Carrier Services Agreement - Qwest Communications Corp. and ZeroPlus.com Inc.
QWEST COMMUNICATIONS CORPORATION
CARRIER SERVICES AGREEMENT
THIS CARRIER SERVICES AGREEMENT (the "Agreement") is entered into by and between
QWEST COMMUNICATIONS CORPORATION ("Qwest"), a Delaware corporation, located at
555 17th Street, Denver, Colorado 80202, and ZEROPLUS.COM, INC. (the
"Customer"), a Delaware corporation located at 12800 Middlebrook Road, Suite
400, Germantown, Maryland 20874, facsimile number (301) 601-8777. Qwest and
Customer are sometimes referred to in this Agreement collectively as the Parties
and singularly as a "Party."
TERMS AND CONDITIONS
1. SCOPE OF AGREEMENT
Upon the request of Customer, Qwest agrees to provide to Customer the Qwest
services for the prices and subject to the terms and conditions set forth herein
described in the exhibits attached hereto (the "Service(s)"); provided, however,
Federal law prohibits Qwest from providing interLATA long distance services in
Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North
Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming (i.e., voice and
data services that originate in such states, private line with one end point in
those states, or toll free service that terminates in such states) until Qwest
has obtained authorization to provide such services in those states. The
Services shall be provided in accordance with industry standards for such
Services. Customer recognizes that certain of the Services or components of the
Services may be provided by Affiliates (as hereinafter defined) of Qwest. To the
extent certain terms are not covered in this Agreement, the Services may be
provided pursuant to Qwest Tariff F.C.C. No. 2 and No. 3 and applicable state
tariffs (collectively, the "Tariff(s)"), which are on file with the U.S. Federal
Communications Commission ("FCC") and applicable state regulatory bodies, as
modified from time to time by Qwest. As applicable to the furnishing of Services
hereunder, the Tariff is hereby incorporated herein, except that the terms and
conditions of this Agreement shall supplement or, to the extent inconsistent,
supersede Tariff terms and conditions.
2. MONTHLY MINIMUM COMMITMENT
(A) Any monthly minimum usage commitments agreed upon by Qwest and Customer
shall be set forth in the attached Services Descriptions and rate Exhibits,
which such exhibits are specified in Section 3 of this Agreement (the "Monthly
Commitment"). Customer acknowledges and agrees that certain rates and discounts
may be being provided to Customer hereunder in consideration of Customer's
agreement to meet or exceed the Monthly Commitment and that such rates and
discounts would not be offered to Customer without Customer's agreement to make
such commitments.
(B) With respect to Qwest Express switched services (the "Switched Services"),
following a one time ramp up period of the first three billing months after the
Effective Date (the "Ramp Up Period"), the minimum monthly usage required per
DS-1 or equivalent thereof (the "Circuits") is 100,000 MOUs averaged among all
Qwest Circuits used by Customer under this Agreement (the "Minimum Facility
Utilization"). In the event Customer fails to meet or exceed the Minimum
Facility Utilization average Qwest, shall give Customer five (5) business days
notice that the Customer has not met or exceeded such utilization requirement.
Customer agrees, within such five (5) day period, either to (i) bring usage up
to such Minimum Facility Utilization average on such Circuits or (ii) release to
Qwest those Circuits which were under the 100,000 MOU level for such month. If
Customer does not comply with the above requirement, Customer will be assessed a
monthly underutilization fee of $2,500 (the "Underutilization Fee") for each
Circuit that was under the 100,000 MOU level for such month in which Customer
failed to meet the average Minimum Facility Utilization.
(C) Qwest and Customer specifically agree that any underutilization fees,
deficiency charges or other relief, if any, provided for in this Agreement or
the Exhibits relating to any of the commitments in this Agreement or the
Exhibits represent mutual good faith estimates of, and bear reasonable
relationships to, the actual damages to Qwest in the event of Customer's failure
to meet such commitments or Customer's underutilization of such circuits, and
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they do not represent a penalty of any kind. The Parties further agree that such
fees, charges and relief are obligations of Customer, subject to specific
performance.
3. SERVICE RATES AND TERMS
(A) Qwest Service descriptions and rates are shown and described in the
following Exhibits:
Exhibit B1 Qwest Express (Blended) and Terminating Services Description
Exhibit B2 Qwest Express (Blended) and Terminating Services Rate Schedule
Exhibit Cl Qwest Express 8XX Originating and RESP ORG Services Description
Exhibit C2 Qwest Express 8XX Originating and RESP ORG Services Rate Schedule
Exhibit S Security and Payment Terms
Qwest reserves the right to eliminate any Service offerings and/or modify any
charges for Service offerings upon written notice to Customer as follows:
(1) Rate decreases and additional services offered, if any, in Qwest's
sole discretion, shall be effective immediately upon written
notification to the Customer or upon an effective date set forth by
Qwest in such notification;
(2) All rates, Services and agreements specified in Exhibits and
attachments are subject to change immediately, with no prior notice to
Customer, in the event there are mandated surcharges imposed by a
federal, state or governmental agency. Further, notwithstanding any
statements to the contrary contained in the Tariff, in the event that
any regulatory agency, legislative body or court of competent
jurisdiction promulgates regulations or modifies existing ones
including, without limitation, regulations regarding payphone
compensation, access charges and/or universal service (the "Regulatory
Activity"), Qwest reserves the right, at any time upon written notice,
to: (i) pass through to Customer all, or a portion of, any charges or
surcharges directly or indirectly related to such Regulatory Activity;
or (ii) modify the rates, including any rate guarantees, and/or other
terms and conditions contained in this Agreement and/or the Tariff to
reflect the impact of such Regulatory Activity;
(3) International rates, Services and agreements specified in Exhibits
and attachments, including Canadian and Mexican services, are subject
to change upon five (5) calendar days written notice to Customer; All
other rates, Services and agreements specified in Exhibits and
attachments, excluding international, Canadian, and Mexican services,
are subject to change upon thirty (30) calendar days written notice to
Customer.
4. SYSTEM MAINTENANCE
Subject to Sections 7 and 12 hereof, Qwest expects, but does not guarantee, that
system maintenance normally will not result in service interruptions. If system
maintenance should result in the interruption of Service, to the extent possible
it shall be accomplished only after prior notification to Customer and will be
completed within a reasonable time. Qwest shall use reasonable efforts to give
Customer such prior notice.
5. CUSTOMER SERVICE
Customer acknowledges and agrees that it shall provide all billing, inquiry, and
customer service to Customer's end-users or customers (the "End-Users").
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6. REPRESENTATION
Each Party shall not use any trademark, service mark, brand name or any other
intellectual property of the other Party or its respective affiliate without
such Party's prior express written consent. Notwithstanding the foregoing,
Customer may disclose, during pre-sale activities, that Qwest is the underlying
carrier of its service. In no event shall Customer represent or state to End
Users or prospective End Users that it has any relationship with Qwest other
than an agreement to purchase Qwest's services. The Parties agree to promptly
and fully cooperate with the other Party to address and resolve all issues,
problems, administrative procedures, End User complaints, regulatory
investigations or inquiries or any other circumstances arising from Customer's
use of Qwest Services.
7. FINANCIAL RESPONSIBILITY, PAYMENT AND SECURITY
(A) Except as (i) otherwise provided in this Agreement or an Exhibit or as (ii)
Customer has been otherwise notified by Qwest, all Qwest invoices (the
"Invoices") are due upon receipt. Any Invoice which is not paid in full by
Customer within thirty (30) calendar days from Invoice date via check or wire
transfer, or in another manner explicitly agreed to by Qwest for Customer, shall
be considered past due (the 31st day being the "Past Due Date"). All discounts
and promotions, if any, and taxes, will be included in the monthly invoice. Any
payment received by Qwest on or after the Past Due Date shall be subject to an
interest charge on delinquent amounts at the rate of 1.00% of the late payment
per month or the maximum lawful rate allowable under applicable state law,
whichever is lower. Such interest charge shall be applied on any late payments,
commencing upon the Past Due Date through the actual date of receipt of payment.
Any and all applicable national, federal, state and local taxes, including
without limitation, all use, sales, value-added, surcharges, excise, franchise,
property, commercial, gross receipts, license, privilege or other similar taxes,
levies, surcharges, duties, fees, or other tax-related surcharges whether
charged to or against Qwest or Customer, with respect to the Services or
underlying facilities provided by Qwest, as well as any other imposition by any
governmental authority which has the effect of increasing Qwest's cost of
providing the Services or the underlying facilities, shall be payable by
Customer in addition to the other charges set forth in this Agreement. If full
payment is not made when due, Qwest, in its sole discretion, shall have the
right, after Qwest has given written notice to Customer, to suspend all or any
part of the Services until such time as Customer has paid all unpaid balances
(including interest), or to terminate all or any part of the Service, except
where such non-payment which gives rise to the termination is based upon
applicable and valid tax exempt certificates already given to Qwest. During any
such suspension, and upon any such termination, no service interruption shall be
deemed to occur.
(B) Customer acknowledges that it may not withhold any sums invoiced by Qwest
for actual calls made by Customer including, without limitation, calls made by
Customer's End Users and/or unauthorized third Parties (e.g., fraudulent calls)
and charges to Customer's Qwest account(s). Customer will be responsible for
full payment of all charges as reflected on any Qwest billing statement.
Independent of Customer's payment obligations set forth in this section,
Customer must notify Qwest within sixty (60) calendar days of receipt of any
contested or disputed amount concerning charges as they appear on the Qwest
billing statement. Customer's notification of any contested or disputed amount
must be in writing and sent to: Credit & Collections Department, Qwest
Communications Corporation, 4650 Lakehurst Court, Dublin, Ohio 43017 or to (614)
798-6460. by facsimile with duplicate notification to follow via regular U.S.
Mail or overnight delivery. Written notification must be accompanied with a
detailed written support, for any service interruption credit or other credit to
which Customer believes itself entitled, and Qwest and Customer will promptly
address and attempt to resolve the claim. Qwest, in its sole discretion
exercised in good faith, may reject such documentation and/or explanation as
inadequate. If Qwest so rejects such documentation, Customer shall have an
additional ten (10) business days to provide additional supporting documentation
to Qwest. If Qwest rejects such additional documentation, Qwest shall so notify
Customer in which case the disputed portion of the bill shall be paid by
Customer within ten (10) business days of Customer's receipt of Qwest's final
notice of inadequacy. All Credits or adjustments for service outages will be
made pursuant to applicable provisions of the Tariffs. In consideration of the
discounts offered by Qwest pursuant to this Agreement,
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with respect to any unpaid balance(s) owed by Customer to Qwest, Qwest shall
have the right to offset such unpaid balance(s) from any amounts that Qwest owes
to Customer and any of its Affiliates (as hereinafter defined) under any other
agreements between the Parties and their respective Affiliates.
(C) Customer acknowledges and agrees that Qwest may reasonably require
additional security and/or payment terms under this Agreement prior to the
commencement of Services hereunder or during the Term hereunder, and Customer
agrees to comply with such request. Customer agrees to provide and/or execute
any additional collateral security documents as may be reasonably required by
Qwest, if there is a material change in circumstances of Customer's actual or
anticipated usage hereunder or Customer's financial condition during any time
that Customer uses the Service. Qwest shall establish a credit limit for the
procurement of the Services by Customer and such credit limit may change from
time to time. Qwest will not automatically notify Customer of any such change
but will supply such information to Customer upon Customer's request.
8. TERM
The initial term of this Agreement (the "Initial Term") will begin on the first
day of the first billing cycle following the Effective Date (as hereinafter
defined) of this Agreement (the "Initial Service Date") and will continue for a
period of the longer of (i) thirty-six (36) calendar months from the Initial
Service Date, or (ii) as long as a term for a Service attached to this Agreement
(the "Service Term") is in effect. The "Effective Date" is defined as the date
this Agreement is signed by an authorized officer of Qwest after having been
signed by Customer. Applicable Service rates and discounts, if any, shall be
effective as of their respective effective date in the applicable Service rate
or discount schedule. Following the Initial Term, the Agreement shall continue
on a monthly basis (each a "Renewal Term") until either Party provides the other
Party with at least thirty (30) calendar days prior written notice of its intent
to terminate this Agreement and the intended date of such termination. The
Initial Term and Renewal Terms are sometimes collectively referred to herein as
the "Term".
9. OBLIGATIONS UPON EXPIRATION OR TERMINATION OF TERM
Upon expiration or termination of this Agreement, Customer shall pay all
outstanding balances hereunder in accordance with Section 7. Upon expiration or
termination of this Agreement, Customer shall be fully subject to all terms and
conditions set forth in the Qwest Tariff for Qwest services received by
Customer, if any, after such date, and shall receive standard Service rates as
provided in any Exhibit(s).
10. EARLY TERMINATION
(A) TERMINATION BY QWEST. In addition to any other rights hereunder, Qwest may
terminate this Agreement and/or the Service without waiving any rights set forth
in this Agreement or the Tariff, if applicable, as follows:
(1) Qwest may terminate this Agreement or the Services immediately
without notice if: (1) Qwest is prohibited from furnishing such
Services, or (2) if any material Rate, Charge or term of such services
is substantially changed by order of the highest court of competent
jurisdiction to which the matter is appealed, a legitimate regulatory
body, or any other foreign, federal, state or local government
authority.
(2) Qwest may terminate this Agreement or the Services in accordance
with the terms of Qwest's Tariff, if applicable, and only with respect
to the Services affected by such Tariff. Customer acknowledges that
such discontinuance may result in termination of its own services to
own End Users.
(3) Qwest may terminate this Agreement or the Services immediately,
without providing Customer with prior notice or an opportunity to cure,
under any of the following circumstances:
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(i) Customer fails to pay any Invoice (as hereinafter defined)
or any portion thereof or any Charges to Qwest when due under
and in accordance with this Agreement and the relevant Service
terms and conditions, other than that otherwise specified
within the relevant sections relating to such payments.
(ii) Customer becomes or is declared insolvent or bankrupt, is
the subject of any proceedings related to its liquidation,
insolvency or for the appointment of a receiver or similar
officer for it, makes an assignment for the benefit of all or
substantially all of its creditors, or enters into an
agreement for the composition, extension, or readjustment of
all or substantially all of its obligations.
(iii) In the event of a Change of Control of Customer, unless
such change is otherwise permitted under the "Assignment"
Section under this Agreement. For the purposes of this
Agreement, "Change of Control" shall be deemed to have
occurred with respect to Customer if: (X) any entity having
previously Controlled (as hereinafter defined) by Customer,
ceases to do so; (Y) any entity acquires Control of Customer
(whether by reason of acquisition, merger, reorganization,
operation of law or otherwise); or (Z) all, or substantially
all, of the assets of Customer or an entity that Controls
Customer are acquired (whether by reason of acquisition,
merger, reorganization, operation of law or otherwise) by, or
combined by merger with, any other entity. For purposes of
this Agreement, "Control" (and "Controls," "Controlling,"
"Controlled by" and "under common Control with" shall be
construed accordingly) as applied to any party means the
possession directly or indirectly of the power to direct or
cause the direction o the management and policies of that
party, whether through the ownership of voting securities or
by contract or otherwise. Where any two parties together
satisfy any of this definition, they shall be deemed to have
Control. For purposes of this definition, there shall be
attributed to any Party rights and powers of a nominee for it
(that is to say, any rights or powers that another Party
possesses on its behalf or may be required to exercise on its
direction or behalf).
(iv) If Customer fails to abide by any special payment and
security terms reasonably required by Qwest in accordance with
the Agreement, including, without limitation, Customer's
failure or refusal to provide additional security upon Qwest's
request as permitted under this Agreement.
(v) Upon the commission of any illegal acts on the part of
Customer, its officers, directors, employees, contractors,
agents, or servants, relating to the subject matter of this
Agreement.
(4) Qwest may terminate this Agreement or Services if Customer breaches
any other material term of this Agreement, by providing Customer with
thirty (30) calendar days' notice if Customer does not cure such
breach, if curable, within such thirty (30) calendar day period.
(B) TERMINATION BY CUSTOMER. In addition to any other rights hereunder, Customer
may terminate this Agreement and/or the affected Service without early
termination fee or penalty, except for unpaid charges as of the effective date
of termination, as follows:
(1) As long as Customer has satisfied in full any minimum Revenue
Commitment as set forth and described in the applicable Exhibit(s),
Customer shall have the right to terminate this Agreement for
convenience during the Initial Term without early termination fee or
penalty, except for Customer's payment of unpaid Services usage charges
accrued prior to the date of termination, by providing written notice
of such intent to terminate and the intended date of termination given
to Qwest not less than thirty (30) calendar days prior to the date of
termination set forth in such notification.
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(2) In the event of any material adverse: (i) increase in rates for
Services utilized by Customer, (ii) change in the Tariff, or (iii)
change in the Services, Customer may terminate this Agreement or the
affected Services without early termination fee or penalty, if such
written notice of termination is delivered to Qwest within thirty (30)
calendar days of the effective date of such material increase or
change. If Customer does not deliver such notice to Qwest within such
thirty (30) calendar day period, Customer will be deemed to have waived
its right to terminate this Agreement based upon such material increase
or change.
(3) With respect to the Switched Services, Customer may terminate this
Agreement or the Switched Services by giving Qwest thirty (30) calendar
days written notice prior to the date of such cancellation, if the
Switched Service provided under this Agreement is the subject of
service outages or interruptions accumulating one hundred twenty (120)
hours or more over any period of one hundred eighty (180) consecutive
calendar days.
(4) Customer may terminate this Agreement or Services if Qwest breaches
any other material term of this Agreement, by providing Qwest with
thirty (30) calendar days' notice if Qwest does not cure such breach,
if curable, within such thirty (30) calendar day period.
(C) EFFECT OF TERMINATION. Upon expiration or earlier termination of this
Agreement, Customer agrees to pay all unpaid balances due under and in
accordance with this Agreement to Qwest. Customer agrees that it shall be fully
subject to all standard or Tariff terms and conditions then in effect for
Services received by it after such date of expiration or termination. Upon the
expiration or termination of this Agreement for any reason, except as otherwise
provided in this Agreement and to any rights and/or obligations that have
accrued prior to termination, neither Party shall have any further obligations
of a continuing nature.
11. DEFAULT
Without regard to any other provisions of this Agreement or rights hereunder,
the Parties agree that it shall be a material default under this Agreement if
Customer fails to pay Qwest in accordance with Section 7 of this Agreement. Upon
default under this Section 11, Qwest shall be entitled to all rights and
remedies under the Qwest Tariff and other applicable law.
12. LIABILITY
EXCEPT AS PROVIDED OTHERWISE IN A SERVICE EXHIBIT, QWEST'S LIABILITY ARISING OUT
OF MISTAKES, ACCIDENTS, OMISSIONS, INTERRUPTIONS, ERRORS, DELAYS OR DEFECTS IN
THE ORDERING, PROCESSING, PROVISIONING, INSTALLATION OR TRANSMISSION OF ANY
SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT OF THE APPLICABLE CREDITS IN
ACCORDANCE WITH ITS CREDIT POLICIES THEN IN EFFECT. WITHOUT LIMITING THE
FOREGOING, QWEST SHALL HAVE NO OBLIGATION TO PROVIDE ALTERNATIVE ROUTING WITH
RESPECT TO ANY SERVICE OR TRANSMISSION CAPACITY PROVIDED PURSUANT TO THIS
AGREEMENT. IN NO EVENT SHALL QWEST BE LIABLE TO CUSTOMER OR ANY OTHER PERSON,
FIRM OR ENTITY IN ANY OTHER RESPECT, FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL,
SPECIAL, INCIDENTAL, ACTUAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY
KIND OR NATURE WHATSOEVER, EVEN IF FORESEEABLE, ARISING OUT OF ANY MISTAKE,
ACCIDENT, ERROR, OMISSION, INTERRUPTION, DELAY OR DEFECT IN THE ORDERING,
PROCESSING, PROVISIONING, INSTALLATION OR TRANSMISSION OF ANY SERVICES OR THE
OBLIGATIONS OF QWEST PURSUANT TO THIS AGREEMENT AND ANY EXHIBITS HERETO. QWEST
MAKES NO WARRANTY WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION,
QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF THE SERVICE
OR LOCAL ACCESS OR AS TO ANY OTHER
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MATTER, ALL OF WHICH WARRANTIES BY QWEST ARE HEREBY EXCLUDED AND DISCLAIMED. FOR
THE PURPOSE OF THIS SECTION, THE TERM "QWEST" AND "CUSTOMER" SHALL BE DEEMED TO
INCLUDE QWEST, CUSTOMER, AND THEIR RESPECTIVE AFFILIATES, EMPLOYEES, AGENTS,
OFFICERS, DIRECTORS, AND AFFILIATES. CUSTOMER HAS ACCEPTED THE LIMITATIONS OF
LIABILITY AND DISCLAIMERS SET FORTH HEREIN AS PART OF A BARGAIN TO LOWER THE
PRICE OF QWEST'S SERVICES HEREUNDER AND UNDERSTANDS THAT THE PRICES OF SAID
SERVICES WOULD BE HIGHER IF QWEST WERE REQUIRED TO ACCEPT GREATER LIABILITY
AND/OR DAMAGE LIABILITY.
13. RELATIONSHIP
Neither Party shall have the authority to bind the other by contract or
otherwise make any representations or guarantees on behalf of the other. Both
Parties acknowledge and agree that the relationship arising from this Agreement
is one of independent contractor, and does not constitute an agency, joint
venture, partnership, employee relationship or franchise.
14. ASSIGNMENT OR SALE
This Agreement shall be binding on Customer and its respective Affiliates,
successors, and assigns. Customer shall not assign, sell or transfer this
Agreement or the right to receive the Services provided hereunder, whether by
operation of law or otherwise, without the prior written consent of Qwest, such
consent shall not be unreasonably withheld by Qwest. Qwest may terminate this
Agreement in the event of an actual or purported assignment, sale or transfer of
this Agreement by Customer without Qwest's prior written consent.
15. REPORTING REQUIREMENTS
Where reporting obligations or requirements are imposed upon Qwest by any third
party or regulatory agency, and which such obligations or requirements can only
be satisfied by obtaining information from Customer, Customer agrees to comply
with such obligations and requirements, as reasonably required by Qwest, and to
hold Qwest harmless for any failure of compliance with any such obligations or
requirements.
16. GOVERNING LAW, CERTIFICATIONS AND WARRANTIES
(A) Customer understands that Qwest, in conducting its business in the manner
set forth herein, is subject to the Communications Act of 1934, as amended, and
as interpreted and applied by the Federal Communications Commission. All terms
of this Agreement not subject to the Communications Act of 1934 as amended and
as interpreted and applied by the F.C.C. will be interpreted according to New
York state law, without regard to the choice of law provisions of such State.
(B) If service is provided solely within a single state in a manner which
subjects the Service to regulation by such state, then the terms and conditions
of such Service and of this Agreement shall be subject to such regulations and
to any addendum to this Agreement relating thereto which is delivered by Qwest
to Customer. Customer shall have the right to terminate this Agreement within
ten (10) business days of receipt of such addendum without further liability
hereunder.
(C) Customer certifies and warrants that it, and its business of resale of the
Services, is in compliance with and will continue to be in compliance, in all
material respects, with all international, federal, state and local laws and
regulations relating to its performance under this Agreement. Customer certifies
further that it is in good standing under the laws of the States in which it was
organized, is existing or is doing business. Customer is solely responsible for
obtaining all licenses, approvals, and regulatory authority for its operation
and the provision of
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services to its End Users. Any breach of the obligations of a Party under this
Section shall be a material breach of this Agreement. If Customer does not
comply with this Section, in addition to any remedies available to it at law or
in equity, Qwest, in its sole discretion, may elect to decline to accept
additional orders under this Agreement or it may immediately terminate this
Agreement without further liability or obligation to Customer.
17. SURVIVAL
All warranties, representations, indemnities, covenants and other agreements of
the Parties hereto shall survive the execution, delivery and termination of this
Agreement and shall, notwithstanding the execution, delivery and termination of
this Agreement, continue in full force and effect. The terms and conditions of
the Qwest Tariff along with Section 6, 7, 9, 11, 12, 13, 15, 18, 19, 24 and any
provision hereof, which, by its context is intended to survive the termination
or expiration hereof, shall also survive. Additionally, any obligation to hold
harmless and indemnify a Party hereunder shall survive the termination or
expiration of this Agreement.
18. INDEMNIFICATION
Customer shall indemnify, defend and hold harmless Qwest from and against any
claims, actions, damages, liabilities, costs, judgments or expenses (including
attorney fees and an allocable portion of in-house counsel fees) arising out of
third Party claims resulting from the resale or reselling of the Service,
including but not limited to the provision or termination of, or failure to
provide, service by Customer to End Users.
19. NONDISCLOSURE
Neither Party shall disclose to any third Party during the term of this
Agreement and during the one (1) year period immediately following termination
of this Agreement, any of the terms and conditions set forth in this Agreement
unless disclosure is required by any state or federal governmental agency, is
otherwise required to be disclosed by law, or is necessary in any proceeding
establishing rights or obligations under this Agreement. Each Party reserves the
right to terminate this Agreement, upon written notification, upon discovery of
any disclosure prohibited hereunder.
20. INTEGRATION AND AMENDMENTS
The Agreement, together with all Exhibits, represents the entire understanding
of the Parties with respect to the subject matter under this Agreement. Any and
all prior offers, contracts, agreements, representations and understandings made
to or with Customer by Qwest or any Affiliate or predecessors-in-interest with
respect to the subject matter under this Agreement, whether oral or written,
shall be superseded by this Agreement. All amendments to this Agreement shall be
in writing and signed by both Parties.
21. WAIVER
The terms, covenants, representations and warranties of this Agreement may be
waived only by a written instrument executed by the Party waiving compliance.
The failure of either Party at any time to require performance of any provision
hereof shall, in no manner, affect the right at a later date to enforce the
same. No waiver by either Party of any breach of any term, covenant,
representation or warranty contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be construed as a
further or continuing waiver of any such breach or the breach of any other term,
covenant, representation or warranty of this Agreement.
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22. SEVERABILITY
In the event that any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. Further; in the event that any provision of this Agreement shall be held
to be invalid, illegal or unenforceable by virtue of its scope or period of
time, but may be made enforceable by a limitation thereof, such provision shall
be deemed to be amended to the minimum extent necessary to render it valid,
legal and enforceable or in the alternative both Parties shall negotiate in good
faith to substitute for such invalid, illegal, or unenforceable provision a
mutually acceptable provision that is consistent with the original intent of the
Parties.
23. NOTICE
Except when actual receipt is expressly required by the terms hereof, notice is
considered given either (i) when delivered by facsimile service to the phone
number listed below with duplicate notification sent via regular U.S. Mail or
overnight delivery or; (ii) when delivered in person to the recipient named
below; or (iii) after deposit in the United States mail in a sealed envelope or
container, either registered or certified mail, return receipt requested,
postage prepaid, or via overnight courier service, addressed by name and address
to the Party or person intended as follows:
To Customer: Zeroplus.com, Inc.
12800 Middlebrook Road, Suite 400
Germantown, Maryland 20874
Facsimile #: (301) 601-8777
Attention: Donald Shoff, VP of Finance
To Qwest: Qwest Communications Corporation
555 l7th Street
Denver, Colorado 80202
Facsimile #: (303) 291-1724
Attention: General Counsel
Any Party may at any time change its address or facsimile number for
notification purposes by giving the other Party prior written notice as provided
in this Section by setting forth the new address and the date on which it will
become effective. Either Party may require, by prior written notice given at any
time or from time to time, subsequent notices to be given to another individual
person, whether a Party or an officer or representative, or to a different
address, or both; provided, however, that a P.O. Box shall not be considered to
be an address for purposes of this Agreement.
24. ARBITRATION OF DISPUTES
(A) Any dispute arising out of this Agreement relating to Qwest invoices or
balances owed by Customer to Qwest for Services rendered, which cannot be
resolved between the Parties, shall be settled by binding arbitration at the
office of the American Arbitration Association ("AAA") located in [* * *](1)
The arbitration shall be held in accordance with the commercial Arbitration
Rules of the American Arbitration Association ("AAA Rules"), as amended by
this Agreement.
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QWEST COMMUNICATIONS CORPORATION
CARRIER SERVICES AGREEMENT
(B) Either Qwest or the Customer may initiate arbitration by providing
written demand for arbitration, a copy of this Agreement and the
administrative fee required by the AAA Rules to the AAA at [* * *](2). A copy
of the notice shall also be provided to the other Party. The remaining cost
of the arbitration, including the fees and expenses of the arbitrator, shall
be shared equally by the Parties unless the arbitration award provides
otherwise. Each Party shall bear the cost of preparing and presenting its
case.
(C) One arbitrator shall be appointed in accordance with the AAA Rules within
sixty (60) days of the submission of the demand for arbitration, unless both
Parties otherwise agree in writing. The arbitrator shall designate the time
and place in [* * *](2), as applicable, for the hearing within thirty (30)
days of his or her appointment. Qwest and the Customer agree that the
Arbitrator's authority to grant relief shall be subject to the provisions of
this Agreement, the United States Arbitration Act, ("USAA"), the ABA-AAA Code
of Ethics for Arbitrators in Commercial Disputes, Qwest Tariffs, substantive
law, and the Communications Act of 1934, as amended. The Arbitrator shall not
be able to award, nor shall any Party be entitled to receive punitive,
incidental, consequential, exemplary, reliance or special damages, including
damages for lost profits. The Arbitrator's decision shall follow the plain
meaning of the relevant documents, and shall be final, binding, and
enforceable in a court of competent jurisdiction. The decision of the
Arbitrator is appealable only for perceived mistakes or misapplication of the
law.
(D) Any dispute not outlined in Section 24 (A) and arising out of or related to
this Agreement regardless of the form of action whether in contract, indemnity,
warranty, strict liability, or tort, including negligence of any kind with
regard to Qwest Services or other conduct under this Agreement may be subject to
arbitration upon the written consent of both Parties.
25. FORCE MAJEURE
Neither Party shall be liable to the other for any delay or failure in
performance of any part of this Agreement to the extent that such delay or
failure is caused by a Force Majeure Event. "Force Majeure Event" means an
unforeseeable event (other than a failure to comply with payment obligations)
caused by any of the following conditions: act of God; fire; flood; labor
strike; sabotage; fiber cut; material shortages or unavailability or other delay
in delivery not resulting from the responsible Party's failure to timely place
orders therefor; lack of or delay in transportation; government codes,
ordinances, laws, rules, regulations or restrictions; war or civil disorder; or
any other cause beyond the reasonable control of such Party. The Party claiming
relief under this Section shall notify the other in writing of the existence of
the Force Majeure Event relied on and shall be excused on a day-by-day basis to
the extent of such prevention, restriction or interference until the cessation
or termination of said Force Majeure Event.
26. ATTACHMENTS AND EXHIBITS
All Attachments and Exhibits annexed to this Agreement are expressly made a part
of this Agreement as fully as though completely set forth in it. All references
to this Agreement shall be deemed to refer to and include this Agreement and all
such Attachments and Exhibits.
27. HEADING
The headings of sections and subsections used in this Agreement are for
convenience only and are not part of its operative language. They shall not be
used to affect the construction of any provisions hereof
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AND EXCHANGE COMMISSION.
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QWEST COMMUNICATIONS CORPORATION
CARRIER SERVICES AGREEMENT
28. THIRD-PARTIES
The representations, warranties, covenants and agreements of the Parties set
forth in this Agreement are not intended for, nor shall they be for the benefit
of or enforceable by, any person not a party hereto, including, without
limitation, the End Users and Affiliates. For purposes of this Agreement,
"Affiliate" shall mean: (i) any individual, corporation, partnership, limited
liability company, limited liability partnership, practice, association, joint
stock company, trust, unincorporated organization or other venture or business
vehicle (each an "Entity") in which a Party owns a twenty percent (20%) or
greater equity interest; or (ii) any Entity which, directly or indirectly, is in
control of, is controlled by or is under common control with a Party, as
applicable, after applying the attribution rules of Section 318 of the Internal
Revenue Code. For the purpose of this definition, control of an Entity shall
include the power, directly or indirectly, whether or not exercised: (i) to vote
fifty percent (50%) (or such lesser percentage as is the maximum allowed to be
owned by a foreign corporation in a particular jurisdiction) or more of the
securities or other interests having ordinary voting power for the election of
directors or other managing authority of such Entity; or (ii) to direct or cause
the direction of the management or policies of such Entity, whether through
ownership of voting securities, partnership interest or equity, by contract or
otherwise.
29. AUTHORIZATION
(A) Customer represents and warrants that the full legal name of the legal
entity intended to receive the benefits under this Agreement and intended to use
the Services is the name set forth in this Agreement and in the execution block.
Each Party represents to the other Party that the person executing this
Agreement on its behalf has been duly authorized by such Party to execute and
bind such Party to the terms and conditions contained in this Agreement. Each
Party, with full knowledge of all terms and conditions herein, does hereby
warrant and represent that the execution, delivery, and performance of this
Agreement are within such Party's corporate and/or partnership powers, have been
duly authorized, and are not in conflict with law or the terms of any charter or
bylaw or any agreement to which such Party is a party or by which it is bound or
affected.
(B) Qwest may act in reliance upon any instruction, instrument, or signature
reasonably believed by Qwest to be genuine. Qwest may assume that any employee
of a party to this Agreement who gives any written notice, request, or
instruction has the authority to do so.
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AND EXCHANGE COMMISSION.
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QWEST COMMUNICATIONS CORPORATION
CARRIER SERVICES AGREEMENT
IN WITNESS WHEREOF, an authorized representative of each Party has executed this
Agreement effective as of the date of execution by Qwest as set forth below.
QWEST COMMUNICATIONS CORPORATION
By: /s/ MICHAEL J. KRUPNIK Date OCTOBER 12, 2000
-------------------------------- ----------------------------------
Name: MICHAEL J. KRUPNIK
-------------------------------
Title: REGIONAL VICE PRESIDENT
------------------------------
By:
--------------------------------
Qwest Contracts Administrator
ZEROPLUS.COM, INC.
By: /S/ LAWRENCE W. MITCHELL Date OCTOBER 5, 2000
-------------------------------- ----------------------------------
Lawrence W. Mitchell
Vice President and General Counsel
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EXHIBIT B1
QWEST EXPRESS TERMINATING SWITCHED SERVICE DESCRIPTION
CARRIER SERVICES AGREEMENT
GENERAL
Interstate rates are per Local Access and Transport Area ("LATA") and are for
LATA-wide termination. Domestic Rates set forth in the Qwest Express Rate
Exhibit are shown in terms of full minutes and are billed in six (6) second
increments. Qwest reserves the right to charge excessive quantities of short
duration calls (i.e., calls under 6 seconds in length) a minimum of one-cent
($0.01) per answered call. Rates set forth in the Qwest Express Rate Exhibit are
Base Rates.
Intrastate rates are per State and are for State-wide termination. For the
purposes of determining each call's jurisdiction, the originating and
terminating information present in the call stream will be evaluated. In the
event that either the originating or terminating information is not available to
Qwest's billing system, the classification of the call, for rating purposes,
will default to the Interstate classification. To the extent that calls are
defaulted to the Interstate classification, and to the extent Customer's traffic
of this nature includes intrastate traffic, Customer shall provide to Qwest in
writing, on a monthly basis, the "Percentage of Inter/Intra-state Usage" on a
state-by-state basis, by LEC, for the traffic terminated by Qwest hereunder.
International rates are set forth as for country or city termination as
specified in the rate exhibit. If an International call terminates to a city,
which has any type of specific city code rate, the call will be rated according
to the city's rate for that type of termination and not the associated country's
rate. Mobile city areas that are rated differently than the associated countries
shall also be set forth as city codes. From time to time, Qwest may add specific
city code rates for cities not set forth above, and the IDDD Services shall be
provided based upon such rates. Rates shown in the Qwest Express International
Termination Service Rate Exhibit are shown in terms of full minutes and are
billed in six (6) second increments with an initial thirty (30) second
increment. Carrier Canadian Terminating Service rates are per NPA and are for
NPA-wide termination. Rates shown in the Carrier Canadian Terminating Service
Rate Exhibit are shown in terms of full minutes and are billed in six (6) second
increments with an initial thirty (30) second increment. Mexican rates are per
Mexican Rate Step and are for Rate Step-wide termination. Rates shown in the
Mexican Terminating Service Rate Exhibit are shown in terms of full minutes and
are billed in full minute increments. Intentional Rates, including Mexican and
Canadian, are subject to change upon five (5) calendar days notice. Service
availability is subject to the availability of facilities to and in the
particular countries.
Directory Assistance rates are per NPA and are valid NPA-wide. Rates shown in
the Carrier Directory Assistance Termination Rate Exhibit are shown on a per
call basis and are billed per call.
ROUNDING
Currently, all Qwest Express Services, excluding Directory Assistance, utilize
"bulk rounding". For the purposes of this Agreement, bulk rounding is defined as
carrying over the 3rd and 4th place amounts of a call charge to the next call,
and continuing to do so until one full cent ($0.01) is accrued. When this has
occurred, the one-cent is applied to the next call. In addition, the Qwest
Express Terminating Switched Service employs whole call rounding, which means
that all calls are rounded only once, as opposed to once for each element (e.g.
initial and incremental).
"RBOC-ITC" SURCHARGE
Customer agrees to maintain at least 80% of the traffic comprising Customers
Domestic Terminating Switched Service for termination in a Tandem owned and
operated by a Regional Bell Operating Company ("RBOC") and subject to such
RBOC's tariffed access charges. Qwest shall have the right to apply a two cents
($0.02) per minute of use surcharge to the number of Domestic minutes by which
Non-RBOC "terminations" exceed 20% of total monthly Terminating Service minutes.
For the purposes of automating the billing of the surcharge, the OCN number of
the terminating carrier will be used. OCN numbers of 9000 and above are
classified as RBOC; and OCN numbers
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EXHIBIT B1
QWEST EXPRESS TERMINATING SWITCHED SERVICE DESCRIPTION
CARRIER SERVICES AGREEMENT
less than 9000 are classified as "ITC," or Non-RBOC.
POINT(S) OF MEET
Customer is responsible for all access and related costs of DS-0, DS- 1 or DS-3
dedicated facilities to connect to Qwest's nearest applicable meet point as
follows:
Qwest switch sites:
- 111 Pavonia Ave., 7th Floor, Suite 725, JERSEY CITY, NJ 07310
- 111 Market Place., Suite 400, BALTIMORE, MD 21202
- 60 Hudson St., 11th Floor, NEW YORK CITY, NY 10013
- Doral Plaza, Suite 222A, 155 N. Michigan Ave., CHICAGO, IL 60601
- NBC Tower, 455 North City Front Plaza, Suite 700, CHICAGO, IL 60611
- Prudential Town Center, 1000 Town Center, Suite 360, SOUTHFIELD, MI 48075
- 8793 Fulton County Road H, DELTA, OH 43515
- 50 Public Square, Suite 640, CLEVELAND, OH 44113
- 180 E. Broad St., Suite B2, COLUMBUS, OH 43215
- 2001 6th Avenue, SEATTLE, WA 98121
- 2323 Bryan Street, Suite 770, DALLAS, TX
- Bank South Bldg., Suite 1910, 55 Marietta St., ATLANTA, GA 30303
- 701 E. Trade Street, Suite D, CHARLOTTE, NC 28202
- 4895 Outland Center Drive, MEMPHIS, TN 38118
- 624 S. Grand Ave., Suite 315, LOS ANGELES, CA 90017
- 3040 Gold Camp Road, SACRAMENTO, CA
- 910 15th Street, Suite 220, DENVER, CO 80202
Qwest POP sites:
- 38th and Wyalusing Streets, PHILADELPHIA, PA
- 60 Hudson St., 11th Floor, NEW YORK CITY, NY 10013
- 1220 L Street N. W. Suite 1B, WASHINGTON, DC 20005
- 1125 Grand Avenue, KANSAS CITY, MO
- 900 Walnut Street, Suite 400, ST. LOUIS, MO
- 15 West 16th Street, TULSA, OK
- 2112 East California Street, OKLAHOMA CITY, OK
- 777 Walker St. C-170, HOUSTON, TX
- 4275 E. Sahara, LAS VEGAS, NV
- 136 East South Temple, Suite 1560, SALT LAKE CITY, UT
- 2600 N. Central, PHOENIX, AZ
The Base rates shown in the Qwest Express Intrastate RBOC/ITC Rate
Exhibit will apply for all traffic that meets the Qwest network any of
the above switch or POP sites.
REVENUE COMMITMENT
COMMITTED REVENUE: Customer hereby agrees to commit to a specified revenue
volume [* * *](1) per month (the "Revenue Commitment") and term of three (3)
years (the "Term Commitment"). The Revenue Commitment must
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EXHIBIT B1
QWEST EXPRESS TERMINATING SWITCHED SERVICE DESCRIPTION
CARRIER SERVICES AGREEMENT
be met within the agreed-upon Term Commitment however, the Customer may not meet
the total Revenue Commitment (monthly Revenue Commitment X (times) the number of
months in the Term Commitment) in less time than one-half of the Term
Commitment.
1) If this Revenue Commitment is not met by the end of the Term
Commitment, the Customer agrees that it will pay the shortfall charge
as follows:
Revenue Commitment X Term Commitment (in months)
Less Customer's Actual Service Revenue
----------------------------------------------
= Shortfall Charge Owed by Customer
In addition, the customer's Revenue Commitment will be evaluated on a
periodic basis, depending upon the agreed-upon Term Commitment. The
formula and milestones used to evaluate a Customer's Revenue Commitment
progress are described in the Term Commitment Ramp Schedule.
Customer acknowledges and agrees that if the Customer fails to meet any of the
specified milestones, Qwest may, at Qwest's sole determination, either:
- Terminate the Agreement and, upon thirty (30) calendar days
written notice to Customer, collect the Shortfall Charge
consisting of the difference between the Revenue Commitment
owed to Qwest by the end of the particular measuring milestone
period and the aggregate revenue actually paid to and retained
by Qwest by such milestone, or
- Renegotiate the Agreement at rates and term mutually
acceptable to Qwest and Customer.
Customer acknowledges and agrees that certain rates would not be offered to
Customer without Customer's agreement to make the Revenue Commitment. Customer
and Qwest agree that any Shortfall Charge or relief provided hereunder
represents a mutual good faith estimate of, and bears a reasonable relationship
to actual damages to Qwest in the event of Customer failure to meet such Revenue
Commitment. Customer agrees that such Shortfall Charge does not represent a
penalty of any kind and that such charges shall be obligations of Customer
subject to specific performance.
CONTRIBUTING SERVICES SCHEDULE
--------------------------------------------------------------------
CONTRIBUTING SERVICES*
--------------------------------------------------------------------
All Domestic Qwest Express Originating and Terminating Usage
--------------------------------------------------------------------
All Qwest Express International Terminating Usage
--------------------------------------------------------------------
All Qwest Express Directory Assistance Usage
--------------------------------------------------------------------
All Qwest Express Canadian Termination Usage
--------------------------------------------------------------------
All Qwest Express Mexican Terminating Usage
--------------------------------------------------------------------
All Dedicated Facilities Monthly Recurring Charges*
--------------------------------------------------------------------
TERM COMMITMENT RAMP SCHEDULE
------------------------------------------------------------------------------------------------------------------------
MILESTONE MINIMUM USAGE REQUIREMENT
------------------------------------------------------------------------------------------------------------------------
RAMP MILESTONE ONE YEAR TWO YEAR THREE YEAR
------------------------------------------------------------------------------------------------------------------------
6th Month 40% of commitment N/A N/A
------------------------------------------------------------------------------------------------------------------------
12th Month 100% of commitment 30% of commitment 25% of commitment
------------------------------------------------------------------------------------------------------------------------
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EXHIBIT B1
QWEST EXPRESS TERMINATING SWITCHED SERVICE DESCRIPTION
CARRIER SERVICES AGREEMENT
------------------------------------------------------------------------------------------------------------------------
24th Month N/A 100% of commitment 55% of commitment
------------------------------------------------------------------------------------------------------------------------
36th Month N/A N/A 100% of commitment
------------------------------------------------------------------------------------------------------------------------
* Charges, fees and other amounts owing for, related to or constituting taxes,
surcharges, credits, uncollectable Customer charges, pass-through charges,
installation charges and local loops shall not be included as part of Revenue
Commitment or Contributing Services.
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QWEST EXPRESS
BLENDED
INTRASTATE VOICE TERMINATION RATES
[* * *](1)
(1) CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXHCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
QWEST COMMUNICATIONS PRIVILEGED AND CONFIDENTIAL
<PAGE>
CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXHCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
QWEST EXPRESS
DIRECTORY ASSISTANCE RATES
[* * *](1)
(1) CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXHCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
QWEST COMMUNICATIONS PRIVILEGED AND CONFIDENTIAL
<PAGE>
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AND EXHCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
QWEST EXPRESS
BLENDED
INTERSTATE VOICE TERMINATION RATES
[* * *](1)
(1) CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXHCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
QWEST COMMUNICATIONS PRIVILEGED AND CONFIDENTIAL
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AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT C1
WEST EXPRESS 8XX ORIGINATING SERVICE DESCRIPTION
CARRIER SERVICE AGREEMENT
GENERAL
Interstate rates are per Local Access and Transport Area ("LATA") and are for
LATA-wide origination. Rates shown in the attached Rate Exhibit are shown in
terms of full minutes and are billed in six (6) second increments. Qwest
reserves the right to charge excessive quantities of short duration calls (i.e.
calls under 6 seconds in length) a minimum of one-cent ($.01) per answered call.
ROUNDING
Currently, the Qwest Express 8XX Originating Service utilizes "bulk rounding".
For the purposes of this agreement, bulk rounding is defined as carrying over
the 3rd and 4th place amounts of a call charge to the next call, and continuing
to do so until one full cent ($.01) is accrued. When this has occurred, the cent
($.01) is applied to the next call. In addition, the Qwest Express 8XX
Originating Service employs whole call rounding, which means that all calls are
rounded only once, as opposed to once for each element (e.g. initial and
incremental).
"RBOC-ITC" SURCHARGE
Customer will maintain at least 80% of the traffic comprising Customers 8XX
Origination Service for origination in a Tandem owned and operated by a Regional
Bell Operating Company ("RBOC") and subject to such RBOC's tariffed access
charges. Qwest will have the right to apply a two cents ($.02) per minute of use
surcharge to the number of minutes by which Non-RBOC Originating minutes exceed
20% of total monthly Origination service minutes. For the purposes of automating
the billing of the surcharge, the OCN number of the originating carrier will be
used. OCN numbers of 9000 and above are classified as RBOC; and OCN numbers less
than 9000 are classified as "ITC", or Non-RBOC.
LIABILITY
(A) Without limiting the Agreement, Qwest shall not be liable for any act or
omission of the Number Administration and Service Center ("NASC"), other
Responsible Organizations ("RESP ORGs"), or any other carrier providing a
portion of the Service.
(B) Without limiting the Agreement, Qwest shall not be liable for any loss or
damage sustained by Customer, its 8XX subscriber or any third party by reason of
defects or malfunctions in the hardware or software provided by NASC, or by
reason of errors made by NASC in connection with the Service Management System
("SMS")/8XX.
(C) Without limiting the Agreement, Qwest shall not be liable for any loss or
damage sustained by the Customer, its 8XX subscriber or any third party by
reason of defects or malfunctions in any Qwest Service Management System
("LSMS"), Service Control Point ("SCP"), Service Transfer Point ("STP"), or
Service Switch Point ("SSP"), or any other facilities, hardware or software not
directly under Qwest's control.
(D) Without limiting the Agreement, Qwest shall not be liable for any loss of
revenue or profit by Customer or its 8XX subscriber or for any loss or damage
arising out of this Agreement or out of the use
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EXHIBIT C1
WEST EXPRESS 8XX ORIGINATING SERVICE DESCRIPTION
CARRIER SERVICE AGREEMENT
of the SMS/8XX or any of the Services provided under this Agreement by any
person, whether arising in contract, tort (including, without limitation,
negligence or strict liability) or otherwise and whether or not informed of the
possibility of such damages in advance.
INDEMNIFICATION
Without limiting the Agreement, Customer hereby agrees to indemnify, defend and
hold harmless Qwest, its Affiliates, and their respective directors, officers,
employees and agents against any third party claim, loss or damage arising from
the use of 8XX Originating Services offered under this Agreement, involving
without limitation: claims for libel, slander, invasion of privacy or
infringement of copyright arising from the Customer's or its 8XX subscriber's
own communications.
CARRIER INTEREXCHANGE CODE ("CIC") CONFIDENTIALITY
Qwest's CIC map and underlying provider is Qwest's propriety information and
Customer agrees to keep such information in the strictest of confidence by
Customer. Such information shall not be used or disclosed by Customer except as
necessary to carry out the intent of this Agreement.
CUSTOMER OBLIGATIONS FOR RELEASE OF QWEST CIC INFORMATION
Notwithstanding anything herein to the contrary, and provided Customer is not in
default of any obligation hereunder, Customer may provide Qwest's CIC map or a
portion thereof to a RESP ORG if Customer fully complies with all of the
following conditions:
1. Customer shall obtain Qwest's prior explicit written consent in each
instance.
2. No more than one SMS record in which any portion of Qwest's CIC map is
referenced shall be created.
3. Customer shall ensure that the SMS record will be applied by the RESP
ORG consistently to all 8XX numbers under its control whenever Qwest
has transport responsibility.
4. Customer shall cause the RESP ORG to notify Qwest of the assignment of
the applicable record and Customer shall ensure such record is not
implemented without Qwest's approval.
5. Customer shall be ready to accept traffic prior to submitting to Qwest
an order to turn up 8XX Service.
6. Customer shall be responsible for all costs in connection with updating
or changing the applicable SMS record in the event Qwest changes its
mapping. Customer shall ensure that the RESP ORG completes such changes
within sixty (60) calendar days of Qwest's notification to Customer of
any such change.
CUSTOMER OBLIGATIONS FOR USE OF ALTERNATE CIC MAP
Customer hereby agrees and understands that:
1. Customer shall ensure that no CICs other than the Customer's CICs will
be used in conjunction with Qwest's CIC without ten (10) business days
prior written notification to Qwest. Qwest reserves the right to not
approve of a change to a CIC other than the Customer's or Qwest.
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EXHIBIT C1
WEST EXPRESS 8XX ORIGINATING SERVICE DESCRIPTION
CARRIER SERVICE AGREEMENT
Customer understands that it will be responsible for all usage
associated with traffic related to an 8XX number that Qwest refused to
approve for a CIC change if the call is carried on Qwest's network.
2. Customer shall not enter into any arrangement with a third party for
the provision or carriage of any component of any 8XX traffic
transported by Qwest.
3. Customer shall promptly and accurately perform all Qwest requested
changes to its CIC map. Customer shall be responsible for all costs
resulting from its failure to comply with this provision.
4. Qwest provides CIC mapping at the LATA level only.
5. No person or entity other than Customer shall act as RESP ORG or apply
Qwest's CIC map for 8XX transport, either acting directly or
indirectly, or by assignment or agency from Customer.
6. Where Customer chooses to select itself for 8XX origination in a
particular LATA, Customer must provide complete LATA coverage.
QWEST AS RESPONSIBLE ORGANIZATION ("RESP ORG")
If Customer selects Qwest as the Responsible Organization for Customer's Toll
Free services, Customer hereby agrees to and understands that:
1. Qwest agrees to act as RESP ORG, to manage and administer Customer's
records in the 8XX Service Management System. Qwest's responsibilities
shall be limited to coordinating data entry, record change, trouble
acceptance, referral and/or clearance. As RESP ORG, Qwest will also
provide coordination to provision, maintain, and test 8XX Data Base
("DB") service between various entities, such as: Local Exchange
Carriers ("LECs"), Interexchange Carriers ("IXCs"), Number
Administration and Service Center ("NASC"), and the Service Management
System ("SMS").
2. Qwest will provide Customer with a contact number for referrals of 8XX
troubles on a twenty-four (24) hour a day, seven (7) days a week basis.
Qwest will make reasonable best efforts to resolve troubles by
sectionalizing trouble to determine if the reported trouble is in its
translations or facilities or in another provider's service. If
necessary, Qwest will test cooperatively with other providers to
further identify and address a trouble when it has been sectionalized
to another provider's service. Qwest will keep Customer advised as to
the status of trouble clearance. Qwest' s responsibilities shall be
limited to make a good faith effort to identify and coordinate trouble
resolution.
3. As RESP ORG, Qwest is limited in the number of 8XX number reservations
it can hold; therefore, reservations will be available on a first come
first serve basis. Customer reservations may at no time exceed ten (10)
percent of its active 8XX numbers. Reservations cannot be held for more
than forty-five (45) calendar days. At the end of the reservation
period the 8XX number will be returned to the pool of numbers available
for general assignment.
4. For Qwest to properly fulfill its obligation as RESP ORG, Customer
shall make available to Qwest an 8XX number and personnel, on a
twenty-four (24) hour a day, seven (7) day a week basis, for trouble
reporting and resolution. The Customer further agrees that it shall
make its best effort to assist Qwest in the resolution of any end user
dispute involving an end user of the Customer.
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AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT C1
WEST EXPRESS 8XX ORIGINATING SERVICE DESCRIPTION
CARRIER SERVICE AGREEMENT
CUSTOMER AND QWEST OBLIGATIONS WHERE QWEST PROVIDES RESPORG SERVICES
1. Customer hereby agrees that Qwest shall be Customer's sole provider of
Carrier 8XX Service for all 8XX numbers for which Qwest is providing
transport and/or Responsible Organization Services ("ROS"), as such
services are described herein, during the term hereof.
2. Qwest agrees that Customer may, at its sole discretion, designate
itself as the 8XX carrier in selected LATAs. Customer's designation is
only applicable when used in conjunction with Qwest 8XX ROS and
transport and customer provides one hundred percent (100%) coverage in
the LATA(s).
3. Qwest will not provide ROS for 8XX numbers transported by other Common
Carriers ("OCCs"), except as indicated in Section (B) above.
4. Qwest shall provide ROS as described herein consistent with the
Guidelines for 8XX Database, subject to the understanding that those
ROS and the terms and conditions of those services may be modified by
Qwest as a result of changes in said Guidelines, governmental action or
acts of third parties including but not limited to changes in LEC
tariffs that relate to ROS.
POINT(S) OF MEET
Customer agrees that it is responsible for all access and related costs of DS-0,
DS-l or DS-3 dedicated facilities to connect to Qwest's nearest applicable meet
point. Meetpoints available include the Qwest's DMS250 switch sites as follows:
- 11l Pavonia Ave., 7th Floor, Suite 725, JERSEY CITY, NJ 07310
- 111 Market Place., Suite 400, BALTIMORE, MD 21202
- 60 Hudson St., 11th Floor, NEW YORK CITY, NY 10013
- Doral Plaza, Suite 222A, 155 N. Michigan Ave., CHICAGO, IL 60601
- NBC Tower, 455 North City Front Plaza, Suite 700, CHICAGO, IL 60611
- Prudential Town Center, 1000 Town Center, Suite 360, SOUTHFIELD, MI 48075
- 8793 Fulton County Road H, DELTA, OH 43515
- 50 Public Square, Suite 640, CLEVELAND, OH 44113
- 180 E. Broad St., Suite B2, COLUMBUS, OH 43215
- 2001 6th Avenue, SEATTLE, WA 98121
- 2323 Bryan Street, Suite 770, DALLAS, TX
- Bank South Bldg., Suite 1910, 55 Marietta St., ATLANTA, GA 30303
- 701 E. Trade Street, Suite D, CHARLOTTE, NC 28202
- 4895 Outland Center Drive, MEMPHIS, TN 38118
- 624 S. Grand Ave., Suite 315, LOS ANGELES, CA 90017
- 3040 Gold Camp Road, SACRAMENTO, CA
- 910 15th Street, Suite 220, DENVER, CO 80202
In addition to the above Qwest switch sites, the Customer may meet Qwest at each
Qwest-owned voice POP site available at the time of Customer's request, subject
to capacity at that site and to Qwest's agreement.
4
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FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT C1
WEST EXPRESS 8XX ORIGINATING SERVICE DESCRIPTION
CARRIER SERVICE AGREEMENT
REVENUE COMMITMENT
COMMITTED REVENUE: Customer hereby agrees to commit to a specified revenue
volume of [* * *](1) per month (the "Revenue Commitment") and term of three
(3) years (the "Term Commitment"). The Revenue Commitment must be met within
the agreed-upon Term Commitment however, the Customer may not meet the total
Revenue Commitment (monthly Revenue Commitment X (times) the number of months
in the Term Commitment) in less time than one-half of the Term Commitment.
1) If this Revenue Commitment is not met by the end of the Term
Commitment, the Customer agrees that it will pay the shortfall charge
as follows:
Revenue Commitment X Term Commitment (in months)
LESS CUSTOMER'S ACTUAL SERVICE REVENUE
--------------------------------------------------------
= Shortfall Charge Owed by Customer
In addition, the Customer's Revenue Commitment will be evaluated on a
periodic basis, depending upon the agreed-upon Term Commitment. The
formula and milestones used to evaluate a Customer's Revenue Commitment
progress are described in the Term Commitment Ramp Schedule.
Customer acknowledges and agrees that if the Customer fails to meet any of the
specified milestones, Qwest may, at Qwest's sole determination, either:
- Terminate the Agreement and, upon thirty (30) calendar days
written notice to Customer, collect the Shortfall Charge
consisting of the difference between the Revenue Commitment
owed to Qwest by the end of the particular measuring milestone
period and the aggregate revenue actually paid to and retained
by Qwest by such milestone, or
- Renegotiate the Agreement at rates and term mutually
acceptable to Qwest and Customer.
Customer acknowledges and agrees that certain rates would not be offered to
Customer without Customer's agreement to make the Revenue Commitment. Customer
and Qwest agree that any Shortfall Charge or relief provided hereunder
represents a mutual good faith estimate of, and bears a reasonable relationship
to actual damages to Qwest in the event of Customer failure to meet such Revenue
Commitment. Customer agrees that such Shortfall Charge does not represent a
penalty of any kind and that such charges shall be obligations of Customer
subject to specific performance.
CONTRIBUTING SERVICES SCHEDULE
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(1) CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
5
QWEST CONFIDENTIAL AND PROPRIETARY
<PAGE>
CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT C1
WEST EXPRESS 8XX ORIGINATING SERVICE DESCRIPTION
CARRIER SERVICE AGREEMENT
----------------------------------------------------------------------
CONTRIBUTING SERVICES*
----------------------------------------------------------------------
----------------------------------------------------------------------
All Domestic Qwest Express Originating and Terminating Usage
----------------------------------------------------------------------
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All Qwest Express International Terminating Usage
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All Qwest Express Directory Assistance Usage
----------------------------------------------------------------------
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All Qwest Express Canadian Termination Usage
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All Qwest Express Mexican Terminating Usage
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All Dedicated Facilities Monthly Recurring Charges*
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TERM COMMITMENT RAMP SCHEDULE
-----------------------------------------------------------------------------------------------------------------
MILESTONE MINIMUM USAGE REQUIREMENT
-----------------------------------------------------------------------------------------------------------------
RAMP MILESTONE ONE YEAR TWO YEAR THREE YEAR
-----------------------------------------------------------------------------------------------------------------
6th Month 40% of commitment N/A N/A
-----------------------------------------------------------------------------------------------------------------
12th Month 100% of commitment 30% of commitment 25% of commitment
-----------------------------------------------------------------------------------------------------------------
14th Month N/A 100% of commitment 55% of commitment
-----------------------------------------------------------------------------------------------------------------
36th Month N/A N/A 100% of commitment
-----------------------------------------------------------------------------------------------------------------
* Charges, fees and other amounts owing for, related to or constituting taxes,
surcharges, credits, uncollectable Customer charges, pass-through charges,
installation charges and local loops shall not be included as part of Revenue
Commitment or Contributing services.
6
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<PAGE>
CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXHCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
QWEST EXPRESS
DOMESTIC TOLL FREE ORIGINATION RATES
[* * *](1)
(1) CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXHCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
QWEST COMMUNICATIONS PRIVILEGED AND CONFIDENTIAL
<PAGE>
CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT S
SECURITY AND PAYMENT TERMS
GENERAL
Qwest and the Customer hereby agree that Qwest has established specific terms
and conditions of security for payment of the Services acceptable to Qwest, in
its sole determination, prior to the commencement of Services hereunder, as set
forth below. Customer acknowledges and agrees that if Customer does not comply
with such terms and requirements of security for payment, that Qwest shall be
entitled to refuse to fulfill any orders for Services and to terminate this
Agreement without penalty. Customer also agrees to the following basic terms and
conditions as security for payment of services rendered by Qwest to Customer.
WEEKLY BILLING AND PREPAYMENT
As security under this Agreement for the provision of Services, Customer
agrees to make weekly payments on its unbilled Service toll. The weekly
billing cycle is the 7th, 14th, 21st, and 27th of each month (or upon such
other weekly schedule as Qwest should determine). Unless the foregoing weekly
bill cycle is changed by Qwest, Qwest will provide Customer with a written
statement of the payment due based on Customer's unbilled Service toll which
will be issued on the 8th, 15th, 22nd, and 29th of the month regardless of
the day of the week, unless one of these days fall on a weekend or holiday,
in which case the bill will go out the next business day. Customer shall pay
such statement in accordance with the above-specified terms by wire transfer
to [* * *](1) (or to any other such account or in any other manner as Qwest
may designate in writing) and include a designation of Customer's account
number. Customer's failure to provide the payment as agreed to herein may, in
Qwest's sole discretion, result in the immediate termination of all and/or
any part of the Service hereunder or refusal to accept any orders for
additional Service with or without notice. Customer shall receive from Qwest
a standard monthly invoice which shall comprise Customer's promotions,
discounts, if any, taxes, any applicable monthly recurring charges, the
entire month's Service usage and the credit amount of Customer's weekly
payments as provided in this subsection. Weekly payments made by Customer
totaling in excess of Customer's entire monthly invoice combined with the
setoff amount from Qwest's usage of Customer's services, if any, will be
applied to the Customer's immediately succeeding monthly invoice. Any amounts
due and owing by Customer as of the rendering of the monthly invoice must be
paid by Customer in accordance with the terms and conditions of the Agreement.
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(1) CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
1
QWEST CONFIDENTIAL AND PROPRIETARY
<PAGE>
CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXHCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
CARRIER INTERNATIONAL RATES
[* * *](1)
(1) CONFIDENTIAL MATERIAL OMMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXHCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.