RESALE AGREEMENT
(New Jersey)
PREFACE
THIS RESALE AGREEMENT (this "Agreement") is made effective as of
August 6, 1999 (the "Effective Date") by and between Xxxxxxxxx.Xxx, Inc.
("Reseller"), a Delaware corporation, with offices at Three Xxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx, XX 00000, and Xxxx Atlantic - New Jersey, Inc. ("Xxxx
Atlantic"), a New Jersey corporation, with offices at 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx, Xxx Xxxxxx 00000.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section
251(c)(4), Reseller wishes to purchase Xxxx Atlantic Retail Telecommunications
Services from Xxxx Atlantic for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services in the State of New Jersey; and
WHEREAS, Xxxx Atlantic is willing to provide such Xxxx Atlantic Retail
Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth in
this Agreement, Reseller and Xxxx Atlantic, each on behalf of itself and its
respective successors and assigns, agree as follows:
I. DEFINITIONS
1.1 As used in the Principal Document, the terms listed below shall have
the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C. Section 151,
ET SEQ., as amended from time-to-time.
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government regulations
and orders.
1.1.4 "Xxxx Atlantic Ancillary Service" means any service offered by Xxxx
Atlantic to Reseller in Exhibit I.
1.1.5 "Xxxx Atlantic Retail Telecommunications Service" means any
Telecommunications Service that Xxxx Atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Xxxx
Atlantic Retail Telecommunications
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Service" does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16)) provided by Xxxx
Atlantic.
1.1.6 "Xxxx Atlantic Service" means and includes any Xxxx Atlantic Retail
Telecommunications Service and any Xxxx Atlantic Ancillary Service.
1.1.7 "Xxxx Atlantic's Affiliates" means any corporations, partnerships or
other persons who control, are controlled by, or are under common control
with, Xxxx Atlantic.
1.1.8 "Xxxx Atlantic's Tariffs" and "Xxxx Atlantic Tariff" mean and
include:
(a) Xxxx Atlantic's effective Federal and state tariffs, as amended by
Xxxx Atlantic from time-to-time; and,
(b) to the extent Xxxx Atlantic Services are not subject to Xxxx
Atlantic tariffs, any standard agreements and other documents, as amended
by Xxxx Atlantic from time-to-time, that set forth the generally available
terms, conditions and prices under which Xxxx Atlantic offers such Xxxx
Atlantic Services.
The terms "Xxxx Atlantic's Tariffs" and "Xxxx Atlantic Tariff" do not
include Xxxx Atlantic's "Statement of Generally Available Terms and
Conditions for Interconnection, Unbundled Network Elements, Ancillary
Services and Resale of Telecommunications Services" which has been approved
by the Board pursuant to Section 252(f) of the Act, 47 U.S.C. Section
252(f).
1.1.9 "Board" means the New Jersey Board of Public Utilities.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2, means
a stated period or minimum period of time for which Reseller is required by
this Agreement to subscribe to, use and/or pay for a Xxxx Atlantic Service.
1.1.11 "Customer", means and includes customers, subscribers and patrons,
of a Party, purchasers and users of Telecommunications Services (including,
but not limited to, resold Xxxx Atlantic Retail Telecommunications
Services) provided by a Party, and purchasers and users of other services
and products provided by a Party. The term "Customer" does not include a
Party.
1.1.12 "Xxxx Atlantic Customer" means a Customer of Xxxx Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
nonpublic, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
1.1.14 "Customer Proprietary Network Information" ("CPNI") means "Customer
Proprietary Network Information" as defined in Section 222 of the Act, 47
U.S.C. Section 222.
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1.1.15 "Effective Date" means the date first above written.
1.1.16 "Jurisdiction" means the State of New Jersey.
1.1.17 "Operator Services" means: (a) services accessed by dialing 411,
555-1212, 0-000-0000, 0+ local, 0+ intraLATA, and, 0-; and, (b) any other
automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
1.1.19 "Principal Document" means this document, including the Preface,
Sections 1 through 39, the signature page, Exhibit I, Exhibit II, and
Exhibit II, Attachment I.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Xxxx Atlantic Retail
Telecommunications Services are provided by Xxxx Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications Carrier" as
defined in Section 3(44) of the Act, 47 U.S.C. Section 153(44).
1.1.23 "Telecommunications Service" means "Telecommunications Service" as
defined in Section 3(46) of the Act, 47 U.S.C. Section 153(46).
1.1.24 "Telephone Exchange Service" means "Telephone Exchange Service" as
defined in Section 3(47) of the Act, 47 U.S.C. Section 153(47).
1.1.25 "Termination Date Xxxx Atlantic Service" means: (a) any Xxxx
Atlantic Service being provided by Xxxx Atlantic under this Agreement at
the time of termination of this Agreement, that at the time of termination
of this Agreement is subject to a Contract Period which is greater than one
(1) month; and, (b) any Xxxx Atlantic Service requested by Reseller under
this Agreement in an Order accepted by Xxxx Atlantic prior to termination
of this Agreement but not yet being provided by Xxxx Atlantic at the time
of termination of this Agreement, that is subject to an initial Contract
Period which is greater than one (1) month.
1.2 Unless the context clearly indicates otherwise, any defined term
which is defined or used in the singular shall include the plural, and any
defined term which is defined or used in the plural shall include the
singular.
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2. THE AGREEMENT
2.1 This Agreement includes: (a) the Principal Document; (b) Xxxx
Atlantic's Tariffs (which Xxxx Atlantic Tariffs are incorporated into this
Agreement by reference and made a part hereof); and, (c) a Reseller Order
to provide, change or terminate a Xxxx Atlantic Service, which has been
accepted by Xxxx Atlantic (including, but not limited to, any Order which
includes a commitment to purchase a stated number or minimum number of
lines or other Xxxx Atlantic Services, or a commitment to purchase lines or
other Xxxx Atlantic Services for a stated period or minimum period of
time).
2.2 Conflicts among terms in the Principal Document, Xxxx Atlantic's
Tariffs, and a Reseller Order which has been accepted by Xxxx Atlantic,
shall be resolved in accordance with the following order of precedence,
where the document identified in subsection "(a)" shall have the highest
precedence: (a) the Principal Document; (b) Xxxx Atlantic's Tariffs; and,
(c) a Reseller Order which has been accepted by Xxxx Atlantic. The fact
that a term appears in the Principal Document but not in a Xxxx Atlantic
Tariff, or in a Xxxx Atlantic Tariff but not in the Principal Document,
shall not be interpreted as, or deemed grounds for finding, a conflict for
the purposes of this Section 2.2.
2.3 This Agreement (including the Principal Document, Xxxx Atlantic's
Tariffs, and Reseller Orders which have been accepted by Xxxx Atlantic),
constitutes the entire agreement between the Parties on the subject matter
hereof, and supersedes any prior or contemporaneous agreement,
understanding, or representation on the subject matter hereof. Except as
otherwise provided in the Principal Document, the terms in the Principal
Document may not be waived or modified except by a written document which
is signed by the Parties. Subject to the requirements of Applicable Law,
Xxxx Atlantic shall have the right to add, modify, or withdraw, a Xxxx
Atlantic Tariff at any time, without the consent of, or notice to,
Reseller.
2.4 A failure or delay of either Party to enforce any of the provisions of
this Agreement, or any right or remedy available under this Agreement or at
law or in equity, or to require performance of any of the provisions of
this Agreement, or to exercise any option provided under this agreement,
shall in no way be construed to be a waiver of such provisions, rights,
remedies, or options.
3. XXXX ATLANTIC SERVICES
3.1 During the term of this Agreement, Reseller, pursuant to Section 251
(c)(4) of the Act, 47 U.S.C. Section 251(c)(4), may submit Orders to Xxxx
Atlantic requesting Xxxx Atlantic to provide Xxxx Atlantic Retail
Telecommunications Services for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services.
3.2 During the term of this Agreement, Reseller may submit Orders to Xxxx
Atlantic requesting Xxxx Atlantic to provide Xxxx Atlantic Ancillary
Services for use by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
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3.3 Xxxx Atlantic may require that Reseller's Orders requesting Xxxx
Atlantic to provide Xxxx Atlantic Services be in writing on forms specified
by Xxxx Atlantic or in an electronic form specified by Xxxx Atlantic.
3.4 Upon receipt and acceptance by Xxxx Atlantic of a Reseller Order
requesting Xxxx Atlantic to provide a Xxxx Atlantic Service, Xxxx Atlantic
shall provide, and Reseller shall subscribe to, use and pay for, the Xxxx
Atlantic Service, in accordance with this Agreement.
3.5 Xxxx Atlantic Retail Telecommunications Services may be purchased by
Reseller under this Agreement only for the purpose of resale by Reseller as
a Telecommunications Carrier providing Telecommunications Services,
pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4). Xxxx
Atlantic Retail Telecommunications Services to be purchased by Reseller for
other purposes (including, but not limited to, Reseller's own use) must be
purchased by Reseller pursuant to separate written agreements, including,
but not limited to, applicable Xxxx Atlantic Tariffs. Reseller warrants and
agrees that Reseller will purchase Xxxx Atlantic Retail Telecommunications
Services from Xxxx Atlantic under this Agreement only for the purpose of
resale by Reseller as a Telecommunications Carrier providing
Telecommunications Services, pursuant to Section 251(c)(4) of the Act, 47
U.S.C. Section 251(c)(4).
3.6 Xxxx Atlantic Ancillary Services may be purchased by Reseller under
this Agreement only for use by Reseller as a Telecommunications Carrier
providing Telecommunications Services. Xxxx Atlantic Ancillary Services to
be purchased by Reseller for other purposes must be purchased by Reseller
pursuant to separate written agreements, including, but not limited to,
applicable Xxxx Atlantic Tariffs. Reseller warrants and agrees that
Reseller will purchase Xxxx Atlantic Ancillary Services from Xxxx Atlantic
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services.
3.7 Subject to the requirements of Applicable Law, Xxxx Atlantic shall have
the right to add, modify, grandfather, discontinue or terminate Xxxx
Atlantic Services at any time, without the consent of Reseller.
4. PRICES
4.1 Reseller shall pay Xxxx Atlantic for Xxxx Atlantic Services at the
prices stated in this Agreement, including, but not limited to, in
Exhibit II, Attachment 1.
4.2 If, prior to establishment of a Xxxx Atlantic Service, Reseller cancels
or changes its Order for the Xxxx Atlantic Service, Reseller shall
reimburse Xxxx Atlantic for the costs associated with such cancellation or
changes as required by this Agreement (including, but not limited to, Xxxx
Atlantic's Tariffs).
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4.3 Upon request by Xxxx Atlantic, Reseller shall provide to Xxxx Atlantic
adequate assurance of payment of charges due to Xxxx Atlantic. Assurance of
payment of charges may be requested by Xxxx Atlantic: (a) if Reseller, in
Xxxx Atlantic's reasonable judgment, at the Effective Date or at any time
thereafter, is unable to show itself to be creditworthy; (b) if Reseller,
in Xxxx Atlantic's reasonable judgment, at the Effective Date or at any
time thereafter, is not creditworthy; or, (c) if Reseller fails to timely
pay a xxxx rendered to Reseller by Xxxx Atlantic. Unless otherwise agreed
by the Parties, the assurance of payment shall be in the form of a cash
deposit and shall be in an amount equal to the charges for Xxxx Atlantic
Services that Reseller may reasonably be expected to incur during a period
of two (2) months. Xxxx Atlantic may at any time use the deposit or other
assurance of payment to pay amounts due from Reseller.
5. BILLING AND PAYMENT
5.1 Except as otherwise permitted or required by this Agreement, or agreed
in writing by the Parties, Xxxx Atlantic shall render bills to Reseller
monthly. Except as otherwise agreed in writing by the Parties, Xxxx
Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Xxxx Atlantic's bills in immediately available U.S.
funds. Except as otherwise agreed in writing by the Parties, payments shall
be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Xxxx
Atlantic's bills. Except as otherwise required by Xxxx Atlantic's Tariffs
or agreed in writing by the Parties, the due date shall not be sooner than
twenty (20) days after the date the xxxx is received by Reseller.
5.4 Charges which are not paid by the due date stated on Xxxx Atlantic's
xxxx shall be subject to a late payment charge. The late payment charge
shall be in an amount specified by Xxxx Atlantic, which shall not exceed a
rate of one-and-one-half percent (1.5%) of the over-due amount (including
any unpaid, previously billed late payment charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Xxxx Atlantic will be engaged in
developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Xxxx Atlantic
Retail Telecommunications Services and new or modified systems and methods
for computing and rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified forms
of bills and such new or modified systems and methods for computing and
rendering bills,
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Xxxx Atlantic's form of xxxx and systems and methods for computing and
rendering bills may be subject to limitations and restrictions, including,
but not limited to, the limitations stated in Section 5.5.3, below, the
inability to provide Reseller with a single, consolidated xxxx for all Xxxx
Atlantic Services purchased by Reseller, and the unavailability of bills
and billing information in an electronic form (e.g., bills may be rendered
in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified forms of
bills and the new or modified systems and methods for computing and
rendering bills, Xxxx Atlantic may apply the discount identified in Exhibit
II, Section 1.1, in a manner (including, but not limited to, in a "bottom-
of-the-xxxx" format) that results in the Exhibit II, Section 1.1 discount
being applied to charges stated in the xxxx (including, but not limited to,
Subscriber Line Charges, Federal Line Cost Charges, end user common line
charges, carrier selection and change charges, Audiotex Service charges,
and charges for services which are not Xxxx Atlantic Retail
Telecommunications Services) which are not subject to the Exhibit II,
Section 1.1 discount. Xxxx Atlantic will implement a "true-up" process and
within six (6) months after the due date of each monthly xxxx, issue to
Reseller a "true-up" xxxx for amounts which were not collected from
Reseller under the monthly xxxx because of the application of the
Exhibit II, Section 1.1 discount to charges which are not subject to the
Exhibit II, Section 1.1 discount. The "true-up" xxxx may be issued as a
part of or an entry on a monthly xxxx, as a xxxx separate from a monthly
xxxx, or in such other form as Xxxx Atlantic may determine.
5.6 Although it is the intent of Xxxx Atlantic to submit timely and
accurate bills, failure by Xxxx Atlantic to present bills (including,
but not limited to, monthly bills and "true-up" bills) to Reseller in a
timely or accurate manner shall not constitute a breach or default of
this Agreement, or a waiver of a right of payment of the incurred
charges, by Xxxx Atlantic. Reseller shall not be entitled to dispute
charges for Xxxx Atlantic Services provided by Xxxx Atlantic based on
Xxxx Atlantic's failure to submit a xxxx for the charges in a timely
fashion.
6. TERM
6.1 The term of this Agreement shall commence on the Effective Date, and,
except as otherwise provided in this Agreement, shall remain in effect
through August 5, 2000 (the "Initial Term Ending Date). After the Initial
Term Ending Date, this Agreement shall continue in force and effect unless
and until terminated as provided in this Agreement. Following the Initial
Term Ending Date, either Party may terminate this Agreement by providing
written notice of termination to the other Party, such written notice to be
provided at least ninety (90) days in advance of the date of termination.
6.2 Following termination of this Agreement pursuant to Section 6.1, this
Agreement, as amended from time to time, shall remain in effect as to any
Termination Date Xxxx Atlantic Service for the remainder of the Contract
Period applicable to such Termination Date Xxxx Atlantic Service at the
time of the termination of this Agreement.
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If a Termination Date Xxxx Atlantic Service is terminated prior to the
expiration of the Contract Period applicable to such Termination Date Xxxx
Atlantic Service, Reseller shall pay any termination charge provided for in
this Agreement.
7. SERVICE INSTALLATION AND MAINTENANCE
Reseller shall comply with Xxxx Atlantic's processes and procedures
(including, but not limited to, requirements by Xxxx Atlantic that Reseller
use Xxxx Atlantic OSS Services) for the communication to Xxxx Atlantic of
(a) Reseller's Orders to provide, change or terminate, Xxxx Atlantic
Services, and (b) Reseller's requests for information about, assistance in
using, or repair or maintenance of, Xxxx Atlantic Services. Xxxx Atlantic
may, from time-to-time, upon notice to Reseller, change these processes and
procedures.
8. ASSIGNMENT
8.1 Reseller shall not assign this Agreement or any right or interest under
this Agreement, nor delegate any obligation under this Agreement, without
the prior written approval of Xxxx Atlantic, which approval shall not be
unreasonably withheld, conditioned or delayed. Any attempted assignment or
delegation in contravention of the foregoing shall be void and ineffective.
8.2 Xxxx Atlantic may, without the consent of Reseller, assign this
Agreement or any right or interest under this Agreement, and/or delegate
any obligation under this Agreement, to any of Xxxx Atlantic's Affiliates,
or to a person with which Xxxx Atlantic merges or which acquires
substantially all of Xxxx Atlantic's assets.
9. AVAILABILITY OF SERVICE
9.1 Subject to the requirements of Applicable Law, Xxxx Atlantic shall be
obligated to provide Xxxx Atlantic Services to Reseller under this
Agreement only where Xxxx Atlantic is able, without unreasonable expense
(as determined by Xxxx Atlantic in its reasonable judgment), (a) to obtain,
retain, install and maintain suitable facilities for the provision of such
Xxxx Atlantic Services, and (b) to obtain, retain and maintain suitable
rights for the provision of such Xxxx Atlantic Services.
9.2 Xxxx Atlantic's obligation to provide a Xxxx Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Xxxx Atlantic Retail Telecommunications Service to
Reseller where, and to the same extent, that Xxxx Atlantic provides such
Xxxx Atlantic Retail Telecommunications Service to Xxxx Atlantic's own end
user retail Customers.
10. BRANDING
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10.1 Except as stated in Section 10.2, in providing Xxxx Atlantic Services
to Reseller, Xxxx Atlantic shall have the right, but not the obligation, to
identify the Xxxx Atlantic Services with Xxxx Atlantic's trade names,
trademarks and service marks. Any such identification of the Xxxx Atlantic
Services shall not constitute the grant of a license or other right to
Reseller to use Xxxx Atlantic's trade names, trade marks or service marks.
10.2 To the extent required by Applicable Law, upon request by Reseller and
at prices, terms and conditions to be negotiated by Reseller and Xxxx
Atlantic, Xxxx Atlantic shall provide Xxxx Atlantic Retail
Telecommunications Services that are identified by Reseller's trade name,
or that are not identified by trade name, trademark or service xxxx.
11. CHOICE OF LAW
11.1 The construction, interpretation and performance of this Agreement
shall be governed by the laws of the United States of America and the laws
of Jurisdiction (without regard to Jurisdiction's conflicts of laws rules).
All disputes relating to this Agreement shall be resolved through the
application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court, commission
or other governmental entity in which a claim, suit or proceeding which
arises out of or in connection with this Agreement or Xxxx Atlantic
Services provided under this Agreement and in which Xxxx Atlantic is a
party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
12.1 Each Party shall in its performance of this Agreement comply with
Applicable Law, including, but not limited to, all applicable regulations
and orders of the Board and the Federal Communications Commission
(hereinafter the "FCC").
12.2 Reseller shall in providing Xxxx Atlantic Retail Telecommunications
Services to Reseller Customers comply with Applicable Law, including, but
not limited to, all applicable regulations and orders of the Board and the
FCC.
13. CONFIDENTIAL INFORMATION
13.1 For the purposes of this Section 13, "Confidential Information" means
the following information disclosed by one Party ("Discloser") to the other
Party ("Recipient") in connection with this Agreement:
(a) Customer Information related to a Reseller Customer which is
disclosed by Reseller to Xxxx Atlantic (except to the extent that (i) the
Customer Information is subject to publication in a directory, (ii) the
Customer Information is subject to disclosure through an Operator Service
or other Telecommunications Service, or in the course of furnishing
Telecommunications Services, or (iii) the Reseller
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Customer to whom the Customer Information is related, in the manner
required by Applicable Law, has given Xxxx Atlantic permission to use
and/or disclose the Customer Information);
(b) Customer Information related to a Xxxx Atlantic Customer which is
disclosed by Xxxx Atlantic to Reseller (except to the extent that the Xxxx
Atlantic Customer to whom the Customer Information is related, in the
manner required by Applicable Law, has given Reseller permission to use
and/or disclose the Customer Information);
(c) Information related to specific Xxxx Atlantic facilities and
equipment (including, but not limited to, cable-and-pair information) which
is disclosed by Xxxx Atlantic to Reseller; and
(d) Any other information which is identified by the Discloser as
Confidential Information in accordance with Section 13.2.
13.2 All information which is to be treated as Confidential Information
under Section 13.1(d) shall:
(a) if in written, graphic, electromagnetic, or other tangible form,
be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser at the time of
disclosure to be "Confidential" or "Proprietary", and (ii) be set forth in
a written summary which identifies the information as "Confidential" or
"Proprietary" and is delivered by the Discloser to the Recipient within ten
(10) days after the oral disclosure.
Each Party shall have the right to correct an inadvertent failure to
identify information as Confidential Information pursuant to Section
13.1(d) by giving written notification within thirty (30) days after the
information is disclosed. The Recipient shall, from that time forward,
treat such information as Confidential Information.
Notwithstanding any other provision of this Agreement, a Party shall
have the right to refuse to accept receipt of information which the other
Party has identified as Confidential Information pursuant to Section
13.1(d).
13.3 In addition to any requirements imposed by law, including, but not
limited to, 47 U.S.C. Section 222, for a period of five years from the
receipt of Confidential Information from the Discloser, except as otherwise
specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for the purpose of
performing under this Agreement;
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(b) using the same degree of care that it uses with similar
confidential information of its own, to hold the Confidential Information
in confidence and restrict disclosure of the Confidential Information
solely to the Recipient's Affiliates, and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, having a need to
know the Confidential Information for the purpose of performing under this
Agreement. The Recipient's Affiliates and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, shall be
required by the Recipient to comply with the provisions of this Section 13
in the same manner as the Recipient. The Recipient shall be liable for any
failure of the Recipient's Affiliates and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, to comply with
the provisions of this Section 13.
13.4 If the Recipient wishes to disclose the Discloser's Confidential
Information to a third party Agent or contractor, such disclosure must be
mutually agreed to in writing by the Parties to this Agreement, and the
Agent or contractor must have executed a written agreement of
non-disclosure and non-use comparable in scope to the terms of this Section
13.
13.5 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations under this Agreement. All
such copies shall bear the same copyright and proprietary rights notices as
are contained on the original.
13.6 The Recipient shall return or destroy all Confidential Information
received from the Discloser, including any copies made by the Recipient,
within thirty (30) days after a written request by the Discloser is
delivered to the Recipient, except for (a) Confidential Information that
the Recipient reasonably requires to perform its obligations under this
Agreement, and (b) Customer Information related to a Reseller Customer that
is to be treated by Xxxx Atlantic as Confidential Information pursuant to
Section 13.1(a). If the Recipient loses or makes an unauthorized disclosure
of the Discloser's Confidential Information, it shall notify the Discloser
immediately and use reasonable efforts to retrieve the lost or improperly
disclosed information.
13.7 The requirements of this Section 13 shall not apply to Confidential
Information:
(a) which was in the possession of the Recipient free of restriction
prior to its receipt from the Discloser;
(b) after it becomes publicly known or available through no breach of
this Agreement by the Recipient, the Recipient's Affiliates, or the
directors, officers, employees, Agents, or contractors, of the Recipient or
the Recipient's Affiliates;
(c) after it is rightfully acquired by the Recipient free of
restrictions on its disclosure;
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(d) after it is independently developed by the Recipient; or
(e) to the extent the disclosure is required by Applicable Law, a
court, or governmental agency; provided, the Discloser has been notified of
the required disclosure promptly after the Recipient becomes aware of the
required disclosure, the Recipient undertakes reasonable lawful measures to
avoid disclosing the Confidential Information until the Discloser has had
reasonable time to seek a protective order, and the Recipient complies with
any protective order that covers the Confidential Information to be
disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
13.9 Confidential Information shall remain the property of the Discloser,
and the Discloser shall retain all of the Discloser's right, title and
interest in any Confidential Information disclosed by the Discloser to the
Recipient. Except as otherwise expressly provided elsewhere in this
Agreement, no license is granted by this Agreement with respect to any
Confidential Information (including, but not limited to, under any patent,
trademark, or copyright), nor is any such license to be implied, solely by
virtue of the disclosure of any Confidential Information.
13.10 Each Party agrees that the Discloser would be irreparably injured by
a breach of this Section 13 by the Recipient, the Recipient's Affiliates,
or the directors, officers, employees, Agents or contractors of the
Recipient or the Recipient's Affiliates, and that the Discloser shall be
entitled to seek equitable relief, including injunctive relief and specific
performance, in the event of any breach of the provisions of this Section
13. Such remedies shall not be deemed to be the exclusive remedies for a
breach of this Section 13, but shall be in addition to any other remedies
available under this Agreement or at law or in equity.
13.11 The provisions of this Section 13 shall be in addition to and not in
derogation of any provisions of Applicable Law, including, but not limited
to, 47 U.S.C. Section 222, and are not intended to constitute a waiver by a
Party of any right with regard to protection of the confidentiality of
information of the Party or its Customers provided by Applicable Law. In
the event of a conflict between a provision of this Section 13 and a
provision of Applicable Law, the provision of Applicable Law shall prevail.
14. CONTINGENCIES
Neither Party shall be liable for any delay or failure in performance
by it which results from strikes, labor slowdowns, or other labor disputes,
fires, explosions, floods, earthquakes, volcanic action, delays in
obtaining or inability to obtain necessary services, facilities, equipment,
parts or repairs thereof, power failures, embargoes,
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boycotts, unusually severe weather conditions, revolution, riots or other
civil disturbances, war or acts of the public enemy, acts of God, or causes
beyond the Party's reasonable control.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which shall together
constitute one and the same instrument.
16. CUSTOMER INFORMATION
16.1 Without in any way limiting Section 12, each Party shall comply with
Applicable Law with regard to Customer Information, including, but not
limited to, 47 U.S.C. Section 222 and the FCC rules in 47 CFR Section
64.2001 - Section 64.2009.
16.2 A Party ("Accessing Party") shall not access (including, but not
limited to, in the case of Reseller, through Xxxx Atlantic OSS Services),
use or disclose Customer Information made available to the Accessing Party
by the other Party pursuant to this Agreement unless the Accessing Party,
in the manner required by Applicable Law, has obtained any Customer
authorization for such access, use and/or disclosure required by Applicable
Law. By accessing, using or disclosing Customer Information made available
to the Accessing Party by the other Party pursuant to this Agreement, the
Accessing Party represents and warrants that the Accessing Party has
obtained, in the manner required by Applicable Law, any Customer
authorization for such action required by Applicable Law. The Accessing
Party shall upon request by the other Party provide proof of such
authorization (including, a copy of any written authorization).
16.3 Xxxx Atlantic shall have the right (but not the obligation) to audit
Reseller to ascertain whether Reseller is complying with the requirements
of Applicable Law and this Agreement, with regard to Reseller's access to,
and use and disclosure of, Customer Information which is made available to
Reseller by Xxxx Atlantic pursuant to this Agreement.
16.4 In addition to Xxxx Atlantic's audit rights under Section 16.3, Xxxx
Atlantic shall have the right (but not the obligation) to monitor
Reseller's access to and use of Customer Information which is made
available by Xxxx Atlantic to Reseller pursuant to this Agreement, to
ascertain whether Reseller is complying with the requirements of Applicable
Law and this Agreement, with regard to Reseller's access to, and use and
disclosure of, such Customer Information. The foregoing right shall
include, but not be limited to, the right (but not the obligation) to
electronically monitor Reseller's access to and use of Customer Information
which is made available by Xxxx Atlantic to Reseller pursuant to this
Agreement through Xxxx Atlantic OSS Facilities or other electronic
interfaces or gateways.
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16.5 Information obtained by Xxxx Atlantic pursuant to Section 16.3 or
Section 16.4 shall be treated by Xxxx Atlantic as Confidential Information
of Reseller pursuant to Section 13; provided that, Xxxx Atlantic shall have
the right (but not the obligation) to use and disclose information obtained
by Xxxx Atlantic pursuant to this Section 16 to enforce Applicable Law
and/or Xxxx Atlantic's rights under this Agreement.
17. DEFAULT
17.1 If Reseller materially breaches a material provision of this Agreement
(other than an obligation to make payment of any amount billed under this
Agreement), and such breach continues for more than thirty (30) days after
written notice thereof from Xxxx Atlantic, then, except as otherwise
required by Applicable Law, Xxxx Atlantic shall have the right, upon notice
to Reseller, to terminate or suspend this Agreement and/or provision of
Xxxx Atlantic Services, in whole or in part.
17.2.1 If Reseller fails to make a payment of any amount billed under this
Agreement by the due date stated on the xxxx and such failure continues for
more than thirty (30) days after written notice thereof from Xxxx Atlantic,
then, except as provided in Section 17.2.2, below, or as otherwise required
by Applicable Law, Xxxx Atlantic shall have the right, upon notice to
Reseller, to terminate or suspend this Agreement and/or provision of Xxxx
Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning the
obligation of Reseller to make payment of an amount billed under this
Agreement, the failure to pay the amount in dispute shall not constitute
cause for termination or suspension of this Agreement or provision of Xxxx
Atlantic Services, if, within thirty (30) days of the date that Xxxx
Atlantic gives Reseller written notice of the failure to pay the amount in
dispute, Reseller (a) gives Xxxx Atlantic written notice of the dispute
stating the basis of the dispute, and (b) furnishes to Xxxx Atlantic an
irrevocable letter of credit in a form acceptable to Xxxx Atlantic or other
security arrangement acceptable to Xxxx Atlantic, guaranteeing payment to
Xxxx Atlantic of any portion of the disputed amount (including the whole of
the disputed amount) which is thereafter agreed by Xxxx Atlantic and
Reseller, or determined by a court or other governmental entity of
appropriate jurisdiction, to be due to Xxxx Atlantic. The existence of such
a dispute shall not relieve Reseller of its obligations to pay any
undisputed amount which is due to Xxxx Atlantic and to otherwise comply
with this Agreement.
18. FACILITIES
18.1 Xxxx Atlantic or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Xxxx Atlantic Services. Xxxx
Atlantic shall have access at all reasonable times to Reseller and Reseller
Customer locations for the purpose of installing, inspecting, maintaining,
repairing, and removing, facilities, equipment, software, and wiring, used
to provide the
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Xxxx Atlantic Services. Reseller shall, at Reseller's expense, obtain any
rights and authorizations necessary for such access.
18.2 Except as otherwise agreed to in writing by Xxxx Atlantic, Xxxx
Atlantic shall not be responsible for the installation, inspection, repair,
maintenance, or removal, of facilities, equipment, software, or wiring,
provided by Reseller or Reseller Customers for use with Xxxx Atlantic
Services.
19. INTELLECTUAL PROPERTY
Except as expressly stated in this Agreement, nothing contained
within this Agreement shall be construed as the grant of a license, either
express or implied, with respect to any patent, copyright, trade name,
trade xxxx, service xxxx, trade secret, or other proprietary interest or
intellectual property, now or hereafter owned, controlled or licensable by
either Party.
20. JOINT WORK PRODUCT
The Principal Document is the joint work product of the
representatives of the Parties. For convenience, the Principal Document has
been drafted in final form by Xxxx Atlantic. Accordingly, in the event of
ambiguities, no inferences shall be drawn against either Party solely on
the basis of authorship of the Principal Document.
21. LIABILITY
21.1.1 AS USED IN THIS SECTION 21, "OTHER XXXX ATLANTIC PERSONS" MEANS XXXX
ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND
CONTRACTORS, OF XXXX ATLANTIC AND XXXX ATLANTIC'S AFFILIATES.
21.1.2 AS USED IN THIS SECTION 21, "XXXX ATLANTIC SERVICE FAILURE" MEANS
AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A XXXX
ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR,
DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A XXXX ATLANTIC SERVICE.
21.2 THE LIABILITY, IF ANY, OF XXXX ATLANTIC AND OTHER XXXX ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A XXXX
ATLANTIC SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH IN
XXXX ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE XXXX ATLANTIC TARIFFS APPLICABLE TO A XXXX
ATLANTIC SERVICE DO NOT CONTAIN A
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PROVISION WHICH LIMITS OR EXCLUDES THE LIABILITY OF XXXX ATLANTIC AND/OR
OTHER XXXX ATLANTIC PERSONS TO RESELLER, RESELLER CUSTOMERS AND/OR ANY
OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH A XXXX ATLANTIC SERVICE FAILURE, SECTION 21.3.3 SHALL
APPLY.
21.3.2 TO THE EXTENT A XXXX ATLANTIC SERVICE IS NOT SUBJECT TO A XXXX
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF XXXX ATLANTIC AND OTHER XXXX ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC
SERVICE FAILURE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN EXCESS OF: (a)
TWICE THE PROPORTIONATE CHARGE FOR THE XXXX ATLANTIC SERVICE AFFECTED
DURING THE PERIOD OF THE XXXX ATLANTIC SERVICE FAILURE; OR, (b) IF THERE IS
NO CHARGE FOR THE XXXX ATLANTIC SERVICE AFFECTED, FIVE HUNDRED DOLLARS
($500.00).
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION 21.3.1,
SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, XXXX ATLANTIC AND OTHER XXXX
ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER, RESELLER CUSTOMERS,
AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR HARM TO
BUSINESS, LOST REVENUES, LOST PROFITS, LOST SAVINGS, OR OTHER COMMERCIAL OR
ECONOMIC LOSS), ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC
SERVICE FAILURE OR ANY BREACH OR FAILURE IN PERFORMANCE OF THIS AGREEMENT
BY XXXX ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS 21.2
THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A CLAIM OR ACTION,
WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, THE
NEGLIGENCE OF XXXX ATLANTIC AND/OR OTHER XXXX ATLANTIC PERSONS), STRICT
LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER XXXX ATLANTIC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with Reseller
Customers, provide that in no case shall Xxxx Atlantic or Other Xxxx
Atlantic Persons be liable to Reseller Customers or to any other third
parties for any indirect, special, incidental, consequential, or other
damages, including, but not limited to, harm to business, lost revenues,
lost profits, lost savings, or other commercial or economic loss, whether
16
foreseeable or not, and regardless of notification of the possibility of
such damages. Reseller shall indemnify, defend and hold Xxxx Atlantic and
Other Xxxx Atlantic Persons harmless from claims by Reseller Customers and
other third parties as provided in Xxxx Atlantic's Tariffs.
21.7 Xxxx Atlantic's obligations under this Agreement shall extend only to
Reseller. Xxxx Atlantic shall have no liability under this Agreement to
Reseller Customers or to any other third party. Nothing in this Agreement
shall be deemed to create a third party beneficiary relationship between
Xxxx Atlantic and Reseller Customers or any other third party.
21.8 Reseller shall indemnify, defend and hold harmless Xxxx Atlantic, Xxxx
Atlantic's Affiliates, and the directors, officers and employees of Xxxx
Atlantic and Xxxx Atlantic's Affiliates, from any claims, suits, government
proceedings, judgments, fines, liabilities, losses, damages, costs or
expenses (including reasonable attorneys fees) arising out of or in
connection with: (a) the failure of Reseller to transmit to Xxxx Atlantic a
request by a Reseller Customer to install, provide, change or terminate, a
Xxxx Atlantic Retail Telecommunications Service; (b) the transmission by
Reseller to Xxxx Atlantic of an Order to install, provide, change or
terminate, a Xxxx Atlantic Retail Telecommunications Service, which Order
was not authorized by the applicable Reseller Customer; (c) erroneous or
inaccurate information in an Order transmitted by Reseller to Xxxx
Atlantic; (d) the transmission by Reseller to Xxxx Atlantic of an Order to
change or terminate a Telecommunications Service provided to an end user by
Xxxx Atlantic or another Telecommunications Service provider, or to install
or provide a Telecommunications Service for an end user, which Order was
not authorized by the applicable end user; (e) the transmission by Reseller
to Xxxx Atlantic of an Order to select, change or reassign a telephone
number for an end user, which Order was not authorized by the applicable
end user; (f) the transmission by Reseller to Xxxx Atlantic of an Order to
select a Telephone Exchange Service provider for an end user, or to change
or terminate an end user's selection of a Telephone Exchange Service
provider, which Order was not authorized by the applicable end user in the
manner required by Applicable Law (or, in the absence of such Applicable
Law, in the manner required by the rules and procedures in 47 CFR Section
64.1100); (g) access to, or use or disclosure of, Customer Information or
Xxxx Atlantic OSS Information by Reseller or Reseller's employees, Agents
or contractors; (h) the failure of Reseller to transmit, or to transmit in
a timely manner, E911/911 information to Xxxx Atlantic; (i) erroneous or
inaccurate E911/911 information transmitted by Reseller to Xxxx Atlantic;
(j) any information provided by Reseller for inclusion in Xxxx Atlantic's
LIDB; or, (k) the marketing, advertising or sale of Reseller's services
and/or products (including, but not limited to, resold Xxxx Atlantic Retail
Telecommunications Services), or the billing or collection of charges for
Reseller's services and/or products (including, but not limited to, resold
Xxxx Atlantic Retail Telecommunications Services). For the purposes of
Section 21.8(b), (d) and (e), an Order shall be deemed not to have been
authorized by a Reseller Customer or end user if Applicable Law and/or this
Agreement required such authorization to be obtained in a
17
particular manner, and Reseller did not obtain the authorization in the
manner required by Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
Except as otherwise expressly provided in this Agreement, each of the
remedies provided under this Agreement is cumulative and is in addition to
any other remedies that may be available under this Agreement or at law or
in equity.
23. NOTICES
All notices and other communications under this Agreement shall be
deemed effective upon receipt by the Party being notified, provided such
notices or communications are in writing and are sent by certified or
registered mail, return receipt requested, or by a reputable private
delivery service which provides a record of delivery, and addressed as
shown below:
To Xxxx Atlantic: Xxxx Atlantic-New Jersey, Inc.
c/x Xxxx Atlantic Network Services, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Director, Resale Initiatives
To Reseller: President
Xxxxxxxxx.Xxx, Inc.
0 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with this Section 23.
24. OPTION TO OBTAIN XXXX ATLANTIC SERVICE UNDER OTHER AGREEMENTS
24.1 If, at any time while this Agreement is in effect, Xxxx Atlantic is a
party to an agreement with a Telecommunications Carrier other than Reseller
("Third-Person Telecommunications Carrier") to provide Xxxx Atlantic
Services to the Third-Person Telecommunications Carrier, which agreement
has been approved by the Board pursuant to 47 U.S.C. Section 252, upon
request by Reseller, Xxxx Atlantic, to the extent required by Applicable
Law (including, but not limited to 47 U.S.C. Section 252(i)), shall make
available to Reseller any Xxxx Atlantic Service offered by Xxxx Atlantic
under the agreement with the Third-Person Telecommunications Carrier upon
the same terms and conditions (including prices) provided in the agreement
with the Third-Person Telecommunications Carrier, but
18
(except as otherwise expressly agreed in writing by the Parties) only on a
prospective basis. Following such request by Reseller and prior to
provision of the Xxxx Atlantic Service by Xxxx Atlantic to Reseller
pursuant to the terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement, this Agreement shall be amended to
incorporate the terms and conditions (including prices) from the
Third-Person Telecommunications Carrier agreement applicable to the Xxxx
Atlantic Service Reseller has elected to purchase pursuant to the terms and
conditions (including prices) of the Third-Person Telecommunications
Carrier agreement. Except as otherwise expressly agreed in writing by the
Parties, the amendment shall apply on a prospective basis only and shall
not apply with regard to any Xxxx Atlantic Service provided by Xxxx
Atlantic to Reseller prior to the effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Xxxx Atlantic, Reseller shall be liable for
the non-recurring charges associated therewith, as well as for any
termination charges associated with the termination of existing facilities
or Xxxx Atlantic Services.
25. REGULATORY APPROVALS
25.1 Within thirty (30) days after execution of this Agreement by the
Parties, Xxxx Atlantic shall file the Agreement with the Board for approval
by the Board.
25.2 Each Party shall exercise reasonable efforts (including reasonably
cooperating with the other Party) to secure approval of this Agreement, and
any amendment to this Agreement agreed to by the Parties, from the Board,
the FCC, and other applicable governmental entities.
25.3 Upon request by Xxxx Atlantic, Reseller shall, at Reseller's expense,
provide reasonable, good-faith support and assistance to Xxxx Atlantic in
obtaining any governmental approvals necessary for (a) this Agreement and
any amendment to this Agreement agreed to by the Parties, and/or (b) the
provision of Xxxx Atlantic Services by Xxxx Atlantic to Reseller. Without
in any way limiting the foregoing, upon request by Xxxx Atlantic, Reseller
shall (a) join in petitions requesting approval of this Agreement, or an
amendment to this Agreement agreed to by the Parties, to be filed with the
Board, the FCC, or other applicable governmental entities, and (b) file
other documents with and present testimony to the Board, the FCC, or other
applicable governmental entities, requesting approval of this Agreement or
an amendment to this Agreement agreed to by the Parties.
26. REGULATORY CONTINGENCIES
26.1 Neither Party shall be liable for any delay or failure in performance
by it which results from requirements of Applicable Law, or acts or
failures to act of any governmental entity or official.
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26.2 In the event that any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable any other provision of this Agreement, and this
Agreement shall be construed as if it did not contain such invalid or
unenforceable provision.
26.3 In the event that any legislative, regulatory, judicial or other
governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit Xxxx
Atlantic to continue to provide and Reseller to continue to purchase Xxxx
Atlantic Services, including, but not limited to, conducting good faith
negotiations to enter into a mutually acceptable modified or substitute
agreement, filing tariffs, or additional, supplemental or modified tariffs,
and making other required filings with governmental entities.
26.4 In the event of a governmental action described in Section 26.3,
above, to the extent permitted by Applicable Law, Xxxx Atlantic shall
continue to provide and Reseller shall continue to subscribe to, use and
pay for, any Xxxx Atlantic Services affected by the governmental action
until the action to be taken by Xxxx Atlantic and Reseller under Section
26.3, above, is taken and becomes effective in accordance with Applicable
Law. Such continued provision of and subscription to, use of and payment
for, the affected Xxxx Atlantic Services shall be in accordance with the
terms (including prices) of this Agreement, unless other terms, including
but not limited to the terms of a Xxxx Atlantic Tariff, are required by
Applicable Law.
26.5 If suspension or termination of the provision of any Xxxx Atlantic
Service is required by or as a result of a governmental action, such
suspension or termination shall not affect Reseller's subscription to, use
or obligation to pay for, other Xxxx Atlantic Services, unless such
suspension or termination has a material, adverse effect on Reseller's
ability to use the other Xxxx Atlantic Services.
26.6 If any of the Xxxx Atlantic Services to be provided by Xxxx Atlantic
pursuant to a tariff shall at any time become detariffed or deregulated,
Xxxx Atlantic may transfer the provisions of the tariff relative to such
Xxxx Atlantic Services to a Xxxx Atlantic "Guide for Detariffed Services"
or similar document, and such "Guide for Detariffed Services" or similar
document, as amended by Xxxx Atlantic from time-to time, shall become a
part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
27.1 The relationship between the Parties under this Agreement shall be
that of independent contractors.
27.2 Nothing contained in this Agreement shall:
20
(a) make either Party the Agent or employee of the other Party;
(b) grant either Party the authority to enter into a contract on
behalf of, or otherwise legally bind, the other Party in any way;
(c) create a partnership, joint venture or other similar relationship
between the parties; or
(d) grant to Reseller a franchise, distributorship or similar
interest.
27.3 Each Party shall be solely responsible for selection, supervision,
termination, and compensation, of its respective employees, Agents and
contractors.
27.4 Each Party shall be solely responsible for payment of any Social
Security or other taxes which it is required by Applicable Law to pay in
conjunction with its employees, Agents or contractors, and for collecting
and remitting to applicable taxing authorities any taxes which it is
required by Applicable Law to collect from its employees, Agents or
contractors.
27.5 The relationship of the Parties under this Agreement is a
non-exclusive relationship. Xxxx Atlantic shall have the right to provide
services offered by Xxxx Atlantic under this Agreement to persons other
than Reseller. Reseller shall have the right to purchase services that may
be purchased by Reseller under this Agreement from persons other than Xxxx
Atlantic.
28. RESELLER'S PROVISION OF SERVICE
28.1 Prior to providing Xxxx Atlantic Retail Telecommunications Services
purchased by Reseller under this Agreement to Reseller Customers, Reseller
shall obtain from the Board, the FCC, and any other applicable governmental
entities, any certificates or other authorizations required by Applicable
Law for Reseller to provide Telecommunications Services. Reseller shall
promptly notify Xxxx Atlantic in writing of any governmental action which
suspends, cancels or withdraws any such certificate or authorization, or
otherwise limits or affects Reseller's right to provide Telecommunications
Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a) file
with the Board, the FCC, and/or other applicable governmental entities, the
tariffs, arrangements and other documents that set forth the terms,
conditions and prices under which Reseller provides Telecommunications
Services; and, (b) make available for public inspection, the tariffs,
arrangements and other documents that set forth the terms, conditions and
prices under which Reseller provides Telecommunications Services.
29. RESELLER'S RESALE AND USE OF SERVICE
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29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Xxxx Atlantic's Tariffs) regarding resale
or use of Xxxx Atlantic Services, including, but not limited to, any
restrictions on resale or use of Xxxx Atlantic Services.
29.2 Without in any way limiting Section 29.1, (a) Reseller shall not
resell residential service to persons not eligible to subscribe to such
service from Xxxx Atlantic (including, but not limited to, business
Reseller Customers and other nonresidential Reseller Customers), and (b)
Reseller shall not resell Lifeline or other means-tested service offerings,
or grandfathered or discontinued service offerings, to persons not eligible
to subscribe to such service offerings from Xxxx Atlantic.
29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Xxxx Atlantic's Tariffs applicable
to their use of Xxxx Atlantic Retail Telecommunications Services.
29.4 Reseller shall comply with Applicable Law, and Xxxx Atlantic's
procedures, for handling requests from law enforcement and other government
agencies for service termination, assistance with electronic surveillance,
and provision of information.
30. RESPONSIBILITY FOR CHARGES
30.1 Reseller shall be responsible for and pay all charges for any Xxxx
Atlantic Service provided by Xxxx Atlantic to Reseller, whether the Xxxx
Atlantic Service is ordered, activated or used by Reseller, a Reseller
Customer, or another person.
30.2 In addition to the charges for Xxxx Atlantic Services, Reseller agrees
to pay any charges for Telecommunications Services, facilities, equipment,
software, wiring, or other services or products, provided by Xxxx Atlantic,
or provided by persons other than Xxxx Atlantic and billed for by Xxxx
Atlantic, that are ordered, activated or used by Reseller, Reseller
Customers or other persons, through, by means of, or in association with,
Xxxx Atlantic Services provided by Xxxx Atlantic to Reseller.
30.3 Reseller agrees to indemnify, defend and hold Xxxx Atlantic harmless
from, any charges for Telecommunications Services, facilities, equipment,
software, wiring, or other services or products, provided by persons other
than Xxxx Atlantic that are ordered, activated or used by Reseller,
Reseller Customers or other persons, through, by means of, or in
association with, Xxxx Atlantic Services provided by Xxxx Atlantic to
Reseller.
30.4 Without in any way limiting Reseller's obligations under Section 30.1,
Section 30.2 and Section 30.3, Reseller shall pay, or collect and remit to
Xxxx Atlantic, without discount, all Subscriber Line Charges, Federal Line
Cost Charges, end user common line charges, carrier selection and change
charges (PIC change charge), and the
22
Presubscribed Interexchange Carrier Charge applicable to Reseller Customers
who have not presubscribed to an interexchange carrier for long distance
services, associated with Xxxx Atlantic Services provided by Xxxx Atlantic
to Reseller.
30.5 Upon request by Reseller, Xxxx Atlantic will provide for use on resold
Xxxx Atlantic Retail Telecommunications Service dial tone lines purchased
by Reseller such Xxxx Atlantic Retail Telecommunications Service call
blocking services as Xxxx Atlantic provides to Xxxx Atlantic's own end user
retail Customers, where and to the extent Xxxx Atlantic provides such Xxxx
Atlantic Retail Telecommunications Service call blocking services to Xxxx
Atlantic's own end user retail Customers.
31. SECTION HEADINGS
The section headings in the Principal Document are for convenience
only and are not intended to affect the meaning or interpretation of the
Principal Document.
32. SERVICES NOT COVERED BY THIS AGREEMENT
32.1 This Agreement applies only to Xxxx Atlantic Services (as the term
"Xxxx Atlantic Service" is defined in Section 1.1.6) provided, or to be
provided, by Xxxx Atlantic to Reseller, as specified in Section 3. Any
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products, interconnected or used with Xxxx Atlantic
Services provided, or to be provided, by Xxxx Atlantic to Reseller)
provided, or to be provided, by Xxxx Atlantic to Reseller, which are not
subscribed to by Reseller under this Agreement, must be subscribed to by
Reseller separately, pursuant to other written agreements (including, but
not limited to, applicable Xxxx Atlantic Tariffs). Reseller shall use and
pay for any Telecommunications Services, facilities, equipment, software,
wiring, or other services or products, provided, or to be provided, by
Xxxx Atlantic to Reseller, which are not subscribed to by Reseller under
this Agreement, in accordance with such other written agreements
(including, but not limited to, applicable Xxxx Atlantic Tariffs).
32.2 Without in any way limiting Section 32.1 and without attempting to
list all Xxxx Atlantic products and services that are not subject to this
Agreement, the Parties agree that this Agreement does not apply to the
purchase by Reseller of the following Xxxx Atlantic services and products:
except as expressly stated in the Principal Document, exchange access
services as defined in Section 3(16) of the Act, 47 U.S.C. Section 153(16)
(including, but not limited to, primary interLATA toll carrier and primary
intraLATA toll carrier choice or change); Xxxx Atlantic Answer Call, Xxxx
Atlantic Answer Call Plus, Xxxx Atlantic Home Voice Mail, Xxxx Atlantic
Home Voice Mail Plus, Xxxx Atlantic Voice Mail, Xxxx Atlantic Basic
Mailbox, Xxxx Atlantic OptiMail Service, and other voice mail, fax mail,
voice messaging, and fax messaging, services; Xxxx Atlantic Optional Wire
Maintenance Plan; Xxxx Atlantic Guardian Enhanced Maintenance Service; Xxxx
Atlantic Sentry I Enhanced Maintenance Service; Xxxx Atlantic Sentry II
23
Enhanced Maintenance Service; Xxxx Atlantic Sentry III Enhanced Maintenance
Service; Xxxx Atlantic Call 54 Service; Xxxx Atlantic Public Telephone
Service; customer premises equipment; Xxxx Atlantic telephone directory
listings offered under agreements or arrangements other than Xxxx Atlantic
Tariffs filed with the Board; and, Xxxx Atlantic telephone directory
advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also agree that
this Agreement does not apply to the installation, inspection, maintenance,
repair, removal, or use of any facilities, equipment, software, or wiring,
located on Reseller's side of the Network Rate Demarcation Point applicable
to Reseller and does not grant to Reseller or Reseller Customers a right to
installation, inspection, maintenance, repair, or removal, by Xxxx
Atlantic, or use, by Reseller or Reseller Customers, of any such
facilities, equipment, software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree that this
Agreement does not apply to the purchase by Reseller of Audiotex Services
(including, but not limited to, Dial-It, 976, 915 and 556 services) for
resale to Audiotex Service providers or other information service
providers. Xxxx Atlantic shall have the right (but not the obligation) to
block calls made to Audiotex Service numbers (including, but not limited
to, Dial-It numbers and 976, 915 and 556 numbers) through Xxxx Atlantic
Services purchased by Reseller under this Agreement. Notwithstanding the
foregoing, Reseller shall pay, without discount, any charges for Audiotex
Services (including, but not limited to, Dial-It, 976, 915 and 556
services) that are ordered, activated or used by Reseller, Reseller
Customers or other persons, through, by means of, or in association with,
Xxxx Atlantic Services provided by Xxxx Atlantic to Reseller.
32.5 Nothing contained within this Agreement shall obligate Xxxx Atlantic
to provide any service or product which is not a Xxxx Atlantic Service
(including, but not limited to, the services listed in Sections 32.2, 32.3
and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Xxxx Atlantic
to provide a Xxxx Atlantic Service or any other service or product to a
Reseller Customer. Without in any way limiting the foregoing, except as
otherwise required by Applicable Law, Xxxx Atlantic reserves the right to
terminate provision of services and products (including, but not limited
to, Telecommunications Services and the services listed in Sections 32.2
and 32.3, above) to any person who ceases to purchase Xxxx Atlantic Retail
Telecommunications Service dial tone line service from Xxxx Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude or limit
Reseller's obligations and liabilities under Section 30, including, but not
limited to Reseller's obligations and liabilities to pay charges for
services and products as required by Section 30.
33. SERVICE QUALITY
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Xxxx Atlantic Services provided by Xxxx Atlantic to Reseller under
this Agreement shall comply with the quality requirements for such Xxxx
Atlantic Services specified by Applicable Law (including, but not limited
to, any applicable provisions of 47 CFR Sections 51.311 and 51.603(b)).
34. SINGLE POINT OF CONTACT
34.1 Reseller shall be the single point of contact for Reseller Customers
and other persons with regard to Telecommunications Services and other
services and products which they wish to purchase from Reseller or which
they have purchased from Reseller. Communications by Reseller Customers and
other persons with regard to Telecommunications Services and other services
and products which they wish to purchase from Reseller or which they have
purchased from Reseller, shall be made to Reseller, and not to Xxxx
Atlantic. Reseller shall instruct Reseller Customers and other persons that
such communications shall be directed to Reseller.
34.2 Without in any way limiting Section 34.1, requests by Reseller
Customers for information about or provision of Telecommunications Services
which they wish to purchase from Reseller, requests by Reseller Customers
to change, terminate, or obtain information about, assistance in using, or
repair or maintenance of, Telecommunications Services which they have
purchased from Reseller, and inquiries by Reseller Customers concerning
Reseller's bills, charges for Reseller's Telecommunications Services, and,
if the Reseller Customers receive dial tone line service from Reseller,
annoyance calls, shall be made by the Reseller Customers to Reseller, and
not to Xxxx Atlantic.
34.3 Reseller shall establish telephone numbers and mailing addresses at
which Reseller Customers and other persons may communicate with Reseller
and shall advise Reseller Customers and other persons who may wish to
communicate with Reseller of these telephone numbers and mailing
addresses.
35. SURVIVAL
The liabilities and obligations of a Party for acts or omissions of
the Party prior to the termination, cancellation or expiration of this
Agreement, the rights, liabilities and obligations of a Party under any
provision of this Agreement regarding indemnification or defense, Customer
Information, confidential information, or limitation or exclusion of
liability, the rights of Xxxx Atlantic and the liabilities and obligations
of Reseller under Section 18.1, and the rights, liabilities and
obligations of a Party under any provision of this Agreement which by its
terms is contemplated to survive (or be performed after) termination,
cancellation or expiration of this Agreement, shall survive termination,
cancellation or expiration of this Agreement.
36. TAXES
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36.1 With respect to any purchase of Xxxx Atlantic Services under this
Agreement, if any Federal, state or local government tax, fee, duty,
surcharge (including, but not limited to any E911/911, telecommunications
relay service, or universal service fund, surcharge), or other tax-like
charge (a "Tax") is required or permitted by Applicable Law to be collected
from Reseller by Xxxx Atlantic, then (a) to the extent required by
Applicable Law, Xxxx Atlantic shall xxxx Reseller for such Tax, (b)
Reseller shall timely remit such Tax to Xxxx Atlantic (including both Taxes
billed by Xxxx Atlantic and Taxes Reseller is required by Applicable Law to
remit without billing by Xxxx Atlantic), and (c) Xxxx Atlantic shall remit
such collected Tax to the applicable taxing authority.
36.2 With respect to any purchase of Xxxx Atlantic Services under this
Agreement, if any Tax is imposed by Applicable Law on the receipts of Xxxx
Atlantic, which Applicable Law permits Xxxx Atlantic to exclude certain
receipts received from sales of Xxxx Atlantic Services for resale by
Reseller, such exclusion being based on the fact that Reseller is also
subject to a Tax based upon receipts ("Receipts Tax"), then Reseller (a)
shall provide Xxxx Atlantic with notice in writing in accordance with
Section 36.7 of its intent to pay the Receipts Tax, and (b) shall timely
pay the Receipts Tax to the applicable taxing authority.
36.3 With respect to any purchase of Xxxx Atlantic Services under this
Agreement, that are resold by Reseller to a Reseller Customer, if any Tax
is imposed by Applicable Law on the Reseller Customer in connection with
the Reseller Customer's purchase of the resold Xxxx Atlantic Services which
Reseller is required to impose and/or collect from the Reseller Customer,
then Reseller (a) shall impose and/or collect such Tax from the Reseller
Customer, and (b) shall timely remit such Tax to the applicable taxing
authority.
36.4.1 If Xxxx Atlantic has not received an exemption certificate from
Reseller and fails to xxxx Reseller for any Tax as required by Section
36.1, then, as between Xxxx Atlantic and Reseller, (a) Reseller shall
remain liable for such unbilled Tax, and (b) Xxxx Atlantic shall be liable
for any interest and/or penalty assessed on the unbilled Tax by the
applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Xxxx Atlantic as required by
Section 36.1, then, as between Xxxx Atlantic and Reseller, Reseller shall
be liable for such uncollected Tax and any interest and/or penalty assessed
on the uncollected Tax by the applicable taxing authority.
36.4.3 If Xxxx Atlantic does not collect a Tax because Reseller has
provided Xxxx Atlantic with an exemption certificate which is later found
to be inadequate by the applicable taxing authority, then, as between Xxxx
Atlantic and Reseller, Reseller shall be liable for such uncollected Tax
and any interest and/or penalty assessed on the uncollected Tax by the
applicable taxing authority.
26
36.4.4 Except as provided in Section 36.4.5, if Reseller fails to pay the
Receipts Tax as required by Section 36.2, then, as between Xxxx Atlantic
and Reseller, (a) Xxxx Atlantic shall be liable for any Tax imposed on Xxxx
Atlantic's receipts, (b) Reseller shall be liable for any interest and/or
penalty imposed on Xxxx Atlantic with respect to the Tax on Xxxx Atlantic's
receipts, and (c) Reseller shall be liable for any Tax imposed on
Reseller's receipts and any interest and/or penalty assessed by the
applicable taxing authority on Reseller with respect to the Tax on
Reseller's receipts.
36.4.5 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to, a discount
provided for in Exhibit II, Section 1.1) represents Tax savings to Xxxx
Atlantic which it was anticipated Xxxx Atlantic would receive, because it
was anticipated that receipts from sales of Xxxx Atlantic Services, that
would otherwise be subject to a Tax on such receipts, could be excluded
from such Tax under Applicable Law because the Xxxx Atlantic Services would
be sold to Reseller for resale, and Xxxx Atlantic is, in fact, required by
Applicable Law to pay such Tax on receipts from sales of Xxxx Atlantic
Services to Reseller, then, as between Xxxx Atlantic and Reseller, (a)
Reseller shall be liable for, and shall indemnify and hold harmless Xxxx
Atlantic against (on an after-tax basis), any such Tax, and (b) Reseller
shall be liable for, and shall indemnify and hold harmless Xxxx Atlantic
against (on an after-tax basis), any interest and/or penalty assessed by
the applicable taxing authority on either Reseller or Xxxx Atlantic with
respect to the Tax on Xxxx Atlantic's receipts.
36.4.6 If Reseller fails to impose and/or collect any Tax from Reseller
Customers as required by Section 36.3, then, as between Xxxx Atlantic and
Reseller, Reseller shall remain liable for such uncollected Tax and any
interest and/or penalty assessed on such uncollected Tax by the applicable
taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Xxxx
Atlantic Services attributable to anticipated Tax savings by Xxxx Atlantic,
or is required to impose on and/or collect from Reseller Customers,
Reseller agrees to indemnify and hold Xxxx Atlantic harmless on an
after-tax basis for any costs incurred by Xxxx Atlantic as a result of
actions taken by the applicable taxing authority to recover the Tax from
Xxxx Atlantic due to failure of Reseller to timely remit the Tax to Xxxx
Atlantic, or timely pay, or collect and timely remit, the Tax to the
taxing authority.
36.5 If either Party is audited by a taxing authority, the other Party
agrees to reasonably cooperate with the Party being audited in order to
respond to any audit inquiries in a proper and timely manner so that the
audit and/or any resulting controversy may be resolved expeditiously.
36.6.1 If Applicable Law clearly exempts a purchase of Xxxx Atlantic
Services under this Agreement from a Tax, and if such Applicable Law also
provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller
27
complies with such procedure, Xxxx Atlantic shall not collect such Tax
during the effective period of the exemption. Such exemption shall be
effective upon receipt of the exemption certificate or affidavit in
accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Xxxx Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Xxxx Atlantic shall not collect such Tax if
Reseller (a) furnishes Xxxx Atlantic with a letter signed by an officer of
Reseller requesting an exemption and citing the provision in the Applicable
Law which clearly allows such exemption, and (b) supplies Xxxx Atlantic
with an indemnification agreement, reasonably acceptable to Xxxx Atlantic,
which holds Xxxx Atlantic harmless on an after-tax basis with respect to
forbearing to collect such Tax.
36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall be made in writing and shall be sent by
certified or registered mail, return receipt requested, or by a reputable
private delivery service which provides a record of delivery, to the
addressee stated in Section 23 at the address stated in Section 23 and to
the following:
To Xxxx Atlantic: Tax Administration
Xxxx Atlantic Corporation
1095 Avenue of the Americas
Xxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
To Reseller: Controller
Xxxxxxxxx.Xxx, Inc.
0 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
36.7.
Any notice or other communication shall be deemed to be given when
received.
37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
37.1 Without in any way limiting Reseller's obligations under Section 12,
Reseller shall comply with Applicable Law with regard to end user selection
of a Telephone Exchange Service provider. Until the Board or the FCC adopts
regulations and/or orders applicable to end user selection of a Telephone
Exchange Service provider, Reseller shall apply the rules and procedures
set forth in Section 64.1100 of the XXX
00
Xxxxx, 00 XXX Section 64.1100, to the process for end user selection of a
Telephone Exchange Service provider (including, to end user selection of a
Telephone Exchange Service provider that occurs during any telemarketing
contact with an end user), and shall comply with such rules and procedures.
37.2 By submitting to Xxxx Atlantic an Order to install, provide, change or
terminate a Telecommunications Service, to select, change or reassign a
telephone number, or to select, change or terminate an end user's Telephone
Exchange Service provider, Reseller represents and warrants: (a) that
Reseller has obtained authorization for such action from the applicable end
user; and, (b) that if Applicable Law and/or this Agreement required such
authorization to be obtained in a particular manner, Reseller obtained the
authorization in the manner required by Applicable Law and this Agreement.
Reseller shall upon request by Xxxx Atlantic provide proof of such
authorization (including, a copy of any written authorization).
37.3 If Reseller submits an Order to Xxxx Atlantic to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, and (a) when requested by Xxxx
Atlantic to provide a written document signed by the end user stating the
end user's Telephone Exchange Service provider selection, fails to provide
such document to Xxxx Atlantic, or (b) has not obtained authorization for
such installation, provision, selection, change, reassignment or
termination, from the end user in the manner required by Applicable Law
(or, in the absence of Applicable Law, in the manner required by the rules
and procedures in 47 CFR Section 64.1100), Reseller shall be liable to Xxxx
Atlantic for all charges that would be applicable to the end user for the
initial installation, provision, selection, change, reassignment or
termination, of the end user's Telecommunications Service, telephone
number, and/or Telephone Exchange Service provider, and any charges for
restoring the end user's Telecommunications Service, telephone number,
and/or Telephone Exchange Service provider selection, to its end user
authorized condition.
38. TELEPHONE NUMBERS
38.1 Reseller's use of telephone numbers shall be subject to Applicable Law
(including, but not limited to, the rules of the FCC, the North American
Numbering Council, and the North American Numbering Plan Administrator),
the applicable provisions of this Agreement (including, but not limited to,
this Section 38), and Xxxx Atlantic's practices and procedures for use and
assignment of telephone numbers, as amended from time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who subscribes to a
Xxxx Atlantic Retail Telecommunications Service dial tone line from either
Reseller or Xxxx Atlantic changes the Telecommunications Carrier from whom
the end user subscribes for such dial tone line (including a change from
Xxxx Atlantic to Reseller, from Reseller to Xxxx Atlantic, or from Reseller
to a Telecommunications Carrier other than Xxxx Atlantic),
29
after such change, the end user may continue to use with the dial tone line
the telephone numbers which were assigned to the dial tone line by Xxxx
Atlantic immediately prior to the change.
38.3 Xxxx Atlantic shall have the right to change the telephone numbers
used by an end user if at any time: (a) the type or class of service
subscribed to by the end user changes; (b) the end user requests service at
a new location, that is not served by the Xxxx Atlantic switch and the
Xxxx Atlantic rate center from which the end user previously had service;
or, (c) continued use of the telephone numbers is not technically feasible.
38.4 If service on a Xxxx Atlantic Retail Telecommunications Service dial
tone line subscribed to by Reseller from Xxxx Atlantic under this Agreement
is terminated, the telephone numbers associated with such dial tone line
shall be available for reassignment by Xxxx Atlantic to any person to whom
Xxxx Atlantic elects to assign the telephone numbers, including, but not
limited to, Xxxx Atlantic, Xxxx Atlantic end user retail Customers,
Reseller, or Telecommunications Carriers other than Xxxx Atlantic and
Reseller.
39. WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, XXXX ATLANTIC MAKES
NO WARRANTIES WITH RESPECT TO XXXX ATLANTIC SERVICES, WHETHER EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE WARRANTIES SET FORTH IN
THIS AGREEMENT ARE XXXX ATLANTIC'S EXCLUSIVE WARRANTIES WITH RESPECT TO
XXXX ATLANTIC SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. XXXX ATLANTIC DISCLAIMS ANY
AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST
INFRINGEMENT, AND WARRANTIES ARISING BY TRADE CUSTOM, TRADE USAGE, COURSE
OF DEALING, OR OTHERWISE.
40. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
40.1.1 Neither Party nor its subcontractors or agents will use the other
Party's trademarks, service marks, logos or other proprietary trade dress
in connection with the sale of products and services, or in any
advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
40.1.2 Neither Party may imply any direct or indirect affiliation with or
sponsorship or endorsement of its company, products and services by the
other Party.
41. AUTHORIZATION
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41.1.1 Xxxx Atlantic is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Jersey and has full
power and authority to execute and deliver this Agreement and to perform
the obligations hereunder on behalf of Xxxx Atlantic.
41.2 Xxxxxxxxx.Xxx, Inc. a corporation, is duly organized, validly existing
and in good standing under the laws of Delaware, and has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder.
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IN WITNESS WHEREOF, intending to be legally bound, Reseller
and Xxxx Atlantic have caused this Agreement to be executed by their respective
authorized representatives.
XXXXXXXXX.XXX,INC.
BY: /s/ Xxxxx Xxxxxxx
------------------------------------
Signature
Xxxxx Xxxxxxx
------------------------------------
Name (Printed)
ITS: CEO
------------------------------------
Title
BY: /s/ Xxxxxxx Xxxxx
------------------------------------
Signature
Xxxxxxx Xxxxx
------------------------------------
Name (Printed)
ITS: Vice President-Operations
------------------------------------
Title
BY: /s/ Xxxx Xxxxx
------------------------------------
Signature
Xxxx Xxxxx
------------------------------------
Name (Printed)
ITS: Vice President-Business Development
------------------------------------
Title
XXXX ATLANTIC - NEW JERSEY, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Signature
Xxxxxxx X. Xxxxxxx
------------------------------------
Name (Printed)
TITLE: Vice President-Telecom Industry Services
-------------------------------------------
32
EXHIBIT I
XXXX ATLANTIC ANCILLARY SERVICES
1. XXXX ATLANTIC OSS SERVICES
1.1 DEFINITIONS
As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Xxxx Atlantic Operations Support Systems" means Xxxx Atlantic
systems for pre-ordering, ordering, provisioning, maintenance and
repair, and billing.
1.1.2 "Xxxx Atlantic OSS Services" means access to Xxxx Atlantic
Operations Support Systems functions. The term "Xxxx Atlantic OSS
Services" includes, but is not limited to: (a) Xxxx Atlantic's
provision of Reseller Usage Information to Reseller pursuant to
Exhibit I, Section 1.3, below; and, (b) "Xxxx Atlantic OSS
Information", as defined in Exhibit I, Section 1.1.4, below.
1.1.3 "Xxxx Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Xxxx
Atlantic to provide Xxxx Atlantic OSS Services to Reseller.
1.1.4 "Xxxx Atlantic OSS Information" means any information accessed
by, or disclosed or provided to, Reseller through or as a part of
Xxxx Atlantic OSS Services. The term "Xxxx Atlantic OSS Information"
includes, but is not limited to: (a) any Customer Information related
to a Xxxx Atlantic Customer or a Reseller Customer accessed by, or
disclosed or provided to, Reseller through or as a part of Xxxx
Atlantic OSS Services; and, (b) any Reseller Usage Information (as
defined in Exhibit I, Section 1.1.5, below) accessed by, or disclosed
or provided to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for a
Xxxx Atlantic Retail Telecommunications Service purchased by Reseller
under this Agreement that Xxxx Atlantic would record if Xxxx Atlantic
was furnishing such Xxxx Atlantic Retail Telecommunications Service to
a Xxxx Atlantic end-user retail Customer.
1.2 XXXX ATLANTIC OSS SERVICES
1.2.1 Upon request by Reseller, Xxxx Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C.
Section 251(c)(3), Xxxx Atlantic OSS Services.
33
1.2.2 Subject to the requirements of Applicable Law, Xxxx Atlantic
Operations Support Systems, Xxxx Atlantic Operations Support Systems
functions, Xxxx Atlantic OSS Facilities, Xxxx Atlantic OSS
Information, and the Xxxx Atlantic OSS Services that will be offered
by Xxxx Atlantic, shall be as determined by Xxxx Atlantic. To the
extent required by Applicable Law and technically feasible, Xxxx
Atlantic will offer to Reseller the Xxxx Atlantic OSS Services that
Xxxx Atlantic offers, under agreements approved by the Board pursuant
to 47 U.S.C. Section 252, to other Telecommunications Carriers that
are engaged in the resale of Xxxx Atlantic Retail Telecommunications
Services pursuant to 47 U.S.C. Section 251(c)(4). Subject to the
requirements of Applicable Law, Xxxx Atlantic shall have the right to
change Xxxx Atlantic Operations Support Systems, Xxxx Atlantic
Operations Support Systems functions, Xxxx Atlantic OSS Facilities,
Xxxx Atlantic OSS Information, and the Xxxx Atlantic OSS Services,
from time-to-time, without the consent of Reseller.
1.3 RESELLER USAGE INFORMATION
1.3.1 Upon request by Reseller, Xxxx Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C.
Section 251(c)(3), Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller through
the following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution System
("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore
Exchange Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit I,
Section 1.3.2(a) will be issued each day, Monday through Friday,
except holidays observed by Xxxx Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to the
requirements of Applicable Law, the manner in which, and the frequency
with which, Reseller Usage Information will be provided to Reseller
shall be determined by Xxxx Atlantic.
1.4 PRICES
The prices for Xxxx Atlantic OSS Services shall be as stated in
Exhibit II, Section 2 following.
34
1.5 ACCESS TO AND USE OF XXXX ATLANTIC OSS FACILITIES
1.5.1 Xxxx Atlantic OSS Facilities may be accessed and used by
Reseller only to the extent necessary for Reseller's access to and
use of Xxxx Atlantic OSS Services pursuant to this Agreement.
1.5.2 Xxxx Atlantic OSS Facilities may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.5.3 Reseller shall restrict access to and use of Xxxx Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any
right or license to grant sublicenses to other persons, or permission
to other persons (except Reseller's employees, Agents and contractors,
in accordance with Exhibit I, Section 1.5.7, below), to access or use
Xxxx Atlantic OSS Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Xxxx Atlantic
OSS Facilities (including, but not limited to, Xxxx Atlantic
software), (b) copy, remove, derive, reverse engineer, or decompile,
software from the Xxxx Atlantic OSS Facilities, or (c) obtain access
through Xxxx Atlantic OSS Facilities to Xxxx Atlantic databases,
facilities, equipment, software, or systems, which are not offered
for Reseller's use under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures
established by Xxxx Atlantic for access to and use of Xxxx Atlantic
OSS Facilities (including, but not limited to, Xxxx Atlantic
practices and procedures with regard to security and use of access
and user identification codes).
1.5.6 All practices and procedures for access to and use of Xxxx
Atlantic OSS Facilities, and all access and user identification
codes for Xxxx Atlantic OSS Facilities: (a) shall remain the property
of Xxxx Atlantic; (b) shall be used by Reseller only in connection
with Reseller's use of Xxxx Atlantic OSS Facilities permitted by
this Agreement; (c) shall be treated by Reseller as Confidential
Information of Xxxx Atlantic pursuant to Section 13; and, (d) shall
be destroyed or returned by Reseller to Xxxx Atlantic upon the
earlier of request by Xxxx Atlantic or the expiration or termination
of this Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and use
Xxxx Atlantic OSS Facilities only to the extent necessary for
Reseller's access to and use of the Xxxx Atlantic OSS Facilities
permitted by this Agreement. Any access to or use of Xxxx Atlantic
OSS Facilities by Reseller's employees, Agents, or contractors, shall
be subject to the provisions of this Agreement, including, but not
limited to, Section 13, Exhibit I, Section 1.5.6, and Exhibit I,
Section 1.6.3.3.
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1.6 XXXX ATLANTIC OSS INFORMATION
1.6.1 Subject to the provisions of this Agreement and Applicable Law,
Xxxx Atlantic grants to Reseller a non-exclusive license to use Xxxx
Atlantic OSS Information.
1.6.2 All Xxxx Atlantic OSS Information shall at all times remain the
property of Xxxx Atlantic. Except as expressly stated in this
Agreement, Reseller shall acquire no rights in or to any Xxxx Atlantic
OSS Information.
1.6.3.1 The provisions of this Exhibit I, Section 1.6.3 apply to all
Xxxx Atlantic OSS Information, except (a) Reseller Usage Information,
(b) CPNI of Reseller, and (c) CPNI of a Xxxx Atlantic Customer or a
Reseller Customer, to the extent the Customer has authorized Reseller
to use the Customer Information.
1.6.3.2 Xxxx Atlantic OSS Information may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.6.3.3 Reseller shall treat Xxxx Atlantic OSS Information that is
designated by Xxxx Atlantic, through written or electronic notice
(including, but not limited to, through the Xxxx Atlantic OSS
Services), as "Confidential" or "Proprietary" as Confidential
Information of Xxxx Atlantic pursuant to Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement
does not grant to Reseller any right or license to grant sublicenses
to other persons, or permission to other persons (except Reseller's
employees, Agents or contractors, in accordance with Exhibit I,
Section 1.6.3.5), to access, use or disclose Xxxx Atlantic OSS
Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use and
disclose Xxxx Atlantic OSS Information only to the extent necessary
for Reseller's access to, and use and disclosure of, Xxxx Atlantic
OSS Information permitted by this Agreement. Any access to, or use or
disclosure of, Xxxx Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit I,
Section 1.6.3.3.
1.6.3.6 Reseller's license to use Xxxx Atlantic OSS Information shall
expire upon the earliest of: (a) the time when the Xxxx Atlantic OSS
Information is no longer needed by Reseller to provide
Telecommunications Services to Reseller Customers; (b) termination of
the license in accordance with this Agreement; or (c) expiration or
termination of this Agreement.
1.6.3.7 All Xxxx Atlantic OSS Information received by Reseller shall be
destroyed or returned by Reseller to Xxxx Atlantic, upon expiration,
suspension or termination of the license to use such Xxxx Atlantic OSS
Information.
36
1.6.4 Unless sooner terminated or suspended in accordance with this
Agreement (including, but not limited to, Section 17.1 and Exhibit I,
Section 1.7. 1), Reseller's access to Xxxx Atlantic OSS Information
through Xxxx Atlantic OSS Services shall terminate upon the expiration
or termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Xxxx Atlantic shall
have the right (but not the obligation) to audit Reseller to as
certain whether Reseller is complying with the requirements of
Applicable Law and this Agreement, with regard to Reseller's access
to, and use and disclosure of, Xxxx Atlantic OSS Information.
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or
Exhibit I, Section 1.6.5.1, Xxxx Atlantic shall have the right (but
not the obligation) to monitor Reseller's access to and use of Xxxx
Atlantic OSS Information which is made available by Xxxx Atlantic to
Reseller pursuant to this Agreement, to ascertain whether Reseller is
complying with the requirements of Applicable Law and this Agreement,
with regard to Reseller's access to, and use and disclosure of, such
Xxxx Atlantic OSS Information. The foregoing right shall include, but
not be limited to, the right (but not the obligation) to
electronically monitor Reseller's access to and use of Xxxx Atlantic
OSS Information which is made available by Xxxx Atlantic to Reseller
through Xxxx Atlantic OSS Facilities.
1.6.5.3 Information obtained by Xxxx Atlantic pursuant to this
Exhibit I, Section 1.6.5 shall be treated by Xxxx Atlantic as
Confidential Information of Reseller pursuant to Section 13; provided
that, Xxxx Atlantic shall have the right (but not the obligation) to
use and disclose information obtained by Xxxx Atlantic pursuant to
this Exhibit I, Section 1.6.5 to enforce Applicable Law and/or Xxxx
Atlantic's rights under this Agreement.
1.6.6 Reseller acknowledges that the Xxxx Atlantic OSS Information, by
its nature, is updated and corrected on a continuous basis by Xxxx
Atlantic, and therefore that Xxxx Atlantic OSS Information is subject
to change from time to time.
1.7 LIABILITIES AND REMEDIES
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit I, Section 1.5 or
Exhibit I, Section 1.6, shall be deemed a material breach of a
material provision of this Agreement by Reseller under Section 17.1
of this Agreement. In addition, if Reseller or an employee, Agent or
contractor of Reseller at any time breaches a provision of Exhibit I,
Section 1.5 or Exhibit I, Section 1.6, and such breach continues for
more than ten (10) days after written notice thereof from Xxxx
Atlantic, then, except as otherwise required by Applicable Law, Xxxx
Atlantic shall have the right, upon notice to Reseller, to suspend
the license to use Xxxx Atlantic OSS Information granted by
Exhibit I, Section 1.6.1 and/or the provision of Xxxx Atlantic OSS
Services, in whole or in part.
1.7.2 Reseller agrees that Xxxx Atlantic would be irreparably injured
by a breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by
Reseller or the employees, Agents or
37
contractors of Reseller, and that Xxxx Atlantic shall be entitled to
seek equitable relief, including injunctive relief and specific
performance, in the event of any breach of Exhibit I, Section 1.5 or
Exhibit I, Section 1.6 by Reseller or the employees, Agents or
contractors of Reseller. Such remedies shall not be deemed to be the
exclusive remedies for a breach of Exhibit I, Section 1.5 or Exhibit
I, Section 1.6, but shall be in addition to any other remedies
available under this Agreement or at law or in equity.
1.8 RELATION TO APPLICABLE LAW
The provisions of Exhibit I, Sections 1.5, 1.6 and 1.7 shall be
in addition to and not in derogation of any provisions of Applicable
Law, including, but not limited to, 47 U.S.C. Section 222 and the FCC
rules in 47 CFR Section 64.2001 - Section 64.2009, and are not
intended to constitute a waiver by Xxxx Atlantic of any right with
regard to protection of the confidentiality of the information of Xxxx
Atlantic or Xxxx Atlantic Customers provided by Applicable Law.
1.9 COOPERATION
Reseller, at Reseller's expense, shall reasonably cooperate with
Xxxx Atlantic in using Xxxx Atlantic OSS Services. Such cooperation
shall include, but not be limited to, the following:
1.9.1 Upon request by Xxxx Atlantic, Reseller shall by no later than
the fifteenth (15th) day of each calendar month submit to Xxxx
Atlantic reasonable, good faith estimates (by central office or other
Xxxx Atlantic office or geographic area designated by Xxxx Atlantic)
of the volume of each Xxxx Atlantic Retail Telecommunications Service
for which Reseller anticipates submitting Orders in each week of the
next calendar month.
1.9.2 Upon request by Xxxx Atlantic, Reseller shall submit to Xxxx
Atlantic reasonable, good faith estimates of other types of
transactions or use of Xxxx Atlantic OSS Services that Reseller
anticipates.
1.9.3 Reseller shall reasonably cooperate with Xxxx Atlantic in
submitting Orders for Xxxx Atlantic Retail Telecommunications
Services and otherwise using the Xxxx Atlantic OSS Services, in
order to avoid exceeding the capacity or capabilities of such Xxxx
Atlantic OSS Services.
1.9.4 Reseller shall participate in cooperative testing of Xxxx
Atlantic OSS Services and shall provide assistance to Xxxx Atlantic
in identifying and correcting mistakes, omissions, interruptions,
delays, errors, defects, faults, failures, or other deficiencies, in
Xxxx Atlantic OSS Services.
1.10 Xxxx Atlantic Access to Information Related to Reseller
CUSTOMERS
38
1.10.1 Xxxx Atlantic shall have the right to access, use and disclose
information related to Reseller Customers that is in Xxxx Atlantic's
possession (including, but not limited to, in Xxxx Atlantic OSS
Facilities) to the extent such access, use and/or disclosure has been
authorized by the Reseller Customer in the manner required by
Applicable Law.
1.10.2 Upon request by Xxxx Atlantic, Reseller shall negotiate in good
faith and enter into a contract with Xxxx Atlantic, pursuant to which
Xxxx Atlantic may obtain access to Reseller's operations support
systems (including, systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing) and information contained in such
systems, to permit Xxxx Atlantic to obtain information related to
Reseller Customers (as authorized by the applicable Reseller
Customer), to permit Customers to transfer service from one
Telecommunications Carrier to another, and for such other purposes as
may be permitted by Applicable Law.
2. E911/911 SERVICES
2.0 Reseller acknowledges and agrees that, prior to initiating any
911/E911 service hereunder, Reseller has sole responsibility for
notifying and complying with regulations and requirements of the State
of New Jersey. This includes prior notification to the State of New
Jersey Director of 911/E911 Services of Reseller's intent to perform
and the scope of such 911/E911 services. The State of New Jersey
Director of 911/E911 Services may be contacted at:
New Jersey Office of Emergency Telecommunications Services
New Jersey State Police Headquarters
P. 0. Box 0000
Xxxx Xxxxxxx, Xxx Xxxxxx 00000 - 0068
Attn: S. Xxxxxx Xxxxxx, Executive Director
Telephone: (000) 000-0000, Extension 2970
Facsimile: (000) 000-0000
39
2.1 Where and to the extent that Xxxx Atlantic provides E911/911
call routing to a Public Safety Answering Point ("PSAP") to Xxxx
Atlantic's own end user retail Customers, Xxxx Atlantic will provide
to Reseller, for resold Xxxx Atlantic Retail Telecommunications
Service dial tone lines, E911/911 call routing to the appropriate
PSAP. Xxxx Atlantic will provide Reseller Customer information for
resold Xxxx Atlantic Retail Telecommunications Service dial tone
lines to the PSAP as that information is provided to Xxxx Atlantic
by Reseller where and to the same extent that Xxxx Atlantic provides
Xxxx Atlantic end user retail Customer information to the PSAP. Xxxx
Atlantic will update and maintain, on the same schedule that Xxxx
Atlantic uses with Xxxx Atlantic's own end user retail Customers, for
Reseller Customers served by resold Xxxx Atlantic Retail
Telecommunications Service dial tone lines, the Reseller Customer
information in Xxxx Atlantic's E911/911 databases.
2.2 Reseller shall provide to Xxxx Atlantic the name, telephone
number and address, of all Reseller Customers, and such other
information as may be requested by Xxxx Atlantic, for inclusion in
E911/911 databases. Any change in Reseller Customer name, address or
telephone number information (including addition or deletion of a
Reseller Customer, or a change in Reseller Customer name, telephone
number or address), or in other E911/911 information supplied by
Reseller to Xxxx Atlantic, shall be reported to Xxxx Atlantic by
Reseller within one (1) day after the change.
2.3 To the extent that it is necessary (whether as a requirement of
Applicable Law or otherwise) for Reseller to enter into any agreements
or other arrangements with governmental entities (or governmental
entity contractors) related to E911/911 in order for Reseller to
provide Telecommunications Services, Reseller shall at Reseller's
expense enter into such agreements and arrangements.
3. ROUTING TO DIRECTORY ASSISTANCE AND OPERATOR SERVICES
3.1 Upon request by Reseller, to the extent technically feasible,
Xxxx Atlantic will provide to Reseller the capability of rerouting to
Reseller's platforms directory assistance traffic (411 and 555-1212
calls) from Reseller Customers served by resold Xxxx Atlantic Retail
Telecommunications Service dial tone line service and operator
services traffic (0+ and 0- intraLATA calls) from Reseller Customers
served by resold Xxxx Atlantic Retail Telecommunications Service dial
tone line service.
3.2 A request for the rerouting service described in Exhibit I,
Section 4.1 must be made by Reseller (a) on a Xxxx Atlantic
switch-by-Xxxx Atlantic switch basis, and (b) at least ninety (90)
days in advance of the date that the rerouting capability is to be
made available in an applicable Xxxx Atlantic switch.
3.3 The prices for the rerouting service described in Exhibit I,
Section 4.1 shall be as stated in Exhibit II, Section 2.
40
4. LIDB/BVS
4.1 Upon request by Reseller, Xxxx Atlantic will maintain information
(including calling card numbers and collect and xxxx to third party
billing restriction notation) for Reseller Customers who subscribe to
resold Xxxx Atlantic Retail Telecommunications Service dial tone line
service, in Xxxx Atlantic's Line Information Database ("LIDB"), where
and to the same extent that Xxxx Atlantic maintains information in
Xxxx Atlantic's LIDB for Xxxx Atlantic's own end-user retail
Customers.
4.2 If an end-user terminates Xxxx Atlantic Retail Telecommunications
Service dial tone line service provided to the end-user by Xxxx
Atlantic and, in place thereof, subscribes to Reseller for resold Xxxx
Atlantic Retail Telecommunications Service dial tone line service,
Xxxx Atlantic will remove from Xxxx Atlantic's LIDB any Xxxx Atlantic
assigned telephone line calling card number (including area code)
("TLN") and Personal Identification Number ("PIN") associated with the
terminated Xxxx Atlantic Retail Telecommunications Service dial tone
line service. The Xxxx Atlantic-assigned TLN and PIN will be removed
from Xxxx Atlantic's LIDB within twenty-four (24) hours after Xxxx
Atlantic terminates the Xxxx Atlantic Retail Telecommunications
Service dial tone line service with which the number was associated.
Reseller may issue a new telephone calling card to such end-user,
utilizing the same TLN, and the same or a different PIN. Upon request
by Reseller, Xxxx Atlantic will enter such TLN and PIN in Xxxx
Atlantic's LIDB for calling card validation purposes.
4.3 Reseller information which is stored in Xxxx Atlantic's LIDB will
be subject, to the same extent as Xxxx Atlantic information stored
in Xxxx Atlantic's LIDB, to access and use by, and disclosure to,
those persons (including, but not limited to, Xxxx Atlantic) to
whom Xxxx Atlantic allows access to information which is stored in
Xxxx Atlantic's LIDB. Reseller hereby grants to Xxxx Atlantic and
the persons to whom Xxxx Atlantic allows access to information
which is stored in Xxxx Atlantic's LIDB, a royalty free license for
such access, use and disclosure.
4.4 Reseller shall obtain contractual agreements with each of the persons
authorized to have access to Xxxx Atlantic's LIDB, under which
Reseller will xxxx Reseller Customers for calling card, third party,
collect and other calls validated by such persons through Xxxx
Atlantic's LIDB.
4.5 Reseller warrants that the information provided by Reseller for
inclusion in Xxxx Atlantic's LIDB will at all times be current,
accurate and appropriate for use for billing validation services.
4.6 Upon request by Reseller, Xxxx Atlantic will provide to Reseller
Xxxx Atlantic Billing Validation Service, in accordance with Xxxx
Atlantic's Tariffs, for use by Reseller in connection with Xxxx
Atlantic Retail Telecommunications Services purchased and provided by
Reseller pursuant to this Agreement.
41
4.7 Information in Xxxx Atlantic's LIDB provided to Reseller shall be
treated by Reseller as Confidential Information of Xxxx Atlantic
pursuant to Section 13.
4.8 The prices for the services described in this Exhibit I, Section 5
shall be as stated in Exhibit II, Section 2.
42
EXHIBIT II
PRICES FOR XXXX ATLANTIC SERVICES
1. XXXX ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
1.1 PRICES
The prices for Xxxx Atlantic Retail Telecommunications Services
shall be the Retail Prices stated in Xxxx Atlantic's Tariffs for such Xxxx
Atlantic Retail Telecommunications Services, less: (a) the applicable discount
stated in Xxxx Atlantic's Tariffs for Xxxx Atlantic Retail Telecommunications
Services purchased for resale pursuant to 47 U.S.C. Section 251(c)(4); or, (b)
in the absence of an applicable Xxxx Atlantic Tariff discount for Xxxx Atlantic
Retail Telecommunications Services purchased for resale pursuant to 47 U.S.C.
Section 251(c)(4), the applicable discount stated in Exhibit II, Attachment 1.
1.2 INAPPLICABILITY OF DISCOUNTS
The discounts provided for in Exhibit II, Section 1.1, shall not be
applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90) days;
1.2.2 Charges for services and products provided by Xxxx Atlantic that are not
Xxxx Atlantic Retail Telecommunications Services, including, but not limited
to, Xxxx Atlantic Ancillary Services, and exchange access services as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user common line
charges, carrier selection and change charges, and Audiotex Service charges,
and to the extent applicable, the Presubscribed Interexchange Carrier Charge
applicable to Reseller Customers who have not presubscribed to an interexchange
carrier for long distance services; and,
1.2.4 Any service or charge which the Board, the FCC, or other governmental
entity of appropriate jurisdiction, determines is not subject to a wholesale
rate discount under 47 U.S.C. Section 251(c)(4).
1.3 DISCOUNT CHANGES
1.3.1 Xxxx Atlantic shall change the discounts provided for in Exhibit II,
Section 1.1, above, from time-to-time, to the extent such change is required by
Applicable Law, including, but not limited to, by regulation or order of the
Board, the FCC, or other governmental entity of appropriate jurisdiction.
43
1.3.2 Xxxx Atlantic shall have the right to change the discounts provided for
in Exhibit II, Section 1.1, above, from time-to-time, to the extent such change
is required, approved or permitted by Applicable Law, including, but not limited
to, by regulation or order of the Board, the FCC, or other governmental entity
of appropriate jurisdiction.
1.4 Offers of Merchandise and Services which are not Xxxx Atlantic Retail
Telecommunications Services.
Reseller shall not be eligible to participate in any Xxxx Atlantic
plan or program under which Xxxx Atlantic end user retail Customers may obtain
products or merchandise, or services which are not Xxxx Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Xxxx Atlantic Retail Telecommunications Services.
2. XXXX ATLANTIC ANCILLARY SERVICES
2.1 PRICES
2.1.1 The prices for Xxxx Atlantic Ancillary Services shall be as stated: (a) in
Xxxx Atlantic's Tariffs; or, (b) in the absence of an applicable Xxxx Atlantic
Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Xxxx Atlantic at any time offers a Xxxx Atlantic Ancillary Service the
prices for which are not stated in Xxxx Atlantic's Tariffs or Exhibit II,
Attachment 1, Xxxx Atlantic shall have the right to revise Exhibit II,
Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 PRICE CHANGES
2.2.1 Xxxx Atlantic shall change the prices for Xxxx Atlantic Ancillary
Services, from time-to-time, to the extent such change is required by Applicable
Law, including, but not limited to, by regulation or order of the Board, the
FCC, or other governmental entity of appropriate jurisdiction.
2.2.2 Xxxx Atlantic shall have the right to change the prices for Xxxx Atlantic
Ancillary Services, from time-to-time, to the extent such change is required,
approved or permitted by Applicable Law, including, but not limited to, by
regulation or order of the Board, the FCC, or other governmental entity of
appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Xxxx Atlantic shall give
Reseller thirty (30) days advance written notice of any increase in the prices
stated in Exhibit II, Attachment I for Xxxx Atlantic Ancillary Services.
44
ATTACHMENT I
TO EXHIBIT II
XXXX ATLANTIC - NEW JERSEY, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
1. WHOLESALE DISCOUNT FOR RESALE OF RETAIL TELECOMMUNICATIONS SERVICES
Resale of retail services if Reseller provides 20.03%
own operator services platform
Resale of retail services if Reseller uses Xxxx 17.04%
Atlantic operator services platform
----------
1 All rates and charges set forth in this Exhibit II, Attachment 1 are
subject to change from time-to-time as provided in this Agreement, including,
but not limited to, in Section 2.3 and Exhibit II of this Agreement. The rates
and charges, including interim rates, set forth in this Exhibit II, Attachment 1
shall apply until such time as they are replaced by new rates as may be approved
or allowed into effect by the Board from time to time, subject to a stay or
other order issued by any court of competent jurisdiction. At such time(s) as
such new rates have been approved or allowed into effect by the Board, the
Parties shall amend this Exhibit II, Attachment 1 to reflect the new approved
rates.
Except for citations to generally available services and rates offered
under Xxxx Atlantic's Tariffs, all services and rates listed in this Exhibit II,
Attachment 1 are available to Reseller only in connection with the purchase and
resale of Xxxx Atlantic Retail Telecommunications Services by Reseller under
this Agreement. Adherence to this limitation shall be subject to reasonable
audit by Xxxx Atlantic.
The rates set forth in Sections 11 through IV of this Exhibit II,
Attachment 1, are in addition to, and not in lieu of, any other rates set forth
in this Agreement.
In addition to charges for Xxxx Atlantic Services, Reseller shall pay,
or collect and remit, applicable taxes and surcharges (including, but not
limited to, E911/911, telecommunications relay service, and universal service
fund, surcharges), as required by Applicable Law and this Agreement.
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
CHARGE:
II. ACCESS TO OPERATION SUPPORT SYSTEMS
A. PRE-ORDERING $.26/Query Not Applicable
B. ORDERING $4.22/Transaction Not Applicable
C. PROVISIONING Included in Ordering Not Applicable
D. MAINTENANCE & REPAIR
1. ECG ACCESS $.26/Query Not Applicable
2. EB/OSI ACCESS $1.18/Trouble Ticket Not Applicable
E. BILLING
1. CD-ROM $249.57/CD-ROM Not Applicable
2. DAILY USAGE FILE
a. EXISTING MESSAGE RECORDING $.000262/Message Not Applicable
b. DELIVERY OF DUF
Data Tape $17.40/Tape $62.14/Programming
Hour
Network Data Mover $.000101/Message Not Applicable
CMDS $.000101/Message $62.14/Programming
Hour
c. DUF TRANSPORT
9.6 kb Communications Port $10.37/Month $7,660.42/Port
56 kb Communications Port $28.63/Month $31,727.40/Port
256 kb Communications Port $28.63/Month $52,773.67/Port
T1 Communications Port $363.65/Month $188,311.65/Port
Line Installation Not Applicable $62.14/Programming
Hour
Port Set-up Not Applicable $9.98/Port
Network Control Programming Not Applicable $62.14/Programming
Coding Hour
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
CHARGE:
111. DIRECTORY ASSISTANCE/OPERATOR SERVICES
ROUTING
To Reseller Platform $.31086/Line/Month $4.83/Line
To BA Platform for Re-Branding(2) .077715/Call $4.83/Line
IV. LIDB INTERCONNECTION/BILLING VALIDATION
SERVICE
Calling Card $.016280/Query Not Applicable
Billed Number Screening $.016280/Query Not Applicable
LIDB Point Codes(3) Not Applicable $86.88/Point Code
Storage of Requesting Resellers' Data in
LIDB Database(4) Not Applicable $1,487.64 Service
Establishment
---------
INTERIM RATES UNTIL PERMANENT RATES ARE ESTABLISHED BY THE COMMISSION
SEE NOTE 2 ABOVE.
SEE NOTE 2 ABOVE.
APPENDIX 1, ATTACHMENT 23
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
NEW JERSEY
------------------------------------------------------------------------------
ACCESS LINES
------------------------------------------------------------------------------
Message Business Service 1MB ALS
------------------------------------------------------------------------------
Measured Business Service LMB ALM
------------------------------------------------------------------------------
Flat Rate 1FB AFK
------------------------------------------------------------------------------
Direct Inward Dial Trunks TDD NDT
------------------------------------------------------------------------------
Direct Inward Dial Blocks ND8 NDJ
------------------------------------------------------------------------------
PBX Trunks Flat TFB TFR
------------------------------------------------------------------------------
PBX Trunks Measured TMB TM2
------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
------------------------------------------------------------------------------
CENTREX:**
------------------------------------------------------------------------------
**EXCLUDES:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom
Pricing)
2. Centrex systems which serve multiple end user customers
------------------------------------------------------------------------------
CENTREX - CUSTOPAK/CLASS OF SERVICE
------------------------------------------------------------------------------
Message CGC+X
------------------------------------------------------------------------------
CUSTOPAK LINES
------------------------------------------------------------------------------
Unrestricted R3G
------------------------------------------------------------------------------
Restricted R3K
------------------------------------------------------------------------------
Primary Off Prem RX3
------------------------------------------------------------------------------
CENTREX - CUSTOFLEX 2100/CLASS OF SERVICE
------------------------------------------------------------------------------
Message KGK+X
------------------------------------------------------------------------------
CUSTOFLEX 2100 LINES
------------------------------------------------------------------------------
Unrestricted R4N
------------------------------------------------------------------------------
Restricted RHK
------------------------------------------------------------------------------
Primary Off Prem RX3
------------------------------------------------------------------------------
ISDN - Unrestricted XQA
------------------------------------------------------------------------------
ISDN - Restricted XQK
------------------------------------------------------------------------------
Page 1 of 1
XXXXXXXX 0, XXXXXXXXXX 24
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
NEW JERSEY
--------------------------------------------------------------------------------------------
ACCESS LINES
--------------------------------------------------------------------------------------------
Message Business Service 1MB ALS
--------------------------------------------------------------------------------------------
Measured Business Service LMB ALM
--------------------------------------------------------------------------------------------
Flat Rate 1FB AFK
--------------------------------------------------------------------------------------------
Direct Inward Dial Trunks TDD NDT
--------------------------------------------------------------------------------------------
Direct Inward Dial Blocks ND8 NDJ
--------------------------------------------------------------------------------------------
PBX Trunks Flat TFB TFR
--------------------------------------------------------------------------------------------
PBX Trunks Measured TMB TM2
--------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
--------------------------------------------------------------------------------------------
INTRA-LATA TOLL
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
--------------------------------------------------------------------------------------------
Message Rate Service N/A
--------------------------------------------------------------------------------------------
MTS, including Key Connections & Rewarding Connections VWDK1 WRV
------------------------------
Optional Calling Plan but excluding all other OCPs OVSXX OVS4X
--------------------------------------------------------------------------------------------
FEATURES
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
--------------------------------------------------------------------------------------------
Touch Tone TTB TJB
--------------------------------------------------------------------------------------------
IQ SERVICES:
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
--------------------------------------------------------------------------------------------
Call Forwarding ESM
--------------------------------------------------------------------------------------------
Call Waiting ESX
--------------------------------------------------------------------------------------------
Call Waiting ID NWT
--------------------------------------------------------------------------------------------
Speed Dialing 8 ESL
--------------------------------------------------------------------------------------------
Speed Dialing 30 ESF
--------------------------------------------------------------------------------------------
3 Way Calling (per Use or Monthly) ESC
--------------------------------------------------------------------------------------------
*69 (per Use or Monthly) NSS
--------------------------------------------------------------------------------------------
Call Trace (Per Use Charge)
--------------------------------------------------------------------------------------------
Caller ID NSD
--------------------------------------------------------------------------------------------
Caller ID with Name NDF
--------------------------------------------------------------------------------------------
Per Call Blocking (Per Use Charge)
--------------------------------------------------------------------------------------------
Repeat Dialing NSQ
--------------------------------------------------------------------------------------------
Ultra Forward FRM
--------------------------------------------------------------------------------------------
Distinctive Ring DRQ+X
--------------------------------------------------------------------------------------------
Priority Call NSK
--------------------------------------------------------------------------------------------
Select Forward NCE
--------------------------------------------------------------------------------------------
Call Block NSY
--------------------------------------------------------------------------------------------
Call Gate OC4
--------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/Caller ID AWY
--------------------------------------------------------------------------------------------
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