EXHIBIT 10.47
General Terms and Conditions - Part A
Page 1
AGREEMENT
THIS AGREEMENT is made by and between BellSouth Telecommunications,
Inc., ("BellSouth"), a Georgia corporation, and The Other Phone Company, Inc.
d/b/a Access One Communications, Inc. ("Access One"), a Florida corporation, and
shall be deemed effective as of February 17, 2000. This Agreement may refer to
either BellSouth or Access One or both as a "Party" or "Parties."
W I T N E S S E T H
WHEREAS, BellSouth is a local exchange telecommunications company
authorized to provide telecommunications services in the states of Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina and Tennessee; and
WHEREAS, Access One is or seeks to become an alternative local exchange
telecommunications company ("CLEC") authorized to provide telecommunications
services in the states of Alabama, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina, and Tennessee; and
WHEREAS, the Parties wish to resell BellSouth's telecommunications
services and/or interconnect their facilities, purchase network elements and
other services, and exchange traffic specifically for the purposes of fulfilling
their obligations pursuant to sections 251 and 252 of the Telecommunications Act
of 1996 ("the Act").
NOW THEREFORE, in consideration of the mutual agreements contained
herein, BellSouth and Access One agree as follows:
1. PURPOSE
The Parties agree that the rates, terms and conditions
contained within this Agreement, including all Attachments,
comply and conform with each Parties' obligations under
sections 251 and 252 of the Act. The resale, access and
interconnection obligations contained herein enable Access One
to provide competing telephone exchange service to residential
and business subscribers within the territory of BellSouth.
The Parties agree that Access One will not be considered to
have offered telecommunications services to the public in any
state within BellSouth's region until such time as it has
ordered services for resale or interconnection facilities for
the purposes of providing business and/or residential local
exchange service to customers.
General Terms and Conditions - Part A
Page 2
2. TERM OF THE AGREEMENT
2.1 The term of this Agreement shall be two years, beginning
February 17, 2000 and shall apply to the state(s) of Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North
Carolina, South Carolina, and Tennessee. If as of the
expiration of this Agreement, a Subsequent Agreement (as
defined in Section 2.2 below) has not been executed by the
Parties, this Agreement shall continue on a month-to-month
basis while a Subsequent Agreement is being negotiated. The
Parties' rights and obligations with respect to this Agreement
after expiration shall be as set forth in Section 2.4 below.
2.2 The Parties agree that by no later than one hundred and eighty
(180) days prior to the expiration of this Agreement, they
shall commence negotiations with regard to the terms,
conditions and prices of resale and/or local interconnection
to be effective beginning on the expiration date of this
Agreement ("Subsequent Agreement").
2.3 If, within one hundred and thirty-five (135) days of
commencing the negotiation referred to in Section 2.2 above,
the Parties are unable to satisfactorily negotiate new resale
and/or local interconnection terms, conditions and prices,
either Party may petition the Commission to establish
appropriate local interconnection and/or resale arrangements
pursuant to 47 U.S.C. 252. The Parties agree that, in such
event, they shall encourage the Commission to issue its order
regarding the appropriate local interconnection and/or resale
arrangements no later than the expiration date of this
Agreement. The Parties further agree that in the event the
Commission does not issue its order prior to the expiration
date of this Agreement, or if the Parties continue beyond the
expiration date of this Agreement to negotiate the local
interconnection and/or resale arrangements without Commission
intervention, the terms, conditions and prices ultimately
ordered by the Commission, or negotiated by the Parties, will
be effective retroactive to the day following the expiration
date of this Agreement.
2.4 Notwithstanding the foregoing, in the event that as of the
date of expiration of this Agreement and conversion of this
Agreement to a month-to-month term, the Parties have not
entered into a Subsequent Agreement and either no arbitration
proceeding has been filed in accordance with Section 2.3
above, or the Parties have not mutually agreed (where
permissible) to extend the arbitration window for petitioning
the applicable Commission(s) for resolution of those terms
upon which the Parties have not agreed, then either Party may
terminate this Agreement upon sixty (60) days notice to the
other Party. In the event that BellSouth terminates this
Agreement as provided above, BellSouth shall continue to offer
services to Access One pursuant to the terms, conditions and
rates set forth in BellSouth's Statement of Generally
Available Terms (SGAT) to the extent an SGAT has been approved
by the applicable Commission(s). If any state Commission has
not approved a BellSouth SGAT, then upon BellSouth's
General Terms and Conditions - Part A
Page 3
termination of this Agreement as provided herein, BellSouth
will continue to provide services to Access One pursuant to
BellSouth's then current standard interconnection agreement.
In the event that the SGAT or BellSouth's standard
interconnection agreement becomes effective as between the
Parties, the Parties may continue to negotiate a Subsequent
Agreement, and the terms of such Subsequent Agreement shall be
effective retroactive to the day following expiration of this
Agreement.
3. ORDERING PROCEDURES
3.1 Access One shall provide BellSouth its Carrier Identification
Code (CIC), Operating Company Number (OCN), Group Access Code
(GAC) and Access Customer Name and Address (ACNA) code as
applicable prior to placing its first order.
3.2 The Parties agree to adhere to the BellSouth Local
Interconnection and Facility Based Ordering Guide and Resale
Ordering Guide, as appropriate for the services ordered.
3.3 Access One shall pay charges for Operational Support Systems
(OSS) as set forth in this Agreement in Attachment 1 and/or in
Attachment 2, 3, 5 and 7 as applicable.
4. PARITY
When Access One purchases, pursuant to Attachment 1 of this
Agreement, telecommunications services from BellSouth for the
purposes of resale to end users, BellSouth shall provide said
services so that the services are equal in quality, subject to
the same conditions, and provided within the same provisioning
time intervals that BellSouth provides to its affiliates,
subsidiaries and end users. To the extent technically
feasible, the quality of a Network Element, as well as the
quality of the access to such Network Element provided by
BellSouth to Access One shall be at least equal in quality to
that which BellSouth provides to itself. The quality of the
interconnection between the networks of BellSouth and the
network of Access One shall be at a level that is equal to
that which BellSouth provides itself, a subsidiary, an
Affiliate, or any other party. The interconnection facilities
shall be designed to meet the same technical criteria and
service standards that are used within BellSouth's network and
shall extend to a consideration of service quality as
perceived by end users and service quality as perceived by
Access One.
General Terms and Conditions - Part A
Page 4
5. WHITE PAGES LISTINGS
BellSouth shall provide Access One and their customers access
to white pages directory listings under the following terms:
5.1 Listings. Access One shall provide all new, changed and
deleted listings on a timely basis and BellSouth or its agent
will include Access One residential and business customer
listings in the appropriate White Pages (residential and
business) or alphabetical directories. Directory listings will
make no distinction between Access One and BellSouth
subscribers.
5.2 Rates. BellSouth and Access One will provide to each other
subscriber primary listing information in the White Pages for
a non-recurring charge.
5.3 Procedures for Submitting Access One Subscriber Information
are found in BellSouth's Ordering Guide for manually processed
listings and in the Local Exchange Ordering Guide for
mechanically submitted listings.
5.3.1 Notwithstanding any provision(s) to the contrary, Access One
agrees to provide to BellSouth, and BellSouth agrees to
accept, Access One's Subscriber Listing Information (SLI)
relating to Access One's customers in the geographic area(s)
covered by this Interconnection Agreement. Access One
authorizes BellSouth to release all such Access One SLI
provided to BellSouth by Access One to qualifying third
parties via either license agreement or BellSouth's Directory
Publishers Database Service (DPDS), General Subscriber
Services Tariff, Section A38.2, as the same may be amended
from time to time. Such CLEC SLI shall be intermingled with
BellSouth's own customer listings of any other CLEC that has
authorized a similar release of SLI. Where necessary,
BellSouth will use good faith efforts to obtain state
commission approval of any necessary modifications to Section
A38.2 of its tariff to provide for release of third party
directory listings, including modifications regarding listings
to be released pursuant to such tariff and BellSouth's
liability therunder. BellSouth's obligation pursuant to this
Section shall not arise in any particular state until the
commission of such state has approved modifications to such
tariff.
5.3.2 No compensation shall be paid to Access One for BellSouth's
receipt of Access One SLI, or for the subsequent release to
third parties of such SLI. In addition, to the extent
BellSouth incurs costs on an ongoing basis to administer the
release of Access One SLI, Access One shall pay to BellSouth
its proportionate share of the reasonable costs associated
therewith.
5.3.3 BellSouth shall not be liable for the content or accuracy of
any SLI provided by Access One under this Agreement. Access
One shall indemnify, hold harmless and defend BellSouth from
and against any damages, losses, liabilities, demands
General Terms and Conditions - Part A
Page 5
claims, suits, judgments, costs and expenses (including but
not limited to reasonable attorneys' fees and expenses)
arising from BellSouth's tariff obligations or otherwise and
resulting from or arising out of any third party's claim of
inaccurate Access One listings or use of the SLI provided
pursuant to this Agreement. BellSouth shall forward to Access
One any complaints received by BellSouth relating to the
accuracy or quality of Access One listings.
5.3.4 Listings and subsequent updates will be released consistent
with BellSouth system changes and/or update scheduling
requirements.
5.4 Unlisted/Non-Published Subscribers. Access One will be
required to provide to BellSouth the names, addresses and
telephone numbers of all Access One customers that wish to be
omitted from directories.
5.5 Inclusion of Access One Customers in Directory Assistance
Database. BellSouth will include and maintain Access One
subscriber listings in BellSouth's Directory Assistance
databases at no recurring charge and Access One shall provide
such Directory Assistance listings at no recurring charge.
BellSouth and Access One will formulate appropriate procedures
regarding lead-time, timeliness, format and content of listing
information.
5.6 Listing Information Confidentiality. BellSouth will accord
Access One's directory listing information the same level of
confidentiality that BellSouth accords its own directory
listing information, and BellSouth shall limit access to
Access One's customer proprietary confidential directory
information to those BellSouth employees who are involved in
the preparation of listings.
5.7 Optional Listings. Additional listings and optional listings
will be offered by BellSouth at tariffed rates as set forth in
the General Subscriber Services Tariff.
5.8 Delivery. BellSouth or its agent shall deliver White Pages
directories to Access One subscribers at no charge or as
specified in a separate BAPCO agreement.
General Terms and Conditions - Part A
Page 6
6. BONA FIDE REQUEST/NEW BUSINESS REQUEST PROCESS FOR FURTHER
UNBUNDLING
If Access One is a facilities based provider or a facilities
based and resale provider, this section shall apply. BellSouth
shall, upon request of Access One, provide to Access One
access to its network elements at any technically feasible
point for the provision of Access One's telecommunications
service where such access is necessary and failure to provide
access would impair the ability of Access One to provide
services that it seeks to offer. Any request by Access One for
access to a network element, interconnection option, or for
the provisioning of any service or product that is not already
available shall be treated as a Bona Fide Request/New Business
Request, and shall be submitted to BellSouth pursuant to the
Bona Fide Request/New Business Request process set forth
following.
6.1 A Bona Fide Request/New Business Request shall be submitted in
writing to Access One's Account Manager by Access One and
shall specifically identify the requested service date,
technical requirements, space requirements and/or such
specifications that clearly define the request such that
BellSouth has sufficient information to analyze and prepare a
response. Such a request also shall include Access One's
designation of the request as being (i) pursuant to the
Telecommunications Act of 1996 or (ii) pursuant to the needs
of the business.
7. COURT ORDERED REQUESTS FOR CALL DETAIL RECORDS AND OTHER
SUBSCRIBER INFORMATION
7.1 To the extent technically feasible, BellSouth maintains call
detail records for Access One end users for limited time
periods and can respond to subpoenas and court ordered
requests for this information. BellSouth shall maintain such
information for Access One end users for the same length of
time it maintains such information for its own end users.
7.2 Access One agrees that BellSouth will respond to subpoenas and
court ordered requests delivered directly to BellSouth for the
purpose of providing call detail records when the targeted
telephone numbers belong to Access One end users. Billing for
such requests will be generated by BellSouth and directed to
the law enforcement agency initiating the request.
7.3 Where BellSouth is providing to AT&T telecommunications
services for resale or providing to AT&T the local switching
function, then AT&T agrees that in those cases where AT&T
receives subpoenas or court ordered requests regarding
targeted telephone numbers belonging to AT&T end users, if
AT&T does not have the requested information, AT&T will advise
the law enforcement agency initiating the request to redirect
the subpoena or court ordered request to BellSouth. Where the
request has been forwarded to BellSouth, billing for call
detail information will be generated by BellSouth and directed
to the law enforcement agency initiating the request.
General Terms and Conditions - Part A
Page 7
7.4 In all other instances, Access One will provide Access One end
user and/or other customer information that is available to
Access One in response to subpoenas and court orders for their
own customer records. When BellSouth receives subpoenas or
court ordered requests regarding targeted telephone numbers
belonging to AT&T end users, BellSouth will advise the law
enforcement agency initiating the request to redirect the
subpoena or court ordered request to AT&T.
8. LIABILITY AND INDEMNIFICATION
8.1 BellSouth Liability. BellSouth shall take financial
responsibility for its own actions in causing, or its lack of
action in preventing, unbillable or uncollectible Access One
revenues.
8.2 Access One Liability. In the event that Access One consists of
two (2) or more separate entities as set forth in the preamble
to this Agreement, all such entities shall be jointly and
severally liable for the obligations of Access One under this
Agreement.
8.3 Liability for Acts or Omissions of Third Parties. Neither
BellSouth nor Access One shall be liable for any act or
omission of another telecommunications company providing a
portion of the services provided under this Agreement.
8.4 Limitation of Liability.
8.4.1 Each Party's liability to the other for any loss, cost, claim,
injury or liability or expense, including reasonable
attorney's fees relating to or arising out of any negligent
act or omission in its performance of this Agreement whether
in contract or in tort, shall be limited to a credit for the
actual cost of the services or functions not performed or
improperly performed.
8.4.2 Limitations in Tariffs. A Party may, in its sole discretion,
provide in its tariffs and contracts with its Customer and
third parties that relate to any service, product or function
provided or contemplated under this Agreement, that to the
maximum extent permitted by Applicable Law, such Party shall
not be liable to Customer or third Party for (i) any Loss
relating to or arising out of this Agreement, whether in
contract, tort or otherwise, that exceeds the amount such
Party would have charged that applicable person for the
service, product or function that gave rise to such Loss and
(ii) Consequential Damages. To the extent that a Party elects
not to place in its tariffs or contracts such limitations of
liability, and the other Party incurs a Loss as a result
thereof, such Party shall indemnify and reimburse the other
Party for that portion of the Loss that would have been
limited had the first Party included in its tariffs and
contracts the limitations of liability that such other Party
included in its own tariffs at the time of such Loss.
General Terms and Conditions - Part A
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8.4.3 Neither BellSouth nor Access One shall be liable for damages
to the other's terminal location, POI or other company's
customers' premises resulting from the furnishing of a
service, including, but not limited to, the installation and
removal of equipment or associated wiring, except to the
extent caused by a company's negligence or willful misconduct
or by a company's failure to properly ground a local loop
after disconnection.
8.4.4 Under no circumstance shall a Party be responsible or liable
for indirect, incidental, or consequential damages, including,
but not limited to, economic loss or lost business or profits,
damages arising from the use or performance of equipment or
software, or the loss of use of software or equipment, or
accessories attached thereto, delay, error, or loss of data.
In connection with this limitation of liability, each Party
recognizes that the other Party may, from time to time,
provide advice, make recommendations, or supply other analyses
related to the Services, or facilities described in this
Agreement, and, while each Party shall use diligent efforts in
this regard, the Parties acknowledge and agree that this
limitation of liability shall apply to provision of such
advice, recommendations, and analyses.
8.5 Indemnification for Certain Claims. The Party providing
services hereunder, its affiliates and its parent company,
shall be indemnified, defended and held harmless by the Party
receiving services hereunder against any claim, loss or damage
arising from the receiving company's use of the services
provided under this Agreement pertaining to (1) claims for
libel, slander or invasion of privacy arising from the content
of the receiving company's own communications, or (2) any
claim, loss or damage claimed by the customer of the Party
receiving services arising from such company's use or reliance
on the providing company's services, actions, duties, or
obligations arising out of this Agreement.
8.6 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY IN
THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR
WARRANTIES TO THE OTHER PARTY CONCERNING THE SPECIFIC QUALITY
OF ANY SERVICES, OR FACILITIES PROVIDED UNDER THIS AGREEMENT.
THE PARTIES DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OR
GUARANTEE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING, OR FROM USAGES OF TRADE.
9. INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION
9.1 No License. No patent, copyright, trademark or other
proprietary right is licensed, granted or otherwise
transferred by this Agreement. Access One is strictly
prohibited from any use, including but not limited to in
sales, in
General Terms and Conditions - Part A
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marketing or advertising of telecommunications services, of
any BellSouth name, service xxxx or trademark.
9.2 Ownership of Intellectual Property. Any intellectual property
which originates from or is developed by a Party shall remain
in the exclusive ownership of that Party. Except for a limited
license to use patents or copyrights to the extent necessary
for the Parties to use any facilities or equipment (including
software) or to receive any service solely as provided under
this Agreement, no license in patent, copyright, trademark or
trade secret, or other proprietary or intellectual property
right now or hereafter owned, controlled or licensable by a
Party, is granted to the other Party or shall be implied or
arise by estoppel. It is the responsibility of each Party to
ensure at no additional cost to the other Party that it has
obtained any necessary licenses in relation to intellectual
property of third Parties used in its network that may be
required to enable the other Party to use any facilities or
equipment (including software), to receive any service, or to
perform its respective obligations under this Agreement.
9.3 Indemnification. The Party providing a service pursuant to
this Agreement will defend the Party receiving such service or
data provided as a result of such service against claims of
infringement arising solely from the use by the receiving
Party of such service and will indemnify the receiving Party
for any damages awarded based solely on such claims in
accordance with Section 8 of this Agreement.
9.4 Claim of Infringement. In the event that use of any facilities
or equipment (including software), becomes, or in reasonable
judgment of the Party who owns the affected network is likely
to become, the subject of a claim, action, suit, or proceeding
based on intellectual property infringement, then said Party
shall promptly and at its sole expense, but subject to the
limitations of liability set forth below:
9.4.1 modify or replace the applicable facilities or equipment
(including software) while maintaining form and function, or
9.4.2 obtain a license sufficient to allow such use to continue.
9.4.3 In the event 9.4.1 or 9.4.2 are commercially unreasonable,
then said Party may, terminate, upon reasonable notice, this
contract with respect to use of, or services provided through
use of, the affected facilities or equipment (including
software), but solely to the extent required to avoid the
infringement claim.
9.5 Exception to Obligations. Neither Party's obligations under
this Section shall apply to the extent the infringement is
caused by: (i) modification of the facilities or equipment
(including software) by the indemnitee; (ii) use by the
indemnitee of the facilities or equipment (including software)
in combination with equipment
General Terms and Conditions - Part A
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or facilities (including software) not provided or authorized
by the indemnitor provided the facilities or equipment
(including software) would not be infringing if used alone;
(iii) conformance to specifications of the indemnitee which
would necessarily result in infringement; or (iv) continued
use by the indemnitee of the affected facilities or equipment
(including software) after being placed on notice to
discontinue use as set forth herein.
9.6 Exclusive Remedy. The foregoing shall constitute the Parties'
sole and exclusive remedies and obligations with respect to a
third party claim of intellectual property infringement
arising out of the conduct of business under this Agreement.
10. PROPRIETARY AND CONFIDENTIAL INFORMATION
10.1 Proprietary and Confidential Information: Defined. It may be
necessary for BellSouth and Access One, each as the
"Discloser," to provide to the other party, as "Recipient,"
certain proprietary and confidential information (including
trade secret information) including but not limited to
technical, financial, marketing, staffing and business plans
and information, strategic information, , proposals, request
for proposals, specifications, drawings, prices, costs,
procedures, processes, business systems, software programs,
techniques, customer account data, call detail records and
like information (collectively the Discloser's"Information").
All Information shall be provided to Recipient in written or
other tangible or electronic form, clearly marked with a
confidential and, proprietary notice . Information orally or
visually provided to Recipient must be designated by Discloser
as confidential and proprietary at the time of such disclosure
and must be reduced to writing marked with a confidential and
proprietary notice and provided to Recipient within thirty
(30) calendar days after such oral or visual disclosure.
10.2 Use and Protection of Information. Recipient shall use the
Information solely for the purpose(s) of performing this
Agreement, and Recipient shall protect Information from any
use, distribution or disclosure except as permitted hereunder.
Recipient will use the same standard of care to protect
Information as Recipient uses to protect its own similar
confidential and proprietary information, but not less than a
reasonable standard of care. Recipient may disclose
Information solely to the Authorized Representatives of the
Recipient who (a) have a substantive need to know such
Information in connection with performance of the Agreement;
(b) have been advised of the confidential and proprietary
nature of the Information; and (c) have personally agreed in
writing to protect from unauthorized disclosure all
confidential and proprietary information, of whatever source,
to which they have access in the course of their employment.
"Authorized Representatives" are the officers, directors and
employees of Recipient and its Affiliates, as well as
Recipient's and its Affiliates' consultants, contractors,
counsel and agents. " Affiliates" means any company that is
owned
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in whole or in part, now or in the future, directly or
indirectly through a subsidiary, by a party hereto.
10.3 Ownership, Copying & Return of Information. Information
remains at all times the property of Discloser. Recipient may
make tangible or electronic copies, notes, summaries or
extracts of Information only as necessary for use as
authorized herein. All such tangible or electronic copies,
notes, summaries or extracts must be marked with the same
confidential and proprietary notice as appears on the
original. Upon Discloser's request, all or any requested
portion of the Information (including, but not limited to,
tangible and electronic copies, notes, summaries or extracts
of any information) will be promptly returned to Discloser or
destroyed , and Recipient will provide Discloser with written
certification stating that such Information has been returned
or destroyed.
10.4 Exceptions . Discloser's Information does not include: (a) any
information publicly disclosed by Discloser; (b) any
information Discloser in writing authorizes Recipient to
disclose without restriction; (c) any information already
lawfully known to Recipient at the time it is disclosed by the
Discloser, without an obligation to keep confidential; or (d)
any information Recipient lawfully obtains from any source
other than Discloser, provided that such source lawfully
disclosed and/or independently developed such information. If
Recipient is required to provide Information to any court or
government agency pursuant to written court order, subpoena,
regulation or process of law, Recipient must first provided
Discloser with prompt written notice of such requirement and
cooperate with Discloser to appropriately protect against or
limit the scope of such disclosure. To the fullest extent
permitted by law, Recipient will continue to protect as
confidential and proprietary all Information disclosed in
response to a written court order, subpoena, regulation or
process of law.
10.5 Equitable Relief. Recipient acknowledges and agrees that any
breach or threatened breach of this Agreement is likely to
cause Discloser irreparable harm for which money damages may
not be an appropriate or sufficient remedy. Recipient
therefore agrees that Discloser or its Affiliates, as the case
may be, are entitled to receive injunctive or other equitable
relief to remedy or prevent any breach or threatened breach of
this Agreement. Such remedy is not the exclusive remedy for
any breach or threatened breach of this Agreement, but is in
addition to all other rights and remedies available at law or
in equity.
10.6 Survival of Confidentiality Obligations. The parties' rights
and obligations under this Section 10 shall survive and
continue in effect until two (2) years after the expiration or
termination date of this Agreement with regard to all
Information exchanged during the term of this Agreement.
Thereafter, the parties' rights and obligations hereunder
survive and continue in effect with respect to any Information
that is a trade secret under applicable law.
General Terms and Conditions - Part A
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11. ASSIGNMENTS
Any assignment by either Party to any non-affiliated entity of
any right, obligation or duty, or of any other interest
hereunder, in whole or in part, without the prior written
consent of the other Party shall be void. A Party may assign
this Agreement or any right, obligation, duty or other
interest hereunder to an Affiliate company of the Party
without the consent of the other Party. All obligations and
duties of any Party under this Agreement shall be binding on
all successors in interest and assigns of such Party. No
assignment or delegation hereof shall relieve the assignor of
its obligations under this Agreement in the event that the
assignee fails to perform such obligations.
12. RESOLUTION OF DISPUTES
Except as otherwise stated in this Agreement, the Parties
agree that if any dispute arises as to the interpretation of
any provision of this Agreement or as to the proper
implementation of this Agreement, either Party may petition
the Commission for a resolution of the dispute. However, each
Party reserves any rights it may have to seek judicial review
of any ruling made by the Commission concerning this
Agreement.
13. TAXES
13.1 Definition. For purposes of this Section, the terms "taxes"
and "fees" shall include but not limited to federal, state or
local sales, use, excise, gross receipts or other taxes or
tax-like fees of whatever nature and however designated
(including tariff surcharges and any fees, charges or other
payments, contractual or otherwise, for the use of public
streets or rights of way, whether designated as franchise fees
or otherwise) imposed, or sought to be imposed, on or with
respect to the services furnished hereunder or measured by the
charges or payments therefore, excluding any taxes levied on
income.
13.2 Taxes and Fees Imposed Directly On Either Providing Party or
Purchasing Party.
13.2.1 Taxes and fees imposed on the providing Party, which are not
permitted or required to be passed on by the providing Party
to its customer, shall be borne and paid by the providing
Party.
13.2.2 Taxes and fees imposed on the purchasing Party, which are not
required to be collected and/or remitted by the providing
Party, shall be borne and paid by the purchasing Party.
13.3 Taxes and Fees Imposed on Purchasing Party But Collected And
Remitted By Providing Party.
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13.3.1 Taxes and fees imposed on the purchasing Party shall be borne
by the purchasing Party, even if the obligation to collect
and/or remit such taxes or fees is placed on the providing
Party.
13.3.2 To the extent permitted by applicable law, any such taxes
and/or fees shall be shown as separate items on applicable
billing documents between the Parties. Notwithstanding the
foregoing, the purchasing Party shall remain liable for any
such taxes and fees regardless of whether they are actually
billed by the providing Party at the time that the respective
service is billed.
13.3.3 If the purchasing Party determines that in its opinion any
such taxes or fees are not payable, the providing Party shall
not xxxx such taxes or fees to the purchasing Party if the
purchasing Party provides written certification, reasonably
satisfactory to the providing Party, stating that it is exempt
or otherwise not subject to the tax or fee, setting forth the
basis therefor, and satisfying any other requirements under
applicable law. If any authority seeks to collect any such tax
or fee that the purchasing Party has determined and certified
not to be payable, or any such tax or fee that was not billed
by the providing Party, the purchasing Party may contest the
same in good faith, at its own expense. In any such contest,
the purchasing Party shall promptly furnish the providing
Party with copies of all filings in any proceeding, protest,
or legal challenge, all rulings issued in connection
therewith, and all correspondence between the purchasing Party
and the taxing authority.
13.3.4 In the event that all or any portion of an amount sought to be
collected must be paid in order to contest the imposition of
any such tax or fee, or to avoid the existence of a lien on
the assets of the providing Party during the pendency of such
contest, the purchasing Party shall be responsible for such
payment and shall be entitled to the benefit of any refund or
recovery.
13.3.5 If it is ultimately determined that any additional amount of
such a tax or fee is due to the imposing authority, the
purchasing Party shall pay such additional amount, including
any interest and penalties thereon.
13.3.6 Notwithstanding any provision to the contrary, the purchasing
Party shall protect, indemnify and hold harmless (and defend
at the purchasing Party's expense) the providing Party from
and against any such tax or fee, interest or penalties
thereon, or other charges or payable expenses (including
reasonable attorney fees) with respect thereto, which are
incurred by the providing Party in connection with any claim
for or contest of any such tax or fee.
13.3.7 Each Party shall notify the other Party in writing of any
assessment, proposed assessment or other claim for any
additional amount of such a tax or fee by a taxing authority;
such notice to be provided, if possible, at least ten (10)
days
General Terms and Conditions - Part A
Page 14
prior to the date by which a response, protest or other appeal
must be filed, but in no event later than thirty (30) days
after receipt of such assessment, proposed assessment or
claim.
13.4 Taxes and Fees Imposed on Providing Party But Passed On To
Purchasing Party.
13.4.1 Taxes and fees imposed on the providing Party, which are
permitted or required to be passed on by the providing Party
to its customer, shall be borne by the purchasing Party.
13.4.2 To the extent permitted by applicable law, any such taxes
and/or fees shall be shown as separate items on applicable
billing documents between the Parties. Notwithstanding the
foregoing, the purchasing Party shall remain liable for any
such taxes and fees regardless of whether they are actually
billed by the providing Party at the time that the respective
service is billed.
13.4.3 If the purchasing Party disagrees with the providing Party's
determination as to the application or basis for any such tax
or fee, the Parties shall consult with respect to the
imposition and billing of such tax or fee. Notwithstanding the
foregoing, the providing Party shall retain ultimate
responsibility for determining whether and to what extent any
such taxes or fees are applicable, and the purchasing Party
shall abide by such determination and pay such taxes or fees
to the providing Party. The providing Party shall further
retain ultimate responsibility for determining whether and how
to contest the imposition of such taxes and fees; provided,
however, that any such contest undertaken at the request of
the purchasing Party shall be at the purchasing Party's
expense.
13.4.4 In the event that all or any portion of an amount sought to be
collected must be paid in order to contest the imposition of
any such tax or fee, or to avoid the existence of a lien on
the assets of the providing Party during the pendency of such
contest, the purchasing Party shall be responsible for such
payment and shall be entitled to the benefit of any refund or
recovery.
13.4.5 If it is ultimately determined that any additional amount of
such a tax or fee is due to the imposing authority, the
purchasing Party shall pay such additional amount, including
any interest and penalties thereon.
13.4.6 Notwithstanding any provision to the contrary, the purchasing
Party shall protect indemnify and hold harmless (and defend at
the purchasing Party's expense) the providing Party from and
against any such tax or fee, interest or penalties thereon, or
other reasonable charges or payable expenses (including
reasonable attorney fees) with respect thereto, which are
incurred by the providing Party in connection with any claim
for or contest of any such tax or fee.
General Terms and Conditions - Part A
Page 15
13.4.7 Each Party shall notify the other Party in writing of any
assessment, proposed assessment or other claim for any
additional amount of such a tax or fee by a taxing authority;
such notice to be provided, if possible, at least ten (10)
days prior to the date by which a response, protest or other
appeal must be filed, but in no event later than thirty (30)
days after receipt of such assessment, proposed assessment or
claim.
13.5 Mutual Cooperation. In any contest of a tax or fee by one
Party, the other Party shall cooperate fully by providing
records, testimony and such additional information or
assistance as may reasonably be necessary to pursue the
contest. Further, the other Party shall be reimbursed for any
reasonable and necessary out-of-pocket copying and travel
expenses incurred in assisting in such contest.
14. FORCE MAJEURE
In the event performance of this Agreement, or any obligation
hereunder, is either directly or indirectly prevented,
restricted, or interfered with by reason of fire, flood,
earthquake or like acts of God, wars, revolution, civil
commotion, explosion, acts of public enemy, embargo, acts of
the government in its sovereign capacity, labor difficulties,
including without limitation, strikes, slowdowns, picketing,
or boycotts, unavailability of equipment from vendor, changes
requested by Customer, or any other circumstances beyond the
reasonable control and without the fault or negligence of the
Party affected, the Party affected, upon giving prompt notice
to the other Party, shall be excused from such performance on
a day-to-day basis to the extent of such prevention,
restriction, or interference (and the other Party shall
likewise be excused from performance of its obligations on a
day-to-day basis until the delay, restriction or interference
has ceased); provided however, that the Party so affected
shall use diligent efforts to avoid or remove such causes of
non-performance and both Parties shall proceed whenever such
causes are removed or cease.
15. YEAR 2000 COMPLIANCE
Each Party warrants that it has implemented a program the goal
of which is to ensure that all software, hardware and related
materials (collectively called "Systems") delivered, connected
with BellSouth or supplied in the furtherance of the terms and
conditions specified in this Agreement: (i) will record,
store, process and display calendar dates falling on or after
January 1, 2000, in the same manner, and with the same
functionality as such software records, stores, processes and
calendar dates falling on or before December 31, 1999; and
(ii) shall include without limitation date data century
recognition, calculations that accommodate same century and
multicentury formulas and date values, and date data interface
values that reflect the century.
General Terms and Conditions - Part A
Page 16
16. MODIFICATION OF AGREEMENT
16.1 BellSouth shall make available, pursuant to 47 USC ss. 252 and
the FCC rules and regulations regarding such availability, to
Access One any interconnection, service, or network element
provided under any other agreement filed and approved pursuant
to 47 USC ss. 252. The Parties shall adopt all rates, terms
and conditions concerning such other interconnection, service
or network element and any other rates, terms and conditions
that are interrelated or were negotiated in exchange for or in
conjunction with the interconnection, service or network
element being adopted. The adopted interconnection, service,
or network element and agreement shall apply to the same
states as such other agreement and for the identical term of
such other agreement.
16.2 If Access One changes its name or makes changes to its company
structure or identity due to a merger, acquisition, transfer
or any other reason, it is the responsibility of Access One to
notify BellSouth of said change and request that an amendment
to this Agreement, if necessary, be executed to reflect said
change.
16.3 No modification, amendment, supplement to, or waiver of the
Agreement or any of its provisions shall be effective and
binding upon the Parties unless it is made in writing and duly
signed by the Parties.
16.4 Execution of this Agreement by either Party does not confirm
or infer that the executing Party agrees with any decision(s)
issued pursuant to the Telecommunications Act of 1996 and the
consequences of those decisions on specific language in this
Agreement. Neither Party waives its rights to appeal or
otherwise challenge any such decision(s) and each Party
reserves all of its rights to pursue any and all legal and/or
equitable remedies, including appeals of any such decision(s).
16.5 In the event that any effective legislative, regulatory,
judicial or other legal action materially affects any material
terms of this Agreement, or the ability of Access One or
BellSouth to perform any material terms of this Agreement,
Access One or BellSouth may, on thirty (30) days' written
notice require that such terms be renegotiated, and the
Parties shall renegotiate in good faith such mutually
acceptable new terms as may be required. In the event that
such new terms are not renegotiated within ninety (90) days
after such notice, the Dispute shall be referred to the
Dispute Resolution procedure set forth in Section 12.
16.6 If any provision of this Agreement, or the application of such
provision to either Party or circumstance, shall be held
invalid, the remainder of the Agreement, or the application of
any such provision to the Parties or circumstances other than
those to which it is held invalid, shall not be effective
thereby, provided that the Parties shall attempt to
reformulate such invalid provision to give effect to such
portions thereof as may be valid without defeating the intent
of such provision.
General Terms and Conditions - Part A
Page 17
17. WAIVERS
A failure or delay of either Party to enforce any of the
provisions hereof, to exercise any option which is herein
provided, or to require performance of any of the provisions
hereof shall in no way be construed to be a waiver of such
provisions or options, and each Party, notwithstanding such
failure, shall have the right thereafter to insist upon the
specific performance of any and all of the provisions of this
Agreement.
18. GOVERNING LAW
This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Georgia,
without regard to its conflict of laws principles.
19. ARM'S LENGTH NEGOTIATIONS
This Agreement was executed after arm's length negotiations
between the undersigned Parties and reflects the conclusion of
the undersigned that this Agreement is in the best interests
of all Parties.
20. NOTICES
20.1 Every notice, consent, approval, or other communications
required or contemplated by this Agreement shall be in writing
and shall be delivered in person or given by postage prepaid
mail, address to:
BELLSOUTH TELECOMMUNICATIONS, INC.
CLEC Account Team
9th Floor
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
and
General Attorney - COU
Suite 4300
000 X. Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
ACCESS ONE COMMUNICATIONS
Xxx Xxxxxx
0000 XX 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
General Terms and Conditions - Part A
Page 18
or at such other address as the intended recipient previously
shall have designated by written notice to the other Party.
20.2 Where specifically required, notices shall be by certified or
registered mail. Unless otherwise provided in this Agreement,
notice by mail shall be effective on the date it is officially
recorded as delivered by return receipt or equivalent, and in
the absence of such record of delivery, it shall be presumed
to have been delivered the fifth day, or next business day
after the fifth day, after it was deposited in the mails.
20.3 BellSouth shall provide Access One notice via Internet posting
of price changes and of changes to the terms and conditions of
services available for resale.
21. RULE OF CONSTRUCTION
No rule of construction requiring interpretation against the
drafting Party hereof shall apply in the interpretation of
this Agreement.
22. HEADINGS OF NO FORCE OR EFFECT
The headings of Articles and Sections of this Agreement are
for convenience of reference only, and shall in no way define,
modify or restrict the meaning or interpretation of the terms
or provisions of this Agreement.
23. MULTIPLE COUNTERPARTS
This Agreement may be executed multiple counterparts, each of
which shall be deemed an original, but all of which shall
together constitute but one and the same document.
24. IMPLEMENTATION OF AGREEMENT
If Access One is a facilities based provider or a facilities
based and resale provider, this section shall apply. Within 60
days of the execution of this Agreement, the Parties will
adopt a schedule for the implementation of the Agreement. The
schedule shall state with specificity time frames for
submission of including but not limited to, network design,
interconnection points, collocation arrangement requests,
pre-sales testing and full operational time frames for the
business and residential markets. An implementation template
to be used for the implementation schedule is contained in
Attachment 10 of this Agreement.
General Terms and Conditions - Part A
Page 19
25. FILING OF AGREEMENT
Upon execution of this Agreement it shall be filed with the
appropriate state regulatory agency pursuant to the
requirements of Section 252 of the Act. If the regulatory
agency imposes any filing or public interest notice fees
regarding the filing or approval of the Agreement, Access One
shall be responsible for publishing the required notice and
the publication and/or notice costs shall be borne by Access
One.
26. ENTIRE AGREEMENT
This Agreement and its Attachments, incorporated herein by
this reference, sets forth the entire understanding and
supersedes prior Agreements between the Parties relating to
the subject matter contained herein and merges all prior
discussions between them, and neither Party shall be bound by
any definition, condition, provision, representation,
warranty, covenant or promise other than as expressly stated
in this Agreement or as is contemporaneously or subsequently
set forth in writing and executed by a duly authorized officer
or representative of the Party to be bound thereby.
THIS AGREEMENT MAY INCLUDE ATTACHMENTS WITH PROVISIONS FOR THE
FOLLOWING SERVICES:
Network Elements and Other Services
Local Interconnection
Resale
Collocation
THE FOLLOWING SERVICES ARE INCLUDED AS OPTIONS FOR PURCHASE BY
ACCESS ONE. ACCESS ONE SHALL ELECT SAID SERVICES BY WRITTEN
REQUEST TO ITS ACCOUNT MANAGER IF APPLICABLE.
Optional Daily Usage File (ODUF)
Enhanced Optional Daily Usage File (EODUF)
Access Daily Usage File (ADUF)
Line Information Database (LIDB) Storage
Centralized Message Distribution Service (CMDS)
Calling Name (CNAM)
General Terms and Conditions - Part A
Page 20
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year
above first written.
BELLSOUTH TELECOMMUNICATIONS, INC. THE OTHER PHONE COMPANY, INC. D/B/A
ACCESS ONE COMMUNICATIONS, INC.
/s/ XXXXX XXXXXXX /s/ XXXXXXX XXXXXX
--------------------------------------- -----------------------------------
Signature Signature
Xxxxx X. Xxxxxxx Xxx Xxxxxx
--------------------------------------- -----------------------------------
Name Name
Sr. Director - Interconnection Services CEO
--------------------------------------- ----------------------------------
Title Title
March 6, 2000 February 17, 2000
--------------------------------------- ----------------------------------
Date Date
General Terms and Conditions - Part B
Page 21
DEFINITIONS
AFFILIATE is defined as a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or equivalent thereof) of more than 10 percent.
CENTRALIZED MESSAGE DISTRIBUTION SYSTEM is the Telcordia (formerly BellCore)
administered national system, based in Kansas City, Missouri, used to exchange
Exchange Message Interface (EMI) formatted data among host companies.
COMMISSION is defined as the appropriate regulatory agency in each of
BellSouth's nine state region, Alabama, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina, and Tennessee.
DAILY USAGE FILE is the compilation of messages or copies of messages in
standard Exchange Message Interface (EMI) format exchanged from BellSouth to a
CLEC.
EXCHANGE MESSAGE INTERFACE is the nationally administered standard format for
the exchange of data among the Exchange Carriers within the telecommunications
industry.
INFORMATION SERVICE means the offering of a capability for generating,
acquiring, storing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications, and includes electronic
publishing, but does not include any use of any such capability for the
management, control, or operation of a telecommunications system or the
management of a telecommunications service.
INTERCOMPANY SETTLEMENTS (ICS) is the revenue associated with charges billed by
a company other than the company in whose service area such charges were
incurred. ICS on a national level includes third number and credit card calls
and is administered by Telcordia (formerly BellCore)'s Calling Card and Third
Number Settlement System (CATS). Included is traffic that originates in one
Regional Xxxx Operating Company's (RBOC) territory and bills in another RBOC's
territory.
INTERMEDIARY FUNCTION is defined as the delivery of traffic from Access One; a
CLEC other than Access One or another telecommunications carrier through the
network of BellSouth or Access One to an end user of Access One; a CLEC other
than Access One or another telecommunications carrier.
LOCAL INTERCONNECTION is defined as 1) the delivery of local traffic to be
terminated on each Party's local network so that end users of either Party have
the ability to reach end users of the other Party without the use of any access
code or substantial delay in the processing of the call; 2) the LEC network
features, functions, and capabilities set forth in this Agreement; and 3)
General Terms and Conditions - Part B
Page 22
Service Provider Number Portability sometimes referred to as temporary telephone
number portability to be implemented pursuant to the terms of this Agreement.
LOCAL TRAFFIC is defined as any telephone call that originates in one exchange
and terminates in either the same exchange, or other local calling area
associated with the originating exchange as defined and specified in Section A3
of BellSouth's General Subscriber Service Tariff. As clarification of this
definition and for reciprocal transport and termination compensation, Local
Traffic does not include traffic that originates from or is directed to or
through an enhanced service provider or information service provider. As further
clarification, Local Traffic does not include calls that do not transmit
information of the user's choosing. In any event, neither Party will pay
reciprocal compensation to the other if the "traffic" to which such reciprocal
compensation would otherwise apply was generated, in whole or in part, for the
purpose of creating an obligation on the part of the originating carrier to pay
reciprocal compensation for such traffic.
MESSAGE DISTRIBUTION is routing determination and subsequent delivery of message
data from one company to another. Also included is the interface function with
CMDS, where appropriate.
MULTIPLE EXCHANGE CARRIER ACCESS BILLING ("MECAB") means the document prepared
by the Billing Committee of the Ordering and Billing Forum ("OBF:), which
functions under the auspices of the Carrier Liaison Committee of the Alliance
for Telecommunications Industry Solutions ("ATIS") and by Telcordia (formerly
BellCore) as Special Report SR-BDS-000983, Containing the recommended guidelines
for the billing of Exchange Service access provided by two or more LECs and/or
CLECs or by one LEC in two or more states within a single LATA.
NETWORK ELEMENT is defined to mean a facility or equipment used in the provision
of a telecommunications service. Such term may include, but is not limited to,
features, functions, and capabilities that are provided by means of such
facility or equipment, including but not limited to, subscriber numbers,
databases, signaling systems, and information sufficient for billing and
collection or used in the transmission, routing, or other provision of a
telecommunications service. BellSouth offers access to the Network Elements,
unbundled loops; network interface device; sub-loop elements; local switching;
transport; tandem switching; operator systems; signaling; access to call-related
databases; dark fiber as set forth in Attachment 2 of this Agreement.
NON-INTERCOMPANY SETTLEMENT SYSTEM (NICS) is the Telcordia (formerly BellCore)
system that calculates non-intercompany settlements amounts due from one company
to another within the same RBOC region. It includes credit card, third number
and collect messages.
PERCENT OF INTERSTATE USAGE (PIU) is defined as a factor to be applied to
terminating access services minutes of use to obtain those minutes that should
be rated as interstate access services minutes of use. The numerator includes
all interstate "non-intermediary" minutes of use, including interstate minutes
of use that are forwarded due to service provider number portability less any
interstate minutes of use for Terminating Party Pays services, such as 800
Services. The denominator includes all "non-intermediary", local, interstate,
intrastate, toll and access
General Terms and Conditions - Part B
Page 23
minutes of use adjusted for service provider number portability less all minutes
attributable to terminating Party pays services.
PERCENT LOCAL USAGE (PLU) is defined as a factor to be applied to intrastate
terminating minutes of use. The numerator shall include all "non-intermediary"
local minutes of use adjusted for those minutes of use that only apply local due
to Service Provider Number Portability. The denominator is the total intrastate
minutes of use including local, intrastate toll, and access, adjusted for
Service Provider Number Portability less intrastate terminating Party pays
minutes of use.
REVENUE ACCOUNTING OFFICE (XXX) STATUS COMPANY is a local exchange
company/alternate local exchange company that has been assigned a unique XXX
code. Message data exchanged among XXX status companies is grouped (i.e. packed)
according to From/To/Xxxx XXX combinations.
SERVICE CONTROL POINTS ("SCPs") are defined as databases that store information
and have the ability to manipulate data required to offer particular services.
SIGNAL TRANSFER POINTS ("STPs") are signaling message switches that interconnect
Signaling Links to route signaling messages between switches and databases. STPs
enable the exchange of Signaling System 7 ("SS7") messages between switching
elements, database elements and STPs. STPs provide access to various BellSouth
and third party network elements such as local switching and databases.
SIGNALING LINKS are dedicated transmission paths carrying signaling messages
between carrier switches and signaling networks. Signal Link Transport is a set
of two or four dedicated 56 kbps transmission paths between Access One
designated Signaling Points of Interconnection that provide a diverse
transmission path and cross connect to a BellSouth Signal Transfer Point.
TELECOMMUNICATIONS means the transmission, between or among points specified by
the user, of information of the user's choosing, without change in the form or
content of the information as sent and received.
TELECOMMUNICATIONS SERVICE means the offering of telecommunications for a fee
directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used.
TELECOMMUNICATIONS ACT OF 1996 ("ACT") means Public Law 104-104 of the United
States Congress effective February 8, 1996. The Act amended the Communications
Act of 1934 (47, U.S.C. Section 1 et. seq.).
