AGREEMENT
THIS AGREEMENT is made by and between BellSouth Telecommunications,
Inc., ("BellSouth"), a Georgia corporation, and Tritel Communications, Inc.,
("Carrier") a Delaware corporation and shall be deemed effective as of March 16,
1999 (the "Effective Date"). This agreement may refer to either BellSouth or
Carrier or both as a "party" or "parties."
WITNESSETH
WHEREAS, BellSouth is an incumbent local exchange carrier ("ILEC")
authorized to provide telecommunications services in the states of Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, and Tennessee; and
WHEREAS, Carrier is a Commercial Mobile Radio Service ("CMRS") provider
licensed by the Federal Communications Commission ("FCC") to provide CMRS in the
states of Alabama, Florida, Georgia, Kentucky, Mississippi, and Tennessee; and
WHEREAS, the parties wish to interconnect their facilities and exchange
traffic for the purposes of fulfilling their obligations pursuant to Sections
251, 252 and 271 of the Telecommunications Act of 1996 and to replace any and
all other prior agreements, both written and oral;
NOW THEREFORE, in consideration of the mutual agreements contained
herein, BellSouth and Carrier agree as follows:
I. DEFINITIONS For purposes of this Agreement, the following capitalized terms
have the meanings set forth below unless the context requires otherwise. Terms
that appear herein (whether or not capitalized) that are not defined herein have
the meanings ascribed to them in the Act, or (if not defined therein) have the
meanings customarily associated with them based on ordinary usage in the
telecommunications industry as of the Effective Date.
A. COMMISSION is defined as the appropriate regulatory agency in each
of BellSouth's nine state region: Alabama, Florida, Georgia, Kentucky,
Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee.
B. EFFECTIVE DATE is defined in the first sentence of this Agreement.
C. INTERMEDIARY FUNCTION is defined as the delivery, pursuant to this
agreement or to Commission directive, of local or toll (using traditional
landline definitions) telecommunications traffic to or from (i) a local exchange
carrier (LEC) other than BellSouth; or (ii) an alternative (or competitive)
local exchange carrier ("ALEC"); or (iii) another telecommunications carrier
(such as a CMRS provider) other than Carrier through the network of one party
from or to an end user of the other party.
D. LOCAL TRAFFIC is defined for purposes of reciprocal compensation
under this Agreement as: (1) any telephone call that originates on the network
of Carrier within a Major
1
Trading Area ("MTA") and terminates on the network of BellSouth in the same MTA
and within the Local Access and Transport Area ("LATA") in which the call is
handed off from Carrier to BellSouth, and (2) any telephone call that originates
on the network of BellSouth that is handed off to Carrier in the same LATA in
which the call originates and terminates on the network of Carrier in the MTA in
which the call is . handed off from BellSouth to Carrier. For purposes of this
Agreement, LATA shall have the same definition as that contained in the
Telecommunications Act of 1996, and MTA shall have the same definition as that
contained in the FCC's rules.
E. LOCAL INTERCONNECTION is defined for purposes of this Agreement as
(1) the connection of the parties' respective networks for the exchange and
delivery of Local Traffic between the parties to be terminated on each party's
network so that end users of either party have the ability to reach end users of
the other party without the use of any access code or substantial delay in the
processing of the call; and (2) a LEC's provision of unbundled network features,
functions, and capabilities to carrier.
F. NON-LOCAL TRAFFIC is defined as all traffic that is neither Local
Traffic nor access services (the latter described in Section V.F of this
Agreement).
G. PERCENT OF INTERSTATE USAGE (PIU) is defined as a factor to be
applied to that portion of Non-Local Traffic comprised of interstate interMTA
minutes of use in order to -designate those minutes that should be rated as
interstate access services minutes of use. The numerator is all interstate
interMTA minutes of use, less any interstate minutes of use for "Terminating
Party Pays" services, such as 800 Services. The denominator is all interMTA
minutes of use less all minutes attributable to "Terminating Party Pays"
services.
H. PERCENT LOCAL USAGE (PLU) is defined as a factor to be applied to
terminating minutes of use. The numerator is all "nonintermediary" Local Traffic
minutes of use. The denominator is the total minutes of use including Local
Traffic and Non-Local Traffic.
I. TELECOMMUNICATIONS ACT OF 1996 ("ACT") means Public Law 104-104 of
the United States Congress effective February 8, 1996. The Act amended the
Communications Act of 1934 (47, U.S.C. Section 1 et. seq.).
II. PURPOSE
The parties desire to enter into this Agreement consistent with all
applicable federal, state and local statutes, rules and regulations in effect as
of the date of its execution including, without limitation, the Act at Sections
251, 252 and 271. The access and interconnection obligations contained herein
enable Carrier to provide CMRS in those areas-where it is authorized to provide
such services within the nine state region of BellSouth.
The parties have entered into this Agreement to memorialize their
agreement with respect to certain matters concerning Local Interconnection as a
result of their negotiations pursuant to Sections 251 and 252 of the Act. With
respect to any facility, feature, function, service, or other arrangement
concerning Local Interconnection -or any other matter subject to negotiation
pursuant to Sections 251 and 252 of the Act between the parties that has not
been agreed upon by the parties and memorialized herein, (a) the parties may
conduct further negotiations pursuant to
2
Sections 251 and 252 of the Act upon a written request therefor by Carrier, and
(b) Carrier reserves any rights it might have under Section 332 of the
Communications Act of 1934, 47 U.S.C. 332, as amended.
III. TERM OF THE AGREEMENT
A. The term of this Agreement shall be two years, beginning on the
Effective Date and shall automatically renew for additional six (6) month terms
unless either party provides written notice of termination to the other party at
least sixty (60) days prior to the last day of the initial two-year term or any
subsequent six-month renewal term, as the case may be.
B. In the event BellSouth or Carrier receives from the other a notice
of termination pursuant to paragraph A of this section, Carrier may within 30
calendar days from the receipt thereof send to BellSouth a written request to
renegotiate this Agreement pursuant to Sections 251 and 252 of the Act, in which
case this Agreement shall not be terminated, but shall continue in full force
and effect, unless and until a substitute agreement between the parties with
respect to the matters governed herein takes effect.
C. Notwithstanding the foregoing, the parties may terminate this
Agreement at any time upon their written mutual consent.
IV. LOCAL INTERCONNECTION
A. The delivery of Local Traffic between the parties shall be
reciprocal and compensation will be mutual according to the provisions of this
Agreement. The parties agree that the exchange of traffic on BellSouth's
interMTA EAS routes shall be considered as Local Traffic and compensation for
the termination of such traffic shall be pursuant to the terms of this section.
EAS routes are those exchanges within an exchange's Basic Local Calling Area, as
defined in Section A3 of BellSouth's General Subscriber Services Tariff.
B. Each party will pay the other for terminating its Local Traffic on
the others network the local interconnection rates as set forth in Attachment
B-1, by this reference incorporated herein. The amount that each party shall pay
to the other for the delivery of Local Traffic shall be calculated by
multiplying the applicable rate in Attachment B-1 for each type of call by the
total minutes of use each month for each such type of call. The minutes of use
or portion thereof for each call, as the case may be, will be accumulated for
the monthly billing period and the total of such minutes of use for the entire
month rounded to the nearest minute. The usage charges will be based on. the
rounded total monthly minutes. The charges for Local Interconnection shall be
billed monthly and payable monthly. Late payment fees, not to exceed 1 1/2% per
month after the due date may be assessed, if undisputed interconnection charges
are not paid, within thirty (30) days of the due date of the monthly xxxx.
V. METHODS OF INTERCONNECTION
A. 1. The parties agree that there are three appropriate methods of
interconnecting facilities: (a) virtual collocation where physical collocation
is not practical for technical reasons or because of space limitations; (b)
physical collocation; and (c) interconnection at any technically feasible point
via purchase of facilities from either party by the
3
other party. Rates and charges for collocation are set forth in Attachment C-1
3, incorporated herein by this reference, or as otherwise agreed upon by the
parties. Type 1, Type 2A and Type 2B interconnection arrangements described in
BellSouth's General Subscriber Services Tariff, Section A35, or, in the case of
North Carolina, in the North Carolina Connection and Traffic Interchange
Agreement effective June 30, 1994, as amended, may be purchased pursuant to this
Agreement provided, however, that such interconnection arrangements shall be
provided at the rates, terms and conditions set forth in this Agreement.
Facilities for interconnection or for other BellSouth-supplied facilities,
features, functions, or services may be purchased by Carrier (i) pursuant to a
separate agreement between the parties, or (ii) pursuant to the rates, terms and
conditions set forth in applicable tariffs, including without limitation
BellSouth's intrastate Switched Access (Section E6) or Special Access (Section
E7) services tariff.
2. Local Interconnection shall be provided at a level of quality at
least equal to that which each party provides to itself, to any of its
Affiliates, or, in the case of BellSouth-supplied interconnection, at least
equal to that provided by BellSouth to any similarly-situated CMRS provider
having interconnection arrangement(s) with BellSouth comparable to the
interconnection arrangement(s) provided to Carrier under this Agreement; except
that, upon request, a different level of quality may be provided to the extent
technically feasible and subject to the negotiation of acceptable provisions and
compensation arrangements. All interconnection facilities shall meet the
applicable telecommunications industry standards of engineering, design, and
operation, as the case may be, for LEC-CMRS interconnection in effect from time
to time.
B. The parties agree to accept and provide any of the preceding methods
of interconnection. Reciprocal connectivity shall be established to at least one
BellSouth access tandem within every LATA Carrier desires to serve, or Carrier
may elect to interconnect directly at an end office for delivery of traffic to
end users served by that end office. Such interconnecting facilities shall
conform, at a minimum, to the telecommunications industry standard of DS-1
pursuant to Bellcore Standard No. TRNWT-00499. Signal transfer point, Signaling
System 7 ("SS7") connectivity is required at each interconnection point after
Carrier implements SS7 capability within its own network. BellSouth will provide
out-of-band signaling using Common Channel Signaling Access Capability where
technically and economically feasible, in accordance with the technical
specifications set forth in the BellSouth Guidelines to Technical Publication,
TR-TSV-000905. The parties agree to engineer their respective facilities (i) to
provide the necessary on-hook, off-hook answer and disconnect supervision,
(ii)to hand off calling party number ID when technically feasible, and (iii) to
honor privacy codes and line blocking requests
C. Nothing herein shall prevent Carrier from utilizing existing
collocation facilities, purchased from the appropriate tariffs, for local
interconnection; provided, however, that, unless otherwise agreed to by the
parties, if Carrier orders new facilities for interconnection or rearranges any
of its existing facilities in order to use such facilities for local
interconnection hereunder and a BellSouth charge is applicable thereto,
BellSouth shall only charge Carrier the lower of the interstate or intrastate
tariffed rate or promotional rate.
D. The parties agree to establish trunk groups from the interconnecting
facilities of subsection (A) of this section such that each party provides a
reciprocal of each trunk-group
4
established by the other party. Notwithstanding the foregoing, each party may
construct its network, including the interconnecting facilities, to achieve
optimum cost effectiveness and network efficiency. The parties agree to provide
at least a P.01 level of service and to work cooperatively in the placement
and/or removal of interconnection facilities.
Unless otherwise agreed:
(i) BellSouth will provide or bear the cost of all trunk groups for the
delivery of Local Traffic from BellSouth's network to Carrier's MSCs within
BellSouth's service territory; and
(ii) Carrier will provide or bear the cost of all trunk groups for the
delivery of Local Traffic from Carrier to each BellSouth access tandem and end
office at which the parties' networks are interconnected; Carrier may supply its
own interconnection facilities or may purchase such facilities (a) from
BellSouth pursuant to a separate agreement or tariff for this purpose, or (b)
from any other third-party supplier; and
(iii) in the event the parties agree to use two-way interconnection
facilities in lieu of separate one-way facilities, the appropriate charges for
such facilities shall be divided on a pro rata basis reflecting the estimated or
actual percentage of traffic that terminates on the network of each party;
provided however that, in such circumstance, BellSouth's treatment of Carrier as
to said charges shall be consistent with BellSouth treatment of other local
exchange carriers for the same charges.
E. The parties agree to use an auditable PLU factor as a method for
determining the amount of traffic exchanged by the parties that is Local Traffic
and the amount of traffic that is Non-Local Traffic. The PLU factor will be used
for traffic delivered by either party for termination on the other party's
network.
F. When the parties provide an access service connection between an
interexchange carrier ("IXC") and each other, each party will provide its own
access services to the IXC. If access charges are billed, each party will xxxx
its own access services rates to the IXC.
G. The ordering and provision of all services purchased from BellSouth
by Carrier shall be as set forth in the BellSouth Telecommunications Wireless
Customer Guide as amended from time to time. The ordering and provisioning of
facilities or services by a party, including, but limited to, installation,
testing, maintenance, repair, and disaster recovery, shall be provided at a
level of quality and care at least equal to that which it provides to itself, an
affiliate, or, in the case of BellSouth supplied interconnection, at least equal
to that provided by BellSouth to any other similarly situated CMRS provider
having interconnection arrangement(s) with BellSouth comparable to the
interconnection arrangement(s) provided to Carrier under this Agreement, unless
Carrier and BellSouth specifically negotiate a different level of quality or
care.
H. BellSouth will make available to Carrier an electronic mail
capability, via the Internet, through which Carrier may deliver ordering
information to BellSouth and through which Carrier may receive confirmation of
such ordering information.
I. Upon request, the parties shall conduct further negotiations
pursuant to Sections 251 and 252 of the Act regarding interconnection, services
or network elements and nothing in
5
this agreement shall prohibit, or shall be construed to prohibit, such
negotiations or any arbitration arising therefrom, if necessary; provided that
Carrier may not make more than one such request for negotiations in any calendar
year during which the Agreement is in effect.
VI. INTRALATA AND INTERLATA NON-LOCAL TRAFFIC INTERCONNECTION
A. The delivery of Non-Local Traffic by a party to the other party
shall be reciprocal and compensation will be mutual. For terminating its
Non-Local Traffic on the other party's network, each party will pay either the
access charges described in p9ragraph (B) hereunder or the Non-Local
Intermediary Charges described in paragraph (D) hereunder, as appropriate.
B. For originating and terminating intrastate or interstate interMTA
Non-Local Traffic, each party shall pay the other BellSouth's intrastate or
interstate, as appropriate, switched network access service rate elements on a
per minute of use basis. Said rate elements shall be as set out in BellSouth's
Intrastate Access Services Tariff or BellSouth's Interstate Access Services
Tariff as those tariffs may be amended from time to time during the term of this
Agreement. The appropriate charges will be determined by the routing of the
call.
C. The parties agree that actual traffic measurements in each of the
appropriate categories is the preferred method of classifying and billing
traffic. If, however, either party cannot measure traffic in each category, then
the parties shall agree on a surrogate method of classifying and billing
traffic, taking into consideration territory served (e.g. MTA boundaries, LATA
boundaries and state boundaries) and traffic routing of the parties.
D. If Non-Local Traffic originated by a party to this Agreement is
delivered by the other party for termination to the network of a nonparty
telecommunications carrier ("Nonparty Carrier"), then the party performing the
intermediary function will xxxx the other party and the other party shall pay a
$.002 per minute intermediary charge in addition to any charges that the party
performing the intermediary function may be obligated to pay to the Nonparty
Carrier (collectively called "Non-Local Intermediary Charges"). The parties
agree that the charges that the party performing the intermediary function may
be obligated to pay to the Nonparty Carrier may change during the term of this
Agreement and that the appropriate rate shall be the rate in effect when the
traffic is terminated. The parties shall agree for purposes of this section, and
subject to verification by audit what percentage of the Non-Local Traffic
delivered to BellSouth by Carrier shall be subject to Non-Local Intermediary
Charges. The parties agree that none of the Non-Local Traffic delivered to
Carrier by BellSouth shall be subject to the Non-Local Intermediary Charges.
VII. PROVISION OF UNBUNDLED ELEMENTS
A. BellSouth shall, upon request of Carrier, and to the extent
technically feasible, provide to Carrier access to its Network Elements for the
provision of a Carrier telecommunications service. Any request by Carrier for
access to a BellSouth Network Element that is not already available shall be
treated as a Network Element bona fide request. Carrier agrees to pay the cost
associated with the bona fide request if Carrier cancels the request or fails to
purchase the service once completed. Carrier shall provide BellSouth access to
its Network Elements as mutually agreed by the parties or as required by the
Commission or the FCC.
6
B. A Network Element obtained by one party from the other party under
this section may be used in combination with the facilities of the requesting
party only to provide a telecommunications service, including obtaining billing
and collection, transmission, and routing of the telecommunications service.
VIII. ACCESS TO POLES, DUCTS, CONDUITS, AND RIGHTS OF WAY
BellSouth agrees to provide to Carrier, pursuant to 47 U.S.C.
(Section) 224, as amended by the Act, nondiscriminatory access to any pole,
duct, conduit, or right-of-way owned or controlled by BellSouth.
IX. ACCESS TO 91 1/E911 EMERGENCY NETWORK
A. BellSouth and Carrier recognize that 911 and E911 services were
designed and implemented primarily as methods of providing emergency services to
fixed location subscribers. While BellSouth and Carrier recognize the need to
provide "911-like" service to mobile subscribers, both parties recognize that
current technological restrictions prevent an exact duplication of the services
provided to fixed location customers. BellSouth agrees to route "911 -like"
calls received from Carrier to the emergency agency designated by Carrier for
such calls. Carrier agrees to provide the information necessary to BellSouth so
that each call may be properly routed and contain as much pertinent information
as is technically feasible.
B. BellSouth and Carrier recognize that the technology and regulatory
requirements for the provision of "911-like" service by CM RS carriers are
evolving and agree to modify or supplement the foregoing in order to incorporate
industry accepted technical improvements that Carrier desires to implement and
to permit Carrier to comply with applicable regulatory requirements.
X. ACCESS TO TELEPHONE NUMBERS
Carrier is responsible for interfacing with the North American Numbering Plan
administrator for all matters dealing with dedicated NXXs. BellSouth will
cooperate with Carrier in the provision of shared NXXs where BellSouth is the
service provider.
XI. ACCESS TO SIGNALING AND SIGNALING DATABASES
A. BellSouth will offer to Carrier use of BellSouth's signaling network
and signaling databases on an unbundled basis at BellSouth's published tariffed
rates set forth in Section XLB below or at unbundled rates that may be available
through non-tariffed arrangements. Signaling functionality will be available
with both A-link and B-link connectivity.
B. Where interconnection is via B-link connections, charges for the SS7
interconnection elements are as follows: 1) Port Charge - BellSouth shall not
xxxx an STP port charge nor shall BellSouth pay a port charge; 2) SS7 Network
Usage -BellSouth shall xxxx its tariffed usage charge and shall pay usage billed
by the Carrier at rates not to exceed those charged by BellSouth; 3) SS7 Link -
BellSouth will xxxx its tariffed charges for only two links of each quad
ordered. Application of these charges in this manner is designed to reflect the
reciprocal use of the parties' signaling networks. Where interconnection is via
A-link
7
connections, charges for the SS7 interconnection elements are as follows: 1)
Port Charge - BellSouth shall xxxx its tariffed STP port charge but shall not
pay a termination charge at the Carrier's end office; 2) SS7 Network Usage -
BellSouth shall xxxx its tariffed usage charge but shall not pay for any usage;
3) SS7 Link - BellSouth shall xxxx its tariffed charges for each link in the
A-link pair but shall not pay the Carrier for any portion of those links.
XII. NETWORK DESIGN AND MANAGEMENT
A. The parties agree to work cooperatively to install and maintain
reliable interconnected telecommunications networks, including but not limited
to, maintenance contact numbers and escalation procedures. BellSouth agrees to
provide public notice of changes in the information necessary for the
transmission and routing of Carriers services using its local exchange
facilities or networks, as well as of any other changes that would affect the
interoperability of those facilities and networks.
B. The interconnection of all networks will be based upon accepted
industry/national guidelines for transmission standards and traffic blocking
criteria.
C. The parties will work cooperatively to apply sound network
management principles by invoking appropriate network management controls, e.g..
call gapping, to alleviate or prevent network congestion.
D. Neither party will charge rearrangement, reconfiguration,
disconnection, termination or other such non-recurring fees that may be
associated with the initial reconfiguration of either party's existing network
interconnection arrangements. Except as otherwise agreed by the parties, the
parties may charge non-recurring fees for any additions to, or added capacity
to, any facility or trunk.
E. The parties agree to provide Common Channel Signaling (CCS)
information to one another, where available, in conjunction with all traffic in
order to enable full interoperability of CLASS features and functions except for
features or functions that have not been deployed in the parties' respective
networks. All CCS signaling parameters will be provided, including automatic
number identification (ANI), originating line information (OLI) calling party
category, charge number, etc. All privacy indicators will be honored, and the
parties agree to cooperate on the exchange of Transactional Capabilities
Application Part (TCAP) messages to facilitate full interoperability of
CCS-based features between the respective networks.
F. For network expansion, the parties agree to review engineering
requirements on a quarterly basis and establish forecasts for trunk utilization
as required by Section VI of this Agreement. New trunk groups will be
implemented as stated by engineering requirements for both parties.
G. The parties agree to provide each other with the proper call
information for Local Traffic, including without limitation, originating call
party number, destination call party number, Carrier Identification Code, all
proper translations for routing between networks and any information necessary
for billing where either party provides recording capabilities. The exchange of
information is required to enable each party to xxxx properly.
8
XIII. AUDITING PROCEDURES
A. Upon thirty (30) days written notice, each party must provide the
other the ability and opportunity to conduct an annual audit to ensure the
proper billing of traffic between the parties. The parties agree to retain
records of call detail for a minimum of nine months from which the PLU, the
percent intermediary traffic, the percent interMTA traffic, and the PIU can be
ascertained. The audit shall be accomplished during normal business hours at an
office designated by the party being audited. Audit request shall not be
submitted more frequently than one (1) time per calendar year. Audits shall be
performed by a mutually acceptable independent auditor paid for by the party
requesting the audit. The PLU shall be adjusted based upon the audit results and
shall apply to the usage for the quarter the audit was completed, the usage for
the quarter prior to the completion of the audit, and to the usage for the two
quarters following the completion of the audit.
B. For combined interstate and intrastate Carrier traffic terminated by
BellSouth over the same facilities, Carrier shall provide, to the extent
technically feasible, a PIU factor to BellSouth. Should Carrier in the future
provide toll services through the use of network switched access services, then
all jurisdictional report requirements, rules and regulations specified in
E2.3.14 of BellSouth's Intrastate Access Services Tariff will apply to Carrier.
After the Local Traffic percentage has been determined by use of the PLU factor
for application and billing of Local Interconnection, the PIU factor will be
used for application and billing of interstate and intrastate access charges, as
appropriate.
XIV. LIABILITY AND INDEMNIFICATION
A. Liability Cap.
(1) With respect to any claim or suit, whether based in contract, tort
or any other theory of legal liability, by Carrier, any Carrier customer or by
any other person or entity, for damages associated with any of the services
provided by BellSouth pursuant to or in connection with this Agreement,
including but not limited the installation, provision, preemption, termination,
maintenance, repair or restoration of service, and subject to -the provisions of
the remainder of this Article XIV, BellSouth's liability shall be limited to an
amount equal to the proportionate charge for the service provided pursuant to
this Agreement, for the period during which the service was affected.
Notwithstanding the foregoing, claims for damages by Carrier, any Carrier
customer or any other person or entity resulting from the gross negligence or
willful misconduct of BellSouth and claims for damages by Carrier resulting from
the failure of BellSouth to honor in one or more material respects any one or
more of the material provisions of this Agreement shall not be subject to such
limitation of liability.
(2) With respect to any claim or suit, whether based in contract, tort
or any other theory of legal liability, by BellSouth, any BellSouth customer or
by any other person or entity, for damages associated with any of the services
provided by Carrier pursuant to or in connection with this Agreement, including
but not limited to the installation, provision, preemption, termination,
maintenance, repair or restoration of service, and subject to the provisions of
the remainder of this Article XIV, Carriers liability shall be limited to an
amount equal to the proportionate charge for the service provided pursuant to
this Agreement for the period during
9
which the service was affected. Notwithstanding the foregoing, claims for
damages by BellSouth, any BellSouth customer or any other person or entity
resulting from the gross negligence or willful misconduct of Carrier and claims
for damages by BellSouth resulting from the failure of Carrier to honor in one
or more material respects any one or more of the material provisions of this
Agreement shall not be subject to such limitation of liability.
B. Neither party shall be liable for any act or omission of any other
telecommunications company to the extent such other telecommunications company
provides a portion of a service.
C. Neither party shall be liable for damages to the other party's
terminal location, point of interconnection, or the other party's customers'
premises resulting from the furnishing of a service, including but not limited
to the installation and removal of equipment and associated wiring, except to
the extent the damage is caused by such Party's gross negligence or willful
misconduct.
D. Each party shall, to the greatest extent permitted by the law
governing this Agreement ("Applicable Law"), include in its tariff (if it files
one) or, where it does not file a tariff, in an appropriate contract with its
customers that relates to the subject matter of this Agreement, a limitation of
liability (i) that covers the other party to the same extent the first party
covers itself and (ii) that limits the amount of damages a customer may recover
to the amount charged the applicable customer for the service that gave rise to
such loss.
E. No Consequential Damages - EXCEPT AS OTHERWISE PROVIDED IN THIS
SECTION XIV, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES SUFFERED BY SUCH OTHER
PARTY (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST REVENUES,
LOST SAVINGS, OR LOST PROFITS SUFFERED BY SUCH OTHER PARTY), REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT,
INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE,
AND REGARDLESS OF WHETHER THE PARTIES KNEW OF THE POSSIBILITY THAT SUCH DAMAGES
COULD RESULT. EACH PARTY HEREBY AGREES TO HOLD HARMLESS THE OTHER PARTY AND SUCH
OTHER PARTYS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS FROM ALL SUCH DAMAGES. PROVIDED, HOWEVER, NOTHING CONTAINED IN THIS
SECTION XVIII SHALL LIMIT A PARTY'S LIABILITY TO THE OTHER FOR (1) WILLFUL OR
INTENTIONAL MISCONDUCT, GROSS NEGLIGENCE, OR FAILURE TO HONOR ONE OR MORE OF THE
MATERIAL PROVISIONS OF THIS AGREEMENT IN ONE OR MORE MATERIAL RESPECTS; (11)
BODILY INJURY, DEATH OR DAMAGE TO TANGIBLE REAL OR TANGIBLE PERSONAL PROPERTY
PROXIMATELY CAUSED BY A PARTY'S NEGLIGENT ACT OR OMISSION OR THAT OF ITS AGENTS,
SUBCONTRACTORS OR EMPLOYEES, NOR SHALL ANYTHING CONTA1NED IN THIS SECTION XIV
LIMIT THE PARTIES' INDEMNIFICATION OBLIGATIONS AS SPECIFIED HEREIN.
10
F. Obligation to Indemnify - Each party shall, and hereby agrees to,
defend at the other party's request, indemnify and hold harmless the other party
and each of its officers, directors, employees and agents (each, an
"Indemnitee") against and in respect of any loss, debt, liability, damage,
obligation, claim, demand, judgment or settlement of any nature or kind, known
or unknown, liquidated or unliquidated, including without limitation all
reasonable costs and expenses incurred (legal, accounting or otherwise)
(collectively, "Damages") arising out of, resulting from or based upon any
pending or threatened claim, action, proceeding or suit by any third party (a
"Claim") (i) arising from any breach of any representation, warranty or covenant
made by such indemnifying party (the "Indemnifying Party") in this Agreement,
(ii) based upon injuries or damage to any person or property or the environment
arising out of or in connection with this Agreement that are the result of the
Indemnifying Party's actions, breach of Applicable Law, or status of its
employees, agents and subcontractors, or (iii) for actual or alleged
infringement of any patent, copyright, trademark, service xxxx, trade name,
trade dress, trade secret or any, other intellectual property right, now known
or later developed (referred to as "Intellectual Property Rights") to the extent
that such Claim for infringement arises from Indemnitee's use of the services
provided to it under this Agreement.
G. Each party's failure to perform under this Agreement shall be
excused by labor strikes, civil commotion, criminal actions taken against them,
acts of God, and other circumstances beyond their reasonable control.
H. The obligations of the parties contained within this section shall
survive the expiration of this Agreement.
XV. MORE FAVORABLE PROVISIONS
A. The parties agree that if -
1. the FCC or the Commission finds that the terms of this Agreement
are inconsistent in one or more material respects with any of its or their
respective decisions, rules, or regulations, or
2. the FCC or the Commission preempts the effect of this Agreement,
then, in either case, upon such occurrence becoming final and no longer subject
to administrative or judicial review, the parties shall immediately commence
good faith negotiations to conform this Agreement to the requirements of any
such decision, rule, regulation, or preemption. The revised agreement shall have
the same effective date as the initial FCC or Commission action giving rise to
such negotiations. The rates, terms, and conditions of any new agreement shall
not be applied retroactively to any period prior to such effective date except
to the extent that such retroactive effect is expressly required by such FCC or
Commission decision, rule, regulation, or preemption.
B. In the event that BellSouth, either before or after the Effective
Date, enters into an agreement with any other telecommunications carrier (an
"Other Interconnection Agreement") which provides for the provision within a
state of any of the arrangements covered by this Agreement upon rates, terms or
conditions that differ from the rates, terms and conditions for such
arrangements set forth in this Agreement ("Other- Terms"), then BellSouth shall
be deemed thereby to have offered such arrangements to Carrier upon such Other
Terms in that state only,
11
which Carrier may accept as provided in Part E of this Section. In the event
that Carrier accepts such offer within sixty (60) days after the Commission, or
the FCC, as the case may be, approves such Other Interconnection Agreement
pursuant to Section 252 of the Act, or within thirty (30) days after Carrier
acquires actual knowledge of an Other Interconnection Agreement not requiring
the approval of the Commission pursuant to Section 252 of the Act, as the case
may be, such Other Terms shall be effective between BellSouth and Carrier as of
the effective date of such Other Interconnection Agreement or the .Effective
Date of this Agreement, whichever is later. In the event that Carrier accepts
such offer more than sixty (60) days after the Commission, or the FCC, as the
case may be, approves such Other Interconnection Agreement pursuant to Section
252 of the Act, or more than thirty (30) days after acquiring actual knowledge
of an Other Interconnection Agreement not requiring the approval of the
Commission pursuant to Section 252 of the Act, as the case may be, such Other
Terms shall be effective between BellSouth and Carrier as of the date on which
Carrier accepts such offer.
C. In the event that after the Effective Date the FCC or the Commission
having jurisdiction enters an order (an "Interconnection Order") requiring
BellSouth to provide within a particular state any of the arrangements covered
by this Agreement upon Other Terms, then upon such Interconnection Order
becoming final, no petitions for reconsideration pending, and the time for
seeking reconsideration has expired, BellSouth shall be deemed to have offered
such arrangements to Carrier upon such Other Terms, which Carrier may accept as
provided in Part E of this Section. In the event that Carrier accepts such offer
within sixty (60) days after the date on which such Interconnection Order
becomes final, no petitions for reconsideration pending, and the time for
seeking reconsideration has expired, such Other Terms shall be effective between
BellSouth and Carrier as of the effective date of such Interconnection Order or
the Effective Date of this Agreement, whichever is later. In the event that
Carrier accepts such offer more than sixty (60) days after the date on which
such Interconnection Order becomes final, no petitions for reconsideration
pending, and the time for seeking reconsideration has expired, such Other Terms
shall be effective between BellSouth and Carrier as of the date on which Carrier
accepts such offer. Provided, however, that if after judicial review, the rates
set forth in such Other Terms and accepted by Carrier are revised, stayed or
modified by an order of a judicial authority of competent jurisdiction (a
"Judicial Modification"), then BellSouth or Carrier, as applicable, shall make a
corrective payment to the other party equal to the difference between (a) the
lesser of (1) the rates set forth herein, or (2) modified rates (if any) set
forth in such Judicial Modification, and (b) the rates in such Other Terms for
the period from (x) the date on which Carrier accepted such Other Terms until
(y) the effective date of the Judicial Modification, plus simple interest
determined in accordance with Section F below. The Parties' obligation to make
such corrective payments as set forth in this Section shall survive for a period
of three (3) years after the termination or expiration of this Agreement for any
reason.
D. In the event that after the Effective Date BellSouth files and
subsequently receives approval for one or more intrastate or interstate tariffs
(each, an "Interconnection Tariff") offering to provide within a particular
state any of the arrangements covered by this Agreement upon Other Terms, then
upon such Interconnection Tariff becoming effective, BellSouth shall be deemed
thereby to have offered such arrangements to Carrier upon such Other Terms in
that state only, which Carrier may accept as provided in Part E of this Section.
In the event that Carrier accepts such offer within sixty (60) days after the
date on which such Interconnection Tariff becomes effective, such Other Terms
shall be effective between BellSouth and Carrier as
12
of the effective date of such Interconnection Tariff or the Effective Date of
this Agreement, whichever is later. In the event that Carrier accepts such offer
more than sixty (60) days after the date on which such Interconnection Tariff
becomes ' effective, such Other Terms shall be effective between BellSouth and
Carrier as of the date on which Carrier accepts such offer.
E. In the event that BellSouth is deemed to have offered Carrier the
arrangements covered by this Agreement upon Other Terms, Carrier in its sole
discretion may accept such offer either --
1. by accepting such Other Terms in their entirety; or
2. by accepting the Other Terms that directly relate to any one or
more of the following arrangements as described by lettered category:
A. local interconnection (including transport and termination),
B. interLATA and lntraLATA toll traffic interconnection,
C. unbundled access to network elements, which include: local
loops, network interface devices, switching capability, interoffice transmission
facilities, signaling networks and call-related databases, operations support
systems functions, operator services and directory assistance, and any elements
that result from subsequent bona fide requests,
D. access to poles, ducts, conduits and rights-of-way,
E. access to 911 /E91 1 emergency network,
F. collocation, or
G. access to telephone numbers.
The terms of this Agreement, other than those affected by the Other Terms
accepted by Carrier, shall remain in full force and effect.
F. Corrective Payment. In the event that --
1. BellSouth and Carrier revise this Agreement pursuant to Part A
of this Section, or
2. Carrier accepts a deemed offer of Other Terms pursuant to Part
Eof this Section,
then BellSouth or Carrier, as applicable, shall make a corrective payment to the
other party to correct for the difference between (a) the rates set forth herein
and (b) the rates in such revised agreement or Other Terms for the period from
(x) the effective date of such revised agreement or Other Terms until (y) the
later of the date that the parties execute such revised agreement or the parties
implement such Other Terms, plus simple interest at a rate equal to the thirty
(30) day commercial paper rate in effect from time to time for high-grade,
unsecured notes sold through dealers by major corporations in multiples of
$1,000.00 as regularly published in The Wall Street Journal
XVI. TAXES AND FEES
A. Definition. For purposes of this section, the terms "taxes" and
"fees" shall include but not be limited to federal, state or local sales, use,
excise, gross receipts or other taxes or tax-like fees of whatever nature and
however designated (including tariff surcharges and any fees, charges or other
payments, contractual or otherwise, for the use of public streets or rights of
way, whether designated as franchise fees or otherwise) which are imposed, or
sought to be imposed, on or with respect to the services furnished hereunder or
measured by the charges or payments therefor.
13
B. Taxes And Fees Imposed Directly On Either Providing Party Or
Purchasing Party.
1. Taxes and fees imposed on the providing party, which are neither
permitted nor required to be passed on by the providing party to its customer,
shall be borne and paid by the providing party.
2. Taxes and fees imposed on the purchasing party, which are not
required to be collected and/or remitted by the providing party, shall be borne
and paid by the purchasing party.
C. Taxes And Fees Imposed On Purchasing Party But Collected And
Remitted By Providing Party.
1. Taxes and fees imposed on the purchasing party shall be borne by the
purchasing party, even if the obligation to collect and/or remit such taxes or
fees is placed on the providing party.
2. To the extent permitted by applicable law, any such taxes and fees
shall be shown as separate items on applicable billing documents between the
Parties. Notwithstanding the foregoing, the purchasing party shall remain liable
for any such taxes and fees regardless of whether they are actually billed by
the providing party at the time that the respective service is billed.
3. If the purchasing party determines that in its opinion any such
taxes or fees are not payable, the providing party shall not xxxx such taxes or
fees to the purchasing party if the purchasing party provides written
certification, reasonably satisfactory to the providing party, stating that it
is exempt or otherwise not subject to the tax or fee, setting forth the basis
therefor, and satisfying any other requirements under applicable law. If any
authority seeks to collect any such tax or fee that the purchasing party has
determined and certified not to be payable, or any such tax or fee that was not
billed by the providing party, the purchasing party shall have the right, at its
own expense, to contest the same in good faith, in its own name or on the
providing party's behalf. In any such contest, the purchasing party shall
promptly furnish the providing party with copies of all filings in any
proceeding, protest, or legal challenge, all rulings issued in connection
therewith, and all correspondence between the purchasing party and the
governmental authority.
4. In the event that all or any portion of an amount sought to be
collected must be paid in order to contest the imposition of any such tax or
fee, or to avoid the existence of a lien on the assets of the providing party
during the pendency of such contest, the purchasing party shall be responsible
for such payment and shall be entitled to the benefit of any refund or recovery.
5. If it is ultimately determined that any additional amount of such a
tax or fee is due to the imposing authority, the purchasing party shall pay such
additional amount, including any interest and penalties thereon.
6. Notwithstanding any provision to the contrary, the purchasing party
shall protect, indemnify and hold harmless (and defend at the purchasing party's
expense) the providing party from and against any such tax or fee, interest or
penalties thereon, or other charges or payable
14
expenses (including reasonable attorney fees) with respect thereto, which are
incurred by the providing party in connection with any claim for or contest of
any such tax or fee.
7. Each party shall notify the other party in writing of any
assessment, proposed assessment or other claim for any additional amount of such
a tax or fee by a governmental authority; such notice to be provided, if
possible, at least ten (10) days prior to the date by which a response, protest
or other appeal must be filed, but in no event later than thirty (30) days after
receipt of such assessment, proposed assessment or claim.
8. The Purchasing Party shall have the right, at its own expense, to
claim a refund or credit, in its own name or on the Providing Party's behalf, of
any such tax or fee that it determines to have paid in error, and the Purchasing
Party shall be entitled to any recovery thereof.
D. Taxes And Fees Imposed On Providing Party But Passed On To
Purchasing Party.
1. Taxes and fees imposed on the providing party, which are permitted
or required to be passed on by the providing party to its customer, shall be
borne by the purchasing party.
2. To the extent permitted by applicable law, any such taxes and fees
shall be shown as separate items on applicable billing documents between the
Parties. Notwithstanding the foregoing, the purchasing party shall remain liable
for any such taxes and fees regardless of whether they are actually billed by
the providing party at the time that the respective service is billed.
3. If the purchasing party disagrees with the providing party's
determination as to the application or basis of any such tax or fee, the Parties
shall consult with respect to the imposition and billing of such tax or fee and
with respect to whether to contest the imposition of such tax or fee.
Notwithstanding, the foregoing, the providing party shall retain responsibility
for determining whether and to what extent any such taxes or fees are
applicable. The providing party shall further retain responsibility for
determining whether and how to contest the imposition of such taxes or fees;
provided, however, that any such contest undertaken at the request of the
purchasing party shall be at the purchasing party's expense. In the event that
such contest must be pursued in the name of the providing party, the providing
party shall permit the purchasing party to pursue the contest in the name of the
providing party and the providing party shall have the opportunity to
participate fully in the preparation of such contest.
4. If after consultation in accordance with the preceding Section, the
-purchasing party does not agree with the providing party's final determination
as to the application or basis of a particular tax or fee, and if the providing
party, after receipt of a written request by the purchasing party to contest the
imposition of such tax or fee with the imposing authority, fails or refuses to
pursue such contest or to allow such contest by the purchasing party, the
purchasing party may utilize the dispute resolution process outlined in Section
XVIII of this Agreement. Utilization of the dispute resolution process shall not
relieve the purchasing party from liability for any tax or fee billed by the
providing party pursuant to this subsection during the pendency of such dispute
resolution proceeding. In the event that the purchasing party prevails in such
dispute resolution proceeding, it shall be entitled to a refund in accordance
with the final decision
15
therein. Notwithstanding the foregoing, if at any time prior to a final decision
in such dispute resolution proceeding the providing party initiates a contest
with the imposing authority with respect to any of the issues involved in such
dispute resolution proceeding, the dispute resolution proceeding shall be
dismissed as to such common issues and the final decision rendered in the
contest with the imposing authority shall control as to such issues.
5. In the event that all or any portion of an amount sought to be
collected must be paid in order to contest the imposition of any such tax or
fee, or to avoid the existence of a lien on the assets of the providing party
during the pendency of such contest, the purchasing party shall be responsible
for such payment and shall be entitled to the benefit of any refund or recovery.
6. If it is ultimately determined that any additional amount of such a
tax or fee is due to the imposing authority, the purchasing party shall pay such
additional amount, including any interest and penalties thereon.
7. Notwithstanding any provision to the contrary, the purchasing party
shall protect, indemnify and hold harmless (and defend at the purchasing party's
expense) the providing party from and against any such tax or fee, interest or
penalties thereon, or other charges or payable expenses (including reasonable
attorney fees) with respect thereto, which are incurred by the providing party
in connection with any claim for or contest of any such tax or fee.
8. Each party shall notify the other party in writing of any
assessment, proposed assessment or other claim for any additional amount of such
a tax or fee by a governmental authority; such notice to be provided, if
possible, at least ten (10) days prior to the date by which a ' response,
protest or other appeal must be filed, but in no event later than thirty (30)
days after receipt of such assessment, proposed assessment or claim.
E. Mutual Cooperation. In any contest of a tax or fee by one Party, the
other Party shall cooperate fully by providing records, testimony and such
additional information or assistance as may reasonably be necessary to pursue
the contest. Further, the other Party shall be reimbursed for any reasonable and
necessary out-of pocket copying and travel expenses incurred in assisting in
such contest.
XVII. TREATMENT OF PROPRIETARY AND CONFIDENTIAL INFORMATION
A. The parties agree that it may be necessary to provide each other
with certain confidential information, including trade secret information,
including but not limited to, technical and business plans, technical
information, proposals, specifications, drawings, procedures, customer account
data, call detail records and like information (hereinafter collectively
referred to as "Information"). The parties agree that if Information is provided
in written, graphic or other usable form and clearly marked with a confidential,
private or proprietary legend, then that Information will be returned to the
owner within a reasonable time. Both parties agree that such marked Information
shall not be copied or reproduced in any form except to the extent required to
perform this Agreement. The parties shall protect any Information received from
distribution, disclosure or dissemination to anyone except employees of the
parties with an identifiable need to know such Information who agree in writing
to be
16
bound by the terms of this Section; however, in no event shall any of Carrier's
Information be disclosed to any person employed by an Affiliate of BellSouth
engaged in the provision of CMRS. In the event any person having had access to
Carrier's Information is subsequently employed by an Affiliate of BellSouth
engaged in the provision of CMRS, such person shall be required to agree in
writing not to reveal or use such Information. The parties will use the same
standard of care to protect Information received as they would use to protect
their own confidential and proprietary Information.
B. Notwithstanding the foregoing, all Information in any party's
possession that would constitute Customer Proprietary Network Information of the
party or the parties' customers pursuant td any federal or state law or the
rules and regulations of the FCC or any state commission, and any Information
developed or received by a party regarding the other party's facilities,
services, volumes, or usage shall automatically be deemed confidential
Information for all purposes, even if not marked as such, and shall be held
confidential as is required for Information.
C. Notwithstanding the foregoing, there will be no obligation to
protect any portion of any Information that is either: 1) made publicly
available by the owner of the Information or lawfully disclosed by a nonparty to
this Agreement; 2) lawfully obtained from any source other than the owner of the
Information; 3) independently developed by personnel of the receiving party to
whom Information had not been previously disclosed and not based on or derived
from such Information; or 4) previously known to the receiving party without an
obligation to keep it confidential. A party may also disclose all Information it
is required or ordered to disclose by law, a court, or governmental agency, as
long as the party that owns such Information has been notified of the required
disclosure promptly after the disclosing party becomes aware of its requirement
to disclose. The party required to disclose the Information shall take all
lawful measures to avoid disclosing the Information called for until the party
that owns the Information has had a reasonable time to seek and comply with a
protective order issued by a court or governmental agency of competent
jurisdiction that with respect to the Information otherwise required to be
disclosed.
D. The party's obligations to safeguard information shall survive for
one (1) year after the expiration or termination of this Agreement for any
reason whatsoever.
XVIII. RESOLUTION OF DISPUTES
Except as otherwise stated in this Agreement, if any dispute arises as
to the interpretation of any provision of this Agreement or as to the proper
implementation of this Agreement, the parties shall initially refer the disputed
issue to the individuals designated by the parties . If the issue is not
resolved within 30 days, either party may petition the Commission for a
resolution of the dispute, and/or pursue any other remedy available to it at law
or in equity..
XIX. LIMITATION OF USE
The parties agree that this Agreement shall not be proffered by either
party in another jurisdiction as evidence of any concession or as a waiver of
any position taken by the other party in that jurisdiction or for any other
purpose.
17
XX. WAIVERS
This Agreement may not be amended in any way except upon the written
consent of the parties. No party shall be deemed to have waived any rights it
has under the Agreement based on its prior decision not to enforce, or its
failure to strictly enforce, any such rights, including, without limitation, the
right to seek specific performance or other injunctive relief. No amendment or
waiver of any provision of this Agreement, and no consent to any default under
this Agreement shall be effective unless the same is in writing and signed by an
officer of the party against whom such amendment, waiver or consent is claimed.
XXI. MISCELLANEOUS TERMS
A. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Georgia, without regard to Georgia's
conflict of law principles, and, where applicable, federal law, including the
Communications Act of 1934, as amended by the Act.
B. In the event any provision of this Agreement shall be held to be
invalid, illegal or unenforceable, it shall be severed from the Agreement and
the remainder of this Agreement shall remain valid and enforceable and shall
continue in full force and effect; provided, however, that if any severed
provisions of this Agreement are essential to any party's ability to continue to
perform its material obligations hereunder to the reasonable satisfaction of the
party to which the obligations are owed, the parties shall immediately begin
negotiations of new provisions to replace the severed provisions.
C. The parties are independent contractors and nothing herein shall be
construed to imply that they are partners, joint venturers or agents of one
another.
D. Except as otherwise expressly provided in this Agreement, each of
the remedies provided under this Agreement is cumulative and is in addition to
any remedies that may be available at law or in equity.
E. Except as may be specifically set forth in this Agreement, this
Agreement does not provide and shall not be construed to provide any person not
a party or proper assignee or successor hereunder with any remedy, claim,
liability, reimbursement, cause of action, or other privilege arising under or
relating to this Agreement.
F. Neither party shall publish or use any advertising, sales promotions
or other publicity materials that use the other party's logo, trademarks or
service marks without the prior written approval of the other party.
G. No party may assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of the other
party, which will not be unreasonably withheld; provided, that (i) the parties
will permit the addition of whollyowned Affiliates as parties hereto, and (ii) a
party may assign its rights or delegate its obligations hereunder without the
consent of the other party to a wholly-owned Affiliate if such Affiliate is, in
the case of BellSouth, an authorized local exchange telephone carrier, or in the
case of Carrier, a licensed provider of radio telecommunications services, and
provided further that (a) the performance of
18
any assignee shall be guaranteed by any such assignor and (b) a Carrier may also
assign its rights or obligations to a controlling parent corporation without the
consent of BellSouth
H. Any liabilities or obligations of a party for acts or omissions
prior to the cancellation or termination of this Agreement, any obligation of a
party under the provisions regarding indemnification, Confidential Information,
limitations on liability, and any other provisions of this Agreement which, by
their terms, are contemplated to survive (or to be performed after) termination
of this Agreement, shall survive cancellation or termination thereof.
I. Whenever any-provision of this Agreement refers to a technical
reference, technical publication, any publication of telecommunications industry
administrative or technical standards, or any other document specifically
incorporated into this Agreement, it will be deemed to be a reference to the
most recent version or edition (including any amendments, supplements, addenda,
or successors) or such documents that is in effect, and will include the most
recent version or edition (including any amendments, supplements, addenda, or
successors) or each document incorporated by-reference in such a technical
reference, technical publication, or publication of industry standards. Should
there be an inconsistency between or among publications or standards, the
parties shall mutually agree upon which requirement shall apply.
J. The drafting of this Agreement was a collaborative effort between
the parties. Accordingly, in connection with the interpretation for any reason
of any provision of this Agreement, there shall be no inference drawn against
the party that drafted such provision.
XXII. EXECUTION
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and which together shall constitute a single
agreement. A facsimile copy of a party's execution of this Agreement shall be
valid and binding upon the party and must be followed as soon as practicable
thereafter by the original version of such execution.
XXIII. NOTICES
A. Every notice, consent, approval, or other communications required or
contemplated by this Agreement shall be in writing and shall be delivered in
person, via overnight mail, or given by postage prepaid mail, address to:
BELLSOUTH TELE COMMUNICATIONS, INC. TRITEL COMMUNICATIONS, INC.
000 X. Xxxxxxxxx Xx. X.X. 000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxx 0000 Xxxxxxxxx, Xxxxxxxxxxx 00000
Xxxxxxx, Xxxxxxx 00000 Attn: Xx. Xxxxxx Xxxxxxxxx
Attn: Legal Dept. "Wireless" Attorney Senior Director of Technical Facilities
Copy to:
Xxxx Xxxxxxxx, Esq.
Xxxxx, Friend & Sapronov, LLP
Xxxxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
19
or at such other address as the intended recipient previously shall have
designated by written notice to the other party.
B. Where specifically required, notices shall be by certified or
registered mail. Unless otherwise provided in this Agreement, notice by mail
shall be effective on the date it is officially recorded as delivered by return
receipt or equivalent, and in the absence of such record of delivery, it shall
be presumed to have been delivered the fifth day, or next business day after the
fifth day, after it was deposited in the mails; and by overnight mail, the day
after being sent.
XXIV. ENTIRE AGREEMENT
This Agreement and its Attachments, incorporated herein by this
reference, sets forth the entire understanding and supersedes prior agreements
between the parties relating to the subject matter contained herein and merges
all prior discussions between them, and neither party shall be bound by any
definition, condition, provision, representation, warranty, covenant or promise
other than as expressly stated in this Agreement or as is contemporaneously or
subsequently set forth in writing and executed by a duly authorized officer or
representative of the party to be bound thereby. In the event of any conflict
between the term(s) of this Agreement and those of an applicable tariff, the
terms of this Agreement shall control.
BELLSOUTH TELECOMMUNICATIONS, INC. TRITEL COMMUNICATIONS, INC.
By:_______________________________ By:______________________________
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx, Xx.
---------------------------------- ----------------------------------
Name Name
Director Executive Vice President
---------------------------------- ----------------------------------
Title Title
______________________________ ______________________________
Date Date
20
ATTACHMENT B-1
CMRS Local Interconnection Rates
--------------------------------
(All rates are Per Minute of Use)
Alabama
-------
Type 1 (End Office Switched): $.004709
Type 2A (Tandem Switched): $.004709
Type 2B (Dedicated End Office): $.0017
Florida
-------
Type 1 (End Office Switched): $.003776
Type 2A (Tandem Switched): $.003776
Type 2B (Dedicated End Office): $.002
Georgia
-------
Type 1 (End Office Switched): $.004513
Type 2A (Tandem Switched): $.004513
Type 2B (Dedicated End Office): $.00160
Kentucky
--------
Type 1 (End Office Switched): $.005273
Type 2A (Tandem Switched): $.005273
Type 2B (Dedicated End Office): $.002562
Mississippi
-----------
Type 1 (End Office Switched): $.009104
Type 2A (Tandem Switched): $.009104
Type 2B (Dedicated End Office'): $.0026
Tennessee
---------
Type 1 (End Office Switched): $.003767
Type 2A (Tandem Switched): $.003767
Type 2B (Dedicated End Office): $.0019
21
Attachment C-1
Unbundled Products and Services and New Services
Service: Subscriber Listing Information
Description: Subscriber primary listing information provided at no charge and
in an acceptable format will be published at no charge as
standard directory listings in an alphabetical directory
published by or for BellSouth at no charge to each ALEC end user
customer.
State(s): All
Rates (1) No charge for ALEC-1 customer primary listings.
(2) Additional listings and optional listings may be provided by
BellSouth at rates set forth in BellSouth's intrastate General
Subscriber Services Tariffs.
22
Attachment C-13
Unbundled Products and Services and New Services
Service: Virtual Collocation
Description: Virtual Expanded Interconnection Service (VEIS) provides
for location interconnection in collocator
provided/BellSouth leased fiber optic facilities to
BellSouth's switched and special access services, and local
interconnection
facilities.
Rates, Terms and Conditions:
State(s): All except Florida: In all states except Florida, the rates, terms
and conditions will be applied as set forth in
Section 20 of BellSouth Telecommunication's,
Inc. Interstate Access Service Tariff, FCC
No. 1.
State: Florida In the state of Florida, the rates, terms and
conditions will be applied as set forth in
Section E20 of BellSouth Telecommunication's,
Inc. Intrastate Access Service Tariff.
-------------------------------------------------------------------------------
Service: Physical Collocation
Description: Per FCC - (10/19/92 FCC Order, para 39)
Physical Collocation is whereby "the interconnection
party
pays for LEC central office space in which to locate the
equipment necessary to terminate its transmission links,
and
has physical access to the LEC central office to install,
maintain, and repair this equipment."
State(s): All
Rates, Terms and Conditions: To be negotiated
23
