[LOGO]
SWITCHLESS WHOLESALE SERVICE AGREEMENT
BETWEEN
FRONTIER COMMUNICATIONS OF THE WEST, INC.
AND
ARC NETWORKS, INC.
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TABLE OF CONTENTS
SECTION
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1. Services; Purchaser Representations
2. Term Of The Agreement
3. Billing And Payment
4. Billing Disputes
5. Termination Rights
6. Limitation Of Action
7. Taxes And Assessments
8. Amendment
9. Warranties And Limitation Of Liability
10. Indemnification
11. Representation
12. Force Majeure
13. Waivers
14. Assignment
15. Confidentiality
16. Integration
17. Construction
18. Governing Law
19. Notices
20. Counterparts
21. Compliance With Laws
22. Third Parties
23. Survival Of Provisions
24. Unenforceable Provisions
EXHIBITS
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Exhibit A General And Service Definitions
Exhibit B Ancillary Fee Schedule
Exhibit C Call Detail Records; Order Processing Procedures; Letter Of Agency
Requirements
Exhibit D National Origination Service (1+)
Exhibit E National Origination Service (800 Switched & Dedicated)
Exhibit F National Origination Service (Dedicated)
Exhibit G National Origination Service - (Switched International)
Exhibit G(a) National Origination Service - (Dedicated International)
Exhibit H 800 PIN
Exhibit I (a-d) Carrier Termination Service
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WHOLESALE SERVICE AGREEMENT
(Switchless)
This Wholesale Service Agreement ("AGREEMENT") is entered into between the
provider of service, Frontier Communications of the West, Inc. f/k/a West
Coast Telecommunications, Inc. on behalf of itself and its affiliates
("FRONTIER"), a California corporation located at 000 Xxxx Xxxxxx Xxxxxx,
Xxxxx Xxxxxxx, XX 00000 and ARC Networks, Inc. ("Purchaser"), a New York
corporation with its principal place of business located at 0000 Xxxxxxxx
Xxxxxxxx Xxxxxxx Xxxxxxxxx, Xxx Xxxx 00000-0000 (hereinafter, Frontier and
Purchaser may be referred to in the aggregate as "PARTIES", and each
singularly as a "PARTY".)
PURPOSE
The Parties are telecommunications carriers subject to the Communications Act
of 1934, as amended. Purchaser desires to purchase network transport and
other telecommunication services from Frontier for Purchaser's resale to
business and residential customers on a common carrier basis. The Parties
agree as follows:
1. SERVICES; PURCHASER REPRESENTATIONS:
(a) Frontier shall, in accordance with the rates, terms and
conditions set forth herein, provide services to Purchaser, as
those services are defined herein or identified on exhibits,
schedules or other attachments appended hereto and made a part
of this Agreement from time-to-time in accordance with the
terms hereof (collectively, "SERVICES"). The initial Services
to be provided have been selected by Purchaser on the attached
SCHEDULE OF INITIAL SERVICES SELECTED BY PURCHASER which is made
a part hereof.
(b) Purchaser agrees to provide Frontier with at least 30 days
prior written notice of Service requirements that may exceed
anticipated or normal course of Service requirements utilized
by Purchaser. Provision of Services is contingent on
availability of facilities and resources of Frontier.
(c) Purchaser shall provide Frontier with a forecast covering a
good faith estimate based on historical information (if
available) of the monthly traffic volume and geographic
distribution for the ordered Services. The estimate will be
for the 3 calendar month period following the desired
activation date. The forecast is to be in the format supplied
or approved by Frontier. Frontier reserves the right to
request updated forecasts. Forecasts do not constitute a
binding commitment on the part of Purchaser.
(d) Orders for Services will be transmitted and processed in
accordance with the procedures set out in Exhibit C attached
hereto and made a part hereof as the same may be modified from
time to time by Frontier.
(e) Any Carrier Identification Code ("CIC") arrangement between
the Parties will be set out in writing as an attachment to this
Agreement. Purchaser is responsible for obtaining its own CIC.
(f) Purchaser is solely responsible for all billing, collection
and customer service activities for End-Users, except as may
otherwise be provided herein. Purchaser acknowledges and
affirms that Purchaser's financial obligations to Frontier
regarding Services provided must be satisfied in full, as
hereinafter provided, whether or not Purchaser has billed or
collected from End-Users.
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(g) Purchaser represents and warrants that prior to obtaining the
Services in any jurisdiction it will be qualified to do
business in such jurisdiction and will maintain good standing
in such jurisdiction during the term of this Agreement.
Purchaser further represents and warrants that prior to
obtaining the Services in any jurisdiction it will be
certified by the proper regulatory agencies to provide the
Services purchased hereunder to End-Users in such jurisdiction.
2. TERM OF THE AGREEMENT:
(a) INITIAL TERM: This Agreement is effective and the Parties'
obligations commence upon the date of execution by Frontier
("EFFECTIVE DATE") and continues in effect for a period of
three (3) years ("INITIAL TERM") from either the day Service
is first utilized by Purchaser (as determined by Frontier's
records), or the 90th day after the Effective Date, whichever
date occurs first.
(b) AUTOMATIC RENEWAL: This Agreement renews automatically for a
one (1) year period at the expiration of the Initial Term,
unless canceled in accordance with the terms hereof
("SUBSEQUENT TERM"). Each Subsequent Term renews
automatically for a one (1) year period upon its expiration,
unless canceled in accordance with the terms hereof.
(c) CANCELLATION: If either Party desires to terminate this
Agreement upon expiration of any term, such Party shall give
the other Party written notice of its intent to cancel at
least ninety (90) days prior to expiration of the then
current term.
3. BILLING AND PAYMENT: Purchaser shall pay Frontier for the Services at
the rates and charges set out in the attached Services Schedules and
such other exhibits, schedules or attachments as may be attached hereto
and made a part hereof from time to time. If Purchaser is required to
pay an initial cash deposit or provide other assurance of payment, then
Frontier is not obligated to begin accepting orders or providing
Service until the deposit or other assurance of payment is received.
(a) The initial cash deposit shall be $ (n/a). With Frontier's
prior consent, Purchaser may provide security in the form of
(check one); (n/a) a lock box arrangement acceptable to
Frontier, or _X_ a letter of credit in the amount of $50,000
from a financial institution and in a format acceptable to
Frontier in lieu of an initial cash deposit. Purchaser's
Letter of Credit must always be equal to or greater than the
Minimum Charge Schedule as defined in Section 3 (h).
(b) Frontier invoices Purchaser via facsimile on or about the
fifth Business Day after the close of each Billing Cycle for
the Services and for any other sums due Frontier ("INVOICE").
Each Invoice details: (i) the amount due Frontier, or the
credit due Purchaser, after a reconciliation between the
actual charges for the Services for the prior Billing Cycle
and any required pre-payment for the prior Billing Cycle, and
(ii) any other sums due Frontier. Except if Frontier has
agreed to a lock-box arrangement, in addition to the amounts
under (i) and (ii) above, the Invoice will provide for a
pre-payment equal to 0% of the actual charges for the Services
for the prior Billing Cycle (exclusive of any non-recurring
charges). If Purchaser has submitted a letter of credit that
has an expiration date greater than 45 days after the Invoice
date, or a cash deposit, the pre-payment for a given month
will be reduced by the amount of such security (but to not
less than zero).
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(c) Each Invoice shall be paid by Purchaser via wire transfer of
immediately available U.S. funds to an account designated by
Frontier so that the payment is received by Frontier no later
than 30 calendar days from the date of the Invoice (the "DUE
DATE"). Frontier agrees that (i) the Invoice date will be the
same day the Invoice is faxed to Purchaser, and (ii) the
Invoice will be faxed on a Business Day. Any Invoice not
paid by the Due Date shall bear late payment fees at the rate
of 1-1/2% per month (or such lower amount as maybe required by
law) until paid.
(d) The Purchaser facsimile number and contact for purposes of
this Section 3. is 000-000-0000, Attention: Xxxxxx Xxxxxx.
Purchaser may change the facsimile number and contact upon
written notice to Frontier.
(e) If Purchaser is delinquent in payment of an Invoice or
Frontier does not have security from Purchaser equal to
Purchaser's prior month usage charges, Frontier may, in
addition to its other remedies herein, demand and receive
additional security of its choice from Purchaser.
(f) FRAUDULENT USAGE: Frontier is not responsible for, and
Purchaser shall defend and indemnify Frontier against, any
fraudulent use of Service. Any claims of fraud shall not
constitute valid justification for dispute of an Invoice.
Subject to the fraudulent usage provisions of the Frontier
Interlink Calling Card Schedule, if applicable, Purchaser is
solely responsible for all Services usage, allegedly
fraudulent or otherwise, and for all additional charges as
may be associated with such usage. Frontier will monitor
End-User call activity for fraudulent use using the same
procedures Frontier uses for its own customers, except
Frontier will contact Purchaser, but will not directly contact
an End-User, with respect to suspected fraudulent use.
(g) Purchasers agrees to pay to Frontier any and all local
exchange carrier-assessed and governmental imposed charges
levied upon Frontier as a result of Services provided to
Purchaser, including but not limited to:
(i) primary Interexchange carrier ("PIC") change charges.
Because of the cost to Frontier associated with
administering PIC retractions, Frontier may at any
time assess the administrative fee(s) set out in
Exhibit B for PIC change reversals;
(ii) assessments by the National Exchange Carrier's
Association, Inc. (NECA) including but not limited to,
the Universal Service Fund/Lifeline Assistance
(USF/LA), the Telecommunications Relay Service (TRS)
Fund, and other assessments as may be assessed by NECA
in the future relative to the Services;
(iii) assessments by regulatory agencies, including but not
limited to, the Federal Communications Commission
(FCC) and state Public Utility/Service Commissions;
(iv) National Administrative Services Center assessments
(including any monthly recurring charges) for
"800"/"888" service installation;
(v) applicable charges set out in the Schedule of
Ancillary Fees attached hereto as Exhibit B and made a
part hereof.
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(h) In addition to any monthly minimum charges for a particular
Service required under this Agreement, commencing with
Purchaser's Invoice following its third full Billing Cycle,
Purchaser is liable for an overall monthly minimum usage
charge for the Services in accordance with the schedule
listed below (the "MINIMUM CHARGE").
Billing Cycle Minimum Charge Schedule
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Month 1-3 $0
Month 4 $10K
Month 5 $16K
Month 6 $25K
Month 7 $40K
Month 8 $65K
Month 9 $104K
Month 10 $167K
Month 11 $268K
Month 12 $429K
Month 13 $500K for duration of Agreement
If Purchaser's net charges (after any discounts or credits)
for the Services are less than the Minimum Charge in any
month, Purchaser shall pay the shortfall (the "MONTHLY
SURCHARGE"). If this Agreement is terminated prior to the
time the Minimum Charge becomes effective (other than
termination by Purchaser for an uncured breach by Frontier),
Purchaser shall pay an amount equal to the difference between:
(i) the actual charges to Purchaser for usage of the Services
for the period up to the date of termination, and (ii) the
amount of charges for such usage calculated at the applicable
Frontier rates in effect at the time the Services were
provided (the "DISCOUNT MAKE-UP CHARGE").
(i) Frontier may revise the rates and monthly recurring and other
charges in this Agreement (and any exhibit, attachment or
schedule) at any time with 90 days written notice to
Purchaser. If the effective rates for the Services are
increased pursuant to this paragraph, then Purchaser may upon
90 days written notice cancel the Service subject to the rate
increase (Purchaser understands that it may not be able to
separately cancel domestic and international Service if only
one is subject to a rate increase). In order to be
effective, Purchaser's notice of cancellation must be received
by Frontier within 30 days after Purchaser's receipt of
Frontier's notice of the rate increase. Cancellation of a
Service under this paragraph includes cancellation of any
monthly minimum usage charge associated with the canceled
Service that accrues after the date of cancellation as well as
a pro-rata reduction in the Minimum Charge to adjust for the
Service being canceled. If the cancellation notice is not
received by Frontier within the 30 day period, Purchaser will
have irrevocably waived its right to cancel the affected
Service for that particular rate increase. If Purchaser does
not timely provide notice of cancellation, or if any Purchaser
traffic for a canceled Service remains on Frontier's network
after the effective date of cancellation, Purchaser shall pay
the increased rates for the affected Service and such traffic.
(j) Purchaser agrees that any make up to minimum charges,
shortfall charges and surcharges for which it is liable under
this Agreement are based on agreed upon minimum commitments on
its part and corresponding rate concessions on Frontier's
part, and are not penalties or consequential or other damages
under Section 9.(d). Frontier may charge Purchaser, and
Purchaser agrees to pay, reasonable attorneys' fees and all
costs incurred by Frontier in the collection of any unpaid
amounts due from Purchaser, whether or not suit is instituted.
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4. BILLING DISPUTES: The Parties agree that time is of essence for
payment of all Invoices. Purchaser has the affirmative obligation of
providing written notice and supporting documentation for any
good-faith dispute with an Invoice ("DISPUTE") within 60 Business Days
after Purchaser's receipt. If Purchaser does not report a Dispute
within the 60 Business Day period, Purchaser shall have irrevocably
waived its dispute rights for that Invoice. Purchaser shall pay
disputed amounts, subject to resolution of the Dispute. Frontier will
use reasonable efforts to resolve timely Disputes within 30
Business Days after its receipt of the Dispute notice. If a Dispute
is not resolved within the 30 Business Day period or if Frontier's
resolution is not acceptable to Purchaser, then at Purchaser's request
the Dispute will be referred to an executive officer of Frontier. If
the Dispute is not resolved within 15 Business Days after the referral,
then either Party may commence an action in accordance with Section 18,
provided that the prevailing Party in such action shall be entitled to
payment of its reasonable attorney fees and costs by the other Party.
The Parties agree to exercise all reasonable efforts to resolve
Disputes within the time frames established herein.
5. TERMINATION RIGHTS:
(a) REGULATORY CHANGES: If the FCC, a state PUC or a court of
competent jurisdiction issues a rule, regulation, law or order
which has the effect of canceling, changing, or superseding
any material term or provision of this Agreement
(collectively, "REGULATORY REQUIREMENT"), then this Agreement
shall be deemed modified in such a way as the Parties mutually
agree is consistent with the form, intent and purpose of this
Agreement and is necessary to comply with such Regulatory
Requirement. Should the Parties not be able to agree on
modifications necessary to comply with a Regulatory
Requirement that materially affects the rights of either Party
within 30 days after the Regulatory Requirement is effective,
then upon written notice either Party may, to the extend
practicable, terminate that portion of this Agreement impacted
by the Regulatory Requirement.
(b) Without affecting any amounts due Frontier, either Party may
terminate this Agreement upon the other Party's insolvency,
dissolution or cessation of business operations. Without
affecting any amounts due it, Frontier may terminate this
Agreement for Purchaser's failure to pay any delinquent
Invoice, or to maintain any other assurance of payment that
may be required hereunder, within 2 Business Days following
Purchaser's receipt of written notice from Frontier.
(c) In the event of a breach of any material term or condition of
this Agreement by a Party (other than a failure to pay which is
covered under (b) above), the other Party may terminate this
Agreement upon 30 days written notice, unless the breaching
Party cures the breach during the 30 day period. A breach
that cannot be reasonably cured within a 30 day period may be
addressed by a written waiver of this section signed by the
Parties.
(d) Upon any breach by Purchaser not cured after expiration of all
applicable notice, grace and cure periods, Frontier may at its
sole option do any or all of the following:
(i) cease accepting or processing orders for Service and
suspend Service;
(ii) cease all electronically and manually generated
information and reports (including any CDR not paid
for by Purchaser);
(iii) draw on any letter of credit, security deposit or
other assurance of payment provided by Purchaser;
(iv) enforce any security interest granted by Purchaser to
Frontier hereunder;
(v) terminate this Agreement and Service without liability
to Frontier;
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(vi) contact the End-Users directly to inform them that
their telecommunications service will no longer be
provided through the Purchaser, but may be continued
through Frontier directly;
(vii) xxxx and collect from the End-Users directly (or
through its billing agents) for services;
(viii) treat the End-Users as Frontier customers for all
purposes;
(ix) collect from Purchaser for future Services that would
have been provided, but for Purchaser's breach,
including but not limited to monthly minimums; and
(x) pursue such other legal or equitable remedy or relief
as may be appropriate.
(e) Exercise by Frontier of its remedies under items (v) through
(viii) above is referred to as the "END-USER PURCHASE" and is
limited to Presubscribed End-Users. As consideration for the
End-User Purchase, Frontier agrees to pay Purchaser the amount
of the net charges (standard published charges, less
governmental assessments and discounts) billed by Frontier
directly to acquired End-Users for actual usage of Frontier
services in the first full billing cycle in which Frontier
invoices such End-Users (the "TRANSFER PRICE").
(f) The Transfer Price may be setoff by Frontier against any
outstanding amounts due Frontier from Purchaser. Frontier
shall pay any balance of the Transfer Price remaining after
setoff to Purchaser within 30 days after the close of the
aforesaid Frontier billing cycle. If the total of
outstanding amounts due Frontier exceeds the Transfer Price,
Purchaser continues to be liable to Frontier for the excess.
As a condition for Purchaser's receipt or credit of the Transfer
Price, Purchaser agrees to fully cooperate with Frontier in
implementation of the transfer of the End-Users to direct
Frontier customers. Such cooperation includes without
limitation:
(i) joint correspondence to the End-Users explaining the
mechanics and impact of the transfer;
(ii) Purchaser promptly providing Frontier with all
End-User information in its possession reasonably
required by Frontier to administer End-User accounts;
and
(iii) Purchaser promptly providing Frontier with all LOAs
for such End-Users and a written assignment of all
Purchaser's rights to such LOA's.
(g) Upon termination of this Agreement and in addition to its right
to convert End-Users to Frontier customers, Frontier may
continue providing services to Presubscribed End-Users in
accordance with the rates and terms Frontier and an End-User
may agree upon and to treat such continuing End-Users as
Frontier customers for all purposes.
6. LIMITATION OF ACTION:
Purchaser shall not seek legal or equitable remedies,
including without limitation, injunctive relief, that would
require Frontier to continue providing Service to Purchaser or
to End-Users through Purchaser while any delinquent amounts
due Frontier remain unpaid, unless Frontier is in breach of the
Agreement.
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7. TAXES AND ASSESSMENTS:
Purchaser is responsible for the collection and remittance of
all governmental assessments, surcharges and fees pertaining
to its resale of the Services (other than taxes on Frontier's
net income) (collectively, "TAXES"). Purchaser shall provide
Frontier with valid and properly executed certificate(s) of
exemption for the Taxes, as applicable.
8. AMENDMENT:
Except as may be otherwise provided herein, this Agreement may
not be amended or modified, in whole or in part, except by the
Parties in writing.
9. WARRANTIES AND LIMITATION OF LIABILITY:
(a) Service will be provided by Frontier in accordance with the
applicable technical standards established for call transport
by the telecommunications industry. Frontier shall provide
Service in a quality and diligent manner consistent with
service Frontier provides to its other customers via digital
fiber optic network with SS7 signaling (where available).
FRONTIER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO TRANSMISSION, EQUIPMENT OR SERVICE PROVIDED
HEREUNDER, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR
FUNCTION.
(b) It is the express intent of the Parties that Purchaser be
solely responsible for all claims of End-Users relating to the
Services, including without limitation, any credits or
adjustments that may be issued or required to be issued to
End-Users.
(c) Purchaser's sole and exclusive remedy in the case of a breach
of the Agreement by Frontier shall be a refund of the purchase
price paid for those Services not provided in accordance with
the terms of this Agreement.
(d) In no event shall either Party be liable to the other Party
for incidental and consequential damages, loss of goodwill,
anticipated profit, or other claims for indirect damages in
any manner related to this Agreement or the Services.
10. INDEMNIFICATION:
Each Party shall defend and indemnify the other Parry and its
directors, officers, employees, representatives and agents from any and
claims, taxes, penalties, interest, expenses, damages, lawsuits or
other liabilities (including without limitation, reasonable attorney
fees and court costs) relating to or arising out of (i) acts or
omissions in the operation of it's business; and (ii) it's breach of
this Agreement; provided, however, Frontier shall not be obligated to
indemnify Purchaser, and Purchaser shall defend and indemnify Frontier
hereunder, for any claims by Purchaser's customersd with respect to
services provided by Purchaser which may incorporate Frontier's
services.
11. REPRESENTATION:
The Parties acknowledge and agree that the relationship between them is
solely that of independent contractors, and nothing in this Agreement
is to be construed to constitute the Parties as employer/employee,
partners, franchise/franchisee, or otherwise as participants in a
joint or common undertaking. Neither Party, nor their respective
employees, agents or representatives, has any right, power or authority
to act or create any obligation, express or implied, on behalf of the
other Party.
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12. FORCE MAJEURE:
Other than with respect to failure to make payments due hereunder,
neither Party shall be liable under this Agreement for delays,
failures to perform, damages, losses or destruction, or malfunction of
any equipment, or any consequence thereof, caused or occasioned by,
or due to fire, earthquake, flood, water, the elements, labor disputes
or shortages, utility curtailments, power failures, explosions, civil
disturbances, governmental actions, shortages of equipment or
supplies, unavailability of transportation, acts of omissions of third
parties, or any other cause beyond its reasonable control.
13. WAIVERS:
Failure of either Party to enforce or insist upon compliance with the
provisions of this Agreement, or waive compliance with any provisions
of this Agreement in any instance, shall not be construed as a general
waiver or relinquishment of any provision or right of this Agreement.
14. ASSIGNMENT:
(a) Neither Party may assign or transfer its rights or
obligations under this Agreement without the other Party's
written consent, which consent may not be unreasonably
withheld, except that Frontier may assign this Agreement to
its parent, successor in interest, or an affiliate or
subsidiary without Purchaser's consent. Any assignment or
transfer without the required consent is void.
(b) Purchaser may not assign, sell, convey or otherwise transfer
all or a portion of its Presubscribed End-User base
(collectively "TRANSFER") without the prior written consent of
Frontier, which consent Frontier may not unreasonably
withhold. Purchaser must provide Frontier with at least 60
days prior written notice of Purchaser's intent to initiate a
Transfer. Within 30 days from the date of receipt of Frontier
of Purchaser's notice of intent, Frontier will in writing
inform Purchaser of the conditions required by Frontier for
its consent to the Transfer, which conditions will at a minimum
include compensation to Frontier to cover charges for future
Services that would have been provided but for the Transfer,
including but not limited to, any minimum charges herein. If
Frontier fails to respond and provide the required conditions
within the 30 day period, Frontier is deemed to have consented
to the Transfer. Purchaser understands and agrees that:
(i) its breach of this Section 14(b) is an incurable
breach, unless Frontier elects in writing to allow
Purchaser to cure; and
(ii) upon the occurrence of such breach Frontier may
immediately proceed with its remedies under Section 5.
15. CONFIDENTIALITY:
(a) Each Party agrees that all information furnished to and
identified by the other Party as being confidential or
proprietary information or trade secrets (collectively
referred to as "PROPRIETARY INFORMATION"), is and
continuously remains, the sole and exclusive property of the
Party furnishing the same (the Party furnishing the
Proprietary Information hereinafter referred to as the
"DISCLOSING PARTY" and the other Party hereinafter referred to
as the "RECEIVING PARTY"). Each Party shall treat the
Proprietary Information and the contents of this Agreement in
a confidential manner and, except to the extent necessary in
connection with the performance of its obligations under this
Agreement, neither Party may directly or indirectly disclose
the same to any third party without the written consent of the
Disclosing Party.
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(i) The Proprietary Information is to be used by the
Receiving Party only for the purposes contemplated in
this Agreement and the Receiving Party may not disclose
the same to anyone other than its employees on a need
to know basis and who agree to be bound by the terms of
this Section. The Proprietary Information may not be
retained by the Receiving Party and all originals and
any copies or summaries shall be returned to the
Disclosing Party upon request.
(b) The confidentiality of obligations of this Section do not apply
to any portion of the Proprietary Information which:
(i) is or becomes public knowledge through no fault of the
Receiving Party;
(ii) is in the lawful possession of Receiving Party prior to
disclosure to it by the Disclosing Party (as confirmed
by the Receiving Party's records);
(iii) is disclosed to the Receiving Party without
restriction on disclosure by a person who has the
lawful right to disclose the information; or
(iv) is disclosed pursuant to the lawful requirements or
formal request of a governmental agency. If the
Receiving Party is requested or legally compelled by a
governmental agency to disclose any of the Proprietary
Information of the Disclosing Party, the Receiving
Party agrees on behalf of itself and its representatives
that it will provide the Disclosing Party with prompt
written notice of such requests that the Disclosing
Party has the opportunity to pursue its legal and
equitable remedies regarding potential disclosure.
(c) Each Party acknowledges that its breach or threatened breach of
this Section may cause the Disclosing Party irreparable harm
which would not be adequately compensated by monetary damages.
Accordingly, in the event of any such breach or threatened
breach, the Receiving Party agrees that equitable relief,
including temporary restraining orders or preliminary or
permanent injunctions, is an available remedy in addition to
any legal remedies to which the Disclosing Party may be
entitled.
(d) Neither Party may use the name, logo, trade name, service
marks, trade marks, or printed materials of the other Party,
in any promotional or advertising material, statement,
document, press release or broadcast without the prior written
consent of the other Party, which consent may be granted or
withheld at the other Party's sole discretion.
(e) The Parties acknowledge the existence of a highly competitive
telecommunications marketplace and understand and agree that
either Party may offer to provide services to customers of the
other Party (including End-Users) in accordance with such
rates and terms as a Party and a customer may agree upon,
provided however, a Party may not use Proprietary Information
of the other Party in soliciting customers for services.
Provided further, neither Party may, in any marketing
activities to existing customers of the other Party, use the
fact that Frontier is the Purchaser's underlying carrier as an
inducement for such customers to switch their services.
(f) Notwithstanding the restrictions set forth in this Section,
Frontier may use End-User Information in furtherance of its
rights under Section 5.
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16. INTEGRATION:
This Agreement and all Exhibits, Schedules and other attachments
hereto, represent the entire agreement between the Parties with respect
to the subject matter hereof and supersede and merge all prior
agreements, promises, understandings, statements, representations,
warranties, indemnities and inducements to the making of this
Agreement relied upon by either Party, whether written or oral.
17. CONSTRUCTION:
The language used in this Agreement is deemed the language chosen by
the Parties to express their mutual intent. No rule of strict
construction shall be applied against either Party.
18. GOVERNING LAW:
This Agreement shall, in all respects, be governed by and enforced
in accordance with the laws of the State of New York, excluding its
choice of law provisions. For valuable consideration, both Parties
acknowledge and agree that any action to enforce or interpret the
terms of this Agreement shall be instituted and maintained only in the
Federal Court for the Western District of New York, or if jurisdiction
is not available in the Federal Court, then a state court located in
Rochester, New York. Purchaser hereby consents to the jurisdiction and
venue of such courts and waives any right to object to such
jurisdiction and venue.
19. NOTICES:
All notices, including but not limited to, demands, requests and other
communications required or permitted hereunder (not including
Invoices) shall be in writing and shall be deemed to be delivered when
actually received, whether upon personal delivery or if sent by common
carrier. All notices given by mail or other means of delivery shall be
sent by first class mail, duly addressed and with proper postage, to
the following address, or such other address as each of the Parties
hereto may notify the other:
Frontier Communications of the ARC Networks, Inc.
West, Inc. Attn: Xxxxx Xxxxxxxxxx,
ATTN: Xxxxx X. Palak, Contract Services President
Xxxxx X. Xxxxxxxxxxx, VP Carrier 000 Xxxxxxxx, Xxxxx 000
Xxxxxxxx Xxx Xxxx, XX 00000-0000
000 X. Xxxxxx Xxxxxx Xxxxxxxxx # 000-000-0000
Xxxxx Xxxxxxx, XX 00000
Facsimile # 000-000-0000
20. COUNTERPARTS:
This Agreement may be executed in several counterparts, each of which
shall constitute an original, but all of which shall constitute one
and the same instrument.
21. COMPLIANCE WITH LAWS:
During the term of this Agreement, the Parties shall comply with all
local, state and federal laws and regulations applicable to this
Agreement and to their respective businesses. Further, both Parties
shall obtain, file and maintain any tariffs, permits, certifications,
authorizations, licenses or similar documentation as may be required
by the FCC, a state Public Utility or Service Commission, or any other
governmental body or agency having jurisdiction over its business.
Upon request, either Parties will provide the other with copies of
such required tariffs, permits, certifications, authorizations,
licenses and similar documentation.
12
22. THIRD PARTIES:
The provisions of this Agreement and the rights and obligations
created hereunder are intended for the sole benefit of Frontier and
Purchaser, and do not create any right, claim or benefit on the part
of any person not a Party to this Agreement, including End-Users.
23. SURVIVAL OF PROVISIONS:
Any obligations of the Parties relating to monies owed, as well as
those provisions relating to confidentiality, assurances of payment,
limitations on liability and actions and indemnification, survive
termination of this Agreement.
24. UNENFORCEABILITY OF PROVISIONS:
The illegality or unenforceability of any provision of this Agreement
does not affect the legality or enforceability of any other provision
or portion. If any provision or portion of this Agreement is deemed
illegal or unenforceable for any reason, there shall be deemed to be
made such minimum change in such provision or portion as is necessary to
make it valid and enforceable as so modified. This Agreement is
voidable by Frontier if modified by Purchaser without Frontier's
written or initialed consent.
By its signature below, each Party acknowledges and agrees that sufficient
allowance has been made for review of this Agreement by respective counsel and
that each Party has been advised as to its legal rights, duties and
obligations under this Agreement.
FRONTIER COMMUNICATIONS OF THE WEST, INC. ARC NETWORK, INC.
By: /s/ Xxxxx Xxxxxxxxxxx By: /s/ Xxxxx Xxxxxxxxxx
---------------------- ---------------------
Xxxxx Xxxxxxxxxxx, Vice President Xxxxx Xxxxxxxxxx, President
Frontier Carrier Services
Date: 1/22/97 Date: 1/21/97
-------------------- ------------------
13
[LOGO]
AMENDMENT #1 TO WHOLESALE SERVICE AGREEMENT
ARC Networks, Inc.
August 14, 1997
This is Amendment #1 to the above referenced Agreement between Frontier
Communications of the West, Inc. ("Frontier") and ARC Networks, Inc.
("Purchaser"), dated January 22, 1997, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the same
meaning as set forth in the Agreement.
2. Purchaser's National Origination Service (NOS) Switched Outbound and
Inbound, INTRASTATE and INTRALATA, rates will be modified to reflect
new rates for the following states:
STATE RPM STATE RPM
-----------------------------------------------------------------------
Florida $0.1180 New York $0.1050
-----------------------------------------------------------------------
Xxxxxxxx x0.0000 Xxx Xxxx (Intralata 132) $0.0890
-----------------------------------------------------------------------
Illinois (Intralata 358) $0.0475 Ohio $0.0860
-----------------------------------------------------------------------
Maryland $0.0850 Pennsylvania $0.0960
-----------------------------------------------------------------------
3. Purchaser's NOS Dedicated Outbound and Inbound, INTRASTATE, rates will
be modified to reflect new rates for the following states:
STATE RPM STATE RPM
-----------------------------------------------------------------------
Florida $0.0685 New York $0.0550
-----------------------------------------------------------------------
Illinois $0.0400 Ohio $0.0520
-----------------------------------------------------------------------
Maryland $0.0550 Pennsylvania $0.0550
-----------------------------------------------------------------------
4. Purchaser's Carrier Domestic Termination rate structure, identified
in the Agreement as Exhibit 1(a), will be modified to reflect new
rates as presented in the following amended Exhibit 1(a), attached
hereto and made a part hereof. Purchaser's Carrier Domestic Discount,
as identified in Exhibit 1(d) of the Agreement, shall no longer be
applicable and shall be deleted from the Agreement in it's entirety.
Purchaser's Carrier International Discount, identified in Exhibit 1(d)
of the Agreement, shall remain intact.
5. All of the above rates will be effective as of August 7, 1997.
6. Purchaser hereby requests subscription to Frontier's 800 Carrier
Transport Service identified as Exhibit J, attached hereto and made a
part hereof.
7. Item #3(i) of the Agreement shall be modified to read as follows:
Frontier may revise the rates and monthly recurring and other charges
in this Amendment and/or Agreement (and any exhibit, attachment, or
schedule) at any time upon written notice to Customer. Unless
otherwise stated in the notice, domestic rates are effective within
thirty days and international/offshore rates are effective within
seven days of the date of Frontier's written notice. If the effective
rate for a Service is increased pursuant to this paragraph, then
Purchaser may cancel the Service subject to the rate increase upon
written notice to Frontier given within 30 days after Customer's
receipt of the rate increase notice. Cancellation of a Service under
this paragraph includes a pro-rata reduction in the Minimum Charge to
adjust for the Service being canceled. If a rate increase affects a
portion of a Service that is not severable from the entire
Service Purchaser shall not be able to cancel the affected portion,
e.g. domestic outbound switched service is not cancelable as a result
of a rate increase in directory assistance calls (DA cannot be
separately blocked); further, if the rate increase affects traffic to
a particular LATA or country, Purchaser may only cancel Service to the
particular LATA/country to the extent severable by Frontier.
8. The balance of the Agreement and any amendments or addenda thereto not
modified by this Amendment shall remain in full force and effect.
9. This Amendment is effective as of the date signed by Frontier below.
FRONTIER COMMUNICATIONS OF THE WEST, INC. ARC NETWORKS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx By:/s/ Xxxxx Xxxxxxxxxx
---------------------- ---------------------
Xxxxx X. Xxxxxxxxxxx, Vice President Xxxxx Xxxxxxxxxx, President
Frontier Carrier Services
Dated: 8/29/97 Dated:
-------------------- ------------------
[LOGO]
AMENDMENT #2 TO WHOLESALE SERVICE AGREEMENT
ARC Networks, Inc.
October 21, 1997
This is Amendment #2 to the above referenced Agreement between Frontier
Communications of the West, Inc. ("Frontier") and ARC Networks, Inc.
("Purchaser"), dated January 22, 1997, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the
same meaning as set forth in the Agreement.
2. Purchaser requests subscription to Frontier's Interlink Calling Card
Service, attached hereto and made a part hereof, and identified as
Exhibits X, X(c), K(b), and K(c).
3. The balance of the Agreement and any executed Amendment's or addenda
thereto not modified by this Amendment #2 shall remain in full force
and effect.
4. This Amendment #2 is effective as of the date signed by Frontier below.
FRONTIER COMMUNICATIONS OF THE WEST, INC. ARC NETWORKS, INC.
By: By:/s/ Xxxxx Xxxxxxxxxx
---------------------- ---------------------
Xxxxx X. Xxxxxxxxxxx, Vice President Xxxxx Xxxxxxxxxx, President
Frontier Carrier Services
Dated: Dated: 10/27/97
-------------------- ------------------
[LOGO]
AMENDMENT #3 TO WHOLESALE SERVICE AGREEMENT
ARC Networks, Inc.
November 25, 1997
This is Amendment #3 to the above referenced Agreement between Frontier
Communications of the West, Inc. ("Frontier") and ARC Networks, Inc.
("Purchaser"), dated January 22, 1997, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the
same meaning as set forth in the Agreement.
2. Purchaser's Carrier Termination International Service rate structure,
identified in the Agreement as Exhibit 1(c), will be modified to
reflect new rates as presented in the following Amended Exhibit 1(c),
attached hereto and made a part hereof. These rates will be effective
with Purchaser's November 28, 1997-December 27, 1997 Billing Cycle.
3. The balance of the Agreement and any executed Amendment's or addenda
thereto not modified by this Amendment #3 shall remain in full force
and effect.
FRONTIER COMMUNICATIONS OF THE WEST, INC. ARC NETWORKS, INC.
By: /s/ Xxxxx Xxxxxxxxxxx By:/s/ Xxxxx Xxxxxxxxxx
---------------------- ---------------------
Xxxxx Xxxxxxxxxxx, Vice President Xxxxx Xxxxxxxxxx, President
Frontier Carrier Services
Dated: 12/12/97 Dated: 12/3/97
-------------------- ------------------
[LOGO]
AMENDMENT #4 TO WHOLESALE SERVICE AGREEMENT
ARC Networks, Inc.
February 26, 1998
This is Amendment #4 to the above referenced Agreement between Frontier
Communications of the West, Inc. ("Frontier") and ARC Networks, Inc.
("Purchaser"), dated January 22, 1997, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the
same meaning as set forth in the Agreement.
2. Purchaser's Initial Term, as identified in the Agreement, shall be
extended by six months (through Purchaser's July 28, 2000-August 27,
2000 Billing Cycle).
3. Purchaser's Minimum Charge, as identified in the Agreement, shall be
modified as follows:
"In addition to any monthly minimum charges for a particular
Service required under this Agreement, commencing with
Purchaser's appropriate Billing Cycle, Purchaser is liable for
an overall monthly minimum usage charge for all Services (the
"Minimum Charge") in accordance with the schedule listed below:
Billing Cycle Minimum Charge Schedule
------------- -----------------------
January 28, 1998-February 27, 1998 $150,000
February 28, 1998-March 27, 1998 $150,000
March 28, 1998-April 27, 1998 $150,000
April 28, 1998-May 27, 1998 $268,000
May 28, 1998-June 27, 1998 $429,000
June 28, 1998-July 27, 1998 $500,000
If Purchaser's net charges (after any discounts or credits)
for the Services are less than the Minimum Charge in any month,
Purchaser shall pay the shortfall (the "Monthly Surcharge")."
The remainder of the paragraph remains unchanged.
4. Purchaser's Carrier Domestic Termination rates, as identified in
Amended Exhibit 1(a) of Amendment #1, shall be modified to reflect
new rates. These rates are attached hereto and made a part hereof and
are identified as Amended Exhibit 1(a).
5. Purchaser's Carrier 800 Transport rates, as identified in Exhibit J of
Amendment #1, shall be modified to reflect new rates. These rates
are attached hereto and made a part hereof and are identified as
Amended Exhibit J.
6. All of the above rates will be effective within thirty days from the
date of signature of this Amendment #4 by Frontier.
7. Purchaser has elected to assume responsibility for the reporting and
payment of "per call payphone dial-around compensation" charges with
respect to its customers' completed calls that originate from
payphones and are terminated by Frontier to Purchaser's switch or
other facilities under the Agreement (the "Purchaser Calls").
Purchaser and Frontier agree as follows.
A. Pursuant to Section 276 of the Telecommunications Act of 1996
(the "Act"), the Federal Communications Commission ("FCC") has
prescribed regulations that establish a compensation plan to
ensure that all payphone service providers are compensated for
completed calls made from their payphones ("Payphone
Compensation"). The Parties agree that with respect to the
Purchaser Calls, Purchaser shall be deemed the service provider
and the party responsible for reporting and paying the FCC
mandated Payphone Compensation charges for the Purchaser Calls.
Purchaser agrees to comply with all laws, rules and regulations
promulgated by the FCC or its designees with respect to Payphone
Compensation for the Purchaser Calls. Further, Purchaser agrees
to indemnify Frontier in accordance with Purchaser's
indemnification obligations under the Agreement, and otherwise
comply with the terms of the Agreement, with respect to third
party and regulatory claims against Frontier related to
Purchaser's acts or omissions regarding the Purchaser Calls and
the Payphone Compensation reporting and payment obligations
assumed by Purchaser hereunder. This provision shall survive
termination or expiration of the Agreement.
B. While the Agreement is in effect, Purchaser agrees to contract
with the National Payphone Clearing House or a similar
organization that has the qualifications and systems necessary to
collect and validate information necessary to determine each
payphone owners' eligibility for payment of Payphone Compensation
(the "Agency") for the Purchaser Calls, for the purpose of
reporting and paying Payphone Compensation in compliance with the
Act. Upon request, Purchaser shall provide Frontier with a copy
of Purchaser's contract with the Agency.
C. On a quarterly basis, Purchaser shall provide Frontier with a copy
of the Payphone Compensation reports it provides to the Agency
with respect to the Purchaser Calls, plus supporting documentation,
which reports shall be certified by an officer of purchaser as
being accurate and in compliance with the Act. Upon request,
Purchaser agrees to continue providing copies of such reports
after termination or expiration of the Agreement as long as
Purchaser's above indemnification obligations remain in effect.
D. Frontier may upon reasonable advance notice, and at its expense,
conduct an audit of Purchaser's books and records pertinent to the
calculation, reporting and payment of Payphone Compensation for
the Purchaser Calls. Frontier may perform the initial audit at the
end of the third full month following the effective date of this
Amendment.
E. Purchaser agrees that it shall be charged and shall pay Frontier's
then current Payphone Compensation surcharge for any completed
payphone calls that both originate and terminate on Frontier's
network under the Agreement, such as completed calling card calls
or completed 1 + calls (the "Frontier Calls"). Frontier shall be
responsible for reporting and paying the Payphone Compensation
charges for the Frontier Calls.
8. The balance of the Agreement and any executed Amendment's or addenda
thereto not modified by this Amendment #4 shall remain in full force
and effect.
9. This Amendment #4 is effective as of the date signed by Frontier below.
FRONTIER COMMUNICATIONS OF THE WEST, INC. ARC NETWORKS, INC.
By: By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------ ----------------------------
Xxxxx X. Xxxxxxxxxxx, Vice President Xxxxx Xxxxxxxxxx, President
Frontier Carrier Services
Dated: Dated: 2/27/98
-------------------- ------------------
2/26/98 2
[LOGO]
AMENDMENT #5 TO WHOLESALE SERVICE AGREEMENT
ARC NETWORKS, INC.
April 8, 1998
This is Amendment #5 to the above referenced Agreement between Frontier
Communications of the West, Inc. ("Frontier") and ARC Networks, Inc.
("Purchaser"), dated January 22, 1997, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the
same meaning as set forth in the Agreement.
2. Purchaser's Carrier Termination International Service rates, as
identified in Amended Exhibit 1(c) of Amendment #3, shall be modified
to reflect the rates set out in the new Amended Exhibit 1(c), which
is attached hereto and made a part hereof. These rates are effective
within thirty (30) days following the execution date of this
Amendment #5 by Frontier.
3. The balance of the Agreement and any executed amendments or addenda
thereto not modified by this Amendment #5 shall remain in full force
and effect.
4. Excluding any rate changes, this Amendment #5 is effective as of the
date signed by Frontier below.
FRONTIER COMMUNICATIONS OF THE WEST, INC. ARC NETWORKS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------- ----------------------------
Xxxxx X. Xxxxxxxxxxx, Vice President Xxxxx Xxxxxxxxxx, President
Frontier Carrier Services Group
Date: Date: 4/15/98
--------------------------------- --------------------------
[LOGO] ORIGINAL
AMENDMENT #6 TO WHOLESALE SERVICE AGREEMENT
ARC NETWORKS, INC.
June 8, 1998
This is Amendment #6 to the above referenced Agreement between Frontier
Communications of the West, Inc. ("Frontier") and ARC Networks, Inc.
("Purchaser"), dated January 22, 1997, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the
same meaning as set forth in the Agreement.
2. In addition to Purchaser's Carrier Domestic Termination and Carrier
800 Transport rates FOB NY, as identified in Amendment #4, Purchaser
shall receive Carrier Domestic Termination and Carrier Toll Free
Transport rates FOB LA, attached hereto and made a part hereof, and
identified as Exhibits I(d) and J(a).
3. The balance of the Agreement and any executed amendments or addenda
thereto not modified by this Amendment #6 shall remain in full force
and effect.
4. This Amendment #6 is effective as of the date signed by Frontier below.
FRONTIER COMMUNICATIONS OF THE WEST, INC. ARC NETWORK, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx 6/17 By: /s/ Xxxxxxx X. Xxxxx
----------------------------------- ----------------------------
Xxxxx X. Xxxxxxxxxxx, Vice President Xxxxxxx X. Xxxxx, SVP. CFO
Frontier Carrier Services
Date: 6/17/98 Date: 6/12/98
--------------------------------- --------------------------
VOID
AS PER
XXXXXX X.
8-26-98
SEE CONTRACT
DATED 6-19
[LOGO] ORIGINAL
AMENDMENT #7 TO WHOLESALE SERVICE AGREEMENT
ARC NETWORKS, INC.
June 18, 1998
This is Amendment #7 to the above referenced Agreement between Frontier
Communications of the West, Inc. ("Frontier") and ARC Networks, Inc.
("Purchaser"), dated January 22, 1997, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the
same meaning as set forth in the Agreement.
2. Purchaser's Initial Term, as identified in Item #2 of Amendment #4,
shall be extended one year (through Purchaser's July 28, 2001-August
27, 2001 Billing Cycle).
3. Purchaser's Minimum Charge, as identified in Item #3 of Amendment #4,
shall be modified as follows:
"In addition to any monthly minimum charges for a particular
Service required under this Agreement, commencing with
Purchaser's appropriate Billing Cycle, Purchaser is liable for
an overall monthly minimum usage charge for all Services (the
"Minimum Charge") in accordance with the schedule listed below:
Billing Cycle Minimum Charge
------------- --------------
May 28, 1998-June 27, 1998 $125,000
June 28, 1998-July 27, 1998 $125,000
July 28, 1998-August 27, 1998 $150,000
August 28, 1998-September 27, 1998 $200,000
September 28, 1998-October 27, 1998 $225,000
October 28, 1998-November 27, 1998 $250,000
November 28, 1998-December 27, 1998 $275,000
December 28, 1998-January 27, 1999 $300,000
January 28, 1999-February 27, 1999 $325,000
February 28, 1999-March 27, 1999 $350,000
March 28, 1999-April 27, 1999 $375,000
April 28, 1999-May 27, 1999 $400,000
May 28, 1999-June 27, 1999 $425,000
June 28, 1999-July 27, 1999 $450,000
July 28, 1999-August 27, 1999 $475,000
August 28, 1999-September 27, 1999
-each month thereafter $500,000
If Purchaser's net charges (after any discounts or credits)
for the Services are less than the Minimum Charge in any month,
Purchaser shall pay the shortfall (the "Monthly Surcharge")."
The remainder of the paragraph remains unchanged.
4. Purchaser's National Origination Service (NOS) Switched and Dedicated,
Outbound, Inbound, and International rates, as identified in any
Amendment/Addendum prior to this Amendment #7, shall be modified to
reflect new Frontier Access Direct rates as provided in Amended
Exhibits D, E, F, G, and G(a).
6/19/98
5. Purchaser's Carrier Domestic Termination, Carrier International
Termination, and Carrier 800 Transport Service's rates, as identified
in any Amendment/Addendum prior to this Amendment #7, shall be
modified to reflect new Frontier Access Direct rates as provided
Amended Exhibits I, I(a), I(c), and J.
6. All of the above revised rates are attached hereto and made a
part hereof, and will be effective on a go forward basis with
Purchaser's first full Billing Cycle following the execution of this
Amendment #7 by Frontier.
7. Purchaser requests subscription to Frontier's Unbundled Sub-CIC
Service and Private Line Service, both of which are attached hereto
and made a part hereof and identified as Exhibits K and L.
8. Provided Purchaser is not currently in default under the Agreement,
Frontier shall credit Purchaser's account for all shortfall charges
accrued prior to the effective date of this Amendment #7.
9. The balance of the Agreement and any executed amendments or addenda
thereto not modified by this Amendment #7 shall remain in full force
and effect.
10. Excluding any rate changes, this Amendment #7 is effective as of the
date signed by Frontier below.
FRONTIER COMMUNICATIONS OF THE WEST, INC. ARC NETWORKS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx 6/26/98 By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------- ---------------------------
Xxxxx X. Xxxxxxxxxxx, Vice President Xxxxx Xxxxxxxxxx, President
Frontier Carrier Services
Date: 6/26/98 Date: 6/22/98
-------------------- -------------------
