RESALE AGREEMENT
(Virginia)
PREFACE
THIS RESALE AGREEMENT (this "Agreement") is made effective as of August
6, 1999 (the "Effective Date") by and between Xxxxxxxxx.Xxx, Inc. "Reseller"), a
Delaware corporation, with offices at Three Xxxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx,
XX 00000, and Xxxx Atlantic - Virginia, Inc. ("Xxxx Atlantic"), a Virginia
corporation, with offices at 000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx,
Xxxxxxxx 00000.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section
251(c)(4), Reseller wishes to purchase Xxxx Atlantic Retail Telecommunications
Services from Xxxx Atlantic for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services in the Commonwealth of Virginia;
and
WHEREAS, Xxxx Atlantic is willing to provide such Xxxx Atlantic Retail
Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth in this
Agreement, Reseller and Xxxx Atlantic, each on behalf of itself and its
respective successors and assigns, agree as follows:
1. DEFINITIONS
1.1 As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C. Section
151, ET SEQ., as amended from time-to-time.
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government
regulations and orders.
1.1.4 "Xxxx Atlantic Ancillary Service" means any service offered by
Xxxx Atlantic to Reseller in Exhibit I.
1.1.5 "Xxxx Atlantic Retail Telecommunications Service" means any
Telecommunications Service that Xxxx Atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Xxxx
Atlantic Retail Telecommunications
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Service does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16)) provided by Xxxx
Atlantic.
1.1.6 "Xxxx Atlantic Service" means and includes any Xxxx Atlantic
Retail Telecommunications Service and any Xxxx Atlantic Ancillary
Service.
1.1.7 "Xxxx Atlantic's Affiliates" means any corporations,
partnerships or other persons who control, are controlled by, or are
under common control with, Xxxx Atlantic.
1.1.8 "Xxxx Atlantic's Tariffs" and "Xxxx Atlantic Tariff" mean and
include:
(a) Xxxx Atlantic's effective Federal and state tariffs, as
amended by Xxxx Atlantic from time-to-time; and,
(b) to the extent Xxxx Atlantic Services are not subject to Xxxx
Atlantic tariffs, any standard agreements and other documents, as amended
by Xxxx Atlantic from time-to-time, that set forth the generally
available terms, conditions and prices under which Xxxx Atlantic offers
such Xxxx Atlantic Services.
The terms "Xxxx Atlantic's Tariffs" and "Xxxx Atlantic Tariff"
do not include Xxxx Atlantic's "Statement of Generally Available Terms
and Conditions for Interconnection, Unbundled Network Elements, Ancillary
Services and Resale of Telecommunications Services" which has been
approved by the Commission pursuant to Section 252(f) of the Act, 47
U.S.C. Section 252(f).
1.1.9 "Commission" means the Virginia State Corporation Commission.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2,
means a stated period or minimum period of time for which Reseller
is required by this Agreement to subscribe to, use and/or pay for
a Xxxx Atlantic Service.
1.1.11 "Customer" means and includes customers, subscribers and
patrons, of a Party, purchasers and users of Telecommunications Services
(including, but not limited to, resold Xxxx Atlantic Retail
Telecommunications Services) provided by a Party, and purchasers and
users of other services and products provided by a Party. The term
"Customer" does not include a Party.
1.1.12 "Xxxx Atlantic Customer" means a Customer of Xxxx Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
nonpublic, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
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1.1.14 "Customer Proprietary Network Information" ("CPNI") means
"Customer Proprietary Network Information" as defined in Section 222 of
the Act, 47 U.S.C. Section 222.
1.1.15 "Effective Date" means the date first above written.
1.1.16 "Jurisdiction" means the Commonwealth of Virginia.
1.1.17 "Operator Services" means: (a) services accessed by dialing 411,
555-1212, 0-000-0000, 0+ local, 0+ intraLATA, and, 0-; and, (b) any other
automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
1.1.19 "Principal Document" means this document, including the Preface,
Sections 1 through 39, the signature page, Exhibit I, Exhibit II, and
Exhibit II, Attachment 1.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Xxxx Atlantic Retail
Telecommunications Services are provided by Xxxx Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications Carrier"
as defined in Section 3(44) of the Act, 47 U.S.C. Section 153(44).
1.1.23 "Telecommunications Service" means "Telecommunications Service"
as defined in Section 3(46) of the Act, 47 U.S.C. Section 153(46).
1.1.24 "Telephone Exchange Service" means "Telephone Exchange Service"
as defined in Section 3(47) of the Act, 47 U.S.C. Section 153(47).
1.1.25 "Termination Date Xxxx Atlantic Service" means: (a) any Xxxx
Atlantic Service being provided by Xxxx Atlantic under this Agreement at
the time of termination of this Agreement, that at the time of
termination of this Agreement is subject to a Contract Period which is
greater than one (1) month; and, (b) any Xxxx Atlantic Service requested
by Reseller under this Agreement in an Order accepted by Xxxx Atlantic
prior to termination of this Agreement but not yet being provided by Xxxx
Atlantic at the time of termination of this Agreement, that is subject to
an initial Contract Period which is greater than one (1) month.
1.2 Unless the context clearly indicates otherwise, any defined term
which is deemed or used in the singular shall include the plural, and any
defined term which is defined or used in the plural shall include the
singular.
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2. THE AGREEMENT
2.1 This Agreement includes: (a) the Principal Document; (b) Xxxx
Atlantic's Tariffs (which Xxxx Atlantic Tariffs are incorporated into
this Agreement by reference and made a part hereof); and, (c) a Reseller
Order to provide, change or terminate a Xxxx Atlantic Service, which has
been accepted by Xxxx Atlantic (including, but not limited to, any Order
which includes a commitment to purchase a stated number or minimum number
of lines or other Xxxx Atlantic Services, or a commitment to purchase
lines or other Xxxx Atlantic Services for a stated period or minimum
period of time).
2.2 Conflicts among terms in the Principal Document, Xxxx Atlantic's
Tariffs, and a Reseller Order which has been accepted by Xxxx Atlantic,
shall be resolved in accordance with the following order of precedence,
where the document identified in subsection "(a)" shall have the highest
precedence: (a) the Principal Document; (b) Xxxx Atlantic's Tariffs; and,
(c) a Reseller Order which has been accepted by Xxxx Atlantic. The fact
that a term appears in the Principal Document but not in a Xxxx Atlantic
Tariff, or in a Xxxx Atlantic Tariff but not in the Principal Document,
shall not be interpreted as, or deemed grounds for finding, a conflict
for the purposes of this Section 2.2.
2.3 This Agreement (including the Principal Document, Xxxx
Atlantic's Tariffs, and Reseller Orders which have been accepted by Xxxx
Atlantic), constitutes the entire agreement between the Parties on the
subject matter hereof, and supersedes any prior or contemporaneous
agreement, understanding, or representation on the subject matter hereof.
Except as otherwise provided in the Principal Document, the terms in the
Principal Document may not be waived or modified except by a written
document which is signed by the Parties. Subject to the requirements of
Applicable Law, Xxxx Atlantic shall have the right to add, modify, or
withdraw, a Xxxx Atlantic Tariff at any time, without the consent of, or
notice to, Reseller.
2.4 A failure or delay of either Party to enforce any of the
provisions of this Agreement, or any right or remedy available under this
Agreement or at law or in equity, or to require performance of any of the
provisions of this Agreement, or to exercise any option provided under
this Agreement, shall in no way be construed to be a waiver of such
provisions, rights, remedies, or options.
3. XXXX ATLANTIC SERVICES
3.1 During the term of this Agreement, Reseller, pursuant to
Section 251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4), may submit
Orders to Xxxx Atlantic requesting Xxxx Atlantic to provide Xxxx
Atlantic Retail Telecommunications Services for resale by Reseller as
a Telecommunications Carrier providing Telecommunications Services.
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3.2 During the term of this Agreement, Reseller may submit Orders to
Xxxx Atlantic requesting Xxxx Atlantic to provide Xxxx Atlantic Ancillary
Services for use by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
3.3 Xxxx Atlantic may require that Reseller's Orders requesting Xxxx
Atlantic to provide Xxxx Atlantic Services be in writing on forms
specified by Xxxx Atlantic or in an electronic form specified by Xxxx
Atlantic.
3.4 Upon receipt and acceptance by Xxxx Atlantic of a Reseller Order
requesting Xxxx Atlantic to provide a Xxxx Atlantic Service, Xxxx
Atlantic shall provide, and Reseller shall subscribe to, use and pay for,
the Xxxx Atlantic Service, in accordance with this Agreement.
3.5 Xxxx Atlantic Retail Telecommunications Services may be purchased
by Reseller under this Agreement only for the purpose of resale by
Reseller as a Telecommunications Carrier providing Telecommunications
Services, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section
251(c)(4). Xxxx Atlantic Retail Telecommunications Services to be
purchased by Reseller for other purposes (including, but not limited to,
Reseller's own use) must be purchased by Reseller pursuant to separate
written agreements, including, but not limited to, applicable Xxxx
Atlantic Tariffs. Reseller warrants and agrees that Reseller will
purchase Xxxx Atlantic Retail Telecommunications Services from Xxxx
Atlantic under this Agreement only for the purpose of resale by Reseller
as a Telecommunications Carrier providing Telecommunications Services,
pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4).
3.6 Xxxx Atlantic Ancillary Services may be purchased by Reseller
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services. Xxxx Atlantic Ancillary
Services to be purchased by Reseller for other purposes must be
purchased by Reseller pursuant to separate written agreements,
including, but not limited to, applicable Xxxx Atlantic Tariffs.
Reseller warrants and agrees that Reseller will purchase Xxxx Atlantic
Ancillary Services from Xxxx Atlantic under this Agreement only for
use by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
3.7 Subject to the requirements of Applicable Law, Xxxx Atlantic
shall have the right to add, modify, grandfather, discontinue or
terminate Xxxx Atlantic Services at any time, without the consent of
Reseller.
4. PRICES
4.1 Reseller shall pay Xxxx Atlantic for Xxxx Atlantic Services at
the prices stated in this Agreement, including, but not limited to, in
Exhibit II, Attachment 1.
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4.2 If, prior to establishment of a Xxxx Atlantic Service, Reseller
cancels or changes its Order for the Xxxx Atlantic Service, Reseller
shall reimburse Xxxx Atlantic for the costs associated with such
cancellation or changes as required by this Agreement (including, but not
limited to, Xxxx Atlantic's Tariffs).
4.3 Upon request by Xxxx Atlantic, Reseller shall provide to Xxxx
Atlantic adequate assurance of payment of charges due to Xxxx Atlantic.
Assurance of payment of charges may be requested by Xxxx Atlantic: (a) if
Reseller, in Xxxx Atlantic's reasonable judgment, at the Effective Date
or at any time thereafter, is unable to show itself to be creditworthy;
(b) if Reseller, in Xxxx Atlantic's reasonable judgment, at the Effective
Date or at any time thereafter, is not creditworthy; or, (c) if Reseller
fails to timely pay a xxxx rendered to Reseller by Xxxx Atlantic. Unless
otherwise agreed by the Parties, the assurance of payment shall be in the
form of a cash deposit and shall be in an amount equal to the charges for
Xxxx Atlantic Services that Reseller may reasonably be expected to incur
during a period of two (2) months. Xxxx Atlantic may at any time use the
deposit or other assurance of payment to pay amounts due from Reseller.
5. BILLING AND PAYMENT
5.1 Except as otherwise permitted or required by this Agreement, or
agreed in writing by the Parties, Xxxx Atlantic shall render bills to
Reseller monthly. Except as otherwise agreed in writing by the Parties,
Xxxx Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Xxxx Atlantic's bills in immediately
available U.S. funds. Except as otherwise agreed in writing by the
Parties, payments shall be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Xxxx
Atlantic's bills. Except as otherwise required by Xxxx Atlantic's Tariffs
or agreed in writing by the Parties, the due date shall not be sooner
than twenty (20) days after the date the xxxx is received by Reseller.
5.4 Charges which are not paid by the due date stated on Xxxx
Atlantic's xxxx shall be subject to a late payment charge. The late
payment charge shall be in an amount specified by Xxxx Atlantic, which
shall not exceed a rate of one-and-one-half percent (1.5%) of the
over-due amount (including any unpaid, previously billed late payment
charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Xxxx Atlantic will be engaged
in developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Xxxx
Atlantic Retail Telecommunications
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Services and new or modified systems and methods for computing and
rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified
forms of bills and such new or modified systems and methods for computing
and rendering bills, Xxxx Atlantic's form of xxxx and systems and methods
for computing and rendering bills may be subject to limitations and
restrictions, including, but not limited to, the limitations stated in
Section 5.5.3, below, the inability to provide Reseller with a single,
consolidated xxxx for all Xxxx Atlantic Services purchased by Reseller,
and the unavailability of bills and billing information in an electronic
form (e.g., bills may be rendered in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified
forms of bills and the new or modified systems and methods for computing
and rendering bills, Xxxx Atlantic may apply the discount identified in
Exhibit II, Section 1.1, in a manner (including, but not limited to, in a
"bottom-of-the-xxxx" format) that results in the Exhibit II, Section 1.1
discount being applied to charges stated in the xxxx (including, but not
limited to, Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, Audiotex
Service charges, and charges for services which are not Xxxx Atlantic
Retail Telecommunications Services) which are not subject to the Exhibit
II, Section 1.1 discount. Xxxx Atlantic will implement a "true-up"
process and within six (6) months after the due date of each monthly
xxxx, issue to Reseller a "true-up" xxxx for amounts which were not
collected from Reseller under the monthly xxxx because of the application
of the Exhibit II, Section 1.1 discount to charges which are not subject
to the Exhibit II, Section 1.1 discount. The "true-up" xxxx may be
issued as a part of or an entry on a monthly xxxx, as a xxxx separate
from a monthly xxxx, or in such other form as Xxxx Atlantic may
determine.
5.6 Although it is the intent of Xxxx Atlantic to submit timely and
accurate bills, failure by Xxxx Atlantic to present bills (including, but
not limited to, monthly bills and "true-up" bills) to Reseller in a
timely or accurate manner shall not constitute a breach or default of
this Agreement, or a waiver of a right of payment of the incurred
charges, by Xxxx Atlantic. Reseller shall not be entitled to dispute
charges for Xxxx Atlantic Services provided by Xxxx Atlantic based on
Xxxx Atlantic's failure to submit a xxxx for the charges in a timely
fashion.
6. TERM
6.1 The term of this Agreement shall commence on the Effective Date,
and, except as otherwise provided in this Agreement, shall remain in
effect through August 5, 2000 (the "Initial Term Ending Date"). After the
Initial Term Ending Date, this Agreement shall continue in force and
effect unless and until terminated as provided in this Agreement.
Following the Initial Term Ending Date, either Party may terminate this
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Agreement by providing written notice of termination to the other Party,
such written notice to be provided at least ninety (90) days in advance
of the date of termination.
6.2 Following termination of this Agreement pursuant to Section 6.1,
this Agreement, as amended from time to time, shall remain in effect as
to any Termination Date Xxxx Atlantic Service for the remainder of the
Contract Period applicable to such Termination Date Xxxx Atlantic Service
at the time of the termination of this Agreement. If a Termination Date
Xxxx Atlantic Service is terminated prior to the expiration of the
Contract Period applicable to such Termination Date Xxxx Atlantic
Service, Reseller shall pay any termination charge provided for in this
Agreement.
7. SERVICE INSTALLATION AND MAINTENANCE
Reseller shall comply with Xxxx Atlantic's processes and
procedures (including, but not limited to, requirements by Xxxx Atlantic
that Reseller use Xxxx Atlantic OSS Services) for the communication to
Xxxx Atlantic of (a) Reseller's Orders to provide, change or terminate,
Xxxx Atlantic Services, and (b) Reseller's requests for information
about, assistance in using, or repair or maintenance of, Xxxx Atlantic
Services. Xxxx Atlantic may, from time-to-time, upon notice to Reseller,
change these processes and procedures.
8. ASSIGNMENT
8.1 Reseller shall not assign this Agreement or any right or
interest under Us Agreement, nor delegate any obligation under this
Agreement, without the prior written approval of Xxxx Atlantic, which
approval shall not be unreasonably withheld, conditioned or delayed. Any
attempted assignment or delegation in contravention of the foregoing
shall be void and ineffective.
8.2 Xxxx Atlantic may, without the consent of Reseller, assign this
Agreement or any right or interest under this Agreement, and/or delegate
any obligation under this Agreement, to any of Xxxx Atlantic's
Affiliates, or to a person with which Xxxx Atlantic merges or which
acquires substantially all of Xxxx Atlantic's assets.
9. AVAILABILITY OF SERVICE
9.1 Subject to the requirements of Applicable Law, Xxxx Atlantic
shall be obligated to provide Xxxx Atlantic Services to Reseller under
this Agreement only where Xxxx Atlantic is able, without unreasonable
expense (as determined by Xxxx Atlantic in its reasonable judgment), (a)
to obtain, retain, install and maintain suitable facilities for the
provision of such Xxxx Atlantic Services, and (b) to obtain, retain and
maintain suitable rights for the provision of such Xxxx Atlantic
Services.
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9.2 Xxxx Atlantic's obligation to provide a Xxxx Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Xxxx Atlantic Retail Telecommunications Service
to Reseller where, and to the same extent, that Xxxx Atlantic provides
such Xxxx Atlantic Retail Telecommunications Service to Xxxx Atlantic's
own end user retail Customers.
10. BRANDING
10.1 Except as stated in Section 10.2, in providing Xxxx Atlantic
Services to Reseller, Xxxx Atlantic shall have the right, but not the
obligation, to identify the Xxxx Atlantic Services with Xxxx Atlantic's
trade names, trademarks and service marks. Any such identification of the
Xxxx Atlantic Services shall not constitute the grant of a license or
other right to Reseller to use Xxxx Atlantic's trade names, trade marks
or service marks.
10.2 To the extent required by Applicable Law, upon request by
Reseller and at prices, terms and conditions to be negotiated by Reseller
and Xxxx Atlantic, Xxxx Atlantic shall provide Xxxx Atlantic Retail
Telecommunications Services that are identified by Reseller's trade name,
or that are not identified by trade name, trademark or service xxxx.
11. CHOICE OF LAW
11.1 The construction, interpretation and performance of this
Agreement shall be governed by the laws of the United States of America
and the laws of Jurisdiction (without regard to Jurisdiction's conflicts
of laws rules). All disputes relating to this Agreement shall be resolved
through the application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court,
commission or other governmental entity in which a claim, suit or
proceeding which arises out of or in connection with this Agreement or
Xxxx Atlantic Services provided under this Agreement and in which Xxxx
Atlantic is a party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
12.1 Each Party shall in its performance of this Agreement comply
with Applicable Law, including, but not limited to, all applicable
regulations and orders of the Commission and the Federal Communications
Commission (hereinafter the "FCC").
12.2 Reseller shall in providing Xxxx Atlantic Retail
Telecommunications Services to Reseller Customers comply with Applicable
Law, including, but not limited to, all applicable regulations and orders
of the Commission and the FCC.
13. CONFIDENTIAL INFORMATION
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13.1 For the purposes of this Section 13, "Confidential Information"
means the following information disclosed by one Party ("Discloser") to
the other Party ("Recipient") in connection with this Agreement:
(a) Customer Information related to a Reseller Customer which
is disclosed by Reseller to Xxxx Atlantic (except to the extent that (i)
the Customer Information is subject to publication in a directory, (ii)
the Customer Information is subject to disclosure through an Operator
Service or other Telecommunications Service, or in the course of
furnishing Telecommunications Services, or (iii) the Reseller Customer to
whom the Customer Information is related, in the manner required by
Applicable Law, has given Xxxx Atlantic permission to use and/or disclose
the Customer Information);
(b) Customer Information related to a Xxxx Atlantic Customer
which is disclosed by Xxxx Atlantic to Reseller (except to the extent
that the Xxxx Atlantic Customer to whom the Customer Information is
related, in the manner required by Applicable Law, has given Reseller
permission to use and/or disclose the Customer Information);
(c) Information related to specific Xxxx Atlantic facilities
and equipment (including, but not limited to, cable-and-pair information)
which is disclosed by Xxxx Atlantic to Reseller; and
(d) Any other information which is identified by the
Discloser as Confidential Information in accordance with Section 13.2.
13.2 All information which is to be treated as Confidential
Information under Section 13.1(d) shall:
(a) if in written, graphic, electromagnetic, or other
tangible form, be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser at the time
of disclosure to be "Confidential" or "Proprietary", and (ii) be set
forth in a written summary which identifies the information as
"Confidential" or "Proprietary" and is delivered by the Discloser to the
Recipient within ten (10) days after the oral disclosure.
Each Party shall have the right to correct an inadvertent
failure to identify information as Confidential Information pursuant to
Section 13.1(d) by giving written notification within thirty (30) days
after the information is disclosed. The Recipient shall, from that time
forward, treat such information as Confidential Information.
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Notwithstanding any other provision of this Agreement, a Party
shall have the right to refuse to accept receipt of information which the
other Party has identified as Confidential Information pursuant to
Section 13.1(d).
13.3 In addition to any requirements imposed by law, including,
but not limited to, 47 U.S.C. Section 222, for a period of five years
from the receipt of Confidential Information from the Discloser,
except as otherwise specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for the purpose
of performing under this Agreement;
(b) using the same degree of care that it uses with similar
confidential information of its own, to hold the Confidential Information
in confidence and restrict disclosure of the Confidential Information
solely to the Recipient's Affiliates, and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, having a need
to know the Confidential Information for the purpose of performing under
this Agreement. The Recipient's Affiliates and the directors, officers
and employees of the Recipient and the Recipient's Affiliates, shall
be required by the Recipient to comply with the provisions of this
Section 13 in the same manner as the Recipient. The Recipient shall be
liable for any failure of the Recipient's Affiliates and the
directors, officers and employees of the Recipient and the Recipient's
Affiliates, to comply with the provisions of this Section 13.
13.4 If the Recipient wishes to disclose the Discloser's Confidential
Information to a third party Agent or contractor, such disclosure must be
mutually agreed to in writing by the Parties to this Agreement, and the
Agent or contractor must have executed a written agreement of
non-disclosure and non-use comparable in scope to the terms of this
Section 13.
13.5 The Recipient may make copies of Confidential Information only
as reasonably necessary to perform its obligations under this Agreement.
All such copies shall bear the same copyright and proprietary rights
notices as are contained on the original.
13.6 The Recipient shall return or destroy all Confidential
Information received from the Discloser, including any copies made by the
Recipient, within thirty (30) days after a written request by the
Discloser is delivered to the Recipient, except for (a) Confidential
Information that the Recipient reasonably requires to perform its
obligations under this Agreement, and (b) Customer Information related to
a Reseller Customer that is to be treated by Xxxx Atlantic as
Confidential Information pursuant to Section 13.1(a). If the Recipient
loses or makes an unauthorized disclosure of the Discloser's Confidential
Information, it shall notify the Discloser immediately and use reasonable
efforts to retrieve the lost or improperly disclosed information.
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13.7 The requirements of this Section 13 shall not apply to
Confidential Information:
(a) which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser;
(b) after it becomes publicly known or available through no
breach of this Agreement by the Recipient, the Recipient's Affiliates, or
the directors, officers, employees, Agents, or contractors, of the
Recipient or the Recipient's Affiliates;
(c) after it is rightfully acquired by the Recipient free of
restrictions on its disclosure;
(d) after it is independently developed by the Recipient; or
(e) to the extent the disclosure is required by Applicable
Law, a court, or governmental agency; provided, the Discloser has been
notified of the required disclosure promptly after the Recipient becomes
aware of the required disclosure, the Recipient undertakes reasonable
lawful measures to avoid disclosing the Confidential Information until
the Discloser has had reasonable time to seek a protective order, and the
Recipient complies with any protective order that covers the Confidential
Information to be disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
13.9 Confidential Information shall remain the property of the
Discloser, and the Discloser shall retain all of the Discloser's right,
title and interest in any Confidential Information disclosed by the
Discloser to the Recipient. Except as otherwise expressly provided
elsewhere in this Agreement, no license is granted by this Agreement
with respect to any Confidential Information (including, but not limited
to, under any patent, trademark, or copyright), nor is any such license
to be implied, solely by virtue of the disclosure of any Confidential
Information.
13.10 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Section 13 by the Recipient, the Recipient's
Affiliates, or the directors, officers, employees, Agents or contractors
of the Recipient or the Recipient's Affiliates, and that the Discloser
shall be entitled to seek equitable relief, including injunctive relief
and specific performance, in the event of any breach of the provisions of
this Section 13. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Section 13, but shall be in addition to any
other remedies available under this Agreement or at law or in equity.
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13.11 The provisions of this Section 13 shall be in addition to and
not in derogation of any provisions of Applicable Law, including, but not
limited to, 47 U.S.C. Section 222, and are not intended to constitute a
waiver by a Party of any right with regard to protection of the
confidentiality of information of the Party or its Customers provided by
Applicable Law. In the event of a conflict between a provision of this
Section 13 and a provision of Applicable Law, the provision of Applicable
Law shall prevail.
14. CONTINGENCIES
Neither Party shall be liable for any delay or failure in
performance by it which results from strikes, labor slowdowns, or other
labor disputes, fires, explosions, floods, earthquakes, volcanic action,
delays in obtaining or inability to obtain necessary services,
facilities, equipment, parts or repairs thereof, power failures,
embargoes, boycotts, unusually severe weather conditions, revolution,
riots or other civil disturbances, war or acts of the public enemy, acts
of God, or causes beyond the Party's reasonable control.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
16. CUSTOMER INFORMATION
16.1 Without in any way limiting Section 12, each Party shall comply
with Applicable Law with regard to Customer Information, including, but
not limited to, 47 U.S.C. Section 222 and the FCC rules in 47 CFR Section
64.2001 - Section 64.2009.
16.2 A Party ("Accessing Party") shall not access (including, but not
limited to, in the case of Reseller, through Xxxx Atlantic OSS Services),
use or disclose Customer Information made available to the Accessing
Party by the other Party pursuant to this Agreement unless the Accessing
Party, in the manner required by Applicable Law, has obtained any
Customer authorization for such access, use and/or disclosure required by
Applicable Law. By accessing, using or disclosing Customer Information
made available to the Accessing Party by the other Party pursuant to this
Agreement, the Accessing Party represents and warrants that the Accessing
Party has obtained, in the manner required by Applicable Law, any
Customer authorization for such action required by Applicable Law. The
Accessing Party shall upon request by the other Party provide proof of
such authorization (including, a copy of any written authorization).
16.3 Xxxx Atlantic shall have the right (but not the obligation) to
audit Reseller to ascertain whether Reseller is complying with the
requirements of Applicable Law and
13
this Agreement, with regard to Reseller's access to, and use and
disclosure of, Customer Information which is made available to Reseller
by Xxxx Atlantic pursuant to this Agreement.
16.4 In addition to Xxxx Atlantic's audit rights under Section 16.3,
Xxxx Atlantic shall have the right (but not the obligation) to monitor
Reseller's access to and use of Customer Information which is made
available by Xxxx Atlantic to Reseller pursuant to this Agreement, to
ascertain whether Reseller is complying with the requirements of
Applicable Law and this Agreement, with regard to Reseller's access to,
and use and disclosure of, such Customer Information. The foregoing right
shall include, but not be limited to, the right (but not the obligation)
to electronically monitor Reseller's access to and use of Customer
Information which is made available by Xxxx Atlantic to Reseller pursuant
to this Agreement through Xxxx Atlantic OSS Facilities or other
electronic interfaces or gateways.
16.5 Information obtained by Xxxx Atlantic pursuant to Section 16.3
or Section 16.4 shall be treated by Xxxx Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Xxxx
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Xxxx Atlantic pursuant to this Section
16 to enforce Applicable Law and/or Xxxx Atlantic's rights under this
Agreement.
17. DEFAULT
17.1 If Reseller materially breaches a material provision of this
Agreement (other than an obligation to make payment of any amount billed
under this Agreement), and such breach continues for more than thirty
(30) days after written notice thereof from Xxxx Atlantic, then, except
as otherwise required by Applicable Law, Xxxx Atlantic shall have the
right, upon notice to Reseller, to terminate or suspend this Agreement
and/or provision of Xxxx Atlantic Services, in whole or in part.
17.2.1 If Reseller fails to make a payment of any amount billed under
this Agreement by the due date stated on the xxxx and such failure
continues for more than thirty (30) days after written notice thereof
from Xxxx Atlantic, then, except as provided in Section 17.2.2, below, or
as otherwise required by Applicable Law, Xxxx Atlantic shall have the
right, upon notice to Reseller, to terminate or suspend this Agreement
and/or provision of Xxxx Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning
the obligation of Reseller to make payment of an amount billed under this
Agreement, the failure to pay the amount in dispute shall not constitute
cause for termination or suspension of this Agreement or provision of
Xxxx Atlantic Services, if, within thirty (30) days of the date that Xxxx
Atlantic gives Reseller written notice of the failure to pay the amount
in dispute, Reseller (a) gives Xxxx Atlantic written notice of the
dispute stating the basis of the dispute, and (b) furnishes to Xxxx
Atlantic an irrevocable letter of credit in a form
14
acceptable to Xxxx Atlantic or other security arrangement acceptable to
Xxxx Atlantic, guaranteeing payment to Xxxx Atlantic of any portion of
the disputed amount (including the whole of the disputed amount) which is
thereafter agreed by Xxxx Atlantic and Reseller, or determined by a court
or other governmental entity of appropriate jurisdiction, to be due to
Xxxx Atlantic. The existence of such a dispute shall not relieve Reseller
of its obligations to pay any undisputed amount which is due to Xxxx
Atlantic and to otherwise comply with this Agreement.
18. FACILITIES
18.1 Xxxx Atlantic or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Xxxx Atlantic Services. Xxxx
Atlantic shall have access at all reasonable times to Reseller and
Reseller Customer locations for the purpose of installing, inspecting,
maintaining, repairing, and removing, facilities, equipment, software,
and wiring, used to provide the Xxxx Atlantic Services. Reseller shall,
at Reseller's expense, obtain any rights and authorizations necessary for
such access.
18.2 Except as otherwise agreed to in writing by Xxxx Atlantic, Xxxx
Atlantic shall not be responsible for the installation, inspection,
repair, maintenance, or removal, of facilities, equipment, software, or
wiring, provided by Reseller or Reseller Customers for use with Xxxx
Atlantic Services.
19. INTELLECTUAL PROPERTY
Except as expressly stated in this Agreement, nothing contained
within this Agreement shall be construed as the grant of a license,
either express or implied, with respect to any patent, copyright, trade
name, trade xxxx, service xxxx, trade secret, or other proprietary
interest or intellectual property, now or hereafter owned, controlled or
licensable by either Party.
20. JOINT WORK PRODUCT
The Principal Document is the joint work product of the
representatives of the Parties. For convenience, the Principal Document
has been drafted in final form by Xxxx Atlantic. Accordingly, in the
event of ambiguities, no inferences shall be drawn against either Party
solely on the basis of authorship of the Principal Document.
21. LIABILITY
21.1.1 AS USED IN THIS SECTION 21, "OTHER XXXX ATLANTIC PERSONS" MEANS
XXXX ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS AND CONTRACTORS, OF XXXX ATLANTIC AND XXXX ATLANTIC'S AFFILIATES.
15
21.1.2 AS USED IN THIS SECTION 21, "XXXX ATLANTIC SERVICE FAILURE"
MEANS AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE
A XXXX ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION, INTERRUPTION, DELAY,
ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A XXXX ATLANTIC SERVICE.
21.2 THE LIABILITY, IF ANY, OF XXXX ATLANTIC AND OTHER XXXX ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A XXXX
ATLANTIC SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH
IN XXXX ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE XXXX ATLANTIC TARIFFS APPLICABLE TO A XXXX
ATLANTIC SERVICE DO NOT CONTAIN A PROVISION WHICH LIMITS OR EXCLUDES THE
LIABILITY OF XXXX ATLANTIC AND/OR OTHER XXXX ATLANTIC PERSONS TO
RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM,
LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC
SERVICE FAILURE, SECTION 21.3.3 SHALL APPLY.
21.3.2 TO THE EXTENT A XXXX ATLANTIC SERVICE IS NOT SUBJECT TO A XXXX
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF XXXX ATLANTIC AND OTHER XXXX ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A XXXX
ATLANTIC SERVICE FAILURE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN
EXCESS OF: (a) TWICE THE PROPORTIONATE CHARGE FOR THE XXXX ATLANTIC
SERVICE AFFECTED DURING THE PERIOD OF THE XXXX ATLANTIC SERVICE FAILURE;
OR, (b) ]IF THERE IS NO CHARGE FOR THE XXXX ATLANTIC SERVICE AFFECTED,
FIVE HUNDRED DOLLARS ($500.00). -
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION
21.3.1, SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, XXXX ATLANTIC AND OTHER
XXXX ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER, RESELLER
CUSTOMERS, AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST PROFITS, LOST SAVINGS,
OR OTHER COMMERCIAL OR ECONOMIC LOSS), ARISING OUT OF OR IN CONNECTION
WITH A XXXX ATLANTIC SERVICE
16
FAILURE OR ANY BREACH OR FAILURE IN PERFORMANCE OF THIS AGREEMENT BY XXXX
ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS
21.2 THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A CLAIM OR
ACTION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED
TO, THE NEGLIGENCE OF XXXX ATLANTIC AND/OR OTHER XXXX ATLANTIC
PERSONS), STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER XXXX
ATLANTIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with Reseller
Customers, provide that in no case shall Xxxx Atlantic or Other Xxxx
Atlantic Persons be liable to Reseller Customers or to any other third
parties for any indirect, special, incidental, consequential, or other
damages, including, but not limited to, harm to business, lost revenues,
lost profits, lost savings, or other commercial or economic loss, whether
foreseeable or not, and regardless of notification of the possibility of
such damages. Reseller shall indemnify, defend and hold Xxxx Atlantic and
Other Xxxx Atlantic Persons harmless from claims by Reseller Customers
and other third parties as provided in Xxxx Atlantic's Tariffs.
21.7 Xxxx Atlantic's obligations under this Agreement shall extend only
to Reseller. Xxxx Atlantic shall have no liability under this Agreement
to Reseller Customers or to any other third party. Nothing in this
Agreement shall be deemed to create a third party beneficiary
relationship between Xxxx Atlantic and Reseller Customers or any other
third party.
21.8 Reseller shall indemnify, defend and hold harmless Xxxx Atlantic,
Xxxx Atlantic's Affiliates, and the directors, officers and employees of
Xxxx Atlantic and Xxxx Atlantic's Affiliates, from any claims, suits,
government proceedings, judgments, fines, liabilities, losses, damages,
costs or expenses (including reasonable attorneys fees) arising out of or
in connection with: (a) the failure of Reseller to transmit to Xxxx
Atlantic a request by a Reseller Customer to install, provide, change or
terminate, a Xxxx Atlantic Retail Telecommunications Service; (b) the
transmission by Reseller to Xxxx Atlantic of an Order to install,
provide, change or terminate, a Xxxx Atlantic Retail Telecommunications
Service, which Order was not authorized by the applicable Reseller
Customer; (c) erroneous or inaccurate information in an Order transmitted
by Reseller to Xxxx Atlantic; (d) the transmission by Reseller to Xxxx
Atlantic of an Order to change or terminate a Telecommunications Service
provided to an end user by Xxxx Atlantic or another Telecommunications
Service provider, or to install or provide a Telecommunications Service
for an end user, which Order was not authorized by the applicable end
user; (e) the transmission by Reseller to Xxxx Atlantic of an Order to
select, change or reassign a telephone number for an end user, which
Order was not authorized
17
by the applicable end user; (f) the transmission by Reseller to Xxxx
Atlantic of an Order to select a Telephone Exchange Service provider for
an end user, or to change or terminate an end user's selection of a
Telephone Exchange Service provider, which Order was not authorized by
the applicable end user in the manner required by Applicable Law (or, in
the absence of such Applicable Law, in the manner required by the rules
and procedures in 47 CFR Section 64.1100); (g) access to, or use or
disclosure of, Customer Information or Xxxx Atlantic OSS Information by
Reseller or Reseller's employees, Agents or contractors; (h) the failure
of Reseller to transmit, or to transmit in a timely manner, E911/911
information to Xxxx Atlantic; (i) erroneous or inaccurate E911/911
information transmitted by Reseller to Xxxx Atlantic; (j) any information
provided by Reseller for inclusion in Xxxx Atlantic's LIDB; or, (k) the
marketing, advertising or sale of Reseller's services and/or products
(including, but not limited to, resold Xxxx Atlantic Retail
Telecommunications Services), or the billing or collection of charges for
Reseller's services and/or products (including, but not limited to,
resold Xxxx Atlantic Retail Telecommunications Services). For the
purposes of Section 21.8(b), (d) and (e), an Order shall be deemed not to
have been authorized by a Reseller Customer or end user if Applicable Law
and/or this Agreement required such authorization to be obtained in a
particular manner, and Reseller did not obtain the authorization in the
manner required by Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
Except as otherwise expressly provided in this Agreement, each
of the remedies provided under this Agreement is cumulative and is in
addition to any other remedies that may be available under this Agreement
or at law or in equity.
23. NOTICES
All notices and other communications under this Agreement shall
be deemed effective upon receipt by the Party being notified, provided
such notices or communications are in writing and are sent by certified
or registered mail, return receipt requested, or by a reputable private
delivery service which provides a record of delivery, and addressed as
shown below:
To Xxxx Atlantic:
Xxxx Atlantic - Virginia, Inc.
c/x Xxxx Atlantic Network Services, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Director, Resale
Initiatives
To Reseller President
18
Xxxxxxxxx.Xxx, Inc.
0 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Either Party may from time-to-time designate another
address or addressee by giving notice in accordance with this Section 23.
24. OPTION TO OBTAIN XXXX ATLANTIC SERVICE UNDER OTHER AGREEMENTS
24.1 If, at any time while this Agreement is in effect, Xxxx Atlantic
is a party to an agreement with a Telecommunications Carrier other than
Reseller ("Third-Person Telecommunications Carrier) to provide Xxxx
Atlantic Services to the Third-Person Telecommunications Carrier,
which agreement has been approved by the Commission pursuant to 47
U.S.C. Section 252, upon request by Reseller, Xxxx Atlantic, to the
extent required by Applicable Law (including, but not limited to 47
U.S.C. Section 252(i)), shall make available to Reseller any Xxxx
Atlantic Service offered by Xxxx Atlantic under the agreement with the
Third-Person Telecommunications Carrier upon the same terms and
conditions (including prices) provided in the agreement with the
Third-Person Telecommunications Carrier, but (except as otherwise
expressly agreed in writing by the Parties) only on a prospective
basis. Following such request by Reseller and prior to provision of
the Xxxx Atlantic Service by Xxxx Atlantic to Reseller pursuant to the
terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement, this Agreement shall be amended
to incorporate the terms and conditions (including prices) from the
Third-Person Telecommunications Carrier agreement applicable to the
Xxxx Atlantic Service Reseller has elected to purchase pursuant to the
terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement. Except as otherwise expressly
agreed in writing by the Parties, the amendment shall apply on a
prospective basis only and shall not apply with regard to any Xxxx
Atlantic Service provided by Xxxx Atlantic to Reseller prior to the
effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Xxxx Atlantic, Reseller shall be liable
for the non-recurring charges associated therewith, as well as for any
termination charges associated with the termination of existing
facilities or Xxxx Atlantic Services.
25. REGULATORY APPROVALS
25.1 Within thirty (30) days after execution of this Agreement by the
Parties, Xxxx Atlantic shall file the Agreement with the Commission for
approval by the Commission.
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25.2 Each Party shall exercise reasonable efforts (including
reasonably cooperating with the other Party) to secure approval of this
Agreement, and any amendment to this Agreement agreed to by the Parties,
from the Commission, the FCC, and other applicable governmental entities.
25.3 Upon request by Xxxx Atlantic, Reseller shall, at Reseller's
expense, provide reasonable, good-faith support and assistance to Xxxx
Atlantic in obtaining any governmental approvals necessary for (a) this
Agreement and any amendment to this Agreement agreed to by the Parties,
and/or (b) the provision of Xxxx Atlantic Services by Xxxx Atlantic to
Reseller. Without in any way limiting the foregoing, upon request by
Xxxx Atlantic, Reseller shall (a) join in petitions requesting approval
of this Agreement, or an amendment to this Agreement agreed to by the
Parties, to be filed with the Commission, the FCC, or other applicable
governmental entities, and (b) file other documents with and present
testimony to the Commission, the FCC, or other applicable governmental
entities, requesting approval of this Agreement or an amendment to this
Agreement agreed to by the Parties.
26. REGULATORY CONTINGENCIES
26.1 Neither Party shall be liable for any delay or failure in
performance by it which results from requirements of Applicable Law, or
acts or failures to act of any governmental entity or official.
26.2 In the event that any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other provision of this Agreement,
and this Agreement shall be construed as if it did not contain such
invalid or unenforceable provision.
26.3 In the event that any legislative, regulatory, judicial or other
governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit Xxxx
Atlantic to continue to provide and Reseller to continue to purchase Xxxx
Atlantic Services, including, but not limited to, conducting good faith
negotiations to enter into a mutually acceptable modified or substitute
agreement, filing tariffs, or additional, supplemental or modified
tariffs, and making other required filings with governmental entities.
26.4 In the event of a governmental action described in Section 26.3,
above, to the extent permitted by Applicable Law, Xxxx Atlantic shall
continue to provide and Reseller shall continue to subscribe to, use and
pay for, any Xxxx Atlantic Services affected by the governmental action
until the action to be taken by Xxxx Atlantic and Reseller under Section
26.3, above, is taken and becomes effective in accordance with Applicable
Law. Such continued provision of and subscription to, use of and payment
20
for, the affected Xxxx Atlantic Services shall be in accordance with the
terms (including prices) of this Agreement, unless other terms, including
but not limited to the terms of a Xxxx Atlantic Tariff, are required by
Applicable Law.
26.5 If suspension or termination of the provision of any Xxxx
Atlantic Service is required by or as a result of a governmental action,
such suspension or termination shall not affect Reseller's subscription
to, use or obligation to pay for, other Xxxx Atlantic Services, unless
such suspension or termination has a material, adverse effect on
Reseller's ability to use the other Xxxx Atlantic Services.
26.6 If any of the Xxxx Atlantic Services to be provided by Xxxx
Atlantic pursuant to a tariff shall at any time become detariffed or
deregulated, Xxxx Atlantic may transfer the provisions of the tariff
relative to such Xxxx Atlantic Services to a Xxxx Atlantic "Guide for
Detariffed Services" or similar document, and such "Guide for Detariffed
Services" or similar document, as amended by Xxxx Atlantic from time-to-
time, shall become a part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
27.1 The relationship between the Parties under this Agreement shall
be that of independent contractors.
27.2 Nothing contained in this Agreement shall:
(a) make either Party the Agent or employee of the other
Party;
(b) grant either Party the authority to enter into a contract
on behalf of, or otherwise legally bind, the other Party in any way;
(c) create a partnership, joint venture or other similar
relationship between the parties; or
(d) grant to Reseller a franchise, distributorship or similar
interest.
27.3 Each Party shall be solely responsible for selection,
supervision, termination, and compensation, of its respective employees,
Agents and contractors.
27.4 Each Party shall be solely responsible for payment of any Social
Security or other taxes which it is required by Applicable Law to pay in
conjunction with its employees, Agents or contractors, and for collecting
and remitting to applicable taxing authorities any taxes which it is
required by Applicable Law to collect from its employees, Agents or
contractors.
21
27.5 The relationship of the Parties under this Agreement is a
non-exclusive relationship. Xxxx Atlantic shall have the right to provide
services offered by Xxxx Atlantic under this Agreement to persons other
than Reseller. Reseller shall have the right to purchase services that
may be purchased by Reseller under this Agreement from persons other than
Xxxx Atlantic.
28. RESELLER'S PROVISION OF SERVICE
28.1 Prior to providing Xxxx Atlantic Retail Telecommunications
Services purchased by Reseller under this Agreement to Reseller
Customers, Reseller shall obtain from the Commission, the FCC, and any
other applicable governmental entities, any certificates or other
authorizations required by Applicable Law for Reseller to provide
Telecommunications Services. Reseller shall promptly notify Xxxx Atlantic
in writing of any governmental action which suspends, cancels or
withdraws any such certificate or authorization, or otherwise limits or
affects Reseller's right to provide Telecommunications Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a) file
with the Commission, the FCC, and/or other applicable governmental
entities, the tariffs, arrangements and other documents that set forth
the terms, conditions and prices under which Reseller provides
Telecommunications Services; and, (b) make available for public
inspection, the tariffs, arrangements and other documents that set forth
the terms, conditions and prices under which Reseller provides
Telecommunications Services.
29. RESELLER'S RESALE AND USE OF SERVICE
29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Xxxx Atlantic's Tariffs) regarding resale
or use of Xxxx Atlantic Services, including, but not limited to, any
restrictions on resale or use of Xxxx Atlantic Services.
29.2 Without in any way limiting Section 29.1, (a) Reseller shall
not resell residential service to persons not eligible to subscribe to
such service from Xxxx Atlantic (including, but not limited to, business
Reseller Customers and other nonresidential Reseller Customers), and (b)
Reseller shall not resell Lifeline or other means-tested service
offerings, or grandfathered or discontinued service offerings, to persons
not eligible to subscribe to such service offerings from Xxxx Atlantic.
29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Xxxx Atlantic's Tariffs
applicable to their use of Xxxx Atlantic Retail Telecommunications
Services.
29.4 Reseller shall comply with Applicable Law, and Xxxx Atlantic's
procedures, for handling requests from law enforcement and other
government agencies
22
for service termination, assistance with electronic surveillance, and
provision of information.
30. RESPONSIBILITY FOR CHARGES
30.1 Reseller shall be responsible for and pay all charges for any
Xxxx Atlantic Service provided by Xxxx Atlantic to Reseller, whether the
Xxxx Atlantic Service is ordered, activated or used by Reseller, a
Reseller Customer, or another person.
30.2 In addition to the charges for Xxxx Atlantic Services, Reseller
agrees to pay any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
Xxxx Atlantic, or provided by persons other than Xxxx Atlantic and billed
for by Xxxx Atlantic, that are ordered, activated or used by Reseller,
Reseller Customers or other persons, through, by means of, or in
association with, Xxxx Atlantic Services provided by Xxxx Atlantic to
Reseller.
30.3 Reseller agrees to indemnify, defend and hold Xxxx Atlantic
harmless from, any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
persons other than Xxxx Atlantic that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or
in association with, Xxxx Atlantic Services provided by Xxxx Atlantic to
Reseller.
30.4 Without in any way limiting Reseller's obligations under Section
30.1, Section 30.2 and Section 30.3, Reseller shall pay, or collect and
remit to Xxxx Atlantic, without discount, all Subscriber Line Charges,
Federal Line Cost Charges, end user common line charges, carrier
selection and change charges (PIC change charge), and the Presubscribed
Interexchange Carrier Charge applicable to Reseller Customers who have
not presubscribed to an interexchange carrier for long distance services,
associated with Xxxx Atlantic Services provided by Xxxx Atlantic to
Reseller.
30.5 Upon request by Reseller, Xxxx Atlantic will provide for use on
resold Xxxx Atlantic Retail Telecommunications Service dial tone lines
purchased by Reseller such Xxxx Atlantic Retail Telecommunications
Service call blocking services as Xxxx Atlantic provides to Xxxx
Atlantic's own end user retail Customers, where and to the extent Xxxx
Atlantic provides such Xxxx Atlantic Retail Telecommunications Service
call blocking services to Xxxx Atlantic's own end user retail Customers.
31. SECTION HEADINGS
The section headings in the Principal Document are for
convenience only and are not intended to affect the meaning or
interpretation of the Principal Document.
32. SERVICES NOT COVERED BY THIS AGREEMENT
23
32.1 This Agreement applies only to Xxxx Atlantic Services (as the
term "Xxxx Atlantic Service" is defined in Section 1.1.6) provided, or
to be provided, by Xxxx Atlantic to Reseller, as specified in Section 3.
Any Telecommunications Services, facilities, equipment, software, wiring,
or other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products, interconnected or used with Xxxx Atlantic
Services provided, or to be provided, by Xxxx Atlantic to Reseller)
provided, or to be provided, by Xxxx Atlantic to Reseller, which are not
subscribed to by Reseller under this Agreement, must be subscribed to by
Reseller separately, pursuant to other written agreements (including,
but not limited to, applicable Xxxx Atlantic Tariffs). Reseller shall use
and pay for any Telecommunications Services, facilities, equipment,
software, wiring, or other services or products, provided, or to be
provided, by Xxxx Atlantic to Reseller, which are not subscribed to by
Reseller under this Agreement, in accordance with such other written
agreements (including, but not limited to, applicable Xxxx Atlantic
Tariffs).
32.2 Without in any way limiting Section 32.1 and without attempting
to list all Xxxx Atlantic products and services that are not subject to
this Agreement, the Parties agree that this Agreement does not apply to
the purchase by Reseller of the following Xxxx Atlantic services and
products: except as expressly stated in the Principal Document, exchange
access services as defined in Section 3(16) of the Act, 47 U.S.C. Section
153(16) (including, but not limited to, primary interLATA toll carrier
and primary intraLATA toll carrier choice or change); Xxxx Atlantic
Answer Call, Xxxx Atlantic Answer Call Plus, Xxxx Atlantic Home Voice
Mail, Xxxx Atlantic Home Voice Mail Plus, Xxxx Atlantic Voice Mail, Xxxx
Atlantic Basic Mailbox, Xxxx Atlantic OptiMail Service, and other voice
mail, fax mail, voice messaging, and fax messaging, services; Xxxx
Atlantic Optional Wire Maintenance Plan; Xxxx Atlantic Guardian Enhanced
Maintenance Service; Xxxx Atlantic Sentry I Enhanced Maintenance Service;
Xxxx Atlantic Sentry II Enhanced Maintenance Service; Xxxx Atlantic
Sentry III Enhanced Maintenance Service; Xxxx Atlantic Call 54 Service;
Xxxx Atlantic Public Telephone Service; customer premises equipment; Xxxx
Atlantic telephone directory listings offered under agreements or
arrangements other than Xxxx Atlantic Tariffs filed with the Commission;
and, Xxxx Atlantic telephone directory advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also agree
that this Agreement does not apply to the installation, inspection,
maintenance, repair, removal, or use of any facilities, equipment,
software, or wiring, located on Reseller's side of the Network Rate
Demarcation Point applicable to Reseller and does not grant to Reseller
or Reseller Customers a right to installation, inspection, maintenance,
repair, or removal, by Xxxx Atlantic, or use, by Reseller or Reseller
Customers, of any such facilities, equipment, software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree that
this Agreement does not apply to the purchase by Reseller of Audiotex
Services (including,
24
but not limited to, Dial-It, 976, 915 and 556 services) for resale to
Audiotex Service providers or other information service providers. Xxxx
Atlantic shall have the right (but not the obligation) to block calls
made to Audiotex Service numbers (including, but not limited to, Dial-It
numbers and 976, 915 and 556 numbers) through Xxxx Atlantic Services
purchased by Reseller under this Agreement. Notwithstanding the
foregoing, Reseller shall pay, without discount, any charges for Audiotex
Services (including, but not limited to, Dial-It, 976, 915 and 556
services) that are ordered, activated or used by Reseller, Reseller
Customers or other persons, through, by means of, or in association with,
Xxxx Atlantic Services provided by Xxxx Atlantic to Reseller.
32.5 Nothing contained within this Agreement shall obligate Xxxx
Atlantic to provide any service or product which is not a Xxxx Atlantic
Service (including, but not limited to, the services listed in Sections
32.2, 32.3 and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Xxxx
Atlantic to provide a Xxxx Atlantic Service or any other service or
product to a Reseller Customer. Without in any way limiting the
foregoing, except as otherwise required by Applicable Law, Xxxx Atlantic
reserves the right to terminate provision of services and products
(including, but not limited to, Telecommunications Services and the
services listed in Sections 32.2 and 32.3, above) to any person who
ceases to purchase Xxxx Atlantic Retail Telecommunications Service dial
tone line service from Xxxx Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude or
limit Reseller's obligations and liabilities under Section 30, including,
but not limited to Reseller's obligations and liabilities to pay charges
for services and products as required by Section 30.
33. SERVICE QUALITY
Xxxx Atlantic Services provided by Xxxx Atlantic to Reseller
under this Agreement shall comply with the quality requirements for such
Xxxx Atlantic Services specified by Applicable Law (including, but not
limited to, any applicable provisions of 47 CFR Sections 51.311 and
51.603(b)).
34. SINGLE POINT OF CONTACT
34.1 Reseller shall be the single point of contact for Reseller
Customers and other persons with regard to Telecommunications Services
and other services and products which they wish to purchase from Reseller
or which they have purchased from Reseller. Communications by Reseller
Customers and other persons with regard to Telecommunications Services
and other services and products which they wish to purchase from Reseller
or which they have purchased from Reseller, shall be made to Reseller,
and not to Xxxx Atlantic. Reseller shall instruct Reseller Customers and
other persons that such communications shall be directed to Reseller.
25
34.2 Without in any way limiting Section 34.1, requests by Reseller
Customers for information about or provision of Telecommunications
Services which they wish to purchase from Reseller, requests by Reseller
Customers to change, terminate, or obtain information about, assistance
in using, or repair or maintenance of, Telecommunications Services which
they have purchased from Reseller, and inquiries by Reseller Customers
concerning Reseller's bills, charges for Reseller's Telecommunications
Services, and, if the Reseller Customers receive dial tone line service
from Reseller, annoyance calls, shall be made by the Reseller Customers
to Reseller, and not to Xxxx Atlantic.
34.3 Reseller shall establish telephone numbers and mailing addresses
at which Reseller Customers and other persons may communicate with
Reseller and shall advise Reseller Customers and other persons who may
wish to communicate with Reseller of these telephone numbers and mailing
addresses.
35. SURVIVAL
The liabilities and obligations of a Party for acts or omissions
of the Party prior to the termination, cancellation or expiration of this
Agreement, the rights, liabilities and obligations of a Party under any
provision of this Agreement regarding indemnification or defense,
Customer Information, confidential information, or limitation or
exclusion of liability, the rights of Xxxx Atlantic and the liabilities
and obligations of Reseller under Section 18.1, and the rights,
liabilities and obligations of a Party under any provision of this
Agreement which by its terms is contemplated to survive (or be performed
after) termination, cancellation or expiration of this Agreement, shall
survive termination, cancellation or expiration of this Agreement.
36. TAXES
36.1 With respect to any purchase of Xxxx Atlantic Services under
this Agreement, if any Federal, state or local government tax, fee, duty,
surcharge (including, but not limited to any E911/911, telecommunications
relay service, or universal service fund, surcharge), or other
tax-like charge (a "Tax") is required or permitted by Applicable Law
to be collected from Reseller by Xxxx Atlantic, then (a) to the extent
required by Applicable Law, Xxxx Atlantic shall xxxx Reseller for such
Tax, (b) Reseller shall timely remit such Tax to Xxxx Atlantic
(including both Taxes billed by Xxxx Atlantic and Taxes Reseller is
required by Applicable Law to remit without billing by Xxxx Atlantic),
and (c) Xxxx Atlantic shall remit such collected Tax to the applicable
taxing authority.
36.2 With respect to any purchase of Xxxx Atlantic Services under
this Agreement, if any Tax is imposed by Applicable Law on the receipts
of Xxxx Atlantic, which Applicable Law permits Xxxx Atlantic to exclude
certain receipts received from sales of Xxxx Atlantic Services for resale
by Reseller, such exclusion being based on the
26
fact that Reseller is also subject to a Tax based upon receipts
("Receipts Tax"), then Reseller (a) shall provide Xxxx Atlantic with
notice in writing in accordance with Section 36.7 of its intent to pay
the Receipts Tax, and (b) shall timely pay the Receipts Tax to the
applicable taxing authority.
36.3 With respect to any purchase of Xxxx Atlantic Services under
this Agreement, that are resold by Reseller to a Reseller Customer, if
any Tax is imposed by Applicable Law on the Reseller Customer in
connection with the Reseller Customer's purchase of the resold Xxxx
Atlantic Services which Reseller is required to impose and/or collect
from the Reseller Customer, then Reseller (a) shall impose and/or collect
such Tax from the Reseller Customer, and (b) shall timely remit such Tax
to the applicable taxing authority.
36.4.1 If Xxxx Atlantic has not received an exemption certificate from
Reseller and fails to xxxx Reseller for any Tax as required by Section
36.1, then, as between Xxxx Atlantic and Reseller, (a) Reseller shall
remain liable for such unbilled Tax, and (b) Xxxx Atlantic shall be
liable for any interest and/or penalty assessed on the unbilled Tax by
the applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Xxxx Atlantic as required
by Section 36. 1, then, as between Xxxx Atlantic and Reseller, Reseller
shall be liable for such uncollected Tax and any interest and/or penalty
assessed on the uncollected Tax by the applicable taxing authority.
36.4.3 If Xxxx Atlantic does not collect a Tax because Reseller has
provided Xxxx Atlantic with an exemption certificate which is later found
to be inadequate by the applicable taxing authority, then, as between
Xxxx Atlantic and Reseller, Reseller shall be liable for such uncollected
Tax and any interest and/or penalty assessed on the uncollected Tax by
the Applicable taxing authority.
36.4.4 Except as provided in Section 36.4.5, if Reseller fails to pay
the Receipts Tax as required by Section 36.2, then, as between Xxxx
Atlantic and Reseller, (a) Xxxx Atlantic shall be liable for any Tax
imposed on Xxxx Atlantic's receipts, (b) Reseller shall be liable for any
interest and/or penalty imposed on Xxxx Atlantic with respect to the Tax
on Xxxx Atlantic's receipts, and (c) Reseller shall be liable for any Tax
imposed on Reseller's receipts and any interest and/or penalty assessed
by the applicable taxing authority on Reseller with respect to the Tax on
Reseller's receipts.
36.4.5 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to a discount
provided for in Exhibit II, Section 1.1) represents Tax savings to Xxxx
Atlantic which it was anticipated Xxxx Atlantic would receive, because it
was anticipated that receipts from sales of Xxxx Atlantic Services, that
would otherwise be subject to a Tax on such receipts, could be excluded
from such Tax under Applicable Law because the Xxxx Atlantic Services
would be sold to
27
Reseller for resale, and Xxxx Atlantic is, in fact, required by
Applicable Law to pay such Tax on receipts from sales of Xxxx Atlantic
Services to Reseller, then, as between Xxxx Atlantic and Reseller, (a)
Reseller shall be liable for, and shall indemnify and hold harmless Xxxx
Atlantic against (on an after-tax basis), any such Tax, and (b) Reseller
shall be liable for, and shall indemnify and hold harmless Xxxx Atlantic
against (on an after-tax basis), any interest and/or penalty assessed by
the applicable taxing authority on either Reseller or Xxxx Atlantic with
respect to the Tax on Xxxx Atlantic's receipts.
36.4.6 If Reseller fails to impose and/or collect any Tax from Reseller
Customers as required by Section 36.3, then, as between Xxxx Atlantic and
Reseller, Reseller shall remain liable for such uncollected Tax and any
interest and/or penalty assessed on such uncollected Tax by the
applicable taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Xxxx
Atlantic Services attributable to anticipated Tax savings by Xxxx
Atlantic, or is required to impose on and/or collect from Reseller
Customers, Reseller agrees to indemnify and hold Xxxx Atlantic harmless
on an after-tax basis for any costs incurred by Xxxx Atlantic as a result
of actions taken by the applicable taxing authority to recover the Tax
from Xxxx Atlantic due to failure of Reseller to timely remit the Tax to
Xxxx Atlantic, or timely pay, or collect and timely remit, the Tax to the
taxing authority.
36.5 If either Party is audited by a taxing authority, the other
Party agrees to reasonably cooperate with the Party being audited in
order to respond to any audit inquiries in a proper and timely manner so
that the audit and/or any resulting controversy may be resolved
expeditiously.
36.6.1 If Applicable Law clearly exempts a purchase of Xxxx Atlantic
Services under this Agreement from a Tax, and if such Applicable Law also
provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller complies with such procedure, Xxxx
Atlantic shall not collect such Tax during the effective period of the
exemption. Such exemption shall be effective upon receipt of the
exemption certificate or affidavit in accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Xxxx Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Xxxx Atlantic shall not collect such Tax if
Reseller (a) furnishes Xxxx Atlantic with a letter signed by an officer
of Reseller requesting an exemption and citing the provision in the
Applicable Law which clearly allows such exemption, and (b) supplies Xxxx
Atlantic with an indemnification agreement, reasonably acceptable to Xxxx
Atlantic, which holds Xxxx Atlantic harmless on an after-tax basis with
respect to forbearing to collect such Tax.
28
36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall be made in writing and shall be sent
by certified or registered mail, return receipt requested, or by a
reputable private delivery service which provides a record of delivery,
to the addressee stated in Section 23 at the address stated in Section 23
and to the following:
To Xxxx Atlantic:
Tax Administration
Xxxx Atlantic Corporation
1095 Avenue of the Americas
Xxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
To Reseller: Controller
Xxxxxxxxx.Xxx, Inc.
0 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
TEL: (000) 000-0000
Fax: (000) 000-0000
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
36.7.
Any notice or other communication shall be deemed to be given
when received.
37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
37.1 Without in any way limiting Reseller's obligations under Section
12, Reseller shall comply with Applicable Law with regard to end user
selection of a Telephone Exchange Service provider. Until the Commission
or the FCC adopts regulations and/or orders applicable to end user
selection of a Telephone Exchange Service provider, Reseller shall apply
the rules and procedures set forth in Section 64.1100 of the FCC
Rules, 47 CFR Section 64.1100, to the process for end user selection
of a Telephone Exchange Service provider (including, to end user
selection of a Telephone Exchange Service provider that occurs during
any telemarketing contact with an end user), and shall comply with
such rules and procedures.
37.2 By submitting to Xxxx Atlantic an Order to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, Reseller represents and
warrants: (a) that Reseller has obtained authorization for
29
such action from the applicable end user; and, (b) that if Applicable Law
and/or this Agreement required such authorization to be obtained in a
particular manner, Reseller obtained the authorization in the manner
required by Applicable Law and this Agreement. Reseller shall upon
request by Xxxx Atlantic provide proof of such authorization (including,
a copy of any written authorization).
37.3 If Reseller submits an Order to Xxxx Atlantic to install,
provide, change or terminate a Telecommunications Service, to select,
change or reassign a telephone number, or to select, change or terminate
an end user's Telephone Exchange Service provider, and (a) when requested
by Xxxx Atlantic to provide a written document signed by the end user
stating the end user's Telephone Exchange Service provider selection,
fails to provide such document to Xxxx Atlantic, or (b) has not obtained
authorization for such installation, provision, selection, change,
reassignment or termination, from the end user in the manner required by
Applicable Law (or, in the absence of Applicable Law, in the manner
required by the rules and procedures in 47 CFR Section 64.1100), Reseller
shall be liable to Xxxx Atlantic for all charges that would be applicable
to the end user for the initial installation, provision, selection,
change, reassignment or termination, of the end user's Telecommunications
Service, telephone number, and/or Telephone Exchange Service provider,
and any charges for restoring the end user's Telecommunications Service,
telephone number, and/or Telephone Exchange Service provider selection,
to its end user authorized condition.
38. TELEPHONE NUMBERS
38.1 Reseller's use of telephone numbers shall be subject to
Applicable Law (including, but not limited to, the rules of the FCC, the
North American Numbering Council, and the North American Numbering Plan
Administrator), the applicable provisions of this Agreement (including,
but not limited to, this Section 38), and Xxxx Atlantic's practices and
procedures for use and assignment of telephone numbers, as amended from
time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who subscribes
to a Xxxx Atlantic Retail Telecommunications Service dial tone line from
either Reseller or Xxxx Atlantic changes the Telecommunications Carrier
from whom the end user subscribes for such dial tone line (including a
change from Xxxx Atlantic to Reseller, from Reseller to Xxxx Atlantic, or
from Reseller to a Telecommunications Carrier other than Xxxx Atlantic),
after such change, the end user may continue to use with the dial tone
line the telephone numbers which were assigned to the dial tone line by
Xxxx Atlantic immediately prior to the change.
38.3 Xxxx Atlantic shall have the right to change the telephone
numbers used by an end user if at any time: (a) the type or class of
service subscribed to by the end user changes; (b) the end user requests
service at a new location, that is not served by the Xxxx
30
Atlantic switch and the Xxxx Atlantic rate center from which the end user
previously had service; or, (c) continued use of the telephone numbers is
not technically feasible.
38.4 If service on a Xxxx Atlantic Retail Telecommunications Service
dial tone line subscribed to by Reseller from Xxxx Atlantic under this
Agreement is terminated, the telephone numbers associated with such dial
tone line shall be available for reassignment by Xxxx Atlantic to any
person to whom Xxxx Atlantic elects to assign the telephone numbers,
including, but not limited to, Xxxx Atlantic, Xxxx Atlantic end user
retail Customers, Reseller, or Telecommunications Carriers other than
Xxxx Atlantic and Reseller.
39. WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, XXXX ATLANTIC
MAKES NO WARRANTIES WITH RESPECT TO XXXX ATLANTIC SERVICES, WHETHER
EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE WARRANTIES
SET FORTH IN THIS AGREEMENT ARE XXXX ATLANTIC'S EXCLUSIVE WARRANTIES WITH
RESPECT TO XXXX ATLANTIC SERVICES AND ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. XXXX
ATLANTIC DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES AGAINST INFRINGEMENT, AND WARRANTIES ARISING BY TRADE
CUSTOM, TRADE USAGE, COURSE OF DEALING, OR OTHERWISE.
40. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
40.1.1 Neither Party nor its subcontractors or agents will use the
other Party's trademarks, service marks, logos or other proprietary trade
dress in connection with the sale of products and services, or in any
advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
40.1.2 Neither Party may imply any direct or indirect affiliation with
or sponsorship or endorsement of its company, products and services by
the other Party.
41. AUTHORIZATION
41.1.1 Xxxx Atlantic is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Virginia and
has full power and authority to execute and deliver this Agreement and to
perform the obligations hereunder on behalf of Xxxx Atlantic.
31
41.2 Xxxxxxxxx.Xxx, Inc., a corporation, is duly organized, validly
existing and in good standing under the laws of Delaware, and has full
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder.
32
IN WITNESS WHEREOF, intending to be legally bound, Reseller and
Xxxx Atlantic have caused this Agreement to be executed by their
respective authorized representatives.
XXXXXXXXX.XXX, INC.
BY: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Signature
Xxxxx Xxxxxxx
--------------------------------------------
Name (Printed)
ITS: CEO
--------------------------------------------
Title
BY: /s/ Xxxxxxx Xxxxx
--------------------------------------------
Signature
Xxxxxxx Xxxxx
--------------------------------------------
Name (Printed)
ITS: Vice President-Operations
--------------------------------------------
Title
BY: /s/ Xxxx X. Xxxxx
--------------------------------------------
Signature
Xxxx Xxxxx
--------------------------------------------
Name (Printed)
ITS: Vice President--Business Development
--------------------------------------------
Title
XXXX ATLANTIC - VIRGINIA, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Signature
Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name (Printed)
TITLE: Vice President -- Telecom Industry Services
--------------------------------------------
33
EXHIBIT I
XXXX ATLANTIC ANCILLARY SERVICES
1. XXXX ATLANTIC OSS SERVICES
1.1 DEFINITIONS
As used in the Principal Document, the terms listed below shall have the
meanings stated below:
1.1.1 "Xxxx Atlantic Operations Support Systems" means Xxxx Atlantic systems
for pre-ordering, ordering, provisioning, maintenance and repair, and
billing.
1.1.2 "Xxxx Atlantic OSS Services" means access to Xxxx Atlantic Operations
Support Systems functions. The term "Xxxx Atlantic OSS Services"
includes, but is not limited to: (a) Xxxx Atlantic's provision of
Reseller Usage Information to Reseller pursuant to Exhibit I, Section
1.3, below; and, (b) "Xxxx Atlantic OSS Information", as defined in
Exhibit I, Section 1.1.4, below.
1.1.3 "Xxxx Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Xxxx
Atlantic to provide Xxxx Atlantic OSS Services to Reseller.
1.1.4 "Xxxx Atlantic OSS Information" means any information accessed by, or
disclosed or provided to, Reseller through or as a part of Xxxx
Atlantic OSS Services. The term "Xxxx Atlantic OSS Information"
includes, but is not limited to: (a) any Customer Information related
to a Xxxx Atlantic Customer or a Reseller Customer accessed by, or
disclosed or provided to, Reseller through or as a part of Xxxx
Atlantic OSS Services; and, (b) any Reseller Usage Information (as
defined in Exhibit I, Section 1.1.5, below) accessed by, or disclosed
or provided to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for a Xxxx
Atlantic Retail Telecommunications Service purchased by Reseller under
this Agreement that Xxxx Atlantic would record if Xxxx Atlantic was
furnishing such Xxxx Atlantic Retail Telecommunications Service to a
Xxxx Atlantic end-user retail Customer.
1.2 XXXX ATLANTIC OSS SERVICES
1.2.1 Upon request by Reseller, Xxxx Atlantic shall provide to Reseller,
pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section 251(c)(3),
Xxxx Atlantic OSS Services.
34
1.2.2 Subject to the requirements of Applicable Law, Xxxx Atlantic
Operations Support Systems, Xxxx Atlantic Operations Support Systems
functions, Xxxx Atlantic OSS Facilities, Xxxx Atlantic OSS
Information, and the Xxxx Atlantic OSS Services that will be offered
by Xxxx Atlantic, shall be as determined by Xxxx Atlantic. To the
extent required by Applicable Law and technically feasible, Xxxx
Atlantic will offer to Reseller the Xxxx Atlantic OSS Services that
Xxxx Atlantic offers, under agreements approved by the Commission
pursuant to 47 U.S.C. Section 252, to other Telecommunications
Carriers that are engaged in the resale of Xxxx Atlantic Retail
Telecommunications Services pursuant to 47 U.S.C. Section 251(c)(4).
Subject to the requirements of Applicable Law, Xxxx Atlantic shall
have the right to change Xxxx Atlantic Operations Support Systems,
Xxxx Atlantic Operations Support Systems functions, Xxxx Atlantic OSS
Facilities, Xxxx Atlantic OSS Information, and the Xxxx Atlantic OSS
Services, from time-to-time, without the consent of Reseller.
1.3 RESELLER USAGE INFORMATION
1.3.1 Upon request by Reseller, Xxxx Atlantic shall provide to Reseller,
pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section 251(c)(3),
Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller through the
following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution System
("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore Exchange
Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit I, Section
1.3.2(a) will be issued each day, Monday through Friday, except holidays
observed by Xxxx Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to the
requirements of Applicable Law, the manner in which, and the
frequency with which, Reseller Usage Information will be provided to
Reseller shall be determined by Xxxx Atlantic.
1.4 PRICES
The prices for Xxxx Atlantic OSS Services shall be as stated in
Exhibit II, Section 2 following.
35
1.5 ACCESS TO AND USE OF XXXX ATLANTIC OSS FACILITIES
1.5.1 Xxxx Atlantic OSS Facilities may be accessed and used by Reseller only
to the extent necessary for Reseller's access to and use of Xxxx
Atlantic OSS Services pursuant to this Agreement.
1.5.2 Xxxx Atlantic OSS Facilities may be accessed and used by Reseller only
to provide Telecommunications Services to Reseller Customers.
1.5.3 Reseller shall restrict access to and use of Xxxx Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any
right or license to grant sublicenses to other persons, or permission
to other persons (except Reseller's employees, Agents and contractors,
in accordance with Exhibit I, Section 1.5.7, below), to access or use
Xxxx Atlantic OSS Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Xxxx Atlantic OSS
Facilities (including, but not limited to, Xxxx Atlantic software), (b)
copy, remove, derive, reverse engineer, or decompile, software from the
Xxxx Atlantic OSS Facilities, or (c) obtain access through Xxxx
Atlantic OSS Facilities to Xxxx Atlantic databases, facilities,
equipment, software, or systems, which are not offered for Reseller's
use under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures established by
Xxxx Atlantic for access to and use of Xxxx Atlantic OSS Facilities
(including, but not limited to, Xxxx Atlantic practices and procedures
with regard to security and use of access and user identification
codes).
1.5.6 All practices and procedures for access to and use of Xxxx Atlantic
OSS Facilities, and all access and user identification codes for Xxxx
Atlantic OSS Facilities: (a) shall remain the property of Xxxx
Atlantic; (b) shall be used by Reseller only in connection with
Reseller's use of Xxxx Atlantic OSS Facilities permitted by this
Agreement; (c) shall be treated by Reseller as Confidential
Information of Xxxx Atlantic pursuant to Section 13; and, (d) shall
be destroyed or returned by Reseller to Xxxx Atlantic upon the earlier
of request by Xxxx Atlantic or the expiration or termination of this
Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and use Xxxx
Atlantic OSS Facilities only to the extent necessary for Reseller's
access to and use of the Xxxx Atlantic OSS Facilities permitted by
this Agreement. Any access to or use of Xxxx Atlantic OSS Facilities
by Reseller's employees, Agents, or contractors, shall be subject to
the provisions of this Agreement, including, but not limited to,
Section 13, Exhibit I, Section 1.5.6, and Exhibit I, Section 1.6.3.3.
36
1.6 XXXX ATLANTIC OSS INFORMATION
1.6.1 Subject to the provisions of this Agreement and Applicable Law, Xxxx
Atlantic grants to Reseller a non-exclusive license to use Xxxx
Atlantic OSS Information.
1.6.2 All Xxxx Atlantic OSS Information shall at all times remain the
property of Xxxx Atlantic. Except as expressly stated in this
Agreement, Reseller shall acquire no rights in or to any Xxxx Atlantic
OSS Information.
1.6.3.1 The provisions of this Exhibit 1, Section 1.6.3 apply to all Xxxx
Atlantic OSS Information, except (a) Reseller Usage Information, (b)
CPNI of Reseller, and (c) CPNI of a Xxxx Atlantic Customer or a
Reseller Customer, to the extent the Customer has authorized Reseller
to use the Customer Information.
1.6.3.2 Xxxx Atlantic OSS Information may be accessed and used by Reseller only
to provide Telecommunications Services to Reseller Customers.
1.6.3.3 Reseller shall treat Xxxx Atlantic OSS Information that is designated
by Xxxx Atlantic, through written or electronic notice (including, but
not limited to, through the Xxxx Atlantic OSS Services), as
"Confidential" or "Proprietary" as Confidential Information of Xxxx
Atlantic pursuant to Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement does not
grant to Reseller any right or license to grant sublicenses to other
persons, or permission to other persons (except Reseller's employees,
Agents or contractors, in accordance with Exhibit I, Section 1.6.3.5),
to access, use or disclose Xxxx Atlantic OSS Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use and
disclose Xxxx Atlantic OSS Information only to the extent necessary for
Reseller's access to, and use and disclosure of, Xxxx Atlantic OSS
Information permitted by this Agreement. Any access to, or use or
disclosure of, Xxxx Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit I,
Section 1.6.3.3.
1.6.3.6 Reseller's license to use Xxxx Atlantic OSS Information shall expire
upon the earliest of (a) the time when the Xxxx Atlantic OSS
Information is no longer needed by Reseller to provide
Telecommunications Services to Reseller Customers; (b) termination of
the license in accordance with this Agreement; or (c) expiration or
termination of this Agreement.
1.6.3.7 All Xxxx Atlantic OSS Information received by Reseller shall be
destroyed or returned by Reseller to Xxxx Atlantic, upon expiration,
suspension or termination of the license to use such Xxxx Atlantic
OSS Information.
37
1.6.4 Unless sooner terminated or suspended in accordance with this Agreement
(including, but not limited to, Section 17.1 and Exhibit I, Section
1.7.1), Reseller's access to Xxxx Atlantic OSS Information through
Xxxx Atlantic OSS Services shall terminate upon the expiration or
termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Xxxx Atlantic shall have the
right (but not the obligation) to audit Reseller to ascertain whether
Reseller is complying with the requirements of Applicable Law and this
Agreement, with regard to Reseller's access to, and use and disclosure
of, Xxxx Atlantic OSS Information.
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or Exhibit I,
Section 1.6.5.1, Xxxx Atlantic shall have the right (but not the
obligation) to monitor Reseller's access to and use of Xxxx Atlantic
OSS Information which is made available by Xxxx Atlantic to Reseller
pursuant to this Agreement, to ascertain whether Reseller is complying
with the requirements of Applicable Law and this Agreement, with regard
to Reseller's access to, and use and disclosure of, such Xxxx Atlantic
OSS Information. The foregoing right shall include, but not be limited
to, the right (but not the obligation) to electronically monitor
Reseller's access to and use of Xxxx Atlantic OSS Information which is
made available by Xxxx Atlantic to Reseller through Xxxx Atlantic OSS
Facilities.
1.6.5.3 Information obtained by Xxxx Atlantic pursuant to this Exhibit I,
Section 1.6.5 shall be treated by Xxxx Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Xxxx
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Xxxx Atlantic pursuant to this Exhibit
I, Section 1.6.5 to enforce Applicable Law and/or Xxxx Atlantic's
rights under this Agreement.
1.6.6 Reseller acknowledges that the Xxxx Atlantic OSS Information, by its
nature, is updated and corrected on a continuous basis by Xxxx
Atlantic, and therefore that Xxxx Atlantic OSS Information is subject
to change from time to time.
1.7 LIABILITIES AND REMEDIES
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, shall be deemed a material breach of a material
provision of this Agreement by Reseller under Section 17.1 of this
Agreement. In addition, if Reseller or an employee, Agent or
contractor of Reseller at any time breaches a provision of Exhibit I,
Section 1.5 or Exhibit I, Section 1.6, and such breach continues
for more than ten (10) days after written notice thereof from Xxxx
Atlantic, then, except as otherwise required by Applicable Law, Xxxx
Atlantic shall have the right, upon notice to Reseller, to suspend
the license to use Xxxx Atlantic OSS Information granted by Exhibit I,
Section 1.6.1 and/or the provision of Xxxx Atlantic OSS Services,
in whole or in part.
38
1.7.2 Reseller agrees that Xxxx Atlantic would be irreparably injured by a
breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by Reseller or
the employees, Agents or contractors of Reseller, and that Xxxx Atlantic
shall be entitled to seek equitable relief, including injunctive relief
and specific performance, in the event of any breach of Exhibit I,
Section 1.5 or Exhibit I, Section 1.6 by Reseller or the employees,
Agents or contractors of Reseller. Such remedies shall not be deemed to
be the exclusive remedies for a breach of Exhibit I, Section 1.5 or
Exhibit I, Section 1.6, but shall be in addition to any other remedies
available under this Agreement or at law or in equity.
1.8 RELATION TO APPLICABLE LAW
The provisions of Exhibit 1, Sections 1.5, 1.6 and 1.7 shall be in
addition to and not in derogation of any provisions of Applicable Law,
including, but not limited to, 47 U.S.C. Section 222 and the FCC rules
in 47 CFR Section 64.2001 - Section 64.2009, and are not intended to
constitute a waiver by Xxxx Atlantic of any right with regard to
protection of the confidentiality of the information of Xxxx Atlantic
or Xxxx Atlantic Customers provided by Applicable Law.
1.9 COOPERATION
Reseller, at Reseller's expense, shall reasonably cooperate with Xxxx
Atlantic in using Xxxx Atlantic OSS Services. Such cooperation shall
include, but not be limited to, the following:
1.9.1 Upon request by Xxxx Atlantic, Reseller shall by no later than the
fifteenth (15th) day of each calendar month submit to Xxxx Atlantic
reasonable, good faith estimates (by central office or other Xxxx
Atlantic office or geographic area designated by Xxxx Atlantic) of the
volume of each Xxxx Atlantic Retail Telecommunications Service for which
Reseller anticipates submitting Orders in each week of the next calendar
month.
1.9.2 Upon request by Xxxx Atlantic, Reseller shall submit to Xxxx Atlantic
reasonable, good faith estimates of other types of transactions or use of
Xxxx Atlantic OSS Services that Reseller anticipates.
1.9.3 Reseller shall reasonably cooperate with Xxxx Atlantic in submitting
Orders for Xxxx Atlantic Retail Telecommunications Services and otherwise
using the Xxxx Atlantic OSS Services, in order to avoid exceeding the
capacity or capabilities of such Xxxx Atlantic OSS Services.
1.9.4 Reseller shall participate in cooperative testing of Xxxx Atlantic OSS
Services and shall provide assistance to Xxxx Atlantic in identifying and
correcting mistakes, omissions, interruptions, delays, errors, defects,
faults, failures, or other deficiencies, in Xxxx Atlantic OSS Services.
39
1.10 Xxxx Atlantic Access to Information Related to Reseller CUSTOMERS
1.10.1 Xxxx Atlantic shall have the right to access, use and disclose
information related to Reseller Customers that is in Xxxx Atlantic's
possession (including, but not limited to, in Xxxx Atlantic OSS
Facilities) to the extent such access, use and/or disclosure has been
authorized by the Reseller Customer in the manner required by
Applicable Law.
1.10.2 Upon request by Xxxx Atlantic, Reseller shall negotiate in good faith
and enter into a contract with Xxxx Atlantic, pursuant to which Xxxx
Atlantic may obtain access to Reseller's operations support systems
(including, systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing) and information contained in such
systems, to permit Xxxx Atlantic to obtain information related to
Reseller Customers (as authorized by the applicable Reseller Customer),
to permit Customers to transfer service from one Telecommunications
Carrier to another, and for such other purposes as may be permitted by
Applicable Law.
2. E911/911 SERVICES
2.1 Where and to the extent that Xxxx Atlantic provides E911/911 call
routing to a Public Safety Answering Point ("PSAP") to Xxxx Atlantic's
own end user retail Customers, Xxxx Atlantic will provide to Reseller,
for resold Xxxx Atlantic Retail Telecommunications Service dial tone
lines, E911/911 call routing to the appropriate PSAP. Xxxx Atlantic
will provide Reseller Customer information for resold Xxxx Atlantic
Retail Telecommunications Service dial tone lines to the PSAP as that
information is provided to Xxxx Atlantic by Reseller where and to the
same extent that Xxxx Atlantic provides Xxxx Atlantic end user retail
Customer information to the PSAP. Xxxx Atlantic will update and
maintain, on the same schedule that Xxxx Atlantic uses with Xxxx
Atlantic's own end user retail Customers, for Reseller Customers served
by resold Xxxx Atlantic Retail Telecommunications Service dial tone
lines, the Reseller Customer information in Xxxx Atlantic's E911/911
databases.
2.2 Reseller shall provide to Xxxx Atlantic the name, telephone number and
address, of all Reseller Customers, and such other information as may
be requested by Xxxx Atlantic, for inclusion in E911/911 databases. Any
change in Reseller Customer name, address or telephone number
information (including addition or deletion of a Reseller Customer, or
a change in Reseller Customer name, telephone number or address), or in
other E911/911 information supplied by Reseller to Xxxx Atlantic, shall
be reported to Xxxx Atlantic by Reseller within one (1) day after the
change.
2.3 To the extent that it is necessary (whether as a requirement of
Applicable Law or otherwise) for Reseller to enter into any agreements
or other arrangements with governmental entities (or governmental
entity contractors) related to E911/911 in order for Reseller to
provide Telecommunications Services, Reseller shall at Reseller's
expense enter into such agreements and arrangements.
40
3. ROUTING TO DIRECTORY ASSISTANCE AND OPERATOR SERVICES
3.1 Upon request by Reseller, to the extent technically feasible, Xxxx
Atlantic will provide to Reseller the capability of rerouting to
Reseller's platforms directory assistance traffic (411 and 555-1212
calls) from Reseller Customers served by resold Xxxx Atlantic Retail
Telecommunications Service dial tone line service and operator services
traffic (0+ and 0- intraLATA calls) from Reseller Customers served by
resold Xxxx Atlantic Retail Telecommunications Service dial tone line
service.
3.2 A request for the rerouting service described in Exhibit I, Section
4.1 must be made by Reseller (a) on a Xxxx Atlantic switch-by-Xxxx
Atlantic switch basis, and (b) at least ninety (90) days in advance of
the date that the rerouting capability is to be made available in an
applicable Xxxx Atlantic switch.
3.3 The prices for the rerouting service described in Exhibit I, Section
4.1 shall be as stated in Exhibit II, Section 2.
4. LIDB/BVS
4.1 Upon request by Reseller, Xxxx Atlantic will maintain information
(including calling card numbers and collect and xxxx to third party
billing restriction notation) for Reseller Customers who subscribe to
resold Xxxx Atlantic Retail Telecommunications Service dial tone line
service, in Xxxx Atlantic's Line Information Database ("LIDB"), where
and to the same extent that Xxxx Atlantic maintains information in Xxxx
Atlantic's LIDB for Xxxx Atlantic's own end-user retail Customers.
4.2 If an end-user terminates Xxxx Atlantic Retail Telecommunications
Service dial tone line service provided to the end-user by Xxxx
Atlantic and, in place thereof, subscribes to Reseller for resold Xxxx
Atlantic Retail Telecommunications Service dial tone line service, Xxxx
Atlantic will remove from Xxxx Atlantic's LIDB any Xxxx Atlantic
assigned telephone line calling card number (including area code)
("TLN") and Personal Identification Number ("PIN") associated with the
terminated Xxxx Atlantic Retail Telecommunications Service dial tone
line service. The Xxxx Atlantic-assigned TLN and PIN will be removed
from Xxxx Atlantic's LIDB within twenty-four (24) hours after Xxxx
Atlantic terminates the Xxxx Atlantic Retail Telecommunications Service
dial tone line service with which the number was associated. Reseller
may issue a new telephone calling card to such end-user, utilizing the
same TLN, and the same or a different PIN. Upon request by Reseller,
Xxxx Atlantic will enter such TLN and PIN in Xxxx Atlantic's LIDB for
calling card validation purposes.
4.3 Reseller information which is stored in Xxxx Atlantic's LIDB will be
subject, to the same extent as Xxxx Atlantic information stored in Xxxx
Atlantic's LIDB, to access and use by, and disclosure to, those persons
(including, but not limited to, Xxxx Atlantic) to
41
whom Xxxx Atlantic allows access to information which is stored in Xxxx
Atlantic's LIDB. Reseller hereby grants to Xxxx Atlantic and the
persons to whom Xxxx Atlantic allows access to information which is
stored in Xxxx Atlantic's LIDB, a royalty free license for such access,
use and disclosure.
4.4 Reseller shall obtain contractual agreements with each of the persons
authorized to have access to Xxxx Atlantic's LIDB, under which Reseller
will xxxx Reseller Customers for calling card, third party, collect and
other calls validated by such persons through Xxxx Atlantic's LIDB.
4.5 Reseller warrants that the information provided by Reseller for
inclusion in Xxxx Atlantic's LIDB will at all times be current,
accurate and appropriate for use for billing validation services.
4.6 Upon request by Reseller, Xxxx Atlantic will provide to Reseller Xxxx
Atlantic Billing Validation Service, in accordance with Xxxx Atlantic's
Tariffs, for use by Reseller in connection with Xxxx Atlantic Retail
Telecommunications Services purchased and provided by Reseller pursuant
to this Agreement.
4.7 Information in Xxxx Atlantic's LIDB provided to Reseller shall be
treated by Reseller as Confidential Information of Xxxx Atlantic
pursuant to Section 13.
4.8 The prices for the services described in this Exhibit I, Section 5
shall be as stated in Exhibit II, Section 2.
42
EXHIBIT II
PRICES FOR XXXX ATLANTIC SERVICES
1. XXXX ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
1.1 PRICES
The prices for Xxxx Atlantic Retail Telecommunications Services shall
be the Retail Prices stated in Xxxx Atlantic's Tariffs for such Xxxx Atlantic
Retail Telecommunications Services, less: (a) the applicable discount stated in
Xxxx Atlantic's Tariffs for Xxxx Atlantic Retail Telecommunications Services
purchased for resale pursuant to 47 U.S.C. Section 251(c)(4); or, (b) in the
absence of an applicable Xxxx Atlantic Tariff discount for Xxxx Atlantic
Retail Telecommunications Services purchased for resale pursuant to 47 U.S.C.
Section 251(c)(4), the applicable discount stated in Exhibit II, Attachment 1.
1.2 INAPPLICABILITY OF DISCOUNTS
The discounts provided for in Exhibit II, Section 1.1, shall not be
applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90) days;
1.2.2 Charges for services and products provided by Xxxx Atlantic that are
not Xxxx Atlantic Retail Telecommunications Services, including, but not limited
to, Xxxx Atlantic Ancillary Services, and exchange access services as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user common
line charges, carrier selection and change charges, and Audiotex Service
charges, and to the extent applicable, the Presubscribed Interexchange Carrier
Charge applicable to Reseller Customers who have not presubscribed to an
interexchange carrier for long distance services; and,
1.2.4 Any service or charge which the Commission, the FCC, or other
governmental entity of appropriate jurisdiction, determines is not subject to a
wholesale rate discount under 47 U.S.C. Section 251(c)(4).
1.3 DISCOUNT CHANGES
1.3.1 Xxxx Atlantic shall change the discounts provided for in Exhibit II,
Section 1.1, above, from time-to-time, to the extent such change is
required by Applicable Law, including, but not limited to, by regulation
or order of the Commission, the FCC, or other governmental entity of
appropriate jurisdiction.
43
1.3.2 Xxxx Atlantic shall have the right to change the discounts provided for
in Exhibit II, Section 1.1, above, from time-to-time, to the extent such change
is required, approved or permitted by Applicable Law, including, but not limited
to, by regulation or order of the Commission, the FCC, or other governmental
entity of appropriate jurisdiction.
1.4 Offers of Merchandise and Services which are not Xxxx Atlantic Retail
Telecommunications Services
Reseller shall not be eligible to participate in any Xxxx Atlantic plan
or program under which Xxxx Atlantic end user retail Customers may obtain
products or merchandise, or services which are not Xxxx Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Xxxx Atlantic Retail Telecommunications Services.
2. XXXX ATLANTIC ANCILLARY SERVICES
2.1 PRICES
2.1.1 The prices for Xxxx Atlantic Ancillary Services shall be as stated: (a)
in Xxxx Atlantic's Tariffs; or, (b) in the absence of an applicable Xxxx
Atlantic Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Xxxx Atlantic at any time offers a Xxxx Atlantic Ancillary Service
the prices for which are not stated in Xxxx Atlantic's Tariffs or Exhibit II,
Attachment 1, Xxxx Atlantic shall have the right to revise Exhibit II,
Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 PRICE CHANGES
2.2.1 Xxxx Atlantic shall change the prices for Xxxx Atlantic Ancillary
Services, from time-to-time, to the extent such change is required by Applicable
Law, including, but not limited to, by regulation or order of the Commission,
the FCC, or other governmental entity of appropriate jurisdiction.
2.2.2 Xxxx Atlantic shall have the right to change the prices for Xxxx
Atlantic Ancillary Services, from time-to-time, to the extent such change is
required, approved or permitted by Applicable Law, including, but not limited
to, by regulation or order of the Commission, the FCC, or other governmental
entity of appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Xxxx Atlantic shall
give Reseller thirty (30) days advance written notice of any increase in the
prices stated in Exhibit II, Attachment 1 for Xxxx Atlantic Ancillary Services.
44
ATTACHMENT 1
TO EXHIBIT II
XXXX ATLANTIC - VIRGINIA, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
I. WHOLESALE DISCOUNT FOR RESALE OF XXXX ATLANTIC RETAIL TELECOMMUNICATIONS
SERVICES
Resale of Xxxx Atlantic Retail 21.3% or discount rate as established by
Telecommunications Services if RESELLER Commission Order.
provides its own Operator Services.
Resale of Xxxx Atlantic Retail 18.5% or discount rate as established by
Telecommunications Services if RESELLER Commission Order.
uses Xxxx Atlantic Operator Services.
---------------------------
(1) All rates and charges set forth in this Exhibit II, Attachment 1 are subject
to change from time-to-time as provided in this Agreement, including, but not
limited to, in Section 2.3 and Exhibit II of this Agreement. The rates and
charges set forth in this Exhibit II, Attachment 1 shall apply until such time
as they are replaced by new rates as may be approved or allowed into effect by
the Commission from time to time, subject to a stay or other order issued by any
court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend this
Exhibit II, Attachment 1 to reflect the new approved rates.
Except for citations to generally available services and rates offered
under Xxxx Atlantic's Tariffs, all services and rates listed in this Exhibit II,
Attachment 1 are available to Reseller only in connection with the purchase and
resale of Xxxx Atlantic Retail Telecommunications Services by Reseller under
this Agreement. Adherence to this limitation shall be subject to reasonable
audit by Xxxx Atlantic.
The rates set forth in Sections II through IV of this Exhibit II,
Attachment 1, are in addition to, and not in lieu of, any other rates set forth
in this Agreement.
In addition to charges for Xxxx Atlantic Services, Reseller shall pay,
or collect and remit, applicable taxes and surcharges (including, but not
limited to, E911/911, telecommunications relay service, and universal service
fund, surcharges), as required by Applicable Law and this Agreement.
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
------------------------------- ------------------ CHARGE:
------------
II. ACCESS TO OPERATION SUPPORT SYSTEMS
A. Pre-Ordering $.24/Query Not Applicable
B. Ordering $3.83/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair $1.16/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $245.05/CD-ROM/ Not Applicable
Month
2. Daily Usage File
a) Existing Message Recording $.000246/Message Not Applicable
b) Delivery of DUF
Data Tape $20.05/Tape Not Applicable
Network Data Mover $.000093/Message Not Applicable
CMDS $.000093/Message Not Applicable
c) DUF Transport
Communication Ports
9.6 kb Communications Port $116.83/Month Not Applicable
56 kb Communications Port $483.91/Month Not Applicable
256 kb Communications Port $804.90/Month Not Applicable
TI Communications Port $2,872.12/Month Not Applicable
Port Maintenance
9.6 kb Communications Port $10.17/Month Not Applicable
56 kb Communications Port $28.08/Month Not Applicable
256 kb Communications Port $28.08/Month Not Applicable
TI Communications Port $356.61/Month Not Applicable
Line Installation Not Applicable $64.96/Programming
Hour/Port
Port Set-up Not Applicable $10.43/Port
Network Control Programming Not Applicable $64.96/Programming
Coding Hour/Port
2
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
------------------------------- ------------------ CHARGE:
-------------
III. DIRECTORY ASSISTANCE/OPERATOR SERVICES
ROUTING
To RESELLER Platform $.12085/Line/Month Not Applicable
To BA Platform for Re-Branding $.06043/Call Not Applicable
IV. LIDB INTERCONNECTION/BILLING VALIDATION
SERVICE
LIDB Point Codes Not Applicable $/80.93 Point Code
Calling Card $.0153/Query Not Applicable
Billed Number Screening $.0153/Query Not Applicable
Storage of RESELLER's Data in LIDB Not Applicable $1,381.66/Service
Establishment/
Request
3
APPENDIX 1, ATTACHMENT 21
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
VIRGINIA
----------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
----------------------------------------------------------------------------------------------------------------------------
Message Business Service 1MB ALS 1BJ ALJ
----------------------------------------------------------------------------------------------------------------------------
Measured Business Service LMB ALM
----------------------------------------------------------------------------------------------------------------------------
Flat Rate 1FB AFK BUA ALV
----------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDZ NDJ
----------------------------------------------------------------------------------------------------------------------------
PBX Trunks Message TMB THM
----------------------------------------------------------------------------------------------------------------------------
PBX Trunks Measured TV1
----------------------------------------------------------------------------------------------------------------------------
PBX Flat TFB TZF
----------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
----------------------------------------------------------------------------------------------------------------------------
CENTREX:**
----------------------------------------------------------------------------------------------------------------------------
**EXCLUDES:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom Pricing)
2. Centrex systems which serve multiple end user customers
----------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOPAK / CLASS OF SERVICE
----------------------------------------------------------------------------------------------------------------------------
Message CGC+X CHC+X
----------------------------------------------------------------------------------------------------------------------------
Measured CEC+X
----------------------------------------------------------------------------------------------------------------------------
Flat CJE+X CJC+X
----------------------------------------------------------------------------------------------------------------------------
CUSTOPAK LINES
----------------------------------------------------------------------------------------------------------------------------
Unrestricted R3G
----------------------------------------------------------------------------------------------------------------------------
Restricted R3K
----------------------------------------------------------------------------------------------------------------------------
Primary Off Prem RX3
----------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOFLEX 2100 / CLASS OF SERVICE
----------------------------------------------------------------------------------------------------------------------------
Message KGK+X KHK+X
----------------------------------------------------------------------------------------------------------------------------
Measured KEK+X KHK+X
----------------------------------------------------------------------------------------------------------------------------
Flat KJE+X
----------------------------------------------------------------------------------------------------------------------------
CUSTOFLEX 2100 LINES
----------------------------------------------------------------------------------------------------------------------------
Unrestricted R4N
----------------------------------------------------------------------------------------------------------------------------
Restricted RHK
----------------------------------------------------------------------------------------------------------------------------
Primary Off Prem RX3
----------------------------------------------------------------------------------------------------------------------------
ISDN - Unrestricted XQA
----------------------------------------------------------------------------------------------------------------------------
ISDN - Restricted XQK
---------------------------------------------------------------------------------------------------------------------------
PAGE 1 OF 1
APPENDIX 1, ATTACHMENT 22
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
VIRGINIA
----------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
----------------------------------------------------------------------------------------------------------------------------
Message Business Service 1MB ALS 1BJ ALJ
----------------------------------------------------------------------------------------------------------------------------
Measured Business Service LMB ALM
----------------------------------------------------------------------------------------------------------------------------
Flat Rate 1FB AFK BUA ALV
----------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDZ NDJ
----------------------------------------------------------------------------------------------------------------------------
PBX Trunks Message TMB THM
----------------------------------------------------------------------------------------------------------------------------
PBX Trunks Measured TV1
----------------------------------------------------------------------------------------------------------------------------
PBX Flat TFB TZF
----------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
----------------------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
----------------------------------------------------------------------------------------------------------------------------
Message Rate Service N/A
----------------------------------------------------------------------------------------------------------------------------
MTS, including Key Connections Optional Calling Plan BUT VWDK1 WRV
---------------------------------------------------------
excluding all other Optional Calling Plans
----------------------------------------------------------------------------------------------------------------------------
FEATURES
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
----------------------------------------------------------------------------------------------------------------------------
Touch Tone TTB TJB
----------------------------------------------------------------------------------------------------------------------------
IQ SERVICES:
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
----------------------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
----------------------------------------------------------------------------------------------------------------------------
Call Waiting ESX
----------------------------------------------------------------------------------------------------------------------------
Call Waiting ID NWT
----------------------------------------------------------------------------------------------------------------------------
Speed Dialing 8 ESL
----------------------------------------------------------------------------------------------------------------------------
Speed Dialing 30 ESF
----------------------------------------------------------------------------------------------------------------------------
3 Way Calling (per Use or Monthly) ESC
----------------------------------------------------------------------------------------------------------------------------
*69 (per Use or Monthly) NSS
----------------------------------------------------------------------------------------------------------------------------
Call Trace (Per Use Charge)
----------------------------------------------------------------------------------------------------------------------------
Caller ID NSD
----------------------------------------------------------------------------------------------------------------------------
Caller ID with Name NDF
----------------------------------------------------------------------------------------------------------------------------
Per Call Blocking (Per Use Charge)
----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
----------------------------------------------------------------------------------------------------------------------------
Ultra Forward FRM
----------------------------------------------------------------------------------------------------------------------------
Distinctive Ring DRQ+X
----------------------------------------------------------------------------------------------------------------------------
Priority Call NSK
----------------------------------------------------------------------------------------------------------------------------
Select Forward NCE
----------------------------------------------------------------------------------------------------------------------------
Call Block NSY
----------------------------------------------------------------------------------------------------------------------------
Call Gate OC4
----------------------------------------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/Caller ID AWY
----------------------------------------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/o Caller ID AYK
----------------------------------------------------------------------------------------------------------------------------
Page 1 of 1
