GENERAL TERMS AND CONDITIONS
PACIFIC/PAC-WEST TELECOM
022499
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252
OF THE TELECOMMUNICATIONS ACT OF 1996
by and between
PACIFIC XXXX
AND
PAC-WEST TELECOMM
GENERAL TERMS AND CONDITIONS
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PACIFIC/PAC-WEST TELECOM
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TABLE OF CONTENTS
1. DEFINITIONS.......................................................................... 1
2. INTERPRETATION AND CONSTRUCTION...................................................... 7
3. IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES......................... 7
4. INTERCONNECTION PURSUANT TO SEC 251(c)(2)(A),(B),(C); 47 CFR (S)51.305(a)(1)......... 7
4.1 Scope............................................................................ 7
4.2 Interconnection Coverage (S) 251(c)(2)(B) and (C), 47 CFR (S)51.305(a)(2)........ 8
4.3 Methods for Interconnection...................................................... 8
5. TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
SECTION 251(c)(2)(D); 252(d)(1) AND (2); 47 CFR (S) 51.305(a)(5)........................ 9
5.1 Scope of Traffic................................................................. 9
5.2 Responsibilities of the Parties.................................................. 10
5.3 Reciprocal Compensation for Termination of Local Traffic......................... 12
5.3.2 Applicability of Rates...................................................... 12
5.3.3 Rate Elements............................................................... 12
5.3.4 Local Traffic Interconnection Rates......................................... 13
5.4 Reciprocal Compensation for Transit Traffic...................................... 13
5.5 Reciprocal Compensation for Termination of IntraLATA Interexchange Traffic....... 14
5.6 Compensation for Origination and Termination of Switched Access Service
Traffic to or from an IXC (Meet-Point Billing ("MPB") Arrangements).............. 14
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5.7 Maintenance of Service.............................................................. 16
6. TRANSMISSION AND ROUTING OF SWITCHED ACCESS TRAFFIC PURSUANT TO 251(c)(2).............. 17
6.1 Scope of Traffic.................................................................... 17
7. TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC.................................... 17
7.1 Information Services Traffic........................................................ 17
8. SIGNALING.............................................................................. 17
9. NUMBERING.............................................................................. 18
9.9 NXX Migration....................................................................... 19
10. RESALE -- SECTIONS 251(b)(1); 251(c)(4); 252(d)(3); and 271(c)(2)(B)(xiv).............. 19
10.1 Availability of PACIFIC Retail Telecommunications Services for Resale............... 19
10.2 Availability of CLEC Retail Telecommunication Services for Resale................... 19
11. UNBUNDLED NETWORK ELEMENTS -- SECTIONS 251(c)(3), 271(c)(2)(B) (ii),(iv),(v),(vi),(x).. 19
12. NOTICE OF CHANGES -- SECTION 251(c)(5)................................................. 19
13. COLLOCATION -- SECTION 251(c)(6)....................................................... 20
14. NUMBER PORTABILITY -- SECTIONS 251(b)(2) and 271(c)(2)(B)(xi).......................... 20
15. DIALING PARTY - SECTION 251(b)(3); 271(c)(2)(B)(xii); and 271(e)(2).................... 20
16. ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) and 271(c)(2)(B)(iii)..................... 20
17. DATABASE ACCESS -- SECTION 271(c)(2)(B)(x)............................................ 21
18. INTERCEPT REFERRAL ANNOUNCEMENTS....................................................... 21
19. COORDINATED REPAIR CALLS............................................................... 21
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20. OTHER SERVICES 271(c)(b)(2)(vii) and 271(c)(2)(b)(viii)................................... 21
20.1 White Pages............................................................................ 21
20.2 911 and E911 Services.................................................................. 22
20.3 Directory Assistance ("DA")............................................................ 22
20.4 Operator Services...................................................................... 22
20.5 Hosting................................................................................ 22
20.6 Signaling System 7 Interconnection..................................................... 22
21. GENERAL RESPONSIBILITIES OF THE PARTIES................................................... 22
22. EFFECTIVE DATE, TERM, AND TERMINATION..................................................... 24
23. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.............................................. 25
24. CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION............................. 25
25. SEVERABILITY.............................................................................. 26
26. INTELLECTUAL PROPERTY..................................................................... 26
27. INDEMNIFICATION........................................................................... 26
28. LIMITATION OF LIABILITY................................................................... 29
29. REGULATORY APPROVAL....................................................................... 30
30. MISCELLANEOUS............................................................................. 30
30.1 Authorization.......................................................................... 30
30.2 Compliance and Certification........................................................... 31
30.3 Law Enforcement........................................................................ 31
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(a) Intercept Devices:................................................................. 31
(b) Subpoenas:......................................................................... 31
(c) Emergencies:....................................................................... 31
30.4 Independent Contractor................................................................. 32
30.5 Force Majeure.......................................................................... 32
30.6 Confidentiality........................................................................ 32
30.7 Governing Law.......................................................................... 34
30.8 Taxes.................................................................................. 35
30.9 Non-Assignment......................................................................... 36
30.10 Non-Waiver............................................................................. 37
30.11 Audits................................................................................. 37
30.12 Disputed Amounts....................................................................... 37
30.13 Dispute Resolution..................................................................... 38
30.14 Notices................................................................................ 39
30.15 Publicity and Use of Trademarks or Service Marks....................................... 40
30.16 Section 252(i) Obligations............................................................. 40
30.17 Joint Work Product..................................................................... 41
30.18 Intervening Law........................................................................ 41
30.19 No Third Party Beneficiaries; Disclaimer of Agency..................................... 42
30.20 No License............................................................................. 42
30.21 Survival............................................................................... 42
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30.22 Scope of Agreement............................................... 42
30.23 Entire Agreement................................................. 43
GENERAL TERMS AND CONDITIONS
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INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement under Sections 251 and 252 of the
Telecommunications Act of 1996 ("Agreement") is by and between Pacific Xxxx, a
California Corporation ("PACIFIC"), and PAC-WEST TELECOM, INC, ("CLEC") a
California Corporation doing business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX.
WHEREAS, the Parties want to interconnect their networks at mutually agreed
upon points of interconnection to provide, directly or indirectly, Telephone
Exchange Services and Exchange Access to residential and business end users
predominantly over their respective telephone exchange service facilities in
California; and
WHEREAS, the Parties are entering into this Agreement to set forth the
respective obligations of the Parties and the terms and conditions under which
the Parties will interconnect their networks and provide other services as
required by the Telecommunications Act of 1996 ("the Act") and additional
services as set forth herein; and
WHEREAS, for purposes of this Agreement, the Parties intend to operate
where PACIFIC is the incumbent local exchange carrier and CLEC, a competitive
local exchange carrier, is certified by the California Public Utilities
Commission, as required.
NOW, THEREFORE, CLEC and PACIFIC hereby agree as follows:
1. DEFINITIONS
-----------
1.1 "Act" means the Communications Act of 1934 [47 U.S.C. 153(R)], as
amended by the Telecommunications Act of 1996.
1.2 "Affiliate" is as defined in the Act.
1.3 "AMA" means the Automated Message Accounting structure inherent in
switch technology that initially records telecommunication message
information. AMA format is contained in the Automated Message
Accounting document published by Bellcore as GR-1100-CORE which
defines the industry standard for message recording.
1.4 "Automatic Number Identification" or "ANI" is a Feature Group D or a
CAMA signaling parameter that forwards the telephone ("CAMA") or
billing number ("FG-D") of the calling party.
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1.5 "Busy Line Verification Interrupt" or "BLVI" means a service in which
an End User requests an operator to confirm the busy status of a line
and requests an interruption of the call.
1.6 "Calling Party Number" or "CPN" is a Signaling System 7 ("SS7")
parameter whereby the ten (10) digit number of the calling party is
forwarded from the End Office.
1.7 "Central Office Switch" means a single switching system within the
public switched telecommunications network, including the following:
(a) "End Office Switches" which are Class 5 switches where End User
Exchange Services are directly connected and offered; and
(b) "Tandem Office Switches" or "Access Tandems" which are switches
used to connect and switch calls over interoffice trunks between
End Office Switches.
Central Offices may be employed as combination End Office/Tandem
Office switches.
1.8 "CLASS Features" mean certain CCS-based features available to End
Users including, but not limited to: Automatic Call Back; Call Trace;
Distinctive Ringing/Call Waiting; Selective Call Forward; and
Selective Call Rejection.
1.9 "Collocation" is defined in Appendix PHYSICAL COLLOCATION. Generally,
however, "collocation" refers to an arrangement whereby one Party's
(the "Collocating Party") facilities are terminated in its equipment
necessary for Interconnection or for access to Network Elements on an
unbundled basis which has been installed and maintained at the
premises of a second Party (the "Housing Party"). Collocation may be
"physical" or "virtual." "Physical Collocation" is defined in Appendix
PHYSICAL COLLOCATION and generally refers to the Collocating Party
installing and maintaining its own equipment in the Housing Party's
premises. "Virtual Collocation is defined in Appendix NIM and
generally refers to the "Housing Party" owning, installing and
maintaining the collocated equipment in the Housing Party's premises.
1.10 "Commission" or "CPUC" means the California Public Utilities
Commission.
1.11 "Common Channel Signaling" or "CCS" is a special network, fully
separate from the transmission path of the public switched network,
that digitally transmits call
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set-up and network control data. Unless otherwise agreed by the
Parties, the CCS protocol used by the Parties shall be SS7.
1.12 "Competitive Local Exchange Carriers - "CLEC" is as defined in the
Act.
1.13 "Control Office" means an exchange carrier center or office
designated as its company's single point of contact for the
provisioning and maintenance of its portion of interconnection
arrangements.
1.14 "Dialing Parity" is as defined in the Act. As used in this
Agreement, Dialing Parity refers to both Local Dialing Parity and Toll
Dialing Parity.
1.15 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
1.16 "Digital Signal Level 0" or "DS-0" means the 64 Kbps zero-level
signal in the time-division multiplex hierarchy.
1.17 "Digital Signal Level 1" or "DS-1" means the 1.544 Mbps first-level
signal in the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS-1 is the initial
level of multiplexing.
1.18 "Digital Signal Level 3" or "DS-3" means the 44.736 Mbps third-level
in the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS-3 is defined as
the third level of multiplexing.
1.19 "End User" means a third-party residence or business that subscribes
to Telecommunications Services provided by either of the Parties or by
another telecommunications service provider.
1.20 "Exchange Access" see Switched Access.
1.21 "Exchange Message Record" or "EMR" means the standard used for
exchange of Telecommunications message information among
Telecommunications Carriers for billable, non-billable, sample,
settlement and study data. EMR format is contained in Bellcore
Practice BR-010-200-010 XXXX Exchange Message Record.
1.22 "Fiber Meet" means an Interconnection architecture method whereby the
Parties physically interconnect their networks via an optical fiber
interface (as opposed to an electrical interface) at a mutually
agreed-upon location.
1.23 "Interconnection" is as defined in the Act.
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1.24 "Interconnection Activation Date" is the date that the construction
of the joint facility Interconnection arrangement has been completed,
trunk groups have been established, and joint trunk testing is
completed.
1.25 "Interexchange Carrier" or "IXC" (also referred to as "Switched
Access Customer") means a carrier that provides, directly or
indirectly, interLATA or intraLATA Telephone Toll Services. For
purposes of Section 6 of this Agreement, the term "IXC" includes any
entity which purchases FGB or FGD Switched Access Service in order to
originate or terminate traffic to/from CLEC's End Users.
1.26 "IntraLATA Toll Traffic" means those intraLATA station calls that are
not defined as Local Traffic in this Agreement.
1.27 "Line Side" refers to End Office switch connections that have been
programmed to treat the circuit as a local line connected to a
terminating station (e.g., an ordinary subscriber's telephone station
set, a PBX, answering machine, facsimile machine or computer). Line
Side connections offer only those transmission and signal features
appropriate for a connection between an End Office and such
terminating station.
1.28 "Local Exchange Routing Guide" or "LERG" means a Bellcore Reference
Document used by LECs and IXCs to identify NPA-NXX routing and homing
information as well as Network Element and equipment designations.
1.29 "Local Exchange Traffic" is as defined in the Act.
1.30 "Local Interconnection Trunks/Trunk Groups" are used for the
termination of Local Exchange Traffic, using Bellcore Technical
Reference GR-317-CORE ("GR-317").
1.31 "Local Calls" are as defined by the Commission. Local Calls
currently include all 0-12 mile calls based on the rate centers of the
originating and terminating NPA-NXXs of the callers, irrespective of
whether the routing point of an NPA-NXX is different than the rate
center of that NPA-NXX (these include but are not limited to ZUM Zone
1 and ZUM Zone 2 calls) and, where established in incumbent LEC
tariffs, ZUM Zone 3 and Extended Area Service (EAS) calls.
1.32 "Losses" means any and all losses, costs (including court costs),
claims, damages (including fines, penalties, and criminal or civil
judgments and settlements), injuries, liabilities and expenses
(including attorneys' fees).
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1.33 "MECAB" refers to the Multiple Exchange Carrier Access Billing
("MECAB") document prepared by the Billing Committee of the Ordering
and Billing Forum ("OBF"), which functions under the auspices of the
Carrier Liaison Committee ("CLC") of the Alliance for
Telecommunications Industry Solutions ("ATIS"). The MECAB document,
published by Bellcore as Special Report SR-BDS-000983, contains the
recommended guidelines for the billing of access services provided to
an IXC by two or more LECs, or by one LEC in two or more states within
a single LATA.
1.34 "MECOD" refers to the Multiple Exchange Carriers Ordering and Design
"MECOD") Guidelines for Access Services - Industry Support Interface,
a document developed by the Ordering/Provisioning Committee of the
Ordering and Billing Forum ("OBF"), which functions under the auspices
of the Carrier Liaison Committee ("CLC") of the Alliance for
Telecommunications Industry Solutions ("ATIS"). The MECOD document,
published by Bellcore as Special Report SR STS-002643, establishes
methods for processing orders for access service which is to be
provided to an IXC by two or more telecommunications providers.
1.35 "Meet-Point Billing" or "MPB" refers to a billing arrangement whereby
two or more Telecommunications Carriers jointly provide for Switched
Access Service to an IXC, with each LEC receiving an appropriate share
of its switched access revenues as defined by its effective access
tariffs.
1.36 "Meet Point Trunks/Trunk Groups" ("MPTGs") are used for the joint
provision of Switched Access services, utilizing Bellcore Technical
References GR-394-CORE ("GR-394") and GR-317-CORE ("GR-317"). MPTGs
are those between a local End Office and an Access Tandem as described
in FSD 20-24-0000 and 20-24-0300.
1.37 "Mid-Span Meet" means an interconnection between two LECs whereby
each provides its own cable and equipment up to the meet point of the
cable facilities. The meet point is the demarcation establishing
ownership of and responsibility for each LEC's portion of the
transmission facility.
1.38 "Network Element Bona Fide Request" or "BFR" means the process
described in Appendix UNE that is attached hereto and incorporated
herein that prescribes the terms and conditions relating to a Party's
request that the other Party provide a Network Element.
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1.39 "Originating Line Information ("OLI")" is an SS7 Feature Group D
signaling parameter which refers to the number transmitted through the
network identifying the billing number of the calling party.
1.40 "Point of Interconnection" or "POI" means a physical location at
which the Parties' networks meet for the purpose of establishing
interconnection. POIs include a number of different technologies and
technical interfaces based on the Parties' mutual agreement.
1.41 "Rating Point" means the Vertical and Horizontal ("V&H") coordinates
associated with a particular telephone number for rating purposes.
1.42 "Routing Point" means a location which a LEC has designated on its
own network as the homing or routing point for traffic inbound to
Exchange Service provided by the LEC which bears a certain NPA-NXX
designation. The Routing Point is employed to calculate mileage
measurements for the distance-sensitive transport element charges of
Switched Access services. The Routing Point need not be the same as
the Rating Point, nor must it be located within the Rate Center area,
but must be in the same LATA as the NPA-NXX.
1.43 "Switched Access" service means an offering of access to services or
facilities for the purpose of the origination or termination of
traffic from or to Exchange Service customers in a given area pursuant
to a Switched Access tariff. Switched Access Services includes:
Feature Group A ("FGA)", Feature Group B ("FGB"), Feature Group C
("FGC"), Feature Group D ("FGD"), Toll Free Service, 700 and 900
access. Switched Access service does not include traffic exchanged
between LECs for the purpose of local exchange interconnection.
1.44 "Synchronous Optical Network" or "SONET" means an optical interface
standard that allows inter-networking of transmission products from
multiple vendors. The base rate is 51.84 Mbps ("OC-1/STS-1") and
higher rates are direct multiples of the base rate, up to 13.22 Gbps.
1.45 "Telephone Exchange Service" is as defined in the Act.
1.46 "Toll Free Service" means service provided with any dialing sequence
that invokes toll-free, i.e., 800-like, service processing. Toll Free
Service includes calls to the Toll Free Service 800/888 NPA SAC codes
and excludes services using standard NPA-NXX dialing patterns,
irrespective of whether the routing point of the NPA-NXX is in a
different rate center than the rating point of that NPA-NXX.
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1.47 "Trunk-Side" refers to a Central Office Switch connection that is
capable of, and has been programmed to treat the circuit as connecting
to another switching entity, for example, another Central Office
switch. Trunk-Side connections offer those transmission and signaling
features appropriate for the connection of switching entities and
cannot be used for the direct connection of ordinary telephone station
sets.
1.48 "Wire Center" means an occupied structure or portion thereof in which
a Party has the exclusive right of occupancy and which serves as a
Routing Point for Switched Access Service.
2. INTERPRETATION AND CONSTRUCTION
-------------------------------
[Section Deleted]
3. IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES
------------------------------------------------------------
Subject to the terms and conditions of this Agreement, Interconnection of
the Parties' facilities and equipment pursuant to Sections 4, 5, and 6 for
the transmission and routing of Telephone Exchange Service Traffic and
Exchange Access Traffic shall be established for each Exchange Area on
Appendix DCO attached hereto and incorporated by reference. Appendix DCO
may be revised and supplemented from time to time upon the mutual agreement
of the Parties to reflect the Interconnection of additional Exchange Areas
by modifying or updating Appendix DCO.
4. INTERCONNECTION PURSUANT TO SECTION 251(C)(2)(A),(B),(C); 47 CFR (S)
51.305(A)(1)
4.1 Scope
-----
This Section refers to the physical architecture for Interconnection
of the Parties' facilities and equipment for the transmission and
routing of Telephone Exchange Service traffic and Exchange Access
traffic pursuant to Section 251(c)(2) of the Act. Appendix ITR
(Interconnection Trunking Requirements), attached hereto and
incorporated by reference prescribes the specific trunk groups (and
traffic routing parameters). Appendixes NIM and PHYSICAL COLLOCATION
describe the facilities for the transmission and routing of traffic as
described in Appendix ITR.
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4.2 Interconnection Coverage (S) 251(c)(2)(B) and (C), 47 CFR (S)
-------------------------------------------------------------
51.305(a)(2)
------------
The Parties will provide for interconnection of their networks that is
at least equal in quality to that provided by PACIFIC to itself or to
any subsidiary, affiliate, or any other party to which PACIFIC
provides interconnection and shall interconnect at any technically
feasible point in their network as defined in Appendix NIM and
COLLOCATION, attached hereto and incorporated by reference. The
Parties will establish Local Interconnection Trunks to exchange Local
and IntraLATA Toll traffic. All traffic exchanged over Local
Interconnection Trunk Groups will be treated as CLEC traffic and
subject to the terms and conditions of this Agreement. Neither Party
shall terminate Switched Access traffic over Local Interconnection
Trunks. Separate two-way Meet Point trunks will be established for the
joint provisioning of Switched Access traffic. Local Interconnection
will be provided via two-way trunks unless both Parties agree to
implement one-way trunks on a case-by-case basis. In depth
description is included in Appendix ITR.
4.2.1 The Parties shall interconnect their facilities as follows:
----------------------------------------------------------
(a) Each Party will establish a Local Interconnection Trunk
Group with each Access Tandem in the LATA(s) in which it
originates or terminates Local and/or Toll traffic with
the other Party. Parties may not route Local
Interconnection traffic to an Access Tandem destined for
an NXX that subtends another tandem. The Parties agree
that direct trunking to an End Office from either Party's
End Office or Access Tandem is permitted under the terms
of this section.
(b) In addition to the tandem interconnection described above,
either Party may establish End Office-to-End Office or End
Office-to-tandem or tandem-to-tandem trunk groups. In the
case of host-remote End Offices, such interconnection
shall occur at the location of the host or remote, at the
option of the Party deploying the host-remote End Office.
4.3 Methods for Interconnection
---------------------------
Methods for Interconnection and Physical Architecture shall be as
defined in Appendix NIM.
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5. TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
--------------------------------------------------------------------------
SECTION 251(c)(2)(D); 252(d)(1) AND (2); 47 CFR (S)51.305(a)(5)
---------------------------------------------------------------
5.1 Scope of Traffic
----------------
This Section 5 prescribes traffic routing parameters for Local
Interconnection Trunk Group(s) the Parties shall establish over the
Interconnections specified in Section 4.
5.1.1 Either Party may opt at any time to terminate, i.e., overflow,
to the other Party some or all Local Exchange Traffic and
intraLATA Toll traffic originating on its network, together
with Switched Access traffic, via Feature Group D or Feature
Group B Switched Access Services. Either Party may otherwise
purchase these Switched Access Services from the other Party
subject to the rates, terms and conditions specified in its
standard intrastate access tariffs, including any usage-
sensitive rates for the Local Exchange or intraLATA Toll
traffic terminated over the Switched Access service.
5.1.2 Each Party shall deliver to the other Party over the Local
Interconnection Trunk Group(s) only such traffic which is
destined for those publicly dialable NPA-NXX codes served by
End Offices that directly subtend the Access Tandem or to those
Wireless Service Providers that directly subtend the Access
Tandem.
5.1.3 Unless otherwise agreed to, each Party shall deliver all
traffic destined to terminate at either Party's End Office or
tandem in accordance with the serving arrangements defined in
the LERG Common Language Location Identifier (CLLI) Code.
5.1.4 Where the Parties deliver over the Local Interconnection Trunk
Group(s) miscellaneous calls (e.g., time, weather, NPA-555,
Mass Calling Codes) destined for each other, they shall deliver
such traffic in accordance with the serving arrangements
defined in the LERG Common Language Location Identifier Code.
5.1.5 N11 codes (e.g., 611, 811, & 911) shall not be sent between
CLEC's and PACIFIC's network over the Local Interconnection
Trunk Group(s).
5.1.6 For purposes of compensation under this Agreement, the traffic
traded between CLEC and PACIFIC will be classified as either
Local Traffic, Transit Traffic, IntraLATA Interexchange
Traffic, or interLATA Interexchange Traffic. The Parties agree
that, notwithstanding the
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classification of traffic under this Agreement, either Party is
free to define its own "local" calling area(s) for purposes of
its provision of Telecommunications Services to its End Users.
5.1.7 All Local Calls, including Local Calls originated by or
terminated to any internet service provider, are subject to
payment of local reciprocal compensation under the terms of
this Agreement.
5.1.8 Calls originated by one Party's End User and terminated to the
other Party's End User will be classified as "Local Traffic"
for purposes of intercompany compensation, if they are "Local
Calls" as defined by this Agreement (Section 1.31).
5.1.9 PACIFIC shall deliver all traffic destined to terminate at
CLEC's End Office in accordance with the serving arrangements
defined in the Common Language Location Identifier Code, except
PACIFIC will not deliver calls destined to CLEC End Office(s)
via another LEC's or CLEC's tandem.
5.1.10 PACIFIC shall terminate traffic from third party LECs, CLECs,
or Wireless Service Providers delivered to PACIFIC's network
through CLEC's tandem. Prior to the routing of such traffic,
the Parties agree to negotiate the issues of network capacity
and forecasting caused by such termination. The Parties shall
conduct such negotiations in good faith and shall not
unreasonably withhold consent to the routing of such traffic.
5.1.11 PACIFIC shall complete traffic delivered from CLEC destined to
third-party LECs, CLECs or WSPs in the LATA, when these third
parties subtend PACIFIC's tandem(s). PACIFIC shall have no
responsibility to ensure that any third party LEC, CLEC or WSP
will accept such traffic.
5.2 Responsibilities of the Parties
-------------------------------
5.2.1 Each Party to this Agreement will be responsible for the
accuracy and quality of its data as submitted to the respective
Parties involved.
5.2.2 Each Party will include in the information transmitted to the
other for each call being terminated on the other's network,
where available, the originating Calling Party Number ("CPN").
5.2.3 If the percentage of calls passed with CPN is greater than
ninety percent (90%), all calls exchanged without CPN
information will be billed as
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either Local Traffic or IntraLATA Toll Traffic in direct
proportion to the minutes of use ("MOU") of calls exchanged
with CPN information. If the percentage of calls passed with
CPN is less than ninety percent (90%), all calls passed without
CPN will be billed as Switched Access.
5.2.4 For intraLATA Toll Free Service calls where such service is
provided by one of the Parties, the compensation shall be
charged by the Party originating the call, rather than the
Party terminating the call. This includes originating charges
as well as a Basic Toll Free Access Query charge as specified
in Appendix PRICING or CLEC's local exchange tariff.
5.2.5 Each Party will calculate terminating interconnection minutes
of use based on standard Automatic Message Accounting ("AMA")
recordings made within each Party's network. These recordings
are the basis for each Party to generate bills to the other
Party.
5.2.6 Measurement of minutes of use over Local Interconnection Trunk
Groups shall be in actual conversation seconds. The total
conversation seconds over each individual Local Interconnection
Trunk Group will be totaled for the entire monthly xxxx and
then rounded to the next whole minute.
5.2.7 Each Party will provide the other, within thirty (30) calendar
days or by mutually agreed upon date after the end of each
calendar quarter, a usage report with the following information
regarding traffic it sent to (i.e., terminated over) the Local
Interconnection Trunk arrangements.
5.2.7.1 Total traffic volume described in terms of minutes and
messages and by call type (local, toll and other)
terminated to each other over the Local
Interconnection Trunk Groups; and
5.2.7.2 Percent Local Usage ("PLU") and Percent Local Minutes.
5.2.8 Upon mutual agreement of the Parties, originating records for
local, transit, and intraLATA toll traffic shall be exchanged
for the purposes of billing intercompany terminating
compensation.
5.2.8.1 On a monthly basis, each Party will record its
originating MOUs including identification of the
originating and terminating NXXs for all intercompany
calls.
GENERAL TERMS AND CONDITIONS
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5.2.8.2 Each Party will transmit the summarized originating
MOUs above to the transiting and/or terminating Party
for subsequent monthly intercompany settlement
billing.
5.2.8.3 Bills rendered by either Party will be paid within
fifteen (15) days of receipt subject to subsequent
audit verification.
5.2.8.4 MOUs for the rates contained herein will be measured
in seconds by call type, and accumulated each billing
period into one (1) minute increments for billing
purposes in accordance with industry rounding
standards.
5.2.8.5 Each Party will multiply the tandem routed and end
office routed terminating MOUs by the appropriate rate
contained in this Section to determine the total
monthly billing to each Party.
5.3 Reciprocal Compensation for Termination of Local Traffic
--------------------------------------------------------
5.3.1 The Compensation set forth below will apply to all Local
Traffic as defined in Section
5.3.2 Applicability of Rates
----------------------
5.3.2.1 The rates, terms, conditions in this Section 5.3 apply
only to the termination of Local Traffic, unless
otherwise noted in Section 5.
5.3.3 Rate Elements
-------------
5.3.3.1 The Parties will pay to one another the charges for
the following rate elements for the termination of
Local Traffic.
(a) Tandem Switching - (where used) compensation for the
use of tandem switching functions (which includes
subtending tandem offices:
(i) Setup per Call, and
(ii) MOU;
(b) Common Transport ("where used") - compensation for
the transmission facilities between the local tandem
and the End Offices subtending that tandem.
GENERAL TERMS AND CONDITIONS
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(i) Fixed Mileage and
(ii) Variable Mileage
(c) Basic Switching- Interoffice Terminating:
(i) Setup per Call
(ii) MOU;
5.3.4 Local Traffic Interconnection Rates
-----------------------------------
See Appendix Pricing
5.4 Reciprocal Compensation for Transit Traffic
-------------------------------------------
5.4.1 Transit Traffic allows one Party to send traffic to a third
party network through the other Party's tandem. A Transit
Traffic rate element applies to all MOUs between a Party and
third party networks that transit the other Party's tandem
switch. The originating Party will be billed Transit Traffic
rate element unless otherwise specified.
The Transit Traffic rate element shall be equal to the Tandem
Switching rate plus two times the Common Transport Fixed rate
element as specified in Appendix PRICING.
5.4.2 When CLEC uses a PACIFIC access tandem to transit a toll call
to another LEC end office, and that LEC is a member of the
California Toll Pool, ("Pooling LEC"), PACIFIC will xxxx, and
CLEC will pay, PACIFIC's local switching and proportionate
local transport rates in addition to the transit rate above.
PACIFIC will remit such revenues to the California Toll Pool.
When a Pooling LEC originates a toll call that terminates to a
Party's NXX, Party will xxxx and PACIFIC will pay, Party's
local switching and local transport rates as if the call
originated from a PACIFIC end office.
5.4.3 If either Party receives a call through the other Party's
Access Tandem that originates from another LEC, CLEC or
Wireless Service Provider, the Party receiving the transited
call will not charge the other Party any rate element for this
call regardless of whether the call is local or toll. The
Parties will establish appropriate billing relationships
directly with the Wireless Service Provider, other CLEC or LEC
with the exception of the independent LECs listed in Section
21.11 of this Agreement.
GENERAL TERMS AND CONDITIONS
PAGE 14 OF 48
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5.4.4 In the event one Party originates traffic that transits the
second Party's network to reach a third party
telecommunications carrier with whom the originating Party does
not have a traffic interchange agreement, then originating
Party will indemnify the second Party against any and all
charges levied by such third party telecommunications carrier,
including any termination charges related to such traffic and
any attorneys fees and expenses.
5.5 Reciprocal Compensation for Termination of IntraLATA Interexchange
------------------------------------------------------------------
Traffic
-------
For intrastate intraLATA interexchange service traffic, compensation
for termination of intercompany traffic will be at terminating access
rates for Message Telephone Service ("MTS") and originating access
rates for 800 Service as set forth in each Party's Intrastate Access
Service Tariff. For interstate intraLATA intercompany service traffic
(i.e., when a LATA crosses a state boundary), compensation for
termination of intercompany traffic will be at terminating access
rates for Message Telephone Service ("MTS") and originating access
rates for 800 Service as set forth in each Party's Intrastate Access
Service Tariff.
5.6 Compensation for Origination and Termination of Switched Access
---------------------------------------------------------------
Service Traffic to or from an IXC (Meet-Point Billing ("MPB")
-------------------------------------------------------------
Arrangements)
-------------
5.6.1 The Parties will establish MPB arrangements in order to provide
Switched Access Services to IXCs via PACIFIC's Access Tandem
switches in accordance with the MPB guidelines adopted by and
contained in the Ordering and Billing Forum's MECOD and MECAB
documents.
5.6.2 For interstate, interLATA traffic, the Parties will charge IXCs
according to access rates as set forth in each Party's own
applicable tariffs.
5.6.3 Billing to IXCs for the Switched Access Services jointly
provided by the Parties via Meet-Point Billing arrangement
shall be according to the multiple xxxx/single tariff method.
As described in the MECAB document, each Party will render a
xxxx in accordance with its own tariff for that portion of the
service it provides. For the purpose of this Agreement, CLEC is
the Initial Billing Company ("IBC") and PACIFIC is the
Subsequent Billing Company ("SBC"). The actual rate values for
each element shall be the rates contained in that Party's own
applicable access tariffs.
GENERAL TERMS AND CONDITIONS
PAGE 15 OF 48
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5.6.4 The Parties will maintain provisions in their respective
federal and state access tariffs, or provisions within the
National Exchange Carrier Association ("NECA") Tariff No. 4, or
any successor tariff, sufficient to reflect this MPB
arrangement, including MPB percentages.
5.6.5 As detailed in the MECAB document, the Parties will, in
accordance with accepted time intervals, exchange all
information necessary to accurately, reliably, and promptly
xxxx third Parties for Switched Access Services traffic jointly
handled by the Parties via the Meet Point Arrangement. Each
Party reserves the right to charge the other Party for the
recording/processing functions it performs. Information shall
be exchanged in Exchange Message Record ("EMR") format, on
magnetic tape or via a mutually acceptable electronic file
transfer protocol.
5.6.6 Meet-Point Billing shall also apply to all jointly provided MOU
traffic bearing the 900, 800, and 888 NPAs or any other non-
geographic NPAs which may likewise be designated for such
traffic in the future where the responsible party is an IXC.
When PACIFIC performs 800 database queries, PACIFIC will charge
the service provider for the database query in accordance with
standard industry practices and applicable tariffs.
5.6.7 Each Party shall coordinate and exchange the billing account
reference ("BAR") and billing account cross reference ("BACR")
numbers for the Meet Point Billing service. Each Party shall
notify the other if the level of billing or other BAR/BACR
elements change, resulting in a new BAR/BACR number.
5.6.8 Each Party will provide the other with the Switched Access
detailed usage data within thirty (30) days of the end of the
billing period. Each Party will provide to the other the
Switched Access summary usage data within ten (10) working days
after the date that a xxxx is rendered to the IXC by the
initial Party. To the extent CLEC provides PACIFIC with Access
Usage Records, PACIFIC will compensate CLEC on the same terms
as CLEC compensates PACIFIC. PACIFIC acknowledges that
currently there is no charge for Summary Usage Data Records but
that such a charge may be appropriate. At CLEC's request,
PACIFIC will negotiate a mutual and reciprocal charge for
provision of Summary Usage Data Records.
5.6.9 Errors may be discovered by CLEC, the IXC or PACIFIC. Both
PACIFIC and CLEC agree to provide the other Party with
notification of any discovered errors within two (2) business
days of the discovery.
GENERAL TERMS AND CONDITIONS
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5.6.10 In the event of a loss of data, both Parties shall cooperate to
reconstruct the lost data within sixty (60) days of
notification and if such reconstruction is not possible, shall
accept a reasonable estimate of the lost data, based upon at
least three (3), but no more than twelve (12) months of prior
usage data, if available.
5.7 Maintenance of Service
----------------------
5.7.1 A Maintenance of Service charge applies whenever either Party
requests the dispatch of the other Party's personnel for the
purpose of performing maintenance activity on the
interconnection trunks, and any of the following conditions
exist:
(a) no trouble is found in the interconnection trunks; or
(b) the trouble condition results from equipment, facilities
or systems not provided by the Party whose personnel were
dispatched; or
(c) trouble clearance did not otherwise require dispatch and,
upon dispatch requested for repair verification, the
interconnection trunk did not exceed Maintenance Limits.
5.7.2 If a Maintenance of Service initial charge has been applied and
trouble is subsequently found in the facilities of the Party
whose personnel were dispatched, the charge will be canceled.
5.7.3 Billing for Maintenance of Service is based on each half-hour
or fraction thereof expended to perform the work requested. The
time worked is categorized and billed at one of the following
three rates:
(a) basic time;
(b) overtime; or
(c) premium time,
as defined for billing by PACIFIC in PACIFIC's revised tariff
CPUC . No. 175-T and in CLEC's Exchange tariff.
GENERAL TERMS AND CONDITIONS
PAGE 17 OF 48
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6. TRANSMISSION AND ROUTING OF SWITCHED ACCESS TRAFFIC PURSUANT TO 251(c)(2)
-------------------------------------------------------------------------
6.1 Scope of Traffic
----------------
Section Appendix ITR (Interconnection Trunking Requirements) attached
to this Interconnection Agreement prescribes parameters for certain
trunk groups ("Meet Point Trunks") to be established over the
Interconnections.
7. TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
---------------------------------------------------
7.1 Reserved for Future Use
-----------------------
8. SIGNALING
---------
8.1 The Parties will interconnect their networks using SS7 signaling as
defined in GR-000317-CORE and GR-000394-CORE, including ISDN User Part
("ISUP") for trunk signaling and Transaction Capabilities Application
Part ("TCAP") for CCS-based features in the interconnection of their
networks. Either Party may establish CCS interconnections either
directly and/or through a third party. Whether direct or by third
party, CCS interconnection shall be pursuant to PUB L-780023-PB/NB. If
CCS interconnection is established through a third party, the rates,
terms, and conditions of the parties' respective tariffs will apply.
If CCS interconnection is established directly between CLEC and
PACIFIC, the rates, terms, and conditions of Xxxxxxxx XX0 will apply.
8.2 The Parties will cooperate in the exchange of TCAP messages to
facilitate full interoperability of CCS-based features between their
respective networks, including all CLASS features and functions, to
the extent each carrier offers such features and functions to its own
End Users. All CCS signaling parameters deployed by both Parties will
be provided including CPN. All privacy indicators will be honored.
8.3 CCS shall be used in conjunction with Meet Point Trunks; except
multifrequency ("MF") signaling will be used on a separate Meet Point
Trunk Group to complete originating calls to Switched Access customers
that use MF FGD signaling protocol. MF and CCS trunk groups shall not
be provided within a DS-1 facility; a separate DS-1 per signaling type
must be used.
8.4 Originating FGB calls delivered to PACIFIC's tandem(s) shall use
GR-317 signaling format unless the associated FGB carrier employs GR-
394 signaling for its FGB traffic at the serving Access Tandem.
GENERAL AND CONDITIONS
PAGE 18 OF 48
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9. NUMBERING
---------
9.1 Nothing in this Agreement shall be construed to limit or otherwise
adversely impact in any manner either Party's right to employ or to
request and be assigned any North American Numbering Plan ("NANP")
number resources including, but not limited to, central office ("NXX")
codes pursuant to the Central Office Code Assignment Guidelines', or
to establish, by tariff or otherwise, Exchanges and Rating Points
corresponding to such NXX codes. Each Party is responsible for
administering the NXX codes it is assigned.
9.2 At a minimum, in those areas where CLEC intends to provide
facilities-based local exchange service, CLEC shall obtain at least
one NXX per incumbent local exchange carrier rate center which is
required to ensure compliance with the industry-approved Central
Office Code NXX Assignment Guidelines (April, 1997) and the FCC's
Second Report and Order in CC Docket 96-116 released August 18, 1997
(Local Number Portability).
9.3 Each Party agrees to make available via the LERG, up-to-date listings
of its own assigned NPA-NXX codes, along with associated Rating Points
and Exchanges.
9.4 Each Party is responsible to program and update its own switches and
network systems to recognize and route traffic to the other Party's
assigned NXX codes at all times. Neither Party shall impose fees or
charges on the other Party for such required programming and updating
activities.
9.5 Each Party is responsible to input required data into the Routing
Data Base Systems ("RDBS") and into the Bellcore Rating Administrative
Data Systems ("BRADS") or other appropriate system(s) necessary to
update the Local Exchange Routing Guide ("LERG"), unless negotiated
otherwise.
9.7 Upon the request of CLEC, PACIFIC shall perform LERG input for
CLEC. CLEC agrees to pay PACIFIC the sum of $110 per NXX in exchange
for PACIFIC's input of required data necessary to update the Local
Exchange Routing Guide ("LERG") on CLEC's behalf. PACIFIC shall not
be liable for any losses or damages arising out of errors, defects, or
failures associated with the input of CLEC's data into the LERG.
----------------------
/1/ Last published by the Industry Numbering Committee ("INC") as INC 95-0407-
008, Revision April 1997, formerly ICCF 00-0000-000.
GENERAL AND CONDITIONS
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022499
9.8 Neither Party is responsible for notifying the other Parties' End
Users of any changes in dialing arrangements, including those due to
NPA exhaust, unless otherwise ordered by the law, the Commission, the
FCC, or a court.
9.9 NXX Migration
-------------
Where either Party has activated an entire NXX for a single End User,
or activated more than half of an NXX for a single End User with the
remaining numbers in that NXX either reserved for future use or
otherwise unused, if such End User chooses to receive service from the
other Party, the first Party shall cooperate with the second Party to
have the entire NXX reassigned in the LERG (and associated industry
databases, routing tables, etc.) to an End Office operated by the
second Party. Such transfer will require development of a transition
process to minimize impact on the Network and on the End User(s)'
service and will be subject to appropriate industry lead times
(currently forty-five (45) days) for movements of NXXs from one switch
to another. The Party to whom the NXX is migrated will pay NXX
migration charges of $10,000 per NXX to the Party formerly assigned
the NXX.
10. RESALE -- SECTIONS 251(b)(1); 251(c)(4); 252(d)(3); and 271(c)(2)(B)(xiv)
-------------------------------------------------------------------------
10.1 Availability of PACIFIC Retail Telecommunications Services for Resale
---------------------------------------------------------------------
PACIFIC shall offer to CLEC for resale at wholesale rates its
Telecommunications Services, as described in Section 251(c)(4) of the
Act, pursuant to the terms and conditions of Appendix RESALE attached
hereto and incorporated herein by this reference.
10.2 Availability of CLEC Retail Telecommunication Services for Resale
-----------------------------------------------------------------
CLEC shall make available its Telecommunications Services for resale
at wholesale rates to PACIFIC in accordance with Section 251(b)(1) of
the Act.
11. UNBUNDLED NETWORK ELEMENTS -- SECTIONS 251(c)(3), 271(c)(2)(B)
--------------------------------------------------------------
(ii),(iv),(v),(vi),(x)
----------------------
Pursuant to Appendix UNE, which is attached hereto and made a part hereof,
PACIFIC will provide CLEC access to Unbundled Network Elements for the
provision of a telecommunication service as required by Sections 251 and
252 of the Act and in compliance with those portions of the FCC's First
Report and Order in CC Docket No. 96-98 that are in effect, subject to any
modifications on reconsideration, stay or appeal, under the terms and
conditions described herein and in the Appendices hereto.
12. NOTICE OF CHANGES -- SECTION 251(c)(5)
--------------------------------------
GENERAL AND CONDITIONS
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PACIFIC/PAC-WEST TELECOM
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Nothing in this Agreement shall limit either Party's ability to upgrade its
network through the incorporation of new equipment, new software or
otherwise. Both Parties will comply with the Network Disclosure rules
adopted by the FCC in CC Docket No. 96-98, Second Report and Order, as may
be amended from time to time. Both Parties agree to coordinate
interconnection matters consistent with the requirements of the Americans
with Disabilities Act (42 U.S.C. 12101) and with Sections 255 and 256 of
the Act.
13. COLLOCATION -- SECTION 251(c)(6)
--------------------------------
13.1 PACIFIC shall provide to CLEC Physical Collocation pursuant to
Appendix PHYSICAL COLLOCATION.
13.2 PACIFIC shall provide to CLEC Virtual Collocation pursuant to Appendix
NIM.
14. NUMBER PORTABILITY -- SECTIONS 251(b)(2) and 271(c)(2)(B)(xi)
-------------------------------------------------------------
The Parties shall provide to each other Interim Number Portability ("INP")
and Permanent Number Portability ("PNP") on a reciprocal basis. Pursuant to
the provisions in the Act and the FCC's First Report and Order, and in
accordance with the terms and conditions outlined in Appendix PORT, which
is attached hereto and incorporated herein, PACIFIC will provide CLEC
Interim Number Portability through Remote Call Forwarding and Direct Inward
Dialing technology.
15. DIALING PARITY -- SECTION 251(b)(3); 271(c)(2)(B)(xii); and 271(e)(2)
---------------------------------------------------------------------
15.1 The Parties shall provide Local Dialing Parity to each other as
required under Section 251(b)(3) of the Act.
15.2 PACIFIC shall provide IntraLATA Dialing Parity in accordance with
Section 271(e)(2) of the Act and Section 8 of the Commission's
regulations in Docket 97-2010.
16. ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) and 271(c)(2)(B)(iii)
------------------------------------------------------------------
Each Party shall provide the other Party access to its poles, ducts,
rights-of-way and conduits it owns or controls, pursuant to Appendix ROW,
in accordance with Section 224 of the Act on terms, conditions, and prices
comparable to those offered to any other Telecommunications provider
pursuant to each Party's applicable tariffs and/or standard agreements.
GENERAL AND CONDITIONS
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17. DATABASE ACCESS -- SECTION 271(c)(2)(B)(x)
-------------------------------------------
In accordance with Section 27 (c)(2)(B)(x) of the Act, PACIFIC shall
provide CLEC with nondiscriminatory access to databases and associated
signaling necessary for call routing and completion. When requesting access
to databases not otherwise provided for in this Agreement, or appropriate
interfaces, regardless of whether they constitute Unbundled Network
Elements, CLEC will use the Network Element Bona Fide Request process. This
process is defined in Appendix UNE, which is attached hereto and
incorporated herein by reference.
18. INTERCEPT REFERRAL ANNOUNCEMENTS
--------------------------------
When an End User customer changes from one Party to the other Party and
does not retain its original telephone number, the Party formerly providing
service to the End User will provide a referral announcement on the
abandoned telephone number. This announcement will provide details on the
new number to be dialed to reach this customer. These arrangements will be
provided reciprocally for the same period of time and under the same terms
and conditions as either provides to its existing End User customers.
19. COORDINATED REPAIR CALLS
------------------------
To avoid and minimize the potential for End User confusion, each Party
shall inform their respective End Users of their respective repair bureau
telephone number(s) to access such bureaus. In the event that either Party
receives a misdirected repair call, the Parties agree to employ the
following procedures for handling such calls:
(a) To the extent the correct provider can be determined, misdirected
repair calls will be referred to the proper provider of local exchange
service in a courteous manner, at no charge, and the End User will be
provided the correct contact telephone number.
(b) In responding to repair calls, neither Party shall make disparaging
remarks about the other, nor shall they use these repair calls as the
basis for internal referrals, to solicit customers, or to market
services, nor shall they initiate extraneous communications beyond the
direct referral to the correct repair telephone number.
20. OTHER SERVICES 271(c)(B)(2)(vii) and 271(c)(2)(B)(viii)
-------------------------------------------------------
20.1 White Pages
-----------
In accordance with Section 271(c)(2)(B)(viii) of the Act, PACIFIC will
make nondiscriminatory access to White Pages service available under
the terms and conditions of Appendix WP, attached hereto and
incorporated by reference.
GENERAL AND CONDITIONS
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PACIFIC/PAC-WEST TELECOM
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20.2 911 and E911 Services
---------------------
Pursuant to Section 271(c)(2)(B)(vii)(I) of the Act, PACIFIC will make
nondiscriminatory access to 911 and E911 services available under the
terms and conditions of Appendix 911, attached hereto and incorporated
by reference.
20.3 Directory Assistance ("DA")
---------------------------
Pursuant to Section 271(c)(2)(B)(vii)(II) of the Act, PACIFIC will
provide nondiscriminatory access to DA services under the terms and
conditions identified in Appendix DA, attached hereto and incorporated
by reference.
20.4 Operator Services
-----------------
Pursuant to Section 271(c)(2)(B)(vii)(III) of the Act, PACIFIC shall
provide nondiscriminatory access to Operator Services under the terms
and conditions identified in Appendix OS, attached hereto and
incorporated by reference.
20.5 Hosting
-------
At CLEC's request, PACIFIC shall perform hosting responsibilities for
the provision of billable message data and/or access usage data
received from a CLEC for distribution to the appropriate billing
and/or processing location or for delivery to a CLEC of such data via
PACIFIC's internal network or the nationwide CMDS network pursuant.
20.6 Signaling System 7 Interconnection
----------------------------------
At CLEC's request, PACIFIC shall perform SS7 interconnection services
for CLEC pursuant to Xxxxxxxx XX0, attached hereto and incorporated by
reference.
21. GENERAL RESPONSIBILITIES OF THE PARTIES
---------------------------------------
21.1 Each Party is individually responsible to provide facilities within
its network that are necessary for routing, transporting, measuring,
and billing traffic from the other Party's network and for delivering
such traffic to the other Party's network in the standard format
compatible with PACIFIC's network as referenced in Bellcore's BOC
Notes on LEC Networks Practice No. SR-TSV-002275, and to terminate the
traffic it receives in that standard format to the proper address on
its network. The Parties are each solely responsible for participation
in and compliance with national network plans, including the National
Network Security Plan and the Emergency Preparedness Plan.
21.2 Neither Party shall use any service related to or use any of the
services or elements provided in this Agreement in any manner that
interferes with other persons in the use of their service, prevents
other persons from using their service, or otherwise impairs the
quality of service to other carriers or to either Party's End
GENERAL AND CONDITIONS
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Users. Either Party may discontinue or refuse service, but only for so
long as the other Party is violating this provision. Upon such
violation, either Party shall provide the other Party notice of the
violation at the earliest practicable time.
21.3 Each Party is solely responsible for the services it provides to its
End Users and to other Telecommunications Carriers.
21.4 The Parties shall work cooperatively to minimize fraud associated with
third-number billed calls, calling card calls, and any other services
related to this Agreement.
21.5 At all times during the term of this Agreement, each Party shall keep
and maintain in force at each Party's expense all insurance required
by law (e.g. workers' compensation insurance) as well as general
liability insurance for personal injury or death to any one person,
property damage resulting from any one incident, and automobile
liability with coverage for bodily injury for property damage. Upon
request from the other Party, each Party shall provide to the other
Party evidence of such insurance (which may be provided through a
program of self insurance).
21.6 Unless otherwise stated, each Party will render a monthly xxxx to
the other for service(s) provided hereunder. Remittance in full will
be due within fifteen (15) days of that billing date. Interest shall
apply on overdue amounts (other than disputed amounts which are
subject to Section 30.12) at the rate specified in Section 30.12,
unless otherwise specified in an applicable tariff. Each Party
reserves the right to net delinquent amounts against amounts otherwise
due the other.
21.7 PACIFIC participates at OBF to develop standardized methods and
shall implement ordering and billing formats/processes consistent with
industry guidelines as capabilities are deployed. Where such
guidelines are not available or PACIFIC decides not to fully utilize
industry guidelines, PACIFIC will provide CLEC with information on its
ordering and billing format/process and requirements at the earliest
practicable time.
21.8 For the purposes of establishing provisioning and billing service
to CLEC, CLEC is required to provide to PACIFIC its PACIFIC authorized
and nationally recognized OCN for facilities-based business
(interconnection and/or Unbundled Network Elements) in PACIFIC. CLEC
name associated with specific OCN must be consistent in PACIFIC.
21.9 Unless otherwise agreed, if the designated Party fails to file
the jointly signed agreement with the Commission within thirty (30)
days of both Parties signatures, then the signed agreement is null and
no longer valid. If the contract becomes null, either Party can
initiate negotiations to a new agreement.
GENERAL AND CONDITIONS
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22. EFFECTIVE DATE, TERM, AND TERMINATION
-------------------------------------
22.1 This Agreement shall be effective upon approval by the CPUC (the
"Effective Date").
22.2 The initial term of this Agreement shall be two (2) years (the
"Term") which shall commence on the Effective Date. Absent the receipt
by one Party of written notice from the other Party at least sixty
(60) days prior to the expiration of the Term to the effect that such
Party does not intend to extend the Term of this Agreement, this
Agreement shall automatically renew and remain in full force and
effect on and after the expiration of the Term until terminated by
either Party pursuant to Section 22.3, below.
22.3 Either Party may terminate this Agreement in the event that the
other Party fails to perform a material obligation that disrupts the
operation of either Party's network and/or End User service and fails
to cure such material nonperformance within forty-five (45) days after
written notice thereof.
22.4 If pursuant to Section 22.2, above, this Agreement continues in
full force and effect after the expiration of the Term, either Party
may terminate this Agreement ninety (90) days after delivering written
notice to the other Party of its intention to terminate this
Agreement, subject to Section 22.5, below. Neither Party shall have
any liability to the other Party for termination of this Agreement
pursuant to this Section 22.4 other than its obligations under Section
22.5, below.
22.5 Upon termination or expiration of this Agreement in accordance
with this Section 22, above:
(a) each Party shall comply immediately with its obligations set
forth in Section 30.6, below; and
(b) each Party shall promptly pay all amounts (including any late
payment charges) owed under this Agreement; and
(c) each Party 's indemnification obligations shall survive.
22.6 If upon expiration or termination the Parties are negotiating a
successor agreement, during such period each Party shall continue to
perform its obligations and provide the services described herein that
are to be included in the successor agreement until such time as the
latter agreement becomes effective; provided however, that if the
Parties are unable to reach agreement
GENERAL AND CONDITIONS
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within six (6) months after termination or expiration of this
Agreement, either Party has the right to submit this matter to the
Commission for resolution. Until a survivor agreement is reached or
the Commission resolves the matter, whichever is sooner, the terms,
conditions, rates, and charges stated herein will continue to apply,
subject to a true-up based on the successor agreement, if any. Each
Party agrees that it will negotiate in good faith concerning a
successor agreement to this Agreement, upon request of the other
Party, commencing nine months before the end of the initial term.
22.7 No remedy set forth in this Agreement is intended to be exclusive and
each and every remedy shall be cumulative and in addition to any other
rights or remedies now or hereafter existing under applicable law or
otherwise.
23. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
--------------------------------------------
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR
RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES,
FUNCTIONS AND PRODUCTS IT PROVIDES UNDER OR CONTEMPLATED BY THIS AGREEMENT
AND THE PARTIES DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY OR OF
FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY, NEITHER PACIFIC NOR CLEC
ASSUMES RESPONSIBILITY WITH REGARD TO THE CORRECTNESS OF DATA OR
INFORMATION SUPPLIED BY THE OTHER WHEN THIS DATA OR INFORMATION IS ACCESSED
AND USED BY A THIRD PARTY.
24. CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION
-------------------------------------------------------------
Each Party will abide by applicable state or federal laws and regulations
in obtaining End User authorization prior to changing End User's local
service provider to itself and in assuming responsibility for any
applicable charges as specified in Section 258(b) of the Telecommunications
Act of 1996. CLEC shall make authorization available to PACIFIC upon
request and at no charge. Only an End User can initiate a challenge to a
change in its local exchange service provider. If an End User notifies
PACIFIC or CLEC that the End User requests local exchange service, the
Party receiving such request shall be free to immediately provide service
to such End User. When an End User changes or withdraws authorization, each
Party shall release customer-specific facilities in accordance with the End
User's direction or the End User's authorized agent. Further, when an End
User abandons the premise, PACIFIC is free to reclaim the unbundled network
element facilities for use by another customer and is free to issue service
orders required to reclaim such facilities.
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25. SEVERABILITY
------------
25.1 The Parties negotiated the services, arrangements, Interconnection,
terms and conditions of this Agreement as a total arrangement and it
is intended to be nonseverable, subject only to Section 30.16 of this
Agreement.
25.2 In the event the Commission, the FCC, or a court rejects any portion
or determines that any provision of this Agreement is contrary to law,
or is invalid or unenforceable for any reason, the Parties shall
continue to be bound by the terms of this Agreement, insofar as
possible, except for the portion rejected or determined to be
unlawful, invalid, or unenforceable. In such event, the Parties shall
negotiate in good faith to replace the rejected, unlawful, invalid, or
unenforceable provision and shall not discontinue service to the other
Party during such period if to do so would disrupt existing service
being provided to an End User. Nothing in this Agreement shall be
construed as requiring or permitting either Party to contravene any
mandatory requirement of federal or state law, or any regulations or
orders adopted pursuant to such law.
26. INTELLECTUAL PROPERTY
---------------------
CLEC as the provider of the Unbundled Network Elements will provide all
features, functions, and capabilities of the individual elements. PACIFIC
will provide a list of all vendors/licensers applicable to the subject
Unbundled Network Element(s) (which vendors have provided PACIFIC a
software license) within seven (7) days of a request for such a list by
CLEC. PACIFIC agrees to use its best efforts to facilitate the obtaining
of any necessary license or right to use agreement. PACIFIC makes no
warranties, express or implied, concerning CLEC's (or any third party's)
rights with the respect to use of intellectual property (including without
limitation, patent, copyright, and trade secret rights). PACIFIC reserves
the right to amend the Intellectual Property provision of this Agreement to
reflect the FCC ruling (and any appeal therefrom) in CC Docket No. 96-98
(File No. CCBPol 97-4), In the Matter of Petition of MCI for Declaratory
------------------------------------------------
Ruling.
-------
27. INDEMNIFICATION
---------------
27.1 Except as otherwise provided herein or in specific appendices, each
Party shall be responsible only for service(s) and facility(ies) which
are provided by that Party, its authorized agents, subcontractors, or
others retained by such parties, and neither Party shall bear any
responsibility for the service(s) and facility(ies) provided by the
other Party, its agents, subcontractors, or others retained by such
parties.
27.2 Except as otherwise provided herein or in specific appendices, and to
the extent not prohibited by law and not otherwise controlled by
tariff, each Party (the "Indemnifying Party") shall defend and
indemnify the other Party (the
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"Indemnified Party") and hold such Indemnified Party harmless against
any loss to a third party arising out of the negligence or willful
misconduct by such Indemnifying Party, its agents, its End User,
contractors, or others retained by such parties, in connection with
the indemnifying provision of services or functions under this
Agreement.
27.3 In the case of any loss alleged or made by an End User of either
Party, the Party whose End User alleged or made such loss
("Indemnifying Party") shall defend and indemnify the other Party
("Indemnified Party") against any and all such claims or loss by its
End Users regardless of whether the underlying service was provided or
unbundled element was provisioned by the Indemnified Party, unless the
loss was caused by the gross negligence or intentional misconduct of
the other ("Indemnified") Party.
27.4 CLEC agrees to indemnify, defend and hold PACIFIC harmless from any
loss arising out of PACIFIC's provision of 911 services to CLEC or out
of CLEC's End Users' use of the 911 service, whether suffered, made,
instituted, or asserted by CLEC or its End Users, including for any
personal injury or death of any person or persons, except for loss
which is the direct result of PACIFIC'S own negligence or willful
misconduct.
27.5 PACIFIC shall not be liable for damages to an End User's premises
resulting from the furnishing of unbundled elements, including the
installation and removal of equipment and associated wiring, unless
the damage is caused by PACIFIC's negligence or willful misconduct.
PACIFIC does not guarantee or make any warranty with respect to
unbundled elements when used in an explosive atmosphere.
27.6 Each Party shall be indemnified, defended and held harmless by the
other Party against any loss arising from a Party's use of services or
elements provided under this Agreement involving:
(a) tort claims, including claims for libel;
(b) slander;
(c) invasion of privacy; or
(d) infringement of copyright arising from a Party's own
communications or the communications of its End Users.
This includes, but is not limited to, suits arising from disclosure of
any customer-specific information associated with either the
originating or terminating numbers
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used to provision unbundled elements provided hereunder or all other
claims arising out of any act or omission of the End User in the
course of using services or functions provided pursuant to this
Agreement.
27.7 The Indemnifying Party agrees to defend any suit brought against the
Indemnified Party for any loss identified in this Section or specific
appendices. The Indemnified Party agrees to notify the Indemnifying
Party promptly in writing of any written claims, lawsuits or demands
for which the Indemnifying Party may be responsible under this
Agreement. The Indemnified Party shall cooperate in every reasonable
way to facilitate defense or settlement. The Indemnifying Party shall
have the right to control and conduct the defense and settlement of
any action or claim subject to the consultation of the Indemnified
Party. The Indemnifying Party shall not be responsible for any
settlement unless the Indemnifying Party approved such settlement in
advance and agrees to be bound by the settlement agreement.
27.8 CLEC acknowledges that its right under this contract to interconnect
with PACIFIC's network and to unbundle and/or combine PACIFIC's
network elements (including combining with CLEC's network elements)
may be subject to or limited by intellectual property (including,
without limitation, patent, copyright, and trade secret rights) and
contract rights of third parties. It is the sole obligation of CLEC to
obtain any consents, authorizations, or licenses under intellectual
property or proprietary rights held by third parties that may be
necessary for its use of PACIFIC network facilities under this
Agreement. PACIFIC hereby conveys no licenses to use such intellectual
property rights and makes no warranties, express or implied,
concerning CLEC's (or any third party's) rights with respect to such
intellectual property and contract rights, including, without
limitation, whether such rights will be violated by such
interconnection or unbundling and/or combining of elements (including
combining with CLEC's network elements) in PACIFIC's network. PACIFIC
does not and shall not indemnify or defend, nor be responsible for
indemnifying or defending CLEC for any liability losses, claims,
costs, damages, demand, penalties, or other expenses arising out of,
caused by, or relating to CLEC's interconnection with PACIFIC's
network and unbundling and/or combining PACIFIC's network elements
(including combining with CLEC's network elements).
27.9 CLEC agrees to indemnify and hold PACIFIC harmless from and against
all liability, losses, claims, costs, damages, demand, penalties, or
other expenses, including but not limited to costs of litigation and
reasonable attorneys fees, arising out of, caused by, or relating to
any real or potential claim, demand, or action that CLEC's
interconnection with PACIFIC's network, or CLEC's use of services or
functions offered hereunder, or unbundling and/or combining of
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PACIFIC's network elements (including combining with CLEC's network
elements) violates or infringes upon any intellectual property rights
of any third party or constitutes a breach of contract. CLEC shall
notify PACIFIC in writing within ten (10) days after CLEC receives
notification of any claim or suit subject to this provision. PACIFIC
shall undertake and control the defense and settlement of any such
claim or suit and CLEC shall cooperate fully with PACIFIC in
connection herewith. In no event shall PACIFIC be liable for any
consequential damages or loss of profits which CLEC may suffer
arising out of same.
27.10 CLEC shall reimburse PACIFIC for damages to PACIFIC facilities
utilized to provide unbundled elements hereunder caused by the
negligence or willful act of CLEC or resulting from CLEC's improper
use of PACIFIC facilities, or due to malfunction of any facilities or
equipment provided by other than PACIFIC. Nothing in the foregoing
provision shall be interpreted to hold one CLEC liable for another
local service provider or End User's actions. Upon reimbursement for
damages, PACIFIC will cooperate with CLEC in prosecuting a claim
against the person causing such damage. CLEC shall be subrogated to
the right of recovery by PACIFIC for the damages to the extent of
such payment.
28. LIMITATION OF LIABILITY
-----------------------
28.1 Except for indemnity obligations under this Agreement, or except as
otherwise provided in specific appendices, each Party's liability to
the other Party for any loss relating to or arising out of any
negligent act or omission in its performance under this Agreement,
whether in contract or tort, shall not exceed in total the amount
PACIFIC or CLEC has to or would have charged the other Party for the
affected service(s) or function(s) which were not performed or were
otherwise improperly performed.
28.2 Except for losses alleged or made by an End User of either Party, or
except as otherwise provided in specific appendices, in the case of
any loss alleged or made by a third party arising under the
negligence or willful misconduct of both Parties, each Party shall
bear, and its obligation under this section shall be limited to, that
portion (as mutually agreed to by the Parties) of the resulting
expense caused by its own negligence or willful misconduct or that of
its agents, servants, contractors, or others acting in aid or concert
with it.
28.3 In no event shall either Party have any liability whatsoever to the
other Party for any indirect, special, consequential, incidental, or
punitive damages, including but not limited to, loss of anticipated
profits or revenue or other economic loss in connection with or
arising from anything said, omitted, or done hereunder (collectively,
"Consequential Damages"), even if the other Party has been advised
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of the possibility of such damages; provided that the foregoing shall
not limit a Party's obligation under this Agreement to indemnify,
defend, and hold the other Party harmless against any amounts payable
to a third party, including any losses, costs, fines, penalties,
criminal or civil judgments or settlements, expenses (including
attorney's fees) and Consequential Damages of such third party.
29. REGULATORY APPROVAL
-------------------
29.1 The Parties understand and agree that this Agreement will be filed
with the Commission and may thereafter be filed with the FCC. The
Parties believe in good faith and agree that the terms in this
Agreement, to which they have agreed (i.e. excluding arbitrated
provisions) are not inconsistent with the specifically mentioned
sections of the Act and are in the public interest. Each Party
covenants and agrees to fully support approval of this Agreement by
the Commission or the FCC under Section 252 of the Act without
modification.
30. MISCELLANEOUS
-------------
30.1 Authorization
-------------
30.1.1 PACIFIC is a corporation duly organized, validly existing and
in good standing under the laws of the State of California and
has full power and authority to execute and deliver this
Agreement and to perform the obligations hereunder.
30.1.2 CLEC is a corporation duly organized, validly existing and in
good standing under the laws of the State of California and
has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.
30.2 Compliance and Certification
----------------------------
30.2.1 Each Party shall comply with all federal, state, and local
laws, rules, and regulations applicable to its performance
under this Agreement.
30.2.2 Each Party warrants that it has obtained all necessary state
certification required in those states in which it has ordered
services from the other Party pursuant to this Agreement. Upon
request by any state governmental entity, each Party shall
provide proof of certification.
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30.2.3 Each Party represents and warrants that any equipment, facilities
or services provided to the other Party under this Agreement comply
with the Communications Law Enforcement Act ("CALEA"). Each Party
shall indemnify and hold the other Party harmless from any and all
penalties imposed upon the other Party for such noncompliance and
shall at the non-compliant Party's sole cost and expense, modify or
replace any equipment, facilities or services provided to the other
Party under this Agreement to ensure that such equipment, facilities
and services fully comply with CALEA.
30.3 Law Enforcement
---------------
PACIFIC and CLEC shall handle law enforcement requests as follows:
(a) Intercept Devices:
-----------------
Local and federal law enforcement agencies periodically request
information or assistance from local telephone service providers.
When either Party receives a request associated with an End User
of the other Party, it shall refer such request to the Party that
serves such End User, unless the request directs the receiving
Party to attach a pen register, trap-and-trace or form of
intercept on the Party's facilities, in which case that Party
shall comply with any valid request.
(b) Subpoenas:
---------
If a Party receives a subpoena for information concerning an End
User the Party knows to be an End User of the other Party, it
shall refer the subpoena to the requesting party with an
indication that the other Party is the responsible company,
unless the subpoena requests records for a period of time during
which the Party was the End User's service provider, in which
case the Party will respond to any valid request.
(c) Emergencies:
-----------
If a Party receives a request from a law enforcement agency for
temporary number change, temporary disconnect, or one-way denial
of outbound calls for an End User of the other Party by the
receiving Party's switch, that Party will comply with a valid
emergency request. However, neither Party shall be held liable
for any claims or damages arising from compliance with such
requests on behalf of the other Party's End User and the Party
serving such End User agrees to indemnify and hold the other
Party harmless against any and all such claims.
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30.4 Independent Contractor
----------------------
Each Party and each Party's contractor shall be solely responsible for
the withholding or payment of all applicable federal, state and local
income taxes, social security taxes and other payroll taxes with
respect to its employees, as well as any taxes, contributions or other
obligations imposed by applicable state unemployment or workers'
compensation acts. Each Party has sole authority and responsibility to
hire, fire and otherwise control its employees.
30.5 Force Majeure
-------------
Neither Party shall be liable for any delay or failure in performance
of any part of this Agreement from any cause beyond its control and
without its fault or negligence including, without limitation, acts of
nature, acts of civil or military authority, government regulations,
embargoes, epidemics, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, work stoppages,
equipment failure, cable cuts, power blackouts, volcanic action, other
major environmental disturbances, unusually severe weather conditions,
inability to secure products or services of other persons or
transportation facilities or acts or omissions of transportation
carriers In such event, the Party affected shall, upon giving prompt
notice to the other Party, be excused from such performance on a day-
to-day basis to the extent of such interference (and the other Party
shall likewise be excused from performance of its obligations on a
day-for-day basis to the extent such Party's obligations related to
the performance so interfered with). The affected Party shall use its
best efforts to avoid or remove the cause of nonperformance and both
Parties shall proceed to perform with dispatch once the causes are
removed or cease.
30.6 Confidentiality
---------------
30.6.1 All information, including but not limited to specifications,
microfilm, photocopies, magnetic disks, magnetic tapes,
drawings, sketches, models, samples, tools, technical
information, data, employee records, maps, financial reports,
and market data:
(a) furnished by one Party (the "Disclosing Party") to the
other Party (the "Receiving Party") dealing with
customer-specific, facility-specific, or usage-specific
information, other than customer information communicated
for the purpose of publication or directory database
inclusion, 911, call processing, billing or settlement or
as otherwise mutually agreed upon; or
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(b) in written, graphic, electromagnetic, or other tangible
form and marked at the time of delivery as "Confidential"
or "Proprietary;"; or
(c) communicated orally and declared to the Receiving Party at
the time of delivery, or by written notice given to the
Receiving Party within ten (10) days after declaration to
be "Confidential" or "Proprietary" (collectively referred
to as "Proprietary Information"), shall remain the
property of the Disclosing Party.
30.6.2 Upon request by the Disclosing Party, the Receiving Party shall
return all tangible copies of Proprietary Information, whether
written, graphic, or otherwise. In the event of the expiration
or termination of this Agreement for any reason whatsoever,
each Party shall return to the other Party or destroy all
Proprietary Information and other documents, work papers and
other material (including all copies thereof) obtained from the
other Party in connection with this Agreement.
30.6.3 Each Party shall keep all the other Party's Proprietary
Information confidential in the same manner in which it keeps
its own Proprietary Information confidential, and shall use the
other Party's Proprietary Information only for performing the
covenants contained in the Agreement and shall disclose such
Proprietary Information only to those employees, contractors,
agents or Affiliates who have a need to know. Neither Party
shall use the other Party's Proprietary Information for any
other purpose except upon such terms and conditions as may be
agreed upon between the Parties in writing.
30.6.4 Unless otherwise agreed, the obligations of confidentiality and
nonuse set forth in the Agreement do not apply to such
Proprietary Information that:
(a) was at the time of receipt, already known to the Receiving
Party, free of any obligation to keep confidential and
evidenced by written records prepared prior to delivery by
the Disclosing Party;
(b) is, or becomes publicly known through no wrongful act of
the receiving Party;
(c) is rightfully received from a third person having no
direct or indirect secrecy or confidentiality obligation
to the Disclosing Party with respect to such information;
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(d) is independently developed by an employee, agent, or
contractor of the Receiving Party which individual is not
involved in any manner with the provision of services
pursuant to the Agreement and does not have any direct or
indirect access to the Proprietary Information;
(e) is disclosed to a third person by the Disclosing Party
without similar restrictions on such third person's
rights;
(f) is approved for release by written authorization of the
Disclosing Party;
(g) is required to be made public by the Receiving Party
pursuant to applicable law or regulation provided that the
Receiving Party shall provide the Disclosing Party with
written notice of such requirement as soon as possible and
prior to such disclosure. The Disclosing Party may then
either seek appropriate protective relief from all or part
of such requirement or, if it fails to successfully do so,
it shall be deemed to have waived the Receiving Party's
compliance with Section 30.6 with respect to all or part
of such requirement. The Receiving Party shall use all
commercially reasonable efforts to cooperate with the
Disclosing Party in attempting to obtain any protective
relief which such Disclosing Party chooses to obtain.
Notwithstanding the foregoing, PACIFIC shall be entitled
to disclose confidential information on a confidential
basis to regulatory agencies upon request for information
as to PACIFIC's activities under the Act.
30.6.5 Notwithstanding any other provision of this Agreement, the
Proprietary Information provisions of this Agreement shall
apply to all information furnished by either Party to the other
in furtherance of the purpose of this Agreement, even if
furnished before the date of this Agreement.
30.6.6 Pursuant to Section 222(b) of the Act, both Parties agree to
limit their use of Proprietary Information received from the
other to the permitted purposed identified in the Act.
30.7 Governing Law
-------------
For all claims under this Agreement that are based upon issues within
the jurisdiction (primary or otherwise) of the FCC, the exclusive
jurisdiction and remedy for all such claims shall be as provided for
by the FCC and the Act. For all claims under this Agreement that are
based upon issues within the jurisdiction
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(primary or otherwise) of the Commission, the exclusive jurisdiction
for all such claims shall be with such Commission, and the exclusive
remedy for such claims shall be as provided for by such Commission. In
all other respects, this Agreement shall be governed by the domestic
laws of the State of California without reference to conflict of law
provisions.
30.8 Taxes
-----
30.8.1 Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local
sales, use, excise, gross receipts, transaction or similar
taxes, fees, or surcharges (hereinafter "Tax") imposed on or
with respect to the services provided by or to such Party,
except for any Tax on either Party's corporate existence,
status, or income. Whenever possible, these amounts shall be
billed as a separate item on the invoice. To the extent a sale
is claimed to be for resale tax exemption, the purchasing
Party shall furnish the providing Party a proper resale tax
exemption certificate as authorized or required by statute or
regulation by the jurisdiction providing said resale tax
exemption. Failure to timely provide said resale tax exemption
certificate will result in no exemption being available to the
purchasing Party until such time as the purchasing Party
presents a valid certificate.
30.8.2 With respect to any purchase of services, facilities or other
arrangements, if any Tax is required or permitted by
applicable law to be collected from the purchasing Party by
the providing Party, then:
(a) the providing Party shall xxxx the purchasing Party for
such Tax;
(b) the purchasing Party shall remit such Tax to the
providing Party; and
(c) the providing Party shall remit such collected Tax to the
applicable taxing authority.
30.8.3 With respect to any purchase hereunder of services, facilities
or arrangements that are resold to a third party, if any Tax
is imposed by applicable law on the End User in connection
with any such purchase, then:
(a) the purchasing Party shall be required to impose and/or
collect such Tax from the End User; and
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(b) the purchasing Party shall remit such Tax to the applicable
taxing authority.
The purchasing Party agrees to indemnify and hold harmless the
providing Party on an after-tax basis for any costs incurred by
the providing Party as a result of actions taken by the
applicable taxing authority to collect the Tax from the
providing Party due to the failure of the purchasing Party to
pay or collect and remit such tax to such authority.
30.8.4 If the providing Party fails to collect any Tax as required
herein, then, as between the providing Party and the purchasing
Party:
(a) the purchasing Party shall remain liable for such
uncollected Tax; and
(b) the providing Party shall be liable for any penalty and
interest assessed with respect to such uncollected Tax by
such authority.
However, if the purchasing Party fails to pay any taxes
properly billed, then, as between the providing Party and the
purchasing Party, the purchasing Party will be solely
responsible for payment of the taxes, penalty and interest.
30.8.5 If the purchasing Party fails to impose and/or collect any Tax
from End Users as required herein, then, as between the
providing Party and the purchasing Party, the purchasing Party
shall remain liable for such uncollected Tax and any interest
and penalty assessed thereon with respect to the uncollected
Tax by the applicable taxing authority. With respect to any Tax
that the purchasing Party has agreed to pay or impose on and/or
collect from End Users, the purchasing Party agrees to
indemnify and hold harmless the providing Party on an after-tax
basis for any costs incurred by the providing Party as a result
of actions taken by the applicable taxing authority to collect
the Tax from the providing Party due to the failure of the
purchasing Party to pay or collect and remit such Tax to such
authority.
30.9 Non-Assignment
--------------
Each Party covenants that, if it sells or otherwise transfers to a
third party its Telephone Exchange and Switched Access network
facilities within any territory within which PACIFIC is an Incumbent
Local Exchange Carrier ("PACIFIC's Territory")as of the date of this
Agreement, or any portion thereof, to a third party, it will require
as a condition of such transfer that the transferee agree to be
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bound by this Agreement with respect to services provided over the
transferred facilities. Except as provided in this paragraph,
neither Party may assign or transfer (whether by operation of law
or otherwise) this Agreement (or any rights or obligations
hereunder) to a third party without the prior written consent of
the other Party; provided that each Party may assign this
Agreement to a corporate Affiliate or an entity under its common
control or an entity acquiring all or substantially all of its
assets or equity by providing prompt written notice to the other
Party of such assignment or transfer. Any attempted assignment or
transfer that is not permitted is void ab initio. Without limiting
the generality of the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the Parties' respective
successors and assigns.
30.10 Non-Waiver
----------
Failure of either Party to insist on performance of any term or
condition of this Agreement or to exercise any right or privilege
hereunder shall not be construed as a continuing or future waiver
of such term, condition, right or privilege.
30.11 Audits
------
Each Party to this Agreement will be responsible for the accuracy
and quality of its data as submitted to the respective Parties
involved.
30.11.1 Upon reasonable written notice and at its own expense,
each Party or its authorized representative (providing
such authorized representative does not have a conflict
of interest related to other matters before one of the
Parties) shall have the right to conduct an audit of the
other Party to give assurances of compliance with the
provisions of this Agreement; provided, that neither
Party may request more than two (2) such audits within
any twelve (12) month period. This includes on-site
audits at the other Party's or the Party's vendor
locations. Each Party, whether or not in connection with
an audit, shall maintain reasonable records for a minimum
of twenty-four (24) months and provide the other Party
with reasonable access to such information as is
necessary to determine amounts receivable or payable
under this Agreement. Each Party's right to access
information for audit purposes is limited to data not in
excess of twenty-four (24) months in age.
30.12 Disputed Amounts
----------------
30.12.1 Any undisputed amounts not paid when due shall accrue interest
from the date such amounts were due at the lesser of:
(a) one and one-half percent (1-1/2%) per month; or
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(b) the highest rate of interest that may be charged
under applicable law.
30.13 DISPUTE RESOLUTION.
------------------
30.13.1 Alternative to Litigation. Except as provided under Section 252
-------------------------
of the Act with respect to the approval of this Agreement by the
Commission, the Parties desire to resolve disputes arising out
of or relating to this Agreement without litigation.
Accordingly, except for action seeking a temporary restraining
order or an injunction related to the purposes of this
Agreement, or suit to compel compliance with this dispute
resolution process, the Parties agree to use the following
alternative dispute resolution procedures as their sole remedy
with respect to any controversy or claim arising out of or
relating to this Agreement or its breach.
30.13.2 Negotiations. At the written request of a Party, each Party will
------------
appoint a knowledgeable, responsible representative to meet and
negotiate in good faith to resolve any dispute arising out of or
relating to this Agreement. The Parties intend that these
negotiations be conducted by non-lawyer, business
representatives. The location, format, frequency, duration, and
conclusion of these discussions shall be left to the discretion
of the representatives. Upon agreement, the representatives may
utilize other alternative dispute resolution procedures such as
mediation to assist in the negotiations. Discussions and
correspondence among the representatives for purposes of these
negotiations shall be treated as Confidential Information
developed for purposes of settlement, exempt from discovery, and
shall not be admissible in the arbitration described below or in
any lawsuit without the concurrence of all Parties. Documents
identified in or provided with such communications, which are
not prepared for purposes of the negotiations, are not so
exempted and may, if otherwise discoverable, be discovered or
otherwise admissible, be admitted in evidence, in the
arbitration or lawsuit.
30.13.3 Arbitration. If the negotiations do not resolve the dispute
-----------
within sixty (60) business days of the initial written request,
the dispute shall be submitted to binding arbitration by a
single arbitrator pursuant to the Commercial Arbitration Rules
of the American Arbitration Association ("AAA") then in effect
except that the Parties may select an arbitrator outside AAA
rules upon mutual agreement. A Party may demand such arbitration
in accordance with the procedures set out in those rules. The
Parties shall mutually agree upon a discovery plan including the
type and number of interrogatories and depositions allowed. If
unable to agree on the discovery plan the Parties will ask the
arbitrator to issue an arbitration plan consistent with the AAA
rules. The arbitration hearing shall be commenced within sixty
(60) business days of the
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demand for arbitration. The arbitration shall be held in a
mutually agreeable city. The arbitrator shall control the
scheduling so as to process the matter expeditiously. The
Parties may submit written briefs. The arbitrator shall rule on
the dispute by issuing a written opinion within thirty (30)
business days after the close of hearings. The times specified
in this section may be extended upon mutual agreement of the
Parties or by the arbitrator upon a showing of good cause.
Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
30.13.4 Expedited Arbitration Procedures. If the issue to be resolved
--------------------------------
through the negotiations referenced in Sections 30.13.2 and
30.13.3 directly and materially affects service to either
Party's End Users, then the period of resolution of the dispute
through negotiations before the dispute is to be submitted to
binding arbitration shall be five (5) business days. Once such a
service affecting dispute is submitted to arbitration, the
arbitration shall be conducted pursuant to the expedited
procedures rules of the Commercial Arbitration Rules of the AAA
(i.e., rules 53 through 57) then in effect.
30.13.5 Costs. Each Party shall bear its own costs of these procedures.
-----
A Party seeking discovery shall reimburse the responding Party
the costs of production of documents (including search time and
reproduction costs). The Parties shall equally split the fees of
the arbitration and the arbitrator.
30.13.6 Continuous Service. The Parties shall continue providing
------------------
services to each other during the pendency of any dispute
resolution procedure, and each Party shall continue to perform
its obligations (including making payments in accordance with
this Agreement).
30.13.7 No Conflict
-----------
30.13.7.1 The Dispute Resolution procedures set forth in this
Agreement are not intended to conflict with
applicable requirements of the Act or the state
commission with regard to procedures for the
resolution of disputes arising out of this Agreement.
In the event of any such conflict, the requirements
of the Act or the Commission shall control.
30.14 Notices
-------
Any notice to a Party required or permitted under this Agreement
shall be in writing and shall be deemed to have been received on
the date of service if served personally; on the date receipt is
acknowledged in writing by the recipient if
GENERAL TERMS AND CONDITIONS
PAGE 40 OF 48
PACIFIC/PAC-WSET TELECOM
022499
delivered by regular mail; or on the date stated on the receipt if
delivered by certified or registered mail or by a courier service that
obtains a written receipt. Notice may also be provided by facsimile,
which shall be effective on the next Business Day following the date
of transmission as reflected in the facsimile confirmation sheet.
"Business Day" shall mean Monday through Friday, PACIFIC/CLEC holidays
excepted. Any notice shall be delivered using one of the alternatives
mentioned in this section and shall be directed to the applicable
address indicated below or such address as the Party to be notified
has designated by giving notice in compliance with this section.
====================================================================
NOTICE CONTACT CLEC CONTACT PACIFIC CONTACT
--------------------------------------------------------------------
NAME/TITLE Xxxx Xxxxxxx Xxxxx Xxxxxxx - Director
--------------------------------------------------------------------
STREET ADDRESS 0000 Xxxxxxxx Xxx. 000 Xxxxx Xx., Xxxx 000
--------------------------------------------------------------------
CITY, STATE, ZIP CODE Xxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
--------------------------------------------------------------------
TELEPHONE NUMBER 000 000-0000 000 000-0000
--------------------------------------------------------------------
FAX NUMBER 209 926-4272 415 543-2516
--------------------------------------------------------------------
30.15 Publicity and Use of Trademarks or Service Marks
------------------------------------------------
30.15.1 The Parties agree not to use in any advertising or sales
promotion, press releases, or other publicity matters any
endorsements, direct or indirect quotes, or pictures
implying endorsement by the other Party or any of its
employees without such Party's prior written approval. The
Parties will submit to each other for written approval,
prior to publication, all publicity matters that mention or
display one another's name and/or marks or contain language
from which a connection to said name and/or marks may be
inferred or implied; the Party to whom a request is directed
shall respond promptly. Nothing herein, however, shall be
construed as preventing either Party from publicly stating
the fact that it has executed this Agreement with the other
Party.
30.15.2 Nothing in this Agreement shall grant, suggest, or imply any
authority for one Party to use the name, trademarks, service
marks, or trade names of the other for commercial purposes
without prior written approval.
30.16 Section 252(i) Obligations
--------------------------
If Pacific enters into an agreement (the "Other Agreement") approved
by the Commission or FCC pursuant to Section 252 of the Act
(regardless of whether the approved agreement was negotiated or
arbitrated) which provides for the provision of any individual
interconnection, service, or network element arrangement covered in
this Agreement to another requesting
GENERAL TERMS AND CONDITIONS
PAGE 41 OF 48
PACIFIC/PAC-WSET TELECOM
022499
Telecommunications Carrier, including an Affiliate, Pacific shall
make available to CLEC such individual interconnection, service, or
network element arrangement upon the terms and conditions provided
in the Other Agreement which are legitimately related to the
purchase of the individual element being sought. CLEC shall notify
Pacific in writing of the terms and conditions which it desires to
incorporate into this Agreement, and Pacific shall submit the
request by advice letter to the Commission for approval within 30
days after such notice from CLEC. At its sole option, CLEC may also
avail itself of the Other Agreement in its entirety. Nothing in this
Section 30.16 is intended to or shall be construed to restrict in
any manner any Party's rights pursuant to Section 252 of the Act or
any regulations adopted thereunder.
30.17 Joint Work Product
------------------
This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be
fairly interpreted in accordance with its terms and, in the event of
any ambiguities, no inferences shall be drawn against either Party.
30.18 Intervening Law
---------------
This Agreement is entered into as a result of both private
negotiation between the Parties and the incorporation of the results
of arbitration by the California Public Utilities Commission. If the
actions of the State of California or federal legislative bodies,
courts, or regulatory agencies of competent jurisdiction, including
but not limited to the United States Supreme Court's decision in
AT&T Corp. v. Iowa Utilities Bd., 1999 WL 24568 (U.S.), and any
---------------------------------
remand thereof, invalidate, modify, or stay the enforcement of laws
or regulations that were the basis for a provision of this
Agreement, the affected provision shall be invalidated, modified, or
stayed, consistent with the action of the legislative body, court,
or regulatory agency. In such event, the Parties shall expend
diligent efforts to arrive at an agreement respecting the
modifications to the Agreement. If negotiations fail, disputes
between the Parties concerning the interpretation of the actions
required or provisions affected by such governmental actions shall
be resolved pursuant to the dispute resolution process provided for
in this Agreement.
The Parties further acknowledge and agree that by executing this
Agreement, neither Party waives any of its rights, remedies, or
arguments with respect to AT&T Corp. v. Iowa Utilities Bd., 1999 WL
---------------------------------
24568 (U.S.), or the outcome of any remand thereof including its
rights under this paragraph. Finally, whenever
GENERAL TERMS AND CONDITIONS
PAGE 42 OF 48
PACIFIC/PAC-WSET TELECOM
022499
a tariffed rates is cited or quoted, it is understood that said cite
incorporates any changes to said tariffs as required by the
Telecommunications Act of 1996.
30.19 No Third Party Beneficiaries; Disclaimer of Agency
--------------------------------------------------
This Agreement is for the sole benefit of the Parties and their permitted
assigns, and nothing herein express or implied shall create or be
construed to create any third-party beneficiary rights hereunder. Except
for provisions herein expressly authorizing a Party to act for another,
nothing in this Agreement shall constitute a Party as a legal
representative or agent of the other Party, nor shall a Party have the
right or authority to assume, create or incur any liability or any
obligation of any kind, express or implied, against or in the name or on
behalf of the other Party unless otherwise expressly permitted by such
other Party. Except as otherwise expressly provided in this Agreement, no
Party undertakes to perform any obligation of the other Party, whether
regulatory or contractual, or to assume any responsibility for the
management of the other Party's business.
30.20 No License
----------
No license under patents, copyrights or any other intellectual property
right (other than the limited license to use consistent with the terms,
conditions and restrictions of this Agreement) is granted by either Party
or shall be implied or arise by estoppel with respect to any transactions
contemplated under this Agreement.
30.21 Survival
--------
The Parties' obligations under this Agreement which by their nature are
intended to continue beyond the termination or expiration of this
Agreement shall survive the termination or expiration of this Agreement.
30.22 Scope of Agreement
------------------
This Agreement is intended to describe and enable specific
Interconnection and compensation arrangements between the Parties. This
Agreement does not obligate either Party to provide arrangements not
specifically provided herein.
30.23 Entire Agreement
----------------
The terms contained in this Agreement and any Schedules, Exhibits,
Appendices, tariffs and other documents or instruments referred to
herein, which are incorporated into this Agreement by this reference,
constitute the entire agreement between the Parties with respect to the
subject matter hereof, superseding all prior understandings, proposals
and other communications, oral or written. Neither Party shall be bound
by any preprinted terms additional to or different from those in this
Agreement that may appear subsequently in the other Party's form
documents, purchase orders, quotations, acknowledgments, invoices or
other
GENERAL TERMS AND CONDITIONS
PAGE 43 OF 48
PACIFIC/PAC-WSET TELECOM
022499
communications. This Agreement may only be modified in writing signed by an
officer of each Party.
PAC-WEST TELECOM Pacific Xxxx
By SBC Telecommunication, Inc.
Its authorized agent
Signature: /s/ Xxxxxxxx X. Xxxxxxx Signature: /s/ Xxxxx Xxxxxx
-------------------------- -----------------------------
Name: XXXXXXX X. XXXXXXX Name: Xxxxx Xxxxxx
------------------------------- ----------------------------------
(Print or Type) (Print or Type)
Title: PRESIDENT & CEO Title: President - Industry Markets
------------------------------
(Print or Type)
Date: June 29, 1999 Date: June 28, 1999
------------------------------- ---------------------------------
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
In the Matter of the Application of Pacific Xxxx )
(U-1001-C) for arbitration of an interconnection )
agreement with Pac-West Telecomm, Inc. ) Application 00-00-000
(U-5266-C) pursuant to Section 252(b) of the )
Telecommunications Act of 1996 )
____________________________________________________)
ERRATA TO APPROVED INTERCONNECTION AGREEMENT
Pac-West Telecomm, Inc. ("Pac-West") hereby submits the following corrected
pages to the Approved Interconnection Agreement between Pacific Xxxx and Pac-
West Telecomm, Inc., filed on June 29, 1999, pursuant to Ordering Paragraph 1 of
Decision 00-00-000 dated June 24, 1999, and an additional letter from counsel
for Pacific Xxxx to counsel for Pac-West as follows:
1. "Pac-West Telecom" on the title page has been corrected to "Pac-West
Telecomm, Inc."
2. "Pac-West Telecom, Inc." in the third line of the first paragraph on
page 1 of 48 of the General Terms and Conditions has been corrected to "Pac-West
Telecomm, Inc." Please note that the page headers throughout the document
include the identifier "Pacific/Pac-West Telecom." The header should state
"Pacific/Pac-West Telecomm." Since this language is not part of the text of the
Interconnection Agreement and in an effort to conserve resources, Pac-West is
merely noting this correction and not including separate errata pages.
3. A letter dated June 29, 1999 from Xxxxxx X. XxXxxxxx of Pacific Xxxx
to Xxxxx X. Xxxxx of Xxxxxxxx & Xxxxxxxx, counsel for Pac-West. This letter was
attached to the
copies of the Interconnection Agreement executed by Pacific Xxxx and delivered
to Pac-West for execution.
Counsel Pacific Xxxx has concurred in the contents of this Errata.
Respectfully submitted,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxx
Xxxx Xxx Xxxxx
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
(000) 000-0000 (telephone)
(000) 000-0000 (facsimile)
June 30, 1999
