EXHIBIT 10.69
***PORTIONS OF THIS EXHIBIT MARKED BY BRACKETS ("[_____]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
SWITCHED RESELLER SERVICES AGREEMENT
This Agreement is between Allnet Communication Services, Inc. ("ALLNET"), a
Michigan corporation with its principal offices at 00000 Xxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxx Xxxxx, XX 00000, and DeltaCom, Inc. ("CUSTOMER"), an Alabama
corporation with its principal offices at 000 Xxxxx Xxxx, Xxxx, XX 00000 and is
made effective as of the date an Allnet officer executes this Agreement.
RECITALS
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Allnet is in the business of providing long distance telecommunication services
to commercial and residential customers; and
Customer is in the business of purchasing long distance telecommunication
services and reselling the same to commercial and residential customers; and
The parties desire to enter into a business arrangement whereby Allnet provides
certain of its telecommunication services to Customer for resale in accordance
with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants and obligations contained
herein the parties hereto agree as follows:
1. DEFINITIONS.
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1.1 General Definitions.
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A. "ALLNET 800 NUMBERS" shall be 800 telephone numbers ordered onto
the Allnet network by Customer and for which Allnet has either (i) been
appointed the RESPORG, or (ii) reserved and issued the 800 telephone number to
Customer. Allnet shall be deemed to be the RespOrg for all 800 telephone numbers
reserved and issued by it under (ii) above.
B. "ANI" shall mean a telephone number.
C. "ANI INFORMATION": see Subsection 5.4 C.
D. "BILLING CYCLE" shall mean the Allnet billing cycle to which
Customer's account hereunder is assigned by Allnet (a full billing cycle equals
approximately 30 days of SERVICES usage). All monthly recurring charges herein
shall apply separately to each Billing Cycle if Customer requests and Allnet
assigns multiple Billing Cycles. If Customer is assigned multiple Billing Cycles
hereunder, then usage for all Billing Cycles commencing in the same calendar
month shall be aggregated for the purpose of calculating whether Customer's
various monthly minimum usage requirements herein have been met.
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E. "BUSINESS DAY" shall mean Monday through Friday, 8:30 am to 5:30
pm EST, excluding nationally recognized holidays.
F. "CALL ABUSE" and "STANDARD MONITORING : see Subsection 9.1
G. "CALLING CARD MINIMUM CHARGE" and "CALLING CARD MONTHLY
SURCHARGE": see Exhibit 3.1, paragraph 5.
H. "CARRIER 800 NUMBERS" shall be 800 telephone numbers ordered onto
the Allnet network by Customer for which a party other than Allnet or Customer
has been appointed the RespOrg.
I. "CODE" shall mean a calling card authorization code issued by
Allnet to Customer (and by Customer to an END-USER).
J. "CDR" and "CDR TAPE": see Subsections 4.1 and 4.1 A.,
respectively.
K. "COLLATERAL": see Subsection 11.2.
L. "CUSTOM PROGRAM": see Subsection 6.2.
M. CUSTOMER 800 NUMBERS" shall be 800 telephone numbers ordered onto
the Allnet network by Customer for which Customer has been appointed the
RespOrg.
N. "CUSTOMER INVOICE": see Subsection 11.1.
O. "EFFECTIVE DATE" is the date this Agreement is signed by an
Allnet officer as set forth on the signature page hereof.
P. "END-USERS" are customers of Customer for which Customer has
submitted an order that has been accepted by Allnet during the term of this
Agreement. To the extent that Customer subscribes to the Services for its own
use, Customer shall be deemed to be an End-User.
Q. "END-USER INFORMATION": see Subsection 5:3.
R. "END-USER PURCHASE" and "TRANSFER PRICE": see Subsection 11.3.
S. "800 NUMBERS" shall collectively refer to the Allnet 800 Numbers,
Carrier 800 Numbers, Customer 800 Numbers and PIN 800 NUMBERS.
T. "ELECTRONIC EXCHANGE": see Subsection 4.1 B.
U. "ERROR CORRECTION": see Subsection 5.4 B.
V. "GENERIC PROGRAM": see Subsection 6.1.
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W. "GUIDELINES" shall refer to the telecommunication industry's
general rules with respect to 800 number portability, including but not limited
to, (i) the Federal Communications Commission's ("FCC") 800 number portability
policies and rules, (ii) the SMS 800 requirements set forth in the Xxxx
Operating Companies' Tariff F.C.C. No. 1, and (iii) the CLC 800 DataBase Ad-Hoc
Committees' Guidelines for 800 DataBase, as all of the foregoing may be replaced
or modified from time to time.
X. "INITIAL TERM": see Subsection 12.1.
Y. "MINIMUM CHARGE", "MONTHLY SURCHARGE" and "DISCOUNT MAKE-UP
CHARGE": see Exhibit 3.1, paragraph 8.
Z. "OPERATOR SERVICES" and "700/900 NETWORK CALLS": see Subsection
2.3.
AA. "PIN 800 NUMBER" shall be an Allnet 800 Number assigned to
Customer for use with the 800 PIN SERVICE.
BB. "PIN NUMBERS": see Subsection 1.2 B.
CC. "PROPRIETARY INFORMATION": see Subsection 13.1 A.
DD. "RESPORG" shall mean the responsible organization as defined in
the Guidelines. A RespOrg is the entity that is responsible for managing and
administering the accounts records in the 800 Service Management System
DataBase.
EE. "SUBSCRIPTION CHECKLIST": see Subsection 5.1.
FF. "TARIFF": see Subsection 2.1.
GG. "TRANSFER": see Subsection 15.2 B.
HH. For purposes of this Agreement and unless otherwise stated
herein, "MONTH" shall equal a Billing Cycle. Unless otherwise stated herein,
"DAYS" shall refer to calendar days.
1.2 Services Definitions. The following described telecommunication
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services are hereinafter collectively referred to as the "SERVICES".
A. "ANCILLARY SERVICES" consist of calling card operator assisted
calls and calling card traffic generated via the Codes which access the
following Allnet special features: teleconferencing, voice mail, Allnet Call
Delivery(R), Allnet InfoReach(R), SpeedLink(R), Option USA(R) and such other
special features as Allnet may from to time add to its calling card platform and
make available to Customer. The Ancillary Services are only available in
conjunction with the Calling Card Services.
B. "CALLING CARD SERVICES" consist of calling card traffic generated
via the Codes.
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C. "800 PIN SERVICE" consists of inbound SWITCHED SERVICES combined
with a PIN 800 Number which is accessed via four digit personal identificiation
numbers ("PIN NUMBERS") assigned by Customer to End-Users. The use of the PIN
Numbers with a PIN 800 Number permits multiple End-Users to utilize the same 800
telephone number on an individual basis. 800 DIRECTORY ASSISTANCE is not
available with the 800 PIN Service.
D. "DEDICATED SERVICES" consist of (i) switched outbound long
distance traffic delivered to an Allnet Point of Presence ("POP") via dedicated
facilities and terminated over the Allnet network, and (ii) switched inbound 800
traffic generated via 800 Numbers which traffic originates on the Allnet network
and is terminated by Allnet onto Customer's or a End-User's dedicated
facilities.
E. "DIRECTORY ASSISTANCE SERVICES" consist of calls made by End-
Users to directory providers for assistance in locating a non-800 Number. "800
DIRECTORY ASSISTANCE" consists of calls made to directory providers for
assistance in locating an Allnet 800 Number.
F. "INBOUND SERVICES" shall collectively refer to inbound traffic
under the Dedicated Services, Switched Services and 800 PIN Services.
G. "INTERNATIONAL SERVICES" consist of international traffic
generated via the Dedicated Services, Switched Services or Calling Card
Services.
H. "SWITCHED SERVICES" consist of switched inbound and outbound long
distance traffic generated by End-Users that originates and terminates over the
Allnet network.
2. SERVICES AVAILABILITY.
----------------------
2.1 Commencing on such dates after the Effective Date as may be mutually
agreed upon by the parties in writing, Allnet shall provide the Services
selected by Customer in those areas where Allnet in its sole discretion
determines the Services to be available. Allnet shall provide the Services in
accordance with the terms and conditions of service set forth in the applicable
Allnet federal and state tariffs, which are incorporated herein by reference
(the "TARIFF"). An excerpted copy of the Tariff is attached as Exhibit 2.1 and
made a part hereof.
2.2 Customer understands and agrees that the Services do not include
value-added services that Allnet makes available to its customer base, such as
without limitation, Allnet ESP(R) reports, and that Allnet is not obligated to
provide End-Users with such value-added services. Customer further understands
and agrees that the 800 PIN Service is not available to commercial End-Users.
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2.3 "OPERATOR SERVICES" are defined to be calls made via 00, 0- or 0+
calling that require the assistance of an operator to complete, such as but not
limited to, collect calls and xxxx-to-a-third-number calls. Operator Services
specifically exclude calling card operator assistance calls which are deemed to
be part of the Calling Card Services. "700/900 NETWORK CALLS" are those calls
made to various information providers utilizing telephone numbers with 700 or
900 dialing sequences. Operator Services and 700/900 network calls are not
included in the Services, but may be made available to End-Users via the Allnet
network. If Operator Services or 700/900 network calls are utilized by End-
Users, such calls shall be billed to End-Users at standard Allnet charges either
directly by Allnet or through its billing agents. Allnet shall not xxxx Customer
for the Operator Services or 700/900 network calls utilized by End-Users and any
revenues collected by Allnet for such Services and calls shall be retained
solely by Allnet. Allnet reserves the right to revise its rates for Operator
Services and 700/900 network calls at any time.
2.4 Customer understands and agrees that End-Users whose telephone lines
are presubscribed to Allnet may be requested to call 0-000-000-0000 to confirm
their long distance carrier and that they will hear a recording identifying
Allnet as their long distance carrier. If requested by Customer, Allnet shall
provide Customer with an available 700 number (1-700-555-XXXX) and a recorded
message that identifies Customer as the carrier. Customer's request and message
selection shall be made in writing on the Subscription Checklist submitted by
Customer when it first orders the Switched Services. Allnet shall make such 700
number available for Customer's use within fifteen Business Days after receipt
of said Subscription Checklist.
3. RATES FOR THE SERVICES.
----------------------
3.1 Customer shall purchase and pay for the Services at the rates set
forth in Exhibit 3.1 attached hereto and made part hereof.
4. CALL DETAIL RECORDS.
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4.1 Customer shall have the option of receiving call detail records for
usage of the Services ("CDR") on (i) a monthly basis, (ii) a pre-xxxx run basis
(approximately six times per week), or (iii) no CDR at all. Customer may also
elect both options (i) and (ii), as further detailed below.
A. If Customer elects option (i), then on or about the fifth
Business Day following the end of a Billing Cycle, Allnet shall deposit with an
overnight delivery service for delivery to Customer a magnetic tape containing
CDR for the Services in the modified CARE format set forth in Exhibit 4.1 A.
attached hereto and made a part hereof (the "CDR TAPE"). The CDR Tapes will rate
the Services at the standard Allnet rates in effect at the time the Services
were provided. Customer shall pay a one-time CDR
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Tape set up charge of [_____], plus [_____] per month. Software modifications to
the CDR Tape format requested by Customer are subject to Allnet approval and
will be invoiced to Customer at [_____] per hour, per programmer.
B. If Customer elects option (ii) above, then for each pre-xxxx
computer run performed by Allnet (generally pre-xxxx runs are performed by
Allnet six days per week) Allnet shall deliver the CDR by electronic data
exchange ("ELECTRONIC EXCHANGE") to either (i) Customer's designated mainframe
computer via the IBM Information Network ("IIN") via Network Data Mover ("NDM"),
or (ii) dedicated personal computer via Procomm+ software. The CDR transfers via
Electronic Exchange are initiated by Allnet and generally run during the evening
or early morning hours. Customer shall pay a one-time Electronic Exchange set up
charge of [_______], plus a monthly recurring charge of [_____]. Provided that
Customer is not in default hereunder, the [_______] set up charge shall be
credited to Customer after the Minimum Charge becomes effective. Further,
Customer shall be responsible for all transmission charges together with the
cost of hardware and software necessary at its location for use of IIN, NDM or
Procomm+, which hardware and software shall comply with the formats and
technical specifications that Allnet from time to time may promulgate. The
current Procomm+ format is set forth in Exhibit 4.1 A.
C. Customer shall select the applicable option or options at the
time it submits its first Subscription Checklist to Allnet. If Customer elects
both options 4.1 A. (i) and (ii), the individual set up charges and the monthly
recurring charges for both options shall be applicable. Customer may cancel an
option at any time on thirty days written notice. Customer may change an
existing option or select a new option at any time upon written notice and
payment to Allnet of the applicable set up charge. Changes or new selections
shall not be effective any earlier than the second Billing Cycle following the
date of the receipt of payment for the applicable set up charge.
4.2 Customer shall have the affirmative obligation of providing written
notice of any inaccuracies in Customer Invoices within sixty Business Days after
receipt. In the event that Customer does not report an inaccuracy concerning a
Customer Invoice within said sixty Business Day period, Customer shall be deemed
to have waived its right to contest accuracy of the billing and deemed to have
agreed that the Allnet billing system inputs and outputs, including without
limitation, the CDR and answer supervision, are accurate and final. If an
alleged inaccuracy is brought to the attention of Allnet within said twenty
Business Day period and such inaccuracy is verified by Allnet to its reasonable
satisfaction, Allnet shall credit future Customer Invoices to reflect such
verified inaccuracy. Allnet represents that the billing system inputs and
outputs used for the Services will be substantially the same used by Allnet for
its other customers utilizing services similar to those provided to Customer
hereunder.
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4.3 Customer agrees that, other than for one minute call rounding, it
shall not charge End-Users utilizing any of the Services for more minutes of
Services' usage than is contained in the CDR provided by Allnet to Customer.
5. FORECASTS; ORDER PROCESSING.
----------------------------
5.1 Customer shall not be obligated to subscribe to all of the Services
being made available by Allnet hereunder. Requests for subscription to any of
the Services must be made by Customer at least thirty days prior to the desired
date of activation. At such time as Allnet executes this Agreement and returns a
copy to Customer, Allnet shall supply Customer with a subscription checklist and
information sheet that must be completed by Customer each time it requests
subscription to a new Service (the "SUBSCRIPTION CHECKLIST"). In addition to the
Subscription Checklist, Customer shall provide Allnet with a forecast covering a
good faith estimate of the monthly traffic volume and distribution for the
ordered Services/800 Number for the three calendar month period following the
desired activation date. The forecast shall be in the format attached hereto as
Exhibit 5.1 and made a part hereof. Each forecast shall be revised by Customer
at least thirty days prior to the expiration of each three calendar month
period. Within ten Business Days of receiving a forecast or revised forecast,
Allnet shall provide written acceptance or rejection of the forecast, in whole
or in part. Failure by Allnet to accept or reject a forecast within said ten
Business Day period shall not be deemed an acceptance of the forecast, unless
Allnet thereafter accepts orders for the Services/800 Number covered by the
forecast. If Customer exceeds a forecast accepted by Allnet, then Allnet shall
have the right to cease accepting all orders for the under-forecasted
Services/800 Number for such period of time as Allnet deems necessary, in its
sole discretion.
5.2 At the time Customer submits its first Subscription Checklist to
Allnet, Customer shall select one of the options set forth below as the media by
which it will transmit to Allnet orders for the Services. Orders shall be
transmitted in the modified CARE format of Exhibit 4.1 A.
A. Magnetic tape in the format set forth in Exhibit 4.1 A.
B. Electronic Exchange via NDM.
C. Electronic Exchange via Procomm+.
Notwithstanding the foregoing options, if Customer has elected Electronic
Exchange for receiving CDR, then Customer shall be deemed to have selected
either option B. or C. above, whichever is applicable, for the purposes of this
Subsection 5.2.
5.3 At the time Customer submits an order for the Services, Customer shall
furnish Allnet, via the applicable media hereunder,
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with the name, billing and service addresses and ANI of each applicable End-User
(the "END-USER INFORMATION"). The End-User Information is required for local
exchange carrier ("LEC") account set-up, normal call processing and handling NXX
level customer service. The End-User Information shall be deemed to be
Customer's Proprietary Information in accordance with Section 13.
5.4 Allnet shall use its best efforts to activate Codes and End-User ANIs
in accordance with the following time frames:
A. Codes for existing End-User ANIs shall be activated within five
Business Days of receipt by Allnet of complete and accurate End-User
Information. Codes requested with End-User ANI orders will be activated when the
ANI is activated. If the End-User Information submitted by Customer is
incomplete or inaccurate, Allnet shall return the same to Customer for
correction and resubmission.
B. Customer understands and agrees that activation of End-User ANIs
is contingent on the End-User Information associated with such ANIs complying
with LEC established criteria. Assuming receipt of properly formatted End-User
Information that complies with said LEC established criteria, ANIs will
generally be activated within ten Business Days of receipt by Allnet of such
End-User Information. If the End-User Information does not comply with said LEC
criteria, Allnet shall attempt to correct non-complying End-User Information to
the extent Allnet is able to do so ("ERROR CORRECTION"). If Allnet is unable to
perform Error Correction within a reasonable period of time not to exceed ten
Business Days after receipt of non-complying End-User Information, it shall
resubmit the non-complying End-User Information to Customer for Customer's
correction and resubmission.
C. Subject to the provisions of subparagraph D. below, once each
calendar month Allnet shall provide Customer with a written report detailing
moves, adds and terminations for End-User ANIs ("ANI INFORMATION"). If Customer
has elected to receive CDR via Electronic Exchange, then the ANI Information
shall be transmitted via Electronic Exchange, rather than by a written report.
D. If 10% or more of the aggregate End-User Information submitted by
Customer in any calendar month fails to comply with the aforesaid LEC criteria,
Allnet shall have the right in its sole discretion to cease providing Error
Correction and/or ANI Information and require Customer to perform both
functions. If Allnet ceases providing Error Correction and/or ANI Information
pursuant to the preceding sentence and Customer requests Allnet to reinstate
either or both, then Allnet may require Customer to provide an Allnet training
session covering compliance with LEC criteria to appropriate Customer personnel.
Such training shall be at a location designated by Customer and Customer shall
pay Allnet a training fee of $25.00 per hour for the trainer, plus the trainer's
travel, lodging and ancillary expenses.
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5.5 Notwithstanding the order transmission media selected pursuant to
Subsection 5.2, until such time as Allnet determines in its sole discretion that
Electronic Exchange and/or magnetic tape processing is available for the
reservation or ordering of 800 Numbers (and informs Customer of such
availability), orders for activation or reservation of 800 Numbers shall be by
facsimile and subject to the following.
A. Subject to (i) the Guidelines, (ii) delays attributable to other
carriers, RespOrgs or the SMS 800 Database, and (iii) Subsections 5.1, 5.6 and
7.1, Allnet/Carrier/Customer 800 Numbers shall be activated and confirmed by
Allnet within two Business Days of receipt by Allnet of a proper order in
accordance with the order processing requirements set forth below. If the order
submitted is not in compliance with said processing requirements, Allnet shall
return the same to Customer for correction and resubmission.
(i) Orders shall be submitted to Allnet via facsimile using
the form attached hereto as Exhibit 5.5 (i) and made a part hereof, and shall
include: (a) a letter of authorization in the format attached hereto as Exhibit
5.5 (i(a)) and made a part hereof, if Allnet is being appointed as the RespOrg,
and (b) the End-User Information for each 800 Number, including the ANI
translation for each 800 Number.
(ii) If Allnet is requested to reserve an 800 Number from the
SMS 800 Database on behalf of Customer, then Customer shall make such request
via facsimile using the form attached hereto as Exhibit 5.5 (ii) and made a part
hereof. Allnet shall fulfill up to 10 such reservation requests per calendar
month at no charge. Additional requests each calendar month shall be charged to
Customer at a cost of [_____] for every additional 100 requests or fraction
thereof. Allnet shall provide Customer with the status of its request (either
confirm reservation or indicate unavailability) via facsimile within two
Business Days of its receipt of the request. VERBAL REQUESTS FOR RESERVATIONS
WILL NOT BE ACCEPTED OR HONORED BY ALLNET.
(iii) If Allnet has reserved an 800 Number for Customer and
Customer does not order activation of the reserved number in accordance with
item (i) above within ten Business Days from the date of Allnet confirmation of
the reservation, the reserved number shall be assigned to the Allnet pool of 800
numbers and shall be available to Allnet for its or its other customers'
reservation and use. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER SHALL BE
RESPONSIBLE FOR ALL DAMAGES AND CLAIMS IN THE EVENT CUSTOMER AS8IGNS A RESERVED
800 NUMBER TO AN END-USER WITHOUT HAVING TIMELY ORDERED ACTIVATION OF SUCH 800
NUMBER WITH ALLNET AND SUCH 800 NUMBER IS ASSIGNED BY ALLNET TO A THIRD PARTY.
CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD ALLNET HARMLESS FROM ANY CLAIMS
AND COSTS (INCLUDING ATTORNEY FEES) RELATING TO THE ASSIGNMENT OF SUCH 800
NUMBER.
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B. Subject to Subsections 5.1, 5.6 and 7.1, initial PIN 800 Number set up
shall be implemented within fifteen Business Days of receipt by Allnet of
complete and accurate End-User Information (including the applicable PIN
Number(s)). PIN Numbers must be numeric characters; "0000" is not available as a
PIN Number. For adding or deleting a PIN Number to an existing PIN 800 Number
the time frame shall be two Business Days after receipt by Allnet of Customer's
request for the addition or deletion. If the End-User Information submitted by
Customer is incomplete or inaccurate, Allnet shall return the same to Customer
for correction and resubmission.
C. The Allnet facsimile numbers and contact persons to be used for 800
Number reservations shall be 000-000-0000, Attention: Xxxxx Xxxxxxxxx; and for
800 Number orders shall be 000-000-0000, Attention: Xxxx Xxxxxxx. The Customer
facsimile number and contact person to be used for said purposes shall be
_______________, Attention:__________________. Either party may change its
respective facsimile number or contact person upon prior written notice to the
other party.
5.6 In the event the traffic volume of ANIs, Codes or 800 Numbers ordered
onto the Allnet network by Customer is such that Allnet determines, in its sole
discretion, that a delay in processing orders is required, Allnet shall have the
right to temporarily delay order processing for such period of time as Allnet
deems necessary in its sole discretion. Any such delays shall not, however,
adversely impact Customer for the purpose of determining whether Customer has
met any minimum usage requirements hereunder. Allnet agrees to adjust the time
frames for said requirements to reflect such delays.
6. CALLING CARD REQUIREMENTS.
-------------------------
6.1 Upon Customer's submission of a Subscription Checklist for the Calling
Card Services, Allnet shall commence the implementation of a Customer unique 800
gateway number for use of the Calling Card Services by End-Users (the "GENERIC
PROGRAM"). The Generic Program shall be subject to the Calling Card Surcharge,
but shall not be subject to the minimums set forth in Subsection 6.4. Allnet
shall make the unique gateway number available to Customer within thirty
Business Days after the date of receipt of the applicable Subscription
Checklist.
6.2 Customer shall have the option of selecting a customized program for
the Calling Card Services that would include a Customer unique 800 gateway
number and specially recorded voice and operator scripting (the "CUSTOM
PROGRAM"). Upon submission by Customer of a Subscription Checklist for the
Custom Program selecting either option (i) or (ii) set forth below, Allnet shall
commence the process of developing the Custom Program. The two options, one of
which must be selected on the Subscription Checklist, are as follows: (i) paying
an initial customization fee of [________] to Allnet, or (ii) in lieu of such
payment, agreeing to meet the minimums set forth in Subsection 6.4. If Customer
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selects option (i), but fails to timely pay the Customer Invoice listing the
[________] fee, Customer shall be deemed to have selected option (ii) above.
Subject to the written approval by Allnet of the customization specifications,
Allnet shall make the Custom Program available to Customer within forty-five
Business Days after the date of such written approval by Allnet. The unique 800
gateway number will be available for use with the Calling Card Services, but the
specially recorded voice and operator scripting will only be available for the
Allnet SpeedLink(R) special feature and the calling card operator assistance
function. The other Allnet calling card special features will identify Allnet or
another third party vendor as the provider of such features.
6.3 After the Generic and/or Custom Program has been implemented, upon
receipt of Customer's order and the End-User Information sent via the applicable
media hereunder for the assignment of Codes, Allnet shall assign the Codes to
Customer for issuance to End-Users, subject to the following. Customer shall be
responsible for all costs associated with the design, production and
distribution of all calling cards to be issued to End-Users. Allnet reserves the
right, in its reasonable business judgment, to limit the number of Codes it
assigns to Customer. CUSTOMER ACKNOWLEDGES AND AGREES THAT ONCE ALLNET ASSIGNS
THE CODES TO CUSTOMER, THE CODES WILL BE ACTIVE AND CUSTOMER FURTHER AGREES THAT
IT SHALL BE RESPONSIBLE FOR (I) ALL CHARGES ASSOCIATED WITH THE USAGE OF THE
CODES ASSIGNED TO CUSTOMER HEREUNDER, INCLUDING WITHOUT LIMITATION, CHARGES FOR
CALL ABUSE, AND (II) ALL CLAIMS BY THIRD PARTIES, INCLUDING END-USERS,
ASSOCIATED WITH THE CODES ASSIGNED TO CUSTOMER HEREUNDER, INCLUDING WITHOUT
LIMITATION, CLAIMS REGARDING CALL ABUSE, REGARDLESS OF WHETHER OR NOT CUSTOMER
ISSUES SUCH CODES TO END-USERS.
6.4 Excepting situations in which Customer has paid the [________]
customization fee pursuant to Subsection 6.2, if Customer has subscribed to the
Custom Program, Customer shall generate the following minimums in gross charges
(tariffed charges prior to available discounts) for usage of the Calling Card
Services as supported by the CDR for such Services.
A. [________] per month commencing with the sixth full month
following the month in which the Custom Program is made available to Customer.
B. [________] per month commencing with the twelfth full month
following the month in which the Custom Program is made available to Customer.
C. [________] per month commencing with the eighteenth full month
following the month in which the Custom Program is made available to Customer.
D. If any of the foregoing applicable monthly minimums are not
timely met, Customer shall have the option of paying either (i) a make up to
minimum charge of the difference between the applicable monthly minimum set
forth above and the actual
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gross charges for the Calling Card Services for each month in which the
applicable minimum is not met, or (ii) the [________] customization fee.
Customer shall make its election, and if it elects option (ii), Customer shall
pay the [________] customization fee so that it is received by Allnet within
fifteen Business Days following the date of written notice from Allnet that
Customer did not attain the applicable minimum. If Customer elects option (i),
then option (ii) shall no longer be available to Customer at any time and Allnet
shall add the appropriate make up to minimum charge to Customer Invoices for
each month in which the applicable minimum is not met for the remaining term of
this Agreement. If Customer elects option (ii), and timely makes its payment to
Allnet of the [________], Customer shall have no further obligations with
respect to the above minimums.
E. If Customer has subscribed to the Custom Program and elected to
be subject to the above minimums rather than pay the [________] customization
fee and this Agreement is terminated prior to the time the minimum under A.
above becomes effective (other than termination by Customer for an uncured
breach by Allnet), Customer agrees that it shall be liable for and pay to Allnet
the [________] customization fee.
7. 800 NUMBER REQUIREMENTS.
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ALL 800 NUMBERS.
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7.1 A. In order to protect the integrity of its network, Allnet may
without liability temporarily block any 800 Number having usage surges. Allnet
agrees to use reasonable efforts to promptly notify Customer after such blockage
has occurred.
B. If usage of an 800 Number impacts Allnet in such a manner that
the unbillable (non-completed) calls for such 800 Number in any month are
greater than 5% of the billable (completed) calls for such 800 Number in that
month, Allnet may, in its sole discretion, charge Customer a non-discountable
$0.50 charge for each unbillable call in that month.
C. CUSTOMER AGREES THAT IT SHALL BE RESPONSIBLE FOR (I) ALL CHARGES
FOR USAGE OF 800 NUMBERS, AND (II) ALL CLAIMS BY THIRD PARTIES, INCLUDING END-
USERS, RELATED TO 800 NUMBERS, INCLUDING WITHOUT LIMITATION, CLAIMS REGARDING
CALL ABUSE, REGARDLESS OF WHETHER OR NOT CUSTOMER ASSIGNS ANY 800 NUMBERS TO
END-USERS.
7.2 Customer understands and agrees that call duration for 800 Number
calls are measured at (i) time-point ("TP") 7 minus TP6 for the Switched
Services and for inbound Dedicated Services traffic terminated to a End-User's
dedicated facilities, and (ii) TP7 minus TP1 for all call attempts for inbound
Dedicated Services traffic terminated to Customer's dedicated facilities. Time
point definitions are attached hereto as Exhibit 7.2 and made a part hereof.
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ALLNET/CARRIER/CUSTOMER 800 NUMBERS.
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7.3 At Customer's written request and to the extent available to Allnet,
Canadian origination will be available for Allnet 800 Numbers. Due to the fact
that Canadian origination is provided through an arrangement with third parties,
Allnet does not guarantee the availability or continuing availability of
Canadian origination. Customer shall inform End-Users in writing of this fact
prior to or at the time of Customer's sale of Canadian origination. Allnet shall
provide Customer with prompt written notice if Canadian origination becomes
unavailable.
7.4 At Customer's written request and to the extent available to Allnet,
800 Directory Assistance will be available for Allnet 800 Numbers at a charge of
$15.00 per month per Allnet 800 Number requested to be listed with 800 Directory
Assistance. Due to the fact that 800 Directory Assistance is provided through an
arrangement with a third party, the provision of 800 Directory Assistance by
Allnet shall be subject to the policies and procedures promulgated from time to
time by such third party. Customer understands that any Allnet 800 Number listed
with 800 Directory Assistance is not published in any written directory, but is
only available on a call-in basis. Customer shall inform End-Users in writing of
this fact prior to or at the time of Customer's sale of 800 Directory
Assistance.
7.5 The transfer of Allnet/Carrier/Customer 800 Numbers or Inbound
Services traffic to another carrier (other than 800 PIN Service traffic which is
not transferable) shall be subject to the Guidelines and the Allnet policies and
procedures for 800 number/traffic transfers in existence at the time of the
requested transfer.
7.6 If an Allnet/Carrier/Customer 800 Number is temporarily blocked at
Customer's request made in accordance with Section 8.1, then for the period such
800 Number is being blocked Allnet shall, at Customer's written request and
expense, re-translate such 800 Number to Customer's customer service telephone
number.
PIN 800 NUMBERS.
----------------
7.7 Customer understands and agrees that due to the multiple End-User
nature of the 800 PIN Service, PIN 800 Numbers are controlled by Allnet and are
not transferable by Customer or End-Users to another carrier. End-Users to whom
PIN 800 Numbers are assigned forfeit the right to use such Numbers when their
services are cancelled. Customer shall in writing inform End-Users assigned a
PIN 800 Number of the conditions and limitations set forth above prior to or at
the time of Customer's sale of the 800 PIN Service.
7.8 A. When the 800 PIN Service is ordered by Customer, Allnet agrees to
initially provide Customer with three PIN 800 Numbers for use with the 800 PIN
Service. At such time as a PIN 800 Number has at least 1,000 PIN Numbers
assigned to it, and upon
13
the written request of Customer, Allnet agrees to provide an additional PIN 800
Number to Customer.
B. End-User calls to a PIN 800 Number for which a PIN Number is not
entered at the initial bong tone will be routed to an Allnet operator for manual
entry of the PIN Number. Up to 3% of total PIN 800 Number calls in any calendar
month may be routed to an Allnet operator for manual entry of the PIN Number
without charge to Customer. For all calls in excess of said 3%, Customer shall
be charged $0.25 per call.
C. If a End-User (i) enters the numerals "0000" as a PIN Number,
(ii) enters an invalid PIN Number (less than four digits or incorrect four
digits) on a second attempt to enter the PIN Number, or (iii) inquires of an
Allnet operator as to what a correct PIN Number is, then such calls will be
terminated to an Allnet 800 number to be delivered to Customer's customer
service center. Customer shall be charged for such calls at the then current
standard Allnet Solution(R) II 800 rates.
8. SERVICE BLOCKAGE AND CANCELLATION.
----------------------------------
8.1 Upon Customer's request sent via the applicable media hereunder,
Allnet shall use reasonable efforts to immediately block or cancel the service
to End-User ANIs or Codes, but in no event later than 24 hours after receipt of
said request. The same standard shall apply to blockage of an
Allnet/Carrier/Customer 800 Number associated with the Switched Services. Allnet
shall have no obligation to temporarily block Allnet/Carrier/Customer 800
Numbers associated with the Dedicated Services, but Allnet will at Customer's
request permanently cancel such 800 Numbers. Except in instances of its willful
misconduct, Allnet shall not be liable to Customer or End-Users for any damages,
costs or charges with respect to the failure of Allnet to block or cancel the
Services in accordance with Customer's request. Thus, Customer shall be solely
responsible for and shall defend, indemnify and hold Allnet harmless from and
against any claims and costs (including attorney fees) by End-Users or other
third parties related to the blocking of, or cancellation of the Services to, an
ANI, Code or 800 Number at the request of Customer.
8.2 In the event an End-User violates any provision of the Tariff, Allnet
reserves the right without liability to immediately cancel the Services to such
End-User in accordance with the Tariff.
9. CALL ABUSE MONITORING.
----------------------
9.1 Allnet monitors its network in an attempt to detect unauthorized usage
("Call Abuse") of an ANI, Code or 800 Number ("Standard Monitoring"). Customer
authorizes Allnet to apply Standard Monitoring to End-User ANIs, Codes and 800
Numbers. If, pursuant to its Standard Monitoring, Allnet determines that Call
Abuse is or may be occurring, Allnet shall have the right, but not the
obligation, to block usage of the Services from any ANI, Code
14
or 800 Number associated with the suspected Call Abuse. If Allnet elects to
block the Services it shall use reasonable efforts to immediately notify
Customer of such blockage via facsimile, but in no event later than 24 hours
after the blockage. Allnet shall remove a blockage or replace a Code within 24
hours of Customer's written request. In lieu of blocking the Services, Allnet
may, in its sole option, contact Customer by facsimile and request Customer to
substantiate authorization for the suspected Call Abuse. Within 24 hours from
its receipt of the Allnet facsimile, Customer shall instruct Allnet by facsimile
as to what action, if any, it wishes Allnet to take regarding such suspected
Call Abuse. Customer agrees that if it fails to timely provide such instruction,
Allnet may take whatever action, including taking no action, it deems reasonable
under the circumstances.
9.2 Except in instances of its willful misconduct, Allnet shall not be
liable to Customer or End-Users for damages, costs or charges, including charges
for Call Abuse, arising from acts or omissions of Allnet in applying or failing
to adhere to its Standard Monitoring practices or otherwise. Thus, Customer
shall be solely responsible for and shall defend, indemnify and hold Allnet
harmless from all expenses, charges and costs for usage attributable to End-User
ANIs, Codes and 800 Numbers, including all charges for Call Abuse.
9.3 The Allnet facsimile number and contact person to be used for the
purposes set forth in this Section 9. shall be 000-000-0000, Attention: Xxxxxx
Xxxxxx. The Customer facsimile number and contact person to be used for said
purposes shall be _______________, Attention:____________________. Either party
may change its respective facsimile number or contact person upon prior written
notice to the other party.
10. ADDITIONAL CUSTOMER REPRESENTATIONS/WARRANTIES & OBLIGATIONS.
-------------------------------------------------------------
10.1 Customer hereby represents and warrants that (i) it is certified to
do business in all jurisdictions in which it conducts business and it is in good
standing in all such jurisdictions, and (ii) it has been assigned a carrier
identification code by BellCore. Customer further represents and warrants that
it is certified by the proper regulatory agencies to provide interstate,
intrastate and international long distance services to End-Users in those
jurisdictions where such services are to be provided by Customer.
10.2 Customer shall be responsible for obtaining signed letters of agency
("LOAs") from prospective End-Users in the format set forth in Exhibit 10.2
attached hereto and made a part hereof. Customer shall retain the signed LOAs
and promptly make the originals available upon the request of Allnet, a LEC or
any regulatory agency. Customer shall be responsible for LEC Primary
Interexchange Carrier change charges ("PIC Charges") that may be imposed on
Allnet as a result of End-Users moving onto or off of the Allnet network or as a
result of Customer's inability or refusal to provide original End-User LOAs when
requested. Any
15
such PIC Charges shall be billed to Customer periodically on a Customer Invoice.
10.3 Customer shall be responsible for and pay all expenses in connection
with its business and its performance of this Agreement. Customer shall use its
best efforts to solicit and market the Services to prospective End-Users in
accordance with the terms of this Agreement and applicable law. Customer shall
at all times conduct its efforts in a commercially reasonable and ethical
manner. To the extent Customer makes any statements or representations to third
parties (including End-Users) with regard to Allnet, the Services, or the terms
of this Agreement, such statements or representations shall be true, accurate
and not misleading and shall conform to and be consistent with the terms herein.
10.4 Customer shall not transfer an End-User to another long distance
carrier, except with an LOA signed by the End-User and dated after the date on
which the End-User was placed on the Allnet network, a copy of which LOA shall
be provided to Allnet. Notwithstanding the foregoing, in the event Allnet is in
default under the terms of this Agreement and fails to cure said default in
accordance with the terms hereof, then Customer may transfer the End-Users to
another long-distance carrier. Customer warrants that End-Users shall be
residential and/or commercial end-users of the Services and shall not be other
long distance carriers, resellers or aggregators.
10.5 Customer may not use the Allnet name, logo, carrier identification
code or service marks without the prior written consent of Allnet. Customer
shall submit to Allnet for written approval copies of all marketing and
advertising materials involving the Allnet name, logo, carrier identification
code or service marks which Customer proposes to use in its marketing activities
prior to use of said materials. Allnet may in its sole discretion grant or
withhold its written consent or approval. Customer shall designate an individual
to serve as contact for all communications between itself and Allnet.
10.6 A. Customer shall be responsible for all customer service functions
for the End-Users and shall supply Allnet with a telephone number to which
Allnet can refer End-Users that call Allnet with customer service issues. A list
of the current Allnet network recordings that either identify Allnet as the
carrier or that reference the Allnet customer service telephone number are set
forth in Exhibit 10.6 A. attached hereto and made a part hereof. Customer
understands and agrees that Allnet may add, change or delete said recordings
from time to time and that Allnet is not obligated to change any recordings to
identify Customer as the carrier or to reference Customer's customer service
telephone number.
B. In performing its customer service functions, Customer shall
comply with the following quality assurance standards:
16
(i) All Customer telephone personnel shall be courteous and
responsive to End-Users at all times.
(ii) All End-User calls for customer service shall be answered
promptly.
(iii) Customer shall answer all End-User correspondence by telephone
or in writing. If an End-User is not available by telephone after two attempts,
Customer shall respond in writing within five Business Days of receipt of End-
User correspondence.
(iv) Customer shall immediately notify Allnet of all End-User
inquiries or problems regarding technical issues associated with the Allnet
network. Customer shall refer such inquiries via procedures established by
Allnet and communicated to Customer. Customer shall provide Allnet with the End-
User's name, ANI, address and a description of the nature of the problem.
(v) Customer shall maintain an experienced and trained staff of
personnel in order to comply with its obligations under this Agreement,
including the foregoing quality assurance standards.
(vi) Customer shall comply with reasonable modifications to the
quality assurance standards that Allnet may from time to time request in
writing.
11. PAYMENT TERMS AND OBLIGATIONS.
------------------------------
11.1 Customer shall pay Allnet for the Services in accordance with the
following.
A. Allnet shall invoice Customer via facsimile on or about the fifth
Business Day after the close of each Billing Cycle for the Services to be
provided during the then current Billing Cycle and for any other sums due Allnet
hereunder (the "Customer Invoice"). Each Customer Invoice shall detail: (i) the
amount due Allnet, or the credit due Customer, [________________________________
________________________________________________________________________________
________________________________________________________________________________
_______________]. In the event the Letter of Credit (defined at 11.2 D.) is less
than [__________________________________________________________________________
________________________________________________________________________________
___________________________________], the Customer Invoice shall provide for a
pre-payment in an amount [______________________________________________________
_____________________________________________________]. Each Customer Invoice
will rate the Services at the then current Allnet tariffed rates, less any
applicable discount credits for which Customer may be eligible pursuant to
Exhibit 3.1.
B. Each Customer Invoice shall be paid by Customer via wire transfer
of immediately available U.S. funds to an account
17
designated by Allnet so that the payment is received by Allnet within twenty-one
days from the date of the Customer Invoice. Allnet agrees that (i) the Customer
Invoice date shall be the same day that the Customer Invoice is faxed to
Customer, and (ii) the Customer Invoice will be faxed on a Business Day. If
payment for a Customer Invoice is not received by Allnet by the second Business
Day prior to the due date of the Customer Invoice, Allnet agrees to notify
Customer's contact named in C. below via facsimile of such non-receipt.
C. The Customer facsimile number and contact person for purposes of
this Subsection 11.1 shall be ______________, Attention :______________________.
Customer may change said facsimile number and contact person upon written notice
to Allnet.
D. At the time Customer submits its initial Subscription Checklist
hereunder, it shall provide Allnet with an irrevocable, standby letter of credit
to secure Customer's payment obligations hereunder (the "LETTER OF CREDIT"). The
Letter of Credit shall be from a financial institution acceptable to Allnet
18
in the minimum amount of [________] and shall include the terms and conditions
set forth on Exhibit 11.2 D. attached hereto and made a part hereof. Allnet
shall not be obligated to provide the Services until such time as it receives
such a satisfactory Letter of Credit. Customer shall be responsible for all fees
and expenses in obtaining the Letter of Credit and any amendments, supplements
or replacements. Customer shall at all times during the term of this Agreement
maintain the Letter of Credit in full force and effect in accordance with the
terms herein. Customer shall have the option of furnishing a cash security
deposit in lieu of the Letter of Credit. In such event, the provisions herein
with respect to the Letter of Credit shall apply to such security deposit as
well. Provided that Allnet has been paid for all outstanding monies due it from
Customer hereunder, Allnet agrees that upon the termination or expiration of
this Agreement it shall promptly return to Customer any undrawn Letter of Credit
or any excess funds remaining from a draw on the Letter of Credit.
E. In the event Customer fails to timely pay a Customer Invoice in
full, Allnet shall have the right to draw on the Letter of Credit for the full
face amount. Allnet shall apply the funds from the Letter of Credit to any
outstanding Customer Invoice and credit any excess funds to Customer's account.
If the funds from the Letter of Credit are insufficient to fully pay any
outstanding Customer Invoice, then Allnet shall have the right to immediately
proceed with its remedies under Subsection 11.3.
11.2 [Intentionally left blank.]
11.3 A. In the event Customer fails to timely pay any Customer Invoice
(other than a failure caused by the failure of Allnet to provide the notice set
forth in the last sentence of Subsection 11.1 B., in which event the due date
for the Customer Invoice shall be extended two Business Days) or fails to
maintain the Letter of Credit in full force and effect, Customer shall be in
breach of this Agreement which the parties hereby agree is an uncurable breach,
unless Allnet elects in writing to allow Customer to cure. If said uncurable
breach occurs, or if Customer otherwise breaches this Agreement (and the breach
remains uncured beyond any available cure period herein), Allnet shall have the
right at its sole option to do any or all of the following: (i) cease accepting
or processing orders for the Services; (ii) withhold delivery of any CDR Tapes
and cease Electronic Exchange; (iii) draw on the Letter of Credit and enforce
any guaranty granted herein; (v) terminate this Agreement without liability to
Allnet, including cancellation of the Services to Customer and/or End-Users;
(vi) collect from Customer for future Services that would have been provided but
for Customer's breach, including but not limited to the Monthly Surcharge and
other charges referenced herein; and (vii) pursue such other remedy or relief as
may be appropriate.
[____________________________________________________________________
______________________________________________________________________________
________________________________________________________________________________
___________________]
19
[____________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________
_________________________________________________________________________
_______________________________________________________________________________
_____________________________________________________________________________
________________________________________________________________________
_______________________________________________________________________________
________________________________________________________________________________
_______]
[_____________________________________________________________________
_____________________________________________________________________________
______________________________________________________________________________
__________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________
____________________________________________________________________________
_______________________________________________________________________________
___________________________________________________________________________
__________________________________________________________________________
_______________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
______________________________________________________________]
11.4 Customer acknowledges and agrees that time is of the essence with
respect to the payment of the Customer Invoices and that it shall have no
opportunity to cure any failure by it to timely pay any Customer Invoice, absent
a written agreement by Allnet. Customer further acknowledges and agrees to the
following with respect to TERMINATION of this Agreement by Allnet for
Customer's non-payment:
A. That Customer shall not seek legal or equitable remedies,
including without limitation, injunctive relief, that would require Allnet to
continue providing the Services to End-Users through the Customer while any
monies due Allnet hereunder remain unpaid.
B. That upon termination of this Agreement, Allnet has the right to
cancel or block the Services, or to continue providing long distance services to
End-Users; that such cancellation or blockage may have an adverse impact on an
End-User's business; and that Customer shall be solely responsible for all
claims asserted by End-Users or other third parties associated with such
blocking or cancellation of the Services by Allnet.
20
C. That cancellation or blockage of the Services to End-Users will
have a negative impact on Customer's business for which Allnet shall have no
liability.
11.5 Customer shall be responsible for payment of, or reimbursement to
Allnet of, Universal Service Fund and Lifeline Assistance Charges (presubscribed
line charges) as set forth in the National Exchange Carrier Association (NECA)
Tariff FCC #5, sections 8.5.1, 8.5.2 and 17.1.4 (A) & (B), as the same may be
amended from time to time, or any successor tariffs or sections. Said charges
shall be included on Customer Invoices and shall be calculated based on the
number of End-User ANIs presubscribed to Allnet. In addition, with respect to
the Services, Customer shall be responsible for payment of, or reimbursement to
Allnet for, (i) telecommunication relay service charges required by the
Americans with Disabilities Act or otherwise (both federal and state), (ii)
interexchange carrier fees payable to the FCC under the Omnibus Budget
Reconciliation Act of 1993 or otherwise, and (iii) universal service fund
charges, intraLATA compensation charges and similar fees and charges imposed on
Allnet by state regulatory agencies. The above charges shall be included on
Customer Invoices from time to time.
11.6 Within ten Business Days after the Effective Date, Customer shall
furnish to Allnet, and keep current during the term of this Agreement, valid and
appropriate tax exemption certificates for all applicable jurisdictions
(federal, state and local) in which it performs the End-User billing. Customer
shall be responsible for properly taxing the End-Users and for the proper and
timely reporting and payment of applicable taxes to the taxing authorities and
shall defend, indemnify and hold Allnet harmless from payment and reporting of
all applicable federal, state and local taxes, including but not limited to,
gross receipts taxes, surcharges, franchise fees, occupational, excise and other
taxes (and penalties and interest thereon), relating to the Services. Such
indemnification shall include costs and expenses (including reasonable
attorney's fees) incurred by Allnet in settling, defending or appealing any
claims or actions brought against it relating to said taxes. In the event
Customer fails to provide and maintain the required certificates, Allnet shall
have the right, but not the obligation, to charge Customer for applicable taxes.
12. TERM AND TERMINATION.
---------------------
12.1 Subject to any early termination provisions provided herein, this
Agreement shall be for the term of two years from and after the Effective Date
(the "INITIAL TERM"). Unless a party provides the other party with at least
ninety days written notice prior to expiration of the Initial Term of its intent
to discontinue this Agreement upon expiration of the Initial Term, then upon
such expiration this Agreement shall automatically continue until the earlier to
occur of (i) termination as provided elsewhere herein, or (ii) termination by a
party at any time upon ninety days written notice.
21
12.2 Upon written notice, this Agreement may be immediately terminated by
Allnet, without liability, (i) where provided for in this Agreement, (ii) in
accordance with its rights to cancel service as set forth in the Tariff, or
(iii) after the occurrence of any of the following events:
A. Upon Customer's insolvency, dissolution or cessation of business
operations.
B. The making by the Customer of any general assignment or
arrangement for the benefit of creditors; the filing by or against the Customer
of a petition to have it adjudged a bankrupt or for a reorganization or
arrangement under any federal or state bankruptcy or insolvency laws, unless any
such petition shall be dismissed or discharged within thirty days of its filing;
the appointment of a trustee or receiver to take possession of all or
substantially all the Customer's assets, where such fiduciary is not dismissed
within thirty days of its appointment; the attachment, execution, or other levy
or seizure of all or substantially all of the Customer's assets, where such
event is not discharged within thirty days of its initiation.
C. Pursuant to any order by the FCC denying Customer certification
or authorization to provide long distance services as contemplated herein.
Allnet shall have the right to cease providing the Services to Customer, but not
terminate this Agreement, in any state pursuant to an order by a Public Utility
or Service Commission denying Customer certification or authorization to provide
long distance services in such state.
D. The transfer of End-Users to another entity or long distance
carrier by Customer, unless transferred in accordance with Subsection 10.4 or
15.2 B.
12.3 This Agreement may be terminated by Customer pursuant to paragraph 9.
of Exhibit 3.1.
12.4 In the event of a breach of any term or condition of this Agreement
(except for payment of funds due Allnet which is covered by Section 11. or other
breaches the remedy for which is covered elsewhere herein) by a party, the other
party may terminate this Agreement upon thirty days written notice to the
breaching party, unless the breaching party cures the breach, or takes prompt
steps to cure a breach that cannot be reasonably cured during said period, prior
to expiration of said thirty day period. Customer's right to cancel service on
thirty days notice under the Tariff is superceded by its termination rights
under this Agreement.
12.5 Subject to Subsection 13.6, upon termination or expiration of this
Agreement, each party shall immediately discontinue the use, if any, of all
trade names, service marks, trademarks, Proprietary Information and other
materials provided to it by the other party.
22
12.6 In addition to its right to convert End-Users to Allnet customers as
provided elsewhere herein, upon termination or expiration of this Agreement,
Allnet shall have the right to continue providing long distance services to End-
Users on the Allnet network at the time of termination in accordance with the
rates and terms Allnet and an End-User may agree upon and to treat such
continuing End-Users as Allnet customers for all purposes.
13. TRADE SECRETS AND CONFIDENTIALITY.
----------------------------------
13.1 A. Each party agrees that all information furnished to it and
identified by the other party as being confidential or proprietary information
or trade secrets (collectively referred to as "PROPRIETARY INFORMATION"), is,
and shall continuously remain, the sole and exclusive property of the party
furnishing the same (the party furnishing the Proprietary Information
hereinafter referred to as the "DISCLOSING PARTY" and the other party
hereinafter referred to as the "RECEIVING PARTY"). Each party shall treat the
Proprietary Information and the contents of this Agreement in a confidential
manner and, except to the extent necessary in connection with the performance of
its obligations under this Agreement, neither party shall directly or indirectly
disclose the same to any third party without the written consent of the
Disclosing Party.
B. The confidentiality obligations hereunder shall not apply to any
portion of the Proprietary Information which (i) is or becomes public knowledge
through no fault of the Receiving Party, (ii) is in the lawful possession of
Receiving Party prior to disclosure to it by the Disclosing Party (as confirmed
by the Receiving Party's records), (iii) is disclosed to the Receiving Party
without restriction on disclosure by a person who has the lawful right to
disclose the information, or (iv) is disclosed pursuant to the lawful
requirement or formal request of a governmental agency. In the event that the
Receiving Party is requested or legally compelled by a governmental agency to
disclose any of the Proprietary Information of the Disclosing Party, the
Receiving Party agrees on behalf of itself and its representatives that it will
provide the Disclosing Party with prompt written notice of such requests so that
the Disclosing Party has the opportunity to pursue its legal and equitable
remedies regarding such potential disclosure.
13.2 The Proprietary Information is to be used by the Receiving Party only
for the purposes contemplated herein and the Receiving Party shall not disclose
the same to any one other than its employees who have a need to know and who
agree to be bound by the terms of this Section 13. The Proprietary Information
shall not be copied or retained by the Receiving Party in written form and all
originals and any copies or summaries thereof shall be returned to the
Disclosing Party upon request.
13.3 Each party acknowledges that its breach or threatened breach of this
Section 13. may cause the Disclosing Party
23
irreparable harm which would not be adequately compensated by monetary damages.
Accordingly, in the event of any such breach or threatened breach, the Receiving
Party agrees that equitable relief, including temporary restraining orders or
preliminary or permanent injunctions, shall be an available remedy in addition
to any other legal remedies to which the Disclosing Party may be entitled.
13.4 Neither party shall use the name, trade name, service marks, trade
marks, or printed materials of the other party, in any promotional or
advertising material, statement, document, press release or broadcast without
the written consent of the other party.
13.5 The parties acknowledge the existence of a highly competitive long
distance marketplace and understand and agree that either party may offer to
provide long distance services to customers of the other party, including End-
Users, in accordance with such rates and terms as a party and the customer may
agree upon, provided however, that a party shall not at any time use Proprietary
Information of the other party in soliciting customers for long distance
services. Provided further, Customer shall not, in any marketing activities to
existing Allnet customers, use the fact that Allnet is the Customer's underlying
carrier as an inducement for such customers to switch their long distance
service to Customer.
13.6 Notwithstanding the restrictions set forth in this Section 13.,
Allnet may use the End-User Information in furtherance of its rights under
Subsections 11.3 and 12.6.
14. LIMITATIONS ON LIABILITY AND ACTIONS; INDEMNIFICATION.
------------------------------------------------------
14.1 PROVISIONS RELATING TO THE LIMITATION OF ALLNET LIABILITIES AND ITS
DISCLAIMER OF WARRANTIES ARE SET FORTH IN THE TARIFF. IN ADDITION TO SAID
PROVISIONS, ALLNET SHALL NOT BE LIABLE FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR
REVENUES, CREDITS FOR SERVICE OUTAGES OR LOST TRAFFIC AND END-USER CREDITS.
EXCEPT WITH RESPECT TO CLAIMS ARISING OUT OF ITS WILLFUL MISCONDUCT, THE MAXIMUM
LIABILITY, IF ANY, OF ALLNET FOR ALL DAMAGES, INCLUDING WITHOUT LIMITATION,
DAMAGES FOR BREACH OF THIS AGREEMENT, NEGLIGENCE OR OTHER TORT WITH RESPECT TO
THIS AGREEMENT, SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED $50,000.00.
14.2 It being the express intent of the parties that Customer be solely
responsible for all claims of End-Users relating to the Services, Customer
agrees that it shall be solely responsible for any credits or adjustments that
may be issued or required to be issued to End-Users and that it shall not be
entitled to any credits or adjustments from Allnet on a Customer Invoice or
otherwise for credits or adjustments given to End-Users. Further and in addition
to its indemnification obligations set forth in the Tariff, Customer shall be
responsible for and shall save, defend, indemnify, and hold Allnet and its
directors, officers,
24
employees and agents free and harmless from any and all claims (including any
and all claims of End-Users and regulatory agencies), taxes, penalties,
interest, expenses, damages, lawsuits, or other liabilities (including without
limitation, reasonable attorneys' fees and court costs) relating to or arising
out of (i) the operation of Customer's business; (ii) Customer's activities
hereunder; and (iii) Customer's breach of any of the terms or provisions of this
Agreement.
14.3 The statute of limitations applicable to all claims by Customer
arising under this Agreement shall be one year from the date that the action or
event giving rise to the claim accrues, is discovered or should have been
discovered.
15. MISCELLANEOUS.
--------------
15.1 RELATIONSHIP OF PARTIES. Allnet and Customer acknowledge and agree
-----------------------
that the relationship between them is solely that of independent contractors,
and nothing herein shall be construed to constitute the parties as
employer/employee, partners, joint ventures, franchisor/franchisee, co-owners,
or otherwise as participants in a joint or common undertaking. Neither party,
nor their respective employees, agents or representatives, shall have any right,
power or authority to act or create any obligation, express or implied, on
behalf of the other.
15.2 LIMITATION ON ASSIGNMENT; SALE OF END-USER BASE.
------------------------------------------------
A. Neither party shall assign or transfer its rights or obligations
under this Agreement without the other party's prior written consent, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing,
Allnet may assign this Agreement to its parent, successor in interest or a
subsidiary without Customer's consent, and Customer may assign this Agreement to
its parent, successor in interest or a wholly owned subsidiary upon prior
written notice to Allnet and without Allnet's consent, provided Customer is not
in default hereunder and its assignee agrees in writing to assume Customer's
obligations hereunder. Any assignment or transfer without the required consent
shall be void.
B. Except as otherwise provided under Subsection 10.4, Customer
shall not assign, sell, convey or otherwise transfer all or a portion of its
End-User customer base (collectively "TRANSFER") without the prior, written
consent of Allnet, which consent shall not be unreasonably withheld provided
Customer complies with the conditions referenced below. Customer shall provide
Allnet with at least sixty days prior, written notice of Customer's intent to
initiate a Transfer. Within thirty days from the date of receipt by Allnet of
Customer's said notice of intent, Allnet shall in writing inform Customer of the
reasonable conditions required by Allnet for its consent to the Transfer, which
conditions will at a minimum include compensation to Allnet to cover charges for
future Services that would have been provided but for the Transfer, including
but not limited to, the Minimum Charge, costs for the Custom Program and other
charges referenced
25
in this Agreement. If Allnet fails to timely provide said conditions, Allnet
shall be deemed to have consented to the Transfer. The parties agree that (i)
Customer's breach of this Subsection 15.2 B. is an uncurable breach, unless
Allnet elects in writing to allow Customer to cure, and (ii) upon the occurrence
of such breach Allnet may immediately proceed with its remedies under Subsection
11.3.
15.3 ENTIRE AGREEMENT. This Agreement, the Tariff and any Exhibits
----------------
attached hereto contain the entire agreement between Allnet and Customer
concerning the subject matter hereof, and any representations or agreements,
oral or otherwise, not embodied herein, are superceded by the terms hereof and
shall be of no force or effect. Except as otherwise set forth herein, Allnet
makes no representations concerning the Services or otherwise. This Agreement is
intended to supplement the Tariff, but in the event of a conflict between the
provisions of this Agreement and the Tariff, the provisions of this Agreement
shall control to the extent of such conflict. Without limiting the foregoing,
Paragraphs 4.F. and 9. of Exhibit 2.1 are expressly superceded by the terms of
this Agreement. Subject to Allnet's limitation of liabilities under Subsection
14.1, Paragraph 4.G. of said Exhibit shall be reciprocal to the extent that
either party institutes legal action under this Agreement and prevails in such
action.
15.4 COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The individuals signing
this Agreement by their signatures below represent and warrant that they are
authorized to bind and do so bind the party on behalf of which they are
executing this Agreement. In order to be binding, any modifications to this
Agreement must be in writing and signed by an authorized representative of each
party.
15.5 COMPLIANCE WITH LAWS. During the term of this Agreement, the
----------------------
parties hereto shall comply with all local, state and federal laws and
regulations applicable to this Agreement or to their respective businesses;
further, the parties shall obtain, file and maintain any tariffs, permits,
certifications, authorizations, licenses or similar documentation as may be
required by the FCC, a state Public Utility or Service Commission, or any other
governmental body or agency having jurisdiction over their respective
businesses. Upon request, each party shall supply the other with copies of such
tariffs, permits, certifications , etc .
15.6 THIRD PARTIES. The provisions of this Agreement and the rights and
-------------
obligations created hereunder are intended for the sole benefit of Allnet and
Customer, and shall not create any right, claim or benefit on the part of any
person not a party to this Agreement, including End-Users.
15.7 SURVIVAL OF PROVISIONS. Any obligations of the parties relating to
----------------------
monies owed, as well as those provisions relating to
26
confidentiality, security interests, limitations on liability and actions and
indemnification, shall survive termination or expiration of this Agreement.
15.8 GOVERNING LAW. Except as otherwise required by tariff or federal
-------------
law, this Agreement shall be governed by Michigan law with exclusive venue and
jurisdiction of any disputes involving this Agreement in the U. S. District
Court for the Eastern District of Michigan or (in the event subject matter
jurisdiction cannot be established in the U. S. District Court) the Circuit
Court for the County of Oakland, State of Michigan.
15.9 CONSTRUCTION. The language used in this Agreement shall be deemed
------------
the language chosen by the parties to express their mutual intent. No rule of
strict construction shall be applied against either party.
15.10 ALLNET APPROVAL. This Agreement is not effective until executed
---------------
by an Allnet officer as set forth below and a copy is given to
Customer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates
set forth below.
ALLNET COMMUNICATION SERVICES, DELTACOM, INC.
INC.
By: /s/ XXXXXXX X. XXXXXXX By: /s/ XXXXXX XXXXXXXX
----------------------------------- -------------------------------
Title: EVP Title: PRESIDENT
-------------------------------- ----------------------------
Printed Name: XXXXXXX X. XXXXXXX Printed Name: XXXXXX XXXXXXXX
------------------------- ---------------------
Date: 1/25/94 ("Effective Date") Date: 1/17/94
------- --------------
1/7/94
EXHIBIT SCHEDULE
Exhibit Number Description
-------------- -----------
2.1 Excerpt of Tariff
3.1 Rates/Charges for the Services
4.1 A. CDR and Modified CARE Formats
5.1 Forecast Form
5.5 (i) 800 Number Order Form
5.5 (i(a)) 800 Number Letter of Authorization
5.5 (ii) 800 Number Reservation Form
27
7.2 Time Point Definitions
10.2 Form Letter of Agency
10.6 A. List of Allnet Network Recordings
11.2 D. Letter of Credit Terms & Conditions
28
EXHIBIT 3.1
RATES AND CHARGES FOR THE SERVICES
***INFORMATION IN THIS EXHIBIT 3.1 (PAGES 29-35) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***
29
EXHIBIT 7.2
TIME POINT DEFINITIONS
1. Time Point 1: Request for Service Event
Identifies the time of day that a request for service was received for the
call. The request for service event is declared upon detection of a valid
off-hook from an originating trunk.
2. Time Point 6: Answer Detected Event
Identifies the time of day that called party answer was declared.
3. Time Point 7: Call Disconnect Event
Identifies the time of day that calling or called party disconnect
occurred.
36
EXHIBIT 10.2
LETTER OF AGENCY
I, the undersigned Customer, authorize Deltacom ("Carrier") to provide my long
distance service through Allnet Communication Services, Inc. ("Allnet") as the
underlying transport provider, and to act as my agent in all matters related to
providing my long distance service for the telephone number(s) listed on this
form. I understand that, (i) I may only subscribe to one long distance carrier
for outbound services for the listed telephone number(s), (ii) Allnet's name
rather than the Carrier's name may appear on my local telephone company xxxx at
the time my service begins, (iii) there may be a charge from the local telephone
company for subscribing my long distance service to Carrier, (iv) there may be a
charge from my local telephone company should I decide to change my long
distance carrier after my service begins, and (v) I may be serviced and billed
directly by Allnet at such time as Allnet ceases being the transport provider
for the Carrier with respect to my long distance service.
This Letter of Agency shall remain in effect until Customer signs a new Letter
of Agency.
Telephone Numbers ______________________ ______________________
______________________ ______________________
______________________ ______________________
______________________ ______________________
__________________________________ Customer's billing address
(print Customer's name) and telephone #:
______________________________
__________________________________ ______________________________
Customer's signature ______________________________
______________________________
Title:___________________
Date:____________________
37
EXHIBIT 10.6 A
ALLNET NETWORK RECORDINGS
***INFORMATION IN THIS EXHIBIT 10.6A HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.***
EXHIBIT 11.2 D.
TERMS AND CONDITIONS FOR IRREVOCABLE STANDBY LETTER OF CREDIT
-------------------------------------------------------------
Issuer: FDIC insured financial institution acceptable to Beneficiary
Beneficiary: ALLNET COMMUNICATION SERVICES, INC.
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Account Party: ______________________________________________________________
______________________________________________________________
Amount: US $ _________________________________________________________
Advising and
Negotiating
Bank: Detroit, Michigan financial institution chosen by Issuer
Tenor: sight, partial drawings permitted
Expiration: Initial expiration date: _______________, 199_
The Credit shall be automatically extended (without the
necessity of a formal amendment of the Credit) on each
succeeding anniversary date of the initial expiration date,
unless not less than sixty (60) days nor more than ninety (90)
days prior to the initial expiration date or any subsequent
extended expiration date, Beneficiary receives notice from
Issuer in writing by overnight courier or registered mail
(return receipt requested) that Issuer elects not to extend
the Credit for an additional one year period.
Documents: 1. sight draft
2. One of the following statements purportedly signed by an
officer of the Beneficiary stating:
(A) "Allnet Communication Services, Inc. ("Allnet") has
determined that, as of the date of the accompanying sight
draft, [Account Party] was obligated to pay Allnet the amount
---------------
set forth on the accompanying sight draft and said amount is
now past due.", or
(B) "The accompanying sight draft does not exceed the sum of
(i) the amount Allnet Communication Services, Inc. ("Allnet")
has determined was due and payable by (Account Party) as of
the date of
39
the accompanying sight draft and (ii) the amount of payments
received by Allnet from [Account Party] within ninety (90) days
prior to the (a) filing of a petition by or against [Account
Party] with the United States Bankruptcy Court or (b) the making
by [Account Party] of an assignment for the benefit of creditors
which in either of the foregoing instances under applicable state
or federal law could result in the return of such payments to
[Account Party], its debtor in possession or other appropriate
parties.", or
(C) "Allnet Communication Services, Inc. ("Allnet") has received
notice from the issuer of Letter of Credit No.________ (the
"Credit"), or its successor or assignee, of its election to not
extend the Credit for an additional one year period. Allnet
agrees that it will return all unused Credit proceeds to [Account
Party] upon satisfaction in full of [Account Party's] obligations
to Allnet."
Governing
Law: Either the Uniform Commercial Code as enacted in the state where
Issuer is located or the Uniform Customs and Practices for
Documentary Credits, 1983 Revision, ICC Pub. No. 400 ("UCP")
shall govern the Credit. If the UCP shall govern, Articles 16c
and 16e thereof shall not apply. If this Credit expires during an
interruption of business as described in Article 19 of the UCP,
Issuer agrees that Beneficiary may draw against the Credit for a
period of thirty (30) days beginning on the date Issuer resumes
business.
Negotiation: At specified office of Advising and Negotiating Bank. If
presentment is made prior to 11 a.m. (Detroit time), wire
transfer of the sight draft proceeds will be made by the end of
business on the next succeeding business day. If presentment is
made after 11:00 a.m. (Detroit time), wire transfer of the sight
draft proceeds will be made by the end of business on the second
succeeding business day. Wire transfer instructions shall be set
forth on the Beneficiary's sight draft.
Bank Charges: All correspondent banking charges for the account of Account
Party
Legal Fees: In the event Issuer wrongfully dishonors a drawing under this
Credit, Issuer shall reimburse Beneficiary for reasonable legal
fees and expenses incurred subsequent to the date notice of
dishonor was given to Beneficiary.
40
