EXHIBIT 10.24
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
Dated as of September 4, 1998
by and between
NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY, dba
XXXX ATLANTIC - MASSACHUSETTS
and
COMMUNITY NETWORKS OF MASSACHUSETTS
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement (this "Agreement"), under Sections 251
and 252 of the Telecommunications Act of 1996 (the "Act"), is effective as of
the 4th day of September, 1998 (the "Effective Date"), by and between New
England Telephone & Telegraph Company, Inc. d/b/a Xxxx Atlantic - Massachusetts
("BA"), a New York corporation with offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, and Community Networks of Massachusetts ("Community"), a
Delaware corporation with offices at 00-00 Xxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxx
Xxxx, Xxx Xxxx 00000 (each a "Party" and, collectively, the "Parties").
WHEREAS, Community has requested that BA make available to Community
interconnection, service and unbundled network elements upon the same terms and
conditions as provided in the Interconnection Agreement (and amendments thereto)
between AT&T Communications of New England, Inc. ("AT&T") and BA, dated April
13, 1998, for Massachusetts, approved by the Massachusetts Department of
Telecommunications and Energy ("Department") on May 18, 1998 under Section 252
of the Act (the "Separate Agreement") and attached as Appendix 1 hereto; and
WHEREAS, BA has undertaken to make such terms and conditions available
to Community hereby only because and, to the extent required by, Section 252(i)
of the Act.
NOW, THEREFORE, in consideration of the mutual provisions contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Community and BA hereby agree as follows:
1.0 Incorporation of Appendix by Reference
1.1 Except as expressly stated herein, the terms and conditions of
Appendix 1 hereto, with all Schedules and Exhibits thereto, are incorporated by
reference in their entirety herein and form an integral part of this Agreement.
1.2 References in Appendix 1 hereto to AT&T Communications of New
England, Inc., or to AT&T shall for purposes of this Agreement be deemed to
refer to Community.
1.3 References in Appendix 1 hereto to the "Effective Date", the date
of effectiveness thereof and like provisions shall for purposes of this
Agreement be deemed to refer to the date first written above. Unless terminated
earlier in accordance with the terms of Appendix 1 hereto, this Agreement shall
continue in effect until the Separate Agreement is terminated.
1.4 All notices, affidavits, exemption-certificates or other
communications to Community related to tax matters shall be sent to the
following address:
Community Networks of Massachusetts
00-00 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Mr. X.X. Xxxxxxxx
1.5 All notices, affidavits, exemption-certificates or other
communications to BA related to tax matters shall be sent to the following
address:
Tax Administration
Xxxx Atlantic Corporation
1095 Avenue of the Americas
Xxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
1.6 Notices to Community under General Terms and Conditions, Section
17, of Appendix 1 hereto shall be sent to the following address:
Community Networks of Massachusetts
00-00 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Mr. X.X. Xxxxxxxx
Facsimile: (000) 000-0000
1.7 Notices to BA under General Terms and Conditions, Section 17, of
Appendix 1 hereto shall be sent to the following address:
Xxxx Atlantic Corporation
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: President -Telecom Industry Services
Facsimile: (000) 000-0000
with a copy to:
Xxxx Atlantic Corporation
0000 Xxxxxx xx Xxxxxxxx
00xx Xxxxx
0
Xxx Xxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
2.0 Amendments and Clarifications
2.1 The Parties agree that if any judicial or regulatory authority of
competent jurisdiction determines (or has determined) that BA is not required to
furnish any service or item or provide any benefit to telecommunications
carriers otherwise required to be furnished or provided to Community hereunder,
then BA may, at its sole option, avail itself of any such determination by
providing written notice thereof to Community.
2.2 Notwithstanding anything to the contrary contained in this
Agreement, the Parties agree that BA shall only be required to provide
Combinations and any services related to its provision of Combinations to the
extent (a) required by Applicable Law or (b) mutually agreed to by the Parties
in writing after the date hereof.
2.3 For the avoidance of doubt, the Parties acknowledge and agree that
the term "Dedicated Transport", as described in Part II, Section 2.9.5.2 of
Appendix 1 hereto, does not include within its definition transmissions between
locations that include subscriber premises.
2.4 The reciprocal compensation provisions set forth in this Agreement
do not apply to Internet-bound traffic because such traffic is not local
traffic.
2.5 The entry into, filing and performance by BA of this Agreement does
not in any way constitute a waiver by BA of any of the rights and remedies it
may have to seek review of any of the provisions of the Separate Agreement, or
to petition the Department, other administrative body or court for
reconsideration or reversal of any determination made by any of them, or to seek
review in any way of any portion of this Agreement in connection with
Community's election under Section 252(i) of the Act.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 4th day of September, 1998.
COMMUNITY NETWORKS XXXX ATLANTIC
OF MASSACHUSETTS MASSACHUSETTS, INC.
By: By:
----------------------
Printed: Printed: Xxxxx X. Xxxxxxxx
----------------- -----------------
Title: Title: President, Telecom Industry Services
----------------- ------------------------------------
4
AGREEMENT
between
New England Telephone and Telegraph Company
d/b/a BA
and
AT&T Communications of New England, Inc.
Dated as of April 13, 1998
TABLE OF CONTENTS
(1) GENERAL TERMS AND CONDITIONS
(2) PART I - Telecommunications Services Provided for Resale
Appendix A
(3) PART II - Unbundled Network Elements and Combinations
Exhibit A - Bona Fide Request Process
Exhibit B - Timetable for Providing Elements
(4) PART III - Service Description: Ancillary Functions
Exhibit A -
Appendix A - Collocation Schedule
Appendix B - Application for Collocation
Appendix C - Insurance Certification
Appendix D - Grounding Requirements
Appendix E - Construction Work Completion Notice
(5) PART IV - Pricing Schedule
Exhibit A - Local and Toll Call Flows and Intercarrier Billing
in the Competitive Telecommunications Environment
Attachment A - Unbundled Network Elements
Attachment B - Call Flow Diagram
(6) Attachment 1 - Definitions
(7) Attachment 2 - Operations Plan and Implementation Team
(8) Attachment 3 - Intentionally Omitted
(9) Attachment 4 - Intentionally Omitted
(10) Attachment 5 - Intentionally Omitted
(11) Attachment 6 - Billing and Recording
TABLE OF CONTENTS
General Terms and Conditions
Page
----
RECITALS..........................................................................................................1
DEFINITIONS.......................................................................................................2
GENERAL TERMS AND CONDITIONS......................................................................................2
1. Scope of the Agreement..........................................................................2
2. Term of Agreement; Termination..................................................................2
3. Transitional Support............................................................................4
4. Good Faith Performance..........................................................................4
5. Option to Obtain Local Services, Network Elements or .Combinations Under Other Agreements ......4
6. Responsibility of Each Party....................................................................5
7. Government Compliance...........................................................................5
8. Regulatory Matters..............................................................................6
9. Liability and Indemnity.........................................................................7
9.1 Indemnification........................................................................7
9.2 Limitation of Liability................................................................8
10. Payment Terms, Disputed Amounts and Audits......................................................8
10.1 Local Services.........................................................................8
10.2 Payment Terms - Other than Local Services..............................................9
10.3 Disputed Amounts - Other than Local Services..........................................10
10.4 Audits and Inspections................................................................13
10.5 Alternate Billing to Third Numbers....................................................14
10.6 Reciprocal Compensation...............................................................17
11. Service Standards..............................................................................19
12. OSS/Electronic Interfaces......................................................................19
13. Operations Plan and Implementation Team........................................................22
14. Force Majeure..................................................................................22
15. Certain State and Local Taxes..................................................................23
16. Dispute Resolution.............................................................................23
17. Notices........................................................................................27
18. Confidentiality................................................................................29
19. Number Portability.............................................................................30
19.1 Interim Number Portability............................................................30
19.2 Number Reassignment...................................................................33
20. Directory Listings and Directory Distributions.................................................33
ii
21. Subscriber List Information....................................................................35
22. Miscellaneous..................................................................................35
22.1 Delegation or Assignment..............................................................35
22.2 Nonexclusive Remedies.................................................................35
22.3 No Third Party Beneficiaries..........................................................36
22.4 Referenced Documents..................................................................36
22.5 Governing Law.........................................................................36
22.6 Publicity and Advertising.............................................................36
22.7 Amendments or Waivers.................................................................36
22.8 Severability..........................................................................37
22.9 Entire Agreement......................................................................37
22.10 Survival of Obligations...............................................................37
22.11 Executed in Counterparts..............................................................37
22.12 Headings of No Force or Effect........................................................37
22.13 Joint Work Product....................................................................38
22.14 Nonexclusive Dealings.................................................................38
22.15 No License............................................................................38
22.16 Dialing Parity........................................................................38
22.17 Disclaimer of Warranties..............................................................38
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INTERCONNECTION AGREEMENT
This Agreement, which shall become effective upon the date executed in
accordance with Section 2(a), is entered into by and between AT&T Communications
of New England, Inc., a Massachusetts corporation, having an office at 32 Avenue
of the Americas, Xxx Xxxx, Xxx Xxxx 00000 ("AT&T"), and New England Telephone
and Telegraph Company, d/b/a Xxxx Atlantic -Massachusetts, a New York
corporation, having an office at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 ("BA").
RECITALS
WHEREAS, the Telecommunications Act of 1996 (as amended or modified
from time to time, the "Act") was signed into law on February 8, 1996; and
WHEREAS, the Act places certain duties and obligations upon, and grants
certain rights to, Telecommunications Carriers; and
WHEREAS, the Federal Communications Commission (the "FCC") has issued
rules to implement the Act (including In the Matter of the Local Competition
Provisions in the Telecommunications Act of 1996, FCC 96-325 (hereinafter, as
amended, modified, stayed or reconsidered from time to time, the "Order"); and
WHEREAS, the Parties are entering into this Agreement to set forth the
respective obligations of the Parties and the terms and conditions under which
AT&T will interconnect with the BA network in the BA service territory within
the Commonwealth of Massachusetts (the "MA Region") and BA will provide services
to AT&T as required by the Act and Order and additional services as set forth
herein; and
WHEREAS, the Parties have arrived at this Agreement through
negotiations and arbitration proceedings undertaken pursuant to the Act.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of this Agreement and other good and valuable consideration, AT&T and
BA hereby agree as follows:
DEFINITIONS
For purposes of this Agreement, certain terms have been defined in
Attachment 1 and elsewhere in this Agreement to encompass meanings that may
differ from, or be in addition to, the normal connotation of the defined word.
Unless the context clearly indicates otherwise, any term defined or used in the
singular shall include the plural. The words "shall" and "will" are used
interchangeably throughout the Agreement and the use of either connotes a
mandatory requirement. The use of one or the other shall not mean a different
degree of right or obligation for either Party. A defined word intended to
convey its special meaning is capitalized when used. Other terms that are
capitalized, and not defined in this Agreement, shall have the meaning in the
Act.
GENERAL TERMS AND CONDITIONS
1. Scope of the Agreement. This Agreement, together with all applicable tariffs
as referenced herein (as in effect from time to time except with respect to
those provisions in this Agreement in which it is expressly provided otherwise),
set forth the terms, conditions and prices to which BA and AT&T have agreed in
respect of the following: (a) Local Services, (b) certain unbundled network
elements, (hereinafter collectively referred to as "Network Elements") or
combinations of such Network Elements ("Combinations")*, (c) Collocation, (d)
Number Portability, (e) Access to Rights of Way, Ducts, Conduits and Pole
Attachments, (f) Directory Assistance and Operator Services and Directory
Listings, (g) Reciprocal Compensation, (h) E911 and 911 services, (i) Meet-Point
Billing, (j) Dialing Parity, (k) Transient Tandem Service, (1) Interconnection
of AT&T's network to BA's network and (m) Access to Telephone Numbers. This
Agreement includes the General Terms and Conditions, Parts I through IV, and
their Attachments and all accompanying Appendices and Exhibits. Unless otherwise
provided in this Agreement, the rights and obligations of the Parties hereunder
shall apply throughout the MA Region.
------------------------
* The Parties acknowledge and agree that the issue of BA's obligation to combine
unbundled Network Elements is presently before the Department in the
Consolidated Arbitrations D.P.U. 96-73, 96-74, 96-80/81, 96-83 and before the
U.S. Supreme Court. Accordingly, it is agreed that, pending a decision of either
the Department or the U.S. Supreme Court requiring BA to provide combinations of
unbundled Network Elements, BA has no obligation to combine unbundled Network
Elements. When the Department, the U.S. Supreme Court or any court of competent
jurisdiction issues a decision or order upon this issue, upon written request of
either Party, the Parties agree to meet and expeditiously negotiate in good
faith to arrive at modifications to this Agreement if necessary, to comply with
such decision. Notwithstanding the foregoing, nothing in this Agreement shall
prevent either Party from appealing or otherwise contesting the Department's or
any court's decisions or orders.
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2. Term of Agreement; Termination.
------------------------------
(a) The initial term of this Agreement shall commence on the date
on which this Agreement has been executed by both Parties (the
"Effective Date") and shall expire on April 12, 2001, except
as otherwise provided in Section 2(d) below.
(b) AT&T (i) shall, at BA's request, or (ii) may, at its option,
nine months prior to the expiration of the Term, with respect
to the entire Agreement, and/or eighteen months prior to the
expiration of the Term, in the case of the terms and
provisions with respect to Local Services set forth in Part I
hereof (such terms and provisions, other than with respect to
the wholesale discounts set forth in Part IV hereof,
hereinafter the "Resale Terms"), make a request to BA to
renegotiate all of the terms of this Agreement or the Resale
Terms pursuant to Section 251(c)(1) of the Act. The date(s) of
BA's receipt of such request(s) shall be hereinafter referred
to as the "Renegotiation Request Date". The Parties agree that
within sixty (60) days of such Renegotiation Request Date each
Party will provide to the other a written description of its
proposed changes to, and/or extension of, the terms of this
Agreement or the Resale Terms. The Parties shall enter into
negotiations on such proposed changes seventy-five (75) days
after such Renegotiation Request Date.
(c) In the event that, notwithstanding, the good faith efforts of
both Parties, they are unable to agree on terms and conditions
of a new agreement and/or new Resale Terms, then either Party
may, beginning 135 days after the Renegotiation Request Date,
file a petition for arbitration by the Department pursuant to
Section 252(b) of the Act.
(d) The terms and conditions of this Agreement shall only continue
in full force and effect until the Effective Date of the
Department's decision pursuant to any petition filed under
Section 2(c) above (the "Arbitration Decision") if AT&T
requests to renegotiate pursuant to Section 2(b) above;
provided, however, that the prices, and, where feasible, any
-------- -------
other terms and conditions of this Agreement shall be trued up
to conform with the Arbitration Decision back to the date of
expiration of the Term or, with respect to modification of
Resale Terms, back to the applicable Renegotiation Request
Date.
(e) Nothing in this Section 2 shall be construed as a waiver by
either Party of its right to appeal any decision of the
Department, including the Arbitration Decision.
(f) Upon termination or expiration of this Agreement in accordance
with this Section 2:
(i) each Party shall comply with its obligations set
forth in paragraph (c) of Section 18 of the General
Terms and Conditions of this Agreement;
(ii) each Party shall promptly pay all amounts (including
any late payment
3
charges or cancellation charges, if any) owed under
this Agreement; and
(iii) each Party's obligations that by their terms continue
in force and effect after termination or expiration
of this Agreement (including, without limitation,
indemnification obligations) shall survive
termination or expiration of this Agreement.
3. Transitional Support. Upon the termination or expiration of this Agreement,
AT&T may itself provide or retain another vendor to provide Local Services,
Network Elements, Combinations or other access or services comparable to those
furnished under the terms of this Agreement. BA agrees to cooperate with AT&T
and to use commercially reasonable efforts to effect an orderly and efficient
transition to AT&T or AT&T's new vendor, subject to the payment by AT&T to BA of
the reasonable costs incurred in providing such cooperation.
4. Good Faith Performance. In the performance of their obligations under this
Agreement, the Parties shall act in good faith and consistently with the
provisions of the Act and the applicable effective provisions of the Order.
Except to the extent a different standard is expressly set forth in this
Agreement, in which case such other standard shall apply, where notice, approval
or similar action by a Party is permitted or required by any provision of this
Agreement, (including, without limitation, the obligation of the Parties to
further negotiate the resolution of new or open issues under this Agreement)
such notice, approval or similar action shall not be unreasonably delayed or
withheld.
5. Option to Obtain Local Services, Network Elements or
Combinations Under Other Agreements.
-----------------------------------
(a) If BA enters into an agreement approved by the Department or
the FCC pursuant to Section 252 of the Act which provides for
the provision in the Commonwealth of Massachusetts of services
covered in this Agreement to another requesting
Telecommunications Carrier (the "Other Agreement"), BA shall
make available to AT&T upon request such Other Agreement to
the extent required by Section 252(i) of the Act.
If AT&T enters into an agreement with a Telecommunications
Carrier approved by the Department or the FCC pursuant to
Section 252 of the Act with respect to services in the
Commonwealth of Massachusetts (the "Other AT&T Agreement"),
then AT&T shall make available to BA upon request such Other
AT&T Agreement to the extent required by Section 252(i) of the
Act.
(b) Notwithstanding the terms and provisions of paragraph (a) of
this Section 5, in the event that as a result of any decision,
order or determination of any judicial or regulatory
authority, it is determined that all or any portion of such
paragraph (a) above is found invalid or unenforceable, or if
such decision, order or determination
4
interprets Section 252 (i) to require BA to offer
Telecommunications Carriers the right to select less than the
entire Other Agreement, the Parties agree to abide by such
decision, order or determination and to amend paragraph (a) of
this Section 5 to the extent that it conflicts with such
decision, order or determination.
6. Responsibility of Each Party. Each Party has and hereby retains the right to
exercise full control of and supervision over its own performance of its
obligations under this Agreement, and retains full control over the employment,
direction, compensation and discharge of all employees assisting in the
performance of such obligations. Each Party will be solely responsible for all
matters relating to payment of such employees, including compliance with social
security taxes, withholding taxes and all other regulations governing such
matters. Subject to the limitations on liability set forth in Section 9 of the
General Terms and Conditions of this Agreement and except as otherwise expressly
provided in this Agreement, each Party shall be responsible for (i) its own acts
and performance of all obligations imposed by all applicable federal, state or
local statutes, laws, rules, regulations, codes, orders, decisions, injunctions,
judgments, awards and decrees (collectively, "Applicable Laws") in connection
with its activities, legal status and property, real or personal, and (ii) the
acts of its own affiliates, employees, agents and contractors during the
performance of that Party's obligations hereunder. Neither this Agreement, nor
any actions taken by BA or AT&T in compliance with this Agreement, shall be
deemed to create an agency, joint venture, or other relationship between AT&T
and BA of any kind, other than that of purchaser and seller of services. Neither
this Agreement, nor any actions taken by BA or AT&T in compliance with this
Agreement, shall create a contractual, agency, or any other type of relationship
or third party liability between BA and AT&T`s end users or others.
7. Government Compliance.
---------------------
7.1 The provisions of this Agreement are subject in their entirety
to the applicable provisions of the Act and any other orders,
restrictions and requirements of governmental and regulatory
authorities with competent jurisdiction over the subject
matter thereof and, in the event of any direct conflict
between the provisions of this Agreement and the requirements
of such governmental and regulatory authorities, the
requirements of such authorities shall prevail.
7.2 BA represents and AT&T acknowledges that BA is entering into
this Agreement specifically in order to satisfy the
obligations of BA as set forth in the Act and the Order.
7.3 In the event that any legislative, regulatory, judicial or
other legal action materially affects any material terms of
this Agreement or the rights or obligations of either AT&T or
BA hereunder or the ability of AT&T or BA to perform any
material provision hereof, the Parties shall renegotiate in
good faith such affected provisions with a view toward
agreeing to acceptable new terms as may be required or
permitted as a result of such legislative, regulatory,
judicial or other legal action.
5
7.4 Notwithstanding anything herein to the contrary, in the event
that as a result of any decision, order or determination of
any judicial or regulatory authority with jurisdiction over
the subject matter hereof, it is determined that BA shall not
be required to furnish any service or item or provide any
benefit required to be furnished or provided to AT&T
hereunder, then AT&T and BA shall promptly commence and
conduct negotiations in good faith with a view toward agreeing
to mutually acceptable new terms as may be required or
permitted as a result of such decision, order or
determination; provided, however, that BA expressly reserves
all rights it may have to discontinue any such service or item
or benefit provided under this Agreement to the extent
permitted by any such decision, order or determination and
AT&T expressly reserves all rights it may have to oppose any
such discontinuance by BA.
7.5 The Parties hereby agree that where a clause from the
Interconnection Agreement between AT&T Communications of New
York, Inc. and New York Telephone Company (the "NY Agreement")
submitted to the New York Public Service Commission (the "NY
PSC") has been incorporated in this Agreement and such clause
or provision is subsequently amended in the NY Agreement to
conform to an effective order of a governmental agency or
court of competent jurisdiction resulting from an appeal of a
NY PSC Order in Cases No. 96-C-0723 and No. 96-C-0724, such
clause or provision shall be simultaneously amended in this
Agreement to conform with any such amendments to the NY
Agreement.
8. Regulatory Matters.
------------------
8.1 Each Party shall reasonably cooperate with the other in
obtaining and maintaining any required regulatory approvals
for which the Party is responsible in connection with the
performance of its obligations under this Agreement.
8.2 The Parties understand and agree that this Agreement will be
filed with the Department and may thereafter be filed with the
FCC. The Parties covenant and agree that this Agreement
satisfies the requirements of an agreement under Section 251
of the Act. Each Party covenants and agrees to fully support
approval of this Agreement by the Department or the FCC under
Section 252 of the Act without modification, subject to the
rights of the Parties to appeal or challenge arbitrated
provisions or arbitration decisions. The Parties also reserve
the right to seek regulatory relief and otherwise seek redress
from each other regarding performance and implementation of
this Agreement. In the event the Department, FCC or any court
rejects this Agreement in whole or in part, the Parties agree
to meet and negotiate in good faith to arrive at a mutually
acceptable modification of the rejected portion(s). If such
new terms are not renegotiated within 30 days after such
rejection, the dispute shall be referred to the Dispute
Resolution process set forth in Section 16 of the General
Terms and Conditions of this Agreement.
6
9. Liability and Indemnity.
-----------------------
9.1 Indemnification.
---------------
(a) With respect to all matters under this Agreement
other than Local Services (which shall be governed by
the provisions of Appendix A to Part I of this
Agreement), to the extent not prohibited by any
Applicable Law, each Party (the "Indemnifying Party")
shall indemnify and hold harmless the other Party
("Indemnified Party") from and against loss, cost,
claim, liability, damage, and expense (including
reasonable attorney's fees) to third parties for:
(i) damage to tangible personal property or for
personal injury proximately caused by the
negligence or willful misconduct of the
Indemnifying Party, its employees, agents or
contractors; and
(ii) claims for libel, slander, infringement of
copyright arising from the material
transmitted over the Indemnified Party's
facilities arising from the Indemnifying
Party's own communications or the
communications of such Indemnifying Party's
Customers; and
(iii) claims for infringement of patents arising
from combining the Indemnified Party's
facilities or services with, or the using of
the Indemnified Party's services or
facilities in connection with, facilities of
the Indemnifying Party.
(b) The Indemnified Party will notify the Indemnifying
Party promptly in writing of any claims, lawsuits, or
demands by third parties for which the Indemnified
Party alleges that the Indemnifying Party is
responsible under this Section, and, if requested by
the Indemnifying Party, will tender the defense of
such claim, lawsuit or demand. In the event the
Indemnifying Party does not promptly assume or
diligently pursue the defense of the tendered action,
then the Indemnified Party may proceed to defend or
settle said action and the Indemnifying Party shall
hold harmless the Indemnified Party from any loss,
cost, liability, damage and expense. In the event the
Party otherwise entitled to indemnification from the
other elects to decline such indemnification, then
the Party making such an election may, at its own
expense, assume defense and settlement of the claim,
lawsuit or demand. The Parties will cooperate in
every reasonable manner with the defense or
settlement of any claim, demand, or lawsuit.
9.2 Limitation of Liability.
-----------------------
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(a) Except as otherwise provided in Section 9.1 of the
General Terms and Conditions of this Agreement, no
liability shall attach to either Party, its parents,
subsidiaries, affiliates, agents, servants or
employees for any cost, expense, claim, liability,
damage, expense or other Loss in the absence of gross
negligence or willful misconduct.
(b) Except as otherwise expressly provided in Section 9.1
of the General Terms and Conditions of this
Agreement, no Party shall be liable to the other
Party for any cost, expense, claim, liability,
damage, expense or other Loss caused by the conduct
of the other Party, the other Party's agents,
servants, contractors or others acting in aid or
concert with the other Party.
(c) In no event shall either Party have any liability
whatsoever to the other Party for any indirect,
special, consequential, incidental or punitive
damages, including, but not limited to loss of
anticipated profits or revenue or other economic loss
in connection with or arising from anything said,
omitted or done hereunder (collectively,
"Consequential Damages"), even if the other Party has
been advised of the possibility of such damages.
(d) Except as otherwise provided in Section 9.1 of the
General Terms and Conditions, each Party's liability
to the other Party for any Loss relating to or
arising out of any negligent act or omission in its
performance of this Agreement, whether in contract or
in tort, shall be limited to the amount that is or
would have been charged to the other Party by such
negligent or breaching Party for the specific
service(s) or function(s) not performed or improperly
performed, and only for the period of time such
service or function was not performed or improperly
performed.
(e) Nothing in this Section 9.2 shall excuse the payment
of any award of collocation remedies made pursuant to
Section 2.2.20.2 of Part III hereof or any remedy
provided pursuant to Section 11 of the General Terms
and Conditions of this Agreement.
10. Payment Terms, Disputed Amounts and Audits.
------------------------------------------
10.1 Local Services.
--------------
All payments, disputes in regard to payments and (except as
provided in 10.4 below) audits for Local Services (if any)
shall be on the terms and conditions set forth in Appendix A
to Part I of this Agreement. All bills for Local Services
provided to one Party by the other are due within thirty-one
(31) calendar days of the xxxx xxx (payment date) unless the
billed Party is able to establish that the xxxx was not timely
received (i.e., at least 20 days prior to the payment date),
in which case the payment
8
date shall be twenty (20) calendar days from the receipt of
the xxxx. The Parties agree that Local Services wholesale
bills will be rendered and received electronically. The above
provisions shall be in addition to the terms and conditions of
Appendix A to Part I of this Agreement and shall be
interpreted as not in conflict therewith.
10.2 Payment Terms - Other than Local Services.
-----------------------------------------
This Section 10.2 does not apply to Local Services. Except for
alternately billed calls and meet-point billed calls, each
Party shall xxxx on a current basis all charges incurred by
and credits due to the other Party under this Agreement
attributable to services established, discontinued or
performed during the preceding billing period. In addition,
either Party may xxxx in advance charges for all services to
be provided during the ensuing billing period except for
charges associated with measured service usage which will be
billed in arrears. The xxxx xxx (i.e., the billing date of a
xxxx for a Party for services under this Agreement), the
period of service each xxxx covers, and the payment date will
be as follows:
(a) Each Party will establish a xxxx xxx each month for
the other Party's account. If payment is not received
by the payment date, as set forth in (b) following,
in immediately available funds, a late payment
penalty will apply as set forth in (b) following.
(b) All bills dated as set forth in (a) preceding for
service provided to one Party by the other are due
within thirty-one (31) calendar days (payment date)
unless the billed Party is able to establish that the
xxxx was not timely received (i.e., at least 20 days
----
prior to the payment date), in which case the payment
date shall be twenty (20) calendar days from the
receipt of the xxxx. All bills are payable in
immediately available funds. If such payment date
would cause payment to be due on a Saturday, Sunday
or Legal Holiday, payment for such bills will be due
from the billed Party as follows:
(i) If such payment date falls on a Sunday or on
a Legal Holiday which is observed on a
Monday, the payment date shall be the first
non-holiday day following such Sunday or
Legal Holiday.
(ii) If such payment date falls on a Saturday or
on a Legal Holiday which is observed on
Tuesday, Wednesday, Thursday or Friday, the
payment date shall be the last non-holiday
day preceding such Saturday or Legal
Holiday.
(iii) Further, if any portion of the payment is
received by the billing Party after the
payment date, or if any portion of the
payment is received by the billing Party in
funds which are not immediately available to
the
9
billing Party, then a late penalty shall be
due to the billing Party. The late payment
penalty shall be the portion of the payment
not received by the payment date or not
immediately available times a late factor.
The late factor shall be the lesser of:
(x) The highest interest rate (in
decimal value) which may be allowed
by law for commercial transactions,
for the number of days from the
payment date to and including the
date that the billed Party, actually
makes the payment to the billing
Party, or
(y) 0.0005 per day, simple interest, for
the. number of days from the payment
date to and including the date that
the billed Party actually makes the
payment to the billing Party.
10.3 Disputed Amounts -Other than Local Services.
-------------------------------------------
Except with respect to Local Services, in the event that a
billing dispute occurs concerning any charges billed to the
billed Party by the billing Party the following provisions
will apply.
(a) The first day of the dispute shall be the date on
which the billed Party furnishes in writing the
billing Party with the account number under which the
xxxx has been rendered, the date of the xxxx and the
specific items on the xxxx being disputed.
(b) If the Parties are unable to resolve the issues
related to the disputed amounts in the normal course
of business within ninety (90) days after delivery to
the billing Party of notice of the disputed amounts,
each of the Parties shall appoint a designated
representative who has authority to settle the
dispute and who is at a higher level of management
than the persons with direct responsibility for
administration of this Agreement. The designated
representatives shall meet as often as they
reasonably deem necessary in order to discuss the
dispute and negotiate in good faith in an effort to
resolve such dispute. The specific format for such
discussions will be left to the discretion of the
designated representatives, however all reasonable
requests for relevant information made by one Party
to the other Party shall be honored.
(c) If the Parties are unable to resolve issues related
to the disputed amounts within forty-five (45) days
after the Parties' appointment of designated
representatives pursuant to paragraph (b) above, then
the matter shall be decided pursuant to Section 16 of
the General Terms and Conditions of this Agreement.
10
(d) The Parties agree that all negotiations pursuant to
this Section 10.3 with respect to disputed amounts
shall remain confidential and shall be treated as
compromise and settlement negotiations for purposes
of the Federal Rules of Evidence and state rules of
evidence.
(e) If a billing dispute is resolved in favor of the
billing Party, any payments withheld pending
resolution of the dispute shall be subject to the
late payment penalty as set forth in paragraph 10.2
(b)(iii) above. Further, the billed Party will not
receive a disputed amount penalty credit and/or a
late payment penalty credit.
(f) If a billed Party disputes a xxxx within three months
of the payment date and pays the total billed amount
on or before the payment date, and the billing
dispute is resolved in favor of the billed Party, the
billed Party will receive a credit for a disputed
amount penalty from the billing Party for the period
starting with the date of payment and ending on the
date of resolution. The credit for a disputed amount
penalty shall be the following:
The disputed amount penalty shall be calculated by
multiplying that portion of the disputed amount paid
and resolved in the billed Party's favor times the
lesser of:
(i) The highest interest rate (in decimal value)
which may be allowed by law for commercial
transactions, for the number of days from
the first date to and including the last
date of the period involved, or
(ii)) 0.0005 per day for the number of days from
the first date to and including the last
date of the period involved.
(g) If the billed Party disputes a xxxx within three
months of the payment date and pays the total billed
amount after the payment date and the billing dispute
is resolved in favor of the billed Party, the billed
Party will receive a credit for a disputed amount
penalty from the billing Party for the period
starting with the date of payment and ending on the
date of resolution. The credit for a disputed amount
penalty shall be as set forth following. In addition,
the late payment penalty applied to the disputed
amount resolved in the billed Party's favor as set
forth in paragraph 10.2(b)(iii) preceding will be
credited.
(h) If the billed Party disputes a xxxx within three
months of the payment date and does not pay the
disputed amount or does not pay the billed amount
(i.e., the non-disputed and disputed amount), and the
billing dispute is resolved in favor of the billed
Party, the billed Party will not receive a credit for
a
11
disputed amount penalty from the billing Party. The
late payment penalty applied to the disputed amount
resolved in the billing Party's favor as set forth in
paragraph 10.2(b)(iii) preceding will not be
credited.
(i) If a billed Party disputes a xxxx after three months
from the payment date and pays the total billed
amount on or before the dispute date or after the
dispute date but prior to the date of resolution, and
the billing dispute is resolved in favor of the
billed Party, the billed Party will receive a credit
for a disputed amount penalty from the billing Party
for the period starting with the date of dispute (if
the payment was received before or on the dispute
date) or the date of payment (if the payment was
received after the dispute date) and ending on the
date of resolution., The credit for a disputed amount
penalty shall be as set forth following. The billed
Party will not receive a credit for the late payment
penalty applied to the disputed amount resolved in
the billed Party's favor if the payment was received
on or before the dispute date. If the payment was
received after the dispute date but prior to the date
of resolution, the billed Party will receive a credit
for a late payment penalty applied to the disputed
amount resolved in the billed Party's favor times a
late payment penalty factor for the period starting
with the date of dispute and ending on the date of
payment. The penalty factor shall be as set forth in
paragraph 10.2(b)(iii) preceding.
(j) If the billed Party disputes a xxxx after three
months from the payment date and does not pay the
disputed amount or does not pay the billed amount
(i.e., the non-disputed amount and disputed amount)
and the billing dispute is resolved in favor of the
billed Party, the billed Party will not receive a
credit for a disputed amount penalty from the billing
Party. The billed Party will receive a credit for the
late payment penalty applied to the disputed amount
resolved in the billed Party's favor times a late
payment penalty factor for the period starting with
the date of dispute and ending on the date of
resolution. The penalty factor shall be as set forth
in paragraph 10.2(b)(iii) preceding.
(k) Adjustments for the quantities of services
established or discontinued in any billing period
will be prorated to the number of days or major
fraction of days based on a thirty (30) day month.
The billing Party will, upon request and if
available, furnish to the billed Party such detailed
information as may reasonably be required for
verification of any xxxx.
(l) When a rate as set forth in this Agreement is shown
to more than two decimal places, the charges will be
determined using the rate shown. The resulting amount
will then be rounded to the nearest xxxxx (i.e.,
rounded to two decimal places).
12
(m) The Parties agree to establish a process by which
closure of a specific billing period will occur by
joint agreement. The purpose of a closure process is
for the Parties to jointly agree to close a billing
period to all further analysis and billing
transactions. Closure documentation at a minimum
should consist of a mutually developed agreement
outlining the process, a sign-off document to
formalize the closure of a specific period, and
documented specific issues which would be exempt from
closure. The intent of a closure process is for the
Parties to agree that except for exempted issues, all
billing and financial adjustments have been processed
and rendered for a specific xxxx period. The Parties
agree to a xxxx closure process which will be
established within twelve (12) months of the
Effective Date of this Agreement.
10.4 Audits and Inspections.
----------------------
(a) Subject to the terms and conditions of this Section
10.4, the restrictions set forth in Section 18 of the
General Terms and Conditions and the reasonable
security requirements of each Party and except as may
be otherwise specifically provided in this Agreement,
each Party (the "Auditing Party") may audit the other
Party's (the "Audited Party") books, records and
other documents which relate solely to the Parties'
billing to the other Party under this Agreement
(other than in connection with Local Services, with
respect to which no such audit right shall be
available except to the extent BA develops an audit
of the xxxx certification process pursuant to an
industry collaborative process, in which event such
audit rights shall be governed by such developed
process and not by this Agreement) once each year at
the conclusion of each calendar year, in order to
evaluate the accuracy of such other Party's billing
and invoicing. The Parties may employ other persons
or firms for this purpose. Such audit shall take
place at a time and place agreed to by the Parties no
later than thirty (30) days after notice thereof to
such other Party.
(b) Each Audited Party shall promptly correct any billing
error that is revealed in an audit, including
reimbursing any overpayment in the form of a credit
to the Auditing Party on the invoice for the first
full billing cycle after the Parties have agreed upon
the accuracy of the audit results. Any disputes
concerning audit results shall be resolved pursuant
to the procedures described in Section 16 of the
General Terms and Conditions of this Agreement.
(c) Each Audited Party shall cooperate fully in any such
audit, providing reasonable access to any and all
appropriate employees and relevant books, records and
other documents reasonably necessary to assess the
accuracy of its bills.
(d) Each Auditing Party may perform a single additional
audit of the Audited
13
Party's relevant books, records and documents during
any calendar year if the previous audit uncovered
uncorrected net variances or errors in invoices in
favor of the Audited Party having an aggregate value
(except for Local Services purchases) of not less
than two percent (2%) of the total amount payable by
the Auditing Party during the period covered by the
audit.
(e) All audits shall be conducted at the sole cost and
expense of the Auditing Party.
(f) Upon (i) the discovery by either Party of overcharges
not previously reimbursed to the other Party or
underpayments by a Party or (ii) the resolution of
disputed audits, each Party shall promptly reimburse
or pay to the Party entitled thereto the amount of
any overpayment or underpayment, together with
interest thereon at a rate per month equal to the
lesser of 1.5% or the maximum permitted legal rate of
interest for the number of days from the date such
Party received such overpayment or, in the case of an
underpayment, should have received such payment
through but excluding the date such reimbursement or
payment is made. In no event, however, shall interest
be assessed on any previously assessed or accrued
late payment charges.
10.5 Alternate Billing to Third Numbers.
----------------------------------
10.5.1 Calls on BA resold Lines using BA's Operator
Services. The following procedures shall apply for
Alternately Billed Calls which are local calls or
IntraLATA toll calls carried by BA and originating or
terminating over a BA line (x) which has been resold
by AT&T pursuant to the terms of Part I of this
Agreement and (y) for which BA is providing operator
and directory assistance services:
10.5.1.1 AT&T Originating Call charged to
Customer Served by a BA Line. In the
case of a call which originates from
an AT&T Customer being served by a
resold line in the BA territory
within Massachusetts (hereinafter
"AT&T Customer Resold Line") which
is charged to a retail Customer
served by a BA line including a
resold line in BA territory within
Massachusetts (hereinafter "BA
Massachusetts Territory"), BA shall
record and process such call, and
transmit to AT&T an unrated call
record. AT&T shall rate such call
for purposes of charging the retail
Customer and send such rated record
to BA or a resale carrier designated
by BA in billable form for billing
and collection purposes, at which
point AT&T shall have no further
responsibility for billing or
collecting for such
14
call for BA retail Customers. BA,
for BA retail Customers only, shall
pay AT&T for such call the billed
amount less the billing and
collection fee specified in Part IV.
AT&T shall pay BA for the call at
the wholesale discount rate set
forth in Part IV as billed on the
wholesale xxxx.
10.5.1.2 BA Originating Call charged to AT&T
Customer. In the case of a call
which originates from a BA retail
Customer within Massachusetts and is
charged to an AT&T Customer Resold
Line, BA shall record and process
such call and rate such call for
purposes of charging AT&T's
Customer. BA shall send such rated
record to AT&T in billable form for
billing and collection purposes, at
which point BA shall have no further
responsibility for billing or
collecting for such call. AT&T shall
pay BA for such call the billed
amount less the billing and
collection fee specified in Part IV.
10.5.1.3 AT&T Originating Call charged to
Other Carrier. In the case of a call
which originates from an AT&T
Customer Resold Line which is
charged to a customer of a third
party Telecommunications Carrier
outside BA Massachusetts Territory,
BA shall record and process such
call and transmit to AT&T an unrated
call record, at which point BA shall
have no further responsibility for
rating, billing, or collecting for
such call. AT&T shall pay BA for
such call at the wholesale discount
rate set forth in Part IV as billed
on the wholesale xxxx.
10.5.2 Calls on BA Resold Lines Using AT&T's Operator Services. The
following procedures shall apply for Alternately Billed Calls
which are local calls or IntraLATA toll calls carried by BA
and originating or terminating over a BA line (x) which has
been resold by AT&T pursuant to the terms of Part I of this
Agreement and (y) for which BA is not providing operator and
directory assistance services:
10.5.2.1 AT&T Originating Call charged to BA
Customer. In the case of a call
which originates from an AT&T
Customer Resold Line and is charged
to a BA retail Customer within BA
Massachusetts Territory, AT&T shall
record and process such call at its
OSPS and rate such call for purposes
of charging BA's Customer and send
such rated record to BA in billable
form for billing and collection
purposes, at which point AT&T shall
have no further responsibility for
billing or collecting for such call.
BA shall pay AT&T for such call the
15
billed amount less the billing and
collection fee specified in Part IV.
AT&T shall pay charges for
Customized Routing in accordance
with Part IV, Section B. XIII of
this Agreement. Appropriate
Reciprocal Compensation charges for
terminating to a BA line will apply
pursuant to Section 10.6 of this
Agreement.
10.5.2.2 BA Originating Call charged to AT&T
Customer. In the case of a call
which originates from a BA retail
Customer within Massachusetts and is
charged to an AT&T Customer Resold
Line, BA shall record and process
such call and rate such call for
purposes of charging AT&T's
Customer. BA shall send such rated
record to AT&T in billable form for
billing and collection purposes, at
which point BA shall have no further
responsibility for billing or
collecting for such call. AT&T shall
pay BA for such call the billed
amount less the billing and
collection fee specified in Part IV.
10.5.2.3 AT&T Originating Call charged to
Other Carrier. In the case of a call
which originates from an AT&T
Customer Resold Line which is
charged to a customer of a third
party Telecommunications Carrier
providing services outside BA
Massachusetts Territory, AT&T shall
record and process such call. AT&T
shall pay charges for Customized
Routing in accordance with Part IV,
Section B. XIII of this Agreement.
Appropriate Reciprocal Compensation
charges for terminating to a BA line
will apply pursuant to Section 10.6
of this Agreement.
10.5.3 Calls Billed to BA Resold Lines and Carried through
CMDS and CATS. The following procedures shall apply
for Alternately Billed Calls which are local calls or
IntraLATA toll calls billed through the Centralized
Message Distribution System ("CMDS") and originating
or terminating over a third company's line and
charged to a BA line which has been resold by AT&T
pursuant to the terms of Part I of this Agreement.
10.5.3.1 Calls Carried through CMDS and CATS.
In the case of a call which
originates and terminates outside BA
Massachusetts Territory and is
charged to an AT&T Customer Resold
Line, BA shall provide to AT&T the
information and charges with respect
to such call received from the
out-of-region Telecommunications
Carrier via the daily usage feed. BA
shall have no further responsibility
for rating, billing and
16
collecting for such call. AT&T shall
pay BA for such call an amount equal
to the amount charged to BA through
the CATS settlement process by such
out-of-region Telecommunications
Carrier with respect to such call as
billed on the wholesale xxxx and a
Call Usage Detail Service charge in
accordance with Part IV, Section B,
XI. B1 of this Agreement.
10.5.4 Administrative Matters. All other matters relating to
the rating, billing, payment and transmission of
records with respect to Alternately Billed Calls
which are not set forth above, including, without
limitation, the timing of payments and xxxxxxxx, the
frequency of transmission of records and the
eligibility of messages for billing, shall be
governed by the other applicable provisions of this
Agreement or, to the extent not so provided, by the
Joint Operations Plan.
10.5.5 Other Alternate Billed Calls. A BA territory
intraregion Alternate Billed Call clearinghouse will
be used for settling Alternately Billed Calls for
facility-based and unbundled Network Element purposes
and, to the extent it can be implemented, for calls
originating or charged to an AT&T Customer Resold
Line (including BA lines resold by third party
carriers within Massachusetts).
10.6 Reciprocal Compensation.
-----------------------
(a) Reciprocal Compensation only applies to the transport
and termination of Reciprocal Compensation Traffic.
(b) The Parties shall compensate each other for transport
and termination of Reciprocal Compensation Traffic,
based on actual usage, at the rates set forth in Part
IV hereof.
(c) The Reciprocal Compensation arrangements set forth in
this Agreement are not applicable to interLATA calls,
intraLATA toll calls or to intraLATA calls originated
on a third-party carrier's network on a 1 +
presubscribed basis or a casual dialed (10XXX or
101XXXX) basis. All such calls shall continue to be
governed by the terms and conditions of the
applicable federal and state tariffs.
(d) When either Party delivers seven (7) or ten (10)
digit translated intraLATA 800/888 service to the
other Party for termination, where the originating
Party uses its own switch (i.e., not utilizing
unbundled switching from the terminating Party), the
originating Party shall provide the terminating Party
with customer billing records in industry standard
format (EMR) if required by the terminating Party.
Where the originating Party utilizes unbundled
17
switching from the terminating Party, the Party with
recording capability will provide such records. Where
the originating Party uses its own switch (not
utilizing unbundled switching) to originate the call,
the originating Party may xxxx the terminating Party
for the delivery of the traffic at Reciprocal
Compensation rates. The terminating Party may not
xxxx the originating Party for Reciprocal
Compensation under this Agreement, except where the
originating Party fails to provide the terminating
Party with useable EMR records in a timely manner.
The originating Party shall bear the entire cost of
any systems development and production of such
records; provided that the terminating Party that is
providing the 800/888 service shall pay for each
record provided by the originating Party at the
reciprocal record exchange rate set forth in Part IV
hereof. If the originating Party performs the 800
database query for the terminating Party, the
originating Party may charge the terminating Party
for such a query at the rate set forth in Part IV
hereof.
(e) Each Party shall charge the other Party its effective
applicable tariffed IntraLATA switched access rates
for the transport and termination of all IntraLATA
Toll Traffic.
(f) The rates for termination of Reciprocal Compensation
Traffic are set forth in Part IV.
110 Service Standards.
-----------------
The Parties hereby agree that the performance standards and
remedies approved by the Department in the Consolidated Arbitrations, D.P.U.
96-73/74, 96-75, 96-80/81, 96-83 and 96-94, shall be incorporated by reference
into this Agreement and shall govern the provision of services hereunder, as
applicable.
120 OSS/Electronic Interfaces.
-------------------------
(a) Each BA service order completion (with the exception of
complete account conversions processed through the BA Service
Order Processor ("SOP") system, e.g., complex services or
accounts of 10 lines or greater) shall contain all working
telephone numbers ("WTNs") that were processed on the service
order. Should BA develop the capability of providing WTNs on
orders completed through the SOP system for itself during the
Term of this Agreement, BA will make such capability for
SOP-processed orders available to AT&T. The Parties mutually
agree to continue discussions regarding the feasibility,
timeframes and cost to implement such SOP capabilities for
AT&T Customers.
(b) Migration as Specified.
18
(i) With respect to Local Services customers, AT&T may
submit service orders for agreed upon service types
for BA end users who convert their existing local
exchange service to services resold by AT&T by
submitting a service order which indicates the
desired service configuration for each end user line
being converted. By submitting such service orders,
AT&T directs BA to remove all services except for
those delineated below and to connect only those
services stated on the service order without
disconnecting the line. At this time, BA will not
support this migration-as-specified service order
process for partial acquisitions (i.e. those end user
accounts for which AT&T seeks to convert some, but
not all, of the end user lines associated with a
single Billed Telephone Number). BA agrees that BA
will explore the possibility of performing
migration-as-specified service order processing for
partial migrations in the future. BA shall convert
such end user line retaining the end user's existing
telephone number (except as otherwise provided in
Part I(E)), directory listing information, appearance
in the E911 database, disability designations,
demarcation information, and voluntary blocking
selection. BA shall provision such resold line only
with the existing abovereferenced line
characteristics and the service configuration
provided by AT&T in the service order.
(ii) [Intentionally omitted]
(iii) If the service order is incomplete, insufficient,
incorrect, or contains conflicting information such
that BA is not able to process the order, BA may
reject such service order. Any such rejection shall
not be considered in any manner in measuring or
calculating BA's service performance or satisfying
any measurements. Notwithstanding anything to the
contrary set forth in this Agreement, (x) in the
absence of gross negligence or willful misconduct, BA
shall have no liability to AT&T, any AT&T customer,
or any other third party as a result of or otherwise
in connection with the rejection of any
migration-as-specified service order; and (y) AT&T
shall indemnify BA and hold BA harmless from and
against any and all claims, losses, liabilities and
damages to third parties incurred by BA by reason of
such incomplete, insufficient, incorrect or otherwise
erroneous migration-as-specified service order.
(iv) BA shall develop this new service order capability
and have it in service to handle a commercially
reasonable volume of service orders by March 1, 1998
for Local Services. The Parties shall mutually agree
to the expansion of this service order capability to
additional service types.
(v) Appropriate OSS charges as set forth in Part IV shall
apply. Additionally, AT&T shall pay BA its
apportioned share of reasonable direct development
costs, to the extent not previously recovered from
AT&T, for migration-as
19
specified capability (collectively,
"Migration-as-Specified Costs"). Prior to incurring
such Migration-as Specified Costs, BA shall submit a
good faith estimate of such development costs to
AT&T. AT&T shall notify BA within ten (10) business
days from receipt of such estimate as to whether or
not BA should proceed with the development of
migration-as-specified capability for Local Services.
If AT&T notifies BA to proceed, BA shall continue to
develop such capability and AT&T shall be obligated,
as stated herein, to pay BA its development costs.
Subsequent to the implementation of migration-as
specified capability by BA, the parties agree that BA
will calculate Migration-as-Specified Costs and
submit such costs to AT&T. If AT&T disputes such
costs, such dispute shall be submitted pursuant to
Section 16 of the General Terms and Conditions to
determine (x) if BA actually incurred such costs for
the development of this service order process
capability to AT&T; and (y) that such costs were
reasonably incurred in order to provide this service
order process capability to AT&T.
(vi) The Parties shall negotiate in good faith to agree on
documented interface specifications and a mutually
acceptable testing period for the service order
capability described above. AT&T agrees to provide
prior written notice to BA in the event it decides to
use such service order capability for any high
volume, unusual quantity or other non-ordinary course
of business request sufficiently prior to the date it
expects to effect such order so that BA may
adequately implement the same, and will agree to
further testing in connection therewith to the extent
required to assure proper implementation. The Parties
shall work cooperatively to assure that any problems
in connection with implementation and the provision
of such service order capabilities are resolved.
(vii) AT&T and BA acknowledge and agree that the new
service order process provided herein shall only be
utilized by AT&T to place orders in a fully
mechanized flow through environment. The parties
further agree that any changes to this service order
type that the parties may undertake to negotiate
shall preserve and not degrade such fully mechanized
processes.
(viii) AT&T's agreement to pay such development costs herein
does not preclude AT&T from asserting a position
against BA's recovery of other development costs
before appropriate regulatory bodies. The Parties
agree that this migration-as-specified provision
shall not be used to support either Party's position
as to the appropriate means for BA to recover its
costs to develop service order processing
capabilities.
(c) AT&T may submit a service order correction, change, supplement
or cancellation (a "Change Order") with respect to an initial
service order for Local Services and
20
unbundled Network Elements at any time after such service
order has been transmitted to BA. BA anticipates rejecting
such Orders (i) for incorrect information contained in the
Change Order; and (ii) in those instances when the Order has
been removed from queue for processing. If such Change Order
is rejected for reasons other than incorrect information
supplied with the Change Order, AT&T may, at its option,
contact its BA service representative for manual intervention
on a real time basis. The Parties shall cooperate to resolve
any problems which may arise in connection with such service
order process. For Local Services, BA will use commercially
reasonable efforts to implement the new process by December 1,
1997 or sooner, as mutually agreed to by the parties. The
Parties shall mutually agree to an implementation date for
unbundled Network Elements.
(d) As further described in the attached Appendix A to the General
Terms and Conditions of this Agreement, the parties agree to
work together to develop and implement
application-to-application electronic interfaces which already
conform or will conform to national standards for primary
interfaces* adopted by appropriate industry standards bodies,
for the conduct of local service resale, unbundled Network
Elements, and the interconnect business between ILECs and
CLECs. The specifications stated in Appendix A reflect the
Parties' reasonable interpretation of what they believe, at
the present time, to be the future national standards. Both
Parties agree that the interfaces which will be implemented
pursuant to Appendix A will not be proprietary to either party
and that information related to these interfaces will be made
publicly available in accordance with Applicable Laws. Neither
party waives any of its rights as a participant in industry
forums in the development and implementation of national
standards. The Parties acknowledge that the state of the art
in this area is rapidly changing. The Parties agree that this
Section 12(d) of the Agreement and Appendix A hereto and any
joint implementation plans pursuant to Appendix A do not imply
and shall not be used in any manner to demonstrate that (i)
existing BA interfaces do or do not meet OSS requirements
established by appropriate regulatory bodies; (ii) adoption of
national standards is a requirement under the Act, the Order,
or Applicable Laws; or (iii) a particular means of cost
recovery is appropriate or not, except to the extent the
Parties have agreed to cost recovery herein. Except for the
foregoing neither party waives its rights to present its
positions with respect to the adequacy of BA's existing and
future interfaces and the need for national standards.
(e) The Parties acknowledge that activities similar to those
described in this Section 12 and Appendix A to these General
Terms and Conditions are currently underway in New York
pursuant to the NY Agreement and that, where practical, the
Parties do not intend unnecessarily to duplicate performance
thereunder.
-----------------------
* As used herein, the term "Primary Interface" relates to the interface which is
designated as primary interface amongst more than one alternative offering by an
impartial, recognized standards body in the United States.
21
130 Operations Plan and Implementation Team. The Parties agree to an
---------------------------------------
Implementation Plan as set forth in Attachment 2 to this Agreement.
140 Force Majeure.
-------------
(a) Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement (other than an
obligation to make money payments) from any cause beyond its
reasonable control and without its fault or negligence
including, without limitation, acts of nature, acts of civil
or military authority, government regulations, embargoes,
epidemics, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, work
stoppages, strikes, equipment failure, power blackouts,
volcanic action, other major environmental disturbances,
unusually severe weather conditions, inability to secure
products or services of other persons or transportation
facilities, or acts or omissions of transportation carriers
(each, a "Force Majeure Event"). If any Force Majeure Event
occurs, the Party delayed or unable to perform shall give
prompt notice to the other Party and shall take all reasonable
steps to mitigate the effects of such Force Majeure Event.
During the pendency of the Force Majeure Event, the duties of
the Parties under this Agreement affected by the Force Majeure
Event shall be abated and, upon cessation of such Force
Majeure Event, shall resume as promptly as reasonably
practicable, without liability thereafter.
(b) Notwithstanding paragraph (a) of this Section 14, no delay or
other failure to perform shall be excused pursuant to this
Section 14 by the acts or omissions of a Party's
subcontractors, materialmen, suppliers or other third persons
providing products or services to such Party unless such acts
or omissions are themselves the product of a Force Majeure
Event, or unless such delay or failure and the consequences
thereof are beyond the reasonable control and without the
fault or negligence of the Party claiming excusable delay or
other failure to perform.
150 Certain State and Local Taxes. Each Party purchasing services hereunder
shall pay or otherwise be responsible for all federal, state, or local sales,
use, excise, gross receipts, transaction or similar taxes, fees or surcharges
levied against or upon such purchasing Party (or the providing Party when such
providing Party is permitted to pass along to the purchasing Party such taxes,
fees or surcharges), except for any tax on either Party's corporate existence,
status or income (other than income taxes included in rates through the
computation of carrying charge factors). Whenever possible, these amounts shall
be billed as a separate item on the invoice. To the extent a sale is claimed to
be qualified for resale tax exemption, the purchasing Party shall furnish the
providing Party a proper resale tax exemption certificate as authorized or
required by statute or regulation by the jurisdiction providing said resale tax
exemption. Failure to timely provide said resale tax exemption certificate will
result in no exemption being available to the purchasing Party.
160 Dispute Resolution.
------------------
22
(A) Inter-Company Review Board:
(1) The Parties to this Agreement shall establish an
Inter-Company Review Board consisting of at least one
representative from each Party at the managing
director or above level (or such lower level as the
Parties agree) to assist in the resolution of
disputes between BA and AT&T.
(a) Each Party must designate its initial
representative to the Inter-Company Review
Board within 15 days of the Effective Date
of this Agreement.
(b) The Parties may change their designee, or
select an alternative designee, as required
or deemed appropriate, without notice.
(B) Non-Service Affecting Disputes:
------------------------------
If a non-service affecting dispute arises between BA and AT&T during
the Term of the Agreement, the following process, which shall be
overseen by the Department, shall be followed to resolve such dispute.
In the event the Parties, in good faith, do not agree that a
non-service affecting dispute exists, the dispute shall be assumed to
be a service affecting dispute (except as provided in Paragraph (C)
below) and the process for resolving a service affecting dispute, as
described in Paragraph (C) below, shall be followed.
(1) Informal Negotiation of Non-Service Affecting
---------------------------------------------
Dispute.
-------
If the Parties have a non-service affecting dispute
either Party may initiate the procedures set forth
herein by providing notice of the existence of a
non-service affecting dispute as set forth in Section
17 of the General Terms and Conditions of the
Agreement. The petitioning party shall also serve the
Department and the Inter-Company Review Board with a
copy of the notice.
(a) The Parties shall have an initial 30-day
period beginning from the date on which
either Party has provided written notice to
the other Party identifying the existence of
a non-service affecting dispute within which
to resolve the dispute themselves, without
mediation or arbitration as provided below.
The Parties shall make a reasonable effort
to meet as often as necessary but not less
than one time each week in an effort to
resolve a dispute.
(b) The Parties may also mutually agree to other
informal resolution processes for specific
circumstances, including, but not limited to
commercial mediation or arbitration prior to
requesting the
23
Department initiate mediation or arbitration
of any non-service affecting dispute between
BA and AT&T.
(2) Formal Mediation or Expedited
-----------------------------
Investigation/Arbitration of Non-Service Affecting
--------------------------------------------------
Dispute by the Department.
--------------------------
If the Inter-Company Review Board is unable to
resolve a non-service affecting dispute within thirty
(30) days (or such other period agreed to in writing
by the Parties) either Party may petition the
Department. The initial petition shall be for
mediation. If agreement cannot be reached through
mediation, the aggrieved Party may then petition the
Department for expedited investigation/arbitration.
The mediation and expedited investigation/arbitration
process shall be overseen by the Department.
(a) A request for mediation shall be submitted
in writing to the Department, with a copy
served on the other Party.
(b) The period of mediation shall be 60 days
commencing on the date of filing of such
petition for mediation. Such petition shall
include a request to the Department to
choose a mediator within the first 10 days
of such 60 day period, and the mediation
shall be conducted by a mediator designated
by the Department. The Department may assign
a staff person or a professional mediator,
funded equally by the Parties, to conduct
the mediation. The Parties shall cooperate
in good faith with the mediator to resolve
the dispute within such 60 day period. If,
at any date following the 45th day of such
60 day period, the Parties have not resolved
their dispute, the Parties may request the
mediator formally declare a deadlock.
(c) Following the earlier to occur of (i)
expiration of the 60-day mediation period
without resolution of the dispute between
the Parties or (ii) formal declaration of a
deadlock by the mediator as contemplated in
preceding paragraph (b), either Party may
petition the Department to open an expedited
investigation/arbitration into the dispute.
The petition should include a comprehensive
explanation of the dispute (e.g., unresolved
issues, areas of agreement, stipulations of
fact), as well as all relevant
correspondence exchanged during negotiations
or mediation. The petitioning Party shall
provide a copy of the petition to the other
Party on the same day that it is filed with
the Department. The petition shall include a
request to open an expedited
investigation/arbitration within 10 business
days of receipt of its petition. The
Department may assign a staff person or a
professional arbitrator, funded equally by
the Parties, to conduct the
24
expedited investigation/arbitration which
shall be no more than 60 days. The staff
person or arbitrator shall issue and serve
his or her decision and award on the Parties
within 20 business days of the close of the
investigation/arbitration. Any such decision
shall be submitted to the Department for
approval, unless otherwise provided by the
Department.
(C) Service Affecting Disputes:
--------------------------
If a service affecting dispute arises between BA and AT&T
during the Term of the Agreement, the following process, which
shall be overseen by the Department, shall be followed to
resolve such dispute. Any disputes over a matter that directly
affects the ability of a Party to provide uninterrupted
high-quality services to its customers shall be considered a
service affecting dispute. However, in the sole discretion of
the Party identifying the existence of the service affecting
dispute, said dispute may be resolved in accordance with the
general procedures/timeframes for a non-service affecting
dispute, as described above. The Parties agree that disputes
regarding collocation remedies in Exhibit A to Part III hereof
shall not constitute service affecting disputes.
(1) Informal Negotiation of Service Affecting Dispute.
-------------------------------------------------
If the Parties have a service affecting dispute
either Party may initiate the procedures set forth
herein by providing notice of the existence of a
service affecting dispute as set forth in Section 17
of the General Terms and Conditions of the Agreement.
The petitioning party shall also serve the Department
and the Inter-Company Review Board with a copy of the
notice.
(a) The Parties shall have an initial 5 business
day period beginning from the date on which
either Party has provided written notice to
the other Party identifying the existence of
a service affecting dispute and seeking to
resolve it, within which to resolve the
dispute themselves through the Inter-Company
Review Board, without mediation or
arbitration as provided below, except as set
forth in subsection (b) below. The Parties
shall make a reasonable effort to meet as
often as necessary but not less than once in
an effort to resolve the dispute.
(b) The Parties may also mutually agree to other
informal resolution processes for specific
circumstances, including, but not limited to
commercial mediation or arbitration prior to
requesting the Department to initiate
mediation or arbitration of a service
affecting dispute between BA and AT&T.
25
(2) Formal Expedited Investigation/Arbitration of
----------------------------------------------
Service Affecting Dispute by the Department.
-------------------------------------------
If the Inter-Company Review Board is unable to
resolve a service affecting dispute within 5 business
days (or such other period agreed to in writing by
the Parties) either Party may petition the Department
for expedited consideration and disposition of such
dispute pursuant to paragraph B(2)(c) above. There
shall be no period of mediation. The other Party
shall assent to such request for expedition. In
addition, to the extent technically and operationally
feasible, the Party against whom the complaint has
been made, shall take immediate remedial action to
correct the service affecting condition, without
prejudice to its position on the merits of the
dispute or its right to recover any costs incurred in
implementing an interim solution. The staff person or
arbitrator appointed by the Department shall issue
and serve his or her decision and award on the
Parties within 10 business days of the close of the
investigation/arbitration. Such decision shall be
submitted for approval by the Department, unless
otherwise provided by the Department.
(D) Confidentiality:
---------------
(1) BA, AT&T, and the arbitrator will treat the
arbitration proceedings, including the hearings and
conferences, discovery, or other related events, as
confidential, except as necessary in connection with
a judicial challenge to, or enforcement of, an award,
or unless otherwise required by an order or lawful
process of a court or governmental body.
(2) In order to maintain the privacy of all arbitration
conferences and hearings, the arbitrator shall have
the power to require the exclusion of any person,
other than a Party, counsel thereto, or other
essential persons.
(3) To the extent that any information or materials
disclosed in the course of an arbitration proceeding
contain proprietary, trade secret or confidential
information of either Party, it shall be safeguarded
in accordance with an appropriate agreement for the
protection of proprietary, trade secret or
confidential information that the Parties agree to
negotiate. However, nothing in such negotiated
agreement shall be construed to prevent either Party
from disclosing the other Party's information to the
arbitrator in connection with or in anticipation of
an arbitration proceeding. In addition, the
arbitrator may issue orders to protect the
confidentiality of proprietary information, trade
secrets, or other sensitive information in the event
the Parties cannot agree upon an agreement to govern
the handling of such information.
170 Notices. Any notices or other communications required or permitted to be
given or delivered
26
under this Agreement shall be in hard-copy writing (unless otherwise
specifically provided herein) and shall be sufficiently given if (a) delivered
personally, (b) delivered by prepaid overnight express service or (c) delivered
by confirmed telecopier transmission with a copy delivered thereafter in the
manner set forth in (a) or (b) above, to the following (unless otherwise
specifically required by this Agreement to be delivered by other means or to
another representative or point of contact and except for notices required in
the ordinary course of business):
If to AT&T:
AT&T Communications of New England, Inc.
00 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Vice President-Northeast States, LSO
Telecopier: (000) 000-0000
with a copy of each notice relating to an action, suit,
proceeding or claim to be sent simultaneously to:
AT&T Corp.
32 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Regional V.P. - Law and Government Affairs
Telecopier: (000) 000-0000
If to BA:
BA
1095 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President -Telecom Industry Services
Telecopier: (000) 000-0000
with a copy of each notice relating to an action, suit,
proceeding or claim to be sent simultaneously to:
BA
1095 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telecopier: (000) 000-0000
Either Party may unilaterally change its designated representative
and/or address for the receipt of notices by giving seven (7) days' prior
written notice to the other Party in compliance with
27
this Section. Any notice or other communication shall be deemed given when
received.
180 Confidentiality.
---------------
(a) Any information such as specifications, drawings, sketches,
business information, forecasts, models, samples, data,
computer programs and other software and documentation of one
Party (a "Disclosing Party") that is furnished or made
available or otherwise disclosed to the other Party or any of
its employees, contractors, agents or Affiliates (its
"Representatives" and, together with a Party, a "Receiving
Party") pursuant to this Agreement (such information, other
than customer proprietary network information, as defined in
Section 222(f)(1) of the Act, being hereinafter collectively
referred to as "Proprietary Information") shall be deemed the
property of the Disclosing Party. Proprietary Information, if
written, shall be marked "Confidential" or "Proprietary" or by
other similar notice, and, if oral or visual, shall be
confirmed in writing as confidential by the Disclosing Party
to the Receiving Party within ten (10) days after disclosure.
Unless Proprietary Information was previously known by the
Receiving Party free of any obligation to keep it
confidential, or has been or is subsequently made public by an
act not attributable to the Receiving Party, or is explicitly
agreed in writing not to be regarded as confidential, or is
independently developed by the Receiving Party, the Parties
hereby agree that in addition to the confidentiality
requirements set forth in the Act and the Order, all
Proprietary Information (i) shall be held in confidence by
each Receiving Party; (ii) shall be disclosed on a
confidential basis to only those persons who have a need for
it in connection with the provision of services required to
fulfill this Agreement and shall be used only for such
purposes; and (iii) may be used for other purposes only upon
such terms and conditions as may be mutually agreed to in
advance of use in writing by the Parties. Notwithstanding the
foregoing sentence, a Receiving Party shall be entitled to
disclose or provide Proprietary Information as required by any
governmental authority or applicable law only in accordance
with Section 18(b) below.
(b) If any Receiving Party is required by any governmental
authority or by applicable law to disclose any Proprietary
Information, then such Receiving Party shall provide the
Disclosing Party with written notice of such requirement, to
the extent permitted by law, as soon as possible and, where
possible, prior to such disclosure. The Disclosing Party may
then seek appropriate protective relief from all or part of
such requirement, and the Receiving Party shall use all
commercially reasonable efforts to cooperate with the
Disclosing Party in attempting to obtain any protective relief
which such Disclosing Party chooses to obtain. Absent any
restraining order or other relief prohibiting any such
disclosure by the Receiving Party, then the Receiving Party
shall be entitled to disclose such Proprietary Information and
shall incur no liability hereunder as a result thereof.
28
(c) In the event of the expiration or termination of this
Agreement for any reason whatsoever, each Party shall return
to the other Party or destroy all Proprietary Information and
other documents, work papers and other material (including all
copies thereof) obtained from the other Party in connection
with this Agreement and shall use all reasonable efforts,
including instructing its employees and others who have had
access to such information, to keep confidential and not to
use any such information, unless such information is now, or
is hereafter disclosed, through no act, omission or fault of
such Party, in any manner making it available to the general
public.
(d) Except as may be otherwise provided herein, by Applicable Law
or in any FCC rules or procedures hereinafter issued, BA shall
not use any AT&T data, even if the AT&T data is in aggregated
form, for retail marketing purposes, unless such data was
previously known by BA free of any obligation not to use such
data for retail marketing purposes, has been or is
subsequently made public by an act not attributable to BA or
is explicitly agreed in writing not to be subject to the
restriction set forth in this Section 18(d).
(e) BA shall provide to AT&T documentation of BA operational flows
within 60 days after the Effective Date of this Agreement to
help ensure that Section 18(d) above is being complied with by
BA.
(f) The Receiving Party may make copies of Proprietary Information
only as reasonably necessary to perform its obligations under
this Agreement. All such copies shall bear the same copyright
and proprietary rights notices as are contained on the
original.
(g) Except as otherwise expressly provided elsewhere in this
Agreement, no license is hereby granted under any patent,
trademark, or copyright, nor is any such license implied,
solely by virtue of the disclosure of any Proprietary
Information.
(h) The Parties acknowledge and agree that CPNI is governed by
Section 222 of the Act.
190 Number Portability.
------------------
19.1 Interim Number Portability.
--------------------------
(a) Until Number Portability is implemented on an
industry-wide basis pursuant to an order or
regulation issued by the FCC or the Department, the
Parties agree to provide to each other Interim Number
Portability as defined in the Act, ("INP") through
remote call forwarding, route indexing, and full NXX
code migration as set forth below or through any
other technical solution which may, at the option of
the Parties, be mutually agreed to by the Parties.
(b) Upon implementation of Number Portability pursuant to
an FCC or
29
Department regulation, both Parties agree to conform
and provide such Number Portability in accordance
with said regulation. Once Number Portability is
implemented, either Party may withdraw, at any time
and at its sole discretion, its INP offerings,
subject to reasonable advance written notice to the
other Party.
(c) In the event a Customer of one Party ("Party A")
elects to become a Customer of the other Party
("Party B") and such Customer continues to reside
within the same central office boundary and Rate
Center, and elects to utilize the original telephone
number(s) corresponding to the Exchange Service(s) it
previously received from Party A in conjunction with
the Exchange Service(s) it will now receive from
Party B:
(i) Party B shall, upon receipt from such
Customer of the type of customer
authorization required by the Department or
the FCC (together with an associated service
order which, among other things, indicates
that Party B has obtained the required
customer authorization permitting assignment
of the number to Party B), place an order
with Party A to implement an arrangement
whereby all calls to the original telephone
number(s) will be forwarded to Party B over
the appropriate Local/IntraLATA trunks for
purposes of forwarding the call.
(ii) Party B shall become the customer of record
for the original Party A telephone numbers
subject to the INP arrangements provided
that Party B continues to use the INP
service for the use of the end user customer
originally assigned such number, and in all
respects shall be treated as the customer as
to such number as if Party B has been
assigned such number. Party A shall use its
reasonable efforts to consolidate into as
few billing statements as possible all
collect, calling card, and third-number
billed calls associated with those numbers,
with sub-account detail by retained number.
The parties shall work cooperatively to
enable Party A to provide such billing
statement to Party B in an agreed-upon
format via either electronic file transfer,
daily magnetic tape, or monthly magnetic
tape.
(iii) Party A will update its Line Information
Database ("LIDB") listings for retained
numbers, as directed by Party B, and cancel
calling cards associated with those
forwarded numbers.
(iv) Within two (2) business days of receiving
notification from the new Local Services
carrier or the Customer terminating service
with Party B, Party B shall notify Party A
of the Customer's termination of
30
service with Party B. Party A will cancel
the INP arrangements for such Customer's
telephone number(s). In the event Party A
changes its telephone numbers, it may
discontinue providing INP service as to such
numbers.
(d) Procedures for Providing INP Through Route Indexing.
---------------------------------------------------
Either Party may deploy a Route Index arrangement
which combines direct trunks provisioned between BA's
and AT&T's end offices with trunk side routing
translations. Under this arrangement, inbound calls
to a ported number will be pointed at a Route Index
that sends the call to a dedicated trunk group, built
as a direct final, for the sole purpose of
facilitating completion for calls to a ported number.
Each Party will coordinate with the other to provide
this solution in a mutually agreeable and
administratively manageable manner (e.g., NXX level)
so as to minimize switch resource utilization for
both Parties. AT&T shall pay to BA all costs and
expenses incurred by BA in implementing such Route
Indexing through tandems as requested by AT&T
including, without limitation, all costs and expenses
arising out of the development of necessary
translations/reprogramming of existing trunk routing,
the provision of additional dedicated trunks serving
each affected tandem and the establishment of
increased call processing and memory capacity to
handle the increased volume of traffic, codes,
translations and routing domains for all affected
tandem or end office switches.
(e) Procedures for Providing INP Through Full NXX Code
--------------------------------------------------
Migration. Where either Party has activated an entire
---------
NXX for a single Customer, or activated a portion
consisting in excess of fifty percent (50%) of an NXX
Code for a single Customer with the remaining numbers
in that NXX either reserved for future use or
otherwise unused, if such Customer chooses to receive
service from the other Party, the first Party shall
cooperate with the second Party to have the entire
NXX reassigned in the LERG (and associated industry
databases, routing tables, etc.) to an end office
operated by the second Party. Such transfer will be
accomplished with appropriate coordination between
the Parties and subject to lead times specified in
ATTIS Numbering Committee Guidelines 00-0000-000 C.O.
code (NXX) Assignment guidelines and NOF Reference
Document, Part II, Section 2.3, NXX Code Openings,
for movements of NXXs from one switch to another.
(f) The Parties shall pay to each other for ported
telephone numbers the amounts determined in
accordance with the Rochester Plan formula as
referenced in Phase 3 of the Arbitration Award.
Terminating IXC access charges shall be shared
between BA and AT&T pursuant to meet-point billing
arrangements between the Parties using special
estimated studies until such time as actual
meet-point billing records are available.
31
19.2 Number Reassignment. BA shall not be required to reassign to AT&T
thousand number blocks (i.e., split NXX codes into blocks of a thousand numbers)
in the Local Exchange Routing Guide ("LERG") except to the extent that BA agrees
to such reassignment consistent with a change in the national guidelines for
Central Office Code assignments.
200 Directory Listings and Directory Distributions.
----------------------------------------------
(a) BA will include those AT&T Customers of Local Services resold
by AT&T from BA pursuant to Part I hereof in its "White Pages"
and "Yellow Pages" directory listings in accordance with the
terms of Appendix A of Part I, and will distribute such
directories to such customers, in an identical and transparent
manner in which it provides those functions for its own
customers' telephone numbers.
(b) With respect to all other AT&T Customers, BA will include such
AT&T Customers' telephone numbers in all of its "White Pages"
and "Yellow Pages" directory listings (including electronic
directories) and directory assistance databases associated
with the areas in which AT&T provides services to such
Customers, and will distribute such directories to such
Customers, in an identical and transparent manner in which it
provides those functions for its own Customers' telephone
numbers. In this Section 20, references to AT&T Customer
telephone numbers means telephone numbers falling within NXX
codes directly assigned to AT&T and to numbers which are
retained by AT&T on the customer's behalf pursuant to Interim
Number Portability arrangements described in Section 19 of the
General Terms and Conditions of this Agreement.
(c) BA will include all AT&T NXX codes on appropriate existing
calling charts in the BA Customer Guide section of the
directory in the same manner as it provides this information
for its own NXX Codes. BA shall assist AT&T in dealing with
Xxxx Atlantic Yellow Pages Company to facilitate Xxxx Atlantic
Yellow Pages Company's publication of AT&T Calling Charts or
other AT&T information in the front portion of Xxxx Atlantic
Yellow Pages Company directories distributed in the MA Region.
(d AT&T will provide BA with its directory listings and daily
updates to those listings (including new, changes, and deleted
listings) on a non-exclusive basis in a mutually agreed upon
format at no charge.
(e BA will accord AT&T's directory listing information the same
level of confidentiality which BA accords its own directory
listing information.
(f BA shall provide AT&T at no charge with directory distribution
for AT&T Customers. The Parties hereby acknowledge and agree
that BA is not required, as per applicable tariffs, to provide
more than one free white pages directory listing for each
32
CENTREX system purchased for resale, regardless of the number
of CENTREX lines purchased as part of such system.
(g BA will provide AT&T with a report of all AT&T customer
listings 90 days prior to directory publication in such form
and format as may be mutually agreed to by both parties. Both
Parties shall use their best efforts to ensure the accurate
listing of such information.
(h BA will work cooperatively with AT&T so that Yellow Page
advertisements purchased by Customers who switch their service
to AT&T (including Customers utilizing Interim Number
Portability) are maintained without interruption. BA will
allow AT&T customers to purchase new Yellow Pages
advertisements without discrimination, under the identical
rates, terms and conditions that apply to BA's customers.
(i BA will include, on one-eighth of a page, in the "Information
Pages" or comparable section of its White Pages Directories
for areas served by AT&T in the MA Region, listings provided
by AT&T for AT&T's installation, repair and customer service
and other customer service-oriented information, including
appropriate identifying logo. Such listings shall appear in
the manner that such information appears for subscribers of BA
and other LECs. BA shall not charge AT&T for inclusion of this
information.
(j Electronic Format Directory Assistance. Upon at least thirty
--------------------------------------
days notice from AT&T, BA shall provide to AT&T in electronic
format BA's master directory assistance listing for BA end
user customers in the MA Region, exclusive of non-published
numbers to the extent that BA is prohibited from selling or
offering to sell such numbers under Applicable Law. BA shall
also provide AT&T with updates (containing adds, deletes and
changes only) to these listings, at the same frequency that BA
updates its own directory assistance databases. The Parties
shall mutually agree to content, format and timing
specifications for these directory assistance listings. Such
directory assistance listings shall only be used by AT&T for
the purpose of providing local directory assistance to AT&T
local exchange service customers. AT&T shall pay BA a rate
based on the cost of providing directory assistance listings
and updates in an electronic format, including a reasonable
profit.
21. Subscriber List Information.
---------------------------
(a At AT&T's request, in accordance with Section 222(e) and (f)
of the Act, for the purpose of publishing a directory in any
format, BA shall provide to AT&T published Subscriber List
Information on a timely basis via readily accessible tape or
electronic formats on the same terms and conditions and at the
same rates that BA provides its own Subscriber List
Information to third party directory publishers. Changes to
the Subscriber List Information shall be available on a timely
basis through the same tape
33
or electronic transfer means used to transmit the initial
Subscriber List Information at the same rates and on the same
terms and conditions that BA provides its own Subscriber List
Information to third party directory publishers. Subscriber
List Information provided by BA shall indicate whether the
customer is a residence or business customer.
(b BA shall provide Subscriber List information that includes
AT&T Customers to third parties, as required by the Act, on
the same terms and conditions and at the same rates that BA
provides its own Subscriber List Information to third parties.
AT&T shall receive its pro-rata share (calculated based on the
proportionate share of AT&T Customers to the total number of
customers included in the Subscriber List Information) of net
proceeds realized by BA from third parties for such Subscriber
List Information; provided, however, that BA shall not be
required to include AT&T Customers in Subscriber List
Information sales to third parties (other than AT&T) if BA
promptly notifies AT&T of all requests by third party
directory publishers and others for AT&T Subscriber List
Information thus permitting AT&T to deal directly with said
third parties.
22. Miscellaneous.
-------------
22.1 Delegation or Assignment - Neither Party may assign or
transfer (whether by operation of law or otherwise) this
Agreement (or any rights or obligations hereunder) to a third
party without the prior written consent of the other Party
which consent shall not be unreasonably withheld or delayed;
provided, however, each Party may assign this Agreement to a
corporate Affiliate or an entity under its common control or
an entity acquiring all or substantially all of its assets or
equity by providing prior written notice to the other Party of
such assignment or transfer. Any attempted assignment or
transfer that is not permitted shall be void ab initio. All
obligations and duties of any Party shall be binding on all
successors in interest and assigns of such Party.
22.2 Nonexclusive Remedies - Except as otherwise expressly provided
in this Agreement, each of the remedies provided under this
Agreement is cumulative and is in addition to any remedies
that may be available at law or in equity.
22.3 No Third Party Beneficiaries - Except as may be specifically
set forth in this Agreement, this Agreement does not provide
and shall not be construed to provide third parties with any
remedy, claim, liability, reimbursement, cause of action, or
other privilege.
22.4 Referenced Documents - Unless otherwise specifically provided
herein, whenever any provision of this Agreement refers to a
technical reference, technical publication, AT&T Practice, BA
Practice, any publication of telecommunications industry
administrative or technical standards, or any other document
specifically incorporated
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into this Agreement, it will be deemed to be a reference to
the most recent version or edition (including any amendments,
supplements, addenda, or successors) of such document that is
in effect, and will include the most recent version or edition
(including any amendments, supplements, addenda, or
successors) of each document incorporated by reference in such
a technical reference, technical publication, AT&T Practice,
BA Practice, or publication of industry standards.
22.5 Governing Law - The validity of this Agreement, the
construction and enforcement of its terms, and the
interpretation of the rights and duties of the Parties shall
be governed by the laws of the Commonwealth of Massachusetts
other than as to conflicts of laws, except insofar as federal
law may control any aspect of this Agreement, in which case
federal law shall govern such aspect.
22.6 Publicity and Advertising - Neither Party shall publish or use
any advertising, sales promotions or other publicity materials
that use the other Party's logo, trademarks or service marks
without the prior written approval of the other Party. Neither
BA nor AT&T may offer services to its end users or others
under any of the brand names of the other Party or any of its
parents, subsidiaries or affiliates, regardless of whether or
not such brand names are registered trademarks or
servicemarks, without the other Party's prior written
authorization. Neither Party shall state or imply that there
is any partnership or other joint business arrangement with
the other Party, its parent, subsidiaries, or affiliates, for
the provision of services to the other Party's end users or
others. BA and AT&T may jointly develop a press release
publicizing their relationship under this Agreement, subject
to both (1) any prior non-disclosure agreement, and (2)
mutually agreed upon language and media. Notwithstanding this
section, AT&T is entitled to identify BA as the underlying
carrier of the services provided hereunder.
22.7 Amendments or Waivers - Except as otherwise provided in this
Agreement, no amendment or waiver of any provision of this
Agreement, and no consent to any default under this Agreement,
shall be effective unless the same is in writing and signed by
both Parties. In addition, no course of dealing or failure of
a Party strictly to enforce any term, right or condition of
this Agreement shall be construed as a waiver of such term,
right or condition. By entering into this Agreement neither
Party waives any right granted to it pursuant to the Act
and/or the Order, except to the extent the Act or the Order
permits such rights to be modified or waived and such
modification or waiver is expressly set forth herein.
22.8 Severability - If any term, condition or provision of this
Agreement is held to be invalid or unenforceable for any
reason, such invalidity or unenforceability shall not
invalidate the entire Agreement, unless such construction
would be unreasonable. However, the Parties agree to meet and
negotiate in good faith to arrive at a mutually acceptable
modification of the invalid or unenforceable provision. If the
Parties are
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unable to agree on such modification within 30 days after the
Agreement provision(s) is held to be illegal, invalid or
enforceable, such failure to agree shall be resolved in
accordance with the Dispute Resolution process in Section 16
of the General Terms and Conditions.
22.9 Entire Agreement - This Agreement, which shall include the
Attachments, Appendices, Exhibits and other documents
referenced herein, including all applicable tariffs as
referenced herein (as in effect from time to time except with
respect to those provisions in this Agreement in which it is
expressly provided otherwise), constitutes the entire
Agreement between the Parties concerning the subject matter
hereof and supersedes any prior agreements, representations,
statements, negotiations, understandings, proposals or
undertakings, oral or written, with respect to the subject
matter expressly set forth herein. Neither Party shall be
bound by any terms additional to or different from those in
this Agreement that may appear subsequently in the other
Party's form documents, purchase orders, quotations,
acknowledgments, invoices or other communications.
22.10 Survival of Obligations - Any liabilities or obligations of a
Party for acts or omissions prior to the cancellation or
termination of this Agreement; any obligation of a Party under
the provisions regarding indemnification, Proprietary
Information, limitations on liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after) termination
of this Agreement, shall survive expiration or termination
hereof.
22.11 Executed in Counterparts - This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original, but such counterparts shall together constitute one
and the same instrument.
22.12 Headings of No Force or Effect - The headings of Articles and
Sections of this Agreement are for convenience of reference
only, and shall in no way define, modify or restrict the
meaning or interpretation of the terms or provisions of this
Agreement.
22.13 Joint Work Product - This Agreement is the joint work product
of the Parties and their respective counsel and shall be
fairly interpreted in accordance with its terms and, in the
event of any ambiguities, no inferences shall be drawn against
either Party.
22.14 Nonexclusive Dealings - This Agreement does not prevent either
Party from providing or purchasing services to or from any
other person nor, except as provided in Section 5 of the
General Terms and Conditions and Exhibit A (Bona Fide Request
Process) of Part II hereof, does it obligate either Party to
provide or purchase any services not specifically provided
herein.
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22.15 No License - No license under patents, copyrights or any other
intellectual property right (other than the limited license to
use consistent with the terms, conditions and restrictions of
this Agreement) is granted by either Party or shall be implied
or arise by estoppel with respect to any transactions
contemplated under this Agreement.
22.16 Dialing Parity - In addition to the parity requirements set
forth in Section E of Part I, the Parties shall provide
dialing parity to each other as required under Section
251(b)(3) of the Act, except as may be limited by Section 271
(e)(2)(B) of the Act.
22.17 Disclaimer of Warranties - Upon the Department's ruling that
it has substantially completed the establishment of
performance standards and remedies in the Consolidated
Arbitrations, D.P.U. 96-73/74, 96-75, 96-80/81, 96-83 and
96-94, the following disclaimer shall take effect: EXCEPT AS
EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR
RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES, FUNCTIONS AND PRODUCTS IT PROVIDES UNDER OR
CONTEMPLATED BY THIS AGREEMENT AND THE PARTIES DISCLAIM THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A
PARTICULAR PURPOSE.
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