.3.1 If a Party receives a request from a law enforcement agency to
implement at its switch a temporary number change, temporary
disconnect, or one-way denial of outbound calls for an end user of the
other Party, the receiving Party will comply so long as it is a valid
emergency request. Neither Party will be held liable for any claims or
damages arising from compliance with such requests, and the Party
serving the end user agrees to indemnify and hold the other Party
harmless against any and all such claims.
17.0 CHANGES IN SUBSCRIBER CARRIER SELECTION
17.1 With respect to Resale services and unbundled Network Elements provided
to end users, each Party must obtain end user authorization prior to
requesting a change in the end users' provider of local exchange
service (including ordering end user specific Network Elements) and
must retain such authorizations for twelve (12) months. The
authorization must conform with federal rules regarding changes of
presubscribed interexchange carriers until such time as there are
federal or state rules applicable to changes of local exchange service
providers. Thereafter, the authorization must comply with each such
rule. The party submitting the change request assumes responsibility
for applicable charges as specified in Section 258(b) of the
Telecommunications Act of 1996.
17.2 Only an end user can initiate a challenge to a change in its local
exchange service provider. In connection with such challenges each
party will follow procedures which conform with federal rules regarding
challenges to changes of presubscribed
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interexchange carriers, if any, until such time as there are federal
or state rules applicable to challenges to changes of local exchange
service providers. Thereafter, the procedures each Party will follow
concerning challenges to changes of local exchange service providers
will comply with such rule. If an end user notified SWBT or CLEC that
the end user requests local exchange service, the Party receiving such
request shall be free to immediately provide service to such end user.
The party receiving such request shall be free to connect the end user
to any local service provider based upon the local service provider's
request and assurance that proper end user authorization has been
obtained. Either Party shall make authorizations available to the
other Party upon request and at no charge only when such request is
made in order to investigate claims of unauthorized changes involving
CLECs other than SWBT, initiated by an end user.
17.3 When an end user changes or withdraws authorization, each Party will
release customer specific facilities in accordance with the end user
customer's directions, or the directions of the end user's agent.
Further, when an end user abandons the premise, SWBT is free to reclaim
the facilities for use by another customer and is free to issue service
orders required to reclaim such facilities.
17.4 Neither Party shall be obligated by this Agreement to investigate any
allegations of unauthorized changes in local exchange services
(slamming) on behalf of the other Party or a third Party. If either
Party, on behalf of the other Party, agrees to investigate an alleged
incidence of slamming, the requesting party will provide the billed
telephone number and information adequate to allow the other Party to
investigate the incidence, and that Party shall charge the other Party
a mutually agreed investigation fee.
18.0 AMENDMENTS OR WAIVERS
18.1 Except as otherwise provided in this Agreement, no waiver of any
provision of this Agreement and no consent to any default under this
Agreement will be effective unless the same is in writing and signed by
an officer of the Party against whom such waiver or consent is claimed.
In addition, no course of dealing or failure of a Party strictly to
enforce any term, right or condition of this Agreement will be
construed as a waiver of such term, right, or condition. No amendment
of any provision of this Agreement will be effective unless the same
(a) is in a writing that expressly states that it amends this
Agreement, (b) has been signed by a person with authority to bind SWBT
and a person with authority to bind CLEC, and (c) has been filed with
and approved by the State Commission. By entering into this Agreement,
the Parties do not waive any right granted to them pursuant to the Act;
however, the Parties enter into this Agreement without prejudice to any
positions they have taken previously, or may take in the future in any
legislative, regulatory or other public forum addressing any matters,
including matters related to the types of arrangements prescribed by
this Agreement.
Without limiting the general applicability of the foregoing, this
Agreement is without prejudice to any position being taken, or to be
taken, by the Parties in the arbitration
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proceeding before the Commission styled PETITION BY AT&T
COMMUNICATIONS OF THE SOUTHWEST, INC. FOR COMPULSORY ARBITRATION OF
UNRESOLVED ISSUES WITH SOUTHWESTERN BELL TELEPHONE COMPANY KCC Docket
No. 97-AT&T-290-ARB ("the Arbitration Proceeding") and the generic
cost proceeding styled IN THE MATTER OF THE JOINT APPLICATION OF
SPRINT COMMUNICATION COMPANY, L.P., UNITED TELEPHONE COMPANY OF
KANSAS, UNITED TELEPHONE COMPANY OF EASTERN KANSAS, UNITED TELEPHONE
COMPANY OF SOUTH CENTRAL KANSAS, AND UNITED TELEPHONE COMPANY OF
SOUTHEASTERN KANSAS FOR THE COMMISSION TO OPEN A GENERIC PROCEEDING ON
SOUTHWESTERN BELL TELEPHONE COMPANY'S RATES FOR INTERCONNECTION,
UNBUNDLED ELEMENTS, TRANSPORT AND TERMINATION, AND RESALE; KCC Docket
No. 97-SCCC-149-GIT ("Cost Docket"), including any appeals of the
Arbitration Proceeding or Cost Docket.
19.0 AUTHORITY
19.1 Each person whose signature appears below represents and warrants that
he or she has authority to bind the Party on whose behalf he or she
has executed this Agreement.
20.0 BINDING EFFECT
20.1 This Agreement will be binding on and inure to the benefit of the
respective successors and permitted assigns of the Parties.
21.0 CONSENT
21.1 Where consent, approval, or mutual agreement is required of a Party,
it will not be unreasonably withheld or delayed.
22.0 EXPENSES
22.1 Except as specifically set out in this Agreement, each party will be
solely responsible for its own expenses involved in all activities
related to the subject of this Agreement.
23.0 HEADINGS
23.1 The headings in this Agreement are inserted for convenience and
identification only and will not be considered in the interpretation
of this Agreement.
24.0 RELATIONSHIP OF PARTIES
24.1 This Agreement will not establish, be interpreted as establishing, or
be used by either party to establish or to represent their relationship
as any form of agency, partnership or joint venture. Neither Party will
have any authority to bind the other or to act as an agent for the
other unless written authority, separate from this Agreement, is
provided. Nothing in the Agreement will be construed as providing for
the sharing of profits or losses arising
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out of the efforts of either or both of the Parties. Nothing herein
will be construed as making either Party responsible or liable for the
obligations and undertakings of the other Party.
25.0 CONFLICT OF INTEREST
25.1 The Parties represent that no employee or agent of either Party has
been or will be employed, retained, paid a fee, or otherwise received
or will receive any personal compensation or consideration from the
other Party, or any of the other Party's employees or agents in
connection with the arranging or negotiation of this Agreement or
associated documents.
26.0 MULTIPLE COUNTERPARTS
26.1 This Agreement may be executed in multiple counterparts, each of which
will be deemed an original but all of which will together constitute
but one, and the same document.
27.0 THIRD PARTY BENEFICIARIES
27.1 Except as may be specifically set forth in this Agreement, this
Agreement does not provide and will not be construed to provide third
parties with any remedy, claim, liability, reimbursement, cause of
action, or other privilege.
28.0 REGULATORY APPROVAL
28.1 Each Party agrees to cooperate with the other and with any regulatory
agency to obtain regulatory approval. During the term of this
Agreement, each Party agrees to continue to cooperate with each other
and any regulatory agency so that the benefits of this Agreement may be
achieved.
29.0 TRADEMARKS AND TRADE NAMES
29.1 Except as specifically set out in this Agreement, nothing in this
Agreement will grant, suggest, or imply any authority for one Party to
use the name, trademarks, service marks, or trade names of the other
for any purpose whatsoever, absent written consent of the other Party.
30.0 REGULATORY AUTHORITY
30.1 SWBT will be responsible for obtaining and keeping in effect all
Federal Communications Commission, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with the performance of its obligations under this
Agreement. CLEC will be responsible for obtaining and keeping in effect
all Federal Communications Commission, state regulatory commission,
franchise
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authority and other regulatory approvals that may be required in
connection with its offering of services to CLEC Customers
contemplated by this Agreement. CLEC will reasonably cooperate with
SWBT in obtaining and maintaining any required approvals for which
SWBT is responsible, and SWBT will reasonably cooperate with CLEC in
obtaining and maintaining any required approvals for which CLEC is
responsible.
30.2 SWBT will not, of its own volition, file a tariff or make another
similar filing which supersedes this Agreement in whole or in part.
SWBT will make no filings which are inconsistent with this commitment.
This Section is not intended to apply to any SWBT tariffs or filings
which do not affect CLEC's rights or SWBT's obligations to CLEC under
this Agreement. This Section does not impair SWBT's right to file
tariffs nor does it impair SWBT's right to file tariffs proposing new
products and services and changes in the prices, terms and conditions
of existing products and services, including discontinuance or
grandfathering of existing features or services, of any
telecommunications services that SWBT provides or hereafter provides to
CLEC under this Agreement pursuant to the provision of Attachment 1:
Resale, nor does it impair CLEC's right to contest such tariffs before
the Commission.
30.3 In the event that SWBT is required by any governmental authority to
file a tariff or make another similar filing in connection with the
performance of any action that would otherwise be governed by this
Agreement, SWBT will provide CLEC notice of the same.
30.4 If any tariff referred to in Section 30.3 becomes ineffective by
operation of law, through deregulation or otherwise, the terms and
conditions of such tariffs, as of the date on which the tariffs became
ineffective, will be deemed incorporated if not inconsistent with this
Agreement.
31.0 VERIFICATION REVIEWS
31.1 Subject to each Party's reasonable security requirements and except as
may be otherwise specifically provided in this Agreement, either Party
may audit the other Party's books, records and other documents once in
each Contract Year for the purpose of evaluating the accuracy of the
other Party's billing and invoicing. The Parties may employ other
persons or firms for this purpose. Such audit will take place at a time
and place agreed on by the Parties no later than thirty (30) days after
notice thereof.
31.2 Each Party will promptly correct any billing error that is revealed in
an audit, including making refund of any overpayment by the other Party
in the form of a credit on the invoice for the first full billing cycle
after the Parties have agreed upon the accuracy of the audit results.
Any disputes concerning audit results will be resolved pursuant to the
Dispute Resolution procedures described in Section 9 of this Agreement.
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31.3 Each Party will cooperate fully in any such audit, providing reasonable
access to any and all appropriate employees and books, records and
other documents reasonably necessary to assess the accuracy of the
Party's bills.
31.4 Either Party may audit the other Party's books, records and documents
more than once during any Contract Year if the previous audit found
previously uncorrected net variances or errors in invoices in the other
Party's favor with an aggregate value of at least two percent (2%) of
the amounts payable by CLEC for Resale services, Network Elements or
Combinations provided during the period covered by the audit.
31.5 Audits will be at the auditing Party's expense.
31.6 Upon (i) the discovery by either Party of overcharges not previously
reimbursed to the other Party or (ii) the resolution of disputed
audits, the affected Party will promptly reimburse the other Party the
amount of any overpayment times the commercial paper rate applicable on
the last day of the month preceding the month of discovery or
resolution as above. In no event, however, will interest be assessed on
any previously assessed or accrued late payment charges.
31.7 CLEC may require that, at the end of the first year of implementation
of this Agreement, SWBT submit to an audit or examination of services
performed under the interconnection agreement. Subsequent to the first
year of implementation, CLEC may require that audits or examinations be
performed if: (1) CLEC can show cause that it has a commercially
reasonable basis to seek an audit or examination; and (2) the request
for audit or examination specifically defines the particular services
that it seeks to audit or examine. All audits requested by CLEC under
this section shall be conducted at its expense. The dispute resolution
provisions of this Agreement shall be used to resolve disputes arising
concerning requests for audits or examinations, or the results of the
audits or examinations.
31.8 From the Effective Date of this Agreement through April 1, 1998, SWBT
may audit CLEC's operations, books, records, and other documents
related to the development of the percent local usage (PLU) to be used
to measure and settle untransmitted calling party numbers (CPN) in
connection with Attachment 12: Compensation. SWBT will bear the
reasonable expenses associated with this inspection.
31.9 Information obtained or received by CLEC in conducting the inspections
described in Section 31.7 and information obtained or received by
either Party in connection with Sections 31.1 through 31.6 and 31.8
will be subject to the confidentiality provisions of Section 6 of this
Agreement.
32.0 COMPLETE TERMS
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32.1 This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes any prior
agreements, representations, statements, negotiations, understandings,
proposals or undertakings, oral or written, with respect to the subject
matter expressly set forth herein.
32.2 Neither Party will be bound by an amendment, modification or additional
term unless it is reduced to writing signed by an authorized
representative of the Party sought to be bound.
33.0 COOPERATION ON PREVENTING END USER FRAUD
33.1 The Parties agree to cooperate with one another to investigate,
minimize, and take corrective action in cases of fraud. The Parties'
fraud minimization procedures are to be cost-effective and implemented
so as not to unduly burden or harm one Party as compared to the other.
33.2 In cases of suspected fraudulent activity by an end user, at a minimum,
the cooperation referenced in the above paragraph will include
providing to the other Party, upon request, information concerning end
users who terminate services to that Party without paying all
outstanding charges. The Party seeking such information is responsible
for securing the end user's permission to obtain such information.
34.0 NOTICE OF NETWORK CHANGES
SWBT agrees to provide CLEC reasonable notice consistent with
applicable FCC rules of changes in the information necessary for the
transmission and routing of services using SWBT's facilities or
networks, as well as other changes that affect the interoperability of
those respective facilities and networks. This Agreement is not
intended to limit SWBT's ability to upgrade its network through the
incorporation of new equipment, new software or otherwise so long as
such upgrades are not inconsistent with SWBT's obligations to CLEC
under the terms of this Agreement.
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35.0 GOOD FAITH PERFORMANCE
35.1 In the performance of their obligations under this Agreement the
Parties will act in good faith and consistently with the intent of the
Act. Where notice, approval or similar action by a Party is permitted
or required by any provision of this Agreement, (including, without
limitation, the obligation of the parties to further negotiate the
resolution of new or open issues under this Agreement) such action will
not be unreasonably delayed, withheld or conditioned.
36.0 RESPONSIBILITY OF EACH PARTY
36.1 Each Party is an independent contractor, and has and hereby retains the
right to exercise full control of and supervision over its own
performance of its obligations under this Agreement and retains full
control over the employment, direction, compensation and discharge of
its employees assisting in the performance of such obligations. Each
Party will be solely responsible for all matters relating to payment of
such employees, including compliance with social security taxes,
withholding taxes and all other regulations governing such matters.
Each party will be solely responsible for proper handling, storage,
transport and disposal at its own expense of all (i) substances or
materials that it or its contractors or agents bring to, create or
assume control over at Work Locations or, (ii) Waste resulting
therefrom or otherwise generated in connection with its or its
contractors' or agents' activities at the Work Locations. Subject to
the limitations on liability and except as otherwise provided in this
Agreement, each Party will be responsible for (i) its own acts and
performance of all obligations imposed by applicable law in connection
with its activities, legal status and property, real or personal and,
(ii) the acts of its own affiliates, employees, agents and contractors
during the performance of the Party's obligations hereunder.
37.0 TRANSMISSION OF TRAFFIC TO THIRD PARTIES
37.1 CLEC will not send to SWBT local traffic that is destined for the
network of a third party unless CLEC has the authority to exchange
traffic with that third party.
38.0 GOVERNMENTAL COMPLIANCE
38.1 CLEC and SWBT each will comply at its own expense with all applicable
law related to i) its obligations under or activities in connection
with this Agreement; of ii) its activities undertaken at, in connection
with or relating to Work Locations. CLEC and SWBT each agree to
indemnify, defend, (at the other party's request) and save harmless the
other, each of its officers, directors and employees from and against
any losses, damages, claims, demands, suits, liabilities, fines,
penalties, and expenses (including reasonable attorneys' fees) that
arise out of or result from i) its failure or the failure of its
contractors or agents to so comply or ii) any activity, duty or status
of it or its contractors or agents that triggers any legal obligation
to investigate or remediate environmental contamination. SWBT, at
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its own expense, will be solely responsible for obtaining from
governmental authorities, building owners, other carriers, and any
other persons or entities, all rights and privileges (including, but
not limited to, space and power), which are necessary for SWBT to
provide the Network Elements and Resale services pursuant to this
Agreement.
39.0 RESPONSIBILITY FOR ENVIRONMENTAL HAZARDS AND CLAIMS
39.1 DISCLOSURE OF POTENTIAL HAZARDS: When and if CLEC notifies SWBT that
CLEC intends to enter or perform work pursuant to this Agreement in,
on, or within the vicinity of any particular SWBT building, manhole,
pole, duct, conduit, right-of-way, or other facility (hereinafter "Work
Location"), SWBT shall timely notify CLEC of any Environmental Hazard
at that Work Location of which SWBT has actual knowledge, except that
this duty shall not apply to any Environmental Hazard (i) of which CLEC
already has actual knowledge or (ii) was caused solely by CLEC or (iii)
would be obvious and apparent to anyone coming to the Work Location.
For purposes of this Agreement, "Environmental Hazard" shall mean (i)
the presence of petroleum vapors or other gases in hazardous
concentrations in a manhole or other confined space, or conditions
reasonably likely to give rise to such concentrations; (ii) the
presence of electrical cable in a conduit system; (iii)
asbestos-containing materials; (iv) emergency exit routes and warning
systems, if and to the extent owned or operated by SWBT; and (v) any
potential hazard that would not be obvious to an individual entering
the Work Location or detectable using work practices standard in the
industry.
39.2 EVALUATION OF POTENTIAL HAZARDS: Without limiting the foregoing, after
providing prior notice to SWBT, CLEC shall have the right to inspect,
test, or monitor any Work Location for possible Environmental Hazards
as necessary or appropriate to comply with law or to protect its
employees, contractors or others from the possible effects of
Environmental Hazards. CLEC shall be responsible for conducting such
inspections, testing or monitoring in a way that does not unreasonably
interfere with SWBT's business operations after consultation with SWBT,
and shall return SWBT's property to substantially the same condition as
it would have been without such inspections, testing or monitoring.
39.3 MANAGING DISTURBED MATERIALS AND MEDIA: If and to the extent that
CLEC's activity at any Work Location involves the excavation,
extraction, or removal of asbestos or other manmade materials or
contaminated soil, groundwater, or other environmental media, then CLEC
rather than SWBT shall be responsible in the first instance for the
subsequent treatment, disposal, or other management of such materials
and media.
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39.4 INDEMNIFICATION:
39.4.1 Each party shall indemnify, on request defend, and hold harmless the
other party and each of its officers, directors and employees from any
and all suits, claims, demands, losses, damages, liabilities, fines,
penalties, or expenses, of every kind and character (including
reasonable attorneys' fees), on account of or in connection with any
injury, loss, or damage to any person or property, or to the
environment, to the extent any of them arise out of or in connection
with the violation or breach, by any employee of the indemnifying party
or other person acting on the indemnifying party's behalf, of this
Section 39.0 or any federal, state, or local environmental statute,
rule, regulation, ordinance, or other applicable law or provision of
this agreement dealing with hazardous substances or protection of human
health or the environment.
39.4.2 CLEC shall indemnify, on request defend, and hold harmless SWBT and
each of its officers, directors and employees from any and all suits,
claims, demands, losses, damages, liabilities, fines, penalties, or
expenses, of every kind and character (including reasonable attorneys'
fees), on account of or in connection with any injury, loss, or damage
to any person or property, or to the environment, to the extent any of
them arise out of or in connection with (i) the release or discharge,
onto any public or private property, of any hazardous substances,
regardless of the source of such hazardous substances, by any employee
of CLEC, or by any person acting on CLEC's behalf, while at a Work
Location or (ii) the removal or disposal of any hazardous substances
by any employee of CLEC or by any person acting on CLEC's behalf, or
the subsequent storage, processing or other handling of such hazardous
substances by any person or entity, after such substances have thus
been removed from a Work Location or (iii) any environmental
contamination or Environmental Hazard or release of a hazardous
substance caused or created by CLEC or its contractors or agents.
39.4.3 SWBT shall indemnify, on request defend, and hold harmless CLEC and
each of its officers, directors and employees from any and all suits,
claims, demands, losses, damages, liabilities, fines, penalties, or
expenses, of every kind and character (including reasonable attorneys'
fees), asserted by any government agency or other third party on
account of or in connection with any injury, loss, or damage to any
person or property, or to the environment, to the extent any of them
arise out of or in connection with (i) the release or discharge, onto
any public or private property, of any hazardous substances,
regardless of the source of such hazardous substances, by any employee
of SWBT or by any person acting on SWBT's behalf, at a Work Location
or (ii) the removal or disposal of any hazardous substances by any
employee of SWBT or by any person acting on SWBT's behalf, or the
subsequent storage, processing or other handling of such hazardous
substances by any person or entity, after such substances have thus
been removed from a Work Location or (iii) any environmental
contamination or Environmental Hazard or release of a hazardous
substance either (x) existing or occurring at any Work Location on or
before the date of this agreement or (y) caused or created by SWBT or
its contractors or agents.
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39.4.4 In the case of any conflict between this section 39.0 and section 7.6,
the provisions of this section 39.0 shall control. This section 39.4
shall not be subject to 7.6.12.
40.0 SUBCONTRACTING
40.1 If any obligation is performed through a subcontractor, each party will
remain fully responsible for the performance of this Agreement in
accordance with its terms, including any obligations either party
performs through subcontractors, and each party will be solely
responsible for payments due the party's subcontractors. No contract,
subcontract or other Agreement entered into by either Party with any
third party in connection with the provision of Resale services or
Network Elements hereunder will provide for any indemnity, guarantee or
assumption of liability by, or other obligation of, the other Party to
this Agreement with respect to such arrangement, except as consented to
in writing by the other Party. No subcontractor will be deemed a third
party beneficiary for any purposes under this Agreement. Any
subcontractor who gains access to CPNI or Confidential Information
covered by this Agreement will be required by the subcontracting Party
to protect such CPNI or Confidential Information to the same extent the
subcontracting Party is required to protect the same under the terms of
this Agreement.
41.0 REFERENCED DOCUMENTS
41.1 Whenever any provision of this Agreement refers to a technical
reference, technical publication, CLEC Practice, SWBT Practice, any
publication of telecommunications industry administrative or technical
standards, or any other document specifically incorporated into this
Agreement, it will be deemed to be a reference to the most recent
version or edition (including any amendments, supplements, addenda, or
successors) of each document that is in effect, and will include the
most recent version or edition (including any amendments, supplements,
addenda, or successors) of each document incorporated by reference in
such a technical reference, technical publication, CLEC Practice, SWBT
Practice, or publication of industry standards.
42.0 SEVERABILITY
42.1 If any term, condition or provision of this Agreement is held to be
invalid or unenforceable for any reason, such invalidity or
unenforceability will not invalidate the entire Agreement, unless such
construction would be unreasonable. The Agreement will be construed as
if it did not contain the invalid or unenforceable provision or
provisions, and the rights and obligations of each party will be
construed and enforced accordingly; provided, however, that in the
event such invalid or unenforceable provision or provisions are
essential elements of this Agreement and substantially impair the
rights or obligations of either Party, the Parties will promptly
negotiate a replacement provision or provisions.
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If impasse is reached, the Parties will resolve said impasse under the
dispute resolution procedures set forth in Section 9.5.2.
43.0 SURVIVAL OF OBLIGATIONS
43.1 Any liabilities or obligations of a Party for acts or omissions prior
to the cancellation or termination of this Agreement, any obligation of
a Party under the provisions regarding indemnification, Confidential
Information, limitations on liability, and any other provisions of this
Agreement which, by their terms, are contemplated to survive (or to be
performed after) termination of this Agreement, will survive
cancellation or termination thereof.
44.0 GOVERNING LAW
44.1 The validity of this Agreement, the construction and enforcement of its
terms, and the interpretation of the rights and duties of the Parties
will be governed by the laws of the State of Kansas other than as to
conflicts of laws, except insofar as federal law may control any aspect
of this Agreement, in which case federal law will govern such aspect.
The Parties submit to personal jurisdiction in Topeka, Kansas, and
waive any and all objections to a Kansas venue.
45.0 PERFORMANCE CRITERIA
45.1 Specific provisions governing failure to meet Performance Criteria are
contained in Attachment 17: Failure to meet Performance Criteria.
46.0 OTHER OBLIGATIONS OF CLEC
46.1 For the purposes of establishing, provisioning and billing services,
CLEC is required to provide to SWBT its state-specific authorized and
nationally recognized OCN for facilities-based business
(interconnection and/or unbundled network elements) in each SWBT state
and a single separate and distinct OCN for resale services in any SWBT
state. CLEC's name associated with specific resale OCN must be
consistent among SWBT states.
47.0 DIALING PARITY; INTERIM NUMBER PORTABILITY
47.1 SWBT will ensure that all CLEC Customers experience the same dialing
parity as similarly-situated customers of SWBT services, such that, for
all call types: (i) an CLEC Customer is not required to dial any
greater number of digits than a similarly-situated SWBT customer; (ii)
the post-dial delay (time elapsed between the last digit dialed and the
first network response), call completion rate and transmission quality
experienced by a CLEC Customer is at least equal in quality to that
experienced by a similarly-situated SWBT customer; and (iii) the CLEC
Customer may retain its local telephone number.
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SWBT further agrees to provide Interim Number Portability in
accordance with the requirements of the Act. Specific requirements
concerning Interim Number Portability are set forth in Attachment 14:
Interim Number Portability.
48.0 BRANDING
48.1 Specific provisions concerning the branding of services provided to
CLEC by SWBT under this Agreement are contained in the following
Attachments and Appendices to this Agreement: Attachment 1: Resale;
Appendix OS-Resale; Appendix DA-Resale; Attachment 2: Ordering &
Provisioning-Resale; Attachment 3: Maintenance-Resale; Attachment 7:
Ordering & Provisioning-Unbundled Network Elements; Attachment 8:
Maintenance-Unbundled Network Elements.
49.0 CUSTOMER INQUIRIES
49.1 Each Party will refer all questions regarding the other Party's
services or products directly to the other Party at a telephone number
specified by that Party.
49.2 Each Party will ensure that all of their representatives who receive
inquiries regarding the other Party's services: (i) provide the numbers
described in Section 49.1 to callers who inquire about the other
Party's services or products; and (ii) do not in any way disparage or
discriminate against the other Party or its products or services.
50.0 DISCLAIMER OF WARRANTIES
50.1 TO THE EXTENT CONSISTENT WITH ITS OBLIGATIONS UNDER THE ACT, SWBT MAKES
NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR INTENDED
OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED HEREUNDER.
51.0 NO WAIVER
51.1 CLEC's agreement herein to accept less than fully operational
electronic interfaces to operations support systems functions on and
after January 1, 1997, will not be deemed a waiver of Section 251(c)(3)
of the Act to receive such interfaces on that date.
52.0 EFFECT OF OTHER AGREEMENTS
52.1 The Parties shall comply with Section 252 (i) of the Act.
53.0 DEFINITIONS
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53.1 For purposes of this Agreement, certain terms have been defined in this
Agreement to encompass meanings that may differ from, or be in addition
to, the normal connotation of the defined word. Unless the context
clearly indicates otherwise, any term defined or used in the singular
will include the plural. The words "will" and "shall" are used
interchangeably throughout this Agreement and the use of either
connotes a mandatory requirement. The use of one or the other will not
mean a different degree of right or obligation for either Party. A
defined word intended to convey its special meaning is capitalized when
used. Other terms that are capitalized and not defined in this
Agreement will have the meaning in the Act.
54.0 RESALE
54.1 At the request of CLEC, and pursuant to the requirements of the Act,
any telecommunications service that SWBT currently provides or
hereafter offers to any customer in the geographic area where SWBT is
the incumbent LEC will be made available to CLEC by SWBT for Resale in
accordance with the terms, conditions and prices set forth in this
Agreement. Specific provisions concerning Resale are addressed in
Attachment 1: Resale, and other applicable Attachments.
55.0 UNBUNDLED NETWORK ELEMENTS
55.1 At the request of CLEC and pursuant to the requirements of the Act,
SWBT will offer in the geographic area where SWBT is the incumbent LEC
Network Elements to CLEC on an unbundled basis on rates, terms and
conditions set forth in this Agreement that are just, reasonable, and
non-discriminatory. Specific Provisions concerning Unbundled Network
Elements are addressed in Attachment 6: Unbundled Network Elements, and
other applicable Attachments.
56.0 ORDERING AND PROVISIONING, MAINTENANCE, CONNECTIVITY BILLING AND
RECORDING, AND PROVISION OF CUSTOMER USAGE DATA
56.1 In connection with its Resale of services to CLEC, SWBT agrees to
provide to CLEC Ordering and Provisioning Services, Maintenance
Services, Connectivity Billing and Recording Services and Provision of
Customer Usage Data Services pursuant to the terms specified in
Attachments 2, 3, 4 and 5, respectively.
56.2 In connection with its furnishing Unbundled Networks Elements to CLEC,
SWBT agrees to provide to CLEC Ordering and Provisioning Services,
Maintenance services, Connectivity Billing and Recording services and
Provision of Customer Usage Data services pursuant to the terms
specified in Attachments 7, 8, 9 and 10, respectively.
57.0 NETWORK INTERCONNECTION ARCHITECTURE
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57.1 Where the Parties interconnect their networks, for purposes of
exchanging traffic between their networks, the Parties agree to utilize
the interconnection methods specified in Attachment 11: Network
Interconnection Architecture. SWBT expressly recognizes that this
provision and said Attachment are in no way intended to impair in any
way CLEC's right to interconnect with unbundled Network Elements
furnished by SWBT at any technically feasible point within SWBT's
network, as provided in the Act.
58.0 COMPENSATION FOR DELIVERY OF TRAFFIC
58.1 The Parties agree to compensate each other for the transport and
termination of traffic as provided in Attachment 12: Compensation.
59.0 ANCILLARY FUNCTIONS
59.1 Ancillary Functions may include, but are not limited to, Collocation,
Rights-of-Way, Conduit and Pole Attachments. SWBT agrees to provide
Ancillary Functions to CLEC as set forth in Attachment 13: Ancillary
Functions.
60.0 RETENTION OF APPELLATE RIGHTS
60.1 Anything ordered by a court, regulatory agency or other adjudicative
body to be included herein does not constitute a waiver by either
Party of its appellate rights.
61.0 INSURANCE
61.1 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 or 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).
62.0 INTENTIONALLY LEFT BLANK.
62.1 INTENTIONALLY LEFT BLANK.
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63.0 OTHER REQUIREMENTS AND ATTACHMENTS
63.1 This Agreement incorporates a number of listed Attachments which,
together with their associated Appendices, Exhibits, and Addenda,
constitute the entire Agreement between the Parties. In order to
facilitate use and comprehension of the Agreement, the Attachments have
been grouped under the following broad headings: Resale; Unbundled
Network Elements; Network Interconnection Architecture; Ancillary
Functions; and Other Requirements. It is understood that these
groupings are for convenience of reference only, and are not intended
to limit the applicability which any particular Attachment may
otherwise have.
63.2 Appended to this Agreement and incorporated herein are the Attachments
listed below. To the extent that any definitions, terms or conditions
in any given Attachment differ from those contained in the main body of
this Agreement, those definitions, terms or conditions will supersede
those contained in the main body of this Agreement, but only in regard
to the services or activities listed in that particular Attachment. In
particular, if an Attachment contains a term length that differs from
the term length in the main body of this Agreement, the term length of
that Attachment will control the length of time that services or
activities are to occur under the Attachment, but will not affect the
term length of the remainder of this Agreement, except as may be
necessary to interpret the Attachment.
RESALE
Attachment 1: Resale
Appendix Services/Pricing
Exhibit A: SWBT's Telecommunications Services Available
for Resale
Exhibit B: SWBT's Other Services Available for Resale
Appendix Customized Routing-Resale
Appendix DA-Resale
Appendix OS-Resale
Appendix White Pages (WP)-Resale
Attachment 2: Ordering and Provisioning-Resale
Attachment 3: Maintenance-Resale
Attachment 4: Connectivity Billing-Resale
Attachment 5: Provision of Customer Usage Data-Resale
UNBUNDLED NETWORK ELEMENTS
Attachment 6: Unbundled Network Elements (UNE)
Appendix Pricing-UNE
Appendix Pricing-UNE Schedule of Prices
Appendix -UNE-NCS
Appendix -UNE-NCS Schedule of Prices
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Attachment 7: Ordering and Provisioning-UNE
Exhibit A-Electronic Ordering and Provisioning-UNE
Attachment 8: Maintenance-UNE
Attachment 9: Billing-Other
Attachment 10: Provision of Customer Usage Data-UNE
NETWORK INTERCONNECTION ARCHITECTURE AND COMPENSATION
Attachment 11: Network Interconnection Architecture
Appendix Interconnection Trunking Requirement (ITR)
Appendix Network Interconnection Methods (NIM)
Appendix SS7 Interconnection
Attachment 12: Compensation
Appendix Cellular
Appendix FGA
ANCILLARY FUNCTIONS
Attachment 13: Ancillary Functions
Appendix Collocation
Appendix Poles, Conduit, ROW
OTHER REQUIREMENTS
Attachment 14: Interim Number Portability
Appendix Location Routing Number-Permanent Number Portability
Attachment 15: E911
Attachment 16: Network Security and Law Enforcement
Attachment 17: Performance Measurements
Attachment 18: Mutual Exchange of Directory Listing Information
Attachment 19: White Pages-Other (WP-O)
Attachment 20: Clearinghouse
Attachment 21: Numbering
Attachment 22: DA-Facilities Based
Attachment 23: OS-Facilities Based
Attachment 24: Recording-Facilities Based
Attachment 25: DSL
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
BIRCH TELECOM OF KANSAS, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
BY SBC TELECOMMUNICATIONS, INC.,
ITS AUTHORIZED AGENT
Signature: /S/ Gregory C. Lawhon Signature: /S/ John T. Stankey
------------------------- ----------------------------
Name: Gregory C. Lawhon Name: John Stankey
----------------------------- ---------------------------------
(Print or Type) (Print or Type)
Title: Senior Vice President Title: President - Industry Markets
---------------------------- ---------------------------------
(Print or Type)
Date: 8/28/00 Date: 8/30/00
----------------------------- ---------------------------------
AECN/OCN# 8856
-------------------------
(Facility Based - if applicable)
AECN/OCN#
------------------------
(Resale - if applicable)