Exhibit 10.12
Note: Certain material, indicated by three asterisks (***), has been omitted
from this document pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission. The omitted
material has been filed separately with the Securities and Exchange
Commission.
CARRIER SERVICES SWITCHLESS AGREEMENT
BETWEEN
FRONTIER COMMUNICATIONS OF THE WEST, INC.
AND
ROCKY MOUNTAIN BROADBAND, INC.
TABLE OF CONTENTS
Section
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1. Services
2. Term Of The Agreement
3. Billing And Payment
4. Billing Disputes
5. Termination Rights
6. Taxes And Assessments
7. Warranties And Limitation Of Liability
8. Indemnification
9. Representation
10. Force Majeure
11. Waivers
12. Assignment
13. Confidentiality
14. Integration
15. Construction
16. Governing Law
17. Notices
18. Counterparts
19. Compliance With Laws
20. Third Parties
21. Survival Of Provisions
22. Unenforceable Provisions
Exhibits
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Exhibit A General And Service Definitions
Exhibit B Ancillary Fee Schedule
Exhibit C Call Detail Records; Order Processing Procedures;
Letter Of Agency Requirements
Exhibit D Dedicated Carrier Termination Schedule
Exhibit D(a) Carrier Domestic Termination Service
Exhibit D(b) Carrier Termination International Service
Exhibit D(c) Carrier Directory Assistance
Exhibit D(d) Carrier 800 Transport Service
Exhibit E Network Interconnection Schedule
Exhibit F National Origination Service (1+)
Exhibit G National Origination Service (800 Switched & Dedicated)
Exhibit H National Origination Service (Dedicated)
Exhibit I National Origination Service - (Switched International)
Exhibit I(a) National Origination Service - (Dedicated International)
Exhibit J Interlink Calling Card Service Schedule
Exhibit J(a) Interlink Calling Card Service
Exhibit J(b) Interlink Originating International Service
Exhibit J(c) Interlink Terminating International Service
Exhibit K Cashguard Schedule
Exhibit K(a) Cashguard
Exhibit K(b) Cashguard International
Exhibit L 800 PIN Service Schedule
Exhibit M -(a) SONET Private Line
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CARRIER SERVICE AGREEMENT
(Switchless)
This Carrier Service Agreement ("Agreement") is entered into between the
provider of service, Frontier Communications of the West, Inc. f/k/a West Coast
Telecommunications, Inc. on behalf of itself and its affiliates ("Frontier"), a
California corporation located at 000 Xxxx Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX
00000 and Rocky Mountain Broadband, Inc. ("RMBI"" or "Purchaser"), a Colorado
corporation with its principal place of business located at 0000 00xx Xxxxxx,
00xx Xxxxx, Xxxxxx, Xxxxxxxx 00000 (hereinafter, Frontier and RMBI may be
referred to in the aggregate as "Parties", and each singularly as a "Party".)
PURPOSE
The Parties are telecommunications carriers subject to the Communications Act of
1934, as amended, as well as the Telecommunications Act of 1996. RMBI desires to
purchase network transport and other telecommunication services from Frontier
for RMBI's resale to its business and residential customers. The Parties agree
as follows:
1. SERVICES:
(a) Frontier shall, in accordance with this Agreement, provide to
RMBI those services RMBI subscribes to hereunder as defined
and identified herein and on exhibits, schedules and other
attachments appended hereto and made a part of this Agreement
from time-to-time by the Parties (collectively, the
"Schedules"). All such services being provided under the
Schedules are collectively referred to as the "Services".
(b) RMBI shall provide Frontier with a forecast covering a good
faith estimate based on historical information (if available)
of the monthly traffic volume and geographic distribution for
an ordered Service. The estimate will be for the 3 calendar
month period following the desired activation date in a format
supplied or approved by Frontier. Frontier may request updated
forecasts on a reasonable basis. Forecasts do not constitute a
binding commitment on the part of RMBI. Provision of Services
is contingent on availability of Frontier facilities.
(c) Orders for Services will be transmitted and processed in
accordance with the procedures set out in Exhibit C attached
hereto and made a part hereof as the same may be modified from
time to time by Frontier upon written notice to RMBI.
2. TERM OF THE AGREEMENT:
(a) INITIAL TERM: This Agreement is effective and the Parties'
obligations commence upon the date of execution by Frontier
("Effective Date") and continues in effect for a period of
three (3) years ("Initial Term") from either the day Service
is first utilized by RMBI (as determined by Frontier's
records), or the 90th day after the Effective Date, whichever
date occurs first, such date known as the "Start of Service
Date".
(b) AUTOMATIC RENEWAL: This Agreement renews automatically for a 1
year period at the expiration of the Initial Term, unless
canceled in accordance with the termination provisions of this
Agreement ("Subsequent Term"). Each Subsequent Term renews
automatically for a 1 year period upon its expiration, unless
canceled in accordance with the termination provisions of this
Agreement.
(c) CANCELLATION: Either Party may terminate this Agreement upon
expiration of a term upon written notice given at least 90
days prior to expiration of the then current term.
3. BILLING AND PAYMENT: RMBI shall pay Frontier for the Services at the
rates and charges set out in the applicable Schedules. If RMBI is
required to pay an initial cash deposit or provide other assurance of
payment, then Frontier is not obligated to begin accepting orders or
providing Service until the deposit or other assurance of payment is
received.
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(a) RMBI shall provide Frontier security in the form of a
corporate guaranty from RMBI's parent, Rocky Mountain
Internet, Inc., in an amount of *** for a one (1) year period,
commencing with the Start of Service Date. At the end of the
one year period Frontier will re-evaluate RMBI's payment
history and financial condition. After such review, Frontier
may at it sole discretion either (i) require additional
security from RMBI, or (ii) require an extension and an
increase in Rocky Mountain Internet, Inc.'s corporate
guaranty, in accordance with subparagraph 3 (e).
(b) Frontier shall invoice RMBI via facsimile, with a follow-up
copy sent via regular U.S. mail or overnight delivery service,
on or about the fifth Business Day after the close of each
Billing Cycle for the Services and for any other sums due
Frontier ("Invoice"). Each Invoice details: (i) the amount due
Frontier, or the credit due RMBI, after a reconciliation
between the actual charges for the Services for the prior
Billing Cycle, and (ii) any other sums due Frontier.
(c) Each Invoice shall be paid by RMBI in immediately available
U.S. funds so that the payment is received by Frontier no
later than thirty (30) calendar days from the date of the
Invoice (the "Due Date"). Frontier agrees that (i) the Invoice
date will be the same day the Invoice is faxed to RMBI, and
(ii) the Invoice will be faxed on a Business Day. Any Invoice
not paid by the Due Date shall bear late payment fees at the
rate of 1-1/2% per month (or such lower amount as maybe
required by law) until paid.
(d) The RMBI facsimile number and contact for purposes of this
Section 3. are 000-000-0000, Attention: Xxxx Xxxxxxx. RMBI may
change the facsimile number and contact upon written notice to
Frontier.
(e) If RMBI is delinquent in payment of an Invoice and Frontier
does not have security from RMBI equal to RMBI's prior month's
usage charges, RMBI shall provide such additional security as
Frontier may reasonably request in writing.
(f) FRAUDULENT USAGE: Subject to the fraudulent usage provisions
of the Frontier InterLink Calling Card Services Schedule if
applicable, Frontier is not responsible for any fraudulent use
of Service. RMBI is solely responsible for all Services'
usage, fraudulent or otherwise. Claims of fraudulent usage
shall not constitute a valid basis for dispute of an Invoice.
Frontier will monitor End-User call activity for suspected
fraudulent use using the same procedures Frontier uses for its
own customers (except Frontier will contact RMBI in lieu of
the End-User when investigating suspected fraudulent use).
(g) RMBI agrees to pay to Frontier any and all local exchange
carrier ("LEC") assessed charges (other than access or other
LEC charges otherwise included under this Agreement) and
governmentally imposed charges levied upon Frontier as a
result of Services provided to RMBI, such as but not limited
to:
(i) primary Interexchange carrier ("PIC") change and
slamming related charges under Exhibit C, Section
III;
(ii) assessments by the National Exchange Carrier's
Association, Inc. (NECA) including but not limited
to, the Universal Service Fund/Lifeline Assistance
(USF/LA), the Telecommunications Relay Service (TRS)
Fund, and other assessments as may be assessed by
NECA in the future relative to the Services; (RMBI
understands that NECA charges are assessed on a per
ANI basis for Presubscribed End-User ANIs, whether
such ANIs are active or not);
(iii) assessments by regulatory agencies, including but not
limited to, the Federal Communications Commission
(FCC) and state Public Utility/Service Commissions;
(iv) charges or costs incurred by Frontier for FCC/PUC
mandated initiatives under the Telecommunications Act
of 1996, or otherwise, such as the "access reform"
and
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"payphone dial-around compensation" initiatives,
plus a reasonable fee for administration of those
initiatives applicable to the Services provided to
RMBI;
(v) when Frontier is acting as the RespOrg, National
Administrative Services Center assessments (including
any monthly recurring charges) for "800"/"888"
service installation;
(vi) applicable charges set out in the Schedule of
Ancillary Fees attached hereto as Exhibit B and made
a part hereof as the same may be modified from time
to time by Frontier upon written notice to RMBI.
(h) Beginning with RMBI's Billing Cycle that commences in the
tenth (10th) calendar month following the Start of Service
Date, RMBI is liable for an overall monthly minimum usage
charge for all Services *** "Minimum Charge"). At such time as
RMBI has paid an aggregate of *** in Services' usage charges
under this Agreement (inclusive of any paid Minimum Charge
shortfalls) the Minimum Charge shall be canceled for the
remaining term of this Agreement and, nothwithstanding the
provisions of Section 2., the Initial Term and any Subsequent
Term shall be deemed to have expired and either party may
thereafter terminate this Agreement upon 90 days prior written
notice. For example: assume a Start of Service Date of 3/28
with a seventh calendar month commencement; then, the Minimum
Charge would be effective with RMBI's October (April being the
first calendar month following the Start of Service Date and
October being the seventh such calendar month) into November
Billing Cycle. If the Start of Service Date is the first day
of a calendar month, then such calendar month shall be deemed
the first calendar month following the Start of Service Date
for purposes of this sub-paragraph. If RMBI's net charges
(after any discounts or credits) for the Services are less
than the Minimum Charge in any month, RMBI shall pay the
shortfall. If this Agreement is terminated prior to the time
the Minimum Charge becomes effective (other than termination
by RMBI for an uncured breach by Frontier), RMBI shall be
liable for the liquidated damages described in Section 5.(d).
(i) Frontier may revise the rates and monthly recurring and other
charges in this Agreement and the Schedules at any time upon
written notice to RMBI. Unless otherwise stated in the notice,
domestic rates are effective within thirty days and
international/offshore rates are effective within seven days
of the date of Frontier's written notice. If the effective
rate for a specific international country is increased
pursuant to this paragraph, then RMBI may cancel Service to
such country upon written notice to Frontier given within 30
days after RMBI's receipt of the rate increase notice.
Cancellation of Service to a country under this paragraph
includes a pro-rata reduction in the Minimum Charge to adjust
for the country to the extent severable by Frontier. The
pro-rata reduction in the Minimum Charge shall be calculated
by reducing the same in an amount equal to the charges to RMBI
for Services to the country being canceled in the month prior
to the month in which RMBI provides notice to Frontier of
cancellation. If there are no charges for Service to such
country in such prior month then the parties agree to in good
faith negotiate a reduced Minimum Charge which is reasonable
under the circumstances.
(j) RMBI agrees that any make up to minimum charges, shortfall
charges and surcharges for which it is liable under this
Agreement are based on agreed upon minimum commitments on its
part and corresponding rate concessions on Frontier's part,
and are not penalties or consequential or other damages under
Section 7.(b).
4. BILLING DISPUTES: The Parties agree that time is of the essence for
payment of all Invoices. RMBI shall provide written notice and
supporting documentation for any good-faith dispute it may have with an
Invoice ("Dispute") within 60 Business Days after RMBI's receipt. If
RMBI does not report a Dispute within the 60 Business Day period, RMBI
shall have waived its dispute rights for that Invoice. RMBI shall pay
disputed amounts, subject to resolution of the Dispute. Frontier will
use reasonable efforts to resolve timely Disputes within 30 Business
Days after its receipt of the Dispute notice. If a Dispute is not
resolved within the 30 Business Day period to RMBI's satisfaction, then
at RMBI's request the Dispute will be referred to an executive officer
of Frontier. If the Dispute is not resolved within 15 Business Days
after the referral, then either Party may commence an action in
accordance with Section 16., provided that the prevailing Party in such
action shall be entitled to payment of its reasonable attorney fees and
costs by the other Party.
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5. TERMINATION RIGHTS:
(a) REGULATORY CHANGES: If the FCC, a state PUC or a court of
competent jurisdiction issues a rule, regulation, law or order
which has the effect of canceling, changing, or superseding
any material term or provision of this Agreement
(collectively, "Regulatory Requirement"), then this Agreement
shall be deemed modified in such a way as the Parties mutually
agree is consistent with the form, intent and purpose of this
Agreement and is necessary to comply with such Regulatory
Requirement. Should the Parties not be able to agree on
modifications necessary to comply with a Regulatory
Requirement within 30 days after the Regulatory Requirement is
effective, then upon written notice either Party may, to the
extent practicable, terminate that portion of this Agreement
impacted by the Regulatory Requirement.
(b) Either Party may terminate this Agreement upon the other
Party's insolvency, dissolution or cessation of business
operations. Frontier may, upon 10 days prior written notice,
immediately terminate this Agreement for RMBI's failure to pay
any delinquent Invoice not properly disputed under Section 4,
or to maintain any other assurance of payment that may be
required hereunder.
(c) In the event of a breach of any material term or condition of
this Agreement by a Party (other than a failure to pay which
is covered under (b) above), the other Party may terminate
this Agreement upon 30 days written notice, unless the
breaching Party cures the breach during the 30 day period. A
breach that cannot be reasonably cured within a 30 day period
may be addressed by a written waiver of this paragraph signed
by the Parties.
(d) Upon any material breach by RMBI not cured after expiration of
all applicable notice and cure periods, Frontier may at its
sole option do any or all of the following:
(i) cease accepting or processing orders for Service and
suspend Service;
(ii) cease all electronically and manually generated
information and reports (including any CDR not paid
for by RMBI);
(iii) draw on any letter of credit, security deposit or
other assurance of payment and enforce any security
interest provided by RMBI;
(iv) terminate this Agreement and Service without
liability to Frontier;
(v) collect from RMBI as liquidated damages an amount
equal to the Minimum Charge times the number of
months remaining on the unexpired term of this
Agreement; and ,
(vi) pursue such other legal or equitable remedy or relief
as may be appropriate.
6. TAXES AND ASSESSMENTS:
RMBI is responsible for the collection and remittance of all
governmental assessments, surcharges and fees pertaining to
its resale of the Services (other than taxes on Frontier's net
income) (collectively, "Taxes"). RMBI shall provide Frontier
with, and maintain, valid and properly executed certificate(s)
of exemption for the Taxes, as applicable.
7. WARRANTIES AND LIMITATION OF LIABILITY:
(a) Service shall be provided by Frontier in accordance with the
applicable technical standards established for call transport
by the telecommunications industry. Frontier shall provide
Service in a quality and diligent manner consistent with
service Frontier provides to its other customers via a digital
fiber optic network with SS7 signaling (where available).
FRONTIER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO TRANSMISSION, EQUIPMENT OR SERVICE PROVIDED
HEREUNDER, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR
FUNCTION.
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(b) In no event shall either Party be liable to the other Party
for incidental and consequential damages, loss of goodwill,
anticipated profit, or other claims for indirect damages in
any manner related to this Agreement or the Services.
8. INDEMNIFICATION:
Each Party shall defend and indemnify the other Party and its
directors, officers, employees, representatives and agents from any and
all claims, taxes, penalties, interest, expenses, damages, lawsuits or
other liabilities (including without limitation, reasonable attorney
fees and court costs) relating to or arising out of (i) acts or
omissions in the operation of its business, and (ii) its breach of this
Agreement; provided, however, Frontier shall not be liable and shall
not be obligated to indemnify RMBI, and RMBI shall defend and indemnify
Frontier hereunder, for any claims by any third party, including
End-Users, with respect to services provided by RMBI which may
incorporate any of Frontier's services, except that RMBI shall not be
obligated to indemnify Frontier for any third party claims arising out
of Frontier's gross negligence or willful misconduct.
9. REPRESENTATION:
The Parties acknowledge and agree that the relationship between them is
solely that of independent contractors. Neither Party, nor their
respective employees, agents or representatives, has any right, power
or authority to act or create any obligation, express or implied, on
behalf of the other Party.
10. FORCE MAJEURE:
Other than with respect to failure to make payments due hereunder,
neither Party shall be liable under this Agreement for delays, failures
to perform, damages, losses or destruction, or malfunction of any
equipment, or any consequence thereof, caused or occasioned by, or due
to fire, earthquake, flood, water, the elements, labor disputes or
shortages, utility curtailments, power failures, explosions, civil
disturbances, governmental actions, shortages of equipment or supplies,
unavailability of transportation, acts or omissions of third parties,
or any other cause beyond its reasonable control.
11. WAIVERS:
Failure of either Party to enforce or insist upon compliance with the
provisions of this Agreement shall not be construed as a general waiver
or relinquishment of any provision or right under this Agreement.
12. ASSIGNMENT:
Neither Party may assign or transfer its rights or obligations under
this Agreement without the other Party's written consent, which consent
may not be unreasonably withheld, except that Frontier may assign this
Agreement to its parent, successor in interest, or an affiliate or
subsidiary without RMBI's consent. Any assignment or transfer without
the required consent is void.
13. CONFIDENTIALITY:
(a) Each Party agrees that all information furnished to it by the
other Party, or to which it has access under this Agreement,
shall be deemed the confidential and proprietary information
or trade secrets (collectively referred to as "Proprietary
Information") of the Disclosing Party and shall remain the
sole and exclusive property of the Disclosing Party (the Party
furnishing the Proprietary Information referred to as the
"Disclosing Party" and the other Party referred to as the
"Receiving Party"). Each Party shall treat the Proprietary
Information and the contents of this Agreement in a
confidential manner and, except to the extent necessary in
connection with the performance of its obligations under this
Agreement, neither Party may directly or indirectly disclose
the same to anyone other than its employees on a need to know
basis and who agree to be bound by the terms of this Section,
without the written consent of the Disclosing Party.
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(b) The confidentiality of obligations of this Section do not
apply to any portion of the Proprietary Information which is
(i) or becomes public knowledge through no fault of the
Receiving Party; (ii) in the lawful possession of Receiving
Party prior to disclosure to it by the Disclosing Party (as
confirmed by the Receiving Party's records); (iii) disclosed
to the Receiving Party without restriction on disclosure by a
person who has the lawful right to disclose the information;
or (iv) disclosed pursuant to the lawful requirements or
formal request of a governmental agency. If the Receiving
Party is requested or legally compelled by a governmental
agency to disclose any of the Proprietary Information of the
Disclosing Party, the Receiving Party agrees that it will
provide the Disclosing Party with prompt written notice of
such requests so that the Disclosing Party has the opportunity
to pursue its legal and equitable remedies regarding potential
disclosure.
(c) Each Party acknowledges that its breach or threatened breach
of this Section may cause the Disclosing Party irreparable
harm which would not be adequately compensated by monetary
damages. Accordingly, in the event of any such breach or
threatened breach, the Receiving Party agrees that equitable
relief, including temporary or permanent injunctions, is an
available remedy in addition to any legal remedies to which
the Disclosing Party may be entitled.
(d) Neither Party may use the name, logo, trade name, service
marks, trade marks, or printed materials of the other Party,
in any promotional or advertising material, statement,
document, press release or broadcast without the prior written
consent of the other Party, which consent may be granted or
withheld at the other Party's sole discretion.
(e) Notwithstanding the restrictions set forth in this Section,
Frontier may use End-User Information in furtherance of its
rights under Section 5.
14. INTEGRATION:
This Agreement and all Exhibits, Schedules and other attachments
incorporated herein, represent the entire agreement between the Parties
with respect to the subject matter hereof and supersede and merge all
prior agreements, promises, understandings, statements,
representations, warranties, indemnities and inducements to the making
of this Agreement relied upon by either Party, whether written or oral.
15. CONSTRUCTION:
The language used in this Agreement is deemed the language chosen by
the Parties to express their mutual intent. No rule of strict
construction shall be applied against either Party.
16. GOVERNING LAW:
This Agreement is subject the laws of New York, excluding its choice of
law principles. The Parties agree that any action to enforce or
interpret the terms of this Agreement shall be instituted and
maintained only in the Federal Court for the Western District of New
York, or if jurisdiction is not available in the Federal Court, then a
state court located in Rochester, New York. RMBI hereby consents to the
jurisdiction and venue of such courts and waives any right to object to
such jurisdiction and venue.
17. NOTICES:
All notices, including but not limited to, demands, requests and other
communications required or pemitted hereunder (not including Invoices)
shall be in writing and shall be deemed to be delivered when actually
received, whether upon personal delivery or if sent by facsimile, mail
or overnight delivery. All notices shall be addressed as follows, or to
such other address as each of the Parties hereto may notify the other:
Frontier Communications of the West, Inc. Rocky Mountain Broadband, Inc.
ATTN: Xxxxx X. Xxxxx, Mgr. Contract Svcs. ATTN: Xxxxx Loud, Vice President Operations
Xxxxx X. Xxxxxxxxxxx, VP Carrier Svcs.
000 X. Xxxxxx Xxxxxx 0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxxxx, XX 00000 Xxxxxx, XX 00000
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Facsimile #000-000-0000 Facsimile #000-000-0000
18. COUNTERPARTS:
This Agreement may be executed in several counterparts, each of which
shall constitute an original, but all of which shall constitute one and
the same instrument.
19. COMPLIANCE WITH LAWS:
During the term of this Agreement, the Parties shall comply with all
local, state and federal laws and regulations applicable to this
Agreement and to their respective businesses. Further, each Party shall
obtain, file and maintain any tariffs, permits, certifications,
authorizations, licenses or similar documentation as may be required by
the FCC, a state Public Utility or Service Commission, or any other
governmental body or agency having jurisdiction over its business. Upon
request, a Party will supply copies of such permits, certifications,
authorizations, licenses and similar documentation.
20. THIRD PARTIES:
The provisions of this Agreement and the rights and obligations created
hereunder are intended for the sole benefit of Frontier and RMBI, and
do not create any right, claim or benefit on the part of any person not
a Party to this Agreement, including End-Users.
21. SURVIVAL OF PROVISIONS:
Any obligations of the Parties relating to monies owed, as well as
those provisions relating to confidentiality, assurances of payment,
limitations on liability and indemnification, survive termination of
this Agreement.
22. UNENFORCEABILITY OF PROVISIONS:
The illegality or unenforceability of any provision of this Agreement
does not affect the legality or enforceability of any other provision
or portion. If any provision or portion of this Agreement is deemed
illegal or unenforceable for any reason, there shall be deemed to be
made such minimum change in such provision or portion as is necessary
to make it valid and enforceable as so modified. This Agreement is
voidable by Frontier if modified by RMBI without the written or
initialed consent of a Frontier Vice President.
By its signature below, each Party acknowledges and agrees that sufficient
allowance has been made for review of this Agreement by respective counsel and
that each Party has been advised as to its legal rights, duties and obligations
under this Agreement.
FRONTIER COMMUNICATIONS OF THE WEST, INC. ROCKY MOUNTAIN BROADBAND, INC.
By: By:
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Xxxxx X. Xxxxxxxxxxx, Vice President Xxxxxxx X. Xxxxxx, President & CEO
Frontier Carrier Services Group
Date: Date:
------------------------------------- ---------------------------------
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