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EXHIBIT 10.4
AGREEMENT BETWEEN BELLSOUTH TELECOMMUNICATIONS, INC. AND UNITED STATES
TELECOMMUNICATIONS, INC. REGARDING THE SALE OF BELLSOUTH TELECOMMUNICATIONS
SERVICES TO UNITED STATES TELECOMMUNICATIONS, INC. FOR THE PURPOSES OF RESALE
THIS AGREEMENT is by and between BellSouth Telecommunications, Inc.,
("BELLSOUTH" or "Company"), a Georgia corporation, and United States
Telecommunications, Inc. ("US Telcom"), a Florida corporation, and shall be
deemed effective as 5/28/98.
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, US Telcom is or seeks to become an alternative local exchange
telecommunications company authorized to provide telecommunications services in
the state(s) of Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi,
North Carolina, South Carolina, and Tennessee; and;
WHEREAS, US Telcom desires to resell BellSouth's telecommunications
services; and
WHEREAS, BellSouth has agreed to provide such services to US Telcom 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 US Telcom do hereby agree as follows:
I. Term of the Agreement
A. The term of this Agreement shall be two years beginning 5/28/98 and
shall apply to all of BellSouth's serving territory as of January 1,
1998 in the state(s) of Alabama, Florida, Georgia, Kentucky,
Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee;
and
B. This Agreement shall be automatically renewed for two additional one
yea 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.
The rates pursuant by which US Telcom 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.
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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 an 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 US
Telcom 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 US Telcom, may offer resold local exchange telecommunications
service.
III. General Provisions
A. US Telcom 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.
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 that
appropriate modifications to this Agreement will be made promptly to
make its terms consistent with the outcome of the appeal.
B. The service and service provisioning that BellSouth provides US Telcom
for resale will be at least equal in quality to that provided to
BellSouth, or any BellSouth subsidiary, affiliate or end-user. In
connection with resale, BellSouth will provide US Telcom with
pre-ordering, ordering, maintenance and trouble reporting, and daily
usage data functionality that will enable US Telcom to provide
equivalent levels of customer service to their local exchange
customers as BellSouth provides to it own end users.
C. US Telcom may purchase resale services from BellSouth for their own
use in operating their business. The resale discount will apply to
those services under the following conditions:
1. US Telcom must resell services to other end users.
2. US Telcom must order services through resale interfaces, i.e.,
the LCSC and/or appropriate Resale Account Teams.
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3. US Telcom cannot be an alternative local exchange
telecommunications company for the single purpose of selling to
themselves.
D. The provision of services by the Company to US Telcom does not
constitute a joint undertaking for the furnishing of any service.
E. US Telcom will be the customer of record for all services purchased
from BellSouth. Except as specified herein, the Company will take
orders from, xxxx and expect payment from US Telcom for all services.
F. US Telcom 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.
G. 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.
H. The Company maintains the right to serve directly any end user within
the service area of US Telcom. 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 US
Telcom.
I. Neither Party shall interfere with the right of any person or entity
to obtain service directly from the other Party.
J. 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. US Telcom 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.
K. 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
US Telcom.
L. Service is furnished subject to the condition that it will not be used
for any unlawful purpose.
M. Service will be discontinued if any law enforcement agency advises
that the service being used is in violation of the law.
N. The Company can refuse service when it has grounds to believe that
service will be used in violation of the law.
0. The Company accepts no responsibility to any person for any unlawful
act committed by US Telcom or its end users as part of providing
service to US Telcom for purposes of resale or otherwise.
P. 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 US Telcom will be directed to US Telcom. The Company will
xxxx US Telcom for implementing any requests by law enforcement
agencies regarding US Telcom end users.
Q. The characteristics and methods of operation of any circuits,
facilities or equipment provided by any person or entity other than
the Company shall not:
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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.
R. US Telcom assumes the responsibility of notifying the Company
regarding less than standard operations with respect to services
provided by US Telcom.
S. Facilities and/or equipment utilized by BellSouth to provide service
to US Telcom 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.
U. BellSouth will provide customer record information to US Telcom
provided US Telcom 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.
1. US Telcom agrees to compensate BellSouth for all BellSouth
incurred expenditures associated with providing such information
to US Telcom. US Telcom will adopt and adhere to the BellSouth
guidelines associated with each method of providing customer
record information.
2. All costs incurred by BellSouth to develop and implement
operational interfaces shall be recovered from US Telcom who
utilize the services.
V. BellSouth will provide certain selected messaging services to US
Telcom for resale of messaging service without the wholesale discount.
W. 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.
X. All costs incurred by BellSouth for providing services to US Telcom
that are not covered in the BellSouth tariffs shall be recovered from
the US Telcom who utilizes those services.
IV. BELLSOUTH'S PROVISION OF SERVICES TO US TELCOM
A. US Telcom 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 US Telcom is a telecommunications carrier that
serves greater than 5 percent of the Nation's presubscribed
access lines, US Telcom 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 US Telcom 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 and of no effect for a particular state
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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. US Telcom 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, US Telcom 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 US Telcom actually
makes the payment to the Company may be assessed.
6. The Company reserves the right to periodically audit services
purchased by US Telcom to establish authenticity of use. Such
audit shall not occur more than once in a calendar year. US
Telcom 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. US Telcom 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. US
Telcom 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. US Telcom 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.
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C. US Telcom 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. US Telcom accepts responsibility to notify the Company of situations
that arise that may result in a service problem.
E. US Telcom will be the Company's single point of contact for all repair
calls on behalf of US Telcom's end users. The parties agree to provide
one another with toll-free contact numbers for such purposes.
F. US Telcom will contact the appropriate repair centers in accordance
with procedures established by the Company.
G. For all repair requests, US Telcom accepts responsibility for adhering
to the Company's prescreening guidelines prior to referring the
trouble to the Company.
H. The Company will xxxx US Telcom 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 US Telcom's customers, if
deemed necessary, for maintenance purposes. When interacting with US
Telcom resale customers on behalf of US Telcom, BellSouth employees
shall not market BellSouth services and shall ensure that service
provided US Telcom, end users is at least equal in quality to that
which BellSouth provides its own end users.
VI. ESTABLISHMENT OF SERVICE
A. After receiving certification as a local exchange company from the
appropriate regulatory agency, US Telcom will provide the appropriate
Company service center the necessary documentation to enable the
Company to establish a master account for US Telcom. 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 US Telcom that a current customer
of the Company will subscribe to US Telcom's service, standard service
order intervals for the appropriate class of service will apply.
D. The Company will not require and user confirmation prior to
establishing service for US Telcom's end user customer. US Telcom
must, however, be able to demonstrate end user authorization upon
request.
E. US Telcom 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 US
Telcom to the Company or will accept a request from another OLEC for
conversion of the end user's service from US Telcom to the other LEC.
The Company will notify US Telcom that such a request has been
processed.
F. If the Company determines that an unauthorized change in local service
to US Telcom has occurred, the Company will reestablish service with
the appropriate local service provider and will assess US Telcom 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
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Subscriber Service Tariff, will also be assessed to US Telcom. These
charges can be adjusted if US Telcom provides satisfactory proof of
authorization.
G. In order to safeguard its interest, the Company reserves the right to
secure the account with a suitable form of security deposit, unless
satisfactory credit has already been established.
1. Such security deposit shall take the form of an irrevocable
Letter of Credit or other forms of security acceptable to the
Company. Any such security deposit may be held during the
continuance of the service as security for the payment of any and
all amounts accruing for the service.
2. If a security deposit is required, such security deposit shall be
made prior to the inauguration of service.
3. Such security deposit may not exceed two months' estimated
billing.
4. The fact that a security deposit has been made in no way relieves
US Telcom 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.
5. The Company reserves the right to increase the security deposit
requirements when, in its sole judgment, circumstances so warrant
and/or gross monthly billing has increased beyond the level
initially used to determine the security deposit.
6. In the event that US Telcom defaults on its account, service to
US Telcom will be terminated and any security deposits held will
be applied to its account.
7. In the case of a cash deposit, interest at a rate as set forth in
the appropriate BellSouth tariff shall be paid to US Telcom
during the continuance of the security deposit. Interest on a
security deposit shall accrue annually and, it requested, shall
be annually credited to US Telcom by the accrual date.
VII. PAYMENT AND BILLING ARRANGEMENTS
A. When the initial service is ordered by US Telcom, the Company will
establish an accounts receivable master account for US Telcom.
B. The Company shall xxxx US Telcom on a current basis all applicable
charges and credits.
C. Payment of all charges will be the responsibility of US Telcom. US
Telcom shall make payment to the Company for all services billed. The
Company is not responsible for payments not received by US Telcom from
US Telcom's customer. The Company will not become involved in billing
disputes that may arise between US Telcom 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 and user's account.
D. The Company will render bills each month on established xxxx days for
each of US Telcom's accounts.
E. The Company will xxxx US Telcom, 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
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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 US Telcom.
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.
1. 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 US Telcom, the total
amount billed to US Telcom will not include any taxes due from the end
user. US Telcom 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, US Telcom 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, of 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 US
Telcom.
K. The Company will not perform billing and collection services for US
Telcom as a result of the execution of this Agreement. Requests by the
US Telcom for assistance with 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 US Telcom
end user common line charges identical to the end user common line
charges the Company bills its end users.
M. In general, the Company will not become involved in disputes between
US Telcom and US Telcom's end user customers over resold services. If
a dispute does arise that cannot be settled without the involvement of
the Company, US Telcom 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 US Telcom to resolve the
matter in as timely a manner as possible. US Telcom may be required to
submit documentation to substantiate the claim.
VIII. TERMINATION
A. Either, Party may terminate this Agreement in whole or in part in the
event of a default by the other Party; provided however, that the
non-defaulting Party notifies the defaulting Party in writing of the
alleged default and that the defaulting Party does not cure the
alleged fault within thirty (30) days of receipt of written notice
thereof. Default is defined to include:
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1. A Party's refusal or failure in any material respect properly to
perform its obligations under this Agreement, or the violation of
any of the material terms or conditions of this Agreement; or
2. A Party's violation or noncompliance with the applicable federal
and state statutes, rules, regulations, and orders.
B. Termination of this Agreement, or any part hereof, for any cause shall
not release either Party from any liability which at the time of
termination had already accrued to the other Party or which thereafter
accrues in any respect to any act or omission occurring prior to the
termination or from an obligation which is expressly stated in this
Agreement to survive termination.
IX. 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 US Telcom's end
user on behalf of, and at the request of, US Telcom. Upon
restoration of the and user's service, restoral charges will
apply and will be the responsibility of US Telcom.
2. At the request of US Telcom, the Company will disconnect a US
Telcom end user customer.
3. All requests by US Telcom for denial or disconnection of an end
user for nonpayment must be in writing.
4. US Telcom 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 US Telcom when it is determined that
annoyance calls am originated from one of their end user's
locations. The Company shall be indemnified, defended and held
harmless by US Telcom and/or the end user against any claim, loss
or damage arising from providing this information to US Telcom.
It is the responsibility of US Telcom 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 US Telcom 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 US Telcom
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, BellSouth may provide written
notice to US Telcom 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. In addition BellSouth may, at
the same time, give thirty days notice to the person designated
by US Telcom to receive notices of noncompliance, discontinue the
provision of existing services to US Telcom at any time
thereafter.
3. In the case of such discontinuance, all billed charges, as well
as applicable termination charges, shall become due.
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4. If BellSouth does not discontinue the provision of the services
involved on the date specified in the thirty days notice and US
Telcom's noncompliance continues, nothing contained herein shall
preclude BellSouth's right to discontinue the provision of the
services to US Telcom without further notice,
5. If payment is not received or arrangements made for payment by
the date given in the written notification, US Telcom's services
will be discontinued. Upon discontinuance of service on a US
Telcom's account, service to US Telcom's end users will be
denied. The Company will also reestablish service at the request
of the end user or US Telcom's upon payment of the appropriate
connection fee and subject to the Company's normal application
procedures. US Telcom's 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 service will be disconnected.
X. 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 US Telcom, 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 US Telcom
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 US Telcom
against any and all claims, actions, causes of action, damages,
liabilities, or demands (including the costs, expenses and reasonable
attorneys' fees, on account thereof) of whatever kind or nature that
may be made by any third party as a result of the Company's furnishing
of service to US Telcom.
C. The Company shall be indemnified, defended and held harmless by US
Telcom 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 US Telcom'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 US Telcom.
3. All other claims arising out of an act or omission of US Telcom
or its end User in the course of using services.
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D. US Telcom 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 part of US
Telcom with respect to any end user of US Telcom.
XI. 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.
XII. 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, either Party may petition
the 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 the Commission
concerning this Agreement.
XIII. 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.
XIV. WAIVERS
A failure or delay of either Party to enforce any of the provisions
hereof, to exercise any option which is herein provided, or to require
performance of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or options, 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.
Page 11
12
XV. 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.
XVI. 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.
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. United States Telecommunications, Inc.
CLEC Account Team Xx. Xxxxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxx Telecommunications. Inc.
Room E4E1 00000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxx 000
Xxxxx, XX 00000
or at such other address as the intended recipient previously shall have
designated by written notice to the other party.
B. Where specifically required, notices shall be by 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. UNITED STATES TELECOMMUNICATIONS, INC.
BY: /s/ Xxxxx Xxxxxxx BY: /s/ Xxxxxxx Xxxxxxx
------------------------------ ----------------------------------
Signature Signature
NAME: Xxxxx Xxxxxxx NAME: Xxxxxxx Xxxxxxx
-------------------------- -------------------------------
Printed Name Printed Name
TITLE: Director TITLE: President
---------------------------- -------------------------------
DATE: 5/28/98 DATE: 5/27/98
---------------------------- -------------------------------
Page 12
13
EXHIBIT A
APPLICABLE DISCOUNTS
The telecommunications services available for purchase by US Telcom for the
purposes of resale to US Telcom end users shall be available at the following
discount off of the retail rate.
DISCOUNT*
-------------------------------------------------------------------------------
STATE RESIDENCE BUSINESS
-------------------------------------------------------------------------------
ALABAMA 16.3% 16.3%
-------------------------------------------------------------------------------
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%
-------------------------------------------------------------------------------
* In the case of a cross boundary situation, the discount which applies is the
discount applicable to the location of the end user's central office.
** In Tennessee, if US Telcom provides its own operator services and directory
services, the discount shall be 21.56%. US Telcom must provide written
notification to BellSouth within 30 days prior to providing its own operator
services and directory services to qualify for the higher discount rate of
21.56%.
OPERATIONAL SUPPORT SYSTEMS (OSS) RATES
-----------------------------------------------------------------------------------------------------------------
Interactive Ordering and Trouble OSS Order Charge
Maintenance System (per end user account)
------------------------------------ --------------------------------------
Non-Recurring Recurring Charge, Charge per order Surcharge for
Establishment per month manually placed
Charge orders
-----------------------------------------------------------------------------------------------------------------
ALABAMA $100.00 00.00 $10.80 $22.00
-----------------------------------------------------------------------------------------------------------------
FLORIDA $100.00 $30.00 $10.80 $22.00
-----------------------------------------------------------------------------------------------------------------
GEORGIA $200.00 $550.00 per first 1000 Note(2) $22.00
electronic orders(1)
$10.00 per next 1000
electronic orders(1)
-----------------------------------------------------------------------------------------------------------------
KENTUCKY $100.00 $50.00 $10.80 $22.00
-----------------------------------------------------------------------------------------------------------------
LOUISIANA $100.00 $50.00 $ 9.16 $18.14
-----------------------------------------------------------------------------------------------------------------
MISSISSIPPI $100.00 $50.00 $10.80 $22.00
-----------------------------------------------------------------------------------------------------------------
NORTH CAROLINA $100.00 $50.00 $10.80 $22.00
-----------------------------------------------------------------------------------------------------------------
SOUTH CAROLINA $100.00 $50.00 $1O.80 $22.00
-----------------------------------------------------------------------------------------------------------------
TENNESSEE $100.00 $50.00 $10.80 $22.00
-----------------------------------------------------------------------------------------------------------------
--------------------------
(1) The Charge per order applies on a per end user account basis.
(2) The Georgia Public Service Commission ("PSC") ordered in Docket 7061 that
there would be no OSS charge within the Charge per Electronic Order column.
Instead the Georgia PSC ordered monthly recurring charges based on the number of
orders.
Page 13
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EXHIBIT B
Page 1 of 2
------------------------------------------------------------------------------------------------------------------------------------
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 Note 5 Note 5
------------------------------------------------------------------------------------------------------------------------------------
3 Promotions - > 90 Days Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
------------------------------------------------------------------------------------------------------------------------------------
4 Promotion - < 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 (See Note 9) Yes Yes Yes Yes Yes Yes Yes Yes No No
------------------------------------------------------------------------------------------------------------------------------------
7 N11 Services (See Note 9) Yes Yes Yes Yes Yes Yes No No No No
------------------------------------------------------------------------------------------------------------------------------------
8 AdWatch(SM) Svc (See Note 8) Yes No Yes No Yes No Yes No Yes No
------------------------------------------------------------------------------------------------------------------------------------
9 MemoryCall(R) Service Yes No Yes No Yes No Yes No Yes No
------------------------------------------------------------------------------------------------------------------------------------
10 Mobile Services Yes No Yes No Yes No Yes No Yes No
------------------------------------------------------------------------------------------------------------------------------------
11 Federal Subscriber Line Charges Yes No Yes No Yes No Yes No Yes No
------------------------------------------------------------------------------------------------------------------------------------
12 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 Note 5 Note 5 Note 6 Note 6 Yes No Yes Yes
--------------------------------------------------------------------------------------------------------------------
3 Promotions - > 90 Days Yes Yes Yes Yes Yes Yes Yes Note 3
--------------------------------------------------------------------------------------------------------------------
4 Promotions - < 90 Days Yes No No No Yes No No No
--------------------------------------------------------------------------------------------------------------------
5 Lifeline/Link Up Services Yes Yes Yes Yes Yes Yes Yes Note 4
--------------------------------------------------------------------------------------------------------------------
6 911/E911 Services (See Note 9) Yes Yes Yes Yes Yes Yes Yes Yes
--------------------------------------------------------------------------------------------------------------------
7 N11 Services See Note 9) No No No No Yes Yes Yes Yes
--------------------------------------------------------------------------------------------------------------------
8 AdWatch(SM) Svc (See Note 8) Yes No Yes No Yes No Yes No
--------------------------------------------------------------------------------------------------------------------
9 MemoryCall(R) Service Yes No Yes No Yes No Yes No
--------------------------------------------------------------------------------------------------------------------
10 Mobile Services Yes No Yes No Yes No Yes No
--------------------------------------------------------------------------------------------------------------------
11 Federal Subscriber Line Charges Yes No Yes No Yes No Yes No
--------------------------------------------------------------------------------------------------------------------
12 Non-Recurring Charges Yes Yes Yes Yes Yes Yes Yes No
--------------------------------------------------------------------------------------------------------------------
Applicable Notes:
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 In Tennessee, long-term promotions (offered for more than ninety (90) days)
may be obtained at one of the following rates:
(a) the stated tariff rate, less the wholesale discount;
(b) the promotional rate (the promotional rate offered by BellSouth will
not be discounted further by the wholesale discount rate)
4 Lifeline/Link Up services may be offered only to those subscribers who meet
the criteria that BellSouth currently applies to subscribers National
Exchange Carriers Association interstate toll settlement pool just as
BellSouth does today. The maximum rate that US Telcom may charge for
LifeLine Service shall be capped at the flat retail rate offered by
BellSouth.
5 In Louisiana and Mississippi; all Contract Service Arrangements entered
into by BellSouth or terminating after the effective date of the Commission
Order (1/28/97 for LA and 3/10/97 for MS) will be subject to resale without
the wholesale discount. All CSAs which are in place as of the effective
date of the Commission order (1/28/97 for LA and 3/10/97 for MS) will not
be eligible for resale.
Page 14
15
EXHIBIT B
Page 2 of 2
6 In North Carolina, Contract Service Arrangements entered into by BellSouth
before April 15, 1997, shall be subject to resale at no discount, while
BellSouth CSAs entered into after that date shall be subject to resale with
the discount.
7 Some of BellSouth's local exchange and toll telecommunications services are
not available in certain central offices and areas.
8 AdWatch(SM) Service is tariffed as BellSouth(R) AIN Virtual Number Call
Detail Service
9 Exclusions for N11/911/E911 are also applicable to equipment associated
with the service
Page 15
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Amendment No. 2 to Resale Agreement
by and between BellSouth Telecommunications, Inc.
and United States Telecommunications, Inc.
dated May 28, 1998
This Agreement refers to the Resale Agreement ("the Agreement") entered
into by United States Telecommunications Inc. ("US Telcom") and BellSouth
Telecommunications, Inc. ("BellSouth") on May 28, 1998. This Amendment
("Amendment") is made by and between US Telcom and BellSouth and shall be deemed
effective on the date executed by US Telcom and BellSouth.
NOW THEREFORE, in consideration of the mutual provisions contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Us Telcom and BellSouth (individually, a "Party" and
collectively, the "Parties") hereby covenant and agree as follows:
1. BellSouth and US Telcom are entering into this Agreement for the purpose
of deleting the table of Operational Support System (OSS) Rates contained in
Exhibit A of their existing Agreement in its entirety and replacing it with the
new OSS rates as follows:
---------------------------------------------------------------------------------------------------
OPERATIONAL Electronic Manual
SUPPORT SYSTEM Per LSR received from the CLEC Per LSR received from the CLEC
(OSS) RATES by one of the OSS Interactive by means other than one of the
Interfaces OSS interactive Interfaces
---------------------------------------------------------------------------------------------------
OSS Order Charge $3.50 $19.99
---------------------------------------------------------------------------------------------------
In addition to the OSS Charges, applicable discounted service order and related
charges apply per the tariff.
2. The Parties agree that US Telcom, will incur the mechanized rate for all
LSRS, both mechanized and manual, if the percentage of mechanized LSRs to total
LSRs exceeds the threshold percentages shown below:
Year Ratio: Mechanized/Total LSRs
1999 70%
2000 80%
2001 90%
The threshold plan will be discontinued in 2002.
3. The Parties agree that the threshold plan described in Paragraph 2 above
may be superceded by an LSR specific process that would apply the mechanized LSR
rate to only those manual LSRs, which cannot be submitted over a mechanized
system.
4. The Parties agree that all other provisions of the Agreement, dated May
28, 1998, shall remain in full force and effect.
5. The Parties further agree that either or both of the Parties is
authorized to submit this Amendment to the Public Service Commission or other
regulatory body having jurisdiction over the
United States Telecommunications, Inc.
OSS Amendment
Page 1 of 2
17
subject matter of this Amendment, for approval subject to Section 252(e) of the
federal Telecommunications Act of 1996.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective duly authorized representatives on the date
indicated below.
BELLSOUTH TELECOMMUNICATIONS, INC. UNITED STATES TELECOMMUNICATIONS, INC.
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxxxx
----------------------------------- -------------------------------------
Signature Signature
Xxxxx X. Xxxxxxx Xxxxxxx Xxxxxxx
----------------------------------- -------------------------------------
Name Name
Director - Interconnection Services President
----------------------------------- -------------------------------------
Title Title
4/1/99 3/30/99
----------------------------------- -------------------------------------
Date Date
United States Telecommunications, Inc.
OSS Amendment
Page 2 of 2
18
AMENDMENT TO
RESALE AGREEMENT BETWEEN
BELLSOUTH TELECOMMUNICATIONS, INC.
AND UNITED STATES TELECOMMUNICATIONS, INC.
DATED MAY 28,1998
Pursuant, to this Agreement (the "Amendment"), BellSouth
Telecommunications, Inc. ("BellSouth") and United States Telecommunications,
Inc., ("US Telcom") hereinafter referred to collectively as the "Parties"
hereby agree to amend that certain Resale Agreement between the Parties dated
May 28,1998 ("Resale Agreement").
NOW THEREFORE, in consideration of the mutual provisions contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby covenant and agree as follows:
1. Section IV.3 of the Resale Agreement is hereby amended to included
the appropriate Shared Tenant Service tariff reference, A.27; for the states of
Alabama, Kentucky, Louisiana, Mississippi and Tennessee.
2. All of the other provisions of the Resale Agreement, dated May 28,
1998 shall remain in full force and effect.
3. The Parties further agree that either or both of the Parties is
authorized to submit this Amendment to the appropriate Commission or other
regulatory body having jurisdiction over the subject matter of this Amendment,
for approval subject to Section 252(e) of the federal Telecommunications Act of
1996.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be
executed by their respective duly authorized representatives on the date
indicated below.
UNITED STATES TELECOMMUNICATIONS, INC. BELLSOUTH TELECOMMUNICATIONS, INC.
BY: BY:
--------------------------------- -----------------------------
DATE: 2/9/99 DATE: 2/8/99
------ ------
