EXHIBIT 10.17
Agreement Between BellSouth Telecommunications, Inc. and OnePoint
Communications - Georgia, LLC Regarding The Sale of BellSouth Telecommunications
Services to OnePoint Communications - Georgia, LLC For The Purposes of Resale
THIS AGREEMENT is by and between BellSouth Telecommunications, Inc.,
("BellSouth or Company"), a Georgia corporation, and OnePoint Communications -
Georgia, LLC ("Reseller"), a Delaware limited liability company, and shall be
deemed effective as of July 21, 1997.
WITNESSETH
WHEREAS, BellSouth is a local exchange telecommunications company
authorized to provide telecommunications services in the states of Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, and Tennessee; and
WHEREAS, Reseller is or seeks to become an alternative local exchange
telecommunications company authorized to provide telecommunications services in
the states of Florida, Georgia and North Carolina; and
WHEREAS, Reseller desires to resell BellSouth's telecommunications
services; and
WHEREAS, BellSouth has agreed to provide such services to Reseller for
resale purposes and pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual premises and
promises contained herein, BellSouth and Reseller do hereby agree as follows:
I. TERM OF THE AGREEMENT
A. The term of this Agreement shall be two years beginning July 21, 1997
and shall apply to all of BellSouth's serving territory as of January 1,
1996 in the state(s) of Florida, Georgia and North Carolina.
B. This Agreement shall be automatically renewed for two additional one
year periods unless either party indicates its intent not to renew the
Agreement. Notice of such intent must be provided, in writing, to the other
party no later than 60 days prior to the end of the then existing contract
period. The terms of this Agreement shall remain in effect after the term
of the existing agreement has expired and while a new agreement is being
negotiated.
C. The rates pursuant by which Reseller is to purchase services from
BellSouth for resale shall be at a discount rate off of the retail rate for
the telecommunications service. The discount rates shall be as set forth in
Exhibit A, attached hereto and incorporated herein by this reference. Such
discount shall reflect the costs avoided by BellSouth when selling a
service for wholesale purposes.
II. DEFINITION OF TERMS
A. CUSTOMER OF RECORD means the entity responsible for placing
application for service; requesting additions, rearrangements, maintenance
or discontinuance of service; payment in full of charges incurred such as
non-recurring, monthly recurring, toll, directory assistance, etc.
B. DEPOSIT means assurance provided by a customer in the form of cash,
surety bond or bank letter of credit to be held by the Company.
C. END USER means the ultimate user of the telecommunications services.
D. END USER CUSTOMER LOCATION means the physical location of the premises
where and end user makes use of the telecommunications services.
E. NEW SERVICES means functions, features or capabilities that are not
currently offered by BellSouth. This includes packaging of existing services or
combining a new function, feature or capability with an existing service.
F. OTHER LOCAL EXCHANGE COMPANY (OLEC) means a telephone company
certificated by the public service commissions of the Company's franchised area
to provide local exchange service within the Company's franchised area.
G. RESALE means an activity wherein a certificated OLEC, such as Reseller
subscribes to the telecommunications services of the Company and then reoffers
those telecommunications services to the public (with or without"adding value").
H. RESALE SERVICE AREA means the area, as defined in a public service
commission approved certificate of operation, within which an OLEC, such as
Reseller, may offer resold local exchange telecommunications service.
III. General Provisions
A. Reseller may resell the tariffed local exchange and toll
telecommunications services of BellSouth contained in the General Subscriber
Service Tariff and Private Line Service Tariff subject to the terms and
conditions specifically set forth herein. Notwithstanding the foregoing, the
exclusions and limitations on services available for resale will be as set forth
in Exhibit B, attached hereto and incorporated herein by this reference. In
addition Reseller may not purchase telecommunications services at the
wholesale rate for its own use.
BellSouth shall make available telecommunications services for resale at the
rates set forth in Exhibit A to this agreement and subject to the exclusions and
limitations set forth in Exhibit B to this agreement. It does not however waive
its rights to appeal or otherwise challenge any decision regarding resale that
resulted in the discount rates contained in Exhibit A or the exclusions and
limitations contained in Exhibit B. BellSouth reserves the right to pursue any
and all legal and/or equitable remedies, including appeals of any decisions. If
such appeals or challenges result in changes in the discount rates or exclusions
and limitations, the parties agree the appropriate modifications to this
Agreement will be made promptly to make its terms consistent with the outcome of
the appeal.
B. The provision of services by the Company to Reseller does not
constitute a joint undertaking for the furnishing of any service.
C. Reseller will be the customer of record for all services purchased
from BellSouth. Except as specified herein, the Company will take orders from,
xxxx and except payment from Reseller for all services.
D. Reseller will be the Company's single point of contact for all
services purchased pursuant to this Agreement. The Company shall have no contact
with the end user except to the extent provided for herein.
E. The Company will continue to xxxx the end user for any services that the
end user specifies it wishes to receive directly from the Company.
F. The Company maintains the right to serve directly any end user within the
service area of Reseller. The Company will continue to directly market its own
telecommunications products and services and in doing so may establish
independent relationships with end users of Reseller.
G. Neither Party shall interfere with the right of any person or entity to
obtain service directly from the other party.
H. Current telephone numbers may normally be retained by the end user.
However, telephone numbers are the property of the Company and are assigned to
the service furnished. Reseller has no property right to the telephone number or
any other call number designation associated with services furnished by the
Company, and no right to the continuance of service through any particular
central office. The Company reserves the right to change such numbers, or the
central office designation associated with such numbers, or both, whenever the
Company deems it necessary to do so in the conduct of its business.
L. The Company may provide any service or facility for which a charge is not
established herein, as long as it is offered on the same terms to Reseller.
J. Service is furnished subject to the condition that it will not be used for
any unlawful purpose.
K. Service will be discontinued if any law enforcement agency advises that the
service being used is in violation of the law.
L. The Company can refuse service when it has grounds to believe that service
will be used in violation of the law.
M. The Company accepts no responsibility to any person for any unlawful act
committed by Reseller or its end users as part of providing service to Reseller
for purposes of resale or otherwise.
N. The Company will cooperate fully with law enforcement agencies with
subpoenas and court orders for assistance with the Company's customers. Law
enforcement agency subpoenas and court orders regarding end users of Reseller
will be directed to Reseller. The Company will xxxx Reseller for implementing
any requests by law enforcement agencies regarding Reseller end users.
O. The characteristics and methods of operation of any circuits, facilities or
equipment provided by any person or entity other than the Company shall not:
1. Interfere with or impair service over any facilities of the Company,
its affiliates, or its connecting and concurring carriers involved in its
service:
2. Cause damage to their plant;
3. Impair the privacy of any communications; or
4. Create hazards to any employees or the public.
P. Reseller assumes the responsibility of notifying the Company regarding
less than standard operations with respect to services provided by
Reseller.
Q. Facilities and/or equipment utilized by BellSouth to provide service
to Reseller remain the property of BellSouth.
X. Xxxxx page directory listings will be provided in accordance with
regulations set forth in Section A6 of the General Subscriber Service
Tariff and will be available for resale.
S. BellSouth will provide customer record information to the Reseller
provided the Reseller has the appropriate Letter(s) of Authorization.
BellSouth may provide customer record information via one of the following
methods: US mail, fax, or by electronic interface. BellSouth will provide
customer record information via US mail or fax on an interim basis only.
Reseller agrees to compensate BellSouth for all BellSouth incurred
expenditures associated with providing such information to Reseller.
Reseller will adopt and adhere to the BellSouth guidelines associated with
each method of providing customer record information.
T. BellSouth's messaging services may be made available for resale
subject to the execution of BellSouth's Messaging Agreement and without the
wholesale discount.
U. BellSouth's Inside Wire Maintenance Plans may be made available for
resale at rates, terms and conditions as set forth by BellSouth and without
the wholesale discount.
IV. BELLSOUTH'S PROVISION OF SERVICES TO RESELLER
A. Reseller agrees that its resale of BellSouth services shall be as
follows:
1. The resale of telecommunications services shall be limited to
users and uses conforming to the class of service restrictions.
2. To the extent Reseller is a telecommunications carrier that serves
greater than 5 percent of the Nation's presubscribed access lines,
Reseller shall not jointly market its interLATA services with the
telecommunications services purchased from BellSouth pursuant to this
Agreement in any of the states covered under this Agreement. For the
purposes of this subsection, to jointly market means any
advertisement, marketing effort or billing in which the
telecommunications services purchased from BellSouth for purposes of
resale to customers and interLATA services offered by Reseller are
packaged, tied, bundled, discounted or offered together in any way to
the end user. Such efforts include, but are not limited to, sales
referrals, resale arrangements, sales agencies or billing agreements.
This subsection shall be void of no effect for a particular state
covered under this Agreement as of February 8, 1999 or on the date
BellSouth is authorized to offer interLATA services in that state,
whichever is earlier.
3. Hotel and Hospital PBX service are the only telecommunications
services available for resale to Hotel/Motel and Hospital end users,
respectively. Similarly, Access Line Service for Customer Provided
Coin Telephones is the only local service available for resale to
Independent Payphone Provider (IPP) customers. Shared Tenant Service
customers can only be sold those telecommunications services available
in the Company's A23 Shared Tenant Service Tariff.
4. Reseller is prohibited from furnishing both flat and measured rate
service on the same business premises to the same subscribers (end
users) as stated in A2 of the Company's Tariff except for backup
service as indicated in the applicable state tariff Section A3.
5. If telephone service is established and it is subsequently
determined that the class of service restriction has been violated,
Reseller will be notified and billing for that service will be
immediately changed to the appropriate class of service. Service
charges for changes between class of service, back billing, and
interest as described in this subsection shall apply at the Company's
sole discretion. Interest at a rate as set forth in Section A2 of the
General Subscriber Service Tariff and Section B2 of the Private Line
Service Tariff for the applicable state, compounded daily for the
number of days from the back billing date to and including the date
that Reseller actually makes the payment to the Company may be
assessed.
6. The Company reserves the right to periodically audit services
purchased by Reseller to establish authenticity of use. Such audit
shall not occur more than once in a calendar year. Reseller shall make
any and all records and data available to the Company or the Company's
auditors on a reasonable basis. The Company shall bear the cost of
said audit.
B. Resold services can only be used in the same manner as specified in
the Company's Tariff. Resold services are subject to the same terms and
conditions as are specified for such services when furnished to an
individual end user of the Company in the appropriate section of the
Company's Tariffs. Specific tariff features, e.g. a usage allowance per
month, shall not be aggregated across multiple resold services. Resold
services cannot be used to aggregate traffic from more than one end user
customer except as specified in Section A23, of the Company's Tariff
referring to Shared Tenant Service.
C. Reseller may resell services only within the specific resale service
area as defined in its certificate.
D. Telephone numbers transmitted via any resold service feature are
intended solely for the use of the end user of the feature. Resale of this
information is prohibited.
E. No patent, copyright, trademark or other proprietary right is
licensed, granted or otherwise transferred by this Agreement. Reseller is
strictly prohibited from any use, including but not limited to sales,
marketing or advertising, of any BellSouth name or trademark.
V. MAINTENANCE OF SERVICES
A. Reseller will adopt and adhere to the standards contained in the
applicable BellSouth Work Center Interface Agreement regarding maintenance
and installation of service.
B. Services resold under the Company's Tariffs and facilities and
equipment provided by the Company shall be maintained by the Company.
C. Reseller or its end users may not rearrange, move, disconnect, remove
or attempt to repair any facilities owned by the Company, other than by
connection or disconnection to any interface means used, except with the
written consent of the Company.
D. Reseller accepts responsibility to notify the Company of situations
that arise that may result in a service problem.
E. Reseller will be the Company's single point of contract for all repair
calls on behalf of Reseller's end users. THE PARTIES AGREE TO PROVIDE ONE
ANOTHER WITH TOLL-FREE CONTACT NUMBERS FOR SUCH PURPOSES.
F. Reseller will contact the appropriate repair centers in accordance
with procedures established by the Company.
G. For all repair requests, Reseller accepts responsibility for adhering
to the Company's prescreening guidelines prior to referring the trouble to
the Company.
H. The Company will xxxx Reseller for handling troubles that are found
not to be in the Company's network pursuant to its standard time and
material charges. The standard time and material charges will be no more
than what BellSouth charges to its retail customers for the same services.
I. The Company reserves the right to contact Reseller's customers, if
deemed necessary, for maintenance purposes. The Company shall not market
its own services during contact with Reseller's end users while performing
its obligations under this section.
VI. ESTABLISHMENT OF SERVICE
A. After receiving certification as a local exchange company from the
appropriate regulatory agency, Reseller will provide the appropriate
Company service center the necessary documentation to enable the Company to
establish a master account for Reseller. Such documentation shall include
the Application for Master Account, proof of authority to provide
telecommunications services, an Operating Company Number ("OCN") assigned
by the National Exchange Carriers Association ("NECA") and a tax exemption
certificate, if applicable. When necessary deposit requirements are met,
the Company will begin taking orders for the resale of service.
B. Service orders will be in a standard format designated by the Company.
C. When notification is received from Reseller that a current customer of
the Company will subscribe to Reseller's service, standard service order
intervals for the appropriate class of service will apply.
D. The Company will not require end user confirmation prior to
establishing service for Reseller's end user customer. Reseller must,
however, be able to demonstrate end user authorization upon request.
E. Reseller will be the single point of contact with the Company for all
subsequent ordering activity resulting in additions or changes to resold
services except that the Company will accept a request directly from the
end user for conversion of the end user's service from Reseller to the
Company or will accept a request from
another OLEC for conversion of the end user's service from the Reseller to
the other LEC. The Company will notify Reseller that such a request has
been processed.
F. if the Company determines that an unauthorized change in local service
to Reseller has occurred, the Company will reestablish service with the
appropriate local service provider and will assess Reseller as the OLEC
initiating the unauthorized change, the unauthorized change charge
described in F.C.C, Tariff No. 1. Section 13. Appropriate nonrecurring
charges, as set forth in Section A4. of the General Subscriber Service
Tariff, will also be assessed to Reseller. These charges can be adjusted if
Reseller provides satisfactory proof of authorization.
G. The Company may, in order to safeguard its interest, require Reseller
to make a deposit to be held by the Company as a guarantee of the payment
of rates and charges, unless satisfactory credit has already been
established. Any such deposit may be held during the continuance of the
service as security for the payment of any and all amounts accruing for the
service.
H. Such deposit may not exceed two months' estimated billing.
L. The fact that a deposit has been made in no way relieves Reseller from
complying with the Company's regulations as to advance payments and the
prompt payment of bills on presentation nor does it constitute a waiver or
modification of the regular practices of the Company providing for the
discontinuance of service for non-payment of any sums due the Company.
J. The Company reserves the right to increase the deposit requirements
when, in its sole judgment, the conditions justify such action.
K. In the event that Reseller defaults on its account, service to Reseller
will be terminated and any deposits held will be applied to its account.
L. In the case of a cash deposit, interest at the rate of six percent per
annum shall be paid to Reseller during the continuance of the deposit.
Interest on a deposit accrue annually and, if requested, shall be annually
credited to Reseller by the accrual date.
VII. PAYMENT AND BILLING ARRANGEMENTS
A. When the initial service is ordered by Reseller, the Company will
establish an accounts receivable master account for Reseller.
B. The Company shall xxxx Reseller on a current basis all applicable
charges and credits.
C. Payment of all charges will be the responsibility of Reseller. Reseller
shall make payment to the Company for all services billed. The Company is
not responsible for payments not received by Reseller from Reseller's
customer. The Company will not become involved in billing disputes that may
arise between Reseller and its customer. Payments made to the Company as
payment on account will be credited to an accounts receivable master
account and not to an end user's account.
D. The Company will render bills each month on established xxxx days for each
of Reseller's accounts.
E. The Company will xxxx Reseller, in advance, charges for all services to be
provided during the ensuing billing period except charges associated with
service usage, which charges will be billed in arrears. Charges will be
calculated on an individual end user account level, including, if applicable,
any charges for usage or usage allowances. BellSouth will also xxxx all
charges, including but not limited to 911 and E911 charges, telecommunications
relay charges, and franchise fees, TO RESELLER.
F. The payment will be due by the next xxxx date (i.e., same date in the
following month as the xxxx date) and is payable in immediately available funds.
Payment is considered to have been made when received by the Company.
If the payment due date falls on a Sunday or on a Holiday which is
observed on a Monday, the payment due date shall be the first non-Holiday day
following such Sunday or Holiday. If the payment due date falls on a Saturday
or on a Holiday which is observed on Tuesday, Wednesday, Thursday, or Friday,
the payment due date shall be the last non-Holiday day preceding such Saturday
or HOliday. If payment is not received by the payment due date, a late payment
penalty, as set forth in I. following, shall apply.
G. Upon proof of tax exempt certification from Reseller, the total amount
billed to Reseller will not include any taxes due from the end user. Reseller
will be solely responsible for the computation, tracking, reporting and payment
of all federal, state and/or local jurisdiction taxes associated with the
services resold to the end user.
H. As the customer of record, Reseller will be responsible for, and remit to
the Company, all charges applicable to its resold services for emergency
services (E911 and 911) and Telecommunications Relay Service (TRS) as well as
any other charges of a similar nature.
I. If any portion of the payment is received by the Company after the payment
due date as set forth preceding, or if any portion of the payment is received by
the Company in funds that are not immediately available to the Company, then a
late payment penalty shall be due to the Company. The late payment penalty shall
be the portion of the payment not received by the payment due date times a late
factor. The late factor shall be as set forth in Section A2 of the General
Subscriber Service Tariff and Section B2 of the Private Line Service Tariff.
J. Any switched access charges associated with interexchange carrier access to
the resold local exchange lines will be billed by, and due to, the Company. No
additional charges are to be assessed to Reseller.
K. The Company will not perform billing and collection services for Reseller
as a result of the execution of this Agreement. All requests for billing
services should be referred to the appropriate entity or operational group
within the Company.
L. Pursuant to 47 CFR Section 51.617, the Company will xxxx Reseller end user
common line charges identical to the end user common line charge the Company
bills its end users.
M. In general, the Company will not become involved in disputes between
Reseller and Reseller's end user customers over resold services. If a dispute
does arise that cannot be settled without the involvement of the Company,
Reseller shall contact the designated Service Center for resolution. The Company
will make every effort to assist in the resolution of the dispute and will work
with Reseller to resolve the matter in as timely a manner as possible. Reseller
may be required to submit documentation to substantiate the claim.
VIII. DISCONTINUANCE OF SERVICE
A. The procedures for discontinuing service to an end user are as
follows:
1. Where possible, the Company will deny service to Reseller's end
user on behalf of, and at the request of Reseller. Upon restoration of
the end user's service restoral charges will apply and will be the
responsibility of Reseller.
2. At the request of Reseller, the Company will disconnect a
Reseller end user customer.
3. All requests by Reseller for denial or disconnection of an end
user for nonpayment must be in writing.
4. Reseller will be made solely responsible for notifying the end
user of the proposed disconnection of the service.
5. The Company will continue to process calls made to the Annoyance
Call Center and will advise Reseller when it is determined that
annoyance calls are originated from one of their end user's locations.
The Company shall be indemnified, defended and held harmless by
Reseller and/or the end user against any claim, loss or damage arising
from providing this information to Reseller. It is the responsibility
of Reseller to take the corrective action necessary with its customers
who make annoying calls. Failure to do so will result in the Company's
disconnecting the end user's service.
B. The procedures for discontinuing service to Reseller are as follows:
1. The Company reserves the right to suspend or terminate service
for nonpayment or in the event of prohibited, unlawful or improper use
of the facilities or service, abuse of the facilities, or any other
violation or noncompliance by Reseller of the rules and regulations of
the Company's Tariffs.
2. If payment of account is not received by the xxxx xxx in the
month after the original xxxx xxx, the Company may provide written
notice to Reseller, that additional applications for service will be
refused and that any pending orders for service will not be completed
if payment is not received by the fifteenth day following the date of
the notice. If the Company does not refuse additional applications for
service on the date specified in the notice, and Reseller's
noncompliance continues, nothing contained herein shall preclude the
Company's right to refuse additional applications for service without
further notice.
3. If payment of account is not received, or arrangements made, by
the xxxx xxx in the second consecutive month, the account will be
considered in default and will be subject to denial or disconnection,
or both.
4. If Reseller fails to comply with the provisions of this
Agreement, including any payments to be made by it on the dates and
times herein specified, the Company may, on thirty days written notice
to the person designated by Reseller to receive notices of
noncompliance, discontinue the provision of existing services to
Reseller at any time thereafter. In the case of such discontinuance,
all billed charges, as well as applicable termination charges, shall
become due. If the Company does not discontinue the provision
of the services involved on the date specified in the thirty days
notice, and Reseller's noncompliance continues, nothing contained
herein shall preclude the Company's right to discontinue the provision
of the services to Reseller without further notice.
5. If payment is not received or arrangements made for payment by the
date given in the written notification, Reseller's services will be
discontinued. Upon discontinuance of service on a Reseller's account,
service to Reseller's end users will be denied. The Company will also
reestablish service at the request of the end or user Reseller upon
payment of the appropriate connection fee and subject to the Company's
normal application procedures. Reseller is solely responsible for
notifying the end user of the proposed disconnection of the service.
6. If within fifteen days after an end user's service has been denied
no contact has been made in reference to restoring service, the end
user's will be disconnected.
IX. LIABILITY
A. The liability of the Company for damages arising out of mistakes,
omissions, interruptions, preemptions, delays errors or defects in
transmission, or failures or defects in facilities furnished by the
Company, occurring in the course of furnishing service or other facilities
and not caused by the negligence of Reseller, or of the Company in failing
to maintain proper standards of maintenance and operation and to exercise
reasonable supervision shall in no event exceed an amount equivalent to the
proportionate charge to Reseller for the period of service during which
such mistake, omission, interruption, preemption, delay, error or defect in
transmission or defect or failure in facilities occur. The Company shall
not be liable for damage arising out of mistakes, omission, interruptions,
preemptions, delays, errors or defects in transmission or other injury,
including but not limited to injuries to persons or property from voltages
or currents transmitted over the service of the Company, (1) caused by
customer-provided equipment (except where a contributing cause is the
malfunctioning of a Company-provided connecting arrangement, in which event
the liability of the Company shall not exceed an amount equal to a
proportional amount of the Company billing for the period of service during
which such mistake, omission, interruption, preemption, delay, error,
defect in transmission or injury occurs), or (2) not prevented by customer-
provided equipment but which would have been prevented had Company-provided
equipment been used.
B. The Company shall be indemnified and saved harmless by Reseller
against any and all claims, actions causes of action, damages, liabilities,
or demands (including the costs, expenses and reasonable attorney's fees on
account thereof) of whatever kind or nature that may be made by any third
party as result of the Company's furnishing of service to Reseller.
C. The Company shall be indemnified, defended and held harmless by
Reseller and/or the end user against any claim, loss or damage arising from
the use of services offered for resale involving:
1. Claims for libel, slander, invasion of privacy or infringement of
copyright arising from Reseller's or end user's own communications.
2. Claims for patent infringement arising from acts combining or
using Company services in connection with facilities or equipment
furnished by the end user or Reseller.
3. All other claims arising out of an act or omission of Reseller or
its end user in the course of using services.
D. Reseller accepts responsibility for providing access for maintenance
purposes of any service resold under the provisions of this Tariff. The
Company shall not be responsible for any failure on the part of Reseller
with respect to any end user of Reseller.
X. TREATMENT OF PROPRIETARY AND CONFIDENTIAL INFORMATION
A. Both parties agree that it may be necessary to provide each other
during the term of this Agreement with certain confidential information,
including trade secret information, including but not limited to,
technical and business plans, technical information, proposals,
specifications, drawings, procedures, customer account data and like
information (hereinafter collectively referred to as "Information"). Both
parties agree that all Information shall either be in writing or other
tangible format and clearly marked with a confidential, private or
proprietary legend, or, when the Information is communicated orally, it
shall also be communicated that the Information is confidential, private
or proprietary. The Information will be returned to the owner within a
reasonable time. Both parties agree that the Information shall not be
copied or reproduced in any form. Both parties agree to receive such
information and not disclose such Information. Both parties agree to
protect the Information received from distribution, disclosure or
dissemination to anyone except employees of the parties with a need to
know such Information and which employees agree to be bound by the terms
of this Section. Both parties will use the same standard of care to
protect Information received as they would use to protect their own
confidential and proprietary Information.
B. Notwithstanding the foregoing, both parties agree that there will be
no obligation to protect any portion of the Information that is either;
1) made publicly available by the owner of the Information or lawfully
disclosed by a nonparty to this Agreement; 2) lawfully obtained from any
source other than the owner of the Information; or 3) previously known to
the receiving party without an obligation to keep it confidential.
XI. RESOLUTION OF DISPUTES
Except as otherwise stated in this Agreement, the parties agree that if
any dispute arises as to the interpretation of any provision of this Agreement
or as to the proper implementation of this Agreement, the parties will petition
the applicable state Public Service Commission for a resolution of the dispute.
However, each party reserves any rights it may have to seek judicial review of
any ruling made by that Public Service Commission concerning this Agreement.
XII. LIMITATION OF USE
The parties agree that this Agreement shall not be proffered by either
party in another jurisdiction as evidence of any concession or as a waiver of
any position taken by the other party in that jurisdiction or for any other
purpose.
XIII. WAIVERS
Any failure by either party to insist upon the strict performance by the
other party of any of the provisions of this Agreement shall not be deemed a
waiver of any of the provisions of this Agreement, and each party,
notwithstanding such failure, shall have the right thereafter to insist upon the
specific performance of any and all of the provisions of this Agreement.
XIV. GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Georgia, without regard to its
conflict of laws principles.
XV. ARM'S LENGTH NEGOTIATIONS
This Agreement was executed after arm's length negotiations between the
undersigned parties and reflects the conclusion of the undersigned that this
Agreement is in the best interests of all parties.
XVI. MORE FAVORABLE PROVISIONS
A. The parties agree that if --
1. the Federal Communications Commission ("FCC") or the Commission
finds that the terms of this Agreement are inconsistent in one or more
material respects with any of its or their respective decisions, rules
or regulations, or
2. the FCC or the Commission preempts the effect of this Agreement,
then, in either case, upon such occurrence becoming final and no
longer subject to administrative or judicial review, the parties shall
immediately commence good faith negotiations to conform this Agreement
to the requirements of any such decision, rule, regulation or
preemption. The revised agreement shall have an effective date that
coincides with the effective date of the original FCC or Commission
action giving rise to such negotiations. The parties agree that the
rates, terms and conditions of any new agreement shall not be applied
retroactively to any period to such effective date except to the
extent that such retroactive effect is expressly required by such FCC
or Commission decision, rule, regulation or preemption.
B. In the event that BellSouth, either before or after the effective date
of this Agreement, enters into an agreement with any other
telecommunications carrier (an "Other Resale Agreement") which provides for
the provision within the state(s) of Florida, Georgia and North Carolina of
any of the arrangements covered by this Agreement upon rates, terms or
conditions that differ in any material respect from the rates, terms and
conditions for such arrangements set forth in this Agreement ("Other
Terms"), BellSouth shall be deemed thereby to have offered such other
Resale Agreement to Reseller in its entirety. In the event that Reseller
accepts such offer, such Other Terms shall be effective between BellSouth
and Reseller as of the date on which Reseller accepts such offer.
C. In the event that after the effective date of this Agreement the FCC
or the Commission enters an order (a "Resale Order") requiring BellSouth to
provide within the state(s) of Florida, Georgia and North Carolina any of
the arrangements covered by this agreement upon Other Terms, then upon such
Resale Order becoming final and not subject to further administrative or
judicial review, BellSouth shall be deemed to have offered such
arrangements to Reseller upon such Other Terms, in their entirety, which
Reseller may only accept in their entirety, as provided in Section XVI.E.
In the event that Reseller accepts such offer, such Other Terms shall be
effective between BellSouth and Reseller as of the date on which Reseller
accepts such offer.
D. In the event that after the effective date of this Agreement BellSouth
files and subsequently receives approval for one or more intrastate tariffs
(each, a "Resale Tariff") offering to provide within the state(s) of
Florida, Georgia and North Carolina any of the arrangements covered by
this Agreement upon Other Terms, then upon such Resale Tariff becoming
effective, BellSouth shall be deemed thereby to have offered such
arrangements to Reseller upon such Other Terms, which Reseller may accept
as provided in Section XVI.E. In the event that Reseller accepts such
offer, such Other Terms shall be effective between BellSouth and Reseller
as of the date on which Reseller accepts such offer.
E. The terms of this Agreement, other than those affected by the Other
Terms accepted by Reseller, shall remain in full force and effect.
F. CORRECTIVE PAYMENT. In the event that --
1. BellSouth and Reseller revise this Agreement pursuant to Section
XVI.A, or
2. Reseller accepts a deemed offer of an Other Resale Agreement or
Other Terms, then BellSouth or Reseller, as applicable, shall make a
corrective payment to the other party to correct for the difference
between the rates set forth herein and the rates in such revised
agreement or Other Terms for substantially similar services for the
period from the effective date of such revised agreement or Other
Terms until the date that the parties execute such revised agreement
or Reseller accepts such Other Terms, plus simple interest at a rate
equal to the thirty (30) day commercial paper rate for high-grade,
unsecured notes sold through dealers by major corporations in
multiples of $1,000.00 as regularly published in The Wall Street
Journal.
XVII. NOTICES
A. Every notice, consent, approval, or other communications required or
contemplated by this Agreement shall be in writing and shall be delivered
in person or given by postage prepaid mail, address to:
BellSouth Telecommunications, Inc. OnePoint Communications - Georgia, LLC
OLEC Account Team Director - Carrier Services
0000 Xxxxxxxxx Xxxxxxx, Xxxx X0X0 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
or at such other address as the intended recipient previously shall have
designated by written notice to the other party. Copy will also be
provided to Reseller at the following address:
Mr. Xxxx Xxxxxxx
President - OnePoint Communications, LLC
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, XX 00000
B. Where specifically required, notices shall be certified or registered
mail. Unless otherwise provided in this Agreement, notice by mail shall
be effective on the date it is officially recorded as delivered by
return
receipt or equivalent, and in the absence of such record of delivery, it
shall be presumed to have been delivered the fifth day, or next business
day after the fifth day, after it was deposited in the mails.
XVIII. AMENDMENTS
This Agreement may be amended at any time upon written agreement of both
parties.
XIX. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding and supersedes prior
agreements between the parties relating to the subject matter contained herein
and merges all prior discussions between them, and neither party shall be bound
by any definition, condition, provision, representation, warranty, covenant or
promise other than as expressly stated in this Agreement or as is
contemporaneously or subsequently set forth in writing and executed by a duly
authorized officer or representative of the party to be bound thereby.
BELLSOUTH TELECOMMUNICATIONS, INC. RESELLER
BY: /s/ Xxxxx Xxxxxxx BY: /s/ Xxxxxxx X. Xxxxxxx
------------------------------- --------------------------------
SIGNATURE SIGNATURE
NAME: Xxxxx Xxxxxxx NAME: Xxxxxxx X. Xxxxxxx
----------------------------- ------------------------------
PRINTED NAME PRINTED NAME
TITLE: Director TITLE: President
---------------------------- -----------------------------
DATE: 7/30/97 DATE: JULY 21, 1997
----------------------------- ------------------------------
EXHIBIT "A"
APPLICABLE DISCOUNTS
The telecommunications services available for purchase by Reseller for the
purposes of resale to Reseller end users shall be available at the following
discount off of the retail rate.
DISCOUNT
--------
STATE RESIDENCE BUSINESS
----- --------- --------
ALABAMA 17% 17%
FLORIDA 21.83% 16.81%
GEORGIA 20.3% 17.3%
KENTUCKY 16.79% 15.54%
LOUISIANA* 20.72% 20.72%
MISSISSIPPI 15.75% 15.75%
NORTH CAROLINA 21.5% 17.6%
SOUTH CAROLINA 14.8% 14.8%
TENNESSEE** 16% 16%
* Effective as of the Commission's Order in the Louisiana Docket No. U-22020
dated November 12, 1996.
** The Wholesale Discount is set as a percentage off the tariffed rates. If OLEC
provides is own operator services and directory services, the discount shall be
21.56%. These rates are effective as of the Tennessee Regulatory Authority's
Order in Tennessee Docket No.90-01331 dated January 17, 1997.
EXHIBIT B
------------------------------------------------------------------------------------------------------------------------------------
Type of AL FL GA KY LA
------------------------------------------------------------------------------------------------------
Service Resale? Discount? Resale? Discount? Resale? Discount? Resale? Discount? Resale? Discount?
------------------------------------------------------------------------------------------------------------------------------------
1 Grandfathered Services Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
------------------------------------------------------------------------------------------------------------------------------------
2 Contract Service Arrangements Yes Yes Yes Yes Yes No Yes No Yes No
------------------------------------------------------------------------------------------------------------------------------------
3 Promotions - greater than 90 Days Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
------------------------------------------------------------------------------------------------------------------------------------
4 Promotions - less than 90 Days Yes No Yes No Yes No No No Yes No
------------------------------------------------------------------------------------------------------------------------------------
5 Lifeline/Link Up Services Yes Yes Yes Yes Yes Yes No No Yes Yes
------------------------------------------------------------------------------------------------------------------------------------
6 911/E911 Services Yes Yes Yes Yes Yes Yes Yes Yes No No
------------------------------------------------------------------------------------------------------------------------------------
7 N11 Services Yes Yes Yes Yes Yes Yes No No No No
------------------------------------------------------------------------------------------------------------------------------------
8 Non-Recurring Charges Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Type of MS NC SC TN
------------------------------------------------------------------------------------
Service Resale? Discount? Resale? Discount? Resale? Discount? Resale? Discount?
----------------------------------------------------------------------------------------------------------------------------
1 Grandfathered Services Yes Yes Yes Yes Yes Yes Yes Yes
----------------------------------------------------------------------------------------------------------------------------
2 Contract Service Arrangements Yes No Yes Yes Yes No Yes Yes
----------------------------------------------------------------------------------------------------------------------------
3 Promotions - greater than 90 Days Yes Yes Yes Yes Yes Yes Yes No
----------------------------------------------------------------------------------------------------------------------------
4 Promotions - less than 90 Days Yes No No No Yes No No No
----------------------------------------------------------------------------------------------------------------------------
5 Lifeline/Link Up Services Yes Yes Yes Yes Yes Yes No No
----------------------------------------------------------------------------------------------------------------------------
6 911/E911 Services Yes Yes Yes Yes Yes Yes Yes Yes
----------------------------------------------------------------------------------------------------------------------------
7 N11 Services No No No No Yes Yes Yes Yes
----------------------------------------------------------------------------------------------------------------------------
8 Non-Recurring Charges Yes Yes Yes Yes Yes Yes Yes No
----------------------------------------------------------------------------------------------------------------------------
Additional Comments:
1 Grandfathered services can be resold only to existing subscribers of the
grandfathered service.
2 Where available for resale, promotions will be made available only to end
users who would have qualified for the promotion had it been provided by
BellSouth directly.
3 Life/Link Up services may be offered only to those subscribers who meet the
criteria that BellSouth currently applies to subscribers of these
services.
4 In Louisiana and Mississippi, all Contract Service Arrangements entered
into by BellSouth or terminating after the effective date of the
Commission Order will be subject to resale without the wholesale discount.
All CSAs which are in place as of the effective date of the commission
order will not be eligible for resale.
5 In North Carolina, only those Contract Service Arrangements entered into
after April 15, 1997 will be available for resale.
Version: April 24, 1997