EXHIBIT 10.2
General Terms and Conditions
Page 1
AGREEMENT
THIS AGREEMENT is made by and between BellSouth Telecommunications, Inc.,
("BellSouth"), a Georgia corporation, and The Other Phone Company, Inc. d/b/a
Access One Communications, a Florida corporation, The Other Phone Company, Inc.
d/b/a Talk America Inc., (NOT in Florida) a Florida corporation and Talk America
Inc., a Pennsylvania corporation (collectively referred to as "Talk America"),
and shall be deemed effective 30 days after the date of the last signature of
both Parties ("Effective Date"). This Agreement may refer to either BellSouth or
Talk America or both as a "Party" or "Parties".
W I T N E S S E T H
WHEREAS, BellSouth is a local exchange telecommunications company
authorized to provide telecommunications services in the states of Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina and Tennessee; and
WHEREAS, Talk America is a CLEC authorized to provide telecommunications
services in one or more of the following states: Alabama, Florida, Georgia,
Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee;
and
WHEREAS, Talk America wishes to resell BellSouth's telecommunications
services and purchase network elements and other services, and the Parties wish
to interconnect their facilities and exchange traffic pursuant to Sections 251
and 252 of the Act.
NOW THEREFORE, in consideration of the mutual agreements contained herein,
BellSouth and Talk America agree as follows:
DEFINITIONS
AFFILIATE is defined as a person that (directly or indirectly) owns or
controls, is owned or controlled by, or is under common ownership or
control with, another person. For purposes of this paragraph, the term
"own" means to own an equity interest (or equivalent thereof) of more than
10 percent.
COMMISSION is defined as the appropriate regulatory agency in each of
BellSouth's nine-state region, Alabama, Florida, Georgia, Kentucky,
Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee.
COMPETITIVE LOCAL EXCHANGE CARRIER (CLEC) means a telephone company
certificated by the Commission to provide local exchange service within
BellSouth's franchised area.
END USER means the ultimate user of the Telecommunications Service.
FCC means the Federal Communication Commission.
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GENERAL TERMS AND CONDITIONS means this document including all of the
terms, provisions and conditions set forth herein.
TELECOMMUNICATIONS means the transmission, between or among points
specified by the user, of information of the user's choosing, without
change in the form or content of the information as sent and received.
TELECOMMUNICATIONS SERVICE means the offering of telecommunications for a
fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the facilities
used.
TELECOMMUNICATIONS ACT OF 1996 ("ACT") means Public Law 104-104 of the
United States Congress effective February 8, 1996. The Act amended the
Communications Act of 1934 (47 U.S.C. Section 1 et. seq.).
1. CLEC CERTIFICATION
1.1 Talk America has provided to BellSouth in writing the certificate number or
docket number, for the docket pending certification, for all states covered
by this Agreement except Kentucky.
1.2 BellSouth will file this Agreement with the appropriate commission for
approval.
2. TERM OF THE AGREEMENT
2.1 The term of this Agreement shall be three years, beginning on the Effective
Date and shall apply to the BellSouth territory in the state(s) of Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina and Tennessee.
2.2 The Parties agree that by no later than one hundred and eighty (180) days
prior to the expiration of this Agreement, they shall commence negotiations
for a new agreement to be effective beginning on the expiration date of
this Agreement ("Subsequent Agreement"). If as of the expiration of this
Agreement, a Subsequent Agreement has not been executed by the Parties,
then except as set forth in Section 2.3.2 below, this Agreement shall
continue on a month-to-month basis while a Subsequent Agreement is being
negotiated. The Parties' rights and obligations with respect to this
Agreement after expiration shall be as set forth in Section 2.3 below.
2.3 If, within one hundred and thirty-five (135) days of commencing the
negotiation referred to in Section 2.2 above, the Parties are unable to
negotiate new terms, conditions and prices for a Subsequent Agreement,
either Party may petition the Commission to establish appropriate terms,
conditions and prices for the Subsequent Agreement pursuant to 47 U.S.C.
252. In the event the Commission does not issue its order prior to the
expiration date of this Agreement, or if the
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Parties continue beyond the expiration date of this Agreement to negotiate
the Subsequent Agreement without Commission intervention, the terms,
conditions and prices ultimately ordered by the Commission, or negotiated
by the Parties, shall be retroactive to the day following the expiration
date of this Agreement.
2.3.1 Except as set forth in Section 2.3.2 below, notwithstanding the foregoing,
in the event that as of the date of expiration of this Agreement and
conversion of this Agreement to a month-to-month term, the Parties have not
entered into a Subsequent Agreement and no arbitration proceeding has been
filed in accordance with Section 2.3 above, or the Parties have not
mutually agreed (where permissible) to extend the arbitration window for
petitioning the applicable Commission(s) for resolution of those terms upon
which the Parties have not agreed, then either Party may terminate this
Agreement upon sixty (60) days notice to the other Party. In the event that
BellSouth terminates this Agreement as provided above, BellSouth shall
continue to offer services to Talk America pursuant to the terms,
conditions and rates set forth in BellSouth's then current standard
interconnection agreement. In the event that BellSouth's standard
interconnection agreement becomes effective as between the Parties, the
Parties may continue to negotiate a Subsequent Agreement, and the terms of
such Subsequent Agreement shall be retroactive to the day following the
expiration date of this Agreement.
2.3.2 Notwithstanding Section 2.3 above, in the event that as of the date of
expiration of this Agreement the Parties have not entered into a Subsequent
Agreement and (1) no arbitration proceeding has been filed in accordance
with Section 2.2 above, and (2) Talk America either is not certified as a
CLEC in any particular state to which this Agreement applies or has not
ordered any services under this Agreement as of the date of expiration,
then this Agreement shall not continue on a month to month basis but shall
be deemed terminated as of the expiration date hereof.
3. OPERATIONAL SUPPORT SYSTEMS
3.1 Talk America shall pay charges for Operational Support Systems (OSS) as set
forth in this Agreement in Attachment 1 and/or in Attachments 2, 3 and 5,
as applicable.
4. PARITY
4.1 When Talk America purchases, pursuant to Attachment 1 of this Agreement,
telecommunications services from BellSouth for the purposes of resale to
End Users, BellSouth shall provide said services so that the services are
equal in quality, subject to the same conditions, and provided within the
same provisioning time intervals that BellSouth provides to its affiliates,
subsidiaries and End Users. The quality of a Network Element, as well as
the quality of the access to such Network Element provided by BellSouth to
Talk America shall be at least equal in quality to that which BellSouth
provides to itself, its affiliates or any other telecommunications carrier.
The provisioning intervals for Network Elements shall
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be at least equal to, but no longer than, those that BellSouth provides to
itself. BellSouth shall make available Network Elements to Talk America on
the same terms and conditions as BellSouth provides to its affiliates,
subsidiaries, End Users and any other carriers. The quality of the
interconnection between the networks of BellSouth and the network of Talk
America shall be at a level that is equal to that which BellSouth provides
itself, a subsidiary, an Affiliate, or any other party. The interconnection
facilities shall be designed to meet the same technical criteria and
service standards that are used within BellSouth's network and shall extend
to a consideration of service quality as perceived by BellSouth's end users
and service quality as perceived by Talk America.
5. WHITE PAGES LISTINGS
5.1 BellSouth shall provide Talk America and their customers access to white
pages directory listings in the same manner BellSouth provides such
listings to its own end users, and consistent with the following terms:
5.2 Listings. Talk America shall provide all new, changed and deleted listings
on a timely basis and BellSouth or its agent will include Talk America
residential and business customer listings in the appropriate White Pages
(residential and business) or alphabetical directories. Directory listings
will make no distinction between Talk America and BellSouth subscribers.
5.2.1 Rates. So long as Talk America provides subscriber listing information to
BellSouth in accordance with Section 5.3 below, BellSouth shall provide to
Talk America one (1) primary White Pages listing per Talk America
subscriber at no charge other than applicable service order charges as set
forth in Section A4 of the BellSouth General Subscriber Services Tariffs.
These service order charges are applicable for resale services only. These
service order charges are in addition to the OSS charges which are
applicable for all services.
5.3 Procedures for Submitting Talk America Subscriber Information are found in
The BellSouth Business Rules for Local Ordering.
5.3.1 Notwithstanding any provision(s) to the contrary, Talk America shall
provide to BellSouth, and BellSouth shall accept, Talk America's Subscriber
Listing Information (SLI) relating to Talk America's customers in the
geographic area(s) covered by this Interconnection Agreement. Talk America
authorizes BellSouth to release all such Talk America SLI provided to
BellSouth by Talk America to qualifying third parties via either license
agreement or BellSouth's Directory Publishers Database Service (DPDS),
General Subscriber Services Tariff, Section A38.2, as the same may be
amended from time to time. Such Talk America SLI shall be intermingled with
BellSouth's own customer listings and listings of any other CLEC that has
authorized a similar release of SLI. Where necessary, BellSouth will use
good faith efforts to obtain state commission approval of any necessary
modifications to Section A38.2 of its tariff to provide for release of
third party directory listings, including modifications regarding listings
to be released
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pursuant to such tariff and BellSouth's liability thereunder. BellSouth's
obligation pursuant to this Section shall not arise in any particular state
until the commission of such state has approved modifications to such
tariff.
5.3.2 No compensation shall be paid to Talk America for BellSouth's receipt of
Talk America SLI, or for the subsequent release to third parties of such
SLI. In addition, to the extent BellSouth incurs costs to modify its
systems to enable the release of Talk America's SLI, or costs on an ongoing
basis to administer the release of Talk America SLI, Talk America shall pay
to BellSouth its proportionate share of the reasonable costs associated
therewith.
5.3.3 Neither BellSouth nor any agent shall be liable for the content or
accuracy of any SLI provided by Talk America under this Agreement. Talk
America shall indemnify, hold harmless and defend BellSouth and its agents
from and against any damages, losses, liabilities, demands claims, suits,
judgments, costs and expenses (including but not limited to reasonable
attorneys' fees and expenses) arising from BellSouth's tariff obligations
or otherwise and resulting from or arising out of any third party's claim
of inaccurate Talk America listings or use of the SLI provided pursuant to
this Agreement. BellSouth may forward to Talk America any complaints
received by BellSouth relating to the accuracy or quality of Talk America
listings.
5.3.4 Listings and subsequent updates will be released consistent with BellSouth
system changes and/or update scheduling requirements.
5.4 Unlisted/Non-Published Subscribers. Talk America will be required to
provide to BellSouth the names, addresses and telephone numbers of all Talk
America customers that wish to be omitted from directories.
5.5 Inclusion of Talk America Customers in Directory Assistance Database.
BellSouth will include and maintain Talk America subscriber listings in
BellSouth's Directory Assistance databases at no recurring charge and Talk
America shall provide such Directory Assistance listings at no recurring
charge. Changes to subscriber listing information may be subject to non
recurring charges as set forth in Section 5.2.1. BellSouth will update the
Directory Assistance database with the same timeliness as for its retail
end users. BellSouth and Talk America will formulate appropriate procedures
regarding lead-time, timeliness, format and content of listing information.
5.6 Listing Information Confidentiality. BellSouth will accord Talk America's
directory listing information the same level of confidentiality that
BellSouth accords its own directory listing information, and BellSouth
shall limit access to Talk America's customer proprietary confidential
directory information to those BellSouth employees or agents who are
involved in the preparation of listings or directories and such information
shall not be used for other purposes.
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5.7 Additional and Designer Listings. Additional and designer listings will be
offered by BellSouth at tariffed rates as set forth in the General
Subscriber Services Tariff.
5.7.1 Enhanced Listings. Where BellSouth offers to publish, at no charge, in its
white pages directory Enhanced White Pages Listings to its retail
customers, BellSouth shall publish such listings, at no charge and under
the same terms and conditions, for Talk America for its end users. Where
BellSouth charges its retail customers for Enhanced White Pages Listings,
BellSouth shall publish such listings under the same terms and conditions
to Talk America for its Customers at the applicable wholesale discount set
forth in Attachment 1.
5.8 Directories. BellSouth or its agent shall make available White Pages
directories and Yellow Pages directories to Talk America subscribers at no
charge and in the same manner as BellSouth provides directories to its own
end users or as specified in a separate BAPCO agreement.
6. BONA FIDE REQUEST/NEW BUSINESS REQUEST PROCESS FOR FURTHER UNBUNDLING
6.1 BellSouth shall, upon request of Talk America, provide to Talk America
access to its network elements at any technically feasible point for the
provision of Talk America's telecommunications service where such access is
necessary and failure to provide access would impair the ability of Talk
America to provide services that it seeks to offer. Any request by Talk
America for access to a network element, interconnection option, or for the
provisioning of any service or product that is not already available shall
be treated as a Bona Fide Request/New Business Request (BFR/NBR), and shall
be submitted to BellSouth pursuant to the BFR/NBR process as described in
Attachment 11 to this Agreement.
6.2 Talk America shall submit any BFR/NBR in writing to Talk America's Account
Manager. The BFR/NBR shall specifically identify the requested service
date, technical requirements, space requirements and/or such specifications
that clearly define the request such that BellSouth has sufficient
information to analyze and prepare a response. The BFR/NBR also shall
include Talk America's designation of the request as being (i) pursuant to
the Act or (ii) pursuant to the needs of the business.
6.3 Upon request, a service or product requested by another carrier through the
BFR/NBR process shall be available pursuant to an amendment to Talk America
on the same rates, terms and conditions as set forth in the other carrier's
amendment for such service or product.
7. LOCAL DIALING PARITY
BellSouth shall provide local dialing parity as described in the Act and
required by FCC rules, regulations and policies. Talk America End Users
shall not have to dial any greater number of digits than BellSouth End
Users to complete the same call. In addition, Talk America End Users shall
experience at least the same service
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quality as BellSouth End Users in terms of post-dial delay, call completion
rate and transmission quality.
8. COURT ORDERED REQUESTS FOR CALL DETAIL RECORDS AND OTHER SUBSCRIBER
INFORMATION
8.1 Subpoenas Directed to BellSouth. Where BellSouth provides resold services
or local switching for Talk America, BellSouth shall respond to subpoenas
and court ordered requests delivered directly to BellSouth for the purpose
of providing call detail records when the targeted telephone numbers belong
to Talk America end users. Billing for such requests will be generated by
BellSouth and directed to the law enforcement agency initiating the
request. BellSouth shall maintain such information for Talk America end
users for the same length of time it maintains such information for its own
end users.
8.2 Subpoenas Directed to Talk America. Where BellSouth is providing to Talk
America telecommunications services for resale or providing to Talk America
the local switching function, then Talk America agrees that in those cases
where Talk America receives subpoenas or court ordered requests regarding
targeted telephone numbers belonging to Talk America end users, and where
Talk America does not have the requested information, Talk America will
advise the law enforcement agency initiating the request to redirect the
subpoena or court ordered request to BellSouth for handling in accordance
with 7.1 above.
8.3 In all other instances, where either Party receives a request for
information involving the other Party's end user, the Party receiving the
request will advise the law enforcement agency initiating the request to
redirect such request to the other Party.
9. LIABILITY AND INDEMNIFICATION
9.1 BellSouth Liability. BellSouth shall take financial responsibility for its
own actions in causing, or its lack of action in preventing, unbillable or
uncollectible Talk America revenues.
9.2 Liability for Acts or Omissions of Third Parties. Neither BellSouth nor
Talk America shall be liable for any act or omission of another
telecommunications company providing a portion of the services provided
under this Agreement.
9.3 Limitation of Liability.
9.3.1 With respect to any claim or suit, whether based in contract, tort or any
other theory of legal liability, by Talk America, any Talk America customer
or by any other person or entity, for damages associated with any of the
services provided by BellSouth pursuant to or in connection with this
Agreement, including but not limited to the installation, provision,
preemption, termination, maintenance, repair or restoration of service, and
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subject to the provisions of the remainder of this Part A, BellSouth's
liability shall be limited to an amount equal to the proportionate charge
for the service provided pursuant to this Agreement for the period during
which the service was affected. With respect to any claim or suit, whether
based in contract, tort or any other theory of legal liability, by
BellSouth, any BellSouth customer or by any other person or entity, for
damages associated with any of the services provided by Talk America
pursuant to or in connection with this Agreement, including but not limited
to the installation, provision, preemption, termination, maintenance,
repair or restoration of service, and subject to the provisions of the
remainder of this Part A, Talk America 's liability shall be limited to an
amount equal to the proportionate charge for the service provided pursuant
to this Agreement for the period during which the service was affected.
Notwithstanding the foregoing, claims for damages by Talk America, any Talk
America customer or any other person or entity resulting from the gross
negligence or willful misconduct of BellSouth and claims for damages by
Talk America resulting from the failure of BellSouth to honor in one or
more material respects any one or more of the material provisions of this
Agreement shall not be subject to such limitation of liability. Likewise,
claims for damages by BellSouth, any BellSouth customer or any other person
or entity resulting from the gross negligence or willful misconduct of Talk
America and claims for damages by BellSouth resulting from the failure of
Talk America to honor in one or more material respects any one or more of
the material provisions of this Agreement shall not be subject to such
limitation of liability.
9.3.2 Limitations in Tariffs. Subject to the provisions of 9.3.1, a Party may,
in its sole discretion, provide in its tariffs and contracts with its
Customer and third parties that relate to any service, product or function
provided or contemplated under this Agreement, that to the maximum extent
permitted by Applicable Law, such Party shall not be liable to Customer or
third Party for (i) any Loss relating to or arising out of this Agreement,
whether in contract, tort or otherwise, that exceeds the amount such party
would have charged that applicable person for the service, product or
function that gave rise to such Loss and (ii) Consequential Damages. To the
extent that a Party elects not to place in its tariffs or contracts such
limitations of liability, and the other Party incurs a Loss as a result
thereof, such Party shall indemnify and reimburse the other Party for that
portion of the Loss that would have been limited had the first Party
included in its tariffs and contracts the limitations of liability that
such other Party included in its own tariffs at the time of such Loss.
9.3.3 Neither BellSouth nor Talk America shall be liable for damages to the
other's terminal location, POI or other company's customers' premises
resulting from the furnishing of a service, including, but not limited to,
the installation and removal of equipment or associated wiring, except to
the extent caused by a company's negligence or willful misconduct or by a
company's failure to properly ground a local loop after disconnection.
9.3.4 Under no circumstance shall a Party be responsible or liable for indirect,
incidental, or consequential damages, including, but not limited to,
economic loss or lost
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business or profits, damages arising from the use or performance of
equipment or software, or the loss of use of software or equipment, or
accessories attached thereto, delay, error, or loss of data. In connection
with this limitation of liability, each Party recognizes that the other
Party may, from time to time, provide advice, make recommendations, or
supply other analyses related to the Services, or facilities described in
this Agreement, and, while each Party shall use diligent efforts in this
regard, the Parties acknowledge and agree that this limitation of liability
shall apply to provision of such advice, recommendations, and analyses.
9.4 Indemnification for Certain Claims. BellSouth and Talk America providing
services, their affiliates and their parent company, shall be indemnified,
defended and held harmless by each other against any claim, loss or damage
arising from the receiving company's use of the services provided under
this Agreement pertaining to (1) claims for libel, slander, invasion of
privacy or copyright infringement arising from the content of the receiving
company's own communications, or (2) any claim, loss or damage claimed by
the other company's customer arising from one company's use or reliance on
the other company's services, actions, duties, or obligations arising out
of this Agreement; provided that in the event of a claim arising under this
Section 9.4(2), to the extent any claim, loss or damage is caused by the
gross negligence or willful misconduct of the providing party, the
receiving Party shall have no obligation to indemnify, defend or hold
harmless the providing Party hereunder, subject to the other terms of this
Section 9.
9.5 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE
OTHER PARTY CONCERNING THE SPECIFIC QUALITY OF ANY SERVICES, OR FACILITIES
PROVIDED UNDER THIS AGREEMENT. THE PARTIES DISCLAIM, WITHOUT LIMITATION,
ANY WARRANTY OR GUARANTEE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM
USAGES OF TRADE.
9.6 Talk America and BellSouth will work cooperatively to minimize fraud
associated with third-number billed calls, calling card calls, or any other
services related to this Agreement. 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.
10. INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION
10.1 No License. No patent, copyright, trademark or other proprietary right is
licensed, granted or otherwise transferred by this Agreement. Talk America
is strictly prohibited from any use, including but not limited to in sales,
in marketing or advertising of telecommunications services, of any
BellSouth name, service xxxx or trademark. Notwithstanding the foregoing,
Talk America may use BellSouth's name (1) in response to inquiries of
customers or potential customers regarding the
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source of the underlying service or the identity of repair or service
technicians under this Agreement, and (2) Talk America may use the
BellSouth name in comparative advertising so long as the reference is
truthful and factual, does not relate to the source of the underlying
service and does not imply any agency relationship, partnership,
endorsement, sponsorship or affiliation by or with BellSouth.
10.2 Ownership of Intellectual Property. Any intellectual property which
originates from or is developed by a Party shall remain the exclusive
property of that Party. Except for a limited license to use patents or
copyrights to the extent necessary for the Parties to use any facilities or
equipment (including software) or to receive any service solely as provided
under this Agreement, no license in patent, copyright, trademark or trade
secret, or other proprietary or intellectual property right now or
hereafter owned, controlled or licensable by a Party, is granted to the
other Party or shall be implied or arise by estoppel. It is the
responsibility of each Party to ensure at no additional cost to the other
Party that it has obtained any necessary licenses in relation to
intellectual property of third Parties used in its network that may be
required to enable the other Party to use any facilities or equipment
(including software), to receive any service, or to perform its respective
obligations under this Agreement.
10.3 Indemnification. The Party providing a service pursuant to this Agreement
will defend the Party receiving such service or data provided as a result
of such service against claims of infringement arising solely from the use
by the receiving Party of such service in the manner contemplated under
this Agreement and will indemnify the receiving Party for any damages
awarded based solely on such claims in accordance with Section 9 preceding.
10.4 Claim of Infringement. In the event that use of any facilities or equipment
(including software), becomes, or in the reasonable judgment of the Party
who owns the affected network is likely to become, the subject of a claim,
action, suit, or proceeding based on intellectual property infringement,
then said Party shall promptly and at its sole expense and sole option, but
subject to the limitations of liability set forth below:
10.4.1 modify or replace the applicable facilities or equipment (including
software) while maintaining form and function, or
10.4.2 obtain a license sufficient to allow such use to continue.
10.4.3 In the event 10.4.1 or 10.4.2 are commercially unreasonable, then said
Party may, terminate, upon reasonable notice, this contract with respect to
use of, or services provided through use of, the affected facilities or
equipment (including software), but solely to the extent required to avoid
the infringement claim.
10.5 Exception to Obligations. Neither Party's obligations under this Section
shall apply to the extent the infringement is caused by: (i) modification
of the facilities or
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equipment (including software) by the indemnitee; (ii) use by the
indemnitee of the facilities or equipment (including software) in
combination with equipment or facilities (including software) not provided
or authorized by the indemnitor, provided the facilities or equipment
(including software) would not be infringing if used alone; (iii)
conformance to specifications of the indemnitee which would necessarily
result in infringement; or (iv) continued use by the indemnitee of the
affected facilities or equipment (including software) after being placed on
notice to discontinue use as set forth herein.
10.6 Exclusive Remedy. The foregoing shall constitute the Parties' sole and
exclusive remedies and obligations with respect to a third party claim of
intellectual property infringement arising out of the conduct of business
under this Agreement.
10.7 Dispute Resolution. Any claim arising under this Section 10 shall be
excluded from the dispute resolution procedures set forth in Section 13 and
shall be brought in a court of competent jurisdiction.
11. PROPRIETARY AND CONFIDENTIAL INFORMATION
11.1 Proprietary and Confidential Information. It may be necessary for BellSouth
and Talk America, each as the "Discloser," to provide to the other Party,
as "Recipient," certain proprietary and confidential information (including
trade secret information) including but not limited to technical,
financial, marketing, staffing and business plans and information,
strategic information, proposals, request for proposals, specifications,
drawings, maps, prices, costs, costing methodologies, procedures,
processes, business systems, software programs, techniques, customer
account data, call detail records and like information. This proprietary
and confidential information also includes, but is not limited to all
orders for Services and Network Elements placed by either Party, and
information that would constitute customer proprietary network information
and recorded usage data, whether disclosed by the Discloser or otherwise
acquired by the Recipient in the course of the performance of this
Agreement. (This proprietary and confidential information is collectively
the "Information"). All such Information conveyed in writing or other
tangible form shall be clearly marked with a confidential or proprietary
legend. Notwithstanding the foregoing, the Parties agree that all orders
for Services and Network Elements and information that would constitute
customer proprietary network information and recorded usage data is
proprietary and confidential information and as such no confidential or
proprietary legend is required. Information conveyed orally by the
Discloser to Recipient shall be designated as proprietary and confidential
at the time of such oral conveyance, shall be reduced to writing by the
Discloser within forty-five (45) days thereafter, and shall be clearly
marked with a confidential or proprietary legend. All information provided
to Recipient by Discloser shall be treated as proprietary and confidential.
11.2 Use and Protection of Information. Recipient shall use the Information
solely for the purpose(s) of performing this Agreement, and Recipient shall
protect
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Information from any use, distribution or disclosure except as permitted
hereunder. Recipient will use the same standard of care to protect
Information as Recipient uses to protect its own similar confidential and
proprietary information, but not less than a reasonable standard of care.
Recipient may disclose Information solely to the Authorized Representatives
of the Recipient who (a) have a substantive need to know such Information
in connection with performance of the Agreement; (b) have been advised of
the confidential and proprietary nature of the Information; and (c) have
personally agreed in writing to protect from unauthorized disclosure all
confidential and proprietary information, of whatever source, to which they
have access in the course of their employment. Unless otherwise agreed,
Recipient shall not permit employees or agents of Recipient with end user
marketing, product development, or any other non-Discloser purpose, to have
access to Information under any circumstances, and in no event shall the
Information be used to create a lead or other information base for a
"winback" sales program. "Authorized Representatives" are the officers,
directors and employees of Recipient and its Affiliates, as well as
Recipient's and its Affiliates' consultants, contractors, counsel and
agents.
11.3 Exceptions. Discloser's Information does not include: (a) any information
publicly disclosed by Discloser; (b) any information Discloser in writing
authorizes Recipient to disclose without restriction; (c) any information
already lawfully known to Recipient at the time it is disclosed by the
Discloser, without an obligation to keep confidential; or (d) any
information Recipient lawfully obtains from any source other than
Discloser, provided that such source lawfully disclosed and/or
independently developed such information. If Recipient is required to
provide Information to any court or government agency pursuant to written
court order, subpoena, regulation or process of law, Recipient must first
provide Discloser with prompt written notice of such requirement and
cooperate with Discloser to appropriately protect against or limit the
scope of such disclosure. To the fullest extent permitted by law, Recipient
will continue to protect as confidential and proprietary all Information
disclosed in response to a written court order, subpoena, regulation or
process of law.
11.4 Ownership, Copying & Return of Information. Information remains at all
times the property of Discloser. Recipient may make tangible or electronic
copies, notes, summaries or extracts of Information only as necessary for
use as authorized herein. All such tangible or electronic copies, notes,
summaries or extracts must be marked with the same confidential and
proprietary notice as appears on the original. Upon Discloser's request,
all or any requested portion of the Information (including, but not limited
to, tangible and electronic copies, notes, summaries or extracts of any
information) will be promptly returned to Discloser or destroyed according
to Discloser's request, and Recipient will provide Discloser with written
certification stating that such Information has been returned or destroyed.
11.5 Recipient agrees to use the Information solely for the purposes of
negotiations pursuant to 47 U.S.C. 251 or in performing its obligations
under this Agreement and for no other entity or purpose, except as may be
otherwise agreed to in writing
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by the Parties. Nothing herein shall prohibit Recipient from providing
information requested by the Federal Communications Commission or a state
regulatory agency with jurisdiction over this matter, or to support a
request for arbitration or an allegation of failure to negotiate in good
faith, provided Recipient simultaneously notifies the other Party and
provides the other Party with a copy of the information.
11.6 Recipient agrees not to publish or use the Information for any advertising,
sales promotions, press releases, or publicity matters that refer either
directly or indirectly to the Information or to the Discloser or any of its
affiliated companies.
11.7 The disclosure of Information neither grants nor implies any license to the
Recipient under any trademark, patent, copyright, or application which is
now or may hereafter be owned by the Discloser.
11.8 Equitable Relief. Recipient acknowledges and agrees that any breach or
threatened breach of this Agreement is likely to cause Discloser
irreparable harm for which money damages may not be an appropriate or
sufficient remedy. Recipient therefore agrees that Discloser or its
Affiliates, as the case may be, are entitled to receive injunctive or other
equitable relief to remedy or prevent any breach or threatened breach of
this Agreement. Such remedy is not the exclusive remedy for any breach or
threatened breach of this Agreement, but is in addition to all other rights
and remedies available at law or in equity.
11.9 Survival of Confidentiality Obligations. The Parties' rights and
obligations under this Section 11 shall survive and continue in effect
until two (2) years after the expiration or termination date of this
Agreement with regard to all Information exchanged during the term of this
Agreement. Thereafter, the Parties' rights and obligations hereunder
survive and continue in effect with respect to any Information that is a
trade secret under applicable law.
11.10 Assignments
11.10.1 Any assignment by either Party to any non-affiliated entity of any
right, obligation or duty, or of any other interest hereunder, in whole or
in part, without the prior written consent of the other Party shall be
void. Such consent will not be unreasonably withheld. A Party may assign
this Agreement or any right, obligation, duty or other interest hereunder
to an Affiliate of the Party without the consent of the other Party;
provided, however, that the assigning Party shall notify the other Party in
writing of such assignment thirty (30) days prior to the Effective Date
thereof and, provided further, if the assignee is an assignee of Talk
America, the assignee must provide evidence of Commission CLEC
certification. The Parties shall amend this Agreement to reflect such
assignments and shall work cooperatively to implement any changes required
due to such assignment. All obligations and duties of any Party under this
Agreement shall be binding on all successors in interest and assigns of
such Party. No assignment or delegation
General Terms and Conditions
Page 14
hereof shall relieve the assignor of its obligations under this Agreement
in the event that the assignee fails to perform such obligations.
12. ESCALATION PROCEDURES
Each Party hereto shall provide the other party hereto with the names and
telephone numbers or pagers of their respective managers up to the Vice
Presidential level for the escalation of unresolved matters relating to
their performance of their duties under this Agreement. Each Party shall
supplement and update such information as necessary to facilitate prompt
resolution of such matters. Each Party further agrees to establish an
automatic internal escalation procedure relating to unresolved disputes
arising under this Agreement.
13. RESOLUTION OF DISPUTES
13.1 Except as otherwise provided herein, any dispute, controversy or claim
(individually and collectively, a "Dispute") arising under this Agreement
shall be resolved in accordance with the procedures set forth in this
Section. In the event of a Dispute between the Parties relating to this
Agreement, and upon the written request of either Party, each of the
Parties shall appoint within ten (10) calendar days after a Party's receipt
of such request, a designated representative who has authority to settle
the Dispute and who is at a higher level of management than the persons
with direct responsibility for administration of this Agreement. The
designated representatives shall meet as often as they reasonably deem
necessary in order to discuss the Dispute and negotiate in good faith in an
effort to resolve such Dispute. The specific format for such discussions
will be left to the discretion of the designated representatives; however,
all reasonable requests for relevant information made by one Party to the
other Party shall be honored. If the Parties are unable to resolve issues
related to a Dispute within thirty (30) days after a Party's request is
made for appointment of designated representatives as set forth above,
either Party may seek relief from the appropriate state regulatory agency
of any Dispute upon which the Parties hereto are unable to reach agreement
or may seek such other relief to which it is entitled to under Applicable
Law. Notwithstanding the foregoing, in no event shall the Parties permit
the pendency of a Dispute to disrupt service to any Talk America or
BellSouth End User, unless such service is damaging or interfering with
customer services or network operations.
13.2 The Parties agree that this Section does not prevent either Party from
seeking temporary equitable remedies, including temporary restraining
orders. A request by a Party to a court or a regulatory authority for
interim measures or equitable relief shall not be deemed a waiver of the
obligation to comply with the Dispute Resolution provisions.
14. TAXES
14.1 Definition. For purposes of this Section, the terms "taxes" and "fees"
shall include but not limited to federal, state or local sales, use,
excise, gross receipts or other
General Terms and Conditions
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taxes or tax-like fees of whatever nature and however designated (including
tariff surcharges and any fees, charges or other payments, contractual or
otherwise, for the use of public streets or rights of way, whether
designated as franchise fees or otherwise) imposed, or sought to be
imposed, on or with respect to the services furnished hereunder or measured
by the charges or payments therefore, excluding any taxes levied on income.
14.2 Taxes and Fees Imposed Directly On Either Providing Party or Purchasing
Party.
14.2.1 Taxes and fees imposed on the providing Party, which are not permitted or
required to be passed on by the providing Party to its customer, shall be
borne and paid by the providing Party.
14.2.2 Taxes and fees imposed on the purchasing Party, which are not required to
be collected and/or remitted by the providing Party, shall be borne and
paid by the purchasing Party.
14.3 Taxes and Fees Imposed on Purchasing Party But Collected And Remitted By
Providing Party.
14.3.1 Taxes and fees imposed on the purchasing Party shall be borne by the
purchasing Party, even if the obligation to collect and/or remit such taxes
or fees is placed on the providing Party.
14.3.2 To the extent permitted by applicable law, any such taxes and/or fees
shall be shown as separate items on applicable billing documents between
the Parties. Notwithstanding the foregoing, the purchasing Party shall
remain liable for any such taxes and fees regardless of whether they are
actually billed by the providing Party at the time that the respective
service is billed.
14.3.3 If the purchasing Party determines that in its opinion any such taxes or
fees are not payable, the providing Party shall not xxxx such taxes or fees
to the purchasing Party if the purchasing Party provides written
certification, reasonably satisfactory to the providing Party, stating that
it is exempt or otherwise not subject to the tax or fee, setting forth the
basis therefor, and satisfying any other requirements under applicable law.
If any authority seeks to collect any such tax or fee that the purchasing
Party has determined and certified not to be payable, or any such tax or
fee that was not billed by the providing Party, the purchasing Party may
contest the same in good faith, at its own expense. In any such contest,
the purchasing Party shall promptly furnish the providing Party with copies
of all filings in any proceeding, protest, or legal challenge, all rulings
issued in connection therewith, and all correspondence between the
purchasing Party and the taxing authority.
14.3.4 In the event that all or any portion of an amount sought to be collected
must be paid in order to contest the imposition of any such tax or fee, or
to avoid the existence of a lien on the assets of the providing Party
during the pendency of such contest, the purchasing Party shall be
responsible for such payment and shall be entitled to the benefit of any
refund or recovery.
General Terms and Conditions
Page 16
14.3.5 If it is ultimately determined that any additional amount of such a tax
or fee is due to the imposing authority, the purchasing Party shall pay
such additional amount, including any interest and penalties thereon.
14.3.6 Notwithstanding any provision to the contrary, the purchasing Party shall
protect, indemnify and hold harmless (and defend at the purchasing Party's
expense) the providing Party from and against any such tax or fee, interest
or penalties thereon, or other charges or payable expenses (including
reasonable attorney fees) with respect thereto, which are incurred by the
providing Party in connection with any claim for or contest of any such tax
or fee.
14.3.7 Each Party shall notify the other Party in writing of any assessment,
proposed assessment or other claim for any additional amount of such a tax
or fee by a taxing authority; such notice to be provided, if possible, at
least ten (10) days prior to the date by which a response, protest or other
appeal must be filed, but in no event later than thirty (30) days after
receipt of such assessment, proposed assessment or claim.
14.4 Taxes and Fees Imposed on Providing Party But Passed On To Purchasing
Party.
14.4.1 Taxes and fees imposed on the providing Party, which are permitted or
required to be passed on by the providing Party to its customer, shall be
borne by the purchasing Party.
14.4.2 To the extent permitted by applicable law, any such taxes and/or fees
shall be shown as separate items on applicable billing documents between
the Parties. Notwithstanding the foregoing, the purchasing Party shall
remain liable for any such taxes and fees regardless of whether they are
actually billed by the providing Party at the time that the respective
service is billed.
14.4.3 If the purchasing Party disagrees with the providing Party's
determination as to the application or basis for any such tax or fee, the
Parties shall consult with respect to the imposition and billing of such
tax or fee. Notwithstanding the foregoing, the providing Party shall retain
ultimate responsibility for determining whether and to what extent any such
taxes or fees are applicable, and the purchasing Party shall abide by such
determination and pay such taxes or fees to the providing Party. The
providing Party shall further retain ultimate responsibility for
determining whether and how to contest the imposition of such taxes and
fees; provided, however, that any such contest undertaken at the request of
the purchasing Party shall be at the purchasing Party's expense.
14.4.4 In the event that all or any portion of an amount sought to be collected
must be paid in order to contest the imposition of any such tax or fee, or
to avoid the existence of a lien on the assets of the providing Party
during the pendency of such contest, the purchasing Party shall be
responsible for such payment and shall be entitled to the benefit of any
refund or recovery.
General Terms and Conditions
Page 17
14.4.5 If it is ultimately determined that any additional amount of such a tax
or fee is due to the imposing authority, the purchasing Party shall pay
such additional amount, including any interest and penalties thereon.
14.4.6 Notwithstanding any provision to the contrary, the purchasing Party shall
protect indemnify and hold harmless (and defend at the purchasing Party's
expense) the providing Party from and against any such tax or fee, interest
or penalties thereon, or other reasonable charges or payable expenses
(including reasonable attorney fees) with respect thereto, which are
incurred by the providing Party in connection with any claim for or contest
of any such tax or fee.
14.4.7 Each Party shall notify the other Party in writing of any assessment,
proposed assessment or other claim for any additional amount of such a tax
or fee by a taxing authority; such notice to be provided, if possible, at
least ten (10) days prior to the date by which a response, protest or other
appeal must be filed, but in no event later than thirty (30) days after
receipt of such assessment, proposed assessment or claim.
14.5 Mutual Cooperation. In any contest of a tax or fee by one Party, the other
Party shall cooperate fully by providing records, testimony and such
additional information or assistance as may reasonably be necessary to
pursue the contest. Further, the other Party shall be reimbursed for any
reasonable and necessary out of- pocket copying and travel expenses
incurred in assisting in such contest.
15. NETWORK MAINTENANCE AND MANAGEMENT
15.1 The Parties shall work cooperatively to implement this Agreement. The
Parties shall exchange appropriate information (e.g., maintenance contact
numbers, network information, information required to comply with law
enforcement and other security agencies of the Government, etc.) as
reasonably required to implement and perform this Agreement.
15.2 Each Party hereto shall design, maintain and operate their respective
networks as necessary to ensure that the other Party hereto receives
service quality which is consistent with generally accepted industry
standards at least at parity with the network service quality given to
itself, its Affiliates, its End Users.
15.3 Neither Party shall use any service or facility provided under this
Agreement in a manner that impairs the quality of service to other
telecommunications carriers' or to either Party's End Users. Each Party
will provide the other Party notice of any such impairment at the earliest
practicable time.
15.4 BellSouth agrees to provide Talk America prior notice consistent with
applicable FCC rules and the Act of changes in the information necessary
for the transmission and routing of services using BellSouth'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 BellSouth's ability to upgrade its network through the incorporation
of new equipment, new software or otherwise so long as
General Terms and Conditions
Page 18
such upgrades are not inconsistent with BellSouth's obligations to Talk
America under the terms of this Agreement.
16. FORCE MAJEURE
16.1 In the event performance of this Agreement, or any obligation hereunder, is
either directly or indirectly prevented, restricted, or interfered with by
reason of fire, flood, earthquake or like acts of God, wars, acts of
terriorism, revolution, civil commotion, explosion, acts of public enemy,
embargo, acts of the government in its sovereign capacity, labor
difficulties, including without limitation, strikes, slowdowns, picketing,
or boycotts, unavailability of equipment from vendor, changes requested by
Customer, or any other circumstances beyond the reasonable control and
without the fault or negligence of the Party affected, the Party affected,
upon giving prompt notice to the other Party, shall be excused from such
performance on a day-to-day basis to the extent of such prevention,
restriction, or interference (and the other Party shall likewise be excused
from performance of its obligations on a day-to-day basis until the delay,
restriction or interference has ceased); provided however, that the Party
so affected shall use diligent efforts to avoid or remove such causes of
non-performance and both Parties shall proceed whenever such causes are
removed or cease.
17. ADOPTION OF AGREEMENTS
17.1 BellSouth shall make available, pursuant to 47 USC 252 and the FCC rules
and regulations regarding such availability, to Talk America any
interconnection, service, or network element provided under any other
agreement filed and approved pursuant to 47 USC 252 in that respective
state. The Parties shall adopt all rates, terms and conditions concerning
such other interconnection, service or network element and any other rates,
terms and conditions that are legitimately related to or were negotiated in
exchange for or in conjunction with the interconnection, service or network
element being adopted. The rates, terms and conditions adopted by the
Parties shall be effective as of the date the Agreement is amended. The
adopted interconnection, service, or network element and agreement shall
apply to the same states as such other agreement. The term of the adopted
agreement or provisions shall expire on the same date as set forth in the
agreement which was adopted.
18. MODIFICATION OF AGREEMENT
18.1 If Talk America changes its name or makes changes to its company structure
or identity due to a merger, acquisition, transfer or any other reason, it
is the responsibility of Talk America to notify BellSouth of said change
and request that an amendment to this Agreement, if necessary, be executed
to reflect said change.
18.2 No modification, amendment, supplement to, or waiver of the Agreement or
any of its provisions shall be effective and binding upon the Parties
unless it is made in writing and duly signed by the Parties.
General Terms and Conditions
Page 19
18.3 In the event that any effective legislative, regulatory, judicial or other
legal action materially affects any material terms of this Agreement, or
the ability of Talk America or BellSouth to perform any material terms of
this Agreement, Talk America or BellSouth may, on fifteen (15) days'
written notice require that such terms be renegotiated, and the Parties
shall renegotiate in good faith such mutually acceptable new terms as may
be required. In the event that such new terms are not renegotiated within
forty-five (45) days after such notice, the Dispute shall be referred to
the Dispute Resolution procedure set forth in this Agreement. In the event
that the Parties reach agreement as to the new terms consistent with the
above, the Parties agree to make the effective date of such amendment
consistent with the effective date specified in the action or, if the
action is silent, then as negotiated between the Parties on a case by case
basis.
18.4 Notwithstanding anything to the contrary in this Agreement, this Agreement
shall not be amended or modified after the expiration date hereof as set
forth in Section 2 above.
19. NON-WAIVER OF LEGAL RIGHTS
19.1 Execution of this Agreement by either Party does not confirm or infer that
the executing Party agrees with any decision(s) issued pursuant to the Act
and the consequences of those decisions on specific language in this
Agreement. Neither Party waives its rights to appeal or otherwise challenge
any such decision(s) and each Party reserves all of its rights to pursue
any and all legal and/or equitable remedies, including appeals of any such
decision(s).
20. INDIVISIBILITY
20.1 The Parties intend that this Agreement be indivisible and nonseverable, and
each of the Parties acknowledges that it has assented to all of the
covenants and promises in this Agreement as a single whole and that all of
such covenants and promises, taken as a whole, constitute the essence of
the contract. Without limiting the generality of the foregoing, each of the
Parties acknowledges that any provision by BellSouth of Collocation Space
(or space pursuant to Adjacent Arrangement) under this Agreement is solely
for the purpose of facilitating the provision of other services under this
Agreement and that neither Party would have contracted with respect to the
provisioning of Collocation Space (or space pursuant to Adjacent
Arrangement) if the covenants and promises of the other Party with respect
to the other services provided for under this Agreement had not been made.
The Parties further acknowledge that this Agreement is intended to
constitute a single transaction, that the obligations of the Parties under
this Agreement are interdependent, and that payment obligations under this
Agreement are intended to be recoupable against other payment obligations
under this Agreement.
21. WAIVERS
General Terms and Conditions
Page 20
21.1 A failure or delay of either Party to enforce any of the provisions hereof,
to exercise any option which is herein provided, or to require performance
of any of the provisions hereof shall in no way be construed to be a waiver
of such provisions or options, and each Party, notwithstanding such
failure, shall have the right thereafter to insist upon the performance of
any and all of the provisions of this Agreement.
22. GOVERNING LAW
22.1 To the extent any provisions of this Agreement are subject to the
jurisdiction of the FCC, applicable federal rules and regulations shall
govern those provisions. To the extent any provisions of this Agreement are
subject to the jurisdiction of the state Commission, applicable Commission
rules and regulations shall govern those provisions. All other provisions
of this Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Georgia, without regard to its
conflict of laws principles.
23. ARM'S LENGTH NEGOTIATIONS
23.1 This Agreement was executed after arm's length negotiations between the
undersigned Parties and reflects the conclusion of the undersigned that
this Agreement is in the best interests of all Parties.
24. NOTICES
24.1 Every notice, consent, approval, or other communications required or
contemplated by this Agreement shall be in writing and shall be delivered
by hand, by overnight courier or by US mail postage prepaid, address to:
BELLSOUTH TELECOMMUNICATIONS, INC.
Account Team
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
and
General Attorney - COU
Suite 4300
000 X. Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
General Terms and Conditions
Page 21
TALK AMERICA
Senior Vice President, Operations
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
and
General Counsel
0000 Xxxxx 000
Xxx Xxxx, XX 00000
and
Director, Carrier Relations
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
or at such other address as the intended recipient previously shall have
designated by written notice to the other Party.
24.2 Where specifically required, notices shall be by certified or registered
mail. Unless otherwise provided in this Agreement, notice by mail shall be
effective on the date it is officially recorded as delivered by return
receipt or equivalent, and in the absence of such record of delivery, it
shall be presumed to have been delivered the fifth day, or next business
day after the fifth day, after it was deposited in the mails.
24.3 Notwithstanding the foregoing, BellSouth shall provide Talk America 45-day
advance notice, to the extent that BellSouth is afforded 45 days notice
from the Commission, via Internet posting of price changes, changes to the
terms and conditions of services available for resale per Commission
Orders. To the extent that revisions occur between the time BellSouth
notifies Talk America of changes under this Agreement and the time the
changes are scheduled to be implemented, BellSouth will immediately notify
Talk America of such revisions consistent with its internal notification
process. Talk America may not hold BellSouth responsible for any cost
incurred as a result of such revisions, unless such costs are incurred as a
result of BellSouth's intentional misconduct. Talk America may not utilize
any notice given under this subsection concerning a service to market
resold offerings of that service in advance of BellSouth. BellSouth will
also post changes to business processes and policies, notices of new
service offerings, and changes to service offerings not requiring an
amendment to this Agreement, notices required to be posted to BellSouth's
website, and any other information of general applicability to CLECs.
25. RULE OF CONSTRUCTION
General Terms and Conditions
Page 22
25.1 No rule of construction requiring interpretation against the drafting Party
hereof shall apply in the interpretation of this Agreement.
26. HEADINGS OF NO FORCE OR EFFECT
26.1 The headings of Articles and Sections of this Agreement are for convenience
of reference only, and shall in no way define, modify or restrict the
meaning or interpretation of the terms or provisions of this Agreement.
27. MULTIPLE COUNTERPARTS
27.1 This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which shall together constitute but
one and the same document.
28. IMPLEMENTATION OF AGREEMENT
28.1 If Talk America is a facilities based provider or a facilities based and
resale provider, this section shall apply. Within 60 days of the execution
of this Agreement, the Parties may adopt a schedule for the implementation
of the Agreement. The schedule shall state with specificity time frames for
submission of including but not limited to, network design, interconnection
points, collocation arrangement requests, pre-sales testing and full
operational time frames for the business and residential markets.
29. FILING OF AGREEMENT
29.1 Upon execution of this Agreement it shall be filed with the appropriate
state regulatory agency pursuant to the requirements of Section 252 of the
Act, and the Parties shall share equally any filing fees therefor. If the
regulatory agency imposes any filing or public interest notice fees
regarding the filing or approval of the Agreement, Talk America shall be
responsible for publishing the required notice and the publication and/or
notice costs shall be borne by Talk America. Notwithstanding the foregoing,
this Agreement shall not be submitted for approval by the appropriate state
regulatory agency unless and until such time as Talk America is duly
certified as a local exchange carrier in such state, except as otherwise
required by a state Commission.
30. COMPLIANCE WITH APPLICABLE LAW
30.1 Each Party shall comply at its own expense with Applicable Law.
31. NECESSARY APPROVALS
31.1 Each Party shall be responsible for obtaining and keeping in effect all
approvals from, and rights granted by, governmental authorities, building
and property owners, other carriers, and any other persons that may be
required in connection with the performance of its obligations under this
Agreement. Each Party shall reasonably cooperate with the other Party in
obtaining and maintaining any
General Terms and Conditions
Page 23
required approvals and rights for which such Party is responsible.
32. GOOD FAITH PERFORMANCE
32.1 Each Party shall act in good faith in its performance under this Agreement
and, in each case in which a Party's consent or agreement is required or
requested hereunder, such Party shall not unreasonably withhold or delay
such consent or agreement.
33. NONEXCLUSIVE DEALINGS
33.1 This Agreement does not prevent either Party from providing or purchasing
services to or from any other person nor, except as provided in Section
252(i) of the Act, does it obligate either Party to provide or purchase any
services (except insofar as the Parties are obligated to provide access to
Interconnection, services and Network Elements to Talk America as a
requesting carrier under the Act).
34. RATE TRUE-UP
34.1 This section applies to Local Interconnection and/or Unbundled Network
Elements and Other Services rates that are interim or expressly subject to
true-up under this Agreement.
34.2 The interim prices for Network Elements and Other Services and Local
Interconnection shall be subject to true-up according to the following
procedures:
34.3 The interim prices shall be trued-up, either up or down, based on final
prices determined either by further agreement between the Parties, or by a
final order (including any appeals) of the Commission which final order
meets the criteria of (3) below. The Parties shall implement the true-up by
comparing the actual volumes and demand for each item, together with
interim prices for each item, with the final prices determined for each
item. Each Party shall keep its own records upon which the true-up can be
based, and any final payment from one Party to the other shall be in an
amount agreed upon by the Parties based on such records. In the event of
any disagreement as between the records or the Parties regarding the amount
of such true-up, the Parties agree that the body having jurisdiction over
the matter shall be called upon to resolve such differences, or the Parties
may mutually agree to submit the matter to the Dispute Resolution process
in accordance with the provisions of Section 13 of the General Terms and
Conditions and Attachment 1 of this Agreement.
34.4 The Parties may continue to negotiate toward final prices, but in the event
that no such Agreement is reached within nine (9) months, either Party may
petition the Commission to resolve such disputes and to determine final
prices for each item. Alternatively, upon mutual agreement, the Parties may
submit the matter to the Dispute Resolution Process set forth in Section 13
of the General Terms and Conditions and Attachment 1 of this Agreement, so
long as they file the resulting
General Terms and Conditions
Page 24
Agreement with the Commission as a "negotiated Agreement" under Section
252(e) of the Act.
34.5 An effective order of the Commission that forms the basis of a true-up
shall be based upon cost studies submitted by either or both Parties to the
Commission and shall be binding upon BellSouth and Talk America
specifically or upon all carriers generally, such as a generic cost
proceeding.
35. SURVIVAL
35.1 The Parties' obligations under this Agreement which by their nature are
intended to continue beyond the termination or expiration of this Agreement
shall survive the termination or expiration of this Agreement.
36. ESTABLISHMENT OF SERVICE
In accordance with FCC Slamming Liability Rules, BellSouth will reestablish
service with the appropriate local service provider and will assess Talk
America as the CLEC initiating the alleged unauthorized change, the
appropriate nonrecurring charges, as set forth in Section A4 of the General
Subscriber Service Tariff.
37. ENTIRE AGREEMENT
37.1 This Agreement and its Attachments, incorporated herein by this reference,
sets forth the entire understanding and supersedes prior interconnection
agreements between the Parties relating to the subject matter contained
herein and merges all prior discussions between them. Any orders placed
under prior agreements between the Parties shall be governed by the terms
of this Agreement. Neither Party shall be bound by any definition,
condition, provision, representation, warranty, covenant or promise other
than as expressly stated in this Agreement or as is contemporaneously or
subsequently set forth in writing and executed by a duly authorized officer
or representative of the Party to be bound thereby.
37.2 This Agreement includes Attachments with provisions for the following:
Resale
Network Elements and Other Services
Network Interconnection
Collocation
Access to Numbers and Number Portability
Pre-Ordering, Ordering and Provisioning, Maintenance and Repair
Billing and Billing Accuracy Certification
Rights-of-Way, Conduits and Pole Attachments
Performance Measurements
BellSouth Disaster Recovery Plan
Bona Fide Request/New Business Request Process
General Terms and Conditions
Page 25
Talk America shall be permitted, at its discretion, to configure these
services with respect to any manner necessary to provide telephone exchange
or exchange access service to Talk America End Users.
37.3 THE FOLLOWING SERVICES ARE INCLUDED AS OPTIONS FOR PURCHASE BY TALK
AMERICA. TALK AMERICA MAY ELECT TO PURCHASE SAID SERVICES BY WRITTEN
REQUEST TO ITS ACCOUNT MANAGER IF APPLICABLE:
Optional Daily Usage File (ODUF)
Enhanced Optional Daily Usage File (EODUF)
Access Daily Usage File (ADUF)
Line Information Database (LIDB) Storage
Centralized Message Distribution Service (CMDS)
Calling Name (CNAM)
LNP Data Base Query Service
38. RELATIONSHIP OF PARTIES
This Agreement shall 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 shall 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
this Agreement shall be construed as providing for the sharing of profits
or losses arising out of the efforts of either or both of the Parties.
Nothing herein shall be construed as making either Party responsible or
liable for the obligations and undertakings of the other Party.
39. THIRD PARTY BENEFICIARIES
This Agreement does not provide, and shall not be construed to provide,
third parties with any benefit, remedy, claim, liability, reimbursement,
cause of action, or other privilege.
40. COOPERATION ON PREVENTING END USER FRAUD
The Parties agree to cooperate fully with one another to investigate,
minimize, prevent, and take corrective action in cases of fraud.
41. INDEPENDENT CONTRACTORS
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 shall 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. Subject to the
General Terms and Conditions
Page 26
limitations on liability and except as otherwise provided in this
Agreement, each Party shall 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.
42. SUBCONTRACTING
If any obligation is performed through a subcontractor, each Party shall
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 shall 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 any facilities or services provided herein, shall
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 shall 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 shall be required by the
subcontracting Party to protect such CPNI or Confidential Information to
the same extent that the subcontracting Party is required to protect the
same under the terms of this Agreement.
43. CUSTOMER INQUIRIES AND DISPARAGEMENT
43.1 Each Party shall refer all questions regarding the other Party's services
or products directly to the other Party at a telephone number specified by
that Party.
43.2 Each Party shall ensure that each of their representatives who receive
inquiries regarding the other Party's services: (i) provide the numbers
described in Section 43.1 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.
43.3 Neither Party shall disparage the other Party when speaking with a customer
or potential customer.
44. LABOR RELATIONS
General Terms and Conditions
Page 27
Each Party shall be responsible for labor relations with its own employees.
Each Party agrees to notify the other Party as soon as practicable whenever
such Party has knowledge that a labor dispute concerning its employees is
delaying or threatens to delay such Party's timely performance of its
obligations under this Agreement and shall endeavor to minimize impairment
of service to the other Party (by using its management personnel to perform
work or by other means) in the event of a labor dispute to the extent
permitted by Applicable Law.
45. COMPLIANCE WITH THE COMMUNICATIONS LAW ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment, facilities or
services provided to the other Party under this Agreement comply with CALEA
to the extent applicable. Each Party shall indemnify and hold the other
Party harmless from any and all penalties imposed upon the other Party for
such other Party's noncompliance, and shall at the non-compliant Party's
sole cost and expense, modify or replace any equipment, facilities or
services provided to the other Party under this Agreement to ensure that
such equipment, facilities and services fully comply with CALEA.
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year
written below.
BELLSOUTH TELECOMMUNICATIONS, INC. THE OTHER PHONE COMPANY, INC.
D/B/A ACCESS ONE COMMUNICATIONS
THE OTHER PHONE COMPANY, INC.
D/B/A TALK AMERICA INC. (NOT IN
FLORIDA)
TALK AMERICA INC.
/s/ X. X. Xxxxx /s/ Xxxxxxxx X. Lawn IV
------------------------- -------------------------
Signature Signature
X. X. Xxxxx Xxxxxxxx X. Lawn IV
------------------------- -------------------------
Name Name
Managing Director EVP-General Counsel
------------------------- -------------------------
Title Title
5-13-02 5-10-02
------------------------- -------------------------
Date Date
