EXHIBIT 10.24
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of September 4, 1998
by and between
NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY, dba
XXXX ATLANTIC - MASSACHUSETTS
and
COMMUNITY NETWORKS OF MASSACHUSETTS
TABLE OF CONTENTS
(1) GENERAL TERMS AND CONDITIONS
(2) PART I - Telecommunications Services Provided for Resale
Appendix A
(3) PART II - Unbundled Network Elements and Combinations
Exhibit A - Bona Fide Request Process
Exhibit B - Timetable for Providing Elements
(4) PART III - Service Description: Ancillary Functions
Exhibit A -
Appendix A - Collocation Schedule
Appendix B - Application for Collocation
Appendix C - Insurance Certification
Appendix D - Grounding Requirements
Appendix E - Construction Work Completion Notice
(5) PART IV - Pricing Schedule
Exhibit A - Local and Toll Call Flows and Intercarrier Billing in the
Competitive Telecommunications Environment
Attachment A - Unbundled Network Elements
Attachment B - Call Flow Diagram
(6) Attachment 1 - Definitions
(7) Attachment 2 - Operations Plan and Implementation Team
(8) Attachment 3 - Intentionally Omitted
(9) Attachment 4 - Intentionally Omitted
(10) Attachment 5 - Intentionally Omitted
(11) Attachment 6 - Billing and Recording
TABLE OF CONTENTS
General Terms and Conditions
Page
----
RECITALS................................................................. 1
DEFINITIONS.............................................................. 2
GENERAL TERMS AND CONDITIONS............................................. 2
1. Scope of the Agreement......................................... 2
2. Term of Agreement; Termination................................. 2
3. Transitional Support........................................... 4
4. Good Faith Performance......................................... 4
5. Option to Obtain Local Services, Network Elements or
Combinations Under Other Agreements..................... 4
6. Responsibility of Each Party................................... 5
7. Government Compliance.......................................... 5
8. Regulatory Matters............................................. 6
9. Liability and Indemnity........................................ 7
9.1 Indemnification......................................... 7
9.2 Limitation of Liability................................. 8
10. Payment Terms, Disputed Amounts and Audits..................... 8
10.1 Local Services.......................................... 8
10.2 Payment Terms - Other than Local Services............... 9
10.3 Disputed Amounts - Other than Local Services............ 10
10.4 Audits and Inspections.................................. 13
10.5 Alternate Billing to Third Numbers...................... 14
10.6 Reciprocal Compensation................................. 17
11. Service Standards.............................................. 19
12. OSS/Electronic Interfaces...................................... 19
13. Operations Plan and Implementation Team........................ 22
14. Force Majeure.................................................. 22
15. Certain State and Local Taxes.................................. 23
16. Dispute Resolution............................................. 23
17. Notices........................................................ 27
18. Confidentiality................................................ 29
19. Number Portability............................................. 30
19.1 Interim Number Portability.............................. 30
19.2 Number Reassignment..................................... 33
20. Directory Listings and Directory Distributions................. 33
21. Subscriber List Information.................................... 35
22. Miscellaneous.................................................. 35
22.1 Delegation or Assignment................................ 35
22.2 Nonexclusive Remedies................................... 35
22.3 No Third Party Beneficiaries............................ 36
22.4 Referenced Documents.................................... 36
22.5 Governing Law........................................... 36
22.6 Publicity and Advertising............................... 36
22.7 Amendments or Waivers................................... 36
22.8 Severability............................................ 37
22.9 Entire Agreement........................................ 37
22.10 Survival of Obligations................................. 37
22.11 Executed in Counterparts................................ 37
22.12 Headings of No Force or Effect.......................... 37
22.13 Joint Work Product...................................... 38
22.14 Nonexclusive Dealings................................... 38
22.15 No License.............................................. 38
22.16 Dialing Parity.......................................... 38
22.17 Disclaimer of Warranties................................ 38
ii
AGREEMENT
between
New England Telephone and Telegraph Company
d/b/a BA
and
AT&T Communications of New England, Inc.
Dated as of April 13, 1998
INTERCONNECTION AGREEMENT
-------------------------
This Agreement, which shall become effective upon the date executed in
accordance with Section 2(a), is entered into by and between AT&T Communications
of New England, Inc., a Massachusetts corporation, having an office at 32 Avenue
of the Americas, Xxx Xxxx, Xxx Xxxx 00000 ("AT&T"), and New England Telephone
and Telegraph Company, d/b/a Xxxx Atlantic -Massachusetts, a New York
corporation, having an office at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 ("BA").
RECITALS
--------
WHEREAS, the Telecommunications Act of 1996 (as amended or modified from
time to time, the "Act") was signed into law on February 8, 1996; and
WHEREAS, the Act places certain duties and obligations upon, and grants
certain rights to, Telecommunications Carriers; and
WHEREAS, the Federal Communications Commission (the "FCC") has issued rules
to implement the Act (including In the Matter of the Local Competition
Provisions in the Telecommunications Act of 1996, FCC 96-325 (hereinafter, as
amended, modified, stayed or reconsidered from time to time, the "Order"); and
WHEREAS, the Parties are entering into this Agreement to set forth the
respective obligations of the Parties and the terms and conditions under which
AT&T will interconnect with the BA network in the BA service territory within
the Commonwealth of Massachusetts (the "MA Region") and BA will provide services
to AT&T as required by the Act and Order and additional services as set forth
herein; and
WHEREAS, the Parties have arrived at this Agreement through negotiations
and arbitration proceedings undertaken pursuant to the Act.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of this Agreement and other good and valuable consideration, AT&T and BA hereby
agree as follows:
DEFINITIONS
-----------
For purposes of this Agreement, certain terms have been defined in
Attachment 1 and elsewhere in this Agreement to encompass meanings that may
differ from, or be in addition to, the normal connotation of the defined word.
Unless the context clearly indicates otherwise, any term defined or used in the
singular shall include the plural. The words "shall" and "will" are used
interchangeably throughout the Agreement and the use of either connotes a
mandatory requirement. The use of one or the other shall not mean a different
degree of right or obligation for either Party. A defined word intended to
convey its special meaning is capitalized when used. Other terms that are
capitalized, and not defined in this Agreement, shall have the meaning in the
Act.
GENERAL TERMS AND CONDITIONS
-----------------------------
1. Scope of the Agreement. This Agreement, together with all applicable
----------------------
tariffs as referenced herein (as in effect from time to time except with respect
to those provisions in this Agreement in which it is expressly provided
otherwise), set forth the terms, conditions and prices to which BA and AT&T have
agreed in respect of the following: (a) Local Services, (b) certain unbundled
network elements, (hereinafter collectively referred to as "Network Elements")
or combinations of such Network Elements ("Combinations")*, (c) Collocation,
(d) Number Portability, (e) Access to Rights of Way, Ducts, Conduits and Pole
Attachments, (f) Directory Assistance and Operator Services and Directory
Listings, (g) Reciprocal Compensation, (h) E911 and 911 services, (i) Meet-Point
Billing, (j) Dialing Parity, (k) Transient Tandem Service, (1) Interconnection
of AT&T's network to BA's network and (m) Access to Telephone Numbers. This
Agreement includes the General Terms and Conditions, Parts I through IV, and
their Attachments and all accompanying Appendices and Exhibits. Unless otherwise
provided in this Agreement, the rights and obligations of the Parties hereunder
shall apply throughout the MA Region.
2. Term of Agreement; Termination.
------------------------------
(a) The initial term of this Agreement shall commence on the date on which
this Agreement has been executed by both Parties (the "Effective
Date") and shall expire on April 12, 2001, except as otherwise
provided in Section 2(d) below.
___________________
* The Parties acknowledge and agree that the issue of BA's obligation to
combine unbundled Network Elements is presently before the Department in the
Consolidated Arbitrations D.P.U. 96-73, 96-74, 96-80/81, 96-83 and before the
U.S. Supreme Court. Accordingly, it is agreed that, pending a decision of either
the Department or the U.S. Supreme Court requiring BA to provide combinations of
unbundled Network Elements, BA has no obligation to combine unbundled Network
Elements. When the Department, the U.S. Supreme Court or any court of competent
jurisdiction issues a decision or order upon this issue, upon written request of
either Party, the Parties agree to meet and expeditiously negotiate in good
faith to arrive at modifications to this Agreement if necessary, to comply with
such decision. Notwithstanding the foregoing, nothing in this Agreement shall
prevent either Party from appealing or otherwise contesting the Department's or
any court's decisions or orders.
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(b) AT&T (i) shall, at BA's request, or (ii) may, at its option, nine
months prior to the expiration of the Term, with respect to the entire
Agreement, and/or eighteen months prior to the expiration of the Term, in
the case of the terms and provisions with respect to Local Services set
forth in Part I hereof (such terms and provisions, other than with respect
to the wholesale discounts set forth in Part IV hereof, hereinafter the
"Resale Terms"), make a request to BA to renegotiate all of the terms of
this Agreement or the Resale Terms pursuant to Section 251(c)(1) of the
Act. The date(s) of BA's receipt of such request(s) shall be hereinafter
referred to as the "Renegotiation Request Date". The Parties agree that
within sixty (60) days of such Renegotiation Request Date each Party will
provide to the other a written description of its proposed changes to,
and/or extension of, the terms of this Agreement or the Resale Terms. The
Parties shall enter into negotiations on such proposed changes seventy-five
(75) days after such Renegotiation Request Date.
(c) In the event that, notwithstanding, the good faith efforts of both
Parties, they are unable to agree on terms and conditions of a new
agreement and/or new Resale Terms, then either Party may, beginning 135
days after the Renegotiation Request Date, file a petition for arbitration
by the Department pursuant to Section 252(b) of the Act.
(d) The terms and conditions of this Agreement shall only continue in full
force and effect until the Effective Date of the Department's decision
pursuant to any petition filed under Section 2(c) above (the "Arbitration
Decision") if AT&T requests to renegotiate pursuant to Section 2(b) above;
provided, however, that the prices, and, where feasible, any other terms
-------- -------
and conditions of this Agreement shall be trued up to conform with the
Arbitration Decision back to the date of expiration of the Term or, with
respect to modification of Resale Terms, back to the applicable
Renegotiation Request Date.
(e) Nothing in this Section 2 shall be construed as a waiver by either
Party of its right to appeal any decision of the Department, including the
Arbitration Decision.
(f) Upon termination or expiration of this Agreement in accordance with
this Section 2:
(i) each Party shall comply with its obligations set forth in
paragraph (c) of Section 18 of the General Terms and Conditions of
this Agreement;
(ii) each Party shall promptly pay all amounts (including any late
payment charges or cancellation charges, if any) owed under this
Agreement; and
(iii) each Party's obligations that by their terms continue in force
and effect after termination or expiration of this Agreement
(including, without limitation,
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indemnification obligations) shall survive termination or expiration
of this Agreement.
3. Transitional Support. Upon the termination or expiration of this
--------------------
Agreement, AT&T may itself provide or retain another vendor to provide Local
Services, Network Elements, Combinations or other access or services comparable
to those furnished under the terms of this Agreement. BA agrees to cooperate
with AT&T and to use commercially reasonable efforts to effect an orderly and
efficient transition to AT&T or AT&T's new vendor, subject to the payment by
AT&T to BA of the reasonable costs incurred in providing such cooperation.
4. Good Faith Performance. In the performance of their obligations under this
----------------------
Agreement, the Parties shall act in good faith and consistently with the
provisions of the Act and the applicable effective provisions of the Order.
Except to the extent a different standard is expressly set forth in this
Agreement, in which case such other standard shall apply, where notice, approval
or similar action by a Party is permitted or required by any provision of this
Agreement, (including, without limitation, the obligation of the Parties to
further negotiate the resolution of new or open issues under this Agreement)
such notice, approval or similar action shall not be unreasonably delayed or
withheld.
5. Option to Obtain Local Services, Network Elements or
Combinations Under Other Agreements.
-----------------------------------
(a) If BA enters into an agreement approved by the Department or the FCC
pursuant to Section 252 of the Act which provides for the provision in
the Commonwealth of Massachusetts of services covered in this Agreement
to another requesting Telecommunications Carrier (the "Other
Agreement"), BA shall make available to AT&T upon request such Other
Agreement to the extent required by Section 252(i) of the Act.
If AT&T enters into an agreement with a Telecommunications Carrier
approved by the Department or the FCC pursuant to Section 252 of the
Act with respect to services in the Commonwealth of Massachusetts (the
"Other AT&T Agreement"), then AT&T shall make available to BA upon
request such Other AT&T Agreement to the extent required by Section
252(i) of the Act.
(b) Notwithstanding the terms and provisions of paragraph (a) of this
Section 5, in the event that as a result of any decision, order or
determination of any judicial or regulatory authority, it is determined
that all or any portion of such paragraph (a) above is found invalid or
unenforceable, or if such decision, order or determination interprets
Section 252 (i) to require BA to offer Telecommunications Carriers the
right to select less than the entire Other Agreement, the Parties agree
to abide by such decision, order or determination and to amend
paragraph (a) of this Section 5 to the
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extent that it conflicts with such decision, order or determination.
6. Responsibility of Each Party. Each Party has and hereby retains the right
----------------------------
to exercise full control of and supervision over its own performance of its
obligations under this Agreement, and retains full control over the employment,
direction, compensation and discharge of all employees assisting in the
performance of such obligations. Each Party will be solely responsible for all
matters relating to payment of such employees, including compliance with social
security taxes, withholding taxes and all other regulations governing such
matters. Subject to the limitations on liability set forth in Section 9 of the
General Terms and Conditions of this Agreement and except as otherwise expressly
provided in this Agreement, each Party shall be responsible for (i) its own acts
and performance of all obligations imposed by all applicable federal, state or
local statutes, laws, rules, regulations, codes, orders, decisions, injunctions,
judgments, awards and decrees (collectively, "Applicable Laws") in connection
with its activities, legal status and property, real or personal, and (ii) the
acts of its own affiliates, employees, agents and contractors during the
performance of that Party's obligations hereunder. Neither this Agreement, nor
any actions taken by BA or AT&T in compliance with this Agreement, shall be
deemed to create an agency, joint venture, or other relationship between AT&T
and BA of any kind, other than that of purchaser and seller of services. Neither
this Agreement, nor any actions taken by BA or AT&T in compliance with this
Agreement, shall create a contractual, agency, or any other type of relationship
or third party liability between BA and AT&T`s end users or others.
7. Government Compliance.
---------------------
7.1 The provisions of this Agreement are subject in their entirety to the
applicable provisions of the Act and any other orders, restrictions
and requirements of governmental and regulatory authorities with
competent jurisdiction over the subject matter thereof and, in the
event of any direct conflict between the provisions of this Agreement
and the requirements of such governmental and regulatory authorities,
the requirements of such authorities shall prevail.
7.2 BA represents and AT&T acknowledges that BA is entering into this
Agreement specifically in order to satisfy the obligations of BA as
set forth in the Act and the Order.
7.3 In the event that any legislative, regulatory, judicial or other legal
action materially affects any material terms of this Agreement or the
rights or obligations of either AT&T or BA hereunder or the ability of
AT&T or BA to perform any material provision hereof, the Parties shall
renegotiate in good faith such affected provisions with a view toward
agreeing to acceptable new terms as may be required or permitted as a
result of such legislative, regulatory, judicial or other legal
action.
5
7.4 Notwithstanding anything herein to the contrary, in the event that as
a result of any decision, order or determination of any judicial or
regulatory authority with jurisdiction over the subject matter hereof,
it is determined that BA shall not be required to furnish any service
or item or provide any benefit required to be furnished or provided to
AT&T hereunder, then AT&T and BA shall promptly commence and conduct
negotiations in good faith with a view toward agreeing to mutually
acceptable new terms as may be required or permitted as a result of
such decision, order or determination; provided, however, that BA
expressly reserves all rights it may have to discontinue any such
service or item or benefit provided under this Agreement to the extent
permitted by any such decision, order or determination and AT&T
expressly reserves all rights it may have to oppose any such
discontinuance by BA.
7.5 The Parties hereby agree that where a clause from the Interconnection
Agreement between AT&T Communications of New York, Inc. and New York
Telephone Company (the "NY Agreement") submitted to the New York
Public Service Commission (the "NY PSC") has been incorporated in this
Agreement and such clause or provision is subsequently amended in the
NY Agreement to conform to an effective order of a governmental agency
or court of competent jurisdiction resulting from an appeal of a NY
PSC Order in Cases No. 96-C-0723 and No. 96-C-0724, such clause or
provision shall be simultaneously amended in this Agreement to conform
with any such amendments to the NY Agreement.
8. Regulatory Matters.
------------------
8.1 Each Party shall reasonably cooperate with the other in obtaining and
maintaining any required regulatory approvals for which the Party is
responsible in connection with the performance of its obligations
under this Agreement.
8.2 The Parties understand and agree that this Agreement will be filed
with the Department and may thereafter be filed with the FCC. The
Parties covenant and agree that this Agreement satisfies the
requirements of an agreement under Section 251 of the Act. Each Party
covenants and agrees to fully support approval of this Agreement by
the Department or the FCC under Section 252 of the Act without
modification, subject to the rights of the Parties to appeal or
challenge arbitrated provisions or arbitration decisions. The Parties
also reserve the right to seek regulatory relief and otherwise seek
redress from each other regarding performance and implementation of
this Agreement. In the event the Department, FCC or any court rejects
this Agreement in whole or in part, the Parties agree to meet and
negotiate in good faith to arrive at a mutually acceptable
modification of the rejected portion(s). If such new terms are not
renegotiated within 30 days after such rejection, the dispute shall be
referred to the Dispute Resolution process set forth in Section 16
6
of the General Terms and Conditions of this Agreement.
9. Liability and Indemnity.
-----------------------
9.1 Indemnification.
---------------
(a) With respect to all matters under this Agreement other than Local
Services (which shall be governed by the provisions of Appendix A
to Part I of this Agreement), to the extent not prohibited by any
Applicable Law, each Party (the "Indemnifying Party") shall
indemnify and hold harmless the other Party ("Indemnified Party")
from and against loss, cost, claim, liability, damage, and
expense (including reasonable attorney's fees) to third parties
for:
(i) damage to tangible personal property or for personal injury
proximately caused by the negligence or willful misconduct
of the Indemnifying Party, its employees, agents or
contractors; and
(ii) claims for libel, slander, infringement of copyright
arising from the material transmitted over the Indemnified
Party's facilities arising from the Indemnifying Party's
own communications or the communications of such
Indemnifying Party's Customers; and
(iii) claims for infringement of patents arising from combining
the Indemnified Party's facilities or services with, or the
using of the Indemnified Party's services or facilities in
connection with, facilities of the Indemnifying Party.
(b) The Indemnified Party will notify the Indemnifying Party promptly
in writing of any claims, lawsuits, or demands by third parties
for which the Indemnified Party alleges that the Indemnifying
Party is responsible under this Section, and, if requested by the
Indemnifying Party, will tender the defense of such claim,
lawsuit or demand. In the event the Indemnifying Party does not
promptly assume or diligently pursue the defense of the tendered
action, then the Indemnified Party may proceed to defend or
settle said action and the Indemnifying Party shall hold harmless
the Indemnified Party from any loss, cost, liability, damage and
expense. In the event the Party otherwise entitled to
indemnification from the other elects to decline such
indemnification, then the Party making such an election may, at
its own expense, assume defense and settlement of the claim,
lawsuit or demand. The Parties will cooperate in every reasonable
manner with the defense or settlement of any claim, demand, or
lawsuit.
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9.2 Limitation of Liability.
-----------------------
(a) Except as otherwise provided in Section 9.1 of the General Terms
and Conditions of this Agreement, no liability shall attach to
either Party, its parents, subsidiaries, affiliates, agents,
servants or employees for any cost, expense, claim, liability,
damage, expense or other Loss in the absence of gross negligence
or willful misconduct.
(b) Except as otherwise expressly provided in Section 9.1 of the
General Terms and Conditions of this Agreement, no Party shall be
liable to the other Party for any cost, expense, claim,
liability, damage, expense or other Loss caused by the conduct of
the other Party, the other Party's agents, servants, contractors
or others acting in aid or concert with the other Party.
(c) In no event shall either Party have any liability whatsoever to
the other Party for any indirect, special, consequential,
incidental or punitive damages, including, but not limited to
loss of anticipated profits or revenue or other economic loss in
connection with or arising from anything said, omitted or done
hereunder (collectively, "Consequential Damages"), even if the
other Party has been advised of the possibility of such damages.
(d) Except as otherwise provided in Section 9.1 of the General Terms
and Conditions, each Party's liability to the other Party for any
Loss relating to or arising out of any negligent act or omission
in its performance of this Agreement, whether in contract or in
tort, shall be limited to the amount that is or would have been
charged to the other Party by such negligent or breaching Party
for the specific service(s) or function(s) not performed or
improperly performed, and only for the period of time such
service or function was not performed or improperly performed.
(e) Nothing in this Section 9.2 shall excuse the payment of any award
of collocation remedies made pursuant to Section 2.2.20.2 of Part
III hereof or any remedy provided pursuant to Section 11 of the
General Terms and Conditions of this Agreement.
10. Payment Terms, Disputed Amounts and Audits.
------------------------------------------
10. Local Services.
--------------
All payments, disputes in regard to payments and (except as provided
in 10.4 below) audits for Local Services (if any) shall be on the
terms and conditions set forth in Appendix A to Part I of this
Agreement. All bills for Local Services provided to one
8
Party by the other are due within thirty-one (31) calendar days of the
xxxx xxx (payment date) unless the billed Party is able to establish
that the xxxx was not timely received (i.e., at least 20 days prior to
----
the payment date), in which case the payment date shall be twenty (20)
calendar days from the receipt of the xxxx. The Parties agree that
Local Services wholesale bills will be rendered and received
electronically. The above provisions shall be in addition to the terms
and conditions of Appendix A to Part I of this Agreement and shall be
interpreted as not in conflict therewith.
10.2 Payment Terms - Other than Local Services.
-----------------------------------------
This Section 10.2 does not apply to Local Services. Except for
alternately billed calls and meet-point billed calls, each Party shall
xxxx on a current basis all charges incurred by and credits due to the
other Party under this Agreement attributable to services established,
discontinued or performed during the preceding billing period. In
addition, either Party may xxxx in advance charges for all services to
be provided during the ensuing billing period except for charges
associated with measured service usage which will be billed in
arrears. The xxxx xxx (i.e., the billing date of a xxxx for a Party
----
for services under this Agreement), the period of service each xxxx
covers, and the payment date will be as follows:
(a) Each Party will establish a xxxx xxx each month for the other
Party's account. If payment is not received by the payment date,
as set forth in (b) following, in immediately available funds, a
late payment penalty will apply as set forth in (b) following.
(b) All bills dated as set forth in (a) preceding for service
provided to one Party by the other are due within thirty-one (31)
calendar days (payment date) unless the billed Party is able to
establish that the xxxx was not timely received (i.e., at least
----
20 days prior to the payment date), in which case the payment
date shall be twenty (20) calendar days from the receipt of the
xxxx. All bills are payable in immediately available funds. If
such payment date would cause payment to be due on a Saturday,
Sunday or Legal Holiday, payment for such bills will be due from
the billed Party as follows:
(i) If such payment date falls on a Sunday or on a Legal
Holiday which is observed on a Monday, the payment date
shall be the first non-holiday day following such Sunday or
Legal Holiday.
(ii) If such payment date falls on a Saturday or on a Legal
Holiday which is observed on Tuesday, Wednesday, Thursday
or Friday, the payment date shall be the last non-holiday
day preceding such Saturday or Legal Holiday.
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(iii) Further, if any portion of the payment is received by the
billing Party after the payment date, or if any portion of
the payment is received by the billing Party in funds which
are not immediately available to the billing Party, then a
late penalty shall be due to the billing Party. The late
payment penalty shall be the portion of the payment not
received by the payment date or not immediately available
times a late factor. The late factor shall be the lesser
of:
(x) The highest interest rate (in decimal value) which
may be allowed by law for commercial transactions,
for the number of days from the payment date to
and including the date that the billed Party,
actually makes the payment to the billing Party,
or
(y) 0.0005 per day, simple interest, for the. number
of days from the payment date to and including the
date that the billed Party actually makes the
payment to the billing Party.
10.3 Disputed Amounts -Other than Local Services.
-------------------------------------------
Except with respect to Local Services, in the event that a billing dispute
occurs concerning any charges billed to the billed Party by the billing
Party the following provisions will apply.
(a) The first day of the dispute shall be the date on which the billed
Party furnishes in writing the billing Party with the account number
under which the xxxx has been rendered, the date of the xxxx and the
specific items on the xxxx being disputed.
(b) If the Parties are unable to resolve the issues related to the
disputed amounts in the normal course of business within ninety (90)
days after delivery to the billing Party of notice of the disputed
amounts, each of the Parties shall appoint a designated representative
who has authority to settle the dispute and who is at a higher level
of management than the persons with direct responsibility for
administration of this Agreement. The designated representatives shall
meet as often as they reasonably deem necessary in order to discuss
the dispute and negotiate in good faith in an effort to resolve such
dispute. The specific format for such discussions will be left to the
discretion of the designated representatives, however all reasonable
requests for relevant information made by one Party to the other Party
shall be honored.
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(c) If the Parties are unable to resolve issues related to the
disputed amounts within forty-five (45) days after the Parties'
appointment of designated representatives pursuant to paragraph (b)
above, then the matter shall be decided pursuant to Section 16 of the
General Terms and Conditions of this Agreement.
(d) The Parties agree that all negotiations pursuant to this Section
10.3 with respect to disputed amounts shall remain confidential and
shall be treated as compromise and settlement negotiations for
purposes of the Federal Rules of Evidence and state rules of evidence.
(e) If a billing dispute is resolved in favor of the billing Party,
any payments withheld pending resolution of the dispute shall be
subject to the late payment penalty as set forth in paragraph 10.2
(b)(iii) above. Further, the billed Party will not receive a disputed
amount penalty credit and/or a late payment penalty credit.
(f) If a billed Party disputes a xxxx within three months of the
payment date and pays the total billed amount on or before the payment
date, and the billing dispute is resolved in favor of the billed
Party, the billed Party will receive a credit for a disputed amount
penalty from the billing Party for the period starting with the date
of payment and ending on the date of resolution. The credit for a
disputed amount penalty shall be the following:
The disputed amount penalty shall be calculated by multiplying that
portion of the disputed amount paid and resolved in the billed Party's
favor times the lesser of:
(i) The highest interest rate (in decimal value) which may be allowed
by law for commercial transactions, for the number of days from
the first date to and including the last date of the period
involved, or
(ii) 0.0005 per day for the number of days from the first date to
and including the last date of the period involved.
(g) If the billed Party disputes a xxxx within three months of the
payment date and pays the total billed amount after the payment date
and the billing dispute is resolved in favor of the billed Party, the
billed Party will receive a credit for a disputed amount penalty from
the billing Party for the period starting with the date of payment and
ending on the date of resolution. The credit for a disputed amount
penalty shall be as set forth following. In addition, the late payment
penalty applied to the disputed amount resolved in the billed Party's
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favor as set forth in paragraph 10.2(b)(iii) preceding will be
credited.
(h) If the billed Party disputes a xxxx within three months of the
payment date and does not pay the disputed amount or does not pay the
billed amount (i.e., the non-disputed and disputed amount), and the
billing dispute is resolved in favor of the billed Party, the billed
Party will not receive a credit for a disputed amount penalty from the
billing Party. The late payment penalty applied to the disputed
amount resolved in the billing Party's favor as set forth in paragraph
10.2(b)(iii) preceding will not be credited.
(i) If a billed Party disputes a xxxx after three months from the
payment date and pays the total billed amount on or before the dispute
date or after the dispute date but prior to the date of resolution,
and the billing dispute is resolved in favor of the billed Party, the
billed Party will receive a credit for a disputed amount penalty from
the billing Party for the period starting with the date of dispute (if
the payment was received before or on the dispute date) or the date of
payment (if the payment was received after the dispute date) and
ending on the date of resolution., The credit for a disputed amount
penalty shall be as set forth following. The billed Party will not
receive a credit for the late payment penalty applied to the disputed
amount resolved in the billed Party's favor if the payment was
received on or before the dispute date. If the payment was received
after the dispute date but prior to the date of resolution, the billed
Party will receive a credit for a late payment penalty applied to the
disputed amount resolved in the billed Party's favor times a late
payment penalty factor for the period starting with the date of
dispute and ending on the date of payment. The penalty factor shall be
as set forth in paragraph 10.2(b)(iii) preceding.
(j) If the billed Party disputes a xxxx after three months from the
payment date and does not pay the disputed amount or does not pay the
billed amount (i.e., the non-disputed amount and disputed amount) and
the billing dispute is resolved in favor of the billed Party, the
billed Party will not receive a credit for a disputed amount penalty
from the billing Party. The billed Party will receive a credit for the
late payment penalty applied to the disputed amount resolved in the
billed Party's favor times a late payment penalty factor for the
period starting with the date of dispute and ending on the date of
resolution. The penalty factor shall be as set forth in paragraph
10.2(b)(iii) preceding.
(k) Adjustments for the quantities of services established or
discontinued in any billing period will be prorated to the number of
days or major fraction of days based on a thirty (30) day month. The
billing Party will, upon request and if available, furnish to the
billed Party such detailed information as may
12
reasonably be required for verification of any xxxx.
(l) When a rate as set forth in this Agreement is shown to
more than two decimal places, the charges will be
determined using the rate shown. The resulting amount
will then be rounded to the nearest xxxxx (i.e.,
rounded to two decimal places).
(m) The Parties agree to establish a process by which
closure of a specific billing period will occur by
joint agreement. The purpose of a closure process is
for the Parties to jointly agree to close a billing
period to all further analysis and billing
transactions. Closure documentation at a minimum should
consist of a mutually developed agreement outlining the
process, a sign-off document to formalize the closure
of a specific period, and documented specific issues
which would be exempt from closure. The intent of a
closure process is for the Parties to agree that except
for exempted issues, all billing and financial
adjustments have been processed and rendered for a
specific xxxx period. The Parties agree to a xxxx
closure process which will be established within twelve
(12) months of the Effective Date of this Agreement.
10.4 Audits and Inspections.
----------------------
(a) Subject to the terms and conditions of this Section
10.4, the restrictions set forth in Section 18 of the
General Terms and Conditions and the reasonable
security requirements of each Party and except as may
be otherwise specifically provided in this Agreement,
each Party (the "Auditing Party") may audit the other
Party's (the "Audited Party") books, records and other
documents which relate solely to the Parties' billing
to the other Party under this Agreement (other than in
connection with Local Services, with respect to which
no such audit right shall be available except to the
extent BA develops an audit of the xxxx certification
process pursuant to an industry collaborative process,
in which event such audit rights shall be governed by
such developed process and not by this Agreement) once
each year at the conclusion of each calendar year, in
order to evaluate the accuracy of such other Party's
billing and invoicing. The Parties may employ other
persons or firms for this purpose. Such audit shall
take place at a time and place agreed to by the Parties
no later than thirty (30) days after notice thereof to
such other Party.
(b) Each Audited Party shall promptly correct any billing
error that is revealed in an audit, including
reimbursing any overpayment in the form of a credit to
the Auditing Party on the invoice for the first full
billing cycle after the Parties have agreed upon the
accuracy of the audit results. Any disputes
13
concerning audit results shall be resolved pursuant to
the procedures described in Section 16 of the General
Terms and Conditions of this Agreement.
(c) Each Audited Party shall cooperate fully in any such
audit, providing reasonable access to any and all
appropriate employees and relevant books, records and
other documents reasonably necessary to assess the
accuracy of its bills.
(d) Each Auditing Party may perform a single additional
audit of the Audited Party's relevant books, records
and documents during any calendar year if the previous
audit uncovered uncorrected net variances or errors in
invoices in favor of the Audited Party having an
aggregate value (except for Local Services purchases)
of not less than two percent (2%) of the total amount
payable by the Auditing Party during the period covered
by the audit.
(e) All audits shall be conducted at the sole cost and
expense of the Auditing Party.
(f) Upon (i) the discovery by either Party of overcharges
not previously reimbursed to the other Party or
underpayments by a Party or (ii) the resolution of
disputed audits, each Party shall promptly reimburse or
pay to the Party entitled thereto the amount of any
overpayment or underpayment, together with interest
thereon at a rate per month equal to the lesser of 1.5%
or the maximum permitted legal rate of interest for the
number of days from the date such Party received such
overpayment or, in the case of an underpayment, should
have received such payment through but excluding the
date such reimbursement or payment is made. In no
event, however, shall interest be assessed on any
previously assessed or accrued late payment charges.
10.5 Alternate Billing to Third Numbers.
----------------------------------
10.5.1 Calls on BA resold Lines using BA's Operator Services.
-----------------------------------------------------
The following procedures shall apply for Alternately
Billed Calls which are local calls or IntraLATA toll
calls carried by BA and originating or terminating over
a BA line (x) which has been resold by AT&T pursuant to
the terms of Part I of this Agreement and (y) for which
BA is providing operator and directory assistance
services:
14
10.5.1.1 AT&T Originating Call charged to Customer Served by a
------------------------------------------------------
BA Line. In the case of a call which originates from an
-------
AT&T Customer being served by a resold line in the BA
territory within Massachusetts (hereinafter "AT&T
Customer Resold Line") which is charged to a retail
Customer served by a BA line including a resold line in
BA territory within Massachusetts (hereinafter "BA
Massachusetts Territory"), BA shall record and process
such call, and transmit to AT&T an unrated call record.
AT&T shall rate such call for purposes of charging the
retail Customer and send such rated record to BA or a
resale carrier designated by BA in billable form for
billing and collection purposes, at which point AT&T
shall have no further responsibility for billing or
collecting for such call for BA retail Customers. BA,
for BA retail Customers only, shall pay AT&T for such
call the billed amount less the billing and collection
fee specified in Part IV. AT&T shall pay BA for the
call at the wholesale discount rate set forth in Part
IV as billed on the wholesale xxxx.
10.5.1.2 BA Originating Call charged to AT&T Customer. In the
--------------------------------------------
case of a call which originates from a BA retail
Customer within Massachusetts and is charged to an AT&T
Customer Resold Line, BA shall record and process such
call and rate such call for purposes of charging AT&T's
Customer. BA shall send such rated record to AT&T in
billable form for billing and collection purposes, at
which point BA shall have no further responsibility for
billing or collecting for such call. AT&T shall pay BA
for such call the billed amount less the billing and
collection fee specified in Part IV.
10.5.1.3 AT&T Originating Call charged to Other Carrier. In the
----------------------------------------------
case of a call which originates from an AT&T Customer
Resold Line which is charged to a customer of a third
party Telecommunications Carrier outside BA
Massachusetts Territory, BA shall record and process
such call and transmit to AT&T an unrated call record,
at which point BA shall have no further responsibility
for rating, billing, or collecting for such call. AT&T
shall pay BA for such call at the wholesale discount
rate set forth in Part IV as billed on the wholesale
xxxx.
15
10.5.2 Calls on BA Resold Lines Using AT&T's Operator Services. The following
-------------------------------------------------------
procedures shall apply for Alternately Billed Calls which are local
calls or IntraLATA toll calls carried by BA and originating or
terminating over a BA line (x) which has been resold by AT&T pursuant
to the terms of Part I of this Agreement and (y) for which BA is not
providing operator and directory assistance services:
10.5.2.1 AT&T Originating Call charged to BA Customer. In the
--------------------------------------------
case of a call which originates from an AT&T Customer
Resold Line and is charged to a BA retail Customer
within BA Massachusetts Territory, AT&T shall record
and process such call at its OSPS and rate such call
for purposes of charging BA's Customer and send such
rated record to BA in billable form for billing and
collection purposes, at which point AT&T shall have no
further responsibility for billing or collecting for
such call. BA shall pay AT&T for such call the billed
amount less the billing and collection fee specified in
Part IV. AT&T shall pay charges for Customized Routing
in accordance with Part IV, Section B. XIII of this
Agreement. Appropriate Reciprocal Compensation charges
for terminating to a BA line will apply pursuant to
Section 10.6 of this Agreement.
10.5.2.2 BA Originating Call charged to AT&T Customer. In the
--------------------------------------------
case of a call which originates from a BA retail
Customer within Massachusetts and is charged to an AT&T
Customer Resold Line, BA shall record and process such
call and rate such call for purposes of charging AT&T's
Customer. BA shall send such rated record to AT&T in
billable form for billing and collection purposes, at
which point BA shall have no further responsibility for
billing or collecting for such call. AT&T shall pay BA
for such call the billed amount less the billing and
collection fee specified in Part IV.
10.5.2.3 AT&T Originating Call charged to Other Carrier. In the
----------------------------------------------
case of a call which originates from an AT&T Customer
Resold Line which is charged to a customer of a third
party Telecommunications Carrier providing services
outside BA Massachusetts Territory, AT&T shall record
and process such call. AT&T shall pay charges for
Customized Routing in accordance with Part IV, Section
B. XIII of this Agreement. Appropriate Reciprocal
Compensation charges for terminating to a BA line will
apply pursuant to Section 10.6
16
of this Agreement.
10.5.3 Calls Billed to BA Resold Lines and Carried through CMDS and
------------------------------------------------------------
CATS. The following procedures shall apply for Alternately
----
Billed Calls which are local calls or IntraLATA toll calls
billed through the Centralized Message Distribution System
("CMDS") and originating or terminating over a third
company's line and charged to a BA line which has been
resold by AT&T pursuant to the terms of Part I of this
Agreement.
10.5.3.1 Calls Carried through CMDS and CATS. In the case
-----------------------------------
of a call which originates and terminates outside
BA Massachusetts Territory and is charged to an
AT&T Customer Resold Line, BA shall provide to
AT&T the information and charges with respect to
such call received from the out-of-region
Telecommunications Carrier via the daily usage
feed. BA shall have no further responsibility for
rating, billing and collecting for such call. AT&T
shall pay BA for such call an amount equal to the
amount charged to BA through the CATS settlement
process by such out-of-region Telecommunications
Carrier with respect to such call as billed on the
wholesale xxxx and a Call Usage Detail Service
charge in accordance with Part IV, Section B, XI.
B1 of this Agreement.
10.5.4 Administrative Matters. All other matters relating to the
----------------------
rating, billing, payment and transmission of records with
respect to Alternately Billed Calls which are not set forth
above, including, without limitation, the timing of payments
and xxxxxxxx, the frequency of transmission of records and
the eligibility of messages for billing, shall be governed
by the other applicable provisions of this Agreement or, to
the extent not so provided, by the Joint Operations Plan.
10.5.5 Other Alternate Billed Calls. A BA territory intraregion
----------------------------
Alternate Billed Call clearinghouse will be used for
settling Alternately Billed Calls for facility-based and
unbundled Network Element purposes and, to the extent it can
be implemented, for calls originating or charged to an AT&T
Customer Resold Line (including BA lines resold by third
party carriers within Massachusetts).
10.6 Reciprocal Compensation.
-----------------------
(a) Reciprocal Compensation only applies to the transport and
termination of Reciprocal Compensation Traffic.
17
(b) The Parties shall compensate each other for transport and
termination of Reciprocal Compensation Traffic, based on
actual usage, at the rates set forth in Part IV hereof.
(c) The Reciprocal Compensation arrangements set forth in this
Agreement are not applicable to interLATA calls, intraLATA
toll calls or to intraLATA calls originated on a third-party
carrier's network on a 1 + presubscribed basis or a casual
dialed (10XXX or 101XXXX) basis. All such calls shall
continue to be governed by the terms and conditions of the
applicable federal and state tariffs.
(d) When either Party delivers seven (7) or ten (10) digit
translated intraLATA 800/888 service to the other Party for
termination, where the originating Party uses its own switch
(i.e., not utilizing unbundled switching from the terminating
----
Party), the originating Party shall provide the terminating Party
with customer billing records in industry standard format (EMR)
if required by the terminating Party. Where the originating Party
utilizes unbundled switching from the terminating Party, the
Party with recording capability will provide such records. Where
the originating Party uses its own switch (not utilizing
unbundled switching) to originate the call, the originating Party
may xxxx the terminating Party for the delivery of the traffic at
Reciprocal Compensation rates. The terminating Party may not xxxx
the originating Party for Reciprocal Compensation under this
Agreement, except where the originating Party fails to provide
the terminating Party with useable EMR records in a timely
manner. The originating Party shall bear the entire cost of any
systems development and production of such records; provided that
the terminating Party that is providing the 800/888 service shall
pay for each record provided by the originating Party at the
reciprocal record exchange rate set forth in Part IV hereof. If
the originating Party performs the 800 database query for the
terminating Party, the originating Party may charge the
terminating Party for such a query at the rate set forth in Part
IV hereof.
(e) Each Party shall charge the other Party its effective
applicable tariffed IntraLATA switched access rates for the
transport and termination of all IntraLATA Toll Traffic.
(f) The rates for termination of Reciprocal Compensation Traffic
are set forth in Part IV.
18
11. Service Standards.
-----------------
The Parties hereby agree that the performance standards and remedies
approved by the Department in the Consolidated Arbitrations, D.P.U. 96-73/74,
96-75, 96-80/81, 96-83 and 96-94, shall be incorporated by reference into this
Agreement and shall govern the provision of services hereunder, as applicable.
12. OSS/Electronic Interfaces.
-------------------------
(a) Each BA service order completion (with the exception of complete
account conversions processed through the BA Service Order Processor
("SOP") system, e.g., complex services or accounts of 10 lines or
greater) shall contain all working telephone numbers ("WTNs") that
were processed on the service order. Should BA develop the capability
of providing WTNs on orders completed through the SOP system for
itself during the Term of this Agreement, BA will make such capability
for SOP-processed orders available to AT&T. The Parties mutually agree
to continue discussions regarding the feasibility, timeframes and cost
to implement such SOP capabilities for AT&T Customers.
(b) Migration as Specified.
(i) With respect to Local Services customers, AT&T may submit service
orders for agreed upon service types for BA end users who convert
their existing local exchange service to services resold by AT&T
by submitting a service order which indicates the desired service
configuration for each end user line being converted. By
submitting such service orders, AT&T directs BA to remove all
services except for those delineated below and to connect only
those services stated on the service order without disconnecting
the line. At this time, BA will not support this migration-as-
specified service order process for partial acquisitions (i.e.
those end user accounts for which AT&T seeks to convert some, but
not all, of the end user lines associated with a single Billed
Telephone Number). BA agrees that BA will explore the possibility
of performing migration-as-specified service order processing for
partial migrations in the future. BA shall convert such end user
line retaining the end user's existing telephone number (except
as otherwise provided in Part I(E)), directory listing
information, appearance in the E911 database, disability
designations, demarcation information, and voluntary blocking
selection. BA shall provision such resold line only with the
existing above referenced line characteristics and the service
configuration provided by AT&T in the service order.
(ii) [Intentionally omitted]
19
(iii) If the service order is incomplete, insufficient, incorrect,
or contains conflicting information such that BA is not able
to process the order, BA may reject such service order. Any
such rejection shall not be considered in any manner in
measuring or calculating BA's service performance or
satisfying any measurements. Notwithstanding anything to the
contrary set forth in this Agreement, (x) in the absence of
gross negligence or willful misconduct, BA shall have no
liability to AT&T, any AT&T customer, or any other third
party as a result of or otherwise in connection with the
rejection of any migration-as-specified service order; and
(y) AT&T shall indemnify BA and hold BA harmless from and
against any and all claims, losses, liabilities and damages
to third parties incurred by BA by reason of such
incomplete, insufficient, incorrect or otherwise erroneous
migration-as-specified service order.
(iv) BA shall develop this new service order capability and have
it in service to handle a commercially reasonable volume of
service orders by March 1, 1998 for Local Services. The
Parties shall mutually agree to the expansion of this
service order capability to additional service types.
(v) Appropriate OSS charges as set forth in Part IV shall apply.
Additionally, AT&T shall pay BA its apportioned share of
reasonable direct development costs, to the extent not
previously recovered from AT&T, for migration-as specified
capability (collectively, "Migration-as-Specified Costs").
Prior to incurring such Migration-as Specified Costs, BA
shall submit a good faith estimate of such development costs
to AT&T. AT&T shall notify BA within ten (10) business days
from receipt of such estimate as to whether or not BA should
proceed with the development of migration-as-specified
capability for Local Services. If AT&T notifies BA to
proceed, BA shall continue to develop such capability and
AT&T shall be obligated, as stated herein, to pay BA its
development costs. Subsequent to the implementation of
migration-as specified capability by BA, the parties agree
that BA will calculate Migration-as-Specified Costs and
submit such costs to AT&T. If AT&T disputes such costs, such
dispute shall be submitted pursuant to Section 16 of the
General Terms and Conditions to determine (x) if BA actually
incurred such costs for the development of this service
order process capability to AT&T; and (y) that such costs
were reasonably incurred in order to provide this service
order process capability to AT&T.
(vi) The Parties shall negotiate in good faith to agree on
documented interface specifications and a mutually
acceptable testing period for the service order capability
described above. AT&T agrees to provide prior written notice
to BA in the event it decides to use such service order
capability for any high
20
volume, unusual quantity or other non-ordinary course of
business request sufficiently prior to the date it expects
to effect such order so that BA may adequately implement the
same, and will agree to further testing in connection
therewith to the extent required to assure proper
implementation. The Parties shall work cooperatively to
assure that any problems in connection with implementation
and the provision of such service order capabilities are
resolved.
(vii) AT&T and BA acknowledge and agree that the new service order
process provided herein shall only be utilized by AT&T to
place orders in a fully mechanized flow through environment.
The parties further agree that any changes to this service
order type that the parties may undertake to negotiate shall
preserve and not degrade such fully mechanized processes.
(viii) AT&T's agreement to pay such development costs herein does
not preclude AT&T from asserting a position against BA's
recovery of other development costs before appropriate
regulatory bodies. The Parties agree that this migration-as-
specified provision shall not be used to support either
Party's position as to the appropriate means for BA to
recover its costs to develop service order processing
capabilities.
(c) AT&T may submit a service order correction, change, supplement or
cancellation (a "Change Order") with respect to an initial service
order for Local Services and unbundled Network Elements at any time
after such service order has been transmitted to BA. BA anticipates
rejecting such Orders (i) for incorrect information contained in the
Change Order; and (ii) in those instances when the Order has been
removed from queue for processing. If such Change Order is rejected
for reasons other than incorrect information supplied with the Change
Order, AT&T may, at its option, contact its BA service representative
for manual intervention on a real time basis. The Parties shall
cooperate to resolve any problems which may arise in connection with
such service order process. For Local Services, BA will use
commercially reasonable efforts to implement the new process by
December 1, 1997 or sooner, as mutually agreed to by the parties. The
Parties shall mutually agree to an implementation date for unbundled
Network Elements.
(d) As further described in the attached Appendix A to the General Terms
and Conditions of this Agreement, the parties agree to work together
to develop and implement application-to-application electronic
interfaces which already conform or will conform to national standards
for primary interfaces* adopted by appropriate
______________________________
* As used herein, the term "Primary Interface" relates to the interface which
is designated as primary interface amongst more than one alternative offering by
an impartial, recognized standards body in the United States.
21
industry standards bodies, for the conduct of local service resale,
unbundled Network Elements, and the interconnect business between
ILECs and CLECs. The specifications stated in Appendix A reflect the
Parties' reasonable interpretation of what they believe, at the
present time, to be the future national standards. Both Parties agree
that the interfaces which will be implemented pursuant to Appendix A
will not be proprietary to either party and that information related
to these interfaces will be made publicly available in accordance with
Applicable Laws. Neither party waives any of its rights as a
participant in industry forums in the development and implementation
of national standards. The Parties acknowledge that the state of the
art in this area is rapidly changing. The Parties agree that this
Section 12(d) of the Agreement and Appendix A hereto and any joint
implementation plans pursuant to Appendix A do not imply and shall not
be used in any manner to demonstrate that (i) existing BA interfaces
do or do not meet OSS requirements established by appropriate
regulatory bodies; (ii) adoption of national standards is a
requirement under the Act, the Order, or Applicable Laws; or (iii) a
particular means of cost recovery is appropriate or not, except to the
extent the Parties have agreed to cost recovery herein. Except for the
foregoing neither party waives its rights to present its positions
with respect to the adequacy of BA's existing and future interfaces
and the need for national standards.
(e) The Parties acknowledge that activities similar to those described in
this Section 12 and Appendix A to these General Terms and Conditions
are currently underway in New York pursuant to the NY Agreement and
that, where practical, the Parties do not intend unnecessarily to
duplicate performance thereunder.
13. Operations Plan and Implementation Team. The Parties agree to an
---------------------------------------
Implementation Plan as set forth in Attachment 2 to this Agreement.
14. Force Majeure.
-------------
(a) Neither Party shall be liable for any delay or failure in performance
of any part of this Agreement (other than an obligation to make money
payments) from any cause beyond its reasonable control and without its
fault or negligence including, without limitation, acts of nature,
acts of civil or military authority, government regulations,
embargoes, epidemics, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, work stoppages,
strikes, equipment failure, power blackouts, volcanic action, other
major environmental disturbances, unusually severe weather conditions,
inability to secure products or services of other persons or
transportation facilities, or acts or omissions of transportation
carriers (each, a "Force Majeure Event"). If any Force Majeure Event
occurs, the Party delayed or unable to perform shall give prompt
notice to the other Party and shall take all reasonable steps to
mitigate the effects of such Force Majeure Event. During the
22
pendency of the Force Majeure Event, the duties of the Parties under
this Agreement affected by the Force Majeure Event shall be abated
and, upon cessation of such Force Majeure Event, shall resume as
promptly as reasonably practicable, without liability thereafter.
(b) Notwithstanding paragraph (a) of this Section 14, no delay or other
failure to perform shall be excused pursuant to this Section 14 by the
acts or omissions of a Party's subcontractors, materialmen, suppliers
or other third persons providing products or services to such Party
unless such acts or omissions are themselves the product of a Force
Majeure Event, or unless such delay or failure and the consequences
thereof are beyond the reasonable control and without the fault or
negligence of the Party claiming excusable delay or other failure to
perform.
15. Certain State and Local Taxes. Each Party purchasing services hereunder
-----------------------------
shall pay or otherwise be responsible for all federal, state, or local sales,
use, excise, gross receipts, transaction or similar taxes, fees or surcharges
levied against or upon such purchasing Party (or the providing Party when such
providing Party is permitted to pass along to the purchasing Party such taxes,
fees or surcharges), except for any tax on either Party's corporate existence,
status or income (other than income taxes included in rates through the
computation of carrying charge factors). Whenever possible, these amounts shall
be billed as a separate item on the invoice. To the extent a sale is claimed to
be qualified for resale tax exemption, the purchasing Party shall furnish the
providing Party a proper resale tax exemption certificate as authorized or
required by statute or regulation by the jurisdiction providing said resale tax
exemption. Failure to timely provide said resale tax exemption certificate will
result in no exemption being available to the purchasing Party.
16. Dispute Resolution.
------------------
(A) Inter-Company Review Board:
---------------------------
(1) The Parties to this Agreement shall establish an Inter-Company
Review Board consisting of at least one representative from each
Party at the managing director or above level (or such lower
level as the Parties agree) to assist in the resolution of
disputes between BA and AT&T.
(a) Each Party must designate its initial representative to the
Inter-Company Review Board within 15 days of the Effective
Date of this Agreement.
(b) The Parties may change their designee, or select an
alternative designee, as required or deemed appropriate,
without notice.
23
(B) Non-Service Affecting Disputes:
------------------------------
If a non-service affecting dispute arises between BA and AT&T during the
Term of the Agreement, the following process, which shall be overseen by
the Department, shall be followed to resolve such dispute. In the event the
Parties, in good faith, do not agree that a non-service affecting dispute
exists, the dispute shall be assumed to be a service affecting dispute
(except as provided in Paragraph (C) below) and the process for resolving a
service affecting dispute, as described in Paragraph (C) below, shall be
followed.
(1) Informal Negotiation of Non-Service Affecting Dispute.
-----------------------------------------------------
If the Parties have a non-service affecting dispute either Party
may initiate the procedures set forth herein by providing notice
of the existence of a non-service affecting dispute as set forth
in Section 17 of the General Terms and Conditions of the
Agreement. The petitioning party shall also serve the Department
and the Inter-Company Review Board with a copy of the notice.
(a) The Parties shall have an initial 30-day period beginning
from the date on which either Party has provided written
notice to the other Party identifying the existence of a
non-service affecting dispute within which to resolve the
dispute themselves, without mediation or arbitration as
provided below. The Parties shall make a reasonable effort
to meet as often as necessary but not less than one time
each week in an effort to resolve a dispute.
(b) The Parties may also mutually agree to other informal
resolution processes for specific circumstances, including,
but not limited to commercial mediation or arbitration prior
to requesting the Department initiate mediation or
arbitration of any non-service affecting dispute between BA
and AT&T.
(2) Formal Mediation or Expedited Investigation/Arbitration of Non-
----------------------------------------------------------------
Service Affecting Dispute by the Department.
-------------------------------------------
If the Inter-Company Review Board is unable to resolve a non-
service affecting dispute within thirty (30) days (or such other
period agreed to in writing by the Parties) either Party may
petition the Department. The initial petition shall be for
mediation. If agreement cannot be reached through mediation, the
aggrieved Party may then petition the Department for expedited
investigation/arbitration. The mediation and expedited
investigation/arbitration process shall be overseen by the
Department.
24
(a) A request for mediation shall be submitted in writing to the
Department, with a copy served on the other Party.
(b) The period of mediation shall be 60 days commencing on the date
of filing of such petition for mediation. Such petition shall
include a request to the Department to choose a mediator within
the first 10 days of such 60 day period, and the mediation shall
be conducted by a mediator designated by the Department. The
Department may assign a staff person or a professional mediator,
funded equally by the Parties, to conduct the mediation. The
Parties shall cooperate in good faith with the mediator to
resolve the dispute within such 60 day period. If, at any date
following the 45th day of such 60 day period, the Parties have
not resolved their dispute, the Parties may request the mediator
formally declare a deadlock.
(c) Following the earlier to occur of (i) expiration of the 60-day
mediation period without resolution of the dispute between the
Parties or (ii) formal declaration of a deadlock by the mediator
as contemplated in preceding paragraph (b), either Party may
petition the Department to open an expedited
investigation/arbitration into the dispute. The petition should
include a comprehensive explanation of the dispute (e.g.,
unresolved issues, areas of agreement, stipulations of fact), as
well as all relevant correspondence exchanged during negotiations
or mediation. The petitioning Party shall provide a copy of the
petition to the other Party on the same day that it is filed with
the Department. The petition shall include a request to open an
expedited investigation/arbitration within 10 business days of
receipt of its petition. The Department may assign a staff person
or a professional arbitrator, funded equally by the Parties, to
conduct the expedited investigation/arbitration which shall be no
more than 60 days. The staff person or arbitrator shall issue and
serve his or her decision and award on the Parties within 20
business days of the close of the investigation/arbitration. Any
such decision shall be submitted to the Department for approval,
unless otherwise provided by the Department.
(C) Service Affecting Disputes:
--------------------------
If a service affecting dispute arises between BA and AT&T during the
Term of the Agreement, the following process, which shall be overseen
by the Department, shall be followed to resolve such dispute. Any
disputes over a matter that directly affects the ability of a Party to
provide uninterrupted high-quality services to its customers
25
shall be considered a service affecting dispute. However, in the sole
discretion of the Party identifying the existence of the service affecting
dispute, said dispute may be resolved in accordance with the general
procedures/timeframes for a non-service affecting dispute, as described
above. The Parties agree that disputes regarding collocation remedies in
Exhibit A to Part III hereof shall not constitute service affecting
disputes.
(1) Informal Negotiation of Service Affecting Dispute.
-------------------------------------------------
If the Parties have a service affecting dispute either Party may
initiate the procedures set forth herein by providing notice of the
existence of a service affecting dispute as set forth in Section 17 of
the General Terms and Conditions of the Agreement. The petitioning
party shall also serve the Department and the Inter-Company Review
Board with a copy of the notice.
(a) The Parties shall have an initial 5 business day period beginning
from the date on which either Party has provided written notice
to the other Party identifying the existence of a service
affecting dispute and seeking to resolve it, within which to
resolve the dispute themselves through the Inter-Company Review
Board, without mediation or arbitration as provided below, except
as set forth in subsection (b) below. The Parties shall make a
reasonable effort to meet as often as necessary but not less than
once in an effort to resolve the dispute.
(b) The Parties may also mutually agree to other informal resolution
processes for specific circumstances, including, but not limited
to commercial mediation or arbitration prior to requesting the
Department to initiate mediation or arbitration of a service
affecting dispute between BA and AT&T.
(2) Formal Expedited Investigation/Arbitration of Service Affecting
---------------------------------------------------------------
Dispute by the Department.
-------------------------
If the Inter-Company Review Board is unable to resolve a service
affecting dispute within 5 business days (or such other period agreed
to in writing by the Parties) either Party may petition the Department
for expedited consideration and disposition of such dispute pursuant
to paragraph B(2)(c) above. There shall be no period of mediation. The
other Party shall assent to such request for expedition. In addition,
to the extent technically and operationally feasible, the Party
against whom the complaint has been made, shall take immediate
remedial action to correct the service affecting condition, without
prejudice to its position on the merits of the dispute or its
26
right to recover any costs incurred in implementing an interim
solution. The staff person or arbitrator appointed by the Department
shall issue and serve his or her decision and award on the Parties
within 10 business days of the close of the investigation/arbitration.
Such decision shall be submitted for approval by the Department,
unless otherwise provided by the Department.
(D) Confidentiality:
---------------
(1) BA, AT&T, and the arbitrator will treat the arbitration proceedings,
including the hearings and conferences, discovery, or other related
events, as confidential, except as necessary in connection with a
judicial challenge to, or enforcement of, an award, or unless
otherwise required by an order or lawful process of a court or
governmental body.
(2) In order to maintain the privacy of all arbitration conferences and
hearings, the arbitrator shall have the power to require the exclusion
of any person, other than a Party, counsel thereto, or other essential
persons.
(3) To the extent that any information or materials disclosed in the
course of an arbitration proceeding contain proprietary, trade secret
or confidential information of either Party, it shall be safeguarded
in accordance with an appropriate agreement for the protection of
proprietary, trade secret or confidential information that the Parties
agree to negotiate. However, nothing in such negotiated agreement
shall be construed to prevent either Party from disclosing the other
Party's information to the arbitrator in connection with or in
anticipation of an arbitration proceeding. In addition, the arbitrator
may issue orders to protect the confidentiality of proprietary
information, trade secrets, or other sensitive information in the
event the Parties cannot agree upon an agreement to govern the
handling of such information.
17. Notices. Any notices or other communications required or permitted to be
-------
given or delivered under this Agreement shall be in hard-copy writing (unless
otherwise specifically provided herein) and shall be sufficiently given if (a)
delivered personally, (b) delivered by prepaid overnight express service or (c)
delivered by confirmed telecopier transmission with a copy delivered thereafter
in the manner set forth in (a) or (b) above, to the following (unless otherwise
specifically required by this Agreement to be delivered by other means or to
another representative or point of contact and except for notices required in
the ordinary course of business):
27
If to AT&T:
AT&T Communications of New England, Inc.
00 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Vice President-Northeast States, LSO
Telecopier: (000) 000-0000
with a copy of each notice relating to an action, suit,
proceeding or claim to be sent simultaneously to:
AT&T Corp.
32 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Regional V.P. - Law and Government Affairs
Telecopier: (000) 000-0000
If to BA:
BA
1095 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President -Telecom Industry Services
Telecopier: (000) 000-0000
with a copy of each notice relating to an action, suit,
proceeding or claim to be sent simultaneously to:
BA
1095 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telecopier: (000) 000-0000
Either Party may unilaterally change its designated representative and/or
address for the receipt of notices by giving seven (7) days' prior written
notice to the other Party in compliance with this Section. Any notice or other
communication shall be deemed given when received.
28
18. Confidentiality.
---------------
(a) Any information such as specifications, drawings, sketches, business
information, forecasts, models, samples, data, computer programs and
other software and documentation of one Party (a "Disclosing Party")
that is furnished or made available or otherwise disclosed to the
other Party or any of its employees, contractors, agents or Affiliates
(its "Representatives" and, together with a Party, a "Receiving
Party") pursuant to this Agreement (such information, other than
customer proprietary network information, as defined in Section
222(f)(1) of the Act, being hereinafter collectively referred to as
"Proprietary Information") shall be deemed the property of the
Disclosing Party. Proprietary Information, if written, shall be marked
"Confidential" or "Proprietary" or by other similar notice, and, if
oral or visual, shall be confirmed in writing as confidential by the
Disclosing Party to the Receiving Party within ten (10) days after
disclosure. Unless Proprietary Information was previously known by the
Receiving Party free of any obligation to keep it confidential, or has
been or is subsequently made public by an act not attributable to the
Receiving Party, or is explicitly agreed in writing not to be regarded
as confidential, or is independently developed by the Receiving Party,
the Parties hereby agree that in addition to the confidentiality
requirements set forth in the Act and the Order, all Proprietary
Information (i) shall be held in confidence by each Receiving Party;
(ii) shall be disclosed on a confidential basis to only those persons
who have a need for it in connection with the provision of services
required to fulfill this Agreement and shall be used only for such
purposes; and (iii) may be used for other purposes only upon such
terms and conditions as may be mutually agreed to in advance of use in
writing by the Parties. Notwithstanding the foregoing sentence, a
Receiving Party shall be entitled to disclose or provide Proprietary
Information as required by any governmental authority or applicable
law only in accordance with Section 18(b) below.
(b) If any Receiving Party is required by any governmental authority or by
applicable law to disclose any Proprietary Information, then such
Receiving Party shall provide the Disclosing Party with written notice
of such requirement, to the extent permitted by law, as soon as
possible and, where possible, prior to such disclosure. The Disclosing
Party may then seek appropriate protective relief from all or part of
such requirement, and the Receiving Party shall use all commercially
reasonable efforts to cooperate with the Disclosing Party in
attempting to obtain any protective relief which such Disclosing Party
chooses to obtain. Absent any restraining order or other relief
prohibiting any such disclosure by the Receiving Party, then the
Receiving Party shall be entitled to disclose such Proprietary
Information and shall incur no liability hereunder as a result
thereof.
29
(c) In the event of the expiration or termination of this Agreement for
any reason whatsoever, each Party shall return to the other Party or
destroy all Proprietary Information and other documents, work papers
and other material (including all copies thereof) obtained from the
other Party in connection with this Agreement and shall use all
reasonable efforts, including instructing its employees and others who
have had access to such information, to keep confidential and not to
use any such information, unless such information is now, or is
hereafter disclosed, through no act, omission or fault of such Party,
in any manner making it available to the general public.
(d) Except as may be otherwise provided herein, by Applicable Law or in
any FCC rules or procedures hereinafter issued, BA shall not use any
AT&T data, even if the AT&T data is in aggregated form, for retail
marketing purposes, unless such data was previously known by BA free
of any obligation not to use such data for retail marketing purposes,
has been or is subsequently made public by an act not attributable to
BA or is explicitly agreed in writing not to be subject to the
restriction set forth in this Section 18(d).
(e) BA shall provide to AT&T documentation of BA operational flows within
60 days after the Effective Date of this Agreement to help ensure that
Section 18(d) above is being complied with by BA.
(f) The Receiving Party may make copies of Proprietary Information only as
reasonably necessary to perform its obligations under this Agreement.
All such copies shall bear the same copyright and proprietary rights
notices as are contained on the original.
(g) Except as otherwise expressly provided elsewhere in this Agreement, no
license is hereby granted under any patent, trademark, or copyright,
nor is any such license implied, solely by virtue of the disclosure of
any Proprietary Information.
(h) The Parties acknowledge and agree that CPNI is governed by Section 222
of the Act.
19. Number Portability.
------------------
19. Interim Number Portability.
--------------------------
(a) Until Number Portability is implemented on an industry-wide basis
pursuant to an order or regulation issued by the FCC or the
Department, the Parties agree to provide to each other Interim
Number Portability as defined in the Act, ("INP") through remote
call forwarding, route indexing, and full NXX code migration as
set forth below or through any other technical solution which
may, at the option of the Parties, be mutually agreed to by the
Parties.
30
(b) Upon implementation of Number Portability pursuant to an FCC or
Department regulation, both Parties agree to conform and provide
such Number Portability in accordance with said regulation. Once
Number Portability is implemented, either Party may withdraw, at
any time and at its sole discretion, its INP offerings, subject
to reasonable advance written notice to the other Party.
(c) In the event a Customer of one Party ("Party A") elects to become
a Customer of the other Party ("Party B") and such Customer
continues to reside within the same central office boundary and
Rate Center, and elects to utilize the original telephone
number(s) corresponding to the Exchange Service(s) it previously
received from Party A in conjunction with the Exchange Service(s)
it will now receive from Party B:
(i) Party B shall, upon receipt from such Customer of the
type of customer authorization required by the
Department or the FCC (together with an associated
service order which, among other things, indicates that
Party B has obtained the required customer
authorization permitting assignment of the number to
Party B), place an order with Party A to implement an
arrangement whereby all calls to the original telephone
number(s) will be forwarded to Party B over the
appropriate Local/IntraLATA trunks for purposes of
forwarding the call.
(ii) Party B shall become the customer of record for the
original Party A telephone numbers subject to the INP
arrangements provided that Party B continues to use the
INP service for the use of the end user customer
originally assigned such number, and in all respects
shall be treated as the customer as to such number as
if Party B has been assigned such number. Party A shall
use its reasonable efforts to consolidate into as few
billing statements as possible all collect, calling
card, and third-number billed calls associated with
those numbers, with sub-account detail by retained
number. The parties shall work cooperatively to enable
Party A to provide such billing statement to Party B in
an agreed-upon format via either electronic file
transfer, daily magnetic tape, or monthly magnetic
tape.
(iii) Party A will update its Line Information Database
("LIDB") listings for retained numbers, as directed by
Party B, and cancel calling cards associated with those
forwarded numbers.
31
(iv) Within two (2) business days of receiving notification
from the new Local Services carrier or the Customer
terminating service with Party B, Party B shall notify
Party A of the Customer's termination of service with
Party B. Party A will cancel the INP arrangements for
such Customer's telephone number(s). In the event Party
A changes its telephone numbers, it may discontinue
providing INP service as to such numbers.
(d) Procedures for Providing INP Through Route Indexing. Either Party
---------------------------------------------------
may deploy a Route Index arrangement which combines direct trunks
provisioned between BA's and AT&T's end offices with trunk side
routing translations. Under this arrangement, inbound calls to a
ported number will be pointed at a Route Index that sends the
call to a dedicated trunk group, built as a direct final, for the
sole purpose of facilitating completion for calls to a ported
number. Each Party will coordinate with the other to provide this
solution in a mutually agreeable and administratively manageable
manner (e.g., NXX level) so as to minimize switch resource
utilization for both Parties. AT&T shall pay to BA all costs and
expenses incurred by BA in implementing such Route Indexing
through tandems as requested by AT&T including, without
limitation, all costs and expenses arising out of the development
of necessary translations/reprogramming of existing trunk
routing, the provision of additional dedicated trunks serving
each affected tandem and the establishment of increased call
processing and memory capacity to handle the increased volume of
traffic, codes, translations and routing domains for all affected
tandem or end office switches.
(e) Procedures for Providing INP Through Full NXX Code Migration.
------------------------------------------------------------
Where either Party has activated an entire NXX for a single
Customer, or activated a portion consisting in excess of fifty
percent (50%) of an NXX Code for a single Customer with the
remaining numbers in that NXX either reserved for future use or
otherwise unused, if such Customer chooses to receive service
from the other Party, the first Party shall cooperate with the
second Party to have the entire NXX reassigned in the LERG (and
associated industry databases, routing tables, etc.) to an end
office operated by the second Party. Such transfer will be
accomplished with appropriate coordination between the Parties
and subject to lead times specified in ATTIS Numbering Committee
Guidelines 00-0000-000 C.O. code (NXX) Assignment guidelines and
NOF Reference Document, Part II, Section 2.3, NXX Code Openings,
for movements of NXXs from one switch to another.
(f) The Parties shall pay to each other for ported telephone numbers
the amounts determined in accordance with the Rochester Plan
formula as referenced in
32
Phase 3 of the Arbitration Award. Terminating IXC access charges
shall be shared between BA and AT&T pursuant to meet-point
billing arrangements between the Parties using special estimated
studies until such time as actual meet-point billing records are
available.
19.2 Number Reassignment. BA shall not be required to reassign to AT&T
-------------------
thousand number blocks (i.e., split NXX codes into blocks of a thousand numbers)
in the Local Exchange Routing Guide ("LERG") except to the extent that BA agrees
to such reassignment consistent with a change in the national guidelines for
Central Office Code assignments.
20. Directory Listings and Directory Distributions.
----------------------------------------------
(a) BA will include those AT&T Customers of Local Services resold by AT&T
from BA pursuant to Part I hereof in its "White Pages" and "Yellow
Pages" directory listings in accordance with the terms of Appendix A
of Part I, and will distribute such directories to such customers, in
an identical and transparent manner in which it provides those
functions for its own customers' telephone numbers.
(b) With respect to all other AT&T Customers, BA will include such AT&T
Customers' telephone numbers in all of its "White Pages" and "Yellow
Pages" directory listings (including electronic directories) and
directory assistance databases associated with the areas in which AT&T
provides services to such Customers, and will distribute such
directories to such Customers, in an identical and transparent manner
in which it provides those functions for its own Customers' telephone
numbers. In this Section 20, references to AT&T Customer telephone
numbers means telephone numbers falling within NXX codes directly
assigned to AT&T and to numbers which are retained by AT&T on the
customer's behalf pursuant to Interim Number Portability arrangements
described in Section 19 of the General Terms and Conditions of this
Agreement.
(c) BA will include all AT&T NXX codes on appropriate existing calling
charts in the BA Customer Guide section of the directory in the same
manner as it provides this information for its own NXX Codes. BA shall
assist AT&T in dealing with Xxxx Atlantic Yellow Pages Company to
facilitate Xxxx Atlantic Yellow Pages Company's publication of AT&T
Calling Charts or other AT&T information in the front portion of Xxxx
Atlantic Yellow Pages Company directories distributed in the MA
Region.
(d) AT&T will provide BA with its directory listings and daily updates to
those listings (including new, changes, and deleted listings) on a
non-exclusive basis in a mutually agreed upon format at no charge.
33
(e) BA will accord AT&T's directory listing information the same level of
confidentiality which BA accords its own directory listing
information.
(f) BA shall provide AT&T at no charge with directory distribution for
AT&T Customers. The Parties hereby acknowledge and agree that BA is
not required, as per applicable tariffs, to provide more than one free
white pages directory listing for each CENTREX system purchased for
resale, regardless of the number of CENTREX lines purchased as part of
such system.
(g) BA will provide AT&T with a report of all AT&T customer listings 90
days prior to directory publication in such form and format as may be
mutually agreed to by both parties. Both Parties shall use their best
efforts to ensure the accurate listing of such information.
(h) BA will work cooperatively with AT&T so that Yellow Page
advertisements purchased by Customers who switch their service to AT&T
(including Customers utilizing Interim Number Portability) are
maintained without interruption. BA will allow AT&T customers to
purchase new Yellow Pages advertisements without discrimination, under
the identical rates, terms and conditions that apply to BA's
customers.
(i) BA will include, on one-eighth of a page, in the "Information Pages"
or comparable section of its White Pages Directories for areas served
by AT&T in the MA Region, listings provided by AT&T for AT&T's
installation, repair and customer service and other customer service-
oriented information, including appropriate identifying logo. Such
listings shall appear in the manner that such information appears for
subscribers of BA and other LECs. BA shall not charge AT&T for
inclusion of this information.
(j) Electronic Format Directory Assistance. Upon at least thirty days
--------------------------------------
notice from AT&T, BA shall provide to AT&T in electronic format BA's
master directory assistance listing for BA end user customers in the
MA Region, exclusive of non-published numbers to the extent that BA is
prohibited from selling or offering to sell such numbers under
Applicable Law. BA shall also provide AT&T with updates (containing
adds, deletes and changes only) to these listings, at the same
frequency that BA updates its own directory assistance databases. The
Parties shall mutually agree to content, format and timing
specifications for these directory assistance listings. Such directory
assistance listings shall only be used by AT&T for the purpose of
providing local directory assistance to AT&T local exchange service
customers. AT&T shall pay BA a rate based on the cost of providing
directory assistance listings and updates in an electronic format,
including a reasonable profit.
34
21. Subscriber List Information.
---------------------------
(a) At AT&T's request, in accordance with Section 222(e) and (f) of
the Act, for the purpose of publishing a directory in any format,
BA shall provide to AT&T published Subscriber List Information on
a timely basis via readily accessible tape or electronic formats
on the same terms and conditions and at the same rates that BA
provides its own Subscriber List Information to third party
directory publishers. Changes to the Subscriber List Information
shall be available on a timely basis through the same tape or
electronic transfer means used to transmit the initial Subscriber
List Information at the same rates and on the same terms and
conditions that BA provides its own Subscriber List Information
to third party directory publishers. Subscriber List Information
provided by BA shall indicate whether the customer is a residence
or business customer.
(b) BA shall provide Subscriber List information that includes AT&T
Customers to third parties, as required by the Act, on the same
terms and conditions and at the same rates that BA provides its
own Subscriber List Information to third parties. AT&T shall
receive its pro-rata share (calculated based on the proportionate
share of AT&T Customers to the total number of customers included
in the Subscriber List Information) of net proceeds realized by
BA from third parties for such Subscriber List Information;
provided, however, that BA shall not be required to include AT&T
Customers in Subscriber List Information sales to third parties
(other than AT&T) if BA promptly notifies AT&T of all requests by
third party directory publishers and others for AT&T Subscriber
List Information thus permitting AT&T to deal directly with said
third parties.
22. Miscellaneous.
-------------
22.1 Delegation or Assignment - Neither Party may assign or transfer
------------------------
(whether by operation of law or otherwise) this Agreement (or any
rights or obligations hereunder) to a third party without the
prior written consent of the other Party which consent shall not
be unreasonably withheld or delayed; provided, however, each
Party may assign this Agreement to a corporate Affiliate or an
entity under its common control or an entity acquiring all or
substantially all of its assets or equity by providing prior
written notice to the other Party of such assignment or transfer.
Any attempted assignment or transfer that is not permitted shall
be void ab initio. All obligations and duties of any Party shall
be binding on all successors in interest and assigns of such
Party.
22.2 Nonexclusive Remedies - Except as otherwise expressly provided in
---------------------
this Agreement, each of the remedies provided under this
Agreement is cumulative and is in addition to any remedies that
may be available at law or in equity.
35
22.3 No Third Party Beneficiaries - Except as may be specifically set
----------------------------
forth in this Agreement, this Agreement does not provide and
shall not be construed to provide third parties with any remedy,
claim, liability, reimbursement, cause of action, or other
privilege.
22.4 Referenced Documents - Unless otherwise specifically provided
--------------------
herein, whenever any provision of this Agreement refers to a
technical reference, technical publication, AT&T Practice, BA
Practice, any publication of telecommunications industry
administrative or technical standards, or any other document
specifically incorporated into this Agreement, it will be deemed
to be a reference to the most recent version or edition
(including any amendments, supplements, addenda, or successors)
of such document that is in effect, and will include the most
recent version or edition (including any amendments, supplements,
addenda, or successors) of each document incorporated by
reference in such a technical reference, technical publication,
AT&T Practice, BA Practice, or publication of industry standards.
22.5 Governing Law - The validity of this Agreement, the construction
-------------
and enforcement of its terms, and the interpretation of the
rights and duties of the Parties shall be governed by the laws of
the Commonwealth of Massachusetts other than as to conflicts of
laws, except insofar as federal law may control any aspect of
this Agreement, in which case federal law shall govern such
aspect.
22.6 Publicity and Advertising - Neither Party shall publish or use
-------------------------
any advertising, sales promotions or other publicity materials
that use the other Party's logo, trademarks or service marks
without the prior written approval of the other Party. Neither BA
nor AT&T may offer services to its end users or others under any
of the brand names of the other Party or any of its parents,
subsidiaries or affiliates, regardless of whether or not such
brand names are registered trademarks or servicemarks, without
the other Party's prior written authorization. Neither Party
shall state or imply that there is any partnership or other joint
business arrangement with the other Party, its parent,
subsidiaries, or affiliates, for the provision of services to the
other Party's end users or others. BA and AT&T may jointly
develop a press release publicizing their relationship under this
Agreement, subject to both (1) any prior non-disclosure
agreement, and (2) mutually agreed upon language and media.
Notwithstanding this section, AT&T is entitled to identify BA as
the underlying carrier of the services provided hereunder.
22.7 Amendments or Waivers - Except as otherwise provided in this
---------------------
Agreement, no amendment or waiver of any provision of this
Agreement, and no consent to any default under this Agreement,
shall be effective unless the same is in writing and signed by
both Parties. In addition, no course of dealing or failure of a
Party strictly to enforce any term, right or condition of this
Agreement shall be construed as a
36
waiver of such term, right or condition. By entering into this
Agreement neither Party waives any right granted to it pursuant
to the Act and/or the Order, except to the extent the Act or the
Order permits such rights to be modified or waived and such
modification or waiver is expressly set forth herein.
22.8 Severability - If any term, condition or provision of this
------------
Agreement is held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not invalidate the
entire Agreement, unless such construction would be unreasonable.
However, the Parties agree to meet and negotiate in good faith to
arrive at a mutually acceptable modification of the invalid or
unenforceable provision. If the Parties are unable to agree on
such modification within 30 days after the Agreement provision(s)
is held to be illegal, invalid or enforceable, such failure to
agree shall be resolved in accordance with the Dispute Resolution
process in Section 16 of the General Terms and Conditions.
22.9 Entire Agreement - This Agreement, which shall include the
----------------
Attachments, Appendices, Exhibits and other documents referenced
herein, including all applicable tariffs as referenced herein (as
in effect from time to time except with respect to those
provisions in this Agreement in which it is expressly provided
otherwise), constitutes the entire Agreement between the Parties
concerning the subject matter hereof and supersedes any prior
agreements, representations, statements, negotiations,
understandings, proposals or undertakings, oral or written, with
respect to the subject matter expressly set forth herein. Neither
Party shall be bound by any terms additional to or different from
those in this Agreement that may appear subsequently in the other
Party's form documents, purchase orders, quotations,
acknowledgments, invoices or other communications.
22.10 Survival of Obligations - Any liabilities or obligations of a
-----------------------
Party for acts or omissions prior to the cancellation or
termination of this Agreement; any obligation of a Party under
the provisions regarding indemnification, Proprietary
Information, limitations on liability, and any other provisions
of this Agreement which, by their terms, are contemplated to
survive (or to be performed after) termination of this Agreement,
shall survive expiration or termination hereof.
22.11 Executed in Counterparts - This Agreement may be executed in any
------------------------
number of counterparts, each of which shall be deemed an
original, but such counterparts shall together constitute one and
the same instrument.
22.12 Headings of No Force or Effect - The headings of Articles and
------------------------------
Sections of this Agreement are for convenience of reference only,
and shall in no way define, modify or restrict the meaning or
interpretation of the terms or provisions of this Agreement.
37
22.13 Joint Work Product - This Agreement is the joint work product of
------------------
the Parties and their respective counsel and shall be fairly
interpreted in accordance with its terms and, in the event of any
ambiguities, no inferences shall be drawn against either Party.
22.14 Nonexclusive Dealings - This Agreement does not prevent either
---------------------
Party from providing or purchasing services to or from any other
person nor, except as provided in Section 5 of the General Terms
and Conditions and Exhibit A (Bona Fide Request Process) of Part
II hereof, does it obligate either Party to provide or purchase
any services not specifically provided herein.
22.15 No License - No license under patents, copyrights or any other
----------
intellectual property right (other than the limited license to
use consistent with the terms, conditions and restrictions of
this Agreement) is granted by either Party or shall be implied or
arise by estoppel with respect to any transactions contemplated
under this Agreement.
22.16 Dialing Parity - In addition to the parity requirements set forth
--------------
in Section E of Part I, the Parties shall provide dialing parity
to each other as required under Section 251(b)(3) of the Act,
except as may be limited by Section 271 (e)(2)(B) of the Act.
22.17 Disclaimer of Warranties - Upon the Department's ruling that it
------------------------
has substantially completed the establishment of performance
standards and remedies in the Consolidated Arbitrations, D.P.U.
96-73/74, 96-75, 96-80/81, 96-83 and 96-94, the following
disclaimer shall take effect: EXCEPT AS EXPRESSLY PROVIDED UNDER
THIS AGREEMENT, NO PARTY MAKES OR RECEIVES ANY WARRANTY, EXPRESS
OR IMPLIED, WITH RESPECT TO THE SERVICES, FUNCTIONS AND PRODUCTS
IT PROVIDES UNDER OR CONTEMPLATED BY THIS AGREEMENT AND THE
PARTIES DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY OR OF
FITNESS FOR A PARTICULAR PURPOSE.
38
