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EXHIBIT 10.9
[*] DESIGNATES MATERIAL FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED, WHICH MATERIAL HAS BEEN SEPARATELY FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION
Sprint
DS-1 Private Line Agreement
Volume Plan
By this Agreement Sprint Communications Company L.P. (Sprint) agrees to provide
the undersigned Carrier (Customer) DS-1 Private Line Services in accordance
with the stated terms and Customer agrees to purchase said Services in
compliance with this Agreement. Sprint and Customer are the Parties to this
Agreement and in consideration of mutual promises agree as follows:
ARTICLE 1: Tariffs. Sprint is a common carrier offering digital private line
services under Tariffs, including Tariff FCC No. 7. Sprint amends its Tariffs
from time to time. DS-1 Services under this Agreement are digital, point to
point (Sprint POP to Sprint POP) private lines offered under Sprint Tariff FCC
No. 7 (or successor tariff) general terms and conditions, except for terms and
conditions specifically set forth in this Agreement as terms of the
relationship between Sprint and Customer. Should Sprint no longer file tariffs
in order to provide services, then Sprint "Tariffs" will mean the standard rate
tables and terms and conditions that Sprint uses to replace such filed tariffs.
In addition to the foregoing, when Customer orders access or Sprint orders
access as Customer's agent for Private Line Service hereunder, all tariffs of
the Local Exchange Carrier respecting access are applicable to the Service
ordered. Customer is responsible for all compliance with said LEC tariffs.
ARTICLE 2: Provision of Services.
2.1 The Effective Date of this Agreement will be the first day of September
1996. The Pricing under this Agreement is for all DS-1s ordered and
installation requested, or renewed, after the effective date and prior to the
termination of the Agreement. The Expiration Date of this Agreement shall be
stated on Attachment A. No circuits can be ordered or renewed hereunder unless
this Agreement is fully executed by both Parties.
2.2 Sprint provides Customer domestic POP-to-POP DS-1 Private Line Services
under terms and conditions of Sprint tariffs. In consideration of Customer
complying with the special terms herein for DS-1 services, Customer's DS-1
Private Line IXE (POP-to-POP) pricing will be according to the Pricing stated
in Attachment A at Sprint's sole discretion and subject to network
availability. Sprint reserves the right on a case by case basis to preclude
application of Attachment A Pricing to new orders and only provide specified
DS-1 routes having special circumstances under Tariff and Tariff pricing.
Further Attachment A does not apply to circuits with Customer Specified Routing
or Diverse Routing.
2.3 "Customer" means the undersigned Carrier and does not include any
subscriber, customer, or end user of the undersigned carrier to whom it
provides services. Customer includes Customer's majority-owned subsidiaries,
for whom Customer assumes payment responsibility, but does not include any
other reselling entity that Customer may have an arrangement with to increase
Customer's Monthly Volume Private Line Services. Customer is responsible for
payment of charges under this Agreement. All services ordered under this
Agreement shall be subject to approval by Sprint's credit department.
2.4 Customer shall complete DS-1 Service Order forms requesting DS-1 services.
Order forms shall be signed by a duly authorized representative of Customer and
submitted to Sprint. Service orders are subject to acceptance by Sprint.
2.5 Sprint provision of services hereunder grants no express or implied rights
to Customer, particularly licenses to trademarks, inventions, copyrights, or
patent, and creates no joint understanding or joint venture with Sprint.
2.6 There is a Minimum Service Period of twelve months for all Private Lines
ordered hereunder. Pricing and terms of this Agreement are only
offered/available to Customer during the Effective Term of this Agreement. The
Term of each circuit is stated on the Service Order.
In the event Customer selects a Term for a DS-1 (for example, 3 years) that
extends beyond the Expiration of this Agreement, this Agreement and Pricing for
the circuit will remain in effect for the affected DS-1 circuit until the Term
for that circuit expires. When a Term for a DS-1 circuit expires and there is
no successor DS-1 Private Line Agreement executed by the Parties or Customer
Service has not been established under a Volume Tariff Plan, the DS-1 circuit
will be invoiced on month-to-month tariff rates.
2.7 When ordering Private Line Service under this Agreement, Customer must
specify on the Service Order the type of access being ordered with the Private
Line being installed or renewed. When Sprint acts as Customer's agent and
orders access facilities connecting Customer's Facilities to Sprint POPs,
Customer must execute the appropriate Service Orders and a Letter of Agency,
plus Customer is responsible for all charges, including, without limitation,
monthly charges, installation charges, non recurring charges,
termination/cancellation liabilities of the provider of the facilities (LEC or
other Vendor) and for all Sprint terms, procedures, and charges for interfacing
with Sprint's Network. Attachment B states the charges for access for Private
Line installed or renewed hereunder until the expiration of this Agreement.
SPRINT PROPRIETARY INFORMATION - RESTRICTED
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2.8 Attachments A and B are only for interstate and intrastate circuits
certified as interstate circuits under applicable regulations. In the event
Customer fails to designate whether a circuit carries interstate traffic under
applicable federal regulation, (i) Sprint will rate the circuit as intrastate
for the term of the circuit; (ii) this Agreement will not apply; and (iii)
Customer cannot later claim that the intrastate circuit was really interstate
and request adjusted billing.
ARTICLE 3 Payment.
3.1 Customer shall pay to Sprint invoiced amounts for DS-1 services, without
any right of set-off or counterclaim. DS-1 Service charges are exclusive of
any applicable taxes or tariff surcharges.
3.2 Sprint invoices shall state separately from the communications charges any
tax or surcharge (or related charge by a government) imposed or based on the
provision, sale, or use of DS-1 services or imposed or based upon this
Agreement or any activities hereunder. Unless prohibited by law, taxes or
surcharges shall include, without limitation, state and local gross revenue
taxes, sales, utility users and use taxes, federal excise tax and gross
receipts surcharges.
3.3 All amounts stated on each monthly invoice are due and payable upon
receipt. Charges that are not paid for a period of 30 days after receipt of
invoice, will be subject to interest from the date of the receipt of the
invoice at a rate that is the lesser of 18% per annum (1 1/2% per month) or the
maximum rate allowed by applicable law. If Customer permits any DS-1 charges to
become 60 days past due, Customer's DS-1 IXE (POP-to-POP) charges will be
rebilled at the full tariffed, non-discounted month-to-month rate. In the event
that Customer shall in good faith dispute Sprint's computation of amounts due
and owing by Customer to Sprint hereunder, Customer shall not be relieved of
any obligation to pay such undisputed amounts on or before the due dates
therefore. If Customer disputes amounts, Customer must submit complete
documentation of the disputed amount to the Carrier Service Center by the due
date, along with payment for the undisputed amount that is due. Each party
shall use its respective best reasonable efforts to resolve any dispute as
expeditiously as possible.
3.4 Sprint may terminate this Agreement for a material breach if:
a. Customer fails to make payments and then fails to cure the
nonpayment within ten (10) days after receipt of a Sprint notice of nonpayment;
fails to cure other breaches within 30 days of receipt of notice thereof; or
b. Customer is adjudicated bankrupt, has a receiver appointed, or
participates in an act constituting a general assignment of its properties and
interests for the benefit of its creditors.
If there is a termination for (a) or (b) above, Sprint may immediately
recover all sums owed Sprint through the remainder of the term and Customer
agrees Sprint may take steps to promptly conclude providing services to
Customer in an orderly manner so as to minimize any adverse impact on Customer
or Sprint.
3.5 Upon request by Sprint, Xxxxxxxx agrees to provide financial statements or
other indications of financial circumstances. As may be determined by Sprint,
if the financial circumstances or payment history of Customer is or becomes
unacceptable, Sprint may require a deposit or irrevocable letter of credit, at
Sprint's option, to secure Customer payments for the term of the Agreement.
ARTICLE 4: Service. Under this Agreement Sprint will provide DS-1 Private Line
Service from Sprint POP to Sprint POP as stated herein and as priced on the
attached Attachment A. If Customer does not comply with the terms and
conditions of this Agreement (including the Payment terms), the Special Pricing
herein is inapplicable. The Paragraph numbers stated below correspond to the
Line Items stated on Attachment A. If at any time before the expiration of this
Agreement the Parties modify any term or condition, including those on
Attachment A, the modification of this Agreement is not effective until the
Parties execute an Amendment hereto.
4.1 Each month Customer's "Monthly Volume of Private Line Services"
("Monthly Volume") will be calculated, and according to the Monthly Volume a
price per voice grade V and H mile per month (cents per mile times the V and H
Coordinate Miles times 24 circuits in a DS-1 equals a DS-1 Monthly price) will
be determined by the Term of the DS-1 circuit (one-two-three years) and a
"Minimum Charge Per Circuit" designated. "Monthly Volume of Private Line
Services" consists of (1) DS-1 Clearline revenues (IXE, POP-to-POP charges);
(2) DS-0 Clearline revenues (IXE, POP-to-POP charges); and (3) DS-3 revenues
(IXE, POP-to-POP charges). Monthly Volume excludes such charges as access, COC,
other recurring and non recurring charges, and taxes. For purposes of
calculating the Monthly Volume (the installed base of Customer's Circuits under
this Agreement) the "Base Rate" is the price per voice grade mile for the one
year, lowest Monthly Volume Level on the Schedule, or the applicable Minimum
Charge for any individual circuits. For Customer's installed base under other
Sprint Private Line Agreement(s), the Monthly Volume calculation is the billed
amount. For purposes of calculating the Monthly Volume, the DS-0 Monthly
Revenues are the applicable Tariff Rate for the DS-0 circuits.
4.2 Sprint will charge a Circuit (POP-to-POP) Installation Fee as stated on
Attachment A.
SPRINT PROPRIETARY INFORMATION - RESTRICTED
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ARTICLE 5: Limitation of Liability.
5.1 The warranties and remedies set forth in this Agreement and Sprint tariffs
constitute the only warranties and remedies with respect to Sprint service
provided. Such warranties are in lieu of all other warranties, written or oral,
statutory, express or implied, including without limitation the warranty of
merchantability and the warranty of fitness for a particular purpose of use.
5.2 NEITHER PARTY HERETO IS LIABLE TO THE OTHER PARTY FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOSS OF REVENUE, LOSS OF CUSTOMERS OR CLIENTS. LOSS OF GOODWILL OR
LOSS OF PROFITS, ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE
OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
ARTICLE 6: Notices. All notices, requests, or other communications (excluding
invoices) shall be in writing, effective when received, to the following
addresses, unless subsequently changed in writing:
If to Sprint: Copy to:
Sprint Communications Company L.P. Sprint Communications Company L.P.
5420 L.B.J. Freeway, Suite 0000 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 00000 Xxxxxx Xxxx, Xxxxxxxx 00000
ATTN: V.P. WSG ATTN: LAW DEPARTMENT
If to Customer: Customer will designate in Article 12 the Notice
Address for Customer.
ARTICLE 7: Assignment. This Agreement, the rights, obligations, or duties of
Customer hereunder may not be assigned or delegated to any other party, person,
or entity. Sprint shall and does have the right to assign this Agreement and
all of its rights and duties hereunder to any subsidiary or affiliated entity
without the prior consent of Customer.
ARTICLE 8: Termination Liability. In the event of early termination by
Customer, there will be termination liability imposed in accordance with
tariffed provisions and this Agreement. Customer will not be liable for
termination charges for a DS-1 circuit hereunder if a new DS-1 circuit of equal
or greater value is ordered during the same calendar month under this Agreement
in which the circuit disconnect notice is received, provided Customer notifies
Carrier Services in writing that the disconnection and new circuit order are
requested in the same month to be eligible for termination liability exemption.
If Customer does not provide the written notice, Customer will be liable for
termination charges on the disconnected circuit. If Customer does order a
"replacement circuit" under this paragraph, this ordered replacement circuit
must be installed within 60 days of the disconnect date or Customer will be
liable for termination charges. The "replacement circuit" under this paragraph
must have a minimum service term of one year under this Agreement or
termination charges are applicable to the disconnected circuit.
ARTICLE 9: Confidentiality. During the Term, the Parties may disclose to each
other certain "Proprietary" or "Confidential" Information (hereinafter
"Proprietary Information"). The Parties desire to assure the confidential and
proprietary status of the information which may be disclosed to each other and
therefore for themselves, their subsidiaries and their affiliates, agree as
follows:
9.1 All information disclosed shall be deemed Proprietary, provided that
written information is clearly marked in a conspicuous place as Proprietary,
and verbal information is immediately confirmed in writing as Proprietary.
9.2 Each Party agrees to use the Proprietary Information received from the
other Party only for the purpose of this Agreement. No other rights, and
particularly licenses, to trademarks, inventions, copyrights, or patents are
implied or granted.
9.3 Proprietary Information supplied shall not be reproduced in any form except
as required to accomplish the intent of this Agreement.
9.4 The receiving Party shall provide the same care to avoid disclosure or
unauthorized use of the Proprietary Information as it utilizes to protect its
own proprietary information. It is agreed that all Proprietary Information
shall be retained by the receiving Party in a secure place with access limited
to only such of the receiving Party's employees or agents who need to know such
information.
9.5 All Proprietary Information, unless otherwise specified in writing, shall
remain the property of the disclosing Party. Proprietary Information,
including all copies thereof, shall be returned to the disclosing Party or
destroyed after the receiving Party's need for its has expired or upon request
of the disclosing Party, and in any event, upon termination of this Agreement.
9.6 It is understood that the term "Proprietary Information" does not include
information which:
a. has been or may in the future be published or is now or may in the
future be otherwise in the public domain through no fault of the
Parties;
b. prior to disclosure is properly within the legitimate possession of
the receiving Party:
SPRINT PROPRIETARY INFORMATION - RESTRICTED
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c. subsequent to disclosure is lawfully received from a third Party
having rights therein without restriction of the third Party's right to
disseminate the information and without notice of any restriction
against its further disclosure;
d. is independently developed by the receiving Party through Parties
who have not had, either directly or indirectly, access to or knowledge
of such Proprietary Information;
e. is disclosed with the prior written approval of the other Party;
f. is transmitted to the receiving Party after the disclosing Party has
received written notice from the receiving Party that it does not desire
to receive further Proprietary Information; or
g. is obligated to be produced under order of a court of competent
jurisdiction.
9.7 Each Party agrees not to reveal its relationship with the other Party to
any third parties except as contemplated by this Agreement.
9.8 Damages, being difficult to ascertain in the event of violation of this
Article, the Parties agree that, without limiting any other rights and remedies
of each other, upon breach hereof, an injunction may be obtained against the
other Party improperly disclosing information. Each Party further agrees to
indemnify and hold the other Party harmless from any and all direct foreseeable
loss which may result from breach of this Article.
9.9 The restrictions and obligations imposed by this Article shall continue in
full force and effect for a period of three (3) years from the date of
disclosure. The restrictions and obligations of this Section may be terminated
at any time during the period of the Agreement by giving sixty (60) days
written notice to the other Party; provided that early termination shall not
relieve the obligations under this Article with respect to Proprietary
Information exchanged prior to the effective date of termination.
ARTICLE 10: Advertising Or Information Release. Customer agrees that it will
not use the name, service marks or trademarks of Sprint or of any of its
affiliated companies in any advertising, publicity releases or sales
presentations nor reveal the existence or terms or conditions of this Agreement
and Attachment. Customer shall not take any actions which will in any manner
compromise Sprint's registered trademarks and/or service marks. Customer agrees
that this Agreement and Attachment, its terms, conditions or pricing, or
information concerning this Agreement and Attachment, its terms, conditions or
pricing will not be released to any third Party or entity at any time, except
as provided in this Agreement. Either Party may make any disclosure required by
any governmental laws or regulations, provided that the disclosing Party gives
the other Party a reasonable opportunity to defend against such disclosure.
ARTICLE 11: General Terms and Conditions.
11.1 This Agreement may not be modified, or amended, except upon the execution
of a written agreement signed by both Parties.
11.2 The captions of the respective paragraphs of this Agreement are for
convenience only, and shall not be deemed to define or limit any of its terms
or provisions.
11.3 This Agreement represents the final terms and conditions upon which the
activities of the Parties will be based, and no negotiations, promises or
discussions conducted prior to execution and not specifically set forth herein
shall be of any force or effect.
11.4 It is agreed by the Parties that this Agreement shall, in all respects,
be governed by and interpreted in accordance with the laws of the state of
Kansas unless preempted by applicable federal law regulation. Sprint is
registered to do business in Kansas as Sprint Communications Company L.P.
11.5 No term or provision of this Agreement shall be deemed waived, and no
breach or default shall be deemed excused, unless such waiver or consent shall
be in writing and signed by the Party claimed to have waived or consented. No
consent by any Party to, or waiver of, a breach or default by the other,
whether express or implied, shall constitute a consent to, waiver of, or excuse
for any different or subsequent breach or default.
11.6 If any term or provision of this Agreement shall be found to be illegal or
unenforceable, then, such term or provision shall be deemed deleted and this
Agreement shall remain in full force and effect.
11.7 Except as otherwise provided herein and Sprint tariffs, the remedies
provided for in this Agreement are in addition to any other remedies available
at law or in equity by statute or otherwise.
11.8 The terms and provisions hereof, that by their sense and context are
intended to survive the performance hereunder shall so survive the completion
or performance and termination of this Agreement, including, without
limitation, the making of payments for services.
SPRINT PROPRIETARY INFORMATION - RESTRICTED
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11.9 THIS AGREEMENT MUST BE EXECUTED WITHIN 30 DAYS OF RECEIPT AND RETURNED TO
SPRINT'S CARRIER SERVICES FOR EXECUTION BY THE PRESIDENT OF SPRINT'S CARRIER
SERVICES (WSG). CUSTOMER'S FAILURE TO EXECUTE AND RETURN WITHIN THE 30 DAYS MAY
RESULT IN SPRINT VOIDING THE SPECIAL PRICING HEREIN AND SPRINT APPLYING FULL,
NON-DISCOUNTED MONTH-TO-MONTH TARIFF RATES TO CUSTOMER CIRCUIT. The date the
Customer receives this contract is __________________________, 1996.
ARTICLE 12: Customer Certification. Customer hereby directs, until changed by
Customer in writing, that Sprint send notices to:
If to Customer: Copy to:
MIDCOM Communications, Inc. MIDCOM Communications, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000 0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ATTN: President and Chief Executive ATTN: General Counsel
Officer
ARTICLE 13: Attachments.
13.1 Attachment A. Attached to this Agreement and made a part hereof by
incorporation is Attachment A stating the Expiration Date of this Agreement and
stating the Pricing for Service hereunder. Any other written terms, conditions
or legends typed, printed, or otherwise included on the Attachment is deemed
solely for the convenience of the Parties and ARE NOT BINDING ON SPRINT
COMMUNICATIONS COMPANY L.P.
13.2 Attachment B. Attached to this Agreement and made part hereof by
incorporation is Attachment B stating charges for access services that may be
requested by Customer for circuits ordered or renewed under this Agreement. NO
ADDITIONS, DELETIONS, CHANGES, NOTATIONS OR MODIFICATIONS THAT MAY APPEAR ON
ATTACHMENT B ARE BINDING ON SPRINT COMMUNICATIONS COMPANY L.P.
IN WITNESS WHEREOF, the Parties have executed this Agreement and made it
effective as stated herein.
SPRINT COMMUNICATIONS MIDCOM Communications, Inc.
By: /s/ X. XXXXXXX XXXXX By: /s/ XXX X. XXXXXXXX
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(Signature) (Signature)
Name: X. Xxxxxxx Xxxxx Name: Xxx X. Xxxxxxxx
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(Printed)
Title: President, Wholesale Services Title: Sr. Vice President
Group --------------------------
Business Address: Business Address:
8140 Xxxx Parkway 000 Xxxxx Xxx., Xxxxx 0000
Xxxxxx Xxxx, XX 00000 Xxxxxxx, XX 00000
SPRINT PROPRIETARY INFORMATION -- RESTRICTED
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ATTACHMENT A
VOLUME PLAN*
Expiration Date March 31, 2000
4.1 Cents Per Voice
Monthly Volume of Grade Mile Per Monthly Minimum Charge
Private Line Services Month Per Circuit
--------------------- ---------------- ----------------------
$0+ $[*] $[*]
Note: The Monthly Volume of Private Line Services contribute to the Minimum
Commitment requirements in Section A.14.1. of the Resale Solutions Switched
Services Agreement.
4.2 per the application tariff
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* CUSTOMER MUST INITIAL EACH BLANK THAT HAS AN ENTRY. IF ANY BLANK HAS NO
ENTRY, CUSTOMER MUST CROSS-OUT THE BLANK AND INITIAL THE CROSS-OUT.
SPRINT PROPRIETARY INFORMATION - RESTRICTED
