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Redacted portions have been marked with asterisks (****). Confidential treatment
has been requested for the redacted portions. The confidential redacted portions
have been filed separately with the Securities and Exchange Commission.
EXHIBIT 10.10
CONFIDENTIAL TREATMENT
Proprietary and Confidential
MASTER ALLIANCE AGREEMENT
BETWEEN
SBC COMMUNICATIONS INC.
AND
XXXXXXXX COMMUNICATIONS, INC.
THIS MASTER ALLIANCE AGREEMENT (this "Agreement") between Xxxxxxxx
Communications, Inc. ("Xxxxxxxx"), a Delaware corporation, and SBC
Communications Inc., a Delaware corporation, ("SBC"), is effective February 8,
1999 ("Effective Date"). Xxxxxxxx and SBC are individually referred to, together
with their respective Affiliates, as a "Party" and collectively referred to as
the "Parties." Persons or entities that SBC or Xxxxxxxx Controls are referred to
as "Affiliates" of such Controlling Party. Unless the context specifically
requires otherwise, the use of "SBC" or "Xxxxxxxx" shall be deemed to include
the respective Affiliates of such Party.
RECITALS
WHEREAS, SBC directly or through its Affiliates provides intraLATA
telecommunications, exchange access, information access, network management,
networking services and network analysis in certain regions of the United
States;
WHEREAS, SBC directly or through its Affiliates is a regional provider of
business communications equipment and integration services for data, voice,
video and advanced applications;
WHEREAS, SBC has entered into an Agreement and Plan of Merger (the "Ameritech
Merger") with Ameritech Corporation ("Ameritech") under which SBC will, subject
to regulatory approvals, merge with Ameritech;
WHEREAS, SBC directly or through its Affiliates desires to offer its customers
global solutions for their voice, data, video and advanced application
communications needs, and, following the close of the Ameritech Merger, to
implement a plan to compete in the 50 top markets in the U.S. and in various key
markets outside the U.S.;
WHEREAS, Xxxxxxxx directly or through its Affiliates is a nationwide, single
source provider of business communications equipment and integration services
for data,
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voice, video and advanced applications on a retail basis and a provider of
network services for delivery of voice and data on a wholesale basis;
WHEREAS, Xxxxxxxx wishes to achieve additional geographic reach and economies of
scale that will enable Xxxxxxxx to lower its costs, increase its ability to
compete with established networks, and accelerate its construction program in
the wholesale market for voice and data network services;
WHEREAS, the capabilities of each Party are complementary, and the relationship
contemplated by this Agreement (the "Alliance") will serve to broaden the base
of potential competitive opportunities for network services and other
applications for all market segments;
WHEREAS, SBC directly or through its Affiliates intends to become a leading
global retail provider of differentiated data, voice, video, Internet, local
access and long distance products and services to national and multinational
business customers and to residential customers by means of the Ameritech merger
and by cooperatively building with Xxxxxxxx a world class supporting network
architecture and developing products and services which make use of this
network's infrastructure;
WHEREAS, through this joint Alliance undertaking, the Parties intend to
collaborate regarding their deployment of modern, high-speed, sophisticated
telecommunications capabilities through the cooperative deployment of facilities
as graphically described in Exhibit A hereto that will be designed to carry
voice and data on a nationwide and global basis and to facilitate SBC's ability
to implement its national/local strategy and assist Xxxxxxxx in deploying its
wholesale network;
WHEREAS, the Parties or their Affiliates are entering into a series of
additional agreements to implement the Alliance;
WHEREAS, the Parties are entering into this Master Alliance Agreement to set
forth general provisions concerning the Alliance; and
WHEREAS, the Parties intend that the activities of the Alliance shall be
conducted to ensure that the Parties comply in all respects with the
Telecommunications Act of 1996 (the "Act") and that SBC and its Affiliates
engage only in activities permitted by the Act.
NOW THEREFORE, in consideration of the mutual covenants herein contained, and
subject to SBC's and Xxxxxxxx' respective Affiliates' contractual obligations
with third parties and to any applicable federal or state laws or regulations,
SBC and Xxxxxxxx agree as follows:
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TABLE OF CONTENTS
1. TABLE OF DEFINED TERMS......................................................................................8
2. REGULATORY COMPLIANCE.......................................................................................9
3. RELATIONSHIP OF THE PARTIES.................................................................................9
3.1. ALLOCATION OF RESPONSIBILITIES...........................................................................9
3.2. OPERATIONS SUPPORT SYSTEMS..............................................................................10
3.3. PREFERRED PROVIDER......................................................................................11
3.4. PRICING OF PRODUCTS AND SERVICES........................................................................11
3.5. FUTURE SERVICES.........................................................................................12
3.6. INVESTMENT OBLIGATION...................................................................................13
3.7. USE OF FACILITIES.......................................................................................13
3.8. LOCAL ACCESS............................................................................................13
3.9. OWNERSHIP AND CONTROL...................................................................................13
4. GOVERNANCE.................................................................................................14
4.1. ALLIANCE MANAGEMENT.....................................................................................14
4.2. OFFICER REVIEW BOARD....................................................................................14
4.3. ALLIANCE COUNCIL........................................................................................15
4.4. COMMITTEES..............................................................................................15
4.5. REGULATORY REQUIREMENTS.................................................................................18
4.6. MEETINGS................................................................................................18
4.7. TIMING AND NOTICE.......................................................................................18
4.8. QUORUM..................................................................................................18
4.9. PARTICIPATION...........................................................................................18
4.10. UNANIMOUS VOTE..........................................................................................19
5. PROJECTS...................................................................................................19
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5.1. CLASSIFICATION AND SCOPE OF WORK........................................................................19
5.2. NO ARBITRATION..........................................................................................19
5.3. FURTHER COOPERATION.....................................................................................20
6. MANDATORY PROJECTS.........................................................................................20
6.1. DESIGNATION BY PROJECT SPONSOR..........................................................................20
6.2. COMPENSATION OF PROJECT EXECUTOR........................................................................20
6.3. EXCEPTIONS..............................................................................................21
6.4. INTELLECTUAL PROPERTY...................................................................................21
6.5. ACCOUNTING..............................................................................................21
7. ALLIANCE MANAGERS AND DEDICATED EMPLOYEES..................................................................21
7.1. ALLIANCE MANAGERS.......................................................................................21
7.2. DEDICATED EMPLOYEES.....................................................................................22
8. AUDIT RIGHTS...............................................................................................23
8.1. AUDIT...................................................................................................23
8.2. INITIATION..............................................................................................23
8.3. ENGAGEMENT OF AUDITOR...................................................................................23
8.4. COOPERATION.............................................................................................24
8.5. REPORT..................................................................................................24
8.6. COST....................................................................................................24
9. DISPUTE RESOLUTION.........................................................................................24
9.1. DISPUTES................................................................................................24
9.2. REFERRAL TO CEO.........................................................................................25
9.3. CONFIDENTIALITY OF NEGOTIATIONS.........................................................................25
9.4. ARBITRATION.............................................................................................25
9.5. ARBITRATORS.............................................................................................25
9.6. COSTS AND FEES..........................................................................................26
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9.7. BURDEN OF PROOF.........................................................................................26
9.8. AWARD...................................................................................................26
9.9. AGREEMENT CONTROLS......................................................................................26
10. CONFIDENTIAL INFORMATION...................................................................................26
10.1. GENERAL.................................................................................................26
10.2. OBLIGATION TO PROTECT PROPRIETARY INFORMATION...........................................................27
10.3. JUDICIAL OR ADMINISTRATIVE PROCEEDINGS..................................................................27
10.4. LOSS OR UNAUTHORIZED USE................................................................................27
10.5. PROPRIETARY INFORMATION EXCHANGE AGREEMENTS.............................................................27
10.6. NONDISCLOSURE AGREEMENTS................................................................................28
10.7. TERMINATION.............................................................................................28
10.8. IRREPARABLE INJURY BY DISCLOSURE TO COMPETITORS.........................................................28
10.9. SURVIVAL OF NONDISCLOSURE OBLIGATIONS...................................................................28
11. ADDITIONAL COVENANTS.......................................................................................28
11.1. INSURANCE...............................................................................................28
11.2. NO SOLICITATION.........................................................................................29
12. TERMINATION AND TRANSITION.................................................................................29
12.1. GENERAL.................................................................................................29
12.2. NEGOTIATIONS............................................................................................30
12.3. COMPENSATION............................................................................................31
12.4. USAGE RELATED TRANSITION COSTS..........................................................................32
12.5. APPLICATION TO ALL AGREEMENTS...........................................................................32
12.6. SECTION 271 AUTHORIZATION...............................................................................32
12.7. LONG DISTANCE TRANSPORT ASSETS..........................................................................33
12.8. REGULATORY FRUSTRATION..................................................................................33
13. REPRESENTATIONS AND WARRANTIES OF SBC......................................................................33
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13.1. ORGANIZATION, STANDING AND AUTHORITY....................................................................33
13.2. NO VIOLATION............................................................................................34
13.3. CONSENTS AND APPROVALS..................................................................................34
14. REPRESENTATIONS AND WARRANTIES OF XXXXXXXX.................................................................34
14.1. ORGANIZATION, STANDING AND AUTHORITY....................................................................34
14.2. NO VIOLATION............................................................................................35
14.3. CONSENTS AND APPROVALS..................................................................................35
15. GENERAL PROVISIONS.........................................................................................35
15.1. FURTHER AGREEMENTS......................................................................................35
15.2. ASSIGNMENT..............................................................................................35
15.3. TERMINATION OF MOU......................................................................................36
15.4. FORCE MAJEURE...........................................................................................36
15.5. THIRD PARTY WARRANTIES..................................................................................36
15.6. COSTS AND EXPENSES......................................................................................36
15.7. AMENDMENT...............................................................................................37
15.8. HEADINGS................................................................................................37
15.9. PUBLICITY...............................................................................................37
15.10. EXECUTION...............................................................................................37
15.11. TERM....................................................................................................37
15.12. LIMITATION OF LIABILITY.................................................................................37
15.13. RELATIONSHIP OF PARTIES.................................................................................38
15.14. NOTICES.................................................................................................38
15.15. SEVERABILITY............................................................................................39
15.16. GOVERNING LAW...........................................................................................39
15.17. RULES OF CONSTRUCTION...................................................................................39
15.18. PROVISIONS APPLICABLE TO OTHER ALLIANCE AGREEMENTS......................................................39
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EXHIBIT A: NETWORK DIAGRAM
EXHIBIT B: EXISTING AGREEMENTS
EXHIBIT C: NETWORK DEVELOPMENT AND OPERATIONS AGREEMENT
EXHIBIT D: PLATFORM SERVICES AGREEMENT
EXHIBIT E: TRANSPORT SERVICES AGREEMENT
EXHIBIT F: SALES AND MARKETING AGREEMENT
EXHIBIT G: INTERNATIONAL SERVICES AGREEMENT
EXHIBIT H: CONSULTING SERVICES AGREEMENT
EXHIBIT I: CPE INSTALLATION AND MAINTENANCE AGREEMENT
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1. TABLE OF DEFINED TERMS
Term Page
---- ----
AAA..............................................................................................................25
Accepted Project.................................................................................................19
Act...............................................................................................................2
Affected Party...................................................................................................36
Affiliates........................................................................................................1
Agreement.........................................................................................................1
Alliance..........................................................................................................2
Alliance Agreements...............................................................................................9
Alliance Council.................................................................................................15
Alliance Manager.................................................................................................21
Alliance Pricing.................................................................................................11
Ameritech.........................................................................................................1
Ameritech Merger..................................................................................................1
Audit............................................................................................................23
Audited Party....................................................................................................23
Auditor..........................................................................................................23
Base Load........................................................................................................32
CEO..............................................................................................................25
Committees.......................................................................................................15
Control..........................................................................................................30
Cost Plus Model..................................................................................................11
Dedicated Employees..............................................................................................22
Dispute..........................................................................................................24
Dispute Notice...................................................................................................25
Effective Date....................................................................................................1
FCC...............................................................................................................9
Governmental Entity..............................................................................................34
Initiating Party.................................................................................................23
In-region States.................................................................................................10
ISA...............................................................................................................9
Mandatory Project................................................................................................19
Meetings.........................................................................................................18
MFN Pricing......................................................................................................12
NDOA..............................................................................................................9
Officer Review Board.............................................................................................14
OSS..............................................................................................................10
Party.............................................................................................................1
Project..........................................................................................................19
Project Executor.................................................................................................20
Project Sponsor..................................................................................................19
PSA...............................................................................................................9
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SBC...............................................................................................................1
SBC ILEC.........................................................................................................13
SBC Transition Costs.............................................................................................31
Supplied Party...................................................................................................11
Supplying Party..................................................................................................10
TSA...............................................................................................................9
TSA Capacity.....................................................................................................12
Xxxxxxxx..........................................................................................................1
Xxxxxxxx Transition Costs........................................................................................32
2. REGULATORY COMPLIANCE
The Parties acknowledge that the activities and relationships addressed by the
Alliance are subject to federal and state statutes and regulations, including
without limitation the Act and the regulations promulgated by the Federal
Communications Commission ("FCC"). Notwithstanding anything to the contrary
contained in any Alliance Agreement, the Parties will not take any action in
connection with the Alliance which would constitute a violation of applicable
law or take an action which requires FCC or other approval without first
obtaining such approval.
3. RELATIONSHIP OF THE PARTIES
3.1. Allocation of Responsibilities
3.1.1. Agreements
The Parties or their Affiliates are entering into the following
agreements to implement the Alliance, in addition to this
Agreement: (1) a Network Development and Operations Agreement
("NDOA"), (2) a Platform Services Agreement ("PSA"), (3) a
Transport Services Agreement ("TSA"), (4) a Sales and Marketing
Agreement, (5) an International Services Agreement ("ISA"), (6)
Consulting Services Agreements, and (7) a CPE Installation and
Maintenance Agreement. Collectively, those Agreements, together
with this Agreement, are referred to as the "Alliance Agreements."
Copies of the other Alliance Agreements are attached to this
Agreement as Exhibits C through I.
3.1.2. Primary Responsibilities
Pursuant to the Alliance Agreements, in general (a) Xxxxxxxx will
provide transport and switching services in accordance with the
TSA, (b) SBC will provide platforms and related services in
accordance with the PSA and international wholesale services in
accordance with the ISA, (c) Xxxxxxxx and SBC will cross-market
each others' services and (d) SBC and Xxxxxxxx will mutually
develop new features and functions and
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geographical expansions of their telecommunications facilities and
associated services contemplated by this Alliance as follows: (i)
SBC will be primarily responsible for designing and building
platforms as set forth in the PSA; (ii) SBC and Xxxxxxxx will
jointly design and plan switch capabilities, depending upon the
nature of the switches and the time that the switches need to be
deployed in accordance with the NDOA; (iii) Xxxxxxxx shall be
primarily responsible for building and installing the switches and
developing domestic interLATA transport capabilities in accordance
with the TSA; (iv) SBC will be primarily responsible for
developing international transport capabilities in accordance with
the ISA; (v) Xxxxxxxx will be primarily responsible for ordering,
provisioning, engineering, capacity management and operations
management in accordance with the TSA; and (vi) SBC will be
primarily responsible for providing local access services in all
portions of the United States other than In-region States to the
extent SBC offers such services in the future. The term "Supplying
Party" means (a) Xxxxxxxx as to the products and services
described in clauses (a), (d)(iii) and (d)(v) of the preceding
sentence, (b) SBC as to the products and services described in
clauses (b), (d)(i), (d)(iv), and d(vi) of the preceding sentence,
and (c) Xxxxxxxx or SBC as appropriate as to their respective
products and services described in clause (d)(ii) of the preceding
sentence.
3.1.3. InterLATA Services
Until SBC or its Xxxx operating company Affiliates (including in
the future Ameritech and other prospective Affiliates) have
authority to offer interLATA service in SBC's in-region states
("In-region States" as defined in Section 271(i)(l) of the Act),
and for so long as the Parties shall agree thereafter, only
Xxxxxxxx will be able to serve as a provider of originating
interLATA services in SBC's In-region States and no such services
shall be provided by SBC.
3.1.4. IntraLATA Services - In-region States
SBC or its Xxxx operating company Affiliates own and manage
intraLATA voice and data networks in SBC's In-region States. While
SBC will work with Xxxxxxxx to utilize SBC's intraLATA assets to
achieve network efficiencies, SBC will maintain absolute
discretion vis-a-vis Xxxxxxxx with regard to all aspects of the
current and future transport networks that SBC or its Affiliates
own in SBC's In-region States for such intraLATA networks; and
3.2. Operations Support Systems
SBC and Xxxxxxxx will jointly develop Operations Support Systems ("OSS") to
manage, operate, and maintain the telecommunications facilities and
associated
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services contemplated by this Alliance and provide world class billing and
customer network management tools.
3.3. Preferred Provider
The Parties will endeavor to ensure that the telecommunications
facilities and associated services contemplated by this Alliance are
constructed and operated in the most cost efficient manner possible. If
either SBC or Xxxxxxxx has been designated the Supplying Party for a
product or service, then whenever the other Party needs such product or
service (the "Supplied Party"), such Supplied Party will seek to obtain
the needed product or service from the Supplying Party. In such case,
the Supplying Party shall, except as set forth in Section 3.7 hereof
and subject to existing contracts and arrangements with third parties
in existence as of the date hereof and as set forth on Exhibit B, in
all cases be the provider to the Supplied Party of the products or
services so long as the Supplying Party is offering Alliance Pricing,
quality comparable to competitive products and services, and
commercially reasonable terms and conditions to the Supplied Party.
3.4. Pricing of Products and Services
3.4.1. Alliance Pricing
Unless otherwise provided in other Alliance Agreements, the
Supplying Party will make its products and services available
to the Supplied Party at its direct cost plus a reasonable
rate of return as described in this Section 3.4.1 and as may
be further specified in particular Alliance Agreements (the
"Cost Plus Model"), and subject to MFN Pricing as described in
Section 3.4.3 (collectively, "Alliance Pricing"). In this
context, "Cost" is intended to represent the ****. Direct
costs may either be costs that are directly attributable to
the provision of the product or service or, in the case of
costs that may reasonably apply across multiple products, an
allocation of those common costs. Only the direct costs
attributable to the sale of products and service to the
Supplied Party shall be included in the Cost Plus Model. As
set forth in Section 4.4.8, the Finance Committee shall
oversee and approve the methods for determining the Parties'
cost, including approving the chart of accounts and cost
centers for tracking costs and all changes thereto. The
Finance Committee shall also approve the allocation
methodology for assigning common costs to individual products
and services. Allocations of **** shall not be included as
direct product costs. Each Supplying Party shall offer
Alliance Pricing to designated Affiliates of the Supplied
Party. In addition, as to the local access services described
in clause 3.1.2(d)(vi), the Parties will negotiate a "cap" on
the prices in the applicable Cost Plus Model.
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3.4.2. Competitor's Pricing
The Supplied Party shall not be obligated to purchase a
product or service from the Supplying Party unless the offered
price is as low as the lowest price for which the Supplied
Party can acquire the product or service from third parties
with similar terms and conditions. In addition, the Supplying
Party will discuss with the Supplied Party any issues
pertaining to the pricing of products and services to be
provided to the Supplied Party compared to the market price
for comparable products and services otherwise available to
the Supplied Party to ensure that competitive pricing is
maintained.
3.4.3. MFN Pricing
In no case shall Alliance Prices offered by the Supplying
Party be higher than the lowest rates the Supplying Party ****
a third party. Each quarter (or more frequently if the Parties
agree) the Supplying Party will review its pricing to the
Supplied Party hereunder and will certify to the Supplied
Party that it is in compliance with its obligation to offer
MFN Pricing to the Supplied Party, and will to the maximum
extent permitted by law and contractual agreements describe to
the Supplied Party the pricing under its contracts with third
parties.
3.4.4. SBC Domestic Wholesale Entry
If SBC resells the transport capacity acquired from Xxxxxxxx
pursuant to the TSA ("TSA Capacity") by means of a wholesale
distribution channel or similar business structure that is
principally established or maintained for the purpose of
offering the TSA Capacity to customers located in the United
States that are primarily engaged in the business of
distributing transport capacity to other third parties (e.g.,
carriers), then Xxxxxxxx shall no longer be bound to offer
Alliance Pricing to SBC with respect to such resold TSA
Capacity.
3.5. Future Services
The Parties recognize that the telecommunications industry is
undergoing dramatic transformation due to radical technological
improvements and regulatory developments. Thus, notwithstanding the
Alliance Pricing system set forth in this Section, subject to
regulatory restraints, the Parties will develop a mechanism to pass
through to each other the benefits of increased efficiencies (e.g., due
to technology development or regulatory evolution) and of reduced unit
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Securities and Exchange Commission.
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costs created by the volume of traffic each places on the other's
network or other agreed upon factors in accordance with the Alliance
Agreements.
3.6. Investment Obligation
Except for those Projects which the Supplied Party will build or pay
for as a Mandatory Project, the Supplied Party will not be required to
make any initial capital or ongoing investment beyond the commitment of
business pursuant to the Alliance Pricing system and the Alliance
Agreements.
3.7. Use of Facilities
Nothing in any Alliance Agreement shall be construed to prohibit (i)
either Party from using its own facilities or services owned as of the
Effective Date or (ii) SBC from using its switching facilities or its
owned transport facilities in any In-region State, regardless of
whether such facilities are acquired now or in the future, for any
purpose in lieu of using Xxxxxxxx' facilities.
3.8. Local Access
Subject to any existing contractual obligations of Xxxxxxxx or its
Affiliates' with third parties, if an SBC Affiliate providing local
exchange services (an "SBC ILEC") is available to provide local access
(including switching and local transport), then in such SBC ILEC's
territory:
3.8.1. SBC may designate its local access provider of choice for (i)
any local access service used exclusively for traffic
originated by SBC or its customers; or (ii) any trunk group
carrying switched voice traffic where SBC (including its
customers) provides 75% or more of the minutes of use carried
by such trunk group. It is anticipated, but not required, that
in the ordinary course SBC will designate the SBC ILEC for use
by Xxxxxxxx so long as such SBC ILEC has network capacity
available. However, nothing herein shall in any way prevent
SBC from designating another local access provider.
3.8.2. In all other circumstances Xxxxxxxx shall use local access
services provided by an SBC ILEC unless either (i) that ILEC's
tariffed rate or other legally permissible price for such
access product is greater than the Alliance Price for such
access services; or (ii) the access service is used
exclusively for traffic originated by a party other than SBC
or its customers and that party specifically requests the use
of another access provider.
3.8.3. Xxxxxxxx will enter into separately negotiated agreements with
each SBC ILEC that, subject to all applicable regulatory
requirements, will permit Xxxxxxxx to meet its commitments
hereunder.
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3.8.4. In the event of any dispute regarding compliance by Xxxxxxxx
with its obligations pursuant to Section 3.8, the burden of
proof shall be on SBC to demonstrate that its tariffed rate or
other legally permissible price for local transport is equal
to or less than the Alliance Price for such service.
3.8.5. Nothing in any Alliance Agreement shall be construed to
require that any SBC ILEC is obligated to offer any particular
pricing to Xxxxxxxx, to deviate from its published tariffs in
any manner, or to act contrary to any duty of
nondiscrimination or other regulatory requirement. Any
agreement separately entered into between Xxxxxxxx and any SBC
ILEC to acquire local access shall not be deemed an Alliance
Agreement for any purpose.
3.9. Ownership and Control
The Supplying Party will retain ownership and control of the assets
used to provide services or products to the Supplied Party and the
Supplying Party can use these assets to provide services or products to
third parties, except as prohibited in any Alliance Agreement. Xxxxxxxx
shall have principal responsibility for obtaining local access
services. Notwithstanding the foregoing, SBC shall have final decision
making authority regarding architectural and design decisions for local
access facilities to the extent that the access costs which Xxxxxxxx
will charge to SBC pursuant to the TSA will be materially adversely
affected by Xxxxxxxx' decisions, provided that SBC's decision does not
have a material adverse affect on Xxxxxxxx. Any disagreement between
the Parties regarding architectural and design decisions for local
access facilities that have, or are alleged to have, a material adverse
effect on a Party shall be a Dispute subject to the procedures of
Section 9. SBC shall designate personnel and otherwise participate in
such architectural and design decisions in a manner that ensures SBC's
compliance with all structural separation or other regulatory
requirements.
4. GOVERNANCE
4.1. Alliance Management
The Alliance shall be managed by an Officer Review Board, an Alliance
Council, Committees and Alliance Managers.
4.2. Officer Review Board
The "Officer Review Board" shall consist of 3 members appointed by SBC
and 3 members appointed by Xxxxxxxx and shall meet at least annually.
The Officer Review Board will monitor, adjust and set the overall goals
and objectives of the Alliance. The initial chair of the Officer Review
Board shall be appointed by SBC for a one year term, and thereafter the
Party selecting the chair shall alternate between the Parties each
year.
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4.3. Alliance Council
The "Alliance Council" shall consist of 3 members appointed by SBC and
3 members appointed by Xxxxxxxx. The Alliance shall be managed under
the direction of the Alliance Council, and the Alliance Council shall
have the authority to oversee, reorganize and direct the activities of
Committees (as defined below). The Alliance Council shall meet every
other month for the first twelve months, and quarterly thereafter
unless otherwise agreed by the Parties. The initial chair of the
Alliance Council shall be appointed by Xxxxxxxx for a one year term,
and thereafter the Party selecting the chair shall alternate between
the Parties each year.
4.4. Committees
To the extent permitted by the Act, SBC and Xxxxxxxx will form the
following Alliance committees and such other Alliance committees as to
which they may agree from time to time (the "Committees"): the Network
Transport and Technology Committee, the Service Delivery Committee, the
Product Development Committee, the Marketing and Sales Committee, the
Platform/Wholesale Committee, the National/Local Operations Committee,
the International Committee and the Finance Committee. New Committees
may be established and existing Committees may be disbanded by action
of the Alliance Council. Unless otherwise determined by the Alliance
Council, each Committee shall be composed of 3 representatives from
each Party. The initial chair for each Committee will serve for one
year and will be appointed by SBC except for the Network Transport and
Technology Committee, whose chair will be appointed by Xxxxxxxx for the
first year. After each year, the Party selecting the chair of a
Committee will alternate to the other Party.
The designated disciplines and duties of Committee's shall be as
follows:
4.4.1. Network Transport and Technology Committee
The Network Transport and Technology Committee will be
responsible for the design, planning and implementation of
global network and local access architectures and
infrastructure associated with the telecommunications
facilities and associated services contemplated by this
Alliance that are expected to be beneficial to both Parties.
The Network Transport and Technology Committee, along with the
Service Delivery Committee, is also responsible for monitoring
the status of the facilities deployed by the Parties in
furtherance of the goals of the Alliance, including data
concerning network utilization, capacity, performance, service
delivery parameters, and the status of network development on
an ongoing basis.
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4.4.2. Service Delivery Committee
The Service Delivery Committee will be responsible for
cooperatively developing common interfaces, methods and
procedures, design, planning and implementation of processes
for service activation, service assurance, capacity planning,
billing and other operational functions expected to be
beneficial to both Parties in the implementation of the
telecommunications facilities and associated services
contemplated by this Alliance. Further, the Committee will
serve as the primary vehicle for identifying and resolving
performance issues between the two entities, prioritizing
joint development, and formulating and implementing operations
strategy.
4.4.3. Product Development Committee
The Product Development Committee will be responsible to
ensure the integration of the product development processes of
each Party, and that both Parties follow a clearly defined
product development process to address new products and
services, and time to market requirements. This Committee is
committed to continued process improvement and is responsible
for business case development of new products and service. SBC
will be the party responsible for delivering the products and
services requested by both Parties with joint development of
the core infrastructure by Xxxxxxxx. Key components of this
agreed upon process are: marketing service descriptions,
technical service description and intercompany teams. This
Committee will agree upon required resources and timelines
around each stage of the development process. This Committee
will ensure that SBC receives Alliance Pricing on all products
and services from Xxxxxxxx where Xxxxxxxx is the Supplying
Party, and that Xxxxxxxx receives Alliance Pricing on products
and services from SBC where SBC is the Supplying Party.
4.4.4. Marketing and Sales Committee
The Marketing and Sales Committee will be responsible for
establishing the goals and managing the marketing and sales
process in support of these goals. In addition, this Committee
will be responsible for the evaluation, description, and
prioritization of customer service requirements. This
Committee will ensure that each Party will share what products
are available where and will ensure that these products are
competitive. This Committee will ensure that these products
are offered to potential customers. This Committee will make
recommendations as to the marketing and sales efforts in the
markets where products or services will be sold exclusively
and the markets where products or services will be the lead
products. This Committee will be the means through which SBC
has the opportunity to jointly develop and participate in the
establishment
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of commission plans. This Committee will have the
responsibility of sharing and responding to sales experience
data, including monitoring sales levels of SBC products. If
necessary, this Committee will make recommendations in order
to improve these sales results through traditional marketing
means (e.g. increasing sales incentives, decreasing price,
etc.)
4.4.5. Platform/Wholesale Committee
The Platform/Wholesale Committee will be responsible for
developing service criteria, timelines, cost issues,
architecture if switch dependent, service metrics, price
points, and procedure for deployment with the intent to ensure
that the set of services requested by Xxxxxxxx are clearly
defined with consistent expectations of both Parties. This
Committee will seek to optimize performance and track actual
results against expected results.
4.4.6. National/Local Operations Committee
The National/Local Operations Committee will focus on the
future deployment for SBC out of region requirements. This
will include specifying geographic and real estate
requirements for the network, and required services. These
specifications will be considered in the Platform, Network
Transport and Technology, Service Delivery, and Product
Development Committee processes. Additionally, this Committee
will determine the processes to evaluate the use of Xxxxxxxx
resources and time, as well as the cost, capability, and
central office based support of Xxxxxxxx. This Committee will
also review the performance of the National/Local Operations
against expected results and seek to optimize performance.
4.4.7. International Committee
The International Committee will focus on the future
deployment and tracking of actual performance for the Parties'
international requirements. This will include defining service
criteria, timelines, and expected results. This Committee will
also review the performance of the international operations
against expected results and seek to optimize performance.
4.4.8. Finance Committee
The Finance Committee will be responsible for: (i) approving
changes to the chart of accounts and cost centers to be
included in the Cost Plus Model as described in Section 3.4.1,
(ii) approving the method for allocating common transport or
other common costs to individual products or services, (iii)
approving cost accounting procedures for Mandatory Projects,
and (iv) coordinating any matters involving the audit
procedures set forth in Section 8. If the Finance Committee
can not agree on whether
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to include or exclude an account, cost center or other area
within the Cost Plus Model, the issue shall be resolved in
accordance with Section 9. The Finance Committee will review
the implementation of the Xxxxxxxx/SBC margin analysis
methodology as it develops.
4.5. Regulatory Requirements
All activities of the Officer Review Board, Alliance Council and
Committees shall be conducted, and the SBC representatives shall be
selected, to ensure that SBC and its Affiliates are in full compliance
with all regulatory requirements imposed upon SBC or its Affiliates
regarding nondiscrimination, network disclosure, structural separation,
or other matters insofar as they relate to the activities of the
Alliance.
4.6. Meetings
The Committees will meet quarterly (or as otherwise agreed by the
Parties) to discuss issues, review performance, develop scope of work
documents for proposed Projects (as hereinafter defined) and make
Project decisions within their designated disciplines. A process will
be determined to resolve any issues that may arise if one Party
requests services that are inconsistent with the other Party's ability
to deliver such services.
4.7. Timing and Notice
The Chairman of the Officer Review Board, of the Alliance Council and
of each Committee shall determine the time and place for meetings
between the appointed representatives from each Party ("Meetings").
Meetings may also be called upon the agreement of any two members
provided that such two members were not appointed by the same Party.
Except in the event of an emergency, the Chairman or members calling a
Meeting shall provide each Committee member with at least 14 days
advance written notice of the time, place and agenda for such Meeting.
No matter shall be finally determined at any Meeting unless the matter
was included in the agenda distributed with the notice for that Meeting
and described with sufficient particularity to reasonably disclose the
nature and importance of the matter.
4.8. Quorum
Two members not appointed by the same Party shall constitute a quorum
for any Meeting.
4.9. Participation
Members may participate in a Meeting by teleconference or designate an
alternate member to participate in a Meeting on their behalf upon prior
written notice to the Chairman or members who called the Meeting.
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4.10. Unanimous Vote
The Officer Review Board, Alliance Council and Committees shall act
only by the unanimous vote of all members participating in a Meeting
upon a resolution submitted in writing, following those members'
consultation with the Alliance Manager appointed by the same Party,
except that a Mandatory Project may be undertaken at the initiative of
one Party as described below.
5. PROJECTS
5.1. Classification and Scope of Work
A "Project" is a task pertaining to the telecommunications facilities
and services contemplated by the Alliance that is identified by a
Committee and defined and described in individual scope of work
documents which shall be developed by the Committee. As further
specified in the Network Development and Operations Agreement, each
scope of work document shall specify the rights, responsibilities and
obligations of each Party relative to the Project and include at least
a detailed description of the Project concept and design, a proposed
development process, an implementation plan, financial terms, ownership
of assets, intellectual property rights, performance measurement
criteria and a plan for life cycle monitoring of performance. The
Parties will establish a commercially reasonable schedule for
completion of each of the Projects as well as the necessary performance
measurement tools. A decision of a Committee (signed by all members) to
accept a Project including its financial terms ("Accepted Project")
will bind the Parties unless the Project requires board of directors'
approval of either of the Parties, in which case the Committee will
recommend approval to the board of the Party or Parties involved. A
"Mandatory Project" is any Project other than an Accepted Project if
the Party that voted in favor of the Project (the "Project Sponsor"),
whether SBC or Xxxxxxxx, elects pursuant to Section 6 to require that
the Project be undertaken. The Parties shall each dedicate resources
sufficient to complete an Accepted or Mandatory Project. Any employees
who work on a Project shall remain the employees of the Party who
designated them to work on the Project and shall not be considered
employees of the other Party or the Alliance.
5.2. No Arbitration
Except as otherwise provided in Section 4.4.8, the failure of a
Committee, the Alliance Council or the Officer Review Board to achieve
an unanimous vote with respect to a Project shall not be classified as
a Dispute subject to the procedures set forth in Section 9 and, if an
unanimous vote cannot be attained, a Party's exclusive alternatives
will be the creation of a Mandatory Project or the ability to pursue
the Project outside of the Alliance pursuant to Section 5.3, subject
only to any applicable terms and conditions restricting such Parties'
activities with third parties.
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5.3. Further Cooperation
If a proposed Project does not become an Accepted Project or a
Mandatory Project, each Party will be free to pursue such Project on
its own or with third parties, subject only to applicable restrictions
on Confidential Information and Intellectual Property. However, to the
extent that the implementation of the Project requires the cooperation
of the other Party, each Party will provide such cooperation and use
its best reasonable efforts to integrate the Project into the Parties'
networks.
6. MANDATORY PROJECTS
6.1. Designation by Project Sponsor
The Project Sponsor can elect to designate a Project as a Mandatory
Project if the Committee to which the Project is proposed does not
approve the Project, provided that not more than twelve months have
elapsed since the Meeting at which the proposed Project failed to
receive approval as an Accepted Project. If the Project Sponsor
designates a Project as a Mandatory Project, the Project Sponsor, at
its option, may require the other Party (the "Project Executor") to
complete the Mandatory Project or the Project Sponsor may engage a
third party to complete the Mandatory Project. If more than twelve
months have elapsed since the Meeting at which a proposed Project
failed to receive approval as an Accepted Project, the Project Sponsor
may not then designate a Project as a Mandatory Project or engage a
third party to complete the Project unless the Project is first
resubmitted to the applicable Committee for consideration as an
Accepted Project. Each Party will cooperate with the other and use its
best reasonable efforts to integrate a Mandatory Project into the
existing infrastructure of the Parties' networks.
6.2. Compensation of Project Executor
If the Project Sponsor requires the Project Executor to complete a
Mandatory Project, the Project Sponsor shall pay the Project Executor
(i) all identifiable fully-loaded direct expenses associated with the
Mandatory Project, plus (ii) the cost of capital for any capital
investments required by the Mandatory Project, less (iii) any cost
savings, tax benefits or other benefits attributable to the Mandatory
Project and realized by the Project Executor, it being the intention of
the Parties that the Project Executor shall be financially held
harmless as a result of undertaking the Mandatory Project. Any payment
required by this Section 6.2 shall be made promptly pursuant to
invoices rendered by the Project Executor and on the basis of good
faith estimates regarding any cost savings, tax effects or other
benefits attributable to the Mandatory Project, provided that any such
estimated amounts shall be adjusted on the basis of actual data when it
becomes available and the Parties shall promptly make additional
payments or refunds as applicable.
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6.3. Exceptions
Notwithstanding the foregoing, the Project Executor shall not be
required to accept a Mandatory Project where such acceptance would (1)
in the reasonable opinion of the Project Executor, constitute a
potential violation of the Act, or (2) in the event that (i) the
Mandatory Project requires **** (ii) the Mandatory Project has been
promptly and reasonably submitted for approval to the Project
Executor's Board of Directors, and (iii) the Project Executor's Board
of Directors has failed to approve the Mandatory Project.
6.4. Intellectual Property
Whether the Project Sponsor completes the Mandatory Project through the
Project Executor or a third party, the Project Sponsor will own all
aspects of the Mandatory Project, including but not limited to, all
intellectual property rights developed as part of the Mandatory Project
and all rights to use the Mandatory Project and all rights to revenue
derived from the use of the Mandatory Project (subject to the Project
Executor's right to receive a royalty free license of any intellectual
property rights necessary for so long as such rights are necessary for
the performance of any continuing services required from the Project
Executor).
6.5. Accounting
Mandatory Projects as described in this Section 6 shall be subject to
the approval of accounting procedures for tracking product costs and
revenues by the Project Sponsor prior to undertaking the Project.
Ongoing accounting issues, including without limitation the method for
determining Project costs, shall be referred to the Finance Committee
and considered pursuant to Section 4.4.8.
7. ALLIANCE MANAGERS AND DEDICATED EMPLOYEES
7.1. Alliance Managers
The "Alliance Manager" is an individual appointed by each Party and
dedicated to managing the Alliance relationship. SBC and Xxxxxxxx will
each designate one full-time Alliance Manager from within their
respective organizations. It shall be the responsibility of the
Alliance Manager to:
7.1.1. Serve as the principal contact person for each Party to the
other concerning Alliance matters;
7.1.2. Expedite the accomplishment of Accepted or Mandatory Projects;
7.1.3. Coordinate the activities of the Parties in furtherance of the
goals of the Alliance;
------
**** Confidential material has been omitted and filed separately with the
Securities and Exchange Commission.
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7.1.4. Supervise Dedicated Employees that are employed by the
Alliance Manager's employer;
7.1.5. Consult with the members of the Officer Review Board and
Alliance Council and keep them informed of matters affecting
the Alliance;
7.1.6. As agreed by the Parties, serve as spokespersons for the
Alliance in dealings with external constituencies; and
7.1.7. Seek any necessary internal approvals that may be necessary
and desirable to conduct the business of the Alliance.
7.2. Dedicated Employees
Each of the Parties will designate additional managers and technical
personnel as are reasonably necessary to coordinate the activities of
the Parties and accomplish the objectives of the Alliance ("Dedicated
Employees"). The Alliance Manager of each Party will have overall
responsibility for supervising that Party's Dedicated Employees.
7.2.1. Support Dedicated Employees appointed by one Party may be
located at the premises of the other Party as the Parties may
reasonably agree, and in such case the other Party will
provide to the Dedicated Employee, at such other Party's
expense, with reasonable office space, office furniture, power
and telecommunications access facilities. Each Party will
provide any necessary computers to be used by its Dedicated
Employees and will be solely responsible for the compensation
and benefits of its Dedicated Employees.
7.2.2. Indemnification - Damages
The Party providing Dedicated Employees shall indemnify the
other Party and its Affiliates against all claims, losses,
damages, or liabilities for personal injury, death or property
damage, including related attorney's fees and expenses of any
kind whatsoever, to the extent incurred by reason of or to the
extent arising out of any acts or omissions of the Alliance
Manager or any Dedicated Employee employed by such Party on or
off the premises of the other Party.
7.2.3. Indemnification - Claims
The Party providing Dedicated Employees shall indemnify the
other Party and its Affiliates against any claims, losses,
damages, liabilities, attorney's fees, or expenses of any kind
whatsoever arising from any workmen's compensation or other
claim made by a Dedicated Employee
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and relating to workmen's compensation or arising out of any
act or omission on the part of the Party providing office
facilities to a Dedicated Employee of the other Party.
8. AUDIT RIGHTS
8.1. Audit
Each Party may, at any time, but not more than once per calendar year
request an audit of the other Party (the "Audited Party"), with respect
to services and other deliverables provided under the Alliance
Agreements (an "Audit"), including, without limitation, to determine
the accuracy and integrity of any of the following:
8.1.1. The calculation of Alliance Pricing, including the duty to
provide MFN Pricing.
8.1.2. Access charge adjustments.
8.1.3. International pricing adjustments.
8.1.4. Matters not covered by the pre-xxxx certification process and
an audit of records relating to a Party's call detail.
8.2. Initiation
At the request of the Party requesting the audit (the "Initiating
Party"), the Finance Committee shall appoint a nationally recognized
accounting firm as a third party auditor (the "Auditor") to Audit the
Audited Party's books, contracts and records with respect to the
matters specified in Section 8.1 (or any other matter as agreed by the
Parties), provided that the Initiating Party may not request an Audit
on any particular subject more than once per calendar year. The
Initiating Party shall request an Audit by giving written notice of
such request to the members of the Finance Committee at least 14 days
in advance of the Finance Committee Meeting at which the appointment of
an Auditor shall be considered, and any such notice shall be sufficient
to include such Audit request as an agenda item for such Finance
Committee Meeting in compliance with Section 4.7.
8.3. Engagement of Auditor
The Parties will agree on the scope and materiality standards aspects
of the Audit and jointly instruct the Auditor. The terms of the
engagement of the Auditor shall:
8.3.1. Specifically define the scope of the Audit and materiality
standards.
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8.3.2. Require, in the case of a quantitative evaluation, a valid
statistical sampling of any information reviewed.
8.4. Cooperation
The Audited Party shall cooperate fully with the Auditor and its
representatives in connection with any Audit, providing reasonable
access to any and all relevant books and records and causing its
employees, accountants and other representatives and agents to
cooperate fully with the Auditor.
8.5. Report
The Auditor shall provide a copy of its report to both Parties, and the
report shall specify the conformity or extent of non-conformity with
the Audited Party's obligations under an Alliance Agreement that were
the subject of the Audit. The Auditor must keep confidential the names
and specific pricing applicable to all other purchasers of similar
products and services from the Audited Party. The determination of the
Auditor will be final and binding on both Parties.
8.6. Cost
The Parties will share equally the cost of the Auditor, provided that
(1) if the net dollar amount of any identified errors favors the
Initiating Party and exceeds three percent (3%) of the total dollar
amount of xxxxxxxx covered by the Audit, then the Audited Party shall
pay all of the costs of the Audit, and (2) if the net dollar amount of
any identified errors does not favor the Initiating Party, then the
Initiating Party shall pay all of the costs of the Audit. In the event
that the Auditor determines that the Audited Party is not in compliance
with its obligations relating to pricing that were the subject of the
Audit, the Audited Party will adjust pricing on a retroactive basis in
accordance with the findings of the Auditor.
9. DISPUTE RESOLUTION
9.1. Disputes.
The Parties shall attempt in good faith to resolve any controversy,
dispute or claim arising out of or relating to any of the Alliance
Agreements or the breach, termination, enforceability or validity
thereof (collectively, a "Dispute") promptly by negotiation between the
Alliance Managers, who shall have authority to settle the Dispute.
Either Party may give the other a written notice (a "Dispute Notice")
setting forth with reasonable specificity the nature of the Dispute and
the identity of any representative in addition to the Alliance Manager
who will attend and participate in the meetings at which the Parties
will attempt to settle the Dispute. Following the receipt of a Dispute
Notice, the representatives of both Parties shall meet as soon as is
practicable at a mutually acceptable time and place to negotiate in
good faith a settlement of the Dispute, and shall meet thereafter as
they reasonably deem necessary.
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9.2. Referral to CEO
If the Dispute has not been resolved within 30 days after receipt of
the Dispute Notice, then the Dispute shall be referred to the chief
executive officer of the ultimate parent corporation of each Party to
the Dispute (the "CEO"). The CEOs shall promptly undertake good faith
negotiations to settle the Dispute, including meetings in person or by
teleconference as the CEOs may reasonably agree.
9.3. Confidentiality of Negotiations
All negotiations pursuant to Sections 9.1 and 9.2 shall be confidential
and shall be treated as compromise and settlement negotiations. Nothing
said or disclosed, nor any document produced, in the course of such
negotiations which is not otherwise independently discoverable shall be
offered or received as evidence or used for impeachment or for any
other purpose in any current or future arbitration or litigation.
9.4. Arbitration
If the Dispute has not been resolved within 45 days after the receipt
of a Dispute Notice through negotiation or referral to the CEOs as
provided above, then the Dispute shall be finally settled by binding
arbitration in accordance with the commercial arbitration rules of the
American Arbitration Association ("AAA") then in effect. However, in
all events, the arbitration provisions in this Section shall govern
over any conflicting rules that may now or hereafter be contained in
the AAA rules. The arbitration shall be held in Dallas, Texas, unless
the Parties mutually agree to have the arbitration held elsewhere, and
judgment upon any award made therein may be entered by any court having
jurisdiction in the United States; provided, however, that nothing
contained in this Section shall be construed to limit or preclude a
Party from bringing any action in any court of competent jurisdiction
for injunctive or other provisional relief to compel the other Party to
comply with its obligations under this Agreement during the pendency of
the arbitration proceedings. The arbitrator shall have the authority to
grant any equitable and legal remedies that would be available in any
judicial proceeding instituted to resolve any Dispute hereunder.
9.5. Arbitrators
Any such arbitration will be conducted before three (3) arbitrators,
one of which shall be chosen by Xxxxxxxx, one of which shall be chosen
by SBC, and the third shall be chosen by the other two arbitrators.
Each person chosen to serve as an arbitrator shall be a neutral and
impartial attorney who has had training and experience as an
arbitrator. The decision of a majority of the arbitrators will be the
decision of the arbitrators. The arbitrators shall permit such
discovery of information related to the Dispute in arbitration as they
shall determine is
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appropriate in the circumstances, taking into account the needs of the
Parties and the desirability of making discovery expeditious and
cost-effective.
9.6. Costs and Fees
All fees and expenses of the arbitrators, expenses for hearing
facilities and other expenses of the arbitration shall be borne equally
by the Parties unless the arbitrators in the award assess such fees and
expenses other than equally against the Parties. Each Party shall bear
the fees and expenses of its own attorneys and witnesses except to the
extent otherwise provided in this Agreement or by law; provided, that
if the arbitrators determine that the claim or defense of any Party was
frivolous or lacked a reasonable basis in fact or law, the arbitrators
may assess against such Party all or part of the fees and expenses of
attorneys and witnesses for the other Party.
9.7. Burden of Proof
For any Dispute submitted to arbitration, the burden of proof will be
as it would be if the claim were litigated in a judicial proceeding.
9.8. Award
Upon the conclusion of any arbitration proceedings hereunder, the
arbitrators will render findings of fact and conclusions of law and a
written opinion setting forth the basis and reasons for any decision
reached and will deliver such documents to each Party to this Agreement
along with a signed copy of the award.
9.9. Agreement Controls
The arbitrators chosen in accordance with these provisions will not
have the power to alter, amend or otherwise affect the terms of these
arbitration provisions or the provisions of any Alliance Agreement.
10. CONFIDENTIAL INFORMATION
10.1. General
"Proprietary Information" means information which a Party deems
proprietary to it and, is of value to that Party and which that Party
maintains in confidence. Each Party shall hold in confidence and
withhold from third parties (other than as permitted below) any and all
Proprietary Information received pursuant to the Alliance and shall use
such Proprietary Information only to fulfill its obligations or enforce
its rights hereunder and for no other purposes unless the disclosing
Party shall otherwise agree in writing.
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10.2. Obligation to Protect Proprietary Information
Each Party shall use commercially reasonable efforts to safeguard any
Proprietary Information received pursuant to the Alliance from theft,
loss or disclosure to others, and to limit access to Proprietary
Information to those officers, directors, and employees within the
receiving Party's organization, and subcontractors, consultants,
investors, advisors, attorneys, service providers, business partners
and others who reasonably require access in order to accomplish the
aforesaid purposes. Proprietary Information shall be protected
hereunder only if it is in written or other permanent form and
identified as proprietary when provided. Any such information in other
than written or other permanent form when disclosed shall be considered
Proprietary Information that is protected hereunder, but only to the
extent identified as the originating Party's Proprietary Information at
the time of original disclosure and thereafter summarized in a written
form which clearly and conspicuously identifies the Proprietary
Information. Such summary shall be transmitted by the originating Party
to the receiving Party within thirty (30) days of the nonwritten
disclosure. The receiving Party shall not be liable for unauthorized
use or disclosure of any such Proprietary Information if it can
establish that the same: (i) is or becomes public knowledge or part of
the knowledge or literature within the telecommunications industry
without breach of an Alliance Agreement by the receiving Party; (ii) is
known to the receiving Party without restriction as to further
disclosure when received; (iii) is independently developed by the
receiving Party as demonstrated by written records; or (iv) is or
becomes known to the receiving Party from a third party who had a
lawful right to disclose it without breach of its contractual
obligations. Specific Proprietary Information shall not be deemed to be
available to the public or in the possession of the receiving Party
merely because it is embraced by more general information so available
or in the receiving Party's possession.
10.3. Judicial or Administrative Proceedings
Should the receiving Party be faced with judicial or administrative
governmental action to disclose Proprietary Information received
hereunder, said receiving Party shall use commercially reasonable
efforts to notify the originating Party in sufficient time to permit
the disclosing Party to intervene in response to such action.
10.4. Loss or Unauthorized Use
The receiving Party agrees promptly to notify the disclosing Party of
the loss or unauthorized use or disclosure of any Proprietary
Information.
10.5. Proprietary Information Exchange Agreements
Each Party shall ensure that all subcontractors providing Proprietary
Information to such Party in connection with the Alliance shall enter
into a "Proprietary
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Information Exchange Agreement" that provides that such Proprietary
Information may be disclosed and used by the Parties for the purposes
provided in this Article, subject to providing appropriate assurances
of confidentiality, but without requiring further permission from or
notice to such subcontractor.
10.6. Nondisclosure Agreements
Each Party shall have any third party person or entity to whom it
provides the Proprietary Information of the other agree in writing to
be bound to protect such Proprietary Information on the same conditions
as set forth herein.
10.7. Termination
Upon termination of the Alliance for any reason, the Parties shall
cease use of all Proprietary Information furnished by the other Party
and shall, at the direction of the furnishing Party, return to or
destroy all such Proprietary Information, together with all copies made
hereof, except to the extent that the receiving Party retains a license
to use such Proprietary Information. Upon request, the receiving Party
shall send the other Party a destruction certificate.
10.8. Irreparable Injury by Disclosure to Competitors
Specifically, but without limiting the foregoing, each Party agrees and
acknowledges that the disclosure by a Party of any Proprietary
Information to any competitor of a Party could cause irreparable harm
to such Party, and agrees not to make such a disclosure. Each Party
shall have the right to enforce the provision of this Article by
injunctive relief, including specific performance. Personnel of one
Party or its Affiliates present at the premises of the other Party or
its Affiliates shall refrain from obtaining access to information that
is proprietary to the customers of the other Party or its Affiliates.
Such personnel shall comply with the other Party's or its Affiliates'
reasonable measures established to restrict such access.
10.9. Survival of Nondisclosure Obligations
The obligations set forth in this Section 10 shall survive the
termination of this Agreement for two years.
11. ADDITIONAL COVENANTS
11.1. Insurance
At all times during the term of the Alliance, each Party shall carry
and maintain workers' compensation and employer's liability insurance
adequate to insure fully against losses or damages to SBC's or
Xxxxxxxx' personnel, customers, property or other contractor's
personnel or property caused by their respective activities. If
requested, each Party will furnish to the other certificates of
insurance or other
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appropriate documentation (including evidence of renewal of insurance)
evidencing all coverage referenced above and naming the Company as an
additional insured. Each Party will furnish the other notice of the
expiration of cancellation of any insurance policy required pursuant
hereto.
11.2. No Solicitation
During the term of the Alliance and for a period of twelve months
thereafter, neither Party nor such Party's Affiliates shall, directly
or indirectly, for itself or on behalf of any other person, induce or
attempt to induce any employee of the other Party's Affiliates engaged
in Alliance activities to leave his or her employment. However, general
employment advertisements in media of general or industry specific
circulation shall be permissible.
12. TERMINATION AND TRANSITION
12.1. General
While the Parties intend to develop a long term relationship, under the
following circumstances, the Alliance may be terminated in whole or in
part.
12.1.1. Termination By SBC
SBC may, but shall not be obligated to, terminate all or part
of the Alliance or all or certain aspects of the Alliance
Agreements or seek other remedies set forth in Sections 12.2
through 12.5:
12.1.1.1. If Xxxxxxxx begins to offer retail long distance
voice transport [or local exchange services],
provided that such right to terminate or seek other
remedies shall not come into effect if any one of
the following exceptions apply: ****
12.1.1.2. If Xxxxxxxx breaches any Alliance Agreement in a
manner that has a material adverse effect on the
commercial value of the Alliance to SBC;
12.1.1.3. If, without the prior consent of SBC, through merger
or acquisition or other means, there is a change in
the Control of Xxxxxxxx. "Control" means the
possession, directly or indirectly,
------
**** Confidential material has been omitted and filed separately with the
Securities and Exchange Commission.
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of the power to direct or cause the direction of the
management and policies by one person or entity or a
group of related persons or entities acting in
concert; provided, however, that the legal or
beneficial ownership, directly or indirectly by one
person or entity or a group of related persons or
entities acting in concert, of more than fifty
percent (50%) of the voting stock for the election
of directors of a party shall always be deemed
Control; or
12.1.1.4. If regulatory authorities fail to approve (or
impose unaccepted material adverse conditions on the
approval of) the Ameritech Merger or if the
Agreement and Plan of Merger is terminated by SBC or
Ameritech; or
12.1.1.5. If SBC acquires Control of an entity which is or
owns a facilities-based nationwide interLATA
telecommunications carrier and determines not to
sell the long distance transport assets to Xxxxxxxx
in accordance with Section 12.7.
12.1.2. Termination By Xxxxxxxx
Xxxxxxxx may, but shall not be obligated to, terminate all or
part of the Alliance or all or certain aspects of the Alliance
Agreements or seek other remedies set forth in Sections 12.2
through 12.5:
12.1.2.1. If SBC breaches any Alliance Agreement in a manner
that has a material adverse effect on the commercial
value of the Alliance to Xxxxxxxx; or
12.1.2.2. If, without the prior consent of Xxxxxxxx, through
merger or acquisition or other means, there is a
change in the Control of SBC.
12.1.3. Timing
The Party having the right to terminate shall exercise its
termination right within a reasonable period of time, but in
no event more than 180 days from actual notice of the event or
circumstances permitting termination by such Party.
12.2. Negotiations
Should any of the circumstances outlined in Section 12.1 occur, the
Parties will consider and negotiate terms under which they may
terminate any or all of the Alliance Agreements or certain aspects of
them. The following principles shall govern such negotiations:
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12.2.1. Primary User
If a Supplied Party represents at least 75% of the usage of an
asset or facility of the Supplying Party or, in the case of
assets or facilities under construction by the Supplying
Party, the Supplied Party represents 75% of the intended usage
of such asset or facility, then the Supplied Party shall be
entitled to purchase that telecommunications asset or facility
(including electronics, but excluding fiber) previously
constructed or under construction at a price equal to its then
current net book value.
12.2.2. IRUs
SBC shall be entitled to acquire IRUs with benefit of all
transport upgrades in the transport elements of the Xxxxxxxx
network at a price to be specified in the TSA.
12.2.3. Migration
Each Party shall cooperate to accomplish any necessary
migration of the other Party's data and voice traffic to a
third party's network upon reasonable terms and conditions.
12.2.4. Intention
It is not the Parties' intent that all of these remedies apply
to each Section 12.1 event, but only that the Parties will
negotiate which of these remedies apply to the Section 12.1
event. Further, Xxxxxxxx will not be permitted to purchase any
local access or exchange assets from SBC. Any purchase price
paid pursuant to Sections 12.2.1 and 12.2.2 will not itself be
considered a Transition Cost for the purposes of Section 12.3,
but may be considered as a factor in the calculation of usage
related Transition Costs pursuant to Section 12.4.
12.3. Compensation
Should events in Section 12.1.1.1, 12.1.1.2, or 12.1.1.3 occur and
cause SBC to withdraw, Xxxxxxxx will compensate SBC for all costs SBC
incurs in terminating any Alliance Agreement, including, without
limitation, SBC's costs to transition to a new network and the
increased costs of using such new network ("SBC Transition Costs").
Should the events in Section 12.1.1.4 or 12.1.1.5 occur and cause SBC
to withdraw or the events in Section 12.1.2.1 or 12.1.2.2 occur causing
Xxxxxxxx to withdraw, SBC will compensate Xxxxxxxx for all costs
Xxxxxxxx incurs in terminating any Alliance Agreements including,
without limitation, the increased costs of the network facilities
remaining with Xxxxxxxx due to the loss of SBC traffic ("Xxxxxxxx
Transition Costs"). The one-time charges each Party may charge the
other as Transition Costs are specified in the Alliance Agreements.
There will be a $200,000,000 cap on SBC Transition Costs
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and on Xxxxxxxx Transition Costs, respectively. In no event, will the
actual Transition Costs paid by either Party ever exceed this amount.
12.4. Usage Related Transition Costs
For usage-related Transition Costs, SBC's costs of using a new network
and Xxxxxxxx' increased costs of its remaining network will be measured
over an 18 month period. For the first six months of the eighteen month
period, the traffic volume for each month will be calculated by
reference to the monthly average of SBC traffic over Xxxxxxxx' network
facilities for the immediately previous six month period ("Base Load").
For the second six month period, the traffic for each month will be
fifty (50%) of the Base Load. For the final six month period, the
traffic for each month will be twenty five percent (25%) of the Base
Load. For example, if SBC's transportation cost due to the termination
of the Alliance should increase by $.01, then this $.01 will be
multiplied by the Base Load for each of the first six months, by 50% of
the Base Load for each of the next six months and by 25% of the Base
Load for each of the last six months. Similarly, if Xxxxxxxx'
transportation cost should increase by $.01 due to the loss of the SBC
traffic, then a similar calculation would be performed.
12.5. Application to All Agreements
Notwithstanding anything to the contrary in Sections 12.1, 12.2 and
12.3, when all of the Alliance Agreements other than the TSA terminate,
either Party shall have the right to exercise rights set forth in
Section 12.2.1, 12.2.2 or 12.2.3.
12.6. Section 271 Authorization
At any time after SBC (or its Affiliate) receives authorization under
Section 271 of the Act to provide interLATA services in a particular
In-region State, SBC shall be entitled to purchase at net book value
all assets owned by Xxxxxxxx which are primarily used for voice or
data switching by SBC as the Supplied Party and which SBC is legally
authorized to own and operate pursuant to the Act in that state. This
option shall be exercisable by SBC within one (1) year of the receipt
of authority under ss. 271 of the Act for the particular state.
Xxxxxxxx shall not be required to transfer ownership of the voice or
data switching assets identified by SBC for a period of up to one
year after receipt of SBC's notice exercising the option in order
that Xxxxxxxx can migrate traffic, secure replacement assets and
complete other transition activities necessitated by sale of the
voice or data switching assets to SBC. Nevertheless, Xxxxxxxx agrees
to exercise commercially reasonable efforts to complete the
transition activities as soon as possible to allow the transfer of
the voice or data switching assets to SBC as soon as is practicable.
For the sake of clarity, this Section 12.6 shall not be construed to
give SBC any right to acquire fiber, IRUs, or any other transport
facilities owned by Xxxxxxxx.
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12.7. Long Distance Transport Assets
If SBC acquires Control of a nationwide interLATA telecommunications
carrier, SBC agrees to evaluate whether the objectives of attaining
Alliance Pricing and efficiencies have been achieved under the Alliance
Agreements. If they have and SBC determines that the sale of the long
distance transport assets of such carrier to Xxxxxxxx would also
support the achievement of these objectives, the Parties agree to enter
into good faith negotiations concerning the sale of the long distance
transport assets to Xxxxxxxx.
12.8. Regulatory Frustration
In the event of any action or failure to act by any regulatory
authority that has the effect of materially frustrating or hindering
the purpose of one or more of the Alliance Agreements or the ability of
the Parties to compete successfully by means of the Alliance, the
Parties will meet (i) to reevaluate the benefits of the Alliance, (ii)
to determine whether, and to what extent, the Alliance may be
continued, and (iii) to negotiate in good faith regarding reasonable
terms and conditions for any termination of any of the Alliance
Agreements or revisions to the Alliance relationship. If the Parties
can not reach agreement on the terms and conditions under which the
Alliance should continue, either Party shall have the right to
terminate the Alliance Agreement which was the subject of such action
or failure to act by such regulatory authority, pursuant to the
principles set forth in Section 12.2 insofar as they are applicable.
The Parties understand and agree that, prior to SBC's receipt of
authorization under Section 271 of the Act, there are significant
restraints on the ability of the Parties to engage in cooperative
marketing and sales activities, and such restraints as they exist on
the date of this Agreement shall not be deemed to be an event that
materially frustrates or hinders the purpose of the Alliance within the
meaning of this Section 12.8.
13. REPRESENTATIONS AND WARRANTIES OF SBC
SBC hereby represents and warrants to Xxxxxxxx as follows:
13.1. Organization, Standing and Authority.
SBC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. SBC, and each of its
Affiliates executing an Alliance Agreement, has all requisite corporate
power and authority to enter into the Alliance Agreement(s) to which it
is a party and to consummate the transactions contemplated thereby. All
corporate acts and other proceedings required to be taken by SBC and
its Affiliates to authorize the execution, delivery and performance of
the Alliance Agreements to which it is a party and the consummation of
the transactions contemplated thereby have been duly and properly
taken. Each of the Alliance Agreements to which it is a party has been
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duly executed and delivered by it and constitutes the legal, valid and
binding obligation of it, enforceable against it in accordance with its
terms.
13.2. No Violation
The execution and delivery by SBC and its Affiliates of the Alliance
Agreements to which it is a party and the consummation of the
transactions contemplated thereby and compliance with the terms thereof
will not, (i) conflict with or result in any violation of any provision
of the certificate of incorporation or by-laws of any of them, or the
comparable organizational documents of any of them, (ii) conflict with,
result in a violation or breach of, or constitute a default, or give
rise to any right of termination, revocation, cancellation, or
acceleration, under, any material contract, except for any such
conflict, violation, breach, default or right which is not reasonably
likely to have a material adverse effect on the ability of SBC and its
Affiliates to consummate the material transactions contemplated by the
Alliance Agreements or (iii) conflict with or result in a violation of
any judgment, order, decree, writ, injunction, statute, law, ordinance,
rule or regulation applicable to SBC or any of its Affiliates or to the
property or assets of SBC or any of its Affiliates, except for any such
conflict or violation which is not reasonably likely to have such a
material adverse effect.
13.3. Consents and Approvals
Except as set forth in any Alliance Agreement, no consent, approval,
license, permit, order or authorization of, registration, declaration
or filing with, or notice to, any domestic or foreign court,
administrative or regulatory agency or commission or other governmental
authority or instrumentality (each, a "Governmental Entity") is
required to be obtained or made by or with respect to SBC or any of
SBC's Affiliates in connection with the execution and delivery of the
Alliance Agreements or the consummation of the transactions
contemplated thereby.
14. REPRESENTATIONS AND WARRANTIES OF XXXXXXXX
Xxxxxxxx hereby represents and warrants to SBC as follows:
14.1. Organization, Standing and Authority
Xxxxxxxx is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Xxxxxxxx has all
requisite corporate power and authority to enter into the Alliance
Agreements and to consummate the transactions contemplated thereby. All
corporate acts and other proceedings required to be taken by Xxxxxxxx
to authorize the execution, delivery and performance of the Agreement
and the Alliance Agreements to which it is a party and the consummation
of the transactions contemplated thereby have been duly and properly
taken. Each of the Alliance Agreements has been duly executed
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and delivered by Xxxxxxxx and constitutes the legal, valid and binding
obligation of it, enforceable against it in accordance with its terms.
14.2. No Violation
The execution and delivery by Xxxxxxxx of the Alliance Agreements to
which it is a party do not, and the consummation of the transactions
contemplated thereby and compliance with the thereof will not (i)
conflict with or result in any violation of any provision of the
certificate of incorporation or by-laws of Xxxxxxxx, (ii) conflict
with, result in a violation or breach of, or constitute a default, or
give rise to any right of termination, revocation, cancellation, or
acceleration, under, any material contract, except for any such
conflict, violation, breach, default or right which is not reasonably
likely to have a material adverse effect on the ability of Xxxxxxxx to
consummate the material transactions contemplated by the Alliance
Agreements or (iii) conflict with or result in a violation of any
judgment, order, decree, writ, injunction, statute, law, ordinance,
rule or regulation applicable to Xxxxxxxx or to the property or assets
of Xxxxxxxx, except for any such conflict or violation which is not
reasonably likely to have such a material adverse effect.
14.3. Consents and Approvals
Except as set forth in any Alliance Agreement, no consent, approval,
license, permit, order or authorization of, registration, declaration
or filing with, or notice to, any Governmental Entity is required to be
obtained or made by or with respect to Xxxxxxxx in connection with the
execution and delivery of the Alliance Agreements or the consummation
of the transactions contemplated thereby.
15. GENERAL PROVISIONS
15.1. Further Agreements
Further agreements to implement the Alliance may be appropriate.
Therefore, upon reasonable request of a Party, the Parties shall meet
and negotiate in good faith to determine if additional Alliance
agreements are appropriate and the terms and conditions of any such
agreements.
15.2. Assignment
Neither Party may assign nor delegate any of its rights or obligations
under this Agreement without the consent of the other Party, provided
that each Party may assign this Agreement to any Affiliate, so long as
such assigning Party guarantees the Affiliate's performance.
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15.3. Termination of MOU
The Memorandum of Understanding dated December 12, 1998 by and between
SBC Operations, Inc. and Xxxxxxxx Communications, Inc. is terminated
and shall be of no further force and effect.
15.4. Force Majeure
If either Party's performance of this Agreement or any obligation
(other than the obligation to make payments for services rendered under
one of the Alliance Agreements) hereunder is prevented, restricted or
interfered with by causes beyond its reasonable control including, but
not limited to, acts of God, fire, explosion, vandalism, power outages,
cable cuts, storm or other similar occurrence including rain fade or
other atmospheric conditions, any law, order, regulation, direction,
action or request of the United States Government or national, state or
local governments, or of any department, agency, commission, court,
bureau, corporation or other instrumentality of any one or more of said
governments, or of any civil or military authority, or by national
emergencies, insurrections, riots, wars, acts of terrorism, strikes,
lockouts or work stoppages or other labor difficulties, supplier
failures, shortages, breaches or delays, then the Party affected by
such force majeure event (the "Affected Party") shall be excused from
such performance on a day-to-day basis to the extent of such
prevention, restriction or interference. The Affected Party shall use
commercially reasonable efforts under the circumstances to avoid and
remove such causes of non-performance and shall proceed to perform with
reasonable dispatch whenever such causes cease. Notwithstanding the
foregoing, a power outage or a cable cut shall not excuse the Affected
Party from liability to the other Party or its customers pursuant to
any Alliance Agreement, provided that the Affected Party shall not be
liable for any damages arising from the failure of the other Party to
undertake commercially reasonable efforts in accordance with past
practices to mitigate damages resulting from the cable cut or power
outage.
15.5. Third Party Warranties
Each Party shall enforce any rights, warranties, licenses, terms and
conditions and other benefits accruing to it under each of its
agreements with third parties participating in or providing equipment,
software or other services used in connection with the provision of
services under the Alliance Agreements wherever and whenever such
Party's failure to enforce any such rights, warranties, licenses,
terms, conditions and other benefits could materially impair its
ability to provide such services in accordance with the terms and
conditions of the Alliance Agreements.
15.6. Costs and Expenses
Except as otherwise specifically agreed to by the Parties in writing,
each Party will be responsible for its own expenses arising under this
Agreement.
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15.7. Amendment
No amendment of this Agreement shall be valid or binding on the Parties
unless such amendment shall be in writing and duly executed by an
authorized representative of each Party.
15.8. Headings
Headings contained herein shall in no way limit the subject matter they
introduce and shall not be used in construing this Agreement.
15.9. Publicity
Neither Party shall make a public announcement about this Agreement or
the Parties' discussions related to any aspect of it without the
written consent of the other Party. Either of the Parties may at
anytime make announcements which are required by applicable law,
regulatory bodies, or stock exchange or stock association rules, so
long as the Party so required to make the announcement, promptly upon
learning of such requirement, notifies the other Party of such
requirement and discusses with the other Party in good faith that exact
wording of any such announcement.
15.10. Execution
This Agreement shall be executed in two duplicate copies, one for each
Party, each of which copies shall be deemed an original.
15.11. Term
Unless otherwise specified in this Agreement, and except for those
provisions which by their nature should survive the termination of this
Agreement (including without limitation Sections 8 and 9 hereof), this
Agreement shall survive so long as any other Alliance Agreement is in
force and effect.
15.12. Limitation of Liability
Except to the extent expressly set forth in one of the Alliance
Agreements, neither Party, nor its officers, employees, agents,
partners, Affiliates or subcontractors shall be liable to the other
Party, its officers, employees, agents, partners, Affiliates or
subcontractors for claims for incidental, indirect, consequential,
exemplary, punitive, or other special damages, including, but not
limited to, damages for a loss of profits or opportunity costs,
connected with or resulting from any performance or lack of performance
under any Alliance Agreement regardless of whether a claim is based on
contract, warranty, tort (including negligence), theory of strict
liability, or any other legal or equitable principle.
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15.13. Relationship of Parties
The Alliance Agreements individually or in the aggregate shall not be
construed to create a partnership, joint venture, or any other form of
legal entity.
15.14. Notices
Any notice, request, instruction or other document to be given
hereunder by any Party to any other Party under any section of this
Agreement shall be in writing and shall be deemed given upon receipt if
delivered personally or by telex or facsimile, the next day if by
express mail or three days after being sent by registered or certified
mail, return receipt requested, postage prepaid to the following
addresses (or at such other address for a Party as shall be specified
by like notice provided that such notice shall be effective only after
receipt thereof):
If to SBC: SBC Operations, Inc.
000 XxXxxxxxxx
Xxx Xxxxxxx, XX 00000
Attn: J. Xxxxxxx Xxxxxx, President
Fax: 000-000-0000
Telephone: 000-000-0000
with a copy SBC Operations, Inc.
(which shall 000 XxXxxxxxxx
xxx xxxxxxxxxx Xxx Xxxxxxx, XX 00000
notice) to: Attn: Xxxxxx X. Xxxxxxx, Xx.,
General Counsel - Operations
Fax: 000-000-0000
Telephone: 000-000-0000
If to Xxxxxxxx: Xxxxxxxx Communications, Inc.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 00-X
Xxxxx, XX 00000
Attn: Contract Administration
Fax: 000-000-0000
Telephone: 000-000-0000
with a copy Xxxxxxxx Communications, Inc.
(which shall One Xxxxxxxx Center, Suite 4100
not constitute Xxxxx, XX 00000
notice) to: Attn: General Counsel
Fax: 000-000-0000
Telephone: 000-000-0000
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15.15. Severability
In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in
any respect by a court or other authority of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any
other provision hereof and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein and, in lieu of each such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable, it being the intent of the Parties to maintain the benefit
of the bargain for both Parties.
15.16. Governing Law
This Agreement shall be construed in accordance with and governed by
the laws of the State of New York applicable to agreements made and to
be performed wholly within such jurisdiction.
15.17. Rules of Construction
Words used in this Agreement, regardless of the gender and number
specifically used, shall be deemed and construed to include any other
gender and any other number as the context requires. As used in this
Agreement, the word "including" is not limiting, and the word "or" is
not exclusive. Except as specifically otherwise provided in this
Agreement in a particular instance, a reference to a Section, Schedule
or Exhibit is a reference to a Section of this Agreement or a Schedule
or Exhibit hereto, and the terms "this Agreement," "hereof," "herein,"
and other like terms refer to this Agreement as a whole, including the
Schedules to this Agreement, and not solely to any particular part of
this Agreement. The descriptive headings in this Agreement are inserted
for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement. The Parties
to this Agreement do not intend that any other Person shall obtain any
rights as third party beneficiaries of this Agreement.
15.18. Provisions Applicable to Other Alliance Agreements
Sections 2, 8, 9, 10, 13, 14, and 15 (except for subsections 15.11 and
15.14) of this Agreement shall apply and be deemed incorporated into
the other Alliance Agreements.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their respective authorized representatives.
SBC COMMUNICATIONS INC. XXXXXXXX COMMUNICATIONS, INC.
/s/ /s/ XXXXX X. XXXXXX
-------------------------------------- --------------------------------------
Signature of Authorized Representative Signature of Authorized Representative
XXXXX X. XXXXXX
-------------------------------------- --------------------------------------
Printed Name Printed Name
-------------------------------------- --------------------------------------
Title Title
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EXHIBIT A
[FLOWCHART DEPICTING TRANSPORT AND MIGRATION]
42
EXHIBIT B
XXXXXXXX:
THIRD PARTY DATE AGREEMENT DESCRIPTION
SIGNED OR EFFECTIVE
National December 31, 1998 Alliance agreement whereby NTL is
Transcommunications preferred vendor of video circuits in
Limited Europe. As part of Alliance, Vyvx will
not sell transatlantic video services or video
services using Intelsat 57 East outside of the
Alliance's joint provision of those services.
---------------------------------------------------------------------------------------------------
Winstar Wireless, Inc. December 17, 1998 Wireless fiber IRU
agreement whereby Xxxxxxxx
acquired capacity equivalent
to 2% of Winstar's local
access capability which
capacity Xxxxxxxx can
resell.
---------------------------------------------------------------------------------------------------
Unidial Communications, October 2, 1998 Pursuant to Paragraph 5.1(h) of Preferred
Inc. Stock Purchase Agreement between Xxxxxxxx
Communications, Inc. and Unidial Holdings,
Inc., Xxxxxxxx Communications Solutions, LLC
and UniDial Communications, Inc. entered into
a Service Agreement (a non-exclusive agency
agreement) for WCS to market UniDial's
telecommunications services in the U.S.
---------------------------------------------------------------------------------------------------
Northern Telecom, Inc. September 23, 1993 Basic Supply Agreement and related Product
(base agreement) and Pricing Attachments for fiber, transmission
products and telecommunications switching
products.
---------------------------------------------------------------------------------------------------
ICG Access Services, April 1, 1996 Local Access Agreement establishing ICG as
Inc. preferred vendor for access between Vyxx
Television Switching Centers (video) and
customer premises.
---------------------------------------------------------------------------------------------------
Concentric Network July 25, 1997 Agency Agreement for Xxxxxxxx to market
Corporation (base agreement) Concentric's telecommunications services in
the U.S.
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Concentric Network July 25, 1997 Reseller Agreement for Xxxxxxxx to resell
Corporation (base agreement) Concentric's telecommunications services
in the U.S.
---------------------------------------------------------------------------------------------------
Northern Telecom, Inc. April 30, 1997 Limited Liability Company Agreement, 4-30-97,
between Xxxxxxxx Communications Group, Inc.
and Xxxxxxxx Communications Solutions, LLC ("WCS")
shall focus on sales of Nortel products at or
above a percentage threshold of its sales. If WCS
fails to hit this threshold for two years in a row,
Nortel can put, and Xxxxxxxx can call, Nortel's
interest in WCS to be purchased by Xxxxxxxx.
---------------------------------------------------------------------------------------------------
Xxxx Atlantic Network Renewal Effective Marketing agreement for telephone company retail
Services, Inc. 1-1-99 services in entire Xxxx Atlantic area.
---------------------------------------------------------------------------------------------------
SBC Effective 3-1-98 Authorized sales representative agreement in
SBC's core five-state area.
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U.S. West Renewal Effective Strategic partner sales agreement to market U.S.
Communications, Inc. - 1-1-99 West's data and telecommunications services in
Federal Services Arizona.
---------------------------------------------------------------------------------------------------
Pacific Xxxx Renewal Effective Authorized sales representative agreement in
1-1-99 California.
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Xxxx South Application pending Authorized sales representative agreement.
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SBC:
THIRD PARTY DATE AGREEMENT DESCRIPTION
SIGNED OR EFFECTIVE
Concentric MOU signed 10/98 SBC will rebrand and sell CNC
internet based services.
---------------------------------------------------------------------------------------------------
Lucent Initial Agreement Southwestern Xxxx will be a distributor for
signed 5/97. Lucent's key systems
---------------------------------------------------------------------------------------------------
Lucent Initial Agreement Southwestern Xxxx will exclusively
signed 3/97. Lucent's PBX line of products.
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44
Lucent Initial Agreement Pacific Xxxx will exclusively refer sales
signed 6/98. leads to Lucent for PBX sales opportunities.
---------------------------------------------------------------------------------------------------
IBM Initial Agreement Third party serves as a Global Service
signed 11/97. Provider for SBC Internet Services.
---------------------------------------------------------------------------------------------------
Digex Initial Agreement Third party serves as a Global Service
signed 7/97. Provider for SBC Internet Services.
---------------------------------------------------------------------------------------------------
Sprint Initial Agreement Third party serves as a Global Service
signed 4/97. Provider for SBC Internet Services.
---------------------------------------------------------------------------------------------------
Lucent Agreement effective Digital network deployment contract for
5/98. Southwestern Xxxx, Pacific Xxxx and Nevada
Xxxx to purchase switch-related hardware,
software to support new growth.
---------------------------------------------------------------------------------------------------
Nortel Agreement effective Digital network deployment contract for
7/98. Southwestern Xxxx, Pacific Xxxx and Nevada
Xxxx to purchase switch-related hardware,
software to support new growth.
---------------------------------------------------------------------------------------------------
China-US Cable Agreement signed Consortium of cooperative agreements between
12/97. US and foreign carriers to build capacity
between the US and Asia.
---------------------------------------------------------------------------------------------------
Japan-US Cable Agreement signed Consortium of cooperative agreements between
7/98. US and foreign carriers to build capacity
between the US and Asia.
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