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EXHIBIT 10.32
SECOND AMENDMENT TO THE INTERCONNECTION AGREEMENT BETWEEN
BELLSOUTH TELECOMMUNICATIONS, INC. AND CYBERNET GROUP REGARDING THE
RESALE OF BELLSOUTH SERVICES
PURSUANT TO THIS AMENDMENT ("the Amendment"), Cybernet Group
("Cybernet") and BellSouth Telecommunications, Inc. ("Company" or "BellSouth")
hereinafter referred to collectively as the Parties hereby agree to amend the
Interconnection Agreement between the Parties dated May 1, 1997.
WITNESSETH
WHEREAS, BellSouth is a local exchange telecommunications company
authorized to provide telecommunications services in the states of Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, and Tennessee; and
WHEREAS, Cybernet is or seeks to become an alternative local exchange
telecommunications company authorized to provide telecommunications services in
the states of Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi,
North Carolina, South Carolina, and Tennessee; and
WHEREAS, Cybernet desires to resell BellSouth's telecommunications
services; and
WHEREAS, BellSouth has agreed to provide such services to Cybernet for
resale purposes and pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual premises and
promises contained herein, BellSouth and Cybernet do hereby agree as follows:
I. TERM OF THE AGREEMENT
A. The term of this Amendment shall begin July 7, 1997 and extend
to April 14, 1999 and shall apply to all of BellSouth's serving
territory as of January 1, 1996 in the state(s) of Alabama, Florida,
Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, and Tennessee.
B. This Amendment shall be automatically renewed for two
additional one year periods unless either party indicates its intent
not to renew the Amendment. Notice of such intent must be provided,
in writing, to the other party no later than 60 days prior to the end
of the then-existing contract period. The terms of this Amendment
shall remain in effect after the term of the existing agreement has
expired and while a new agreement is being negotiated.
C. The rates pursuant by which Cybernet is to purchase services
from BellSouth for resale shall be at a discount rate off of the
retail rate for the telecommunications service. The discount rates
shall be as set forth in Exhibit A, attached hereto and incorporated
herein by this reference. Such discount shall reflect the costs
avoided by BellSouth when selling a service for wholesale purposes.
II. DEFINITION OF TERMS
A. CUSTOMER OF RECORD means the entity responsible for placing
application for service; requesting additions, rearrangements,
maintenance or discontinuance of service; payment in full of charges
incurred such as non-recurring, monthly recurring, toll, directory
assistance, etc.
B. DEPOSIT means assurance provided by a customer in the form of
cash, surety bond or bank letter of credit to be held by the Company.
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C. END USER means the ultimate user of the telecommunications
services.
D. END USER CUSTOMER LOCATION means the physical location of the
premises where an end user makes use of the telecommunications
services.
E. NEW SERVICES means functions, features or capabilities that
are not currently offered by BellSouth. This includes packaging of
existing services or combining a new function, feature or capability
with an existing service.
F. OTHER LOCAL EXCHANGE COMPANY (OLEC) means a telephone company
certificated by the public service commissions of the Company's
franchised area to provide local exchange service within the Company's
franchised area.
G. RESALE means an activity wherein a certificated OLEC, such as
Cybernet subscribes to the telecommunications services of the Company
and then reoffers those telecommunications services to the public
(with or without "adding value").
H. RESALE SERVICE AREA means the area, as defined in a public
service commission approved certificate of operation, within which an
OLEC, such as Cybernet, may offer resold local exchange
telecommunications service.
III. GENERAL PROVISIONS
A. Cybernet may resell the tariffed local exchange and toll
telecommunications services of BellSouth contained in the General
Subscriber Service Tariff and Private Line Service Tariff subject to
the terms, and conditions specifically set forth herein.
Notwithstanding the foregoing, the exclusions and limitations on
services available for resale will be as set forth in Exhibit B,
attached hereto and incorporated herein by this reference. In
addition, Cybernet may not purchase telecommunications services at the
wholesale rate for its own use.
BellSouth shall make available telecommunications services for resale
at the rates set forth in Exhibit A to this Amendment and subject to
the exclusions and limitations set forth in Exhibit B to this
agreement. It does not however waive its rights to appeal or
otherwise challenge any decision regarding resale that resulted in the
discount rates contained in Exhibit A or the exclusions and
limitations contained in Exhibit B. BellSouth reserves the right to
pursue any and all legal and/or equitable remedies, including appeals
of any decisions. If such appeals or challenges result in changes in
the discount rates or exclusions and limitations, the parties agree
that appropriate modifications to this Amendment will be made promptly
to make its terms consistent with the outcome of the appeal
B. The provision of services by the Company to Cybernet does not
constitute a joint undertaking for the furnishing of any service.
C. Cybernet will be the customer of record for all services
purchased from BellSouth. Except as specified herein, the Company
will take orders from, xxxx and expect payment from Cybernet for all
services.
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D. Cybernet will be the Company's single point of contact for all
services purchased pursuant to this Agreement. The Company shall have
no contact with the end user except to the extent provided for herein.
E. The Company will continue to xxxx the end user for any
services that the end user specifies it wishes to receive directly
from the Company.
F. The Company maintains the right to serve directly any end user
within the service area of Cybernet. The Company will continue to
directly market its own telecommunications products and services and
in doing so may establish independent relationships with end users of
Cybernet.
G. Neither Party shall interfere with the right of any person or
entity to obtain service directly from the other Party.
H. Current telephone numbers may nominally be retained by the end
user. However, telephone numbers are the property of the Company and
are assigned to the service furnished. Cybernet has no property right
to the telephone number or any other call number designation
associated with services furnished by the Company, and no right to the
continuance of service through any particular central office. The
Company reserves the right to change such numbers, or the central
office designation associated with such numbers, or both, whenever the
Company deems it necessary to do so in the conduct of its business.
I. The Company may provide any service or facility for which a
charge is not established herein, as long as it is offered on the same
terms to Cybernet.
J. Service is furnished subject to the condition that it will not
be used for any unlawful purpose.
K. Service will be discontinued if any law enforcement agency
advises that the service being used is in violation of the law.
L. The Company can refuse service when it has grounds to believe
that service will be used in violation of the law.
M. The Company accepts no responsibility to any person for any
unlawful act committed by Cybernet or its end users as part of
providing service to Cybernet for purposes of resale or otherwise.
N. The Company will cooperate fully with law enforcement agencies
with subpoenas and court orders for assistance with the Company's
customers. Law enforcement agency subpoenas and court orders
regarding end users of Cybernet will be directed to Cybernet. The
Company will xxxx Cybernet for implementing any requests by law
enforcement agencies regarding Cybernet end users.
O. The characteristics and methods of operation of any circuits,
facilities or equipment provided by any person or entity other than
the Company shall not:
1. Interfere with or impair service over any facilities of
the Company, its affiliates, or its connecting and concurring
carriers involved in its service;
2. Cause damage to their plant;
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3. Impair the privacy of any communications; or
4. Create hazards to any employees or the public.
P. Cybernet assumes the responsibility of notifying the Company
regarding less than standard operations with respect to services
provided by Cybernet.
Q. Facilities and/or equipment utilized by BellSouth to provide
service to Cybernet remain the property of BellSouth.
X. Xxxxx page directory listings will be provided in accordance
with regulations set forth in Section A6 of the General Subscriber
Service Tariff and will be available for resale.
S. BellSouth will provide customer record information to the
Cybernet provided the Cybernet has the appropriate Letter(s) of
Authorization. BellSouth may provide customer record information via
one of the following methods: US mail, fax, or by electronic
interface. BellSouth will provide customer record information via US
mail or fax on an interim basis only.
Cybernet agrees to compensate BellSouth for all BellSouth incurred
expenditures associated with providing such information to Cybernet.
Cybernet will adopt and adhere to the BellSouth guidelines associated
with each method of providing customer record information.
T. BellSouth's messaging services may be made available for
resale subject to the execution of BellSouth's Messaging Agreement and
without the wholesale discount.
U. BellSouth's Inside Wire Maintenance Plans may be made
available for resale at rates, terms and conditions as set forth by
BellSouth and without the wholesale discount.
IV. BELLSOUTH'S PROVISION OF SERVICES TO CYBERNET
A. Cybernet agrees that its resale of BellSouth services shall be
as follows:
1. The resale of telecommunications services shall be limited
to users and uses conforming to the class of service
restrictions.
2. To the extent Cybernet is a telecommunications carrier
that serves greater than 5 percent of the Nation's
presubscribed access lines, Cybernet shall not jointly market
its interLATA services with the telecommunications services
purchased from BellSouth pursuant to this Amendment in any of
the states covered under this Agreement. For the purposes of
this subsection, to jointly market means any advertisement,
marketing effort or billing in which the telecommunications
services purchased from BellSouth for purposes of resale to
customers and interLATA services offered by Cybernet are
packaged, tied, bundled, discounted or offered together in any
way to the end user. Such efforts include, but are not
limited to, sales referrals, resale arrangements, sales
agencies or billing agreements. This subsection shall be void
and of no effect for a particular state covered under this
Amendment as of February 8, 1999 or on the date BellSouth is
authorized to offer interLATA services in that state,
whichever is earlier.
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3. Hotel and Hospital PBX service are the only
telecommunications services available for resale to
Hotel/Motel and Hospital end users, respectively. Similarly,
Access Line Service for Customer Provided Coin Telephones is
the only local service available for resale to Independent
Payphone Provider (IPP) customers. Shared Tenant Service
customers can only be sold those telecommunications services
available in the Company's A23 Shared Tenant Service Tariff.
4. Cybernet is prohibited from furnishing both flat and
measured rate service on the same business premises to the
same subscribers (end users) as stated in A2 of the Company's
Tariff except for backup service as indicated in the
applicable state tariff Section A3.
5. If telephone service is established and it is subsequently
determined that the class of service restriction has been
violated, Cybernet will be notified and billing for that
service will be immediately changed to the appropriate class
of service. Service charges for changes between class of
service, back billing, and interest as described in this
subsection shall apply at the Company's sole discretion.
Interest at a rate as set forth in Section A2 of the General
Subscriber Service Tariff and Section B2 of the Private Line
Service Tariff for the applicable state, compounded daily for
the number of days from the back billing date to and including
the date that Cybernet actually makes the payment to the
Company may be assessed.
6. The Company reserves the right to periodically audit
services purchased by Cybernet to establish authenticity of
use. Such audit shall not occur more than once in a calendar
year. Cybernet shall make any and all records and data
available to the Company or the Company's auditors on a
reasonable basis. The Company shall bear the cost of said
audit.
B. Resold services can only be used in the same manner as
specified in the Company's Tariff. Resold services are subject to the same
terms and conditions as are specified for such services when furnished to an
individual end user of the Company in the appropriate section of the Company's
Tariffs. Specific tariff features, e.g. a usage allowance per month, shall not
be aggregated across multiple resold services. Resold services cannot be used
to aggregate traffic from more than one end user customer except as specified
in Section A23. of the Company's Tariff referring to Shared Tenant Service.
C. Cybernet may resell services only within the specific resale
service area as defined in its certificate.
D. Telephone numbers transmitted via any resold service feature
are intended solely for the use of the end user of the feature. Resale of this
information is prohibited.
E. No patent, copyright, trademark or other proprietary right is
licensed, granted or otherwise transferred by this Agreement. Cybernet is
strictly prohibited from any use, including but not limited to sales, marketing
or advertising, of any BellSouth name or trademark.
V. MAINTENANCE OF SERVICES
A. Cybernet will adopt and adhere to the standards contained in
the applicable BellSouth Work Center Interface Agreement regarding
maintenance and installation of service.
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B. Services resold under the Company's Tariffs and facilities and
equipment provided by the Company shall be maintained by the Company.
C. Cybernet or its end users may not rearrange, move, disconnect,
remove or attempt to repair any facilities owned by the Company, other
than by connection or disconnection to any interface means used,
except with the written consent of the Company.
D. Cybernet accepts responsibility to notify the Company of
situations that arise that may result in a service problem.
E. Cybernet will be the Company's single point of contact for all
repair calls on behalf of Cybernet's end users. The parties agree to
provide one another with toll-free contact numbers for such purposes.
F. Cybernet will contact the appropriate repair centers in
accordance with procedures established by the Company.
G. For all repair requests, Cybernet accepts responsibility for
adhering to the Company's prescreening guidelines prior to referring
the trouble to the Company.
H. The Company will xxxx Cybernet for handling troubles that are
found not to be in the Company's network pursuant to its standard time
and material charges. The standard time and material charges will be
no more than what BellSouth charges to its retail customers for the
same services.
I. The Company reserves the right to contact Cybernet's
customers, if deemed necessary, for maintenance purposes.
VI. ESTABLISHMENT OF SERVICE
A. After receiving certification as a local exchange company from
the appropriate regulatory agency, Cybernet will provide the appropriate
Company service center the necessary documentation to enable the Company to
establish a master account for Cybernet. Such documentation shall include the
Application for Master Account, proof of authority to provide
telecommunications services, an Operating Company Number ("OCN") assigned by
the National Exchange Carriers Association ("NECA") and a tax exemption
certificate, if applicable. When necessary deposit requirements are met, the
Company will begin taking orders for the resale of service.
B. Service orders will be in a standard format designated by the
Company.
C. When notification is received from Cybernet that a current
customer of the Company will subscribe to Cybernet's service, standard service
order intervals for the appropriate class of service will apply.
D. The Company will not require end user confirmation prior to
establishing service for Cybernet's end user customer. Cybernet must, however,
be able to demonstrate end user authorization upon request.
E. Cybernet will be the single point of contact with the Company
for all subsequent ordering activity resulting in additions or changes to
resold services except that the Company will accept a request directly from the
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end user for conversion of the end user's service from Cybernet to the Company
or will accept a request from another OLEC for conversion of the end user's
service from the Cybernet to the other LEC. The Company will notify Cybernet
that such a request has been processed.
F. If the Company determines that an unauthorized change in local
service to Cybernet has occurred, the Company will reestablish service with the
appropriate local service provider and will assess Cybernet as the OLEC
initiating the unauthorized change, an unauthorized change charge similar to
that described in F.C.C. Tariff No. 1, Section 13.3.3. Appropriate
nonrecurring charges, as set forth in Section A4. of the General Subscriber
Service Tariff, will also be assessed to Cybernet.
These charges can be adjusted if Cybernet provides satisfactory proof of
authorization.
NONRECURRING CHARGE
(a) each Residence or Business line $19.41
G. The Company will, in order to safeguard its interest, require
Cybernet to make a deposit to be held by the Company as a guarantee of
the payment of rates and charges, unless satisfactory credit has
already been established. Any such deposit may be held during the
continuance of the service as security for the payment of any and all
amounts accruing for the service.
H. Such deposit may not exceed two months' estimated billing.
I. The fact that a deposit has been made in no way relieves
Cybernet from complying with the Company's regulations as to advance
payments and the prompt payment of bills on presentation nor does it
constitute a waiver or modification of the regular practices of the
Company providing for the discontinuance of service for nonpayment of
any sums due the Company.
J. The Company reserves the right to increase the deposit
requirements when, in its sole judgment, the conditions justify such
action.
K. In the event that Cybernet defaults on its account, service to
Cybernet will be terminated and any deposits held will be applied to
its account.
L. In the case of a cash deposit, interest at the rate of six
percent per annum shall be paid to Cybernet during the continuance of
the deposit. Interest on a deposit shall accrue annually and, if
requested, shall be annually credited to Cybernet by the accrual date.
VII. PAYMENT AND BILLING ARRANGEMENTS
A. When the initial service is ordered by Cybernet, the Company
will establish an accounts receivable master account for Cybernet.
B. The Company shall xxxx Cybernet on a current basis all
applicable charges and credits.
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C. Payment of all charges will be the responsibility of Cybernet.
Cybernet shall make payment to the Company for all services billed.
The Company is not responsible for payments not received by Cybernet
from Cybernet's customer. The Company will not become involved in
billing disputes that may arise between Cybernet and its customer.
Payments made to the Company as payment on account will be credited to
an accounts receivable master account and not to an end user's
account.
D. The Company will render bills each month on established xxxx
days for each of Cybernet's accounts.
E. The Company will xxxx Cybernet, in advance, charges for all
services to be provided during the ensuing billing period except
charges associated with service usage, which charges will be billed in
arrears. Charges will be calculated on an individual end user account
level, including, if applicable, any charges for usage or usage
allowances. BellSouth will also xxxx all charges, including but not
limited to 911 and E911 charges, telecommunications relay charges, and
franchise fees, to CYBERNET.
F. The payment will be due by the next xxxx date (i.e., same date
in the following month as the xxxx date) and is payable in immediately
available funds. Payment is considered to have been made when
received by the Company.
If the payment due date falls on a Sunday or on a Holiday which is
observed on a Monday, the payment due date shall be the first
non-Holiday day following such Sunday or Holiday. If the payment due
date falls on a Saturday or on a Holiday which is observed on Tuesday,
Wednesday, Thursday, or Friday, the payment due date shall be the last
non-Holiday day preceding such Saturday or Holiday. If payment is not
received by the payment due date, a late payment penalty, as set forth
in I. following, shall apply.
G. Upon proof of tax exempt certification from Cybernet, the
total amount billed to Cybernet will not include any taxes due from
the end user. Cybernet will be solely responsible for the
computation, tracking, reporting and payment of all federal, state
and/or local jurisdiction taxes associated with the services resold to
the end user.
H. As the customer of record, Cybernet will be responsible for,
and remit to the Company, all charges applicable to its resold
services for emergency services (E911 and 911) and Telecommunications
Relay Service (TRS) as well as any other charges of a similar nature.
I. If any portion of the payment is received by the Company after
the payment due date as set forth preceding, or if any portion of the
payment is received by the Company in funds that are not immediately
available to the Company, then a late payment penalty shall be due to
the Company. The late payment penalty shall be the portion of the
payment not received by the payment due date times a late factor. The
late factor shall be as set forth in Section A2 of the General
Subscriber Service Tariff and Section B2 of the Private Line Service
Tariff.
J. Any switched access charges associated with interexchange
carrier access to the resold local exchange lines will be billed by,
and due to, the Company. No additional charges are to be assessed to
Cybernet.
K. The Company will not perform billing and collection services
for Cybernet as a result of the execution of this Agreement. All
requests for billing services should be referred to the appropriate
entity or operational group within the Company.
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L. Pursuant to 47 CFR Section 51.617, the Company will xxxx
Cybernet end user common line charges identical to the end user common
line charges the Company bills its end users.
M. In general, the Company will not become involved in disputes
between Cybernet and Cybernet's end user customers over resold
services. If a dispute does arise that cannot be settled without the
involvement of the Company, Cybernet shall contact the designated
Service Center for resolution. The Company will make every effort to
assist in the resolution of the dispute and will work with Cybernet to
resolve the matter in as timely a manner as possible. Cybernet may be
required to submit documentation to substantiate the claim.
VIII. DISCONTINUANCE OF SERVICE
A. The procedures for discontinuing service to an end user are as
follows:
1. Where possible, the Company will deny service to
Cybernet's end user on behalf of, and at the request of,
Cybernet. Upon restoration of the end user's service,
restoral charges will apply and will be the responsibility of
Cybernet.
2. At the request of Cybernet, the Company Will disconnect a
Cybernet end user customer.
3. All requests by Cybernet for denial or disconnection of an
end user for nonpayment must be in writing.
4. Cybernet will be made solely responsible for notifying the
end user of the proposed disconnection of the service.
5. The Company will continue to process calls made to the
Annoyance Call Center and will advise Cybernet when it is
determined that annoyance calls are originated from one of
their end user's locations. The Company shall be indemnified,
defended and held harmless by Cybernet and/or the end user
against any claim, loss or damage arising from providing this
information to Cybernet. It is the responsibility of Cybernet
to take the corrective action necessary with its customers who
make annoying calls. Failure to do so will result in the
Company's disconnecting the end user's service.
B. The procedures for discontinuing service to Cybernet are as
follows:
1. The Company reserves the right to suspend or terminate
service for nonpayment or in the event of prohibited, unlawful
or improper use of the facilities or service, abuse of the
facilities, or any other violation or noncompliance by
Cybernet of the rules and regulations of the Company's
Tariffs.
2. If payment of account is not received by the xxxx xxx in
the month after the original xxxx xxx, the Company may provide
written notice to Cybernet, that additional applications for
service will be refused and that any pending orders for
service will not be completed if payment is not received by
the fifteenth day following the date of the notice. If the
Company does not refuse additional applications for service on
the date specified in the notice, and Cybernet's noncompliance
continues, nothing contained herein shall preclude the
Company's right to refuse additional applications for service
without further notice.
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3. If payment of account is not received, or arrangements
made, by the xxxx xxx in the second consecutive month, the
account will be considered in default and will be subject to
denial or disconnection, or both.
4. If Cybernet fails to comply with the provisions of this
Agreement, including any payments to be made by it on the
dates and times herein specified, the Company may, on thirty
days written notice to the person designated by Cybernet to
receive notices of noncompliance, discontinue the provision of
existing services to Cybernet at any time thereafter. In the
case of such discontinuance, all billed charges, as well as
applicable termination charges, shall become due. If the
Company does not discontinue the provision of the services
involved on the date specified in the thirty days notice, and
Cybernet's noncompliance continues, nothing contained herein
shall preclude the Company's right to discontinue the
provision of the services to Cybernet without further notice.
5. If payment is not received or arrangements made for
payment by the date given in the written notification,
Cybernet's services will be discontinued. Upon discontinuance
of service on a Cybernet's account, service to Cybernet's end
users will be denied. The Company will also reestablish
service at the request of the end user or Cybernet upon
payment of the appropriate connection fee and subject to the
Company's normal application procedures. Cybernet is solely
responsible for notifying the end user of the proposed
disconnection of the service.
6. If within fifteen days after an end user's service has
been denied no contact has been made in reference to restoring
service, the end user's service will be disconnected.
IX. LIABILITY
A. The liability of the Company for damages arising out of
mistakes, omissions, interruptions, preemptions, delays errors or
defects in transmission, or failures or defects in facilities
furnished by the Company, occurring in the course of furnishing
service or other facilities and not caused by the negligence of
Cybernet, or of the Company in failing to maintain proper standards of
maintenance and operation and to exercise reasonable supervision shall
in no event exceed an amount equivalent to the proportionate charge to
Cybernet for the period of service during which such mistake,
omission, interruption, preemption, delay, error or defect in
transmission or defect or failure in facilities occur. The Company
shall not be liable for damage arising out of mistakes, omission,
interruptions, preemptions, delays, errors or defects in transmission
or other injury, including but not limited to injuries to persons or
property from voltages or currents transmitted over the service of the
Company, (1) caused by customer-provided equipment (except where a
contributing cause is the malfunctioning of a Company-provided
connecting arrangement, in which event the liability of the Company
shall not exceed an amount equal to a proportional amount of the
Company billing for the period of service during which such mistake,
omission, interruption, preemption, delay, error, defect in
transmission or injury occurs), or (2) not prevented by
customer-provided equipment but which would have been prevented had
Company-provided equipment been used.
B. The Company shall be indemnified and saved harmless by
Cybernet against any and all claims, actions, causes of action,
damages, liabilities, or demands (including the costs, expenses and
reasonable attorneys' fees, on account thereof) of whatever kind or
nature that may be made by any third party as a result of the
Company's furnishing of service to Cybernet.
C. The Company shall be indemnified, defended and held harmless
by Cybernet and/or the end user against any claim, loss or damage
arising from the use of services offered for resale involving:
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1. Claims for libel, slander, invasion of privacy or
infringement of copyright arising from Cybernet's or end
user's own communications.
2. Claims for patent infringement arising from acts combining
or using Company services in connection with facilities or
equipment furnished by the end user or Cybernet.
3. All other claims arising out of an act or omission of
Cybernet or its end user in the course of using services.
D. Cybernet accepts responsibility for providing access for
maintenance purposes of any service resold under the provisions of
this Tariff. The Company shall not be responsible for any failure on
the part of Cybernet with respect to any end user of Cybernet.
X. TREATMENT OF PROPRIETARY AND CONFIDENTIAL INFORMATION
A. Both parties agree that it may be necessary to provide each
other during the term of this Amendment with certain confidential
information, including trade secret information, including but not
limited to, technical and business plans, technical information,
proposals, specifications, drawings, procedures, customer account data
and like information (hereinafter collectively referred to as
"Information"). Both parties agree that all Information shall either
be in writing or other tangible format and clearly marked with a
confidential, private or proprietary legend, or, when the Information
is communicated orally, it shall also be communicated that the
Information is confidential, private or proprietary. The Information
will be resumed to the owner within a reasonable time. Both parties
agree that the Information shall not be copied or reproduced in any
form. Both parties agree to receive such Information and not disclose
such Information. Both parties agree to protect the Information
received from distribution, disclosure or dissemination to anyone
except employees of the parties with a need to know such Information
and which employees agree to be bound by the terms of this Section.
Both parties will use the same standard of care to protect Information
received as they would use to protect their own confidential and
proprietary Information.
B. Notwithstanding the foregoing, both parties agree that there
will be no obligation to protect any portion of the Information that
is either: 1) made publicly available by the owner of the Information
or lawfully disclosed by a nonparty to this Agreement; 2) lawfully
obtained from any source other than the owner of the Information; or
3) previously known to the receiving party without an obligation to
keep it confidential.
XI. RESOLUTION OF DISPUTES
Except as otherwise stated in this Agreement, the parties agree that
if any dispute arises as to the interpretation of any provision of this
Amendment or as to the proper implementation of this Agreement, the parties
will petition the applicable state Public Service Commission for a resolution
of the dispute. However, each party reserves any rights it may have to seek
judicial review of any ruling made by that Public Service Commission concerning
this Agreement.
XII. LIMITATION OF USE
The parties agree that this Amendment shall not be proffered by either
party in another jurisdiction as evidence of any concession or as a waiver of
any position taken by the other party in that jurisdiction or for any other
purpose.
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XIII. WAIVERS
Any failure by either party to insist upon the strict performance by
the other party of any of the provisions of this Amendment shall not be deemed
a waiver of any of the provisions of this Agreement, and each party,
notwithstanding such failure, shall have the right thereafter to insist upon
the specific performance of any and all of the provisions of this Agreement.
XIV. GOVERNING LAW
This Amendment shall be governed by, and construed and enforced in
accordance with, the laws of the State of Georgia, without regard to its
conflict of laws principles.
XV. ARM'S LENGTH NEGOTIATIONS
This Amendment was executed after arm's length negotiations between
the undersigned parties and reflects the conclusion of the undersigned that
this Amendment is in the best interests of all parties.
XVI. MORE FAVORABLE PROVISIONS
A. The parties agree that if---
1. the Federal Communications Commission ("FCC") or the
Commission finds that the terms of this Amendment are
inconsistent in one or more material respects with any of its
or their respective decisions, rules or regulations, or
2. the FCC or the Commission preempts the effect of this
Agreement, then, in either case, upon such occurrence becoming
final and no longer subject to administrative or judicial
review, the parties shall immediately commence good faith
negotiations to conform this Amendment to the requirements of
any such decision, rule, regulation or preemption. The
revised agreement shall have an effective date that coincides
with the effective date of the original FCC or Commission
action giving rise to such negotiations. The parties agree
that the rates, terms and conditions of any new agreement
shall not be applied retroactively to any period prior to such
effective date except to the extent that such retroactive
effect is expressly required by such FCC or Commission
decision, rule, regulation or preemption.
B. In the event that BellSouth, either before or after the
effective date of this Agreement, enters into an agreement with any
other telecommunications carrier (an "Other Resale Agreement") which
provides for the provision within the state(s) of Alabama, Florida,
Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, and Tennessee of any of the arrangements covered by this
Amendment upon rates, terms or conditions that differ in any material
respect from the rates, terms and conditions for such arrangements set
forth in this Amendment("Other Terms"), BellSouth shall be deemed
thereby to have offered such other Resale Agreement to Cybernet in its
entirety. In the event that Cybernet accepts such offer, such Other
Terms shall be effective between BellSouth and Cybernet as of the date
on which Cybernet accepts such offer.
C. In the event that after the effective date of this Amendment
the FCC or the Commission enters an order (a "Resale Order") requiring
BellSouth to provide within the state(s) of Alabama, Florida, Georgia,
Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and
Tennessee any of the arrangements covered by this
Version: April 24, 1997 Page 12
13
agreement upon Other Terms, then upon such Resale Order becoming final
and not subject to further administrative or judicial review,
BellSouth shall be deemed to have offered such arrangements to
Cybernet upon such Other Terms, in their entirety, which Cybernet may
only accept in their entirety, as provided in Section XVI.E. In the
event that Cybernet accepts such offer, such Other Terms shall be
effective between BellSouth and Cybernet as of the date on which
Cybernet accepts such offer.
D. In the event that after the effective date of this Amendment
BellSouth files and subsequently receives approval for one or more
intrastate tariffs (each, a "Resale Tariff") offering to provide
within the state(s) of Alabama, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina, and Tennessee any of the
arrangements covered by this Amendment upon Other Terms, then upon
such Resale Tariff becoming effective, BellSouth shall be deemed
thereby to have offered such arrangements to Cybernet upon such Other
Terms, which Cybernet may accept as provided in Section XVI.E. In the
event that Cybernet accepts such offer, such Other Terms shall be
effective between BellSouth and Cybernet as of the date on which
Cybernet accepts such offer.
E. The terms of this Agreement, other than those affected by the
Other Terms accepted by Cybernet, shall remain in full force and
effect.
F. CORRECTIVE PAYMENT. In the event that --
1. BellSouth and Cybernet revise this Amendment pursuant to Section
XVI.A, or
2. Cybernet accepts a deemed offer of an Other Resale Agreement or
Other Terms, then BellSouth or Cybernet, as applicable, shall make a corrective
payment to the other party to correct for the difference between the rates set
forth herein and the rates in such revised agreement or Other Terms for
substantially similar services for the period from the effective date of such
revised agreement or Other Terms until the date that the parties execute such
revised agreement or Cybernet accepts such Other Terms, plus simple interest at
a rate equal to the thirty (30) day commercial paper rate for high-grade,
unsecured notes sold through dealers by major corporations in multiples of
$1,000.00 as regularly published in The Wall Street Journal.
XVII. AMENDMENTS
This Amendment may be amended at any time upon written agreement of
both parties.
XVIII. ENTIRE AGREEMENT
This Amendment sets forth the entire understanding and supersedes
prior agreements between the parties relating to the subject matter contained
herein and merges all prior discussions between them, and neither party shall
be bound by any definition, condition, provision, representation, warranty,
covenant or promise other than as expressly stated in this Amendment or as is
contemporaneously or subsequently set forth in writing and executed by a duly
authorized officer or representative of the party to be bound thereby.
Version: April 24, 1997 Page 13
14
BellSouth Telecommunications, Inc. Cybernet Group
BY: /s/ Xxxxx X. Xxxxxxx BY: /s/ Xxxxxx Xxxxxxxx
--------------------------- ---------------------------
SIGNATURE SIGNATURE
NAME: Xxxxx Xxxxxxx NAME: Xxxxxx Xxxxxxxx
--------------------------- ---------------------------
PRINTED NAME PRINTED NAME
TITLE: Director TITLE: CFO
--------------------------- ---------------------------
DATE: 07/09/97 DATE: 7/8/97
--------------------------- ---------------------------
Version: April 24, 1997 Page 14
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EXHIBIT "A"
APPLICABLE DISCOUNTS
The telecommunications services available for purchase by Cybernet for
the purposes of resale to Cybernet end users shall be available at the
following discount off of the retail rate.
DISCOUNT
--------
STATE RESIDENCE BUSINESS
----- --------- --------
ALABAMA 17% 17%
FLORIDA 21.83% 16.81%
GEORGIA 20.3% 17.3%
KENTUCKY 16.79% 15.54%
LOUISIANA* 20.72% 20.72%
MISSISSIPPI 15.75% 15.75%
NORTH CAROLINA 21.5% 17.6%
SOUTH CAROLINA 14.8% 14.8%
TENNESSEE** 16% 16%
* Effective as of the Commission's Order in Louisiana Docket No. U-22020 dated
November 12, 1996.
** The Wholesale Discount is set as a percentage off the tariffed rates. If
OLEC provides is own operator services and directory services, the discount
shall be 21.56%. These rates are effective as of the Tennessee Regulatory
Authority's Order in Tennessee Docket No. 90-01331 dated January 17, 1997.
Version: April 24, 1997 Page 15
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EXHIBIT B
================================================================================================================================
AL FL GA KY LA
TYPE OF ------------------------------------------------------------------------------------------------
SERVICE Resale? Discount? Resale? Discount? Resale? Discount? Resale? Discount? Resale? Discount?
--------------------------------------------------------------------------------------------------------------------------------
1 Grandfathered Services, Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
--------------------------------------------------------------------------------------------------------------------------------
1 Contract Service Yes Yes Yes Yes Yes No Yes No Yes No
Arrangements
--------------------------------------------------------------------------------------------------------------------------------
3 3 Promotions - Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
greater than 90 Days
--------------------------------------------------------------------------------------------------------------------------------
4 4 Promotions - Yes No Yes No Yes No No No Yes No
less than 90 Days
--------------------------------------------------------------------------------------------------------------------------------
5 5 Lifeline/Link Up Yes Yes Yes Yes Yes Yes No No Yes Yes
Services
--------------------------------------------------------------------------------------------------------------------------------
6 911/E911 Services Yes Yes Yes Yes Yes Yes Yes Yes No No
--------------------------------------------------------------------------------------------------------------------------------
7 N11 Services Yes Yes Yes Yes Yes Yes No No No No
--------------------------------------------------------------------------------------------------------------------------------
8 Non-Recurring Charges Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
================================================================================================================================
=============================================================================================================
MS NC SC TN
TYPE OF ------------------------------------------------------------------------------
SERVICE Resale? Discount? Resale? Discount? Resale? Discount? Resale? Discount?
-------------------------------------------------------------------------------------------------------------
1 Grandfathered Services, Yes Yes Yes Yes Yes Yes Yes Yes
-------------------------------------------------------------------------------------------------------------
1 Contract Service Yes No Yes Yes Yes No Yes Yes
Arrangements
-------------------------------------------------------------------------------------------------------------
3 3 Promotions - Yes Yes Yes Yes Yes Yes Yes No
greater than 90 Days
-------------------------------------------------------------------------------------------------------------
4 4 Promotions - Yes No No No Yes No No No
less than 90 Days
-------------------------------------------------------------------------------------------------------------
5 5 Lifeline/Link Up Yes Yes Yes Yes Yes Yes No No
Services
-------------------------------------------------------------------------------------------------------------
6 911/E911 Services Yes Yes Yes Yes Yes Yes Yes Yes
-------------------------------------------------------------------------------------------------------------
7 N11 Services No No No No Yes Yes Yes Yes
-------------------------------------------------------------------------------------------------------------
8 Non-Recurring Charges Yes Yes Yes Yes Yes Yes Yes No
=============================================================================================================
ADDITIONAL COMMENTS
1 GRANDFATHERED SERVICES can be resold only to existing subscribers of
the grandfathered service.
2 Where available for resale, promotions will be made available only
to end users who would have qualified for the promotion had it been
provided by BellSouth directly.
3 LIFELINE/LINK UP services may be offered only to those subscribers
who meet the criteria that BellSouth currently applies to
subscribers of these services.
4 In Louisiana and Mississippi, all CONTRACT SERVICE ARRANGEMENTs
entered into by BellSouth or terminating after the effective date of
the Commission Order will be subject to resale without the wholesale
discount. All CSAs which are in place as of the effective date of
the Commission order will not be eligible for resale.
5 In North Carolina, only those CONTRACT SERVICE ARRANGEMENTS entered
into after April 15, 1997 will be available for resale.
Version: April 24, 1997 Page 16
