EXHIBIT 10.12
RESALE AGREEMENT
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(Virginia)
PREFACE
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THIS RESALE AGREEMENT (this "Agreement") is made effective as of May
28, 1997 (the "Effective Date"), by and between VIC-RMTS-DC, L.L.C.,
("Reseller"), a Delaware limited liability company, d/b/a OnePoint
Communications, and affiliate of OnePoint Communications, L.L.C., with offices
at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, D. C. 20015, and Xxxx Atlantic-
Virginia, Inc. ("Xxxx Atlantic"), a Virginia corporation, with offices at 000
Xxxx Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. (S)
251(c)(4), Reseller wishes to purchase Xxxx Atlantic Retail Telecommunications
Services from Xxxx Atlantic for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services in the Commonwealth of Virginia
and
WHEREAS, Xxxx Atlantic is willing to provide such Xxxx Atlantic Retail
Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth in
this Agreement, Reseller and Xxxx Atlantic, each on behalf of itself and its
respective successors and assigns, agree as follows:
1. DEFINITIONS
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1.1 As used in the Principal Document, the terms listed below shall have
the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C. (S) 151, et
--
seq., as amended from time-to-time.
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1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government
regulations and orders.
1.1.4 "Xxxx Atlantic Other Service" means any service listed in Exhibit I.
1.1.5 "Xxxx Atlantic Retail Telecommunications Service" means any
Telecommunications Service that Xxxx Atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Xxxx
Atlantic Retail Telecommunications Service" does not include any exchange
access service (as defined in Section 3(16) of the Act, 47 U.S.C. (S)
153(16)) provided by Xxxx Atlantic.
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1.1.6 "Xxxx Atlantic Service" means and includes any Xxxx Atlantic Retail
Telecommunications Service and any Xxxx Atlantic Other Service.
1.1.7 "Xxxx Atlantic's Affiliates" means any corporations, partnerships or
other persons who control, are controlled by, or are under common control with,
Xxxx Atlantic.
1.1.8 "Xxxx Atlantic's Tariffs" and "Xxxx Atlantic Tariff" mean and include:
(a) Xxxx Atlantic's effective Federal and state tariffs, as amended by Xxxx
Atlantic from time-to-time; and,
(b) to the extent Xxxx Atlantic Services are not subject to Xxxx Atlantic
tariffs, any standard agreements and other documents, as amended by Xxxx
Atlantic from time-to-time, that set forth the generally available terms,
conditions and prices under which Xxxx Atlantic offers such Xxxx Atlantic
Services.
The terms "Xxxx Atlantic's Tariffs" and "Xxxx Atlantic Tariff" do not include
Xxxx Atlantic's "Statement of Generally Available Terms and Conditions for
Interconnection, Unbundled Network Elements, Ancillary Services and Resale of
Telecommunications Services" which has been approved by the Commission pursuant
to Section 252(f) of the Act, 47 U.S.C. (S) 252(f).
1.1.9 "Commission" means the Virginia State Corporation Commission.
1.1.10 "Contract Period", as used in Section 1.1.14 and Section 6.2, means a
stated period or minimum period of time for which Reseller is required by this
Agreement to subscribe to, use and/or pay for a Xxxx Atlantic Service.
1.1.11 "CPNI" means "Customer Proprietary Network Information" as defined by
Applicable Law, including, but not limited to, Section 222 of the Act, 47 U.S.C.
(S) 222.
1.1.12 "Customer Information" means CPNI, and any other individually
identifiable information about a customer of a Party or the purchase by a
customer of a Party of the services or products of that Party.
1.1.13 "Effective Date" means the date first above written.
1.1.14 "Expiration Date Xxxx Atlantic Service" means: (a) any Xxxx Atlantic
Service being provided by Xxxx Atlantic under this Agreement at the time of
expiration of the term of this Agreement, that at the time of expiration of the
term of this Agreement is subject to a Contract Period which is greater than one
(1) month; and, (b) any Xxxx Atlantic Service requested by Reseller under this
Agreement in an Order accepted by Xxxx Atlantic prior to expiration of the term
of this Agreement but not yet being provided by Xxxx Atlantic at the time of
expiration of this Agreement, that is subject to an initial Contract Period
which is greater than one (1) month.
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1.1.15 "Jurisdiction" means the Commonwealth of Virginia.
1.1.16 "Operator Services" means: (a) services accessed by dialing 411,
555-1212, 0-000-0000, 0+ local, 0+ intraLATA, and, 0-; and, (b) any other
automated or live operator or directory assistance service.
1.1.17 "Order" means an order or application.
1.1.18 "Principal Document" means this document, including the Preface,
Sections 1 through 33, the signature page, Exhibit I, Exhibit II, and
Exhibit II, Attachment 1.
1.1.19 "Reseller Customers" means and includes customers, subscribers and
patrons, of Reseller, purchasers and users of Telecommunications Services
(including, but not limited to, resold Xxxx Atlantic Retail
Telecommunications Services) provided by Reseller, and purchasers and users
of other services and products provided by Reseller.
1.1.20 "Retail Prices" means the prices at which Xxxx Atlantic Retail
Telecommunications Services are provided by Xxxx Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.21 "Telecommunications Carrier" means "Telecommunications Carrier" as
defined in Section 3(44) of the Act, 47 U.S.C. (S) 153(44).
1.1.22 "Telecommunications Service" means "Telecommunications Service" as
defined in Section 3(46) of the Act, 47 U.S.C. (S) 153(46).
1.1.23 "Telephone Exchange Service" means "Telephone Exchange Service" as
defined in Section 3(47) of the Act, 47 U.S.C. (S) 153(47).
1.2 Unless the context clearly indicates otherwise, any defined term which
is defined or used in the singular shall include the plural, and any
defined term which is defined or used in the plural shall include the
singular.
2. THE AGREEMENT
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2.1 This Agreement includes: (a) the Principal Document; (b) Xxxx
Atlantic's Tariffs (which Xxxx Atlantic Tariffs are incorporated into this
Agreement by reference and made a part hereof); and, (c) a Reseller Order
to provide, change or terminate a Xxxx Atlantic Service, which has been
accepted by Xxxx Atlantic (including, but not limited to, any Order which
includes a commitment to purchase a stated number or minimum number of
lines or other Xxxx Atlantic Services, or a commitment to purchase lines or
other Xxxx Atlantic Services for a stated period or minimum period of
time).
2.2 Conflicts among terms in the Principal Document, Xxxx Atlantic's
Tariffs, and a Reseller Order which has been accepted by Xxxx Atlantic,
shall be resolved in accordance
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with the following order of precedence, where the document identified in
subsection "(a)" shall have the highest precedence: (a) the Principal
Document; (b) Xxxx Atlantic's Tariffs; and, (c) a Reseller Order which has
been accepted by Xxxx Atlantic. The fact that a term appears in the
Principal Document but not in a Xxxx Atlantic Tariff, or in a Xxxx Atlantic
Tariff but not in the Principal Document, shall not be interpreted as, or
deemed grounds for finding, a conflict for the purposes of this Section
2.2.
2.3 This Agreement (including the Principal Document, Xxxx Atlantic's
Tariffs, and Reseller Orders which have been accepted by Xxxx Atlantic),
constitutes the entire agreement between the Parties on the subject matter
hereof, and supersedes any prior or contemporaneous agreement,
understanding, or representation on the subject matter hereof. Except as
otherwise provided in the Principal Document, the terms in the Principal
Document may not be waived or modified except by a written document which
is signed by the Parties. Xxxx Atlantic shall have the right to add,
modify, or withdraw, a Xxxx Atlantic Tariff at any time, without the
consent of, or notice to, Reseller.
2.4 A failure or delay of either Party to enforce any of the provisions of
this Agreement, or any right or remedy available under this Agreement or at
law or in equity, or to require performance of any of the provisions of
this Agreement, or to exercise any option provided under this Agreement,
shall in no way be construed to be a waiver of such provisions, rights,
remedies, or options.
3. XXXX ATLANTIC SERVICES
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3.1 Reseller may, from time-to-time, during the term of this Agreement,
submit Orders to Xxxx Atlantic requesting Xxxx Atlantic to provide Xxxx
Atlantic Retail Telecommunications Services for resale by Reseller as a
Telecommunications Carrier providing Telecommunications Services, pursuant
to Section 251(c)(4) of the Act, 47 U.S.C. (S) 251(c)(4).
3.2 Reseller may, from time-to-time, during the term of this Agreement,
submit Orders to Xxxx Atlantic requesting Xxxx Atlantic to provide Xxxx
Atlantic Other Services.
3.3 Xxxx Atlantic may require that Reseller's Orders requesting Xxxx
Atlantic to provide Xxxx Atlantic Services be in writing on forms specified
by Xxxx Atlantic or in an electronic form specified by Xxxx Atlantic.
3.4 Upon receipt and acceptance by Xxxx Atlantic of a Reseller Order
requesting Xxxx Atlantic to provide a Xxxx Atlantic Service, Xxxx Atlantic
shall provide, and Reseller shall subscribe to, use and pay for, the Xxxx
Atlantic Service, in accordance with this Agreement.
3.5 Xxxx Atlantic Retail Telecommunications Services may be purchased by
Reseller under this Agreement only for the purpose of resale by Reseller as
a Telecommunications Carrier providing Telecommunications Services,
pursuant to Section 251(c)(4) of the Act, 47 U.S.C. (S) 251(c)(4). Xxxx
Atlantic Retail Telecommunications Services to be purchased by Reseller
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for other purposes (including, but not limited to, Reseller's own use) must
be purchased by Reseller pursuant to separate written agreements,
including, but not limited to, applicable Xxxx Atlantic Tariffs. Reseller
warrants and agrees that Reseller will purchase Xxxx Atlantic Retail
Telecommunications Services from Xxxx Atlantic under this Agreement only
for the purpose of resale by Reseller as a Telecommunications Carrier
providing Telecommunications Services, pursuant to Section 251(c)(4) of the
Act, 47 U.S.C. (S) 251(c)(4).
3.6 Except as otherwise provided in this Agreement, Xxxx Atlantic shall
have the right to add, modify, grandfather, discontinue or terminate Xxxx
Atlantic Services at any time, without the consent of Reseller.
4. PRICES
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4.1 Reseller shall pay Xxxx Atlantic for Xxxx Atlantic Services at the
prices stated in this Agreement, including, but not limited to, in Exhibit
I and Exhibit II.
4.2 If, prior to establishment of a Xxxx Atlantic Service, Reseller cancels
or changes its Order for the Xxxx Atlantic Service, Reseller shall
reimburse Xxxx Atlantic for the costs associated with such cancellation or
changes as required by this Agreement (including, but not limited to, Xxxx
Atlantic's Tariffs).
4.3 Upon request by Xxxx Atlantic, Reseller shall provide to Xxxx Atlantic
adequate assurance of payment of charges due to Xxxx Atlantic. Assurance of
payment of charges may be requested by Xxxx Atlantic: (a) if Reseller, in
Xxxx Atlantic's reasonable judgment, at the Effective Date or at any time
thereafter, is unable to show itself to be creditworthy; (b) if Reseller,
in Xxxx Atlantic's reasonable judgment, at the Effective Date or at any
time thereafter, is not creditworthy; or, (c) if Reseller fails to timely
pay a xxxx rendered to Reseller by Xxxx Atlantic. Unless otherwise agreed
by the Parties, the assurance of payment shall be in the form of a cash
deposit and shall be in an amount equal to the charges for Xxxx Atlantic
Services that Reseller may reasonably be expected to incur during a period
of two (2) months. Xxxx Atlantic may at any time use the deposit or other
assurance of payment to pay amounts due from Reseller.
5. BILLING AND PAYMENT
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5.1 Except as otherwise permitted or required by this Agreement, or agreed
in writing by the Parties, Xxxx Atlantic shall render bills to Reseller
monthly. Except as otherwise agreed in writing by the Parties, Xxxx
Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Xxxx Atlantic's bills in immediately available U.S.
funds. Payments shall be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Xxxx
Atlantic's bills. Except as otherwise required by Xxxx Atlantic's Tariffs
or agreed in writing by the Parties, the due
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date shall not be sooner than fifteen (15) days after the date the xxxx is
received by Reseller.
5.4 Charges which are not paid by the due date stated on Xxxx Atlantic's xxxx
shall be subject to a late payment charge. The late payment charge shall be in
the amount provided in the applicable Xxxx Atlantic Tariff; provided, that in
the absence of an applicable Xxxx Atlantic Tariff late payment charge, the late
payment charge shall be in an amount specified by Xxxx Atlantic, which shall not
exceed a rate of one and one-half percent (1.5%) of the over-due amount
(including any unpaid, previously billed late payment charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Xxxx Atlantic will be engaged in
developing and deploying new or modified forms of bills for Telecommunications
Carriers who are engaged in the resale of Xxxx Atlantic Retail
Telecommunications Services and new or modified systems and methods for
computing and rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified forms of
bills and such new or modified systems and methods for computing and rendering
bills, Xxxx Atlantic's form of xxxx and systems and methods for computing and
rendering bills may be subject to limitations and restrictions, including, but
not limited to, the limitations stated in Section 5.5.3, below, the inability to
provide Reseller with a single, consolidated xxxx for all Xxxx Atlantic Services
purchased by Reseller, and the unavailability of bills and billing information
in an electronic form (e.g., bills may be rendered in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified forms of
bills and the new or modified systems and methods for computing and rendering
bills, Xxxx Atlantic may apply the discount identified in Exhibit II, Section
1.1, in a manner (including, but not limited to, in a "bottom-of-the-xxxx"
format) that results in the Exhibit II, Section 1.1 discount being applied to
charges stated in the xxxx (including, but not limited to, Subscriber Line
Charges, Federal Line Cost Charges, end user common line charges, carrier
selection and change charges, Audiotex Service charges, and charges for services
which are not Xxxx Atlantic Retail Telecommunications Services) which are not
subject to the Exhibit II, Section 1.1 discount. Xxxx Atlantic will implement a
"true-up" process and within six (6) months after the due date of each monthly
xxxx, issue to Reseller a "true-up" xxxx for amounts which were not collected
from Reseller under the monthly xxxx because of the application of the Exhibit
II, Section 1.1 discount to charges which are not subject to the Exhibit II,
Section 1.1 discount. The "true-up" xxxx may be issued as a part of or an entry
on a monthly xxxx, as a xxxx separate from a monthly xxxx, or in such other form
as Xxxx Atlantic may determine.
5.6 Although it is the intent of Xxxx Atlantic to submit timely and accurate
bills, failure by Xxxx Atlantic to present bills (including, but not limited to,
monthly bills and "true-up" bills) to Reseller in a timely or accurate manner
shall not constitute a breach or default of this Agreement, or a waiver of a
right of payment of the incurred charges, by Xxxx Atlantic. Reseller shall not
be entitled to dispute charges for Xxxx Atlantic Services provided by Xxxx
Atlantic based on Xxxx Atlantic's failure to submit a xxxx for the charges in a
timely fashion.
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Notwithstanding the foregoing, closure of a specific billing period shall
occur by joint agreement of Xxxx Atlantic and Reseller whereby such billing
period is closed to further charges, analysis and financial transactions,
within one (l) year of the xxxx date.
6. TERM
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6.1 The term of this Agreement shall commence on the Effective Date, and,
except as otherwise provided in this Agreement, shall remain in effect
through May 28, 1998.
6.2 Following the expiration of the term of this Agreement specified in
Section 6.1, this Agreement, as amended from time to time, shall remain in
effect as to any Expiration Date Xxxx Atlantic Service for the remainder of
the Contract Period applicable to such Expiration Date Xxxx Atlantic
Service at the time of the expiration of this Agreement. If an Expiration
Date Xxxx Atlantic Service is terminated prior to the expiration of the
Contract Period applicable to such Expiration Date Xxxx Atlantic Service,
Reseller shall pay any termination charge provided for in this Agreement,
as amended from time-to-time. Following expiration of the applicable
Contract Period for an Expiration Date Xxxx Atlantic Service, the
Expiration Date Xxxx Atlantic Service, until terminated, shall be subject
to any applicable new agreement executed by the Parties, or, to the extent
such Expiration Date Xxxx Atlantic Service is not covered by a new
agreement executed by the Parties, to applicable Xxxx Atlantic Tariffs.
7. SERVICE INSTALLATION AND MAINTENANCE
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Reseller shall comply with Xxxx Atlantic's processes and procedures
(including, but not limited to, requirements by Xxxx Atlantic that Reseller
use Xxxx Atlantic OSS Services or Xxxx Atlantic Pre-OSS Services) for the
communication to Xxxx Atlantic of (a) Reseller's Orders to provide, change
or terminate, Xxxx Atlantic Services, and (b) Reseller's requests for
information about, assistance in using, or repair or maintenance of, Xxxx
Atlantic Services. Xxxx Atlantic may, from time-to-time, upon notice to
Reseller, change these processes and procedures.
8. ASSIGNMENT
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8.1 Reseller shall not assign this Agreement or any right or interest under
this Agreement, nor delegate any obligation under this Agreement, without
the prior written approval of Xxxx Atlantic, which approval shall not be
unreasonably withheld, conditioned or delayed. Any attempted assignment or
delegation in contravention of the foregoing shall be void and ineffective.
8.2 Xxxx Atlantic may, without the consent of Reseller, assign this
Agreement or any right or interest under this Agreement, and/or delegate
any obligation under this Agreement, to any of Xxxx Atlantic's Affiliates,
or to a person with which Xxxx Atlantic merges or which acquires
substantially all of Xxxx Atlantic's assets.
9. AVAILABILITY OF SERVICE
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9.1 Except as otherwise stated in Xxxx Atlantic's Tariffs, Xxxx Atlantic
shall be obligated to provide Xxxx Atlantic Services to Reseller under this
Agreement only where Xxxx Atlantic is able, without unreasonable expense
(as determined by Xxxx Atlantic in its reasonable judgment), (a) to obtain,
retain, install and maintain suitable facilities for the provision of such
Xxxx Atlantic Services, and (b) to obtain, retain and maintain suitable
rights for the provision of such Xxxx Atlantic Services.
9.2 Xxxx Atlantic's obligation to provide a Xxxx Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Xxxx Atlantic Retail Telecommunications Service to
Reseller where, and to the same extent, that Xxxx Atlantic provides such
Xxxx Atlantic Retail Telecommunications Service to Xxxx Atlantic's own end
user retail customers.
10. BRANDING
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10.1 Except as stated in Section 10.2, in providing Xxxx Atlantic Services
to Reseller, Xxxx Atlantic shall have the right, but not the obligation, to
identify the Xxxx Atlantic Services with Xxxx Atlantic's trade names,
trademarks and service marks. Any such identification of the Xxxx Atlantic
Services shall not constitute the grant of a license or other right to
Reseller to use Xxxx Atlantic's trade names, trade marks or service marks.
10.2 To the extent required by Applicable Law, upon request by Reseller and
at prices, terms and conditions to be negotiated by Reseller and Xxxx
Atlantic, Xxxx Atlantic shall provide Xxxx Atlantic Retail
Telecommunications Services that are identified by Reseller's trade name,
or that are not identified by trade name, trademark or service xxxx.
11. CHOICE OF LAW
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11.1 The construction, interpretation and performance of this Agreement
shall be governed by the laws of the United States of America and the laws
of Jurisdiction (without regard to Jurisdiction's conflicts of laws rules).
All disputes relating to this Agreement shall be resolved through the
application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court, commission
or other governmental entity in which a claim, suit or proceeding which
arises out of or in connection with this Agreement or Xxxx Atlantic
Services provided under this Agreement and in which Xxxx Atlantic is a
party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
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12.1 Each Party shall in its performance of this Agreement comply with
Applicable Law, including, but not limited to, all applicable regulations
and orders of the Commission and the Federal Communications Commission.
12.2 Reseller shall in providing Xxxx Atlantic Retail Telecommunications
Services to
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Reseller Customers comply with Applicable Law, including, but not limited
to, all applicable regulations and orders of the Commission and the Federal
Communications Commission.
13. CONTINGENCIES
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Neither Party shall be liable for any delay or failure in performance by it
which results from strikes, labor slowdowns, or other labor disputes,
fires, explosions, floods, earthquakes, volcanic action, delays in
obtaining or inability to obtain necessary services, facilities, equipment,
parts or repairs thereof, power failures, embargoes, boycotts, unusually
severe weather conditions, revolution, riots or other civil disturbances,
war or acts of the public enemy, acts of God, or causes beyond the Party's
reasonable control.
14. RESELLER'S PROVISION OF SERVICE
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14.1 Prior to providing Xxxx Atlantic Retail Telecommunications Services
purchased by Reseller under this Agreement to Reseller Customers, Reseller
shall obtain from the Commission, the Federal Communications Commission,
and any other applicable governmental entities, any certificates or other
authorizations required by Applicable Law for Reseller to provide
Telecommunications Services. Reseller shall promptly notify Xxxx Atlantic
in writing of any governmental action which suspends, cancels or withdraws
any such certificate or authorization, or otherwise limits or affects
Reseller's right to provide Telecommunications Services.
14.2 To the extent required by Applicable Law, Reseller shall: (a) file
with the Commission, the Federal Communications Commission, and/or other
applicable governmental entities, the tariffs, arrangements and other
documents that set forth the terms, conditions and prices under which
Reseller provides Telecommunications Services; and, (b) make available for
public inspection, the tariffs, arrangements and other documents that set
forth the terms, conditions and prices under which Reseller provides
Telecommunications Services.
15. RESELLER'S RESALE AND USE OF SERVICE
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15.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Xxxx Atlantic's Tariffs) regarding resale
or use of Xxxx Atlantic Services, including, but not limited to, any
restrictions on resale or use of Xxxx Atlantic Services.
15.2 Without in any way limiting Section 15.1, (a) Reseller shall not
resell residential service to persons not eligible to subscribe to such
service from Xxxx Atlantic (including, but not limited to, business
Reseller Customers and other nonresidential Reseller Customers), and (b)
Reseller shall not resell Lifeline or other means-tested service offerings,
or grandfathered or discontinued service offerings, to persons not eligible
to subscribe to such service offerings from Xxxx Atlantic.
15.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Xxxx Atlantic's Tariffs applicable
to their use of Xxxx Atlantic Retail
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Telecommunications Services.
15.4.1 Without in any way limiting Reseller's obligations under Section 12,
Reseller shall comply with Applicable Law with regard to end user selection
of a primary Telephone Exchange Service provider. Until the Commission or
the Federal Communications Commission adopts regulations and/or orders
applicable to end user selection of a primary Telephone Exchange Service
provider, Reseller shall apply the rules and procedures set forth in
Section 64.1100 of the FCC Rules, 47 CFR (S) 64.1100, to the process for
end user selection of a primary Telephone Exchange Service provider
(including, to end user selection of a primary Telephone Exchange Service
provider that occurs during any telemarketing contact with an end user),
and shall comply with such rules and procedures.
15.4.2 By submitting to Xxxx Atlantic an Order to install, provide, change
or terminate a Telecommunications Service, to select, change or reassign a
telephone number, or to select, change or terminate an end user's primary
Telephone Exchange Service provider, Reseller represents and warrants: (a)
that Reseller has obtained authorization for such action from the
applicable end user; and, (b) that if Applicable Law and/or this Agreement
required such authorization to be obtained in a particular manner, Reseller
obtained the authorization in the manner required by Applicable Law and
this Agreement. Reseller shall upon request by Xxxx Atlantic provide proof
of such authorization (including, a copy of any written authorization).
15.4.3 If Reseller submits an Order to Xxxx Atlantic to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's primary Telephone Exchange Service provider, and (a) when requested
by Xxxx Atlantic to provide a written document signed by the end user
stating the end user's primary Telephone Exchange Service provider
selection, fails to provide such document to Xxxx Atlantic, or (b) has not
obtained authorization for such installation, provision, selection, change,
reassignment or termination, from the end user in the manner required by
Applicable Law (or, in the absence of Applicable Law, in the manner
required by the rules and procedures in 47 CFR (S) 64.1100), Reseller shall
be liable to Xxxx Atlantic for all charges that would be applicable to the
end user for the initial installation, provision, selection, change,
reassignment or termination, of the end user's Telecommunications Service,
telephone number, and/or primary Telephone Exchange Service provider, and
any charges for restoring the end user's Telecommunications Service,
telephone number, and/or primary Telephone Exchange Service provider
selection, to its end user authorized condition.
15.5.1 Without in any way limiting Reseller's obligations under Section 12,
Reseller shall comply with Applicable Law with regard to Customer
Information, including, but not limited to, 47 U.S.C. (S) 222. Reseller
shall not access (including, but not limited to, through Xxxx Atlantic OSS
Services and Xxxx Atlantic Pre-OSS Services), use or disclose Customer
Information made available to Reseller by Xxxx Atlantic pursuant to this
Agreement unless Reseller has obtained any customer authorization for such
access, use and/or disclosure required by Applicable Law. By accessing,
using or disclosing Customer Information, Reseller represents and warrants
that Reseller has obtained authorization for such action from the
applicable customer in the manner required by Applicable Law and this
Agreement.
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Reseller shall upon request by Xxxx Atlantic provide proof of such
authorization (including, a copy of any written authorization).
15.5.2 Xxxx Atlantic shall have the right to audit Reseller to ascertain
whether Reseller is complying with the requirements of Applicable Law and
this Agreement, with regard to Reseller's access to, and use and disclosure
of, Customer Information which is made available to Reseller by Xxxx
Atlantic pursuant to this Agreement.
15.5.3 Without in any way limiting Section 15.5.2, to the extent permitted
by Applicable Law, Xxxx Atlantic shall have the right to monitor Reseller's
access to and use of Customer Information which is made available by Xxxx
Atlantic to Reseller pursuant to this Agreement, to ascertain whether
Reseller is complying with the requirements of Applicable Law and this
Agreement, with regard to Reseller's access to, and use and disclosure of,
such Customer Information. The foregoing right shall include, but not be
limited to, to the extent permitted by Applicable Law, the right to
electronically monitor Reseller's access to and use of Customer Information
which is made available by Xxxx Atlantic to Reseller pursuant to this
Agreement through electronic interfaces or gateways.
15.6.1 Reseller shall be the single point of contact for Reseller Customers
and other persons with regard to Telecommunications Services and other
services and products which they wish to purchase from Reseller or which
they have purchased from Reseller. Communications by Reseller Customers and
other persons with regard to Telecommunications Services and other services
and products which they wish to purchase from Reseller or which they have
purchased from Reseller, shall be made to Reseller, and not to Xxxx
Atlantic. Reseller shall instruct Reseller Customers and other persons that
such communications shall be directed to Reseller.
15.6.2 Without in any way limiting Section 15.6.1, Reseller shall be the
single point of contact for Reseller Customers (a) to request information
about or provision of Telecommunications Services which they wish to
purchase from Reseller, (b) to change, terminate, or request information
about, assistance in using, or repair or maintenance of, Telecommunications
Services which they have purchased from Reseller, and (c) to make inquiries
concerning Reseller's bills, charges for Reseller's Telecommunications
Services, and, if the Reseller Customers receive dial tone line service
from Reseller, annoyance calls. Requests by Reseller Customers for
information about or provision of Telecommunications Services which they
wish to purchase from Reseller, requests by Reseller Customers to change,
terminate, or obtain information about, assistance in using, or repair or
maintenance of, Telecommunications Services which they have purchased from
Reseller, and inquiries by Reseller Customers concerning Reseller's bills,
charges for Reseller's Telecommunications Services, and, if the Reseller
Customers receive dial tone line service from Reseller, annoyance calls,
shall be made by the Reseller Customers to Reseller, and not to Xxxx
Atlantic.
15.6.3 Reseller shall establish telephone numbers at which Reseller
Customers and other persons may communicate with Reseller and shall advise
Reseller Customers and other
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persons who may wish to communicate with Reseller of these telephone
numbers.
15.7.1 Reseller's use of telephone numbers shall be subject to Applicable
Law (including, but not limited to, the rules of the Federal Communications
Commission, the North American Numbering Council, and the North American
Numbering Plan Administrator), the applicable provisions of this Agreement
(including, but not limited to, this Section 15.7), and Xxxx Atlantic's
practices and procedures for use and assignment of telephone numbers, as
amended from time-to-time.
15.7.2 Subject to Sections 15.7.1 and 15.7.3, if an end user who subscribes
to a Xxxx Atlantic Retail Telecommunications Service dial tone line from
either Reseller or Xxxx Atlantic changes the Telecommunications Carrier
from whom the end user subscribes for such dial tone line (including a
change from Xxxx Atlantic to Reseller, from Reseller to Xxxx Atlantic, or
from Reseller to a Telecommunications Carrier other than Xxxx Atlantic),
after such change, the end user may continue to use with the dial tone line
the telephone numbers which were assigned to the dial tone line by Xxxx
Atlantic immediately prior to the change.
15.7.3 Xxxx Atlantic shall have the right to change the telephone numbers
used by an end user if at any time: (a) the type or class of service
subscribed to by the end user changes; (b) the end user requests service at
a new location, that is not served by the Xxxx Atlantic switch and the Xxxx
Atlantic rate center from which the end user previously had service; or,
(c) continued use of the telephone numbers is not technically feasible.
15.7.4 If service on a Xxxx Atlantic Retail Telecommunications Service dial
tone line subscribed to by Reseller from Xxxx Atlantic under this Agreement
is terminated, the telephone numbers associated with such dial tone line
shall be available for reassignment by Xxxx Atlantic to any person to whom
Xxxx Atlantic elects to assign the telephone numbers, including, but not
limited to, Xxxx Atlantic, Xxxx Atlantic end user retail customers,
Reseller, or Telecommunications Carriers other than Xxxx Atlantic and
Reseller.
15.8 Reseller shall comply with Applicable Law, and Xxxx Atlantic's
procedures, for handling requests from law enforcement and other government
agencies for service termination, assistance with electronic surveillance,
and provision of information.
16. COUNTERPARTS
------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which shall together constitute one
and the same instrument.
17. DEFAULT
-------
17.1 If Reseller materially breaches a material provision of this Agreement
(other than an obligation to make payment of any amount billed under this
Agreement), and such breach continues for more than thirty (30) days after
written notice thereof from Xxxx Atlantic, then, except as otherwise
required by Applicable Law, Xxxx Atlantic shall have the right, upon
12
notice to Reseller, to terminate or suspend this Agreement and/or provision
of Xxxx Atlantic Services, in whole or in part.
17.2.1 If Reseller fails to make a payment of any amount billed under this
Agreement by the due date stated on the xxxx and such failure continues for
more than thirty (30) days after written notice thereof from Xxxx Atlantic,
then, except as provided in Section 17.2.2, below, or as otherwise required
by Applicable Law, Xxxx Atlantic shall have the right, upon notice to
Reseller, to terminate or suspend this Agreement and/or provision of Xxxx
Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning the
obligation of Reseller to make payment of an amount billed under this
Agreement, the failure to pay the amount in dispute shall not constitute
cause for termination or suspension of this Agreement or provision of Xxxx
Atlantic Services, if, within thirty (30) days of the date that Xxxx
Atlantic gives Reseller written notice of the failure to pay the amount in
dispute, Reseller (a) gives Xxxx Atlantic written notice of the dispute
stating the basis of the dispute, and (b) furnishes to Xxxx Atlantic an
irrevocable letter of credit or other security arrangement acceptable to
Xxxx Atlantic, guaranteeing payment to Xxxx Atlantic of any portion of the
disputed amount (including the whole of the disputed amount) which is
thereafter agreed by Xxxx Atlantic and Reseller, or determined by a court
or other governmental entity of appropriate jurisdiction, to be due to Xxxx
Atlantic. The existence of such a dispute shall not relieve Reseller of its
obligations to pay any undisputed amount which is due to Xxxx Atlantic and
to otherwise comply with this Agreement.
18. FACILITIES
----------
18.1 Xxxx Atlantic or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Xxxx Atlantic Services. During the
period in which Xxxx Atlantic Services are provided, Xxxx Atlantic shall
have free and unimpeded access at all reasonable times to Reseller and
Reseller Customer locations for the purpose of installing, inspecting,
maintaining, and repairing, all facilities, equipment, software, and
wiring, used to provide the Xxxx Atlantic Services. At the conclusion of
the period in which Xxxx Atlantic Services are provided, Xxxx Atlantic
shall have free and unimpeded access at Reseller and Reseller Customer
locations at all reasonable times to remove all facilities, equipment,
software, and wiring, used to provide the Xxxx Atlantic Services. Reseller
shall, at Reseller's expense, obtain any rights and authorizations
necessary for such access.
18.2 Except as otherwise agreed to in writing by Xxxx Atlantic, Xxxx
Atlantic shall not be responsible for the installation, inspection, repair,
maintenance, or removal, of facilities, equipment, software, or wiring,
provided by Reseller or Reseller Customers for use with Xxxx Atlantic
Services.
19. INTELLECTUAL PROPERTY
---------------------
13
Except as expressly stated in this Agreement, nothing contained within this
Agreement shall be construed as the grant of a license, either express or
implied, with respect to any patent, copyright, trade name, trade xxxx,
service xxxx, trade secret, or other proprietary interest or intellectual
property, now or hereafter owned, controlled or licensable by either Party.
20. JOINT WORK PRODUCT
------------------
The Principal Document is the joint work product of the representatives of
the Parties. For convenience, the Principal Document has been drafted in
final form by Xxxx Atlantic. Accordingly, in the event of ambiguities, no
inferences shall be drawn against either Party solely on the basis of
authorship of the Principal Document.
21. LIABILITY
---------
21.1.1 AS USED IN THIS SECTION 21, "OTHER XXXX ATLANTIC PERSONS" MEANS XXXX
ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND
CONTRACTORS, OF XXXX ATLANTIC AND XXXX ATLANTIC'S AFFILIATES.
21.1.2 AS USED IN THIS SECTION 21, "XXXX ATLANTIC SERVICE FAILURE" MEANS
ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A XXXX ATLANTIC
SERVICE, OR ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT,
FAULT, FAILURE, OR DEFICIENCY, IN A XXXX ATLANTIC SERVICE.
21.2 THE LIABILITY, IF ANY, OF XXXX ATLANTIC AND OTHER XXXX ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC
SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH IN XXXX
ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE XXXX ATLANTIC TARIFFS APPLICABLE TO A XXXX
ATLANTIC SERVICE DO NOT CONTAIN A PROVISION WHICH LIMITS OR EXCLUDES THE
LIABILITY OF XXXX ATLANTIC AND/OR OTHER XXXX ATLANTIC PERSONS TO RESELLER,
RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES
ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC SERVICE FAILURE,
SECTION 21.3.3 SHALL APPLY.
21.3.2 TO THE EXTENT A XXXX ATLANTIC SERVICE IS NOT SUBJECT TO A XXXX
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF XXXX ATLANTIC AND OTHER XXXX ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY
14
OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH A XXXX ATLANTIC SERVICE FAILURE, SHALL BE LIMITED TO A
TOTAL AMOUNT NOT IN EXCESS OF: (A) TWICE THE PROPORTIONATE CHARGE FOR THE
XXXX ATLANTIC SERVICE AFFECTED DURING THE PERIOD OF THE XXXX ATLANTIC
SERVICE FAILURE; OR, (B) IF THERE IS NO CHARGE FOR THE XXXX ATLANTIC
SERVICE AFFECTED, FIVE HUNDRED DOLLARS ($500.00).
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION 21.3.1,
SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, XXXX ATLANTIC AND OTHER XXXX
ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER, RESELLER CUSTOMERS,
AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR HARM TO
BUSINESS, LOST REVENUES, LOST PROFITS, LOST SAVINGS, OR OTHER COMMERCIAL OR
ECONOMIC LOSS), ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC
SERVICE FAILURE OR ANY BREACH OR FAILURE IN PERFORMANCE OF THIS AGREEMENT
BY XXXX ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS 21.2
THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A CLAIM OR ACTION,
WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, THE
NEGLIGENCE OF XXXX ATLANTIC AND/OR OTHER XXXX ATLANTIC PERSONS), STRICT
LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER XXXX ATLANTIC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with Reseller
Customers, provide that in no case shall Xxxx Atlantic or Other Xxxx
Atlantic Persons be liable to Reseller Customers or to any other third
parties for any indirect, special, incidental, consequential, or other
damages, including, but not limited to, harm to business, lost revenues,
lost profits, lost savings, or other commercial or economic loss, whether
foreseeable or not, and regardless of notification of the possibility of
such damages. Reseller shall indemnify, defend and hold Xxxx Atlantic and
Other Xxxx Atlantic Persons harmless from claims by Reseller Customers and
other third parties as provided in Xxxx Atlantic's Tariffs.
21.7 Xxxx Atlantic's obligations under this Agreement shall extend only to
Reseller. Xxxx Atlantic shall have no liability under this Agreement to
Reseller Customers or to any other third party. Nothing in this Agreement
shall be deemed to create a third party beneficiary relationship between
Xxxx Atlantic and Reseller Customers or any other third party.
21.8 Reseller shall indemnify, defend and hold harmless Xxxx Atlantic, Xxxx
Atlantic's Affiliates, and the directors, officers and employees of Xxxx
Atlantic and Xxxx Atlantic's Affiliates, from any claims, suits, government
proceedings, judgments, fines, liabilities, losses, damages, costs or
expenses (including reasonable attorneys fees) arising out of or
15
resulting from: (a) the failure of Reseller to transmit to Xxxx Atlantic a
request by a Reseller Customer to install, provide, change or terminate, a
Xxxx Atlantic Retail Telecommunications Service; (b) the transmission by
Reseller to Xxxx Atlantic of an Order to install, provide, change or
terminate, a Xxxx Atlantic Retail Telecommunications Service, which Order
was not authorized by the applicable Reseller Customer; (c) erroneous or
inaccurate information in an Order transmitted by Reseller to Xxxx
Atlantic; (d) the transmission by Reseller to Xxxx Atlantic of an Order to
change or terminate a Telecommunications Service provided to an end user by
Xxxx Atlantic or another Telecommunications Service provider, or to install
or provide a Telecommunications Service for an end user, which Order was
not authorized by the applicable end user; (e) the transmission by Reseller
to Xxxx Atlantic of an Order to select, change or reassign a telephone
number for an end user, which Order was not authorized by the applicable
end user; (f) the transmission by Reseller to Xxxx Atlantic of an Order to
select a primary Telephone Exchange Service provider for an end user, or to
change or terminate an end user's selection of a primary Telephone Exchange
Service provider, which Order was not authorized by the applicable end user
in the manner required by Applicable Law (or, in the absence of such
Applicable Law, in the manner required by the rules and procedures in 47
CFR (S) 64.1100); (g) access to, or use or disclosure of, Customer
Information or Xxxx Atlantic OSS Information by Reseller or Reseller's
employees, Agents or contractors; (h) the failure of Reseller to transmit,
or to transmit in a timely manner, E911/911 information to Xxxx Atlantic;
(i) erroneous or inaccurate E911/911 information transmitted by Reseller to
Xxxx Atlantic; (j) any information provided by Reseller for inclusion in
Xxxx Atlantic's LIDB; or, (k) the marketing, advertising or sale of
Reseller's services and/or products (including, but not limited to, resold
Xxxx Atlantic Retail Telecommunications Services), or the billing or
collection of charges for Reseller's services and/or products (including,
but not limited to, resold Xxxx Atlantic Retail Telecommunications
Services). For the purposes of Section 21.8(b), (d) and (e), an Order shall
be deemed not to have been authorized by a Reseller Customer or end user if
Applicable Law and/or this Agreement required such authorization to be
obtained in a particular manner, and Reseller did not obtain the
authorization in the manner required by Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
----------------------
Except as otherwise expressly provided in this Agreement, each of the
remedies provided under this Agreement is cumulative and is in addition to
any other remedies that may be available under this Agreement or at law or
in equity.
23. NOTICES
-------
All notices and other communications under this Agreement shall be deemed
effective upon receipt by the Party being notified, provided such notices
or communications are in writing and are sent by certified or registered
mail, return receipt requested, or by a reputable private delivery service
which provides a record of delivery, and addressed as shown below:
TO XXXX ATLANTIC: Xxxx Atlantic - Virginia, Inc.
c/x Xxxx Atlantic Network Services, Inc.
16
0000 Xxxxx Xxxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Director, Resale
Initiatives
TO RESELLER: VIC-RMTS-DC, L.L.C.
c/o OnePoint Communications, L.L.C.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: President
Either Party may from time-to-time designate another address or addressee
by giving notice in accordance with this Section 23.
24. REGULATORY APPROVALS
--------------------
24.1 Within thirty (30) days after execution of this Agreement by the
Parties, Xxxx Atlantic shall file the Agreement with the Commission for
approval by the Commission.
24.2 Each Party shall exercise reasonable efforts (including reasonably
cooperating with the other Party) to secure approval of this Agreement, and
any amendment to this Agreement agreed to by the Parties, from the
Commission, the Federal Communications Commission, and other applicable
governmental entities.
24.3 Upon request by Xxxx Atlantic, Reseller shall, at Reseller's expense,
provide reasonable, good-faith support and assistance to Xxxx Atlantic in
obtaining any governmental approvals necessary for (a) this Agreement and
any amendment to this Agreement agreed to by the Parties, and/or (b) the
provision of Xxxx Atlantic Services by Xxxx Atlantic to Reseller. Without
in any way limiting the foregoing, upon request by Xxxx Atlantic, Reseller
shall (a) join in petitions requesting approval of this Agreement, or an
amendment to this Agreement agreed to by the Parties, to be filed with the
Commission, the Federal Communications Commission, or other applicable
governmental entities, and (b) file other documents with and present
testimony to the Commission, the Federal Communications Commission, or
other applicable governmental entities, requesting approval of this
Agreement or an amendment to this Agreement agreed to by the Parties.
25. REGULATORY CONTINGENCIES
------------------------
25.1 Neither Party shall be liable for any delay or failure in performance
by it which results from requirements of Applicable Law, or acts or
failures to act of any governmental entity or official.
25.2 In the event that any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable any other
17
provision of this Agreement, and this Agreement shall be construed as if it
did not contain such invalid or unenforceable provision.
25.3 In the event that any legislative, regulatory, judicial or other
governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit Xxxx
Atlantic to continue to provide and Reseller to continue to purchase Xxxx
Atlantic Services, including, but not limited to, conducting good faith
negotiations to enter into a mutually acceptable modified or substitute
agreement, filing tariffs, or additional, supplemental or modified tariffs,
and making other required filings with governmental entities.
25.4 In the event of a governmental action described in Section 25.3,
above, to the extent permitted by Applicable Law, Xxxx Atlantic shall
continue to provide and Reseller shall continue to subscribe to, use and
pay for, any Xxxx Atlantic Services affected by the governmental action
until the action to be taken by Xxxx Atlantic and Reseller under Section
25.3, above, is taken and becomes effective in accordance with Applicable
Law. Such provision of and subscription to, use of and payment for, the
affected Xxxx Atlantic Services shall be in accordance with the terms
(including prices) of this Agreement, unless other terms, including but not
limited to the terms of a Xxxx Atlantic Tariff, are required by Applicable
Law.
25.5 If suspension or termination of the provision of any Xxxx Atlantic
Service is required by or as a result of a governmental action, such
suspension or termination shall not affect Reseller's subscription to, use
or obligation to pay for, other Xxxx Atlantic Services, unless such
suspension or termination has a material, adverse effect on Reseller's
ability to use the other Xxxx Atlantic Services.
25.6 If any of the Xxxx Atlantic Services to be provided by Xxxx Atlantic
pursuant to a tariff shall at any time become detariffed or deregulated,
Xxxx Atlantic may transfer the provisions of the tariff relative to such
Xxxx Atlantic Services to a Xxxx Atlantic "Guide for Detariffed Services"
or similar document, and such "Guide for Detariffed Services" or similar
document, as amended by Xxxx Atlantic from time-to-time, shall become a
part of this Agreement.
26. RELATIONSHIP OF THE PARTIES
---------------------------
26.1 The relationship between the Parties under this Agreement shall be
that of independent contractors.
26.2 Nothing contained in this Agreement shall:
(a) make either Party the Agent or employee of the other Party;
18
(b) grant either Party the authority to enter into a contract on
behalf of, or otherwise legally bind, the other Party in any way;
(c) creat e a partnership, joint venture or other similar relationship
between the parties; or
(d) grant to Reseller a franchise, distributorship or similar
interest.
26.3 Each Party shall be solely responsible for selection, supervision,
termination, and compensation, of its respective employees, Agents and
contractors.
26.4 Each Party shall be solely responsible for payment of any Social
Security or other taxes which it is required by Applicable Law to pay in
conjunction with its employees, Agents or contractors, and for collecting
and remitting to applicable taxing authorities any taxes which it is
required by Applicable Law to collect from its employees, Agents or
contractors.
26.5 The relationship of the Parties under this Agreement is a non-
exclusive relationship. Xxxx Atlantic shall have the right to provide
services to be provided by Xxxx Atlantic under this Agreement to persons
other than Reseller. Reseller shall have the right to purchase services to
be purchased by Reseller under this Agreement from persons other than Xxxx
Atlantic.
27. RESPONSIBILITY FOR CHARGES
--------------------------
27.1 Reseller shall be responsible for and pay all charges for any Xxxx
Atlantic Service provided by Xxxx Atlantic to Reseller, whether the Xxxx
Atlantic Service is ordered, activated or used by Reseller, a Reseller
Customer, or another person.
27.2 In addition to the charges for Xxxx Atlantic Services, Reseller agrees
to pay, and to indemnify, defend and hold Xxxx Atlantic harmless from, any
charges for Telecommunications Services, facilities, equipment, software,
wiring, or other services or products, ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or in
association with, Xxxx Atlantic Services provided by Xxxx Atlantic to
Reseller, whether provided or billed for by Xxxx Atlantic or persons other
than Xxxx Atlantic (including, but not limited to, charges billed to any
line, telephone number or other Xxxx Atlantic Service provided by Xxxx
Atlantic, or to any Reseller account with Xxxx Atlantic, and charges for
intraLATA and interLATA toll calls, 1+ calls, 10XXX calls, 101XXXX calls,
900, 888, 800, 700, 555, 500 and N11 number calls, Audiotex Service, Dial-
It, 976, 915 and 556 calls, "pay-per-call" services, Operator Services
calls, Directory Assistance calls, and calling card, collect, and xxxx-to-
third-number calls).
27.3 Without in any way limiting Reseller's obligations under Section 27.1
and Section 27.2, Reseller shall pay, or collect and remit to Xxxx
Atlantic, without discount, all Subscriber Line Charges, Federal Line Cost
Charges, end user common line charges, and carrier selection and change
charges, associated with Xxxx Atlantic Services provided by Xxxx
19
Atlantic to Reseller.
27.4 Upon request by Reseller, Xxxx Atlantic will provide for use on
resold Xxxx Atlantic Retail Telecommunications Service dial tone lines
purchased by Reseller such Xxxx Atlantic Retail Telecommunications Service
call blocking services as Xxxx Atlantic provides to Xxxx Atlantic's own end
user retail customers, where and to the extent Xxxx Atlantic provides such
Xxxx Atlantic Retail Telecommunications Service call blocking services to
Xxxx Atlantic's own end user retail customers.
28. SECTION HEADINGS
----------------
The section headings in the Principal Document are for convenience only and
are not intended to affect the meaning or interpretation of the Principal
Document.
29. SERVICES NOT COVERED BY THIS AGREEMENT
--------------------------------------
29.1 This Agreement applies only to Xxxx Atlantic Services (as the term
"Xxxx Atlantic Service" is defined in Section 1.1.6) provided, or to be
provided, by Xxxx Atlantic to Reseller, as specified in Section 3. Any
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products, interconnected or used with Xxxx Atlantic
Services provided, or to be provided, by Xxxx Atlantic to Reseller)
provided, or to be provided, by Xxxx Atlantic to Reseller, which are not
subscribed to by Reseller under this Agreement, must be subscribed to by
Reseller separately, pursuant to other written agreements (including, but
not limited to, applicable Xxxx Atlantic Tariffs). Reseller shall use and
pay for any Telecommunications Services, facilities, equipment, software,
wiring, or other services or products, provided, or to be provided, by Xxxx
Atlantic to Reseller, which are not subscribed to by Reseller under this
Agreement, in accordance with such other written agreements (including, but
not limited to, applicable Xxxx Atlantic Tariffs).
29.2 Without in any way limiting Section 29.1 and without attempting to
list all Xxxx Atlantic products and services that are not subject to this
Agreement, the Parties agree that this Agreement does not apply to the
purchase by Reseller of the following Xxxx Atlantic services and products:
except as expressly stated in the Principal Document, exchange access
services as defined in Section 3(16) of the Act, 47 U.S.C. (S) 153(16)
(including, but not limited to, primary interLATA toll carrier and primary
intraLATA toll carrier choice or change); Xxxx Atlantic Answer Call, Xxxx
Atlantic Answer Call Plus, Xxxx Atlantic Home Voice Mail, Xxxx Atlantic
Home Voice Mail Plus, Xxxx Atlantic Voice Mail, Xxxx Atlantic Basic
Mailbox, Xxxx Atlantic OptiMail Service, and other voice mail, fax mail,
voice messaging, and fax messaging, services; Xxxx Atlantic Optional Wire
Maintenance Plan; Xxxx Atlantic Guardian Enhanced Maintenance Service; Xxxx
Atlantic Sentry I Enhanced Maintenance Service; Xxxx Atlantic Sentry II
Enhanced Maintenance Service; Xxxx Atlantic Sentry III Enhanced Maintenance
Service; Xxxx Atlantic Call 54 Service; Xxxx Atlantic Public Telephone
Service; customer premises equipment; Xxxx Atlantic telephone directory
listings
20
offered under agreements or arrangements other than Xxxx Atlantic Tariffs
filed with the Commission; and, Xxxx Atlantic telephone directory
advertisements.
29.3 Without in any way limiting Section 29.1, the Parties also agree that
this Agreement does not apply to the installation, inspection, maintenance,
repair, removal, or use of any facilities, equipment, software, or wiring,
located on Reseller's side of the Network Rate Demarcation Point applicable
to Reseller and does not grant to Reseller or Reseller Customers a right to
installation, inspection, maintenance, repair, or removal, by Xxxx
Atlantic, or use, by Reseller or Reseller Customers, of any such
facilities, equipment, software, or wiring.
29.4 Without in any way limiting Section 30.1, the Parties agree that this
Agreement does not apply to the purchase by Reseller of Xxxx Atlantic
Audiotex Services, including, but not limited to, Dial-It, 976, 915 and 556
services. Reseller shall block, and Xxxx Atlantic shall have the right (but
not the obligation) to block, calls made to Audiotex Service numbers
(including, but not limited to, Dial-It numbers and 976, 915 and 556
numbers) through Xxxx Atlantic Services purchased by Reseller under this
Agreement until Reseller enters into a separate written agreement with Xxxx
Atlantic for the billing and collection of charges for such calls.
29.5 Nothing contained within this Agreement shall obligate Xxxx Atlantic
to provide any service or product which is not a Xxxx Atlantic Service
(including, but not limited to, the services listed in Sections 29.2, 29.3
and 29.4, above) to Reseller.
29.6 Nothing contained within this Agreement shall obligate Xxxx Atlantic
to provide a Xxxx Atlantic Service or any other service or product to a
Reseller Customer. Without in any way limiting the foregoing, except as
otherwise required by Applicable Law, Xxxx Atlantic reserves the right to
terminate provision of services and products (including, but not limited
to, Telecommunications Services and the services listed in Sections 29.2
and 29.3, above) to any person who ceases to purchase Xxxx Atlantic Retail
Telecommunications Service dial tone line service from Xxxx Atlantic.
29.7 Nothing contained in this Section 29 shall in any way exclude or
limit Reseller's obligations and liabilities under Section 27, including,
but not limited to Reseller's obligations and liabilities to pay charges
for services and products as required by Section 27.
30. SERVICE QUALITY
---------------
Xxxx Atlantic Retail Telecommunications Services provided by Xxxx Atlantic
to Reseller under this Agreement shall comply with the quality requirements
for such Xxxx Atlantic Retail Telecommunications Services specified by
Applicable Law.
31. SURVIVAL
--------
Any liabilities or obligations of a Party for acts or omissions of the
Party prior to the
21
termination, cancellation or expiration of this Agreement, any liabilities
or obligations of a Party under any provision of this Agreement regarding
indemnification, Customer Information, Xxxx Atlantic OSS Information,
confidential information, or limitation or exclusion of liability, and any
liabilities or obligations of a Party under any provision of this Agreement
which by its terms is contemplated to survive (or be performed after)
termination, cancellation or expiration of this Agreement, shall survive
termination, cancellation or expiration of this Agreement.
32. TAXES
-----
32.1 With respect to any purchase of Xxxx Atlantic Services under this
Agreement, if any Federal, state or local government tax, fee, duty,
surcharge (including, but not limited to any 911, telecommunications relay
service, or universal service fund, surcharge), or other tax-like charge (a
"Tax") is required or permitted by Applicable Law to be collected from
Reseller by Xxxx Atlantic, then (a) to the extent required by Applicable
Law, Xxxx Atlantic shall xxxx Reseller for such Tax, (b) Reseller shall
timely remit such Tax to Xxxx Atlantic (including both Taxes billed by Xxxx
Atlantic and Taxes Reseller is required by Applicable Law to remit without
billing by Xxxx Atlantic), and (c) Xxxx Atlantic shall remit such collected
Tax to the applicable taxing authority.
32.2 With respect to any purchase of Xxxx Atlantic Services under this
Agreement, if any Tax is imposed by Applicable Law on the receipts of Xxxx
Atlantic, which Applicable Law permits Xxxx Atlantic to exclude certain
receipts received from sales of Xxxx Atlantic Services for resale by
Reseller, such exclusion being based on the fact that Reseller is also
subject to a Tax based upon receipts ("Receipts Tax"), then Reseller (a)
shall provide Xxxx Atlantic with notice in writing in accordance with
Section 32.7 of its intent to pay the Receipts Tax, and (b) shall timely
pay the Receipts Tax to the applicable taxing authority.
32.3 With respect to any purchase of Xxxx Atlantic Services under this
Agreement, that are resold by Reseller to a Reseller Customer, if any Tax
is imposed by Applicable Law on the Reseller Customer in connection with
the Reseller Customer's purchase of the resold Xxxx Atlantic Services which
Reseller is required to impose and/or collect from the Reseller Customer,
then Reseller (a) shall impose and/or collect such Tax from the Reseller
Customer, and (b) shall timely remit such Tax to the applicable taxing
authority.
32.4.1 If Xxxx Atlantic has not received an exemption certificate from
Reseller and fails to xxxx Reseller for any Tax as required by Section
32.1, then, as between Xxxx Atlantic and Reseller, (a) Reseller shall
remain liable for such unbilled Tax, and (b) Xxxx Atlantic shall be liable
for any interest and/or penalty assessed on the unbilled Tax by the
applicable taxing authority.
32.4.2 If Reseller fails to remit any Tax to Xxxx Atlantic as required by
Section 32.1, then, as between Xxxx Atlantic and Reseller, Reseller shall
be liable for such uncollected Tax and any interest and/or penalty assessed
on the uncollected Tax by the applicable taxing authority.
22
32.4.3 If Xxxx Atlantic does not collect a Tax because Reseller has
provided Xxxx Atlantic with an exemption certificate which is later found
to be inadequate by the applicable taxing authority, then, as between Xxxx
Atlantic and Reseller, Reseller shall be liable for such uncollected Tax
and any interest and/or penalty assessed on the uncollected Tax by the
applicable taxing authority.
32.4.4 Except as provided in Section 32.4.5, if Reseller fails to pay the
Receipts Tax as required by Section 32.2, then, as between Xxxx Atlantic
and Reseller, (a) Xxxx Atlantic shall be liable for any Tax imposed on Xxxx
Atlantic's receipts, (b) Reseller shall be liable for any interest and/or
penalty imposed on Xxxx Atlantic with respect to the Tax on Xxxx Atlantic's
receipts, and (c) Reseller shall be liable for any Tax imposed on
Reseller's receipts and any interest and/or penalty assessed by the
applicable taxing authority on Reseller with respect to the Tax on
Reseller's receipts.
32.4.5 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to, a discount
provided for in Exhibit II, Section 1) represents Tax savings to Xxxx
Atlantic which it was anticipated Xxxx Atlantic would receive, because it
was anticipated that receipts from sales of Xxxx Atlantic Services, that
would otherwise be subject to a Tax on such receipts, could be excluded
from such Tax under Applicable Law because the Xxxx Atlantic Services would
be sold to Reseller for resale, and Xxxx Atlantic is, in fact, required by
Applicable Law to pay such Tax on receipts from sales of Xxxx Atlantic
Services to Reseller, then, as between Xxxx Atlantic and Reseller, (a)
Reseller shall be liable for any such Tax, and (b) Reseller shall be liable
for any interest and/or penalty assessed by the applicable taxing authority
on either Reseller or Xxxx Atlantic with respect to the Tax on Xxxx
Atlantic's receipts.
32.4.6 If Reseller fails to impose and/or collect any Tax from Reseller
Customers as required by Section 32.3, then, as between Xxxx Atlantic and
Reseller, Reseller shall remain liable for such uncollected Tax and any
interest and/or penalty assessed on such uncollected Tax by the applicable
taxing authority.
32.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Xxxx
Atlantic Services attributable to anticipated Tax savings by Xxxx Atlantic,
or is required to impose on and/or collect from Reseller Customers,
Reseller agrees to indemnify and hold Xxxx Atlantic harmless on an after-
tax basis for any costs incurred by Xxxx Atlantic as a result of actions
taken by the applicable taxing authority to recover the Tax from Xxxx
Atlantic due to failure of Reseller to timely remit the Tax to Xxxx
Atlantic, or timely pay, or collect and timely remit, the Tax to the taxing
authority.
32.5 If either Party is audited by a taxing authority, the other Party
agrees to reasonably cooperate with the Party being audited in order to
respond to any audit inquiries in a proper and timely manner so that the
audit and/or any resulting controversy may be resolved expeditiously.
23
32.6.1 If Applicable Law clearly exempts a purchase of Xxxx Atlantic
Services under this Agreement from a Tax, and if such Applicable Law also
provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller complies with such procedure, Xxxx Atlantic
shall not collect such Tax during the effective period of the exemption.
Such exemption shall be effective upon receipt of the exemption certificate
or affidavit in accordance with Section 32.7.
32.6.2 If Applicable Law clearly exempts a purchase of Xxxx Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Xxxx Atlantic shall not collect such Tax if
Reseller (a) furnishes Xxxx Atlantic with a letter signed by an officer of
Reseller requesting an exemption and citing the provision in the Applicable
Law which clearly allows such exemption, and (b) supplies Xxxx Atlantic
with an indemnification agreement, reasonably acceptable to Xxxx Atlantic,
which holds Xxxx Atlantic harmless on an after-tax basis with respect to
forbearing to collect such Tax.
32.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 32, shall be made in writing and shall be sent by
certified or registered mail, return receipt requested, or by a reputable
private delivery service which provides a record of delivery, to the
addressee stated in Section 23 at the address stated in Section 23 and to
the following:
To Xxxx Atlantic: Tax Administration
Xxxx Atlantic Network Services, Inc.
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
To Reseller: OnePoint Communications, L.L.C.
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, Xxxxxxxx 00000
Either Party may from time-to-time designate another address or addressee
by giving notice in accordance with the terms of this Section 32.7.
Any notice or other communication shall be deemed to be given when
received.
33. WARRANTIES
----------
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, XXXX ATLANTIC MAKES NO
WARRANTIES WITH RESPECT TO XXXX ATLANTIC SERVICES, WHETHER EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW.
24
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE XXXX ATLANTIC'S EXCLUSIVE
WARRANTIES WITH RESPECT TO XXXX ATLANTIC SERVICES AND ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW.
XXXX ATLANTIC DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
----------------------------------------------------------
PURPOSE, WARRANTIES AGAINST INFRINGEMENT, AND WARRANTIES ARISING BY TRADE
-------
CUSTOM, TRADE USAGE, COURSE OF DEALING, OR OTHERWISE.
34. AUTHORIZATION
-------------
34.1 Xxxx Atlantic is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Virginia and has
full power and authority to execute and deliver this Agreement and to
perform the obligations hereunder on behalf of Xxxx Atlantic.
34.2 VIC-RMTS-DC, L.L.C., a State of Delaware limited liability company,
d/b/a OnePoint Communications, an affiliate of and trade name licenseee of
OnePoint Comunications, L.L.C., a company duly organized, validly existing
and in good standing under the laws of the State of Delaware, and has full
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder, as the case may be.
25
IN WITNESS WHEREOF, intending to be legally bound, Reseller and Xxxx
Atlantic have caused this Agreement to be executed by their respective
authorized representatives.
VIC-RMTS-DC, L.L.C.
d/b/a OnePoint Comunications
BY: _________________________________
Signature
_________________________________
Name (Printed)
ITS: _________________________________
Title
XXXX ATLANTIC -VIRGINIA, INC.
BY: _________________________________
Signature
_________________________________
Name (Printed)
ITS: _________________________________
Title
26
EXHIBIT I
XXXX ATLANTIC OTHER SERVICES
----------------------------
1. XXXX ATLANTIC OSS SERVICES
--------------------------
1.1 Definitions
-----------
As used in the Principal Document, the terms listed below shall have the
meanings stated below:
1.1.1 "Xxxx Atlantic Operations Support Systems" means Xxxx Atlantic
systems for pre-ordering, ordering, provisioning, maintenance and repair,
and billing.
1.1.2 "Xxxx Atlantic OSS Services" means access to Xxxx Atlantic
Operations Support Systems functions. The term "Xxxx Atlantic OSS Services"
includes, but is not limited to: (a) Xxxx Atlantic's provision of Usage
Information to Reseller pursuant to Exhibit I, Section 1.3, below; and, (b)
"Xxxx Atlantic OSS Information", as defined in Exhibit I, Section 1.1.4,
below.
1.1.3 "Xxxx Atlantic OSS Facilities" means any gateways, interfaces,
databases or other facilities, used by Xxxx Atlantic to provide Xxxx
Atlantic OSS Services to Reseller.
1.1.4 "Xxxx Atlantic OSS Information" means any information accessed by,
or disclosed or provided to, Reseller through or as a part of Xxxx Atlantic
OSS Services. The term "Xxxx Atlantic OSS Information" includes, but is not
limited to: (a) any Customer Information related to a present or former
customer of Xxxx Atlantic accessed by, or disclosed or provided to,
Reseller through or as a part of Xxxx Atlantic OSS Services; and, (b) any
Usage Information (as defined in Exhibit I, Section 1.1.5, below) accessed
by, or disclosed or provided to, Reseller.
1.1.5 "Usage Information" means the usage information and other billing
information for a Xxxx Atlantic Retail Telecommunications Service purchased
by Reseller under this Agreement that Xxxx Atlantic would record if Xxxx
Atlantic was furnishing such Xxxx Atlantic Retail Telecommunications
Service to a Xxxx Atlantic end-user retail customer.
1.1.6 "Reseller OSS Information" means the following Xxxx Atlantic OSS
Information: (a) Usage Information provided to Reseller pursuant to Exhibit
I, Section 1.3, below; (b) CPNI of Reseller; and, (c) CPNI of a customer of
Reseller or Xxxx Atlantic, to the extent the customer, in the manner
required by Applicable Law, has consented to Reseller's access to, or use
or disclosure of, such CPNI.
1.2 Xxxx Atlantic OSS Services
--------------------------
27
1.2.1 Upon request by Reseller, Xxxx Atlantic shall provide to Reseller
Xxxx Atlantic OSS Services.
1.2.2 Xxxx Atlantic Operations Support Systems, Xxxx Atlantic Operations
Support Systems functions, gateways and interfaces for accessing Xxxx
Atlantic Operations Support Systems functions, Xxxx Atlantic OSS
Information, and the Xxxx Atlantic OSS Services that will be offered by
Xxxx Atlantic, subject to the requirements of Applicable Law, shall be as
determined by Xxxx Atlantic. Except as otherwise agreed in writing by the
Parties, to the extent required by Applicable Law, the Xxxx Atlantic OSS
Services that will be offered by Xxxx Atlantic to Reseller shall be the
same as the Xxxx Atlantic OSS Services Xxxx Atlantic offers, under
agreements approved by the Commission pursuant to 47 U.S.C. (S) 252, to
other Telecommunications Carriers that are engaged in the resale of Xxxx
Atlantic Retail Telecommunications Services pursuant to 47 U.S.C. (S)
251(c)(4). Subject to the requirements of Applicable Law, Xxxx Atlantic
shall have the right to change Xxxx Atlantic Operations Support Systems,
Xxxx Atlantic Operations Support Systems functions, the gateways and
interfaces for accessing Xxxx Atlantic Operations Support Systems
functions, Xxxx Atlantic OSS Information, and the Xxxx Atlantic OSS
Services, from time-to-time, without the consent of Reseller.
1.3 Usage Information
-----------------
1.3.1 Upon request by Reseller, Xxxx Atlantic shall provide Usage
Information to Reseller.
1.3.2 Xxxx Atlantic Usage Information will be available to Reseller
through the following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution System
("CMDS").
1.3.3.1 Xxxx Atlantic Usage Information will be provided in a
BeL.L.C.ore Exchange Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes will be issued each day, Monday
through Friday, except holidays observed by Xxxx Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3 or agreed in writing
by the Parties, the manner in which, and the frequency with which, Xxxx
Atlantic Usage Information will be provided to Reseller shall be determined
by Xxxx Atlantic.
1.4 Prices
------
28
The prices for Xxxx Atlantic OSS Services shall be as stated in Exhibit II,
Section 2.
1.5 Access to and Use of Xxxx Atlantic OSS Facilities
-------------------------------------------------
1.5.1 Xxxx Atlantic OSS Facilities may be accessed and used by Reseller
only to: (a) purchase and provide Xxxx Atlantic Retail Telecommunications
Services pursuant to this Agreement; and (b) obtain Reseller OSS
Information.
1.5.2 Reseller shall restrict access to and use of Xxxx Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any right
or license to grant sublicenses or permission to other persons (except
Reseller's employees, Agents and contractors in accordance with Exhibit I,
Section 1.5.5) to access or use Xxxx Atlantic OSS Facilities.
1.5.3 Reseller shall comply with all practices and procedures established
by Xxxx Atlantic for access to and use of Xxxx Atlantic OSS Facilities
(including, but not limited to, Xxxx Atlantic practices and procedures with
regard to security and use of access and user identification codes).
1.5.4 All practices and procedures for access to and use of Xxxx Atlantic
OSS Facilities, and all access and user identification codes for Xxxx
Atlantic OSS Facilities: (a) shall remain the property of Xxxx Atlantic;
(b) shall be used by Reseller only in connection with Reseller's use of
Xxxx Atlantic OSS Facilities permitted by this Agreement; (c) shall be held
in confidence by Reseller and not disclosed by Reseller to any other person
(except Reseller's employees, Agents and contractors, in accordance with
Exhibit I, Section 1.5.5); and, (d) shall be destroyed or returned by
Reseller to Xxxx Atlantic upon the earlier of request by Xxxx Atlantic or
the expiration or termination of this Agreement.
1.5.5 Reseller's employees, Agents and contractors may access and use Xxxx
Atlantic OSS Facilities only to the extent necessary for Reseller's use of
the Xxxx Atlantic OSS Facilities permitted by this Agreement. Reseller may
disclose practices and procedures for access to and use of Xxxx Atlantic
OSS Facilities, and access and user identification codes for Xxxx Atlantic
OSS Facilities, to Reseller's employees, Agents and contractors, and
Reseller's employees, Agents and contractors may receive and use such
practices, procedures and codes, only to the extent necessary for
Reseller's use of Xxxx Atlantic OSS Facilities permitted by this Agreement.
Reseller's employees, Agents and contractors shall hold the practices,
procedures and codes in confidence and shall not disclose the practices,
procedures and codes to any other person (provided, that an employee, Agent
or contractor of Reseller, may disclose the practices, procedures and codes
to other employees, Agents or contractors of Reseller, to the extent
necessary for Reseller's use of the Xxxx Atlantic OSS Facilities permitted
by this Agreement).
1.6 Xxxx Atlantic OSS Information
-----------------------------
1.6.1 Subject to the provisions of this Agreement, Xxxx Atlantic grants to
Reseller a non-exclusive license to use OSS Information.
29
1.6.2 All OSS Information shall at all times remain the property of Xxxx
Atlantic. Except as expressly stated in this Agreement, Reseller shall
acquire no rights in or to any OSS Information.
1.6.3 Reseller and Reseller's employees, Agents and contractors, shall
not access, use or disclose OSS Information if such access, use or
disclosure is prohibited by Applicable Law.
1.6.4.1 The provisions of this Exhibit I, Section 1.6.4 apply to all OSS
Information, except Reseller's OSS Information.
1.6.4.2 Reseller may access and use Xxxx Atlantic OSS Information only to
purchase and provide Xxxx Atlantic Retail Telecommunications Services
pursuant to this Agreement. If Xxxx Atlantic OSS Information is Customer
Information related to a customer of a Party, Reseller may access and use
the Xxxx Atlantic OSS Information only to purchase Xxxx Atlantic Retail
Telecommunications Services for and provide Xxxx Atlantic Retail
Telecommunications Services to, the customer to whom that Customer
Information is related, pursuant to this Agreement.
1.6.4.3 Reseller shall hold Xxxx Atlantic OSS Information in confidence and
shall not disclose Xxxx Atlantic OSS Information to any other person
(except Reseller's employees, Agents and contractors, in accordance with
Exhibit I, Section 1.6.4.7).
1.6.4.4 Except as expressly stated in this Agreement, this Agreement does
not grant to Reseller any right or license to grant sublicenses or
permission to other persons to access, use or disclose Xxxx Atlantic OSS
Information.
1.6.4.5 Reseller's license to use Xxxx Atlantic OSS Information shall
expire upon the earliest of: (a) the time when the Xxxx Atlantic OSS
Information is no longer needed by Reseller to provide Xxxx Atlantic Retail
Telecommunications Services; (b) termination of the license in accordance
with this Agreement; or (c) expiration or termination of this Agreement.
1.6.4.6 All Xxxx Atlantic OSS Information received by Reseller shall be
destroyed or returned by Reseller to Xxxx Atlantic, upon expiration,
suspension or termination of the license to use such Xxxx Atlantic OSS
Information.
1.6.4.7 Reseller may disclose Xxxx Atlantic OSS Information to Reseller's
employees, Agents and contractors, and Reseller's employees, Agents and
contractors may access, receive and use Xxxx Atlantic OSS Information, only
to the extent necessary for Reseller's access to and use of Xxxx Atlantic
OSS Information permitted by this Agreement. Reseller's employees, Agents
and contractors shall hold Xxxx Atlantic OSS Information in confidence and
shall not disclose Xxxx Atlantic OSS Information to any other person
(except other employees, Agents or contractors of Reseller, to the extent
necessary for Reseller's use of the Xxxx Atlantic OSS Information permitted
by this Agreement).
30
1.6.5 Unless sooner terminated or suspended in accordance with this
Agreement (including, but not limited to, Section 17.1 and Exhibit I,
Section 1.7.2), Reseller's access to Xxxx Atlantic OSS Information through
Xxxx Atlantic OSS Services shall terminate upon the expiration or
termination of this Agreement.
1.6.6.1 Without in any way limiting Section 15.5.2, Xxxx Atlantic shall
have the right to audit Reseller to ascertain whether Reseller is complying
with the requirements of Applicable Law and this Agreement, with regard to
Reseller's access to, and use and disclosure of, Xxxx Atlantic OSS
Information.
1.6.6.2 Without in any way limiting Section 15.5.2, Section 15.5.3, or
Exhibit I, Section 1.6.6.1, to the extent permitted by Applicable Law, Xxxx
Atlantic shall have the right to monitor Reseller's access to and use of
Xxxx Atlantic OSS Information which is made available by Xxxx Atlantic to
Reseller pursuant to this Agreement, to ascertain whether Reseller is
complying with the requirements of Applicable Law and this Agreement, with
regard to Reseller's access to, and use and disclosure of, such Xxxx
Atlantic OSS Information. The foregoing right shall include, but not be
limited to, to the extent permitted by Applicable Law, the right to
electronically monitor Reseller's access to and use of Xxxx Atlantic OSS
Information which is made available by Xxxx Atlantic to Reseller through
electronic interfaces or gateways.
1.6.7 Reseller acknowledges that the Xxxx Atlantic OSS Information, by
its nature, is updated and corrected on a continuous basis by Xxxx
Atlantic, and therefore that Xxxx Atlantic OSS Information is subject to
change from time to time.
1.7 Liabilities and Remedies
------------------------
1.7.1 Reseller shall be liable for any breach of Exhibit I, Section 1.5
or Exhibit I, Section 1.6 by an employee, Agent or contractor of Reseller.
1.7.2 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, shall be deemed a material breach of a material provision of
this Agreement by Reseller under Section 17.1 of this Agreement. In
addition, if Reseller or an employee, Agent or contractor of Reseller at
any time breaches a provision of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, and such breach continues for more than ten (10) days after
written notice thereof from Xxxx Atlantic, then, except as otherwise
required by Applicable Law, Xxxx Atlantic shall have the right, upon notice
to Reseller, to suspend the license to use Xxxx Atlantic OSS Information
granted by Exhibit I, Section 1.6.1, and/or the provision of Xxxx Atlantic
OSS Services, in whole or in part.
1.7.3 Reseller agrees that Xxxx Atlantic would be irreparably injured by
a breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by Reseller or
the employees, Agents or contractors of Reseller, and that Xxxx Atlantic
shall be entitled to seek equitable relief, including injunctive relief and
specific performance, in the event of any breach of Exhibit I, Section
31
1.5 or Exhibit I, Section 1.6 by Reseller or the employees, Agents or
contractors of Reseller. Such remedies shall not be deemed to be the
exclusive remedies for a breach of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, but shall be in addition to any other remedies available under
this Agreement or at law or equity.
1.8 Relation to Applicable Law
--------------------------
The provisions of Exhibit I, Sections 1.5, 1.6 and 1.7 shall be in addition
to and not in derogation of any provisions of Applicable Law, including,
but not limited to, 47 U.S.C. (S) 222, and are not intended to constitute a
waiver by Xxxx Atlantic of any right with regard to protection of the
confidentiality of the information of Xxxx Atlantic or Xxxx Atlantic's
customers provided by Applicable Law.
1.9 Cooperation
-----------
Reseller, at Reseller's expense, shall reasonably cooperate with Xxxx
Atlantic in using Xxxx Atlantic OSS Services. Such cooperation shall
include, but not be limited to, the following:
1.9.1 Upon request by Xxxx Atlantic, Reseller shall by no later than the
fifteenth (15th) day of each calendar month submit to Xxxx Atlantic
reasonable, good faith estimates (by central office or other Xxxx Atlantic
office or geographic area designated by Xxxx Atlantic) of the volume of
each Xxxx Atlantic Retail Telecommunications Service for which Reseller
anticipates submitting Orders in each week of the next calendar month.
1.9.2 Upon request by Xxxx Atlantic, Reseller shall submit to Xxxx
Atlantic reasonable, good faith estimates of other types of transactions or
use of Xxxx Atlantic OSS Services that Reseller anticipates.
1.9.3 Reseller shall reasonably cooperate with Xxxx Atlantic in submitting
Orders for Xxxx Atlantic Retail Telecommunications Services and otherwise
using the Xxxx Atlantic OSS Services, in order to avoid exceeding the
capacity or capabilities of such Xxxx Atlantic OSS Services.
1.9.4 Reseller shall participate in cooperative testing of Xxxx Atlantic
OSS Services and shall provide assistance to Xxxx Atlantic in identifying
and correcting mistakes, omissions, interruptions, delays, errors, defects,
faults, failures, or other deficiencies, in Xxxx Atlantic OSS Services.
1.10 Reseller Operations Support Systems
-----------------------------------
Upon request by Xxxx Atlantic, Reseller shall negotiate in good faith and
enter into a contract with Xxxx Atlantic, pursuant to which Xxxx Atlantic
may obtain access to Reseller's operations support systems (including,
systems for pre-ordering, ordering, provisioning, maintenance and repair,
and billing) and information contained in such systems, to permit Xxxx
Atlantic to obtain Reseller Customer CPNI (as authorized by the applicable
Reseller Customer), to
32
permit customers to transfer service from one Telecommunications Carrier to
another, and for such other purposes as may be permitted by Applicable Law.
2. XXXX ATLANTIC PRE-OSS SERVICES
------------------------------
2.1 As used in the Principal Document, "Xxxx Atlantic Pre-OSS Service"
means a service which allows the performance of an activity which is
comparable to an activity to be performed through a Xxxx Atlantic OSS
Service and which Xxxx Atlantic offers to provide to Reseller prior to, or
in lieu of, Xxxx Atlantic's provision of the Xxxx Atlantic OSS Service to
Reseller. "Xxxx Atlantic Pre-OSS Services" include, but are not limited to,
the activity of placing Orders for Xxxx Atlantic Retail Telecommunications
Services through a telephone facsimile ("Fax") communication.
2.2 The Xxxx Atlantic Pre-OSS Services that will be offered by Xxxx
Atlantic, shall be as determined by Xxxx Atlantic. Subject to the
requirements of Applicable Law, Xxxx Atlantic shall have the right to
change Xxxx Atlantic Pre-OSS Services, from time-to-time, without the
consent of Reseller.
2.3 Subject to the requirements of Applicable Law, the prices for Xxxx
Atlantic Pre-OSS Services shall be as determined by Xxxx Atlantic and shall
be subject to change by Xxxx Atlantic from time-to-time.
2.4 The provisions of Exhibit I, Sections 1.5 through 1.9 shall also apply
to Xxxx Atlantic Pre-OSS Services. For the purposes of this Exhibit I,
Section 2.4: (a) references in Exhibit I, Sections 1.5 through 1.9 to Xxxx
Atlantic OSS Services shall be deemed to include Xxxx Atlantic Pre-OSS
Services; and, (b) references in Exhibit I, Sections 1.5 through 1.9 to
Xxxx Atlantic OSS Information shall be deemed to include information made
available to Reseller through Xxxx Atlantic Pre-OSS Services.
3. E911/911 SERVICES
-----------------
3.1 Where and to the extent that Xxxx Atlantic provides E911/911 call
routing to a Public Safety Answering Point ("PSAP") to Xxxx Atlantic's own
end user retail customers, Xxxx Atlantic will provide to Reseller, for
resold Xxxx Atlantic Retail Telecommunications Service dial tone lines,
E911/911 call routing to the appropriate PSAP. Xxxx Atlantic will provide
Reseller Customer information for resold Xxxx Atlantic Retail
Telecommunications Service dial tone lines to the PSAP as that information
is provided to Xxxx Atlantic by Reseller where and to the same extent that
Xxxx Atlantic provides Xxxx Atlantic end user retail customer information
to the PSAP. Xxxx Atlantic will update and maintain, on the same schedule
that Xxxx Atlantic uses with Xxxx Atlantic's own end user retail customers,
the Reseller Customer information in Xxxx Atlantic's E911/911 databases.
3.2 Reseller shall provide to Xxxx Atlantic the name, telephone number and
address, of all Reseller Customers, and such other information as may be
requested by Xxxx Atlantic, for inclusion in E911/911 databases. Any change
in Reseller Customer name, address or
33
telephone number information (including addition or deletion of a Reseller
Customer, or a change in Reseller Customer name, telephone number or
address), or in other E911/911 information supplied by Reseller to Xxxx
Atlantic, shall be reported to Xxxx Atlantic by Reseller within one (1) day
after the change.
4. Routing to Directory Assistance and Operator Services
-----------------------------------------------------
4.1 Upon request by Reseller, to the extent technically feasible, Xxxx
Atlantic will provide to Reseller the capability of rerouting to Reseller's
platforms directory assistance traffic (411 and 555-1212 calls) from
Reseller Customers served by resold Xxxx Atlantic Retail Telecommunications
Service dial tone line service and operator services traffic (O+ and 0-
intraLATA calls) from Reseller Customers served by resold Xxxx Atlantic
Retail Telecommunications Service dial tone line service.
4.2 A request for the rerouting service described in Exhibit I, Section
4.1 must be made by Reseller (a) on a switch-by-switch basis, and (b) at
least ninety (90) days in advance of the date that the rerouting capability
is to be made available in an applicable Xxxx Atlantic switch.
4.3 The prices for the rerouting service described in Exhibit I, Section
4.1 shall be as stated in Exhibit II, Section 2.
5. LIDB/BVS
--------
5.1 Upon request by Reseller, Xxxx Atlantic will maintain information
(including calling card numbers and collect and xxxx to third party billing
restriction notation) for Reseller Customers who subscribe to resold Xxxx
Atlantic Retail Telecommunications Service dial tone line service, in Xxxx
Atlantic's Line Information Database ("LIDB"), where and to the same extent
that Xxxx Atlantic maintains information in Xxxx Atlantic's LIDB for Xxxx
Atlantic's own end-user retail customers.
5.2 If an end-user terminates Xxxx Atlantic Retail Telecommunications
Service dial tone line service provided to the end-user by Xxxx Atlantic
and, in place thereof, subscribes to Reseller for resold Xxxx Atlantic
Retail Telecommunications Service dial tone line service, Xxxx Atlantic
will remove from Xxxx Atlantic's LIDB any Xxxx Atlantic-assigned telephone
line calling card number (including area code) ("TLN") and Personal
Identification Number ("PIN") associated with the terminated Xxxx Atlantic
Retail Telecommunications Service dial tone line service. The Xxxx Atlantic
assigned TLN and PIN will be removed from Xxxx Atlantic's LIDB within
twenty-four (24) hours after Xxxx Atlantic terminates the Xxxx Atlantic
Retail Telecommunications Service dial tone line service with which the
number was associated. Reseller may issue a new telephone calling card to
such end-user, utilizing the same TLN, and the same or a different PIN.
Upon request by Reseller, Xxxx Atlantic will enter such TLN and PIN in Xxxx
Atlantic's LIDB for calling card validation purposes.
5.3 Reseller information which is stored in Xxxx Atlantic's LIDB will be
subject, to the same extent as Xxxx Atlantic information stored in Xxxx
Atlantic's LIDB, to access and use by, and
34
disclosure to, those persons (including, but not limited to, Xxxx Atlantic)
to whom Xxxx Atlantic allows access to information which is stored in Xxxx
Atlantic's LIDB. Reseller hereby grants to Xxxx Atlantic and the persons to
whom Xxxx Atlantic allows access to information which is stored in Xxxx
Atlantic's LIDB, a royalty free license for such access, use and
disclosure.
5.4 Reseller shall obtain contractual agreements with each of the persons
authorized to have access to Xxxx Atlantic's LIDB, under which Reseller
will xxxx Reseller Customers for calling card, third party, collect and
other calls validated by such persons through Xxxx Atlantic's LIDB.
5.5 Reseller warrants that the information provided by Reseller for
inclusion in Xxxx Atlantic's LIDB will at all times be current, accurate
and appropriate for use for billing validation services.
5.6 Upon request by Reseller, Xxxx Atlantic will provide to Reseller Xxxx
Atlantic Billing Validation Service, in accordance with Xxxx Atlantic's
Tariffs, for use by Reseller in connection with Xxxx Atlantic Retail
Telecommunications Services purchased and provided by Reseller pursuant to
this Agreement.
5.7 Reseller's use of information in Xxxx Atlantic's LIDB shall be subject
to the provisions of Exhibit I, Sections 1.5 through 1.8 with regard to
Xxxx Atlantic OSS Information. For the purposes of this Exhibit I, Section
5.7, references in Exhibit I, Sections 1.5 through 1.8 to Xxxx Atlantic OSS
Information shall be deemed to be references to information in Xxxx
Atlantic's LIDB.
5.8 The prices for the services described in this Exhibit I, Section 5
shall be as stated in Exhibit II, Section 2.
35
EXHIBIT II
PRICES FOR XXXX ATLANTIC SERVICES
---------------------------------
1. XXXX ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
------------------------------------------------
1.1 Prices
------
The prices for Xxxx Atlantic Retail Telecommunications Services shall be
the Retail Prices stated in Xxxx Atlantic's Tariffs for such Xxxx Atlantic
Retail Telecommunications Services, less: (a) the applicable discount
stated in Xxxx Atlantic's Tariffs for Xxxx Atlantic Retail
Telecommunications Services purchased for resale pursuant to 47 U.S.C. (S)
251(c)(4); or, (b) in the absence of an applicable Xxxx Atlantic Tariff
discount for Xxxx Atlantic Retail Telecommunications Services purchased for
resale pursuant to 47 U.S.C. (S) 251(c)(4), the applicable discount stated
in Exhibit II, Attachment 1.
1.2 Inapplicability of Discounts
----------------------------
The discounts provided for in Exhibit II, Section 1.1, shall not be applied
to:
1.2.1 Retail Prices that are in effect for no more than ninety (90)
days;
1.2.2 Charges for services and products provided by Xxxx Atlantic
that are not Xxxx Atlantic Retail Telecommunications Services, including,
but not limited to, Xxxx Atlantic Other Services, and exchange access
services as defined in Section 3(16) of the Act, 47 U.S.C. (S) 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, and Audiotex
Service charges; and,
1.2.4 Any service or charge which the Commission, the Federal
Communications Commission, or other governmental entity of appropriate
jurisdiction, determines is not subject to a wholesale rate discount under
47 U.S.C. (S) 251(c)(4).
1.3 Discount Changes
----------------
1.3.1 Xxxx Atlantic shall change the discounts provided for in Exhibit II,
Section 1.1, above, from time-to-time, to the extent such change is
required by Applicable Law, including, but not limited to, by regulation or
order of the Commission, the Federal Communications Commission, or other
governmental entity of appropriate jurisdiction.
1.3.2 Xxxx Atlantic shall have the right to change the discounts provided
for in Exhibit II, Section 1.1, above, from time-to-time, to the extent
such change is required, approved or permitted by Applicable Law,
including, but not limited to, by regulation or order of the
36
Commission, the Federal Communications Commission, or other governmental
entity of appropriate jurisdiction.
1.4 Best Discount
-------------
Should Xxxx Atlantic at any time, in an agreement approved by the
Commission pursuant to 47 U.S.C. (S) 252, offer discounts pursuant to 47
U.S.C. (S)(S) 251(c)(4) to another Telecommunications Carriers which are
greater than the discounts then being offered to Reseller pursuant to
Exhibit II, Section 1.1, above, Xxxx Atlantic, to the extent required by
Applicable Law, shall offer such greater discounts to Reseller under this
Agreement. Except as otherwise required by Applicable Law or agreed in
writing by the Parties, the new, greater discounts: (a) shall become
effective for each Reseller billing account at the commencement of the
first billing cycle for such Reseller billing account following execution
of an amendment to this Agreement specifying the new discounts; and, (b)
shall apply on a prospective basis only and shall not apply to charges
incurred by Reseller prior to the time the new discounts become effective
under Part "(a)" of this sentence.
1.5 Offers of Merchandise and Services which are not Xxxx Atlantic Retail
---------------
Telecommunications Services
---------------------------
Reseller shall not be eligible to participate in any Xxxx Atlantic plan or
program under which Xxxx Atlantic end user retail customers may obtain
products or merchandise, or services which are not Xxxx Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Xxxx Atlantic Retail Telecommunications Services.
2. XXXX ATLANTIC OTHER SERVICES
----------------------------
2.1 Prices
------
2.1.1 The prices for Xxxx Atlantic Other Services shall be as stated: (a)
in Xxxx Atlantic's Tariffs; or, (b) in the absence of an applicable Xxxx
Atlantic Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Xxxx Atlantic at any time offers a Xxxx Atlantic Other Service the
prices for which are not stated in Xxxx Atlantic's Tariffs or Exhibit II,
Attachment 1, Xxxx Atlantic shall have the right to revise Exhibit II,
Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 Price Changes
-------------
2.2.1 Xxxx Atlantic shall change the prices for Xxxx Atlantic Other
Services, from time-to-time, to the extent such change is required by
Applicable Law, including, but not limited to, by regulation or order of
the Commission, the Federal Communications Commission, or other
governmental entity of appropriate jurisdiction.
37
2.2.2 Xxxx Atlantic shall have the right to change the prices for Xxxx
Atlantic Other Services, from time-to-time, to the extent such change is
required, approved or permitted by Applicable Law, including, but not
limited to, by regulation or order of the Commission, the Federal
Communications Commission, or other governmental entity of appropriate
jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Xxxx Atlantic shall
give Reseller thirty (30) days advance written notice of any increase in
the prices stated in Exhibit II, Attachment 1 for Xxxx Atlantic Other
Services.
38
MSO PROGRAMMING SERVICES AGREEMENT
----------------------------------
THIS AGREEMENT (the Agreement), made affective the 1st day of May, 1998, by
---------------------
and between WORLD SATELLITE NETWORK INC. ("WSNet"), wish an office at 000
Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000, and ONEPOINT
--------
COMMUNICATIONS, CORP. (the "MSO"), at 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx XX 00000.
-------------------- ----------------------------------------
SECTION 1: DEFINITIONS. For the purpose of this Agreement, the following terms
---------
are defined as follows:
1.1 "Programming Service" is the television content of the channels set forth
on the Request(s) For Service(s) which is (are) transmitted from a domestic
satellite and available for distribution pursuant to the terms of this
Agreement.
1.2 "Premium Programming Service" is television content of HBO, Cinemax,
Showtime, Movie Channel, ????, Sundance, Playboy and Encore Stars. WSNet
may amend this definition at its sole discretion at any time during the
term of this Agreement with twenty-four (24) hours notice.
1.3 "Programming Fees" are the per Subscriber dollar amounts set forth in the
Request For Service charged by WSNet for the Programming Service.
1.4 "Property" is the physical location of the antennas, receivers,
modulators, amplifiers and cable, for receiving and delivering the
Programming Services, owned and operated by MSO and are identified by each
Request For Service.
1.5 "Request For Service" is an order by MSO for certain Programming Service(s)
for a Property. Each Request For Service shall be subject to WSNet's
acceptance.
1.6 "Subscriber" is a recipient of all or a portion of the Programming Service
from MSO.
SECTION 2: WSNet OBLIGATIONS.
---------
2.1 WSNet hereby grants to MSO, and MSO hereby accepts, the non-exclusive right
to deliver the Programming Service to Subscribers subject to the terms
herein.
2.2 WSNet agrees to provide MSO the Programming Service in accordance with the
?????? of this Agreement.
2.3 WSNet ??????? that it has the right to provide the Programming Service,
to MSO for delivery to Subscribers as provided herein.
2.4 ??? WSNet ?????? its ability to provide any of the Programming Service,
WSNet shall notify MSO within five (5) business days of receipt by WSNet of
notification such Programming Services will be lost.
2.5 WSNet shall provide MSO an itemized invoice of Programming Fees for each
Property on a monthly basis based on the information MSO provides WSNet
pursuant to Section 5.2 below.
2.6 WSNet shall provide MSO notice of technical changes required for MSO to
continue receiving Programming Service within 30 days after WSNet receives
notice of such required technical changes.
2.7 WSNet will pay all fees and amounts that are required to be paid to the
programming originators for Programming Service delivered to MSO'S
Subscribers based on the Subscriber reports provided to WSNet by the MSO.
SECTION 3: TERM.
---------
3.1 Unless terminated earlier pursuant to the terms of this Agreement, this
Agreement shall commence on the effective date hereof and continue in force
for a period of ONE (1) YEAR, and shall automatically renew for additional
------------
periods of twelve (12) months thereafter. Either party may terminate this
Agreement at the end of the initial or a renewal term by giving the other
party written notice at least ninety (90) days but not more than one
hundred-twenty (120) days prior to the expiration of such initial or
renewal term, informing the other that the Agreement will not be renewed.
SECTION 4: DEPOSIT
---------
4.1 Upon execution of this Agreement by MSO, MSO shall pay WSNet a deposit of
$ 0 that shall be credited against the Programming Fees due in the final
----
month of this Agreement or will be forfeited in the event of default by
MSO.
SECTION 5: PRICE AND PAYMENT
---------
5.1 Programming Fees may be increased from time to time by WSNet, at its
option, as follows: (1) to ???? increases in fees charged to WSNet by the
programming originators, and (ii) by a percentage figure equal to the cost
of living adjustment as calculated by the U.S. Department of Labor,
Consumer Price Index (CPI-U/all ???/all hems). whichever is greater. WSNet
shall give MSO at least 30 days prior written notice of any increase in
Programming Fees. MSO shall, within sixty (60) days of such notice from
WSNet, have the option of requesting cancellation for the specific service
for which the ?? increase applied by submitting a minimum of thirty (30)
days written notification of cancellation to WSNet. MSO shall pay the
increased Programming Fees for the period between the effective date of the
increase and the effective date of the cancellation.
5.2 On or before the 15th day of each month, MSO shall notify WSNet of the
Programming Services received by each Subscriber at each Property for the
preceding month.
pg 1 of 4
WSN
5.3 MSO shall pay WSNet all Programming Fees due for each month within fifteen
(15) days of the first day of such month based on the subscriber report
provided WSNet for the previous month. Any amounts not paid when due will
be subject to a late payment fee computed daily at a rate equal to 1.5% per
month at the highest rate permissible by law, whichever is lower.
5.4 WSNet's failure, for any reason, to invoice MSO for any payment shall not
relieve MSO of its obligation to make payment to WSNet in a timely manner
consistent with the terms of this Section 5.
5.5 All Programming Fees shall be paid to WSNet whether or not MSO receives
payment from its Subscribers.
5.6 MSO shall pay to WSNet applicable taxes (if any) on Programming Services as
part of the monthly Programming Fees.
SECTION 6; MSO OBLIGATIONS
----------
6.1 During the term of this Agreement MSO shall exhibit the Programming
Service ordered by MSO in its entirety when and exactly as transmitted
without any additions, commercial or other insertions, alterations or
deletions of any kind, ???? ????? and deliver the Programming Service only
as specifically authorized by the programming originators and ?????, MSO
shall deliver Programming Services only to Subscribers reported to WSNet.
MSO shall not alter, ??????????, copy redistribute or transmit the
Programming Service in any manner, except as permitted by the terms of this
Agreement without WSNets prior written consent.
6.2 MSO shall take reasonable precautions to prevent any unauthorized copying,
taping, connection to, or reception of Programming Service. MSO shall also
take all reasonable precautions and other steps necessary to ensure that
the Programming Service is distributed to and received only by Subscribers
who pay the applicable Programming Fees and that no part of the Programming
Service is received at any location where an admission fee, cover charge,
minimum or like sum is charged, or which is a commercial, non-residential
building or which is a public gathering area. WSNet shall give MSO notice
of changes in distribution requirements within five (5) business days of
WSNet's notification of such changes.
6.3 Subject to Programmer approval, MSO shall have the right to deliver
Programming Services other than Premium Programming Services and Super???
to public viewing areas in residential multiple dwelling buildings. MSO
shall report each such public viewing outlet as a Subscriber, subject to
the requirements of the Programmers, for purposes of determining
Programming Fees. MSO shall provide WSNet with written notification of each
public viewing outlet prior to delivering Programming Services to such
outlet. In no event will Premium Programming Services, previews of Premium
Programming Services or Pay-Per-View Services ever be displayed in such
public viewing areas.
6.4 MSO acknowledges that all programming decisions regarding the content of
the Programming Service are at the sole discretion of the programming
originators, including the substitution or withdrawal of any scheduled
programs. MSO agrees to distribute the Programming Service in compliance
with the existing or future requirements of the programming originators.
6.5 MSO agrees to maintain and when requested provide proof to WSNet of MSO's
authorization to occupy the Property and proof of ownership to operate the
equipment at the Property. Within thirty-six (36) hours of receiving a
request from WSNet, MSO agrees to escort a WSNet representative to the
Property for inspection purposes.
6.6 MSO agrees to install the necessary equipment, to the extent the cost of
such equipment is not prohibitive, to receive the Programming Service at
each Property and to operate and maintain this equipment in compliance with
technical service standards and applicable law during the term of this
Agreement.
6.7 MSO agrees to use its best effort to maximize the marketing and sale of the
Programming Service and provide adequate personnel to respond to and
service any and all requests and inquiries from Subscribers and potential
Subscribers.
6.8 MSO shall take all steps necessary to charge and collect the appropriate
fees from its Subscribers. If Programming known as a "Supers??????" (such
as WTBS, WGN, etc.) is part of the Programming provided, MSO agrees to pay
the current semi-annual copyright fee per Property to the U.S. Copyright
Office and file such forms as are required (currently such required form is
known as the "Statement of Account"). MSO is responsible for any music
performance fees.
6.9 MSO agrees to keep accurate and complete record of xxxxxxxx, Subscribers
and marketing data and to make this information available for inspection by
WSNet at all reasonable times for three (3) years from the date the related
subscriber report has been submitted to WSNet. MSO also agrees that WSNet
may physically audit, at its own expense, the MSO's Property and records to
determine the accuracy of MSO's notices delivered to WSNet pursuant to
Section 5.2 and the computation of the Programming Fees. If WSNet discovers
that the information MSO reported to it for computation of the Programming
Fees caused an understatement of the Programming Fees due WSNet, the MSO
will pay all unpaid Programming Fees discovered by such audit with interest
at the rate applicable under Paragraph 5.3. If such understatement is five
(5)% or more. MSO shall pay WSNet's or its representative's costs and
expenses to audit MSO's records.
MSO AGREEMENT Pg 2 of 4
6.10 MSO shall indemnify, defend and hold WSNet harmless from and against any
and all claims, liabilities, costs and expenses (collectively "Claims")
including but not limited to Programming Service interruption claims,
except for claims permitted under Section 6.2., to the extent the Claims
are the result of a breach of the MSO's obligations under this Agreement.
6.11 MSO agrees that WSNet shall be the exclusive provider to each Property for
the Programming Service which such Property receives from WSNet as outlined
on each Request For Service. In the event MSO identifies selected
Programming Services legitimately available from sources other than WSNEt
at lower costs. WSNet shall have the ???? effect such selected Programming
Services at the same cost within thirty (30) days and MSO shall purchase
???? selected Programming Services form WSNet. If WSNet does not offer the
selected Programming Services to ???? the ??? ??? ??? the MSO may purchase
those selected Programming Services apart from WSNet.
6.12 MSO agrees to meet any minimum Subscriber requirements according to the
Programmer or WSnet specifications.
SECTION 7: DEFAULT BY MSO. The following events shall constitute a default and
---------
article WSNet to terminate its obligations to provide Programming Services
hereunder and shall accelerate all payments which the MSO has agreed to make
during the terms of this Agreement in addition to any other remedies provided in
this Agreement and available in law or equity:
7.1 The non-payment by MSO for a period of five (5) days of any sum required to
be paid by MSO.
7.2 Underreporting of Subscribers in any billing period and failure to cure
such underreporting within (5) days of notice from WSNet.
7.3 The display of Premium Programming Services in public viewing areas and
failure to terminate such display within five (5) days of notice from
WSNet.
7.4 Other than a default described in paragraph 7.1 through 7.3 above, the
failure of MSO to perform any term, covenant, or condition of this
Agreement shall constitute a default and if such default is not cured
within thirty (30) days after written notice thereof to MSO by WSNet, WSNet
shall have the right, at its sole option, to terminate this Agreement.
SECTION 8. DEFAULT BY WSNet
---------
8.1 Failure of WSNet perform any term, covenant, or condition of this
Agreement shall constitute a default and if such default is not cured
within thirty (30) days after written notice thereof to WSNet by MSO. MSO
shall have the right, at its sole option, to terminate this Agreement.
8.2 If Programming Service is disrupted for any reason through no fault of MSO.
WSNet shall have seventy-two (72) hours after receiving notice from MSO of
such disruption to restore Programming Service, during which time no
adjustment shall be made to the Programming Fees otherwise due. If
Programming Service, is not restored within such seventy-two (72) hour
period, WSNet's sole obligation, and MSO"S sole right, shall be a credit
for Programming Fees for disrupted Programming Service thereafter on a
prorated basis (based on a thirty day month). WSNet agrees to pass through
to the MSO credit it receives from Programmers related to such disruptions
of Programming Service. If WSNet is directly responsible for such
disruption and does not restore the Programming Service with in forty-eight
(48) hours of receipt of notice from MSO of such disruption, MSO shall have
the right to terminate this Agreement with respect to the Properties
affected by such disruption.
8.3 WSNet and its officers, agents and employees shall not be responsible for
any loss, damage (including incidental and consequential), expense, delay
or failure to perform arising or resulting, in whole or part, from acts of
God, or other causes which are beyond the control of WSNet, to provide the
Programming Service hereunder.
SECTION 9. EFFECT OF WAIVER REMEDIES
---------
9.1 No delay or omission to exercise any right, power or remedy accruing to a
party under this Agreement shall be construed to be a waiver of any such
right, power or remedy. Any waiver shall be limited to the circumstance or
event specifically referenced in the written waiver document and shall not
be deemed a waiver of any other term or provision of this Agreement or of
the same circumstance or event upon any reoccurrence thereof. All remedies,
either under this Agreement or at law, shall be cumulative and not
alternative.
SECTION 10: PROGRAMMING SERVICE CHANGES
----------
10.1 Subject to the written consent of WSNEt, which consent shall not be
unreasonably withheld, MSO may make changes to any Request For Service
by written notice to WSNet. Detections of Programming Service will be
effective at the end of the month at least 30 days after accepted and
approved by WSNet.
SECTION 11: CONFIDENTIALITY
----------
11.1 The terms and conditions, other than the existence and duration, of this
Agreement shall be kept confidential by MSO and shall not be disclosed by
MSO to any third party except as may be required by any court or
governmental agency of competent jurisdiction, and except to MSO's
accountants, auditors, agents, legal counsel and parent company, each of
whom must agree to be bound by this confidentiality provision.
Pg 3 of 4
SECTION 12. NOTICES
----------
17.1 Any notice required or permitted to be given under this Agreement shall be
by written notice delivered via facsimile or U.S. mail and shall be deemed
duly given when received and acknowledged, or three (3) days after
deposited in the U.S. mail, postage prepaid, for delivery and addressed to
the appropriate party at the address set forth on the first page hereof MSO
name or addresses must be changed by delivery of written notice as provided
herein.
SECTION 13. ASSIGNMENT
----------
13.1 MSO shall not assign, transfer, pledge, or hypotheces this Agreement, or
any part thereof, or any interests herein by operation of law or otherwise,
except to a controlled affiliate, without the prior written consent of
WSNet, shall not be unreasonably withheld. No change of ownership or
management of MSO or a Property, shall affect the MSO's obligation under
this Agreement and any new owners or managers of the MSO shall be bound by
the terms of this Agreement.
SECTION 14. CONSTRUCTION AND INTERPRETATION
----------
14.1 In case any one or more of the provisions contained in this Agreement, for
any reason are held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect
the validity and enforceability of any other provisions hereof. This
Agreement shall be governed by and construed in accordance with the laws
of the State of Minnesota.
SECTION 15. CONSENT TO JURISDICTION
----------
15.1 MSO submits to the jurisdiction of Henneph Xxxxxx Xxxxxxxx Xxxxx, Xxxxx xx
Xxxxxxxxxx, xx Xxxxxx Xxxxxx District Court for the District of Minnessota,
for the purposes of any lawsuit by WSNet to enforce any claim it may have
for amounts due but unpaid to it as described herein above - this Paragraph
shall survive the termination of non-renewal of this Agreement under any
circumstances.
SECTION 16. COUNTERPARTS.
----------
16.1 This Agreement may be executed in counterparts and by different parties
with the same effect as if the signatures thereto were on the same
instrument. This Agreement shall be effective and binding upon all parties
hereto at such time as all parties have executed and delivered (including
by facsimile) a counterpart of this Agreement.
SECTION 17. ENTIRE AGREEMENT.
----------
17.1 This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior and
contemporaneous agreements whether written or oral relating to the subject
matter hereof. Other changes to this Agreement shall be effective upon the
written agreement of both parties hereto. No agreement to make changes to
this Agreement shall impose an obligation on either party to agree to any
similar type of change in the future.
WORLD SATELLITE NETWORK, INC. MSO: ONEPOINT COMMUNICATIONS, CORP.
SIGN /s/ Xxxxxx Xxxxxxxx SIGN /s/ Xxxxxxx X. Xxxxxxx
--------------------------- ---------------------------
PRINT: XXXXXX XXXXXXXX PRINT: XXXXXXX XXXXXXX
--------------------------- --------------------------
TITLE: Chief Operating Officer TITLE: President
--------------------------- --------------------------
Date Signed: 4/24/98 Date Signed: 4/24/98
--------------------- ---------------------
Pg 4 of 4
DIGITAL ADDENDUM
This is an Addendum to that certain MSO Programming Services Agreement dated
May 1, 1998 (herein so defined) by and between World Satellite Network, Inc
("WSNet") and
ONEPOINT COMMUNICATIONS, CORP. ("MSO")
------------------------------
NAME
0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx Xx 00000 ADDRESS
----------------------------------------
for the use of Ku-Band digital encrypted signals from DIRECTV (collectively,
the" Signals" and individually, the "Signal") to receive Programming at the
MSO Properties as described in Exhibit A attached hereto and incorporated herein
by reference for all purposes (the "Addendum").
1. Defined Terms. Unless otherwise defined in this Addendum, all initial
-------------
capitalized terms used herein shall have the same meaning ascribed to
such terms in the MSO Programming Services Agreement.
2. License. WSNet grants a non-exclusive license to the MSO to use the
--------
Signals to receive Programming at each Property (the "License").
WSNet warrants and represents that it has the right to grant the
License provided that the MSO complies with all of its obligations
under this Addendum and the MSO Programming Service Agreement. WSNet
makes no other warranty or representation of any kind regarding the
License or the Signal, including, without limitation, its strength,
quality or duration. Nothing in this Addendum shall be construed as
granting MSO any rights in the Signal, other than the right to receive
it as described above, nor does the MSO acquire any rights from or
claims against DIRECTV by operation of this Addendum.
3. Equipment and Transport. MSO shall, at its own expense, purchase,
-----------------------
install and maintain according to the technical specifications annexed
as Exhibit 8 attached hereto and incorporated herein by reference for
all purposes (the "Specifications") any and all equipment necessary to
receive the Signals and distribute the Programming to the Subscribers
of each Property (collectively, the "Equipment"). WSNet has the right
to inspect each Property and Equipment on three (3) days notice to the
MSO to ensure compliance with this provision. The Equipment includes,
without limitation, the DSSO receiver necessary to receive and decrypt
each Signal (the"IRD"). WSNet will arrange for the activation of each
IRD at each Property to receive the Signals. MSO will, at all times,
receive no less than five (5) Signals at each Property. MSO may
purchase or base those IRDs from WSNet as described in Exhibit A. The
warranties, if any, the MSO may receive for any Equipment it acquires
from or through WSNet are only granted by the manufacturer thereof and
not WSN. WSNet makes no warranties or representations of any kind with
respect to the IRD's and WSNet disclaims any warranties for the IRDs
under the Uniform Commercial Code, or otherwise implied in law.
4. Property. Each Property shall be only a multifamily dwelling unit
--------
property, including a condominium, apartment or cooperative building.
MSO shall have a written Agreement with the owner or authorized
manager of the Property to install, operate and maintain the
Equipment. The MSO shall not use, receive or distribute, or cause to
be used, received or distributed, Ku-Band or Ku-Band satellite signals
other than the Signals to receive or distribute the programming or any
other programming or other similar services at the property.
5. Term. The minimum term of this Agreement shall be three (3) years.
----
WSNet may terminate this Addendum on fifteen (15) days notice in the
event that the MSO breaches the terms of this Addendum. WSNet's right
to termination is in addition to any other rights WSNet may have
hereunder, under the MSO Programming Services Agreement or by law.
6. Fees. In addition to any other payments provided for herein, MSO
----
shall pay, each month, a transport fee for each IRD, pursuant to the
table on Exhibit C, plus any applicable taxes.
1
RESELLER MEASUREMENT REPORTS
STATEWIDE, INCLUDING BA AFFILIATES
-------------------------------------------------------------------------------------
Performance Measurement ACTUAL BA SERVICE PERFORMANCE (BY QUARTER)
-----------------------------------------------------
DSO DS1 DS3 RESELLER TRUNKING POTS
-------------------------------------------------------------------------------------------
INSTALLATION
-------------------------------------------------------------------------------------------
G) Number of Installations /1/ /2/ /3/ /4/ /5/
1-1-97 1-1-97 1-1-97 4-1-97 1-1-97
-------------------------------------------------------------------------------------------
H) Average Interval in days /6/ /7/ /8/ /9/ /10/
1-1-97 1-1-97 1-1-97 4-1-97 1-1-97
-------------------------------------------------------------------------------------------
I) Percent Install on time /11/ /12/ /13/ /14/ /15/
1-1-97 1-1-97 1-1-97 4-1-97 1-1-97
-------------------------------------------------------------------------------------------
SERVICE QUALITY
-------------------------------------------------------------------------------------------
J) Number of Reports /16/ /17/ /18/ /19/ /20/
1-1-97 1-1-97 1-1-97 4-1-97 1-1-97
-------------------------------------------------------------------------------------------
K) Mean Time to Clear /21/ /22/ /23/ /24/ /25/
Reports 1-1-97 1-1-97 1-1-97 4-1-97 1-1-97
-------------------------------------------------------------------------------------------
L) Number of Failures /26/ /27/ /28/ /29/ /30/
1-1-97 1-1-97 1-1-97 4-1-97 1-1-97
-------------------------------------------------------------------------------------------
M) Failure Frequency /31/ /32/ /33/ /34/ /35/
Percent 1-1-97 1-1-97 1-1-97 4-1-97 1-1-97
-------------------------------------------------------------------------------------------
N) Percent Without Report /36/ /37/ /38/ /39/ /40/
Outstanding 1-1-97 1-1-97 1-1-97 4-1-97 1-1-97
-------------------------------------------------------------------------------------------
-6-
ONEPOINT COMMUNICATIONS, CORP.
EXHIBIT A - PROPERTY AND PROGRAMMING
------------------------------------
--------------------------------------------------------------------------------
??????
--------------------------------------------------------------------------------
Property Name
--------------------------------------------------------------------------------
Property Address:
--------------------------------------------------------------------------------
City: State/Zip:
--------------------------------------------------------------------------------
Property Contact Contact Phone:
--------------------------------------------------------------------------------
?????????? Basic Subs: Premium Subs:
--------------------------------------------------------------------------------
DIRECT SYSTEM OPERATOR # (IF APPLICABLE):
--------------------------------------------------------------------------------
DIRECT ?????? # (if applicable)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
??????
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
MSO shall provide such other information as is required by WSNet to property
license the Signal for receiving Programming at each Property.
MSO: ONEPOINT COMMUNICATIONS, CORP.
Signature: ----------------------- Date:------------------------
Print Name: ----------------------
Print Title: ---------------------
3
RESELLER MEASUREMENT REPORTS
10 LARGEST RETAIL CUSTOMERS
-----------------------------------------------------------------------------------------------------------------
Performance Measurement ACTUAL BA SERVICE PERFORMANCE (BY QUARTER)
-----------------------------------------------------------------------------------
DSO DS1 DS3 RESELLER TRUNKING POTS
(A) (B) (C) (D) (E) (F)
-----------------------------------------------------------------------------------------------------------------
INSTALLATION
-----------------------------------------------------------------------------------------------------------------
G) Number of Installations /1/ /2/ /3/ /4/ /5/
XXX XXX XXX XXX TBD
-----------------------------------------------------------------------------------------------------------------
H) Average Interval in days /6/ /7/ /8/ /9/ /10/
XXX XXX XXX XXX TBD
-----------------------------------------------------------------------------------------------------------------
I) Percent Install on time /11/ /12/ /13/ /14/ /15/
XXX XXX XXX XXX TBD
-----------------------------------------------------------------------------------------------------------------
SERVICE QUALITY
-----------------------------------------------------------------------------------------------------------------
J) Number of Reports /16/ /17/ /18/ /19/ /20/
XXX XXX XXX XXX TBD
-----------------------------------------------------------------------------------------------------------------
K) Mean Time to Clear /21/ /22/ /23/ /24/ /25/
Reports XXX XXX XXX XXX TBD
-----------------------------------------------------------------------------------------------------------------
L) Number of Failures /26/ /27/ /28/ /29/ /30/
XXX XXX XXX XXX TBD
-----------------------------------------------------------------------------------------------------------------
M) Failure Frequency /31/ /32/ /33/ /34/ /35/
Percent XXX XXX XXX XXX TBD
-----------------------------------------------------------------------------------------------------------------
N) Percent Without Report /36/ /37/ /38/ /39/ /40/
Outstanding XXX XXX XXX XXX TBD
-----------------------------------------------------------------------------------------------------------------
-0-
XXXXXXXX COMMUNICATIONS, CORP.
EXHIBIT C - FEES
----------------
TRANSPORT FEES
--------------
WSNet will provide transport via DIRECTLY for a price per IRD/month. Transport
fees are guaranteed for the term of the Agreement, subject to the price
increase(s) described in item 8 of the Addendum. Transport fees will be
discounted based on volume per the following table.
-------------------------------------------------------------
Number of IRD's for Transport Incremented Charged per IRD
-------------------------------------------------------------
-------------------------------------------------------------
0-1000 $6.00
-------------------------------------------------------------
1001-1500 $5.58
-------------------------------------------------------------
1601-2000 $5.17
-------------------------------------------------------------
2001-2501 $4.75
-------------------------------------------------------------
2501 + $4.33
-------------------------------------------------------------
* Affiliate is required to pay any applicable taxes.
WSNet, Inc. MSO: ONEPOINT COMMUNICATIONS, CORP.
BY: /s/ Xxxxxx Xxxxxxxx BY: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------- ----------------------------------
Xxxxxx Xxxxxxxx Xxxxxxx X. Xxxxxxx
Chief Operating Officer President
Date Signed: 4/24/98 Date Signed: 4/20/98
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SCHEDULE 35C
I): PERCENT INSTALL ON TIME: This measurement is the total number of
installations (both "x" and "w" service orders) that were completed on time
(based on the service order established due date) divided by the total number of
service orders. This is the percentage of orders completed on time.
SERVICE QUALITY CATEGORIES
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J): NUMBER OF REPORTS: This is the total number of troubles received from
Reseller by service category. Each trouble counts as one and in cases where the
trouble is redated or subsequent reports are received for escalations or to
question status, BA will not count the subsequent reports. From receipt to
close, each trouble counts as 1, regardless of the trouble resolution (CPE, NTF
or BA Network).
K): MEAN TIME TO CLEAR REPORTS: This is the total measurable hours and minutes
from all troubles (from the time BA receives a trouble from Reseller until the
service is restored and closed with Reseller) divided by the total number of
troubles for the report period.
For DSO, DS1, DS3 and Reseller Trunking, the measurements will be "Stop Clock"
measurements where "no access" (customer access delayed) time is removed from
the measurement.
For POTS, this will be a running 24 hour clock from trouble receipt to trouble
clearance time. The BA clear time is the time service is restored. The BA work
process is for the customer (Reseller) to be notified as soon as the service is
cleared. BA does not use the "close time" because after clearing the trouble,
the technician may stay and complete another hour or so of clean up before
actually closing the trouble.
L): NUMBER OF FAILURES: The number of failures is the total number of trouble
reports (by category) where the trouble was closed out to a code indicating that
the fault was a BA service problem.
Removed from the total trouble reports will be all troubles that reflect the
cause of the trouble to be other than a Xxxx Atlantic Network fault. Examples
would be troubles caused by Customer Provided Equipment (CPE), errors by the
customers/end user in the use of the service or where no trouble was detected
(F/OK and T/OK).
M): FAILURE FREQUENCY PERCENT: This measurement is the total number of Network
Troubles "l", divided by the total number of circuits that Reseller has
purchased from BA. The result expressed as a percentage.
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SCHEDULE 35E
N): PERCENT WITHOUT REPORT OUTSTANDING: For this measurement Xxxx Atlantic is
to do the following:
1. Multiply the total number of circuits by the total hours in the
report period to establish the total hours of service availability possible for
the report period.
2. Add all of the measurable time (hours and minutes) for only the
Network Reports to establish the total non service availability hours for the
report period.
3. Subtract the "non service availability" hours from the "total service
availability" hours and divide the result by the "total service availability"
hours and display this as a percentage.
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