EXHIBIT 10.16
RESALE AGREEMENT
----------------
(Delaware)
PREFACE
-------
THIS RESALE AGREEMENT (this "Agreement") is made effective as of March
25, 1998 (the "Effective Date") by and between VIC-RMTS-DC, L.L.C., d/b/a
OnePoint Communications ("Reseller"), a Delaware limited liability company, with
offices at 0000 Xxxxxxxx Xxxx, Xxxxx X-000, Xxxxxxxxxxx, Xxxxxxxx 00000, and
Xxxx Atlantic - Delaware, Inc. ("Xxxx Atlantic"), a Delaware corporation, with
offices at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. (S)
251(c)(4), Reseller wishes to purchase Xxxx Atlantic Retail Telecommunications
Services from Xxxx Atlantic for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services in the State of Delaware; and
WHEREAS, Xxxx Atlantic is willing to provide such Xxxx Atlantic Retail
Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth in
this Agreement, Reseller and Xxxx Atlantic, each on behalf of itself and its
respective successors and assigns, agree as follows:
1. DEFINITIONS
-----------
1.1 As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C. (S) 151, et
--
seq., as amended from time-to-time.
----
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government
regulations and orders.
1.1.4 "Xxxx Atlantic Ancillary Service" means any service offered by
Xxxx Atlantic to Reseller in Exhibit I.
1.1.5 "Xxxx Atlantic Retail Telecommunications Service" means any
Telecommunications Service that Xxxx Atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Xxxx
Atlantic Retail Telecommunications Service" does not include any exchange
access service (as defined in Section 3(16) of the Act, 47 U.S.C. (S)
153(16)) provided by Xxxx Atlantic.
1.1.6 "Xxxx Atlantic Service" means and includes any Xxxx Atlantic
Retail Telecommunications Service and any Xxxx Atlantic Ancillary Service.
1.1.7 "Xxxx Atlantic's Affiliates" means any corporations, partnerships
or other persons who control, are controlled by, or are under common
control with, Xxxx Atlantic.
1.1.8 "Xxxx Atlantic's Tariffs" and "Xxxx Atlantic Tariff" mean and
include:
(a) Xxxx Atlantic's effective Federal and state tariffs, as
amended by Xxxx Atlantic from time-to-time; and,
(b) to the extent Xxxx Atlantic Services are not subject to Xxxx
Atlantic tariffs, any standard agreements and other documents, as amended
by Xxxx Atlantic from time-to-time, that set forth the generally available
terms, conditions and prices under which Xxxx Atlantic offers such Xxxx
Atlantic Services.
The terms "Xxxx Atlantic's Tariffs" and "Xxxx Atlantic Tariff" do
not include Xxxx Atlantic's "Statement of Generally Available Terms and
Conditions for Interconnection, Unbundled Network Elements, Ancillary
Services and Resale of Telecommunications Services" which has been approved
by the Commission pursuant to Section 252(f) of the Act, 47 U.S.C. (S)
252(f).
1.1.9 "Commission" means the Delaware Public Service Commission.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2,
means a stated period or minimum period of time for which Reseller is
required by this Agreement to subscribe to, use and/or pay for a Xxxx
Atlantic Service.
1.1.11 "Customer" means and includes customers, subscribers and patrons,
of a Party, purchasers and users of Telecommunications Services (including,
but not limited to, resold Xxxx Atlantic Retail Telecommunications
Services) provided by a Party, and purchasers and users of other services
and products provided by a Party. The term "Customer" does not include a
Party.
1.1.12 "Xxxx Atlantic Customer" means a Customer of Xxxx Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
non-public, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
1.1.14 "Customer Proprietary Network Information" ("CPNI") means
"Customer Proprietary Network Information" as defined in Section 222 of the
Act, 47 U.S.C. (S) 222.
1.1.15 "Effective Date" means the date first above written.
1.1.16 "Jurisdiction" means the State of Delaware.
1.1.17 "Operator Services" means: (a) services accessed by dialing 411,
555-1212, 0-000-0000, 0+ local, 0+ intraLATA, and, 0-; and, (b) any other
automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
-2-
1.1.19 "Principal Document" means this document, including the Preface,
Sections 1 through 39, the signature page, Exhibit I, Exhibit II, and
Exhibit II, Attachment 1.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Xxxx Atlantic Retail
Telecommunications Services are provided by Xxxx Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications Carrier"
as defined in Section 3(44) of the Act, 47 U.S.C. (S) 153(44).
1.1.23 "Telecommunications Service" means "Telecommunications Service"
as defined in Section 3(46) of the Act, 47 U.S.C. (S) 153(46).
1.1.24 "Telephone Exchange Service" means "Telephone Exchange Service"
as defined in Section 3(47) of the Act, 47 U.S.C. (S) 153(47).
1.1.25 "Termination Date Xxxx Atlantic Service" means: (a) any Xxxx
Atlantic Service being provided by Xxxx Atlantic under this Agreement at
the time of termination of this Agreement, that at the time of termination
of this Agreement is subject to a Contract Period which is greater than one
(1) month; and, (b) any Xxxx Atlantic Service requested by Reseller under
this Agreement in an Order accepted by Xxxx Atlantic prior to termination
of this Agreement but not yet being provided by Xxxx Atlantic at the time
of termination of this Agreement, that is subject to an initial Contract
Period which is greater than one (1) month.
1.2 Unless the context clearly indicates otherwise, any defined term
which is defined or used in the singular shall include the plural, and any
defined term which is defined or used in the plural shall include the
singular.
2. THE AGREEMENT
-------------
2.1 This Agreement includes: (a) the Principal Document; (b) Xxxx
Atlantic's Tariffs (which Xxxx Atlantic Tariffs are incorporated into this
Agreement by reference and made a part hereof); and, (c) a Reseller Order
to provide, change or terminate a Xxxx Atlantic Service, which has been
accepted by Xxxx Atlantic (including, but not limited to, any Order which
includes a commitment to purchase a stated number or minimum number of
lines or other Xxxx Atlantic Services, or a commitment to purchase lines or
other Xxxx Atlantic Services for a stated period or minimum period of
time).
2.2 Conflicts among terms in the Principal Document, Xxxx Atlantic's
Tariffs, and a Reseller Order which has been accepted by Xxxx Atlantic,
shall be resolved in accordance with the following order of precedence,
where the document identified in subsection "(a)" shall have the highest
precedence: (a) the Principal Document; (b) Xxxx Atlantic's Tariffs; and,
(c) a Reseller Order
-3-
which has been accepted by Xxxx Atlantic. The fact that a term appears in
the Principal Document but not in a Xxxx Atlantic Tariff, or in a Xxxx
Atlantic Tariff but not in the Principal Document, shall not be interpreted
as, or deemed grounds for finding, a conflict for the purposes of this
Section 2.2.
2.3 This Agreement (including the Principal Document, Xxxx Atlantic's
Tariffs, and Reseller Orders which have been accepted by Xxxx Atlantic),
constitutes the entire agreement between the Parties on the subject matter
hereof, and supersedes any prior or contemporaneous agreement,
understanding, or representation on the subject matter hereof. Except as
otherwise provided in the Principal Document, the terms in the Principal
Document may not be waived or modified except by a written document which
is signed by the Parties. Subject to the requirements of Applicable Law,
Xxxx Atlantic shall have the right to add, modify, or withdraw, a Xxxx
Atlantic Tariff at any time, without the consent of, or notice to,
Reseller.
2.4 A failure or delay of either Party to enforce any of the
provisions of this Agreement, or any right or remedy available under this
Agreement or at law or in equity, or to require performance of any of the
provisions of this Agreement, or to exercise any option provided under this
Agreement, shall in no way be construed to be a waiver of such provisions,
rights, remedies, or options.
3. XXXX ATLANTIC SERVICES
----------------------
3.1 During the term of this Agreement, Reseller, pursuant to Section
251(c)(4) of the Act, 47 U.S.C. (S) 251(c)(4), may submit Orders to Xxxx
Atlantic requesting Xxxx Atlantic to provide Xxxx Atlantic Retail
Telecommunications Services for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services.
3.2 During the term of this Agreement, Reseller may submit Orders to
Xxxx Atlantic requesting Xxxx Atlantic to provide Xxxx Atlantic Ancillary
Services for use by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
3.3 Xxxx Atlantic may require that Reseller's Orders requesting Xxxx
Atlantic to provide Xxxx Atlantic Services be in writing on forms specified
by Xxxx Atlantic or in an electronic form specified by Xxxx Atlantic.
3.4 Upon receipt and acceptance by Xxxx Atlantic of a Reseller Order
requesting Xxxx Atlantic to provide a Xxxx Atlantic Service, Xxxx Atlantic
shall provide, and Reseller shall subscribe to, use and pay for, the Xxxx
Atlantic Service, in accordance with this Agreement.
3.5 Xxxx Atlantic Retail Telecommunications Services may be purchased
by Reseller under this Agreement only for the purpose of resale by Reseller
as a Telecommunications Carrier providing Telecommunications Services,
pursuant to Section 251(c)(4) of the Act, 47 U.S.C. (S) 251(c)(4). Xxxx
Atlantic Retail Telecommunications Services to be purchased by Reseller for
other purposes (including, but not limited to, Reseller's own use) must be
purchased by Reseller pursuant to separate written agreements, including,
but not limited to, applicable Xxxx Atlantic Tariffs.
-4-
Reseller warrants and agrees that Reseller will purchase Xxxx Atlantic
Retail Telecommunications Services from Xxxx Atlantic under this Agreement
only for the purpose of resale by Reseller as a Telecommunications Carrier
providing Telecommunications Services, pursuant to Section 251(c)(4) of the
Act, 47 U.S.C. (S) 251(c)(4).
3.6 Xxxx Atlantic Ancillary Services may be purchased by Reseller
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services. Xxxx Atlantic Ancillary
Services to be purchased by Reseller for other purposes must be purchased
by Reseller pursuant to separate written agreements, including, but not
limited to, applicable Xxxx Atlantic Tariffs. Reseller warrants and agrees
that Reseller will purchase Xxxx Atlantic Ancillary Services from Xxxx
Atlantic under this Agreement only for use by Reseller as a
Telecommunications Carrier providing Telecommunications Services.
3.7 Subject to the requirements of Applicable Law, Xxxx Atlantic
shall have the right to add, modify, grandfather, discontinue or terminate
Xxxx Atlantic Services at any time, without the consent of Reseller.
4. PRICES
------
4.1 Reseller shall pay Xxxx Atlantic for Xxxx Atlantic Services at
the prices stated in this Agreement, including, but not limited to, in
Exhibit II, Attachment 1.
4.2 If, prior to establishment of a Xxxx Atlantic Service, Reseller
cancels or changes its Order for the Xxxx Atlantic Service, Reseller shall
reimburse Xxxx Atlantic for the costs associated with such cancellation or
changes as required by this Agreement (including, but not limited to, Xxxx
Atlantic's Tariffs).
4.3 Upon request by Xxxx Atlantic, Reseller shall provide to Xxxx
Atlantic adequate assurance of payment of charges due to Xxxx Atlantic.
Assurance of payment of charges may be requested by Xxxx Atlantic: (a) if
Reseller, in Xxxx Atlantic's reasonable judgment, at the Effective Date or
at any time thereafter, is unable to show itself to be creditworthy; (b) if
Reseller, in Xxxx Atlantic's reasonable judgment, at the Effective Date or
at any time thereafter, is not creditworthy; or, (c) if Reseller fails to
timely pay a xxxx rendered to Reseller by Xxxx Atlantic. Unless otherwise
agreed by the Parties, the assurance of payment shall be in the form of a
cash deposit and shall be in an amount equal to the charges for Xxxx
Atlantic Services that Reseller may reasonably be expected to incur during
a period of two (2) months. Xxxx Atlantic may at any time use the deposit
or other assurance of payment to pay amounts due from Reseller.
5. BILLING AND PAYMENT
-------------------
5.1 Except as otherwise permitted or required by this Agreement, or
agreed in writing by the Parties, Xxxx Atlantic shall render bills to
Reseller monthly. Except as otherwise agreed in writing by the Parties,
Xxxx Atlantic will render bills to Reseller in a paper form.
-5-
5.2 Reseller shall pay Xxxx Atlantic's bills in immediately available
U.S. funds. Except as otherwise agreed in writing by the Parties, payments
shall be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Xxxx
Atlantic's bills. Except as otherwise required by Xxxx Atlantic's Tariffs
or agreed in writing by the Parties, the due date shall not be sooner than
twenty (20) days after the date the xxxx is received by Reseller.
5.4 Charges which are not paid by the due date stated on Xxxx
Atlantic's xxxx shall be subject to a late payment charge. The late payment
charge shall be in an amount specified by Xxxx Atlantic, which shall not
exceed a rate of one-and-one-half percent (1.5%) of the over-due amount
(including any unpaid, previously billed late payment charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Xxxx Atlantic will be engaged
in developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Xxxx Atlantic
Retail Telecommunications Services and new or modified systems and methods
for computing and rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified
forms of bills and such new or modified systems and methods for computing
and rendering bills, Xxxx Atlantic's form of xxxx and systems and methods
for computing and rendering bills may be subject to limitations and
restrictions, including, but not limited to, the limitations stated in
Section 5.5.3, below, the inability to provide Reseller with a single,
consolidated xxxx for all Xxxx Atlantic Services purchased by Reseller, and
the unavailability of bills and billing information in an electronic form
(e.g., bills may be rendered in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified
forms of bills and the new or modified systems and methods for computing
and rendering bills, Xxxx Atlantic may apply the discount identified in
Exhibit II, Section 1.1, in a manner (including, but not limited to, in a
"bottom-of-the-xxxx" format) that results in the Exhibit II, Section 1.1
discount being applied to charges stated in the xxxx (including, but not
limited to, Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, Audiotex Service
charges, and charges for services which are not Xxxx Atlantic Retail
Telecommunications Services) which are not subject to the Exhibit II,
Section 1.1 discount. Xxxx Atlantic will implement a "true-up" process and
within six (6) months after the due date of each monthly xxxx, issue to
Reseller a "true-up" xxxx for amounts which were not collected from
Reseller under the monthly xxxx because of the application of the Exhibit
II, Section 1.1 discount to charges which are not subject to the Exhibit
II, Section 1.1 discount. The "true-up" xxxx may be issued as a part of or
an entry on a monthly xxxx, as a xxxx separate from a monthly xxxx, or in
such other form as Xxxx Atlantic may determine.
5.6 Although it is the intent of Xxxx Atlantic to submit timely and
accurate bills, failure
-6-
by Xxxx Atlantic to present bills (including, but not limited to, monthly
bills and "true-up" bills) to Reseller in a timely or accurate manner shall
not constitute a breach or default of this Agreement, or a waiver of a
right of payment of the incurred charges, by Xxxx Atlantic. Reseller shall
not be entitled to dispute charges for Xxxx Atlantic Services provided by
Xxxx Atlantic based on Xxxx Atlantic's failure to submit a xxxx for the
charges in a timely fashion.
6. TERM
----
6.1 The term of this Agreement shall commence on the Effective Date,
and, except as otherwise provided in this Agreement, shall remain in effect
through March 25, 1999 (the "Initial Term Ending Date"). After the Initial
Term Ending Date, this Agreement shall continue in force and effect unless
and until terminated as provided in this Agreement. Following the Initial
Term Ending Date, either Party may terminate this Agreement by providing
written notice of termination to the other Party, such written notice to be
provided at least ninety (90) days in advance of the date of termination.
6.2 Following termination of this Agreement pursuant to Section 6.1,
this Agreement, as amended from time to time, shall remain in effect as to
any Termination Date Xxxx Atlantic Service for the remainder of the
Contract Period applicable to such Termination Date Xxxx Atlantic Service
at the time of the termination of this Agreement. If a Termination Date
Xxxx Atlantic Service is terminated prior to the expiration of the Contract
Period applicable to such Termination Date Xxxx Atlantic Service, Reseller
shall pay any termination charge provided for in this Agreement.
7. SERVICE INSTALLATION AND MAINTENANCE
------------------------------------
Reseller shall comply with Xxxx Atlantic's processes and
procedures (including, but not limited to, requirements by Xxxx Atlantic
that Reseller use Xxxx Atlantic OSS Services or Xxxx Atlantic Pre-OSS
Services) for the communication to Xxxx Atlantic of (a) Reseller's Orders
to provide, change or terminate, Xxxx Atlantic Services, and (b) Reseller's
requests for information about, assistance in using, or repair or
maintenance of, Xxxx Atlantic Services. Xxxx Atlantic may, from time-to-
time, upon notice to Reseller, change these processes and procedures.
8. ASSIGNMENT
----------
8.1 Reseller shall not assign this Agreement or any right or interest
under this Agreement, nor delegate any obligation under this Agreement,
without the prior written approval of Xxxx Atlantic, which approval shall
not be unreasonably withheld, conditioned or delayed. Any attempted
assignment or delegation in contravention of the foregoing shall be void
and ineffective.
8.2 Xxxx Atlantic may, without the consent of Reseller, assign this
Agreement or any right or interest under this Agreement, and/or delegate
any obligation under this Agreement, to any of Xxxx Atlantic's Affiliates,
or to a person with which Xxxx Atlantic merges or which acquires
substantially all of Xxxx Atlantic's assets.
-7-
9. AVAILABILITY OF SERVICE
-----------------------
9.1 Subject to the requirements of Applicable Law, Xxxx Atlantic
shall be obligated to provide Xxxx Atlantic Services to Reseller under this
Agreement only where Xxxx Atlantic is able, without unreasonable expense
(as determined by Xxxx Atlantic in its reasonable judgment), (a) to obtain,
retain, install and maintain suitable facilities for the provision of such
Xxxx Atlantic Services, and (b) to obtain, retain and maintain suitable
rights for the provision of such Xxxx Atlantic Services.
9.2 Xxxx Atlantic's obligation to provide a Xxxx Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Xxxx Atlantic Retail Telecommunications Service to
Reseller where, and to the same extent, that Xxxx Atlantic provides such
Xxxx Atlantic Retail Telecommunications Service to Xxxx Atlantic's own end
user retail Customers.
10. BRANDING
--------
10.1 Except as stated in Section 10.2, in providing Xxxx Atlantic
Services to Reseller, Xxxx Atlantic shall have the right, but not the
obligation, to identify the Xxxx Atlantic Services with Xxxx Atlantic's
trade names, trademarks and service marks. Any such identification of the
Xxxx Atlantic Services shall not constitute the grant of a license or other
right to Reseller to use Xxxx Atlantic's trade names, trade marks or
service marks.
10.2 To the extent required by Applicable Law, upon request by
Reseller and at prices, terms and conditions to be negotiated by Reseller
and Xxxx Atlantic, Xxxx Atlantic shall provide Xxxx Atlantic Retail
Telecommunications Services that are identified by Reseller's trade name,
or that are not identified by trade name, trademark or service xxxx.
11. CHOICE OF LAW
-------------
11.1 The construction, interpretation and performance of this
Agreement shall be governed by the laws of the United States of America and
the laws of Jurisdiction (without regard to Jurisdiction's conflicts of
laws rules). All disputes relating to this Agreement shall be resolved
through the application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court,
commission or other governmental entity in which a claim, suit or
proceeding which arises out of or in connection with this Agreement or Xxxx
Atlantic Services provided under this Agreement and in which Xxxx Atlantic
is a party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
------------------------------
-8-
12.1 Each Party shall in its performance of this Agreement comply with
Applicable Law, including, but not limited to, all applicable regulations
and orders of the Commission and the Federal Communications Commission
(hereinafter the "FCC").
12.2 Reseller shall in providing Xxxx Atlantic Retail
Telecommunications Services to Reseller Customers comply with Applicable
Law, including, but not limited to, all applicable regulations and orders
of the Commission and the FCC.
13. CONFIDENTIAL INFORMATION
------------------------
13.1 For the purposes of this Section 13, "Confidential Information"
means the following information disclosed by one Party ("Discloser") to the
other Party ("Recipient") in connection with this Agreement:
(a) Customer Information related to a Reseller Customer which is
disclosed by Reseller to Xxxx Atlantic (except to the extent that (i) the
Customer Information is subject to publication in a directory, (ii) the
Customer Information is subject to disclosure through an Operator Service
or other Telecommunications Service, or in the course of furnishing
Telecommunications Services, or (iii) the Reseller Customer to whom the
Customer Information is related, in the manner required by Applicable Law,
has given Xxxx Atlantic permission to use and/or disclose the Customer
Information);
(b) Customer Information related to a Xxxx Atlantic Customer
which is disclosed by Xxxx Atlantic to Reseller (except to the extent that
the Xxxx Atlantic Customer to whom the Customer Information is related, in
the manner required by Applicable Law, has given Reseller permission to use
and/or disclose the Customer Information);
(c) Information related to specific Xxxx Atlantic facilities and
equipment (including, but not limited to, cable-and-pair information) which
is disclosed by Xxxx Atlantic to Reseller; and
(d) Any other information which is identified by the Discloser
as Confidential Information in accordance with Section 13.2.
13.2 All information which is to be treated as Confidential
Information under Section 13.1(d) shall:
(a) if in written, graphic, electromagnetic, or other tangible
form, be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser at the time of
disclosure to be "Confidential" or "Proprietary", and (ii) be set forth in
a written summary which identifies the information as "Confidential" or
"Proprietary" and is delivered by the Discloser to the Recipient within ten
(10) days after the oral disclosure.
-9-
Each Party shall have the right to correct an inadvertent failure
to identify information as Confidential Information pursuant to Section
13.1(d) by giving written notification within thirty (30) days after the
information is disclosed. The Recipient shall, from that time forward,
treat such information as Confidential Information.
Notwithstanding any other provision of this Agreement, a Party
shall have the right to refuse to accept receipt of information which the
other Party has identified as Confidential Information pursuant to Section
13.1(d).
13.3 In addition to any requirements imposed by law, including, but
not limited to, 47 U.S.C. (S) 222, for a period of five years from the
receipt of Confidential Information from the Discloser, except as otherwise
specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for the purpose of
performing under this Agreement;
(b) using the same degree of care that it uses with similar
confidential information of its own, to hold the Confidential Information
in confidence and restrict disclosure of the Confidential Information
solely to the Recipient's Affiliates, and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, having a need to
know the Confidential Information for the purpose of performing under this
Agreement. The Recipient's Affiliates and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, shall be
required by the Recipient to comply with the provisions of this Section 13
in the same manner as the Recipient. The Recipient shall be liable for any
failure of the Recipient's Affiliates and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, to comply with
the provisions of this Section 13.
13.4 If the Recipient wishes to disclose the Discloser's Confidential
Information to a third party Agent or contractor, such disclosure must be
mutually agreed to in writing by the Parties to this Agreement, and the
Agent or contractor must have executed a written agreement of non-
disclosure and non-use comparable in scope to the terms of this Section 13.
13.5 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations under this Agreement. All
such copies shall bear the same copyright and proprietary rights notices as
are contained on the original.
13.6 The Recipient shall return or destroy all Confidential
Information received from the Discloser, including any copies made by the
Recipient, within thirty (30) days after a written request by the Discloser
is delivered to the Recipient, except for (a) Confidential Information that
the Recipient reasonably requires to perform its obligations under this
Agreement, and (b) Customer Information related to a Reseller Customer that
is to be treated by Xxxx Atlantic as Confidential Information pursuant to
Section 13.1(a). If the Recipient loses or makes an unauthorized disclosure
of the Discloser's Confidential Information, it shall notify the Discloser
immediately and use
-10-
reasonable efforts to retrieve the lost or improperly disclosed
information.
13.7 The requirements of this Section 13 shall not apply to
Confidential Information:
(a) which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser;
(b) after it becomes publicly known or available through no
breach of this Agreement by the Recipient, the Recipient's Affiliates, or
the directors, officers, employees, Agents, or contractors, of the
Recipient or the Recipient's Affiliates;
(c) after it is rightfully acquired by the Recipient free of
restrictions on its disclosure;
(d) after it is independently developed by the Recipient; or
(e) to the extent the disclosure is required by Applicable Law,
a court, or governmental agency; provided, the Discloser has been notified
of the required disclosure promptly after the Recipient becomes aware of
the required disclosure, the Recipient undertakes reasonable lawful
measures to avoid disclosing the Confidential Information until the
Discloser has had reasonable time to seek a protective order, and the
Recipient complies with any protective order that covers the Confidential
Information to be disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
13.9 Confidential Information shall remain the property of the
Discloser, and the Discloser shall retain all of the Discloser's right,
title and interest in any Confidential Information disclosed by the
Discloser to the Recipient. Except as otherwise expressly provided
elsewhere in this Agreement, no license is granted by this Agreement with
respect to any Confidential Information (including, but not limited to,
under any patent, trademark, or copyright), nor is any such license to be
implied, solely by virtue of the disclosure of any Confidential
Information.
13.10 Each Party agrees that the Discloser would be irreparably injured
by a breach of this Section 13 by the Recipient, the Recipient's
Affiliates, or the directors, officers, employees, Agents or contractors of
the Recipient or the Recipient's Affiliates, and that the Discloser shall
be entitled to seek equitable relief, including injunctive relief and
specific performance, in the event of any breach of the provisions of this
Section 13. Such remedies shall not be deemed to be the exclusive remedies
for a breach of this Section 13, but shall be in addition to any other
remedies available under this Agreement or at law or in equity.
13.11 The provisions of this Section 13 shall be in addition to and not
in derogation of any provisions of Applicable Law, including, but not
limited to, 47 U.S.C. (S) 222, and are not intended
-11-
to constitute a waiver by a Party of any right with regard to protection of
the confidentiality of information of the Party or its Customers provided
by Applicable Law. In the event of a conflict between a provision of this
Section 13 and a provision of Applicable Law, the provision of Applicable
Law shall prevail.
14. CONTINGENCIES
-------------
Neither Party shall be liable for any delay or failure in
performance by it which results from strikes, labor slowdowns, or other
labor disputes, fires, explosions, floods, earthquakes, volcanic action,
delays in obtaining or inability to obtain necessary services, facilities,
equipment, parts or repairs thereof, power failures, embargoes, boycotts,
unusually severe weather conditions, revolution, riots or other civil
disturbances, war or acts of the public enemy, acts of God, or causes
beyond the Party's reasonable control.
15. COUNTERPARTS
------------
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
16. CUSTOMER INFORMATION
--------------------
16.1 Without in any way limiting Section 12, each Party shall comply
with Applicable Law with regard to Customer Information, including, but not
limited to, 47 U.S.C. (S) 222.
16.2 A Party ("Accessing Party") shall not access (including, but not
limited to, in the case of Reseller, through Xxxx Atlantic OSS Services and
Xxxx Atlantic Pre-OSS Services), use or disclose Customer Information made
available to the Accessing Party by the other Party pursuant to this
Agreement unless the Accessing Party, in the manner required by Applicable
Law, has obtained any Customer authorization for such access, use and/or
disclosure required by Applicable Law. By accessing, using or disclosing
Customer Information made available to the Accessing Party by the other
Party pursuant to this Agreement, the Accessing Party represents and
warrants that the Accessing Party has obtained, in the manner required by
Applicable Law, any Customer authorization for such action required by
Applicable Law. The Accessing Party shall upon request by the other Party
provide proof of such authorization (including, a copy of any written
authorization).
16.3 Xxxx Atlantic shall have the right (but not the obligation) to
audit Reseller to ascertain whether Reseller is complying with the
requirements of Applicable Law and this Agreement, with regard to
Reseller's access to, and use and disclosure of, Customer Information which
is made available to Reseller by Xxxx Atlantic pursuant to this Agreement.
16.4 In addition to Xxxx Atlantic's audit rights under Section 16.3,
Xxxx Atlantic shall have the right (but not the obligation) to monitor
Reseller's access to and use of Customer Information which is made
available by Xxxx Atlantic to Reseller pursuant to this Agreement, to
ascertain whether
-12-
Reseller is complying with the requirements of Applicable Law and this
Agreement, with regard to Reseller's access to, and use and disclosure of,
such Customer Information. The foregoing right shall include, but not be
limited to, the right (but not the obligation) to electronically monitor
Reseller's access to and use of Customer Information which is made
available by Xxxx Atlantic to Reseller pursuant to this Agreement through
Xxxx Atlantic OSS Facilities or other electronic interfaces or gateways.
16.5 Information obtained by Xxxx Atlantic pursuant to Section 16.3 or
Section 16.4 shall be treated by Xxxx Atlantic as Confidential Information
of Reseller pursuant to Section 13; provided that, Xxxx Atlantic shall have
the right (but not the obligation) to use and disclose information obtained
by Xxxx Atlantic pursuant to this Section 16 to enforce Applicable Law
and/or Xxxx Atlantic's rights under this Agreement.
17. DEFAULT
-------
17.1 If Reseller materially breaches a material provision of this
Agreement (other than an obligation to make payment of any amount billed
under this Agreement), and such breach continues for more than thirty (30)
days after written notice thereof from Xxxx Atlantic, then, except as
otherwise required by Applicable Law, Xxxx Atlantic shall have the right,
upon notice to Reseller, to terminate or suspend this Agreement and/or
provision of Xxxx Atlantic Services, in whole or in part.
17.2.1 If Reseller fails to make a payment of any amount billed under
this Agreement by the due date stated on the xxxx and such failure
continues for more than thirty (30) days after written notice thereof from
Xxxx Atlantic, then, except as provided in Section 17.2.2, below, or as
otherwise required by Applicable Law, Xxxx Atlantic shall have the right,
upon notice to Reseller, to terminate or suspend this Agreement and/or
provision of Xxxx Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning the
obligation of Reseller to make payment of an amount billed under this
Agreement, the failure to pay the amount in dispute shall not constitute
cause for termination or suspension of this Agreement or provision of Xxxx
Atlantic Services, if, within thirty (30) days of the date that Xxxx
Atlantic gives Reseller written notice of the failure to pay the amount in
dispute, Reseller (a) gives Xxxx Atlantic written notice of the dispute
stating the basis of the dispute, and (b) furnishes to Xxxx Atlantic an
irrevocable letter of credit in a form acceptable to Xxxx Atlantic or other
security arrangement acceptable to Xxxx Atlantic, guaranteeing payment to
Xxxx Atlantic of any portion of the disputed amount (including the whole of
the disputed amount) which is thereafter agreed by Xxxx Atlantic and
Reseller, or determined by a court or other governmental entity of
appropriate jurisdiction, to be due to Xxxx Atlantic. The existence of
such a dispute shall not relieve Reseller of its obligations to pay any
undisputed amount which is due to Xxxx Atlantic and to otherwise comply
with this Agreement.
18. FACILITIES
----------
-13-
18.1 Xxxx Atlantic or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Xxxx Atlantic Services. Xxxx
Atlantic shall have access at all reasonable times to Reseller and Reseller
Customer locations for the purpose of installing, inspecting, maintaining,
repairing, and removing, facilities, equipment, software, and wiring, used
to provide the Xxxx Atlantic Services. Reseller shall, at Reseller's
expense, obtain any rights and authorizations necessary for such access.
18.2 Except as otherwise agreed to in writing by Xxxx Atlantic, Xxxx
Atlantic shall not be responsible for the installation, inspection, repair,
maintenance, or removal, of facilities, equipment, software, or wiring,
provided by Reseller or Reseller Customers for use with Xxxx Atlantic
Services.
19. INTELLECTUAL PROPERTY
---------------------
Except as expressly stated in this Agreement, nothing contained
within this Agreement shall be construed as the grant of a license, either
express or implied, with respect to any patent, copyright, trade name,
trade xxxx, service xxxx, trade secret, or other proprietary interest or
intellectual property, now or hereafter owned, controlled or licensable by
either Party.
20. JOINT WORK PRODUCT
------------------
The Principal Document is the joint work product of the
representatives of the Parties. For convenience, the Principal Document has
been drafted in final form by Xxxx Atlantic. Accordingly, in the event of
ambiguities, no inferences shall be drawn against either Party solely on
the basis of authorship of the Principal Document.
21. LIABILITY
---------
21.1.1 AS USED IN THIS SECTION 21, "OTHER XXXX ATLANTIC PERSONS" MEANS
XXXX ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS
AND CONTRACTORS, OF XXXX ATLANTIC AND XXXX ATLANTIC'S AFFILIATES.
21.1.2 AS USED IN THIS SECTION 21, "XXXX ATLANTIC SERVICE FAILURE" MEANS
AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A XXXX
ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR,
DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A XXXX ATLANTIC SERVICE.
21.2 THE LIABILITY, IF ANY, OF XXXX ATLANTIC AND OTHER XXXX ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC
SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH IN XXXX
ATLANTIC'S TARIFFS.
-14-
21.3.1 TO THE EXTENT THE XXXX ATLANTIC TARIFFS APPLICABLE TO A XXXX
ATLANTIC SERVICE DO NOT CONTAIN A PROVISION WHICH LIMITS OR EXCLUDES THE
LIABILITY OF XXXX ATLANTIC AND/OR OTHER XXXX ATLANTIC PERSONS TO RESELLER,
RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES
ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC SERVICE FAILURE,
SECTION 21.3.3 SHALL APPLY.
21.3.2 TO THE EXTENT A XXXX ATLANTIC SERVICE IS NOT SUBJECT TO A XXXX
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF XXXX ATLANTIC AND OTHER XXXX ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC
SERVICE FAILURE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN EXCESS OF: (A)
TWICE THE PROPORTIONATE CHARGE FOR THE XXXX ATLANTIC SERVICE AFFECTED
DURING THE PERIOD OF THE XXXX ATLANTIC SERVICE FAILURE; OR, (B) IF THERE IS
NO CHARGE FOR THE XXXX ATLANTIC SERVICE AFFECTED, FIVE HUNDRED DOLLARS
($500.00).
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION
21.3.1, SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, XXXX ATLANTIC AND OTHER
XXXX ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER, RESELLER
CUSTOMERS, AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR HARM
TO BUSINESS, LOST REVENUES, LOST PROFITS, LOST SAVINGS, OR OTHER COMMERCIAL
OR ECONOMIC LOSS), ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC
SERVICE FAILURE OR ANY BREACH OR FAILURE IN PERFORMANCE OF THIS AGREEMENT
BY XXXX ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS
21.2 THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A CLAIM OR ACTION,
WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, THE
NEGLIGENCE OF XXXX ATLANTIC AND/OR OTHER XXXX ATLANTIC PERSONS), STRICT
LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER XXXX ATLANTIC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with Reseller
Customers, provide that in no case shall Xxxx Atlantic or Other Xxxx
Atlantic Persons be liable to Reseller Customers or to any other third
parties for any indirect, special, incidental, consequential, or other
damages, including, but not limited to, harm to business, lost revenues,
lost profits, lost savings, or other commercial or economic loss, whether
foreseeable or not, and regardless of notification of the possibility of
such damages. Reseller shall indemnify, defend and hold Xxxx Atlantic and
Other Xxxx Atlantic Persons
-15-
harmless from claims by Reseller Customers and other third parties as
provided in Xxxx Atlantic's Tariffs.
21.7 Xxxx Atlantic's obligations under this Agreement shall extend
only to Reseller. Xxxx Atlantic shall have no liability under this
Agreement to Reseller Customers or to any other third party. Nothing in
this Agreement shall be deemed to create a third party beneficiary
relationship between Xxxx Atlantic and Reseller Customers or any other
third party.
21.8 Reseller shall indemnify, defend and hold harmless Xxxx Atlantic,
Xxxx Atlantic's Affiliates, and the directors, officers and employees of
Xxxx Atlantic and Xxxx Atlantic's Affiliates, from any claims, suits,
government proceedings, judgments, fines, liabilities, losses, damages,
costs or expenses (including reasonable attorneys fees) arising out of or
in connection with: (a) the failure of Reseller to transmit to Xxxx
Atlantic a request by a Reseller Customer to install, provide, change or
terminate, a Xxxx Atlantic Retail Telecommunications Service; (b) the
transmission by Reseller to Xxxx Atlantic of an Order to install, provide,
change or terminate, a Xxxx Atlantic Retail Telecommunications Service,
which Order was not authorized by the applicable Reseller Customer; (c)
erroneous or inaccurate information in an Order transmitted by Reseller to
Xxxx Atlantic; (d) the transmission by Reseller to Xxxx Atlantic of an
Order to change or terminate a Telecommunications Service provided to an
end user by Xxxx Atlantic or another Telecommunications Service provider,
or to install or provide a Telecommunications Service for an end user,
which Order was not authorized by the applicable end user; (e) the
transmission by Reseller to Xxxx Atlantic of an Order to select, change or
reassign a telephone number for an end user, which Order was not authorized
by the applicable end user; (f) the transmission by Reseller to Xxxx
Atlantic of an Order to select a Telephone Exchange Service provider for an
end user, or to change or terminate an end user's selection of a Telephone
Exchange Service provider, which Order was not authorized by the applicable
end user in the manner required by Applicable Law (or, in the absence of
such Applicable Law, in the manner required by the rules and procedures in
47 CFR (S) 64.1100); (g) access to, or use or disclosure of, Customer
Information or Xxxx Atlantic OSS Information by Reseller or Reseller's
employees, Agents or contractors; (h) the failure of Reseller to transmit,
or to transmit in a timely manner, E911/911 information to Xxxx Atlantic;
(i) erroneous or inaccurate E911/911 information transmitted by Reseller to
Xxxx Atlantic; (j) any information provided by Reseller for inclusion in
Xxxx Atlantic's LIDB; or, (k) the marketing, advertising or sale of
Reseller's services and/or products (including, but not limited to, resold
Xxxx Atlantic Retail Telecommunications Services), or the billing or
collection of charges for Reseller's services and/or products (including,
but not limited to, resold Xxxx Atlantic Retail Telecommunications
Services). For the purposes of Section 21.8(b), (d) and (e), an Order
shall be deemed not to have been authorized by a Reseller Customer or end
user if Applicable Law and/or this Agreement required such authorization to
be obtained in a particular manner, and Reseller did not obtain the
authorization in the manner required by Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
----------------------
-16-
Except as otherwise expressly provided in this Agreement, each of
the remedies provided under this Agreement is cumulative and is in addition
to any other remedies that may be available under this Agreement or at law
or in equity.
23. NOTICES
-------
All notices and other communications under this Agreement shall
be deemed effective upon receipt by the Party being notified, provided such
notices or communications are in writing and are sent by certified or
registered mail, return receipt requested, or by a reputable private
delivery service which provides a record of delivery, and addressed as
shown below:
To Xxxx Atlantic:
Xxxx Atlantic - Delaware, Inc.
c/x Xxxx Atlantic Network Services, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Director, Resale
Initiatives
To Reseller: VIC-RMTS-DC,L.L.C.
d/b/a OnePoint Communications
c/o Corporation Trust Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with this Section 23.
24. OPTION TO OBTAIN XXXX ATLANTIC SERVICE UNDER OTHER AGREEMENTS
-------------------------------------------------------------
24.1 If, at any time while this Agreement is in effect, Xxxx Atlantic
is a party to an agreement with a Telecommunications Carrier other than
Reseller ("Third-Person Telecommunications Carrier) to provide Xxxx
Atlantic Services to the Third-Person Telecommunications Carrier, which
agreement has been approved by the Commission pursuant to 47 U.S.C. (S)
252, upon request by Reseller, Xxxx Atlantic, to the extent required by
Applicable Law (including, but not limited to 47 U.S.C. (S) 252(i)), shall
make available to Reseller any Xxxx Atlantic Service offered by Xxxx
Atlantic under the agreement with the Third-Person Telecommunications
Carrier upon the same terms and conditions (including prices) provided in
the agreement with the Third-Person Telecommunications Carrier, but (except
as otherwise expressly agreed in writing by the Parties) only on a
prospective basis. Following such request by Reseller and prior to
provision of the Xxxx Atlantic Service by Xxxx Atlantic to Reseller
pursuant to the terms and conditions
-17-
(including prices) of the Third-Person Telecommunications Carrier
agreement, this Agreement shall be amended to incorporate the terms and
conditions (including prices) from the Third-Person Telecommunications
Carrier agreement applicable to the Xxxx Atlantic Service Reseller has
elected to purchase pursuant to the terms and conditions (including prices)
of the Third-Person Telecommunications Carrier agreement. Except as
otherwise expressly agreed in writing by the Parties, the amendment shall
apply on a prospective basis only and shall not apply with regard to any
Xxxx Atlantic Service provided by Xxxx Atlantic to Reseller prior to the
effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Xxxx Atlantic, Reseller shall be liable for
the non-recurring charges associated therewith, as well as for any
termination charges associated with the termination of existing facilities
or Xxxx Atlantic Services.
25. REGULATORY APPROVALS
--------------------
25.1 Within thirty (30) days after execution of this Agreement by the
Parties, Xxxx Atlantic shall file the Agreement with the Commission for
approval by the Commission.
25.2 Each Party shall exercise reasonable efforts (including
reasonably cooperating with the other Party) to secure approval of this
Agreement, and any amendment to this Agreement agreed to by the Parties,
from the Commission, the FCC, and other applicable governmental entities.
25.3 Upon request by Xxxx Atlantic, Reseller shall, at Reseller's
expense, provide reasonable, good-faith support and assistance to Xxxx
Atlantic in obtaining any governmental approvals necessary for (a) this
Agreement and any amendment to this Agreement agreed to by the Parties,
and/or (b) the provision of Xxxx Atlantic Services by Xxxx Atlantic to
Reseller. Without in any way limiting the foregoing, upon request by Xxxx
Atlantic, Reseller shall (a) join in petitions requesting approval of this
Agreement, or an amendment to this Agreement agreed to by the Parties, to
be filed with the Commission, the FCC, or other applicable governmental
entities, and (b) file other documents with and present testimony to the
Commission, the FCC, or other applicable governmental entities, requesting
approval of this Agreement or an amendment to this Agreement agreed to by
the Parties.
26. REGULATORY CONTINGENCIES
------------------------
26.1 Neither Party shall be liable for any delay or failure in
performance by it which results from requirements of Applicable Law, or
acts or failures to act of any governmental entity or official.
26.2 In the event that any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other provision of this Agreement,
and this Agreement shall be construed as if it did not contain such invalid
or unenforceable provision.
-18-
26.3 In the event that any legislative, regulatory, judicial or other
governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit Xxxx
Atlantic to continue to provide and Reseller to continue to purchase Xxxx
Atlantic Services, including, but not limited to, conducting good faith
negotiations to enter into a mutually acceptable modified or substitute
agreement, filing tariffs, or additional, supplemental or modified tariffs,
and making other required filings with governmental entities.
26.4 In the event of a governmental action described in Section 26.3,
above, to the extent permitted by Applicable Law, Xxxx Atlantic shall
continue to provide and Reseller shall continue to subscribe to, use and
pay for, any Xxxx Atlantic Services affected by the governmental action
until the action to be taken by Xxxx Atlantic and Reseller under Section
26.3, above, is taken and becomes effective in accordance with Applicable
Law. Such continued provision of and subscription to, use of and payment
for, the affected Xxxx Atlantic Services shall be in accordance with the
terms (including prices) of this Agreement, unless other terms, including
but not limited to the terms of a Xxxx Atlantic Tariff, are required by
Applicable Law.
26.5 If suspension or termination of the provision of any Xxxx
Atlantic Service is required by or as a result of a governmental action,
such suspension or termination shall not affect Reseller's subscription to,
use or obligation to pay for, other Xxxx Atlantic Services, unless such
suspension or termination has a material, adverse effect on Reseller's
ability to use the other Xxxx Atlantic Services.
26.6 If any of the Xxxx Atlantic Services to be provided by Xxxx
Atlantic pursuant to a tariff shall at any time become detariffed or
deregulated, Xxxx Atlantic may transfer the provisions of the tariff
relative to such Xxxx Atlantic Services to a Xxxx Atlantic "Guide for
Detariffed Services" or similar document, and such "Guide for Detariffed
Services" or similar document, as amended by Xxxx Atlantic from time-to-
time, shall become a part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
---------------------------
27.1 The relationship between the Parties under this Agreement shall
be that of independent contractors.
27.2 Nothing contained in this Agreement shall:
(a) make either Party the Agent or employee of the other Party;
(b) grant either Party the authority to enter into a contract on
behalf of, or otherwise legally bind, the other Party in any way;
(c) create a partnership, joint venture or other similar
relationship between the parties; or
-19-
(d) grant to Reseller a franchise, distributorship or similar
interest.
27.3 Each Party shall be solely responsible for selection,
supervision, termination, and compensation, of its respective employees,
Agents and contractors.
27.4 Each Party shall be solely responsible for payment of any Social
Security or other taxes which it is required by Applicable Law to pay in
conjunction with its employees, Agents or contractors, and for collecting
and remitting to applicable taxing authorities any taxes which it is
required by Applicable Law to collect from its employees, Agents or
contractors.
27.5 The relationship of the Parties under this Agreement is a non-
exclusive relationship. Xxxx Atlantic shall have the right to provide
services offered by Xxxx Atlantic under this Agreement to persons other
than Reseller. Reseller shall have the right to purchase services that may
be purchased by Reseller under this Agreement from persons other than Xxxx
Atlantic.
28. RESELLER'S PROVISION OF SERVICE
-------------------------------
28.1 Prior to providing Xxxx Atlantic Retail Telecommunications
Services purchased by Reseller under this Agreement to Reseller Customers,
Reseller shall obtain from the Commission, the FCC, and any other
applicable governmental entities, any certificates or other authorizations
required by Applicable Law for Reseller to provide Telecommunications
Services. Reseller shall promptly notify Xxxx Atlantic in writing of any
governmental action which suspends, cancels or withdraws any such
certificate or authorization, or otherwise limits or affects Reseller's
right to provide Telecommunications Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a)
file with the Commission, the FCC, and/or other applicable governmental
entities, the tariffs, arrangements and other documents that set forth the
terms, conditions and prices under which Reseller provides
Telecommunications Services; and, (b) make available for public inspection,
the tariffs, arrangements and other documents that set forth the terms,
conditions and prices under which Reseller provides Telecommunications
Services.
29. RESELLER'S RESALE AND USE OF SERVICE
------------------------------------
29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Xxxx Atlantic's Tariffs) regarding resale
or use of Xxxx Atlantic Services, including, but not limited to, any
restrictions on resale or use of Xxxx Atlantic Services.
29.2 Without in any way limiting Section 29.1, (a) Reseller shall not
resell residential service to persons not eligible to subscribe to such
service from Xxxx Atlantic (including, but not limited to, business
Reseller Customers and other nonresidential Reseller Customers), and (b)
Reseller shall not resell Lifeline or other means-tested service offerings,
or grandfathered or discontinued service offerings, to persons not eligible
to subscribe to such service offerings from Xxxx Atlantic.
-20-
29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Xxxx Atlantic's Tariffs applicable
to their use of Xxxx Atlantic Retail Telecommunications Services.
29.4 Reseller shall comply with Applicable Law, and Xxxx Atlantic's
procedures, for handling requests from law enforcement and other government
agencies for service termination, assistance with electronic surveillance,
and provision of information.
30. RESPONSIBILITY FOR CHARGES
--------------------------
30.1 Reseller shall be responsible for and pay all charges for any
Xxxx Atlantic Service provided by Xxxx Atlantic to Reseller, whether the
Xxxx Atlantic Service is ordered, activated or used by Reseller, a Reseller
Customer, or another person.
30.2 In addition to the charges for Xxxx Atlantic Services, Reseller
agrees to pay any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
Xxxx Atlantic, or provided by persons other than Xxxx Atlantic and billed
for by Xxxx Atlantic, that are ordered, activated or used by Reseller,
Reseller Customers or other persons, through, by means of, or in
association with, Xxxx Atlantic Services provided by Xxxx Atlantic to
Reseller.
30.3 Reseller agrees to indemnify, defend and hold Xxxx Atlantic
harmless from, any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
persons other than Xxxx Atlantic that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or in
association with, Xxxx Atlantic Services provided by Xxxx Atlantic to
Reseller.
30.4 Without in any way limiting Reseller's obligations under Section
30.1, Section 30.2 and Section 30.3, Reseller shall pay, or collect and
remit to Xxxx Atlantic, without discount, all Subscriber Line Charges,
Federal Line Cost Charges, end user common line charges, and carrier
selection and change charges, associated with Xxxx Atlantic Services
provided by Xxxx Atlantic to Reseller.
30.5 Upon request by Reseller, Xxxx Atlantic will provide for use on
resold Xxxx Atlantic Retail Telecommunications Service dial tone lines
purchased by Reseller such Xxxx Atlantic Retail Telecommunications Service
call blocking services as Xxxx Atlantic provides to Xxxx Atlantic's own end
user retail Customers, where and to the extent Xxxx Atlantic provides such
Xxxx Atlantic Retail Telecommunications Service call blocking services to
Xxxx Atlantic's own end user retail Customers.
31. SECTION HEADINGS
----------------
The section headings in the Principal Document are for
convenience only and are not intended to affect the meaning or
interpretation of the Principal Document.
-21-
32. SERVICES NOT COVERED BY THIS AGREEMENT
--------------------------------------
32.1 This Agreement applies only to Xxxx Atlantic Services (as the
term "Xxxx Atlantic Service" is defined in Section 1.1.6) provided, or to
be provided, by Xxxx Atlantic to Reseller, as specified in Section 3. Any
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products, interconnected or used with Xxxx Atlantic
Services provided, or to be provided, by Xxxx Atlantic to Reseller)
provided, or to be provided, by Xxxx Atlantic to Reseller, which are not
subscribed to by Reseller under this Agreement, must be subscribed to by
Reseller separately, pursuant to other written agreements (including, but
not limited to, applicable Xxxx Atlantic Tariffs). Reseller shall use and
pay for any Telecommunications Services, facilities, equipment, software,
wiring, or other services or products, provided, or to be provided, by Xxxx
Atlantic to Reseller, which are not subscribed to by Reseller under this
Agreement, in accordance with such other written agreements (including, but
not limited to, applicable Xxxx Atlantic Tariffs).
32.2 Without in any way limiting Section 32.1 and without attempting
to list all Xxxx Atlantic products and services that are not subject to
this Agreement, the Parties agree that this Agreement does not apply to the
purchase by Reseller of the following Xxxx Atlantic services and products:
except as expressly stated in the Principal Document, exchange access
services as defined in Section 3(16) of the Act, 47 U.S.C. (S) 153(16)
(including, but not limited to, primary interLATA toll carrier and primary
intraLATA toll carrier choice or change); Xxxx Atlantic Answer Call, Xxxx
Atlantic Answer Call Plus, Xxxx Atlantic Home Voice Mail, Xxxx Atlantic
Home Voice Mail Plus, Xxxx Atlantic Voice Mail, Xxxx Atlantic Basic
Mailbox, Xxxx Atlantic OptiMail Service, and other voice mail, fax mail,
voice messaging, and fax messaging, services; Xxxx Atlantic Optional Wire
Maintenance Plan; Xxxx Atlantic Guardian Enhanced Maintenance Service; Xxxx
Atlantic Sentry I Enhanced Maintenance Service; Xxxx Atlantic Sentry II
Enhanced Maintenance Service; Xxxx Atlantic Sentry III Enhanced Maintenance
Service; Xxxx Atlantic Call 54 Service; Xxxx Atlantic Public Telephone
Service; customer premises equipment; Xxxx Atlantic telephone directory
listings offered under agreements or arrangements other than Xxxx Atlantic
Tariffs filed with the Commission; and, Xxxx Atlantic telephone directory
advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also agree
that this Agreement does not apply to the installation, inspection,
maintenance, repair, removal, or use of any facilities, equipment,
software, or wiring, located on Reseller's side of the Network Rate
Demarcation Point applicable to Reseller and does not grant to Reseller or
Reseller Customers a right to installation, inspection, maintenance,
repair, or removal, by Xxxx Atlantic, or use, by Reseller or Reseller
Customers, of any such facilities, equipment, software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree that
this Agreement does not apply to the purchase by Reseller of Audiotex
Services (including, but not limited to, Dial-It, 976, 915 and 556
services) for resale to Audiotex Service providers or other information
service providers. Xxxx Atlantic shall have the right (but not the
obligation) to block calls made to Audiotex Service numbers (including, but
not limited to, Dial-It numbers and 976, 915 and 556 numbers)
-22-
through Xxxx Atlantic Services purchased by Reseller under this Agreement.
Notwithstanding the foregoing, Reseller shall pay, without discount, any
charges for Audiotex Services (including, but not limited to, Dial-It, 976,
915 and 556 services) that are ordered, activated or used by Reseller,
Reseller Customers or other persons, through, by means of, or in
association with, Xxxx Atlantic Services provided by Xxxx Atlantic to
Reseller.
32.5 Nothing contained within this Agreement shall obligate Xxxx
Atlantic to provide any service or product which is not a Xxxx Atlantic
Service (including, but not limited to, the services listed in Sections
32.2, 32.3 and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Xxxx
Atlantic to provide a Xxxx Atlantic Service or any other service or product
to a Reseller Customer. Without in any way limiting the foregoing, except
as otherwise required by Applicable Law, Xxxx Atlantic reserves the right
to terminate provision of services and products (including, but not limited
to, Telecommunications Services and the services listed in Sections 32.2
and 32.3, above) to any person who ceases to purchase Xxxx Atlantic Retail
Telecommunications Service dial tone line service from Xxxx Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude or
limit Reseller's obligations and liabilities under Section 30, including,
but not limited to Reseller's obligations and liabilities to pay charges
for services and products as required by Section 30.
33. SERVICE QUALITY
---------------
Xxxx Atlantic Services provided by Xxxx Atlantic to Reseller
under this Agreement shall comply with the quality requirements for such
Xxxx Atlantic Services specified by Applicable Law (including, but not
limited to, any applicable provisions of 47 CFR (S)(S) 51.311 and
51.603(b)).
34. SINGLE POINT OF CONTACT
-----------------------
34.1 Reseller shall be the single point of contact for Reseller
Customers and other persons with regard to Telecommunications Services and
other services and products which they wish to purchase from Reseller or
which they have purchased from Reseller. Communications by Reseller
Customers and other persons with regard to Telecommunications Services and
other services and products which they wish to purchase from Reseller or
which they have purchased from Reseller, shall be made to Reseller, and not
to Xxxx Atlantic. Reseller shall instruct Reseller Customers and other
persons that such communications shall be directed to Reseller.
34.2 Without in any way limiting Section 34.1, requests by Reseller
Customers for information about or provision of Telecommunications Services
which they wish to purchase from Reseller, requests by Reseller Customers
to change, terminate, or obtain information about, assistance in using, or
repair or maintenance of, Telecommunications Services which they have
purchased from Reseller, and inquiries by Reseller Customers concerning
Reseller's bills, charges for Reseller's Telecommunications Services, and,
if the Reseller Customers receive dial tone line
-23-
service from Reseller, annoyance calls, shall be made by the Reseller
Customers to Reseller, and not to Xxxx Atlantic.
34.3 Reseller shall establish telephone numbers and mailing addresses
at which Reseller Customers and other persons may communicate with Reseller
and shall advise Reseller Customers and other persons who may wish to
communicate with Reseller of these telephone numbers and mailing addresses.
35. SURVIVAL
--------
The liabilities and obligations of a Party for acts or omissions
of the Party prior to the termination, cancellation or expiration of this
Agreement, the rights, liabilities and obligations of a Party under any
provision of this Agreement regarding indemnification or defense, Customer
Information, confidential information, or limitation or exclusion of
liability, the rights of Xxxx Atlantic and the liabilities and obligations
of Reseller under Section 18.1, and the rights, liabilities and obligations
of a Party under any provision of this Agreement which by its terms is
contemplated to survive (or be performed after) termination, cancellation
or expiration of this Agreement, shall survive termination, cancellation or
expiration of this Agreement.
36. TAXES
-----
36.1 With respect to any purchase of Xxxx Atlantic Services under this
Agreement, if any Federal, state or local government tax, fee, duty,
surcharge (including, but not limited to any E911/911, telecommunications
relay service, or universal service fund, surcharge), or other tax-like
charge (a "Tax") is required or permitted by Applicable Law to be collected
from Reseller by Xxxx Atlantic, then (a) to the extent required by
Applicable Law, Xxxx Atlantic shall xxxx Reseller for such Tax, (b)
Reseller shall timely remit such Tax to Xxxx Atlantic (including both Taxes
billed by Xxxx Atlantic and Taxes Reseller is required by Applicable Law to
remit without billing by Xxxx Atlantic), and (c) Xxxx Atlantic shall remit
such collected Tax to the applicable taxing authority.
36.2 With respect to any purchase of Xxxx Atlantic Services under this
Agreement, if any Tax is imposed by Applicable Law on the receipts of Xxxx
Atlantic, which Applicable Law permits Xxxx Atlantic to exclude certain
receipts received from sales of Xxxx Atlantic Services for resale by
Reseller, such exclusion being based on the fact that Reseller is also
subject to a Tax based upon receipts ("Receipts Tax"), then Reseller (a)
shall provide Xxxx Atlantic with notice in writing in accordance with
Section 36.7 of its intent to pay the Receipts Tax, and (b) shall timely
pay the Receipts Tax to the applicable taxing authority.
36.3 With respect to any purchase of Xxxx Atlantic Services under this
Agreement, that are resold by Reseller to a Reseller Customer, if any Tax
is imposed by Applicable Law on the Reseller Customer in connection with
the Reseller Customer's purchase of the resold Xxxx Atlantic Services which
Reseller is required to impose and/or collect from the Reseller Customer,
then Reseller (a) shall impose and/or collect such Tax from the Reseller
Customer, and (b) shall timely remit such Tax to the applicable taxing
authority.
-24-
36.4.1 If Xxxx Atlantic has not received an exemption certificate from
Reseller and fails to xxxx Reseller for any Tax as required by Section
36.1, then, as between Xxxx Atlantic and Reseller, (a) Reseller shall
remain liable for such unbilled Tax, and (b) Xxxx Atlantic shall be liable
for any interest and/or penalty assessed on the unbilled Tax by the
applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Xxxx Atlantic as required
by Section 36.1, then, as between Xxxx Atlantic and Reseller, Reseller
shall be liable for such uncollected Tax and any interest and/or penalty
assessed on the uncollected Tax by the applicable taxing authority.
36.4.3 If Xxxx Atlantic does not collect a Tax because Reseller has
provided Xxxx Atlantic with an exemption certificate which is later found
to be inadequate by the applicable taxing authority, then, as between Xxxx
Atlantic and Reseller, Reseller shall be liable for such uncollected Tax
and any interest and/or penalty assessed on the uncollected Tax by the
applicable taxing authority.
36.4.4 Except as provided in Section 36.4.5, if Reseller fails to pay
the Receipts Tax as required by Section 36.2, then, as between Xxxx
Atlantic and Reseller, (a) Xxxx Atlantic shall be liable for any Tax
imposed on Xxxx Atlantic's receipts, (b) Reseller shall be liable for any
interest and/or penalty imposed on Xxxx Atlantic with respect to the Tax on
Xxxx Atlantic's receipts, and (c) Reseller shall be liable for any Tax
imposed on Reseller's receipts and any interest and/or penalty assessed by
the applicable taxing authority on Reseller with respect to the Tax on
Reseller's receipts.
36.4.5 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to, a discount
provided for in Exhibit II, Section 1.1) represents Tax savings to Xxxx
Atlantic which it was anticipated Xxxx Atlantic would receive, because it
was anticipated that receipts from sales of Xxxx Atlantic Services, that
would otherwise be subject to a Tax on such receipts, could be excluded
from such Tax under Applicable Law because the Xxxx Atlantic Services would
be sold to Reseller for resale, and Xxxx Atlantic is, in fact, required by
Applicable Law to pay such Tax on receipts from sales of Xxxx Atlantic
Services to Reseller, then, as between Xxxx Atlantic and Reseller, (a)
Reseller shall be liable for, and shall indemnify and hold harmless Xxxx
Atlantic against (on an after-tax basis), any such Tax, and (b) Reseller
shall be liable for, and shall indemnify and hold harmless Xxxx Atlantic
against (on an after-tax basis), any interest and/or penalty assessed by
the applicable taxing authority on either Reseller or Xxxx Atlantic with
respect to the Tax on Xxxx Atlantic's receipts.
36.4.6 If Reseller fails to impose and/or collect any Tax from Reseller
Customers as required by Section 36.3, then, as between Xxxx Atlantic and
Reseller, Reseller shall remain liable for such uncollected Tax and any
interest and/or penalty assessed on such uncollected Tax by the applicable
taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Xxxx
Atlantic Services attributable to anticipated Tax savings by Xxxx Atlantic,
or is required to impose on and/or collect from Reseller Customers,
Reseller agrees
-25-
to indemnify and hold Xxxx Atlantic harmless on an after-tax basis for any
costs incurred by Xxxx Atlantic as a result of actions taken by the
applicable taxing authority to recover the Tax from Xxxx Atlantic due to
failure of Reseller to timely remit the Tax to Xxxx Atlantic, or timely
pay, or collect and timely remit, the Tax to the taxing authority.
36.5 If either Party is audited by a taxing authority, the other Party
agrees to reasonably cooperate with the Party being audited in order to
respond to any audit inquiries in a proper and timely manner so that the
audit and/or any resulting controversy may be resolved expeditiously.
36.6.1 If Applicable Law clearly exempts a purchase of Xxxx Atlantic
Services under this Agreement from a Tax, and if such Applicable Law also
provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller complies with such procedure, Xxxx Atlantic
shall not collect such Tax during the effective period of the exemption.
Such exemption shall be effective upon receipt of the exemption certificate
or affidavit in accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Xxxx Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Xxxx Atlantic shall not collect such Tax if
Reseller (a) furnishes Xxxx Atlantic with a letter signed by an officer of
Reseller requesting an exemption and citing the provision in the Applicable
Law which clearly allows such exemption, and (b) supplies Xxxx Atlantic
with an indemnification agreement, reasonably acceptable to Xxxx Atlantic,
which holds Xxxx Atlantic harmless on an after-tax basis with respect to
forbearing to collect such Tax.
36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall be made in writing and shall be sent by
certified or registered mail, return receipt requested, or by a reputable
private delivery service which provides a record of delivery, to the
addressee stated in Section 23 at the address stated in Section 23 and to
the following:
To Xxxx Atlantic: Tax Administration
Xxxx Atlantic Network Services, Inc.
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
To Reseller: VIC-RMTS-DC, L.L.C.
d/b/a OnePoint Communications
0000 Xxxxxxxxx Xxxxxx XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx XxXxxx, Controller
Tel: (000) 000-0000
Fax: (202) 895-250l
-26-
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
36.7.
Any notice or other communication shall be deemed to be given
when received.
37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
---------------------------------------------
37.1 Without in any way limiting Reseller's obligations under Section
12, Reseller shall comply with Applicable Law with regard to end user
selection of a Telephone Exchange Service provider. Until the Commission or
the FCC adopts regulations and/or orders applicable to end user selection
of a Telephone Exchange Service provider, Reseller shall apply the rules
and procedures set forth in Section 64.1100 of the FCC Rules, 47 CFR (S)
64.1100, to the process for end user selection of a Telephone Exchange
Service provider (including, to end user selection of a Telephone Exchange
Service provider that occurs during any telemarketing contact with an end
user), and shall comply with such rules and procedures.
37.2 By submitting to Xxxx Atlantic an Order to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, Reseller represents and
warrants: (a) that Reseller has obtained authorization for such action from
the applicable end user; and, (b) that if Applicable Law and/or this
Agreement required such authorization to be obtained in a particular
manner, Reseller obtained the authorization in the manner required by
Applicable Law and this Agreement. Reseller shall upon request by Xxxx
Atlantic provide proof of such authorization (including, a copy of any
written authorization).
37.3 If Reseller submits an Order to Xxxx Atlantic to install,
provide, change or terminate a Telecommunications Service, to select,
change or reassign a telephone number, or to select, change or terminate an
end user's Telephone Exchange Service provider, and (a) when requested by
Xxxx Atlantic to provide a written document signed by the end user stating
the end user's Telephone Exchange Service provider selection, fails to
provide such document to Xxxx Atlantic, or (b) has not obtained
authorization for such installation, provision, selection, change,
reassignment or termination, from the end user in the manner required by
Applicable Law (or, in the absence of Applicable Law, in the manner
required by the rules and procedures in 47 CFR (S) 64.1100), Reseller shall
be liable to Xxxx Atlantic for all charges that would be applicable to the
end user for the initial installation, provision, selection, change,
reassignment or termination, of the end user's Telecommunications Service,
telephone number, and/or Telephone Exchange Service provider, and any
charges for restoring the end user's Telecommunications Service, telephone
number, and/or Telephone Exchange Service provider selection, to its end
user authorized condition.
38. TELEPHONE NUMBERS
-----------------
38.1 Reseller's use of telephone numbers shall be subject to
Applicable Law (including, but not limited to, the rules of the FCC, the
North American Numbering Council, and the North American Numbering Plan
Administrator), the applicable provisions of this Agreement (including,
-27-
but not limited to, this Section 38), and Xxxx Atlantic's practices and
procedures for use and assignment of telephone numbers, as amended from
time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who subscribes
to a Xxxx Atlantic Retail Telecommunications Service dial tone line from
either Reseller or Xxxx Atlantic changes the Telecommunications Carrier
from whom the end user subscribes for such dial tone line (including a
change from Xxxx Atlantic to Reseller, from Reseller to Xxxx Atlantic, or
from Reseller to a Telecommunications Carrier other than Xxxx Atlantic),
after such change, the end user may continue to use with the dial tone line
the telephone numbers which were assigned to the dial tone line by Xxxx
Atlantic immediately prior to the change.
38.3 Xxxx Atlantic shall have the right to change the telephone
numbers used by an end user if at any time: (a) the type or class of
service subscribed to by the end user changes; (b) the end user requests
service at a new location, that is not served by the Xxxx Atlantic switch
and the Xxxx Atlantic rate center from which the end user previously had
service; or, (c) continued use of the telephone numbers is not technically
feasible.
38.4 If service on a Xxxx Atlantic Retail Telecommunications Service
dial tone line subscribed to by Reseller from Xxxx Atlantic under this
Agreement is terminated, the telephone numbers associated with such dial
tone line shall be available for reassignment by Xxxx Atlantic to any
person to whom Xxxx Atlantic elects to assign the telephone numbers,
including, but not limited to, Xxxx Atlantic, Xxxx Atlantic end user retail
Customers, Reseller, or Telecommunications Carriers other than Xxxx
Atlantic and Reseller.
39. WARRANTIES
----------
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, XXXX ATLANTIC
MAKES NO WARRANTIES WITH RESPECT TO XXXX ATLANTIC SERVICES, WHETHER EXPRESS
OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE WARRANTIES SET FORTH IN
THIS AGREEMENT ARE XXXX ATLANTIC'S EXCLUSIVE WARRANTIES WITH RESPECT TO
XXXX ATLANTIC SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. XXXX ATLANTIC DISCLAIMS ANY
AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
-------------
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST
----------------------------------------------------
INFRINGEMENT, AND WARRANTIES ARISING BY TRADE CUSTOM, TRADE USAGE, COURSE
OF DEALING, OR OTHERWISE.
40. AUTHORIZATION
-------------
40.1.1 Xxxx Atlantic is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full
power and authority to execute and deliver this Agreement and to perform
the obligations hereunder on behalf of Xxxx Atlantic.
-28-
40.2 VIC-RMTS-DC, L.L.C. d/b/a OnePoint Communications is a limited
liability company, duly organized, validly existing and in good standing
under the laws of the State of Delaware and has full power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder.
41. PERFORMANCE REPORTING
---------------------
41.1 BA shall supply to Reseller quarterly performance reports on BA's
performance in the Commonwealth of Virginia. The reports shall contain the
information described in, and be substantially in the format of, the
documents attached hereto as Schedules 41A through 41D. The content of the
reports, and the definitions of the rows and columns in the reports are set
forth in Schedule 41E. The coverage of each report is set forth in its
title, with the additional explanations set forth in Schedule 41.
41.2 Notwithstanding subsection 41.1 above and in lieu of the
quarterly performance reports set forth in Schedules 41A through 41D, at
such time as BA makes available the Performance Monitoring Reports set
forth in the Memorandum Opinion and Order adopted by the FCC on August 14,
1997 (the "FCC Merger Order"), to other Telecommunications Carriers
purchasing Interconnection from BA, BA shall provide Reseller with the
Performance Monitoring Reports applicable to Reseller in accordance with
the requirements of said FCC Merger Order.
41.3 Reseller agrees that the performance information included in
these reports is confidential and proprietary to BA, and shall be used by
Reseller solely for internal performance assessment purposes, for purposes
of joint Reseller and BA assessments of service performance, and for
reporting to the Commission, the FCC, or courts of competent jurisdiction,
under cover of an agreed-upon protective order, for the sole purpose of
enforcing BA's obligations hereunder. Reseller shall not otherwise disclose
this information to third parties.
[Intentionally Left Blank]
-29-
IN WITNESS WHEREOF, intending to be legally bound, Reseller and Xxxx
Atlantic have caused this Agreement to be executed by their respective
authorized representatives.
VIC-RMTS-DC, L.L.C.,
d/b/a OnePoint Communications
BY: _________________________________
Signature
_________________________________
Name (Printed)
ITS: _________________________________
Title
XXXX ATLANTIC - DELAWARE, INC.
BY: _________________________________
Signature
_________________________________
Name (Printed)
TITLE: _________________________________
-30-
EXHIBIT I
XXXX ATLANTIC ANCILLARY SERVICES
--------------------------------
1. XXXX ATLANTIC OSS SERVICES
--------------------------
1.1 Definitions
-----------
As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Xxxx Atlantic Operations Support Systems" means Xxxx Atlantic
systems for pre-ordering, ordering, provisioning, maintenance and
repair, and billing.
1.1.2 "Xxxx Atlantic OSS Services" means access to Xxxx Atlantic
Operations Support Systems functions. The term "Xxxx Atlantic OSS
Services" includes, but is not limited to: (a) Xxxx Atlantic's
provision of Reseller Usage Information to Reseller pursuant to Exhibit
I, Section 1.3, below; and, (b) "Xxxx Atlantic OSS Information", as
defined in Exhibit I, Section 1.1.4, below.
1.1.3 "Xxxx Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Xxxx
Atlantic to provide Xxxx Atlantic OSS Services to Reseller.
1.1.4 "Xxxx Atlantic OSS Information" means any information accessed by,
or disclosed or provided to, Reseller through or as a part of Xxxx
Atlantic OSS Services. The term "Xxxx Atlantic OSS Information"
includes, but is not limited to: (a) any Customer Information related
to a Xxxx Atlantic Customer or a Reseller Customer accessed by, or
disclosed or provided to, Reseller through or as a part of Xxxx
Atlantic OSS Services; and, (b) any Reseller Usage Information (as
defined in Exhibit I, Section 1.1.5, below) accessed by, or disclosed
or provided to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for a Xxxx
Atlantic Retail Telecommunications Service purchased by Reseller under
this Agreement that Xxxx Atlantic would record if Xxxx Atlantic was
furnishing such Xxxx Atlantic Retail Telecommunications Service to a
Xxxx Atlantic end-user retail Customer.
1.2 Xxxx Atlantic OSS Services
--------------------------
1.2.1 Upon request by Reseller, Xxxx Atlantic shall provide to Reseller,
pursuant to Section 251(c)(3) of the Act, 47 U.S.C. (S) 251(c)(3), Xxxx
Atlantic OSS Services.
1.2.2 Subject to the requirements of Applicable Law, Xxxx Atlantic
Operations Support Systems, Xxxx Atlantic Operations Support Systems
functions, Xxxx Atlantic OSS Facilities, Xxxx Atlantic OSS
-31-
Information, and the Xxxx Atlantic OSS Services that will be offered
by Xxxx Atlantic, shall be as determined by Xxxx Atlantic. To the
extent required by Applicable Law and technically feasible, Xxxx
Atlantic will offer to Reseller the Xxxx Atlantic OSS Services that
Xxxx Atlantic offers, under agreements approved by the Commission
pursuant to 47 U.S.C. (S) 252, to other Telecommunications Carriers
that are engaged in the resale of Xxxx Atlantic Retail
Telecommunications Services pursuant to 47 U.S.C. (S) 251(c)(4).
Subject to the requirements of Applicable Law, Xxxx Atlantic shall
have the right to change Xxxx Atlantic Operations Support Systems,
Xxxx Atlantic Operations Support Systems functions, Xxxx Atlantic OSS
Facilities, Xxxx Atlantic OSS Information, and the Xxxx Atlantic OSS
Services, from time-to-time, without the consent of Reseller.
1.3 Reseller Usage Information
--------------------------
1.3.1 Upon request by Reseller, Xxxx Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C. (S)
251(c)(3), Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller through
the following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution System
("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore
Exchange Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit I,
Section 1.3.2(a) will be issued each day, Monday through Friday,
except holidays observed by Xxxx Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to the
requirements of Applicable Law, the manner in which, and the frequency
with which, Reseller Usage Information will be provided to Reseller
shall be determined by Xxxx Atlantic.
1.4 Prices
------
The prices for Xxxx Atlantic OSS Services shall be as stated in
Exhibit II, Section 2 following.
1.5 Access to and Use of Xxxx Atlantic OSS Facilities
-------------------------------------------------
1.5.1 Xxxx Atlantic OSS Facilities may be accessed and used by Reseller
only to the extent necessary for Reseller's access to and use of Xxxx
Atlantic OSS Services pursuant to this Agreement.
1.5.2 Xxxx Atlantic OSS Facilities may be accessed and used by Reseller
only to provide Telecommunications Services to Reseller Customers.
-32-
1.5.3 Reseller shall restrict access to and use of Xxxx Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any
right or license to grant sublicenses to other persons, or permission
to other persons (except Reseller's employees, Agents and contractors,
in accordance with Exhibit I, Section 1.5.7, below), to access or use
Xxxx Atlantic OSS Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Xxxx Atlantic
OSS Facilities (including, but not limited to, Xxxx Atlantic
software), (b) copy, remove, derive, reverse engineer, or decompile,
software from the Xxxx Atlantic OSS Facilities, or (c) obtain access
through Xxxx Atlantic OSS Facilities to Xxxx Atlantic databases,
facilities, equipment, software, or systems, which are not offered for
Reseller's use under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures
established by Xxxx Atlantic for access to and use of Xxxx Atlantic
OSS Facilities (including, but not limited to, Xxxx Atlantic practices
and procedures with regard to security and use of access and user
identification codes).
1.5.6 All practices and procedures for access to and use of Xxxx
Atlantic OSS Facilities, and all access and user identification codes
for Xxxx Atlantic OSS Facilities: (a) shall remain the property of
Xxxx Atlantic; (b) shall be used by Reseller only in connection with
Reseller's use of Xxxx Atlantic OSS Facilities permitted by this
Agreement; (c) shall be treated by Reseller as Confidential
Information of Xxxx Atlantic pursuant to Section 13; and, (d) shall be
destroyed or returned by Reseller to Xxxx Atlantic upon the earlier of
request by Xxxx Atlantic or the expiration or termination of this
Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and use
Xxxx Atlantic OSS Facilities only to the extent necessary for
Reseller's access to and use of the Xxxx Atlantic OSS Facilities
permitted by this Agreement. Any access to or use of Xxxx Atlantic OSS
Facilities by Reseller's employees, Agents, or contractors, shall be
subject to the provisions of this Agreement, including, but not
limited to, Section 13, Exhibit I, Section 1.5.6, and Exhibit I,
Section 1.6.3.3.
1.6 Xxxx Atlantic OSS Information
-----------------------------
1.6.1 Subject to the provisions of this Agreement and Applicable Law,
Xxxx Atlantic grants to Reseller a non-exclusive license to use Xxxx
Atlantic OSS Information.
1.6.2 All Xxxx Atlantic OSS Information shall at all times remain the
property of Xxxx Atlantic. Except as expressly stated in this
Agreement, Reseller shall acquire no rights in or to any Xxxx Atlantic
OSS Information.
1.6.3.1 The provisions of this Exhibit I, Section 1.6.3 apply to all Xxxx
Atlantic OSS Information, except (a) Reseller Usage Information, (b)
CPNI of Reseller, and (c) CPNI of a Xxxx Atlantic Customer or a
Reseller Customer, to the extent the Customer has authorized Reseller
to use the Customer Information.
-33-
1.6.3.2 Xxxx Atlantic OSS Information may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.6.3.3 Reseller shall treat Xxxx Atlantic OSS Information that is
designated by Xxxx Atlantic, through written or electronic notice
(including, but not limited to, through the Xxxx Atlantic OSS
Services), as "Confidential" or "Proprietary" as Confidential
Information of Xxxx Atlantic pursuant to Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement does
not grant to Reseller any right or license to grant sublicenses to
other persons, or permission to other persons (except Reseller's
employees, Agents or contractors, in accordance with Exhibit I,
Section 1.6.3.5), to access, use or disclose Xxxx Atlantic OSS
Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use and
disclose Xxxx Atlantic OSS Information only to the extent necessary
for Reseller's access to, and use and disclosure of, Xxxx Atlantic OSS
Information permitted by this Agreement. Any access to, or use or
disclosure of, Xxxx Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit I,
Section 1.6.3.3.
1.6.3.6 Reseller's license to use Xxxx Atlantic OSS Information shall
expire upon the earliest of: (a) the time when the Xxxx Atlantic OSS
Information is no longer needed by Reseller to provide
Telecommunications Services to Reseller Customers; (b) termination of
the license in accordance with this Agreement; or (c) expiration or
termination of this Agreement.
1.6.3.7 All Xxxx Atlantic OSS Information received by Reseller shall be
destroyed or returned by Reseller to Xxxx Atlantic, upon expiration,
suspension or termination of the license to use such Xxxx Atlantic OSS
Information.
1.6.4 Unless sooner terminated or suspended in accordance with this
Agreement (including, but not limited to, Section 17.1 and Exhibit I,
Section 1.7.1), Reseller's access to Xxxx Atlantic OSS Information
through Xxxx Atlantic OSS Services shall terminate upon the expiration
or termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Xxxx Atlantic shall
have the right (but not the obligation) to audit Reseller to ascertain
whether Reseller is complying with the requirements of Applicable Law
and this Agreement, with regard to Reseller's access to, and use and
disclosure of, Xxxx Atlantic OSS Information.
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or
Exhibit I, Section 1.6.5.1, Xxxx Atlantic shall have the right (but
not the obligation) to monitor Reseller's access to and use of Xxxx
Atlantic OSS Information which is made available by Xxxx Atlantic to
Reseller pursuant to this Agreement, to ascertain whether Reseller is
complying with the requirements of Applicable Law and this Agreement,
with regard to Reseller's access to, and use and disclosure of, such
Xxxx Atlantic OSS Information. The foregoing right shall include, but
not be limited to, the right (but not the
-34-
obligation) to electronically monitor Reseller's access to and use of
Xxxx Atlantic OSS Information which is made available by Xxxx Atlantic
to Reseller through Xxxx Atlantic OSS Facilities.
1.6.5.3 Information obtained by Xxxx Atlantic pursuant to this Exhibit I,
Section 1.6.5 shall be treated by Xxxx Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Xxxx
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Xxxx Atlantic pursuant to this
Exhibit I, Section 1.6.5 to enforce Applicable Law and/or Xxxx
Atlantic's rights under this Agreement.
1.6.6 Reseller acknowledges that the Xxxx Atlantic OSS Information, by
its nature, is updated and corrected on a continuous basis by Xxxx
Atlantic, and therefore that Xxxx Atlantic OSS Information is subject
to change from time to time.
1.7 Liabilities and Remedies
------------------------
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, shall be deemed a material breach of a material provision
of this Agreement by Reseller under Section 17.1 of this Agreement. In
addition, if Reseller or an employee, Agent or contractor of Reseller
at any time breaches a provision of Exhibit I, Section 1.5 or Exhibit
I, Section 1.6, and such breach continues for more than ten (10) days
after written notice thereof from Xxxx Atlantic, then, except as
otherwise required by Applicable Law, Xxxx Atlantic shall have the
right, upon notice to Reseller, to suspend the license to use Xxxx
Atlantic OSS Information granted by Exhibit I, Section 1.6.1 and/or
the provision of Xxxx Atlantic OSS Services, in whole or in part.
1.7.2 Reseller agrees that Xxxx Atlantic would be irreparably injured
by a breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by
Reseller or the employees, Agents or contractors of Reseller, and that
Xxxx Atlantic shall be entitled to seek equitable relief, including
injunctive relief and specific performance, in the event of any breach
of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by Reseller or the
employees, Agents or contractors of Reseller. Such remedies shall not
be deemed to be the exclusive remedies for a breach of Exhibit I,
Section 1.5 or Exhibit I, Section 1.6, but shall be in addition to any
other remedies available under this Agreement or at law or in equity.
1.8 Relation to Applicable Law
--------------------------
The provisions of Exhibit I, Sections 1.5, 1.6 and 1.7 shall be
in addition to and not in derogation of any provisions of Applicable
Law, including, but not limited to, 47 U.S.C. (S) 222, and are not
intended to constitute a waiver by Xxxx Atlantic of any right with
regard to protection of the confidentiality of the information of Xxxx
Atlantic or Xxxx Atlantic Customers provided by Applicable Law.
1.9 Cooperation
-----------
-35-
Reseller, at Reseller's expense, shall reasonably cooperate with
Xxxx Atlantic in using Xxxx Atlantic OSS Services. Such cooperation
shall include, but not be limited to, the following:
1.9.1 Upon request by Xxxx Atlantic, Reseller shall by no later than
the fifteenth (15th) day of each calendar month submit to Xxxx
Atlantic reasonable, good faith estimates (by central office or other
Xxxx Atlantic office or geographic area designated by Xxxx Atlantic)
of the volume of each Xxxx Atlantic Retail Telecommunications Service
for which Reseller anticipates submitting Orders in each week of the
next calendar month.
1.9.2 Upon request by Xxxx Atlantic, Reseller shall submit to Xxxx
Atlantic reasonable, good faith estimates of other types of
transactions or use of Xxxx Atlantic OSS Services that Reseller
anticipates.
1.9.3 Reseller shall reasonably cooperate with Xxxx Atlantic in
submitting Orders for Xxxx Atlantic Retail Telecommunications Services
and otherwise using the Xxxx Atlantic OSS Services, in order to avoid
exceeding the capacity or capabilities of such Xxxx Atlantic OSS
Services.
1.9.4 Reseller shall participate in cooperative testing of Xxxx
Atlantic OSS Services and shall provide assistance to Xxxx Atlantic in
identifying and correcting mistakes, omissions, interruptions, delays,
errors, defects, faults, failures, or other deficiencies, in Xxxx
Atlantic OSS Services.
1.10 Xxxx Atlantic Access to Information Related to Reseller Customers
---------
1.10.1 Xxxx Atlantic shall have the right to access, use and disclose
information related to Reseller Customers that is in Xxxx Atlantic's
possession (including, but not limited to, in Xxxx Atlantic OSS
Facilities) to the extent such access, use and/or disclosure has been
authorized by the Reseller Customer in the manner required by
Applicable Law.
1.10.2 Upon request by Xxxx Atlantic, Reseller shall negotiate in good
faith and enter into a contract with Xxxx Atlantic, pursuant to which
Xxxx Atlantic may obtain access to Reseller's operations support
systems (including, systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing) and information contained in such
systems, to permit Xxxx Atlantic to obtain information related to
Reseller Customers (as authorized by the applicable Reseller
Customer), to permit Customers to transfer service from one
Telecommunications Carrier to another, and for such other purposes as
may be permitted by Applicable Law.
2. XXXX ATLANTIC PRE-OSS SERVICES
------------------------------
2.1 As used in the Principal Document, "Xxxx Atlantic Pre-OSS
Service" means a service which allows the performance of an activity
which is comparable to an activity to be performed through a Xxxx
Atlantic OSS Service and which Xxxx Atlantic offers to provide to
Reseller prior to, or in lieu of, Xxxx Atlantic's provision of the
Xxxx Atlantic OSS Service to Reseller. The term "Xxxx Atlantic Pre-OSS
Service" includes, but is not limited to, the activity of placing
Orders for Xxxx Atlantic Retail Telecommunications Services through a
telephone facsimile ("Fax") communication.
-36-
2.2 Subject to the requirements of Applicable Law, the Xxxx Atlantic
Pre-OSS Services that will be offered by Xxxx Atlantic shall be as
determined by Xxxx Atlantic and Xxxx Atlantic shall have the right to
change Xxxx Atlantic Pre-OSS Services, from time-to-time, without the
consent of Reseller.
2.3 Subject to the requirements of Applicable Law, the prices for
Xxxx Atlantic Pre-OSS Services shall be as determined by Xxxx Atlantic
and shall be subject to change by Xxxx Atlantic from time-to-time.
2.4 The provisions of Exhibit I, Sections 1.5 through 1.9 shall also
apply to Xxxx Atlantic Pre-OSS Services. For the purposes of this
Exhibit I, Section 2.4: (a) references in Exhibit I, Sections 1.5
through 1.9 to Xxxx Atlantic OSS Services shall be deemed to include
Xxxx Atlantic Pre-OSS Services; and, (b) references in Exhibit I,
Sections 1.5 through 1.9 to Xxxx Atlantic OSS Information shall be
deemed to include information made available to Reseller through Xxxx
Atlantic Pre-OSS Services.
3. E911/911 SERVICES
-----------------
3.1 Where and to the extent that Xxxx Atlantic provides E911/911 call
routing to a Public Safety Answering Point ("PSAP") to Xxxx Atlantic's
own end user retail Customers, Xxxx Atlantic will provide to Reseller,
for resold Xxxx Atlantic Retail Telecommunications Service dial tone
lines, E911/911 call routing to the appropriate PSAP. Xxxx Atlantic
will provide Reseller Customer information for resold Xxxx Atlantic
Retail Telecommunications Service dial tone lines to the PSAP as that
information is provided to Xxxx Atlantic by Reseller where and to the
same extent that Xxxx Atlantic provides Xxxx Atlantic end user retail
Customer information to the PSAP. Xxxx Atlantic will update and
maintain, on the same schedule that Xxxx Atlantic uses with Xxxx
Atlantic's own end user retail Customers, for Reseller Customers
served by resold Xxxx Atlantic Retail Telecommunications Service dial
tone lines, the Reseller Customer information in Xxxx Atlantic's
E911/911 databases.
3.2 Reseller shall provide to Xxxx Atlantic the name, telephone
number and address, of all Reseller Customers, and such other
information as may be requested by Xxxx Atlantic, for inclusion in
E911/911 databases. Any change in Reseller Customer name, address or
telephone number information (including addition or deletion of a
Reseller Customer, or a change in Reseller Customer name, telephone
number or address), or in other E911/911 information supplied by
Reseller to Xxxx Atlantic, shall be reported to Xxxx Atlantic by
Reseller within one (1) day after the change.
3.3 To the extent that it is necessary (whether as a requirement of
Applicable Law or otherwise) for Reseller to enter into any agreements
or other arrangements with governmental entities (or governmental
entity contractors) related to E911/911 in order for Reseller to
provide Telecommunications Services, Reseller shall at Reseller's
expense enter into such agreements and arrangements.
4. Routing to Directory Assistance and Operator Services
-----------------------------------------------------
-37-
4.1 Upon request by Reseller, to the extent technically feasible,
Xxxx Atlantic will provide to Reseller the capability of rerouting to
Reseller's platforms directory assistance traffic (411 and 555-1212
calls) from Reseller Customers served by resold Xxxx Atlantic Retail
Telecommunications Service dial tone line service and operator
services traffic (O+ and 0-intraLATA calls) from Reseller Customers
served by resold Xxxx Atlantic Retail Telecommunications Service dial
tone line service.
4.2 A request for the rerouting service described in Exhibit I,
Section 4.1 must be made by Reseller (a) on a Xxxx Atlantic switch-by-
Xxxx Atlantic switch basis, and (b) at least ninety (90) days in
advance of the date that the rerouting capability is to be made
available in an applicable Xxxx Atlantic switch.
4.3 The prices for the rerouting service described in Exhibit I,
Section 4.1 shall be as stated in Exhibit II, Section 2.
5. LIDB/BVS
--------
5.1 Upon request by Reseller, Xxxx Atlantic will maintain information
(including calling card numbers and collect and xxxx to third party
billing restriction notation) for Reseller Customers who subscribe to
resold Xxxx Atlantic Retail Telecommunications Service dial tone line
service, in Xxxx Atlantic's Line Information Database ("LIDB"), where
and to the same extent that Xxxx Atlantic maintains information in
Xxxx Atlantic's LIDB for Xxxx Atlantic's own end-user retail
Customers.
5.2 If an end-user terminates Xxxx Atlantic Retail Telecommunications
Service dial tone line service provided to the end-user by Xxxx
Atlantic and, in place thereof, subscribes to Reseller for resold Xxxx
Atlantic Retail Telecommunications Service dial tone line service,
Xxxx Atlantic will remove from Xxxx Atlantic's LIDB any Xxxx Atlantic-
assigned telephone line calling card number (including area code)
("TLN") and Personal Identification Number ("PIN") associated with the
terminated Xxxx Atlantic Retail Telecommunications Service dial tone
line service. The Xxxx Atlantic-assigned TLN and PIN will be removed
from Xxxx Atlantic's LIDB within twenty-four (24) hours after Xxxx
Atlantic terminates the Xxxx Atlantic Retail Telecommunications
Service dial tone line service with which the number was associated.
Reseller may issue a new telephone calling card to such end-user,
utilizing the same TLN, and the same or a different PIN. Upon request
by Reseller, Xxxx Atlantic will enter such TLN and PIN in Xxxx
Atlantic's LIDB for calling card validation purposes.
5.3 Reseller information which is stored in Xxxx Atlantic's LIDB will
be subject, to the same extent as Xxxx Atlantic information stored in
Xxxx Atlantic's LIDB, to access and use by, and disclosure to, those
persons (including, but not limited to, Xxxx Atlantic) to whom Xxxx
Atlantic allows access to information which is stored in Xxxx
Atlantic's LIDB. Reseller hereby grants to Xxxx Atlantic and the
persons to whom Xxxx Atlantic allows access to information which is
stored in Xxxx Atlantic's LIDB, a royalty free license for such
access, use and disclosure.
5.4 Reseller shall obtain contractual agreements with each of the
persons authorized to have
-38-
access to Xxxx Atlantic's LIDB, under which Reseller will xxxx
Reseller Customers for calling card, third party, collect and other
calls validated by such persons through Xxxx Atlantic's LIDB.
5.5 Reseller warrants that the information provided by Reseller for
inclusion in Xxxx Atlantic's LIDB will at all times be current,
accurate and appropriate for use for billing validation services.
5.6 Upon request by Reseller, Xxxx Atlantic will provide to Reseller
Xxxx Atlantic Billing Validation Service, in accordance with Xxxx
Atlantic's Tariffs, for use by Reseller in connection with Xxxx
Atlantic Retail Telecommunications Services purchased and provided by
Reseller pursuant to this Agreement.
5.7 Information in Xxxx Atlantic's LIDB provided to Reseller shall be
treated by Reseller as Confidential Information of Xxxx Atlantic
pursuant to Section 13.
5.8 The prices for the services described in this Exhibit I, Section
5 shall be as stated in Exhibit II, Section 2.
-39-
EXHIBIT II
PRICES FOR XXXX ATLANTIC SERVICES
---------------------------------
1. XXXX ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
------------------------------------------------
1.1 Prices
------
The prices for Xxxx Atlantic Retail Telecommunications Services
shall be the Retail Prices stated in Xxxx Atlantic's Tariffs for such Xxxx
Atlantic Retail Telecommunications Services, less: (a) the applicable discount
stated in Xxxx Atlantic's Tariffs for Xxxx Atlantic Retail Telecommunications
Services purchased for resale pursuant to 47 U.S.C. (S) 251(c)(4); or, (b) in
the absence of an applicable Xxxx Atlantic Tariff discount for Xxxx Atlantic
Retail Telecommunications Services purchased for resale pursuant to 47 U.S.C.
(S) 251(c)(4), the applicable discount stated in Exhibit II, Attachment 1.
1.2 Inapplicability of Discounts
----------------------------
The discounts provided for in Exhibit II, Section 1.1, shall not
be applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90) days;
1.2.2 Charges for services and products provided by Xxxx Atlantic that
are not Xxxx Atlantic Retail Telecommunications Services, including, but not
limited to, Xxxx Atlantic Ancillary Services, and exchange access services as
defined in Section 3(16) of the Act, 47 U.S.C. (S) 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user common
line charges, carrier selection and change charges, and Audiotex Service
charges; and,
1.2.4 Any service or charge which the Commission, the FCC, or other
governmental entity of appropriate jurisdiction, determines is not subject to a
wholesale rate discount under 47 U.S.C. (S) 251(c)(4).
1.3 Discount Changes
----------------
1.3.1 Xxxx Atlantic shall change the discounts provided for in Exhibit II,
Section 1.1, above, from time-to-time, to the extent such change is required by
Applicable Law, including, but not limited to, by regulation or order of the
Commission, the FCC, or other governmental entity of appropriate jurisdiction.
1.3.2 Xxxx Atlantic shall have the right to change the discounts provided
for in Exhibit II, Section 1.1, above, from time-to-time, to the extent such
change is required, approved or permitted by Applicable Law, including, but not
limited to, by regulation or order of the Commission, the FCC, or other
governmental entity of appropriate jurisdiction.
-40-
1.4 Offers of Merchandise and Services which are not Xxxx Atlantic
Retail Telecommunications Services
Reseller shall not be eligible to participate in any Xxxx Atlantic
plan or program under which Xxxx Atlantic end user retail Customers may obtain
products or merchandise, or services which are not Xxxx Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Xxxx Atlantic Retail Telecommunications Services.
2. XXXX ATLANTIC ANCILLARY SERVICES
--------------------------------
2.1 Prices
------
2.1.1 The prices for Xxxx Atlantic Ancillary Services shall be as stated:
(a) in Xxxx Atlantic's Tariffs; or, (b) in the absence of an applicable Xxxx
Atlantic Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Xxxx Atlantic at any time offers a Xxxx Atlantic Ancillary
Service the prices for which are not stated in Xxxx Atlantic's Tariffs or
Exhibit II, Attachment 1, Xxxx Atlantic shall have the right to revise Exhibit
II, Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 Price Changes
-------------
2.2.1 Xxxx Atlantic shall change the prices for Xxxx Atlantic Ancillary
Services, from time-to-time, to the extent such change is required by Applicable
Law, including, but not limited to, by regulation or order of the Commission,
the FCC, or other governmental entity of appropriate jurisdiction.
2.2.2 Xxxx Atlantic shall have the right to change the prices for Xxxx
Atlantic Ancillary Services, from time-to-time, to the extent such change is
required, approved or permitted by Applicable Law, including, but not limited
to, by regulation or order of the Commission, the FCC, or other governmental
entity of appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Xxxx Atlantic shall
give Reseller thirty (30) days advance written notice of any increase in the
prices stated in Exhibit II, Attachment 1 for Xxxx Atlantic Ancillary Services.
-41-
SCHEDULE 41
PERFORMANCE REPORTING
The following additional descriptions shall apply to the Schedules 41A to
41D that are appended hereto:
Schedule 41A (Reseller-Specific) will report the statewide performance of
BA for the services provided to Reseller for the preceding calendar quarter for
the measures set forth in the report and defined in Schedule 41E. The dates in
the cells in Schedule 4lA are the dates of the beginning of the first calendar
quarter for which BA will be able to provide the information in that cell. Where
the date is accompanied by the letters "TBD" ("to be determined"), the date in
that cell is BA's then-current best estimate and target, but not yet a
commitment. BA will make its best efforts to meet the "TBD" dates and will
inform Reseller of any potential change in those dates if and when that
potential appears.
Schedule 41B (BA, including BA affiliates) will report statewide, system-
wide performance of BA, including for the services provided to affiliate
companies of BA, for the preceding calendar quarter for the measures set forth
in the report and defined in Schedule 41E. The dates in the cells in 41lB have
the same meanings as those described above for Schedule 41A.
Schedule 41C (Top 3 Carriers) will report the statewide performance of BA
for the services provided to the largest three telecommunications carriers
interconnecting with or purchasing services from BA pursuant to Sections 251 and
252 of the Act, combined, for the preceding calendar quarter for the measures
set forth in the report and defined in Schedule 41E. The dates in the cells in
Schedule 41C have the same meanings as those described above for Schedule 41A.
In order to preserve the confidentiality of other carriers' information, results
for a service (report column) will only be produced on this report if all three
carriers purchased the reported service in that calendar quarter.
Schedule 41.D (10 Largest Retail Customers) will, at such time as BA is
able to collect and report such information, and upon agreement regarding
compensation for the collection and reporting of such information, if any,
report statewide performance of BA for the services provided to its ten largest
retail customers for the preceding calendar quarter for the measures set forth
in the report and defined in Schedule 41E. The cells in Schedule 41D are all
marked "TBD" ("to be determined") without an accompanying estimated date because
BA has not yet determined that the collection and reporting of this information
is feasible, and if it is, when such reporting might be available. BA agrees,
however, that it will continue its best efforts assessment of the feasibility of
collecting and reporting this information and will promptly report to Reseller
the results of that assessment and the availability of such information at such
time as BA develops the capability to collect and report it for BA's own
internal use.
-42-
ATTACHMENT I
TO EXHIBIT II
XXXX ATLANTIC - DELAWARE, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES/1/
----------------------------------------
I. WHOLESALE DISCOUNT FOR RESALE OF XXXX ATLANTIC RETAIL TELECOMMUNICATIONS
SERVICES
Resale of Xxxx Atlantic Retail 20.0% or discount rate as established
Telecommunications Services if RESELLER by further Commission Order.
provides its own Operator Services.
Resale of Xxxx Atlantic Retail 16.0% or discount rate as established
Telecommunications Services if RESELLER by further Commission Order.
uses Xxxx Atlantic Operator Services.
___________________
/1/ All rates and charges set forth in this Exhibit II, Attachment 1 are
subject to change from time-to-time as provided in this Agreement, including,
but not limited to, in Section 2.3 and Exhibit II of this Agreement. The rates
and charges set forth in this Exhibit II, Attachment 1 shall apply until such
time as they are replaced by new rates as may be approved or allowed into effect
by the Commission from time to time, subject to a stay or other order issued by
any court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend this
Exhibit II, Attachment 1 to reflect the new approved rates.
Except for citations to generally available services and rates offered
under Xxxx Atlantic's Tariffs, all services and rates listed in this Exhibit II,
Attachment 1 are available to Reseller only in connection with the purchase and
resale of Xxxx Atlantic Retail Telecommunications Services by Reseller under
this Agreement. Adherence to this limitation shall be subject to reasonable
audit by Xxxx Atlantic.
The rates set forth in Sections II through IV of this Exhibit II,
Attachment 1, are in addition to, and not in lieu of, any other rates set forth
in this Agreement.
In addition to charges for Xxxx Atlantic Services, Reseller shall pay, or
collect and remit, applicable taxes and surcharges (including, but not limited
to, E911/911, telecommunications relay service, and universal service fund,
surcharges), as required by Applicable Law and this Agreement.
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING CHARGE:
------------------------------- ------------------ ---------------------
II. ACCESS TO OPERATION SUPPORT SYSTEMS
A. Pre-Ordering $.2256/Query Not Applicable
B. Ordering $2.734/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.2256/Query Not Applicable
2. EB/OSI Access $1.18/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $249.69/CD-ROM/Month Not Applicable
2. Daily Usage File
a) Existing Message Recording $.0002618/Message Not Applicable
b) Delivery of DUF
Data Tape $17.25/Tape $62.14/Programming Hour
Network Data Mover $.0000957/Message Not Applicable
CMDS $.0000957/Message $62.14/Programming Hour
c) DUF Transport
9.6 kb Communications Port $10.37/Month $6,185.60/Port
56 kb Communications Port $28.63/Month $25,600.86/Port
256 kb Communications Port $28.63/Month $42,613.35/Port
T1 Communications Port $363.65/Month $152,056.67/Port
Line Installation Not Applicable $62.14/Programming Hour/Port
Port Set-up Not Applicable $9.98/Port
Network Control Programming Coding Not Applicable $62.14/Programming Hour/Port
-2-
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING CHARGE:
------------------------------- ------------------ ---------------------
III. DIRECTORY ASSISTANCE/OPERATOR SERVICES
ROUTING
To RESELLER Platform $.073942/Line/Month $3.78/Line
To BA Platform for Re-Branding $.069/Call $3.78/Line
IV. LIDB VALIDATION
LIDB Point Codes Not Applicable $86.88/Point Code
Calling Card $.01551/Query Not Applicable
Billed Number Screening $.01551/Query Not Applicable
Storage of RESELLER's Data in LIDB Database Not Applicable $1,487.64/Service Establishment
-3-
