EXHIBIT 10.3
AFFILIATE SERVICES AGREEMENT
THIS AFFILIATE SERVICES AGREEMENT (the "Affiliate Contract") is entered
into this 4th day of APRIL, 1997, by and between ONEPOINT COMMUNICATIONS, LLC, a
Delaware limited liability company, and its operating subsidiaries doing
business as OnePoint (collectively "OnePoint"), and SPRINT COMMUNICATIONS
COMPANY L.P. ("Sprint").
RECITALS
WHEREAS, Sprint entered into a Services Agreement with Pacific Xxxx
Communications ("PBC") dated February 3, 1997 (the "Master Agreement") pursuant
to which Sprint will sell to PBC, and PBC will purchase from Sprint, certain
long distance telecommunications services; and
WHEREAS, Section 3.2 of the Master Agreement provides that "Affiliates" of
PBC may elect to obtain from Sprint any of the "Services" under the Master
Agreement by execution of a written Affiliate Contract between such Affiliate
and Sprint; and
WHEREAS, the Master Agreement defines "Affiliate" to include, for purposes
of the Master Agreement only, Southwestern Xxxx Communications Services, Inc., a
Delaware corporation ("SBCS") and Affiliates of SBCS; and
WHEREAS, OnePoint, as an Affiliate of SBCS (and thereby an "Affiliate" of
PBC), desires to obtain Services from Sprint pursuant to Section 3.2 of the
Master Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth below and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties intending legally to
be bound, agree as follows:
1. Definitions. Capitalized terms not herein defined shall have their
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respective meanings set forth in Article I and Attachment DE of the Master
Agreement.
2. Term. Unless otherwise extended or earlier terminated in accordance with
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Section 5 hereof or as contemplated by Section 3.2(b) of the Master Agreement,
the term of the
Affiliate Contract shall commence as of the date hereof and shall continue in
full force and effect until the first anniversary of the date hereof (the
"Termination Date").
3. Integration. Sprint shall provide such Services to OnePoint as OnePoint may
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request from time to time pursuant to the terms hereof in accordance with
Section 3.2(a) of the Master Agreement, and OnePoint shall be entitled to the
benefits of, and subject to the obligations set forth in, the provisions of the
Master Agreement set forth herein with respect to the provision of such Services
to the same extend as if a party to the Master Agreement, other than as
expressly set forth herein.
4. Non-Exclusive Agreement; Rates and Charges. During the term of the
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Affiliate Contract, OnePoint may elect, without regard to the exclusivity
provisions of Article 6 of the Master Agreement, to obtain any of the Services
from Sprint at the Rates and Charges set forth in the Master Agreement and
Attachment PS thereto.
5. Company Affiliate's Right to Renew. On or prior to the Termination Date,
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OnePoint may elect, by notice delivered to Sprint, to renew the Affiliate
Contract on either an exclusive or a non-exclusive basis as follows (subject, in
each case, to the right to terminate the Affiliate Contract in accordance with
Section 3.2(b) of the Master Agreement):
(a) Exclusive Basis. OnePoint may renew the Affiliate Contract for a term
which is coextensive with the Term of the Master Agreement; provided
that in such event, OnePoint shall thereupon become subject to the
same exclusivity provisions as set forth in Article 6 of the Master
Agreement (excluding any volume commitments set forth therein) except
that clause (iv) of the first sentence of Section 6.1(a) of the Master
Agreement shall be modified to permit OnePoint to obtain services
provided by a carrier other than Sprint under any contract existing as
of the date of OnePoint's election to renew the Affiliate Contract
pursuant to this Section 5(a) (which contracts will be terminated as
soon as practicable to the extent no breach or penalty results
therefrom).
(b) Non-Exclusive Basis. OnePoint may renew the Affiliate Contract and
elect, without regard to the exclusivity provisions of Article 6 of
the Agreement, to obtain any of the Services from Sprint at the rates
and charges and for the terms and conditions to be negotiated in good
faith.
6. Other Terms and Conditions. The following terms and conditions of the
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Master Agreement, with such modifications set forth herein and such conforming
changes as shall be necessary to reflect the identity of OnePoint and to be
consistent with the foregoing, are incorporated herein and made a part hereof by
reference:
(a) Article 1 (Definitions);
(b) Section 3.2 (Services to Company Affiliates);
(c) Section 4.4
2
(d) Section 4.6 (Quality of Services) amended to read as follows:
4.6 Quality of Services. Sprint shall provide Services purchased
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by OnePoint hereunder in compliance with the Performance
Guarantees to the extent set forth in Section (6)r of this
Affiliate Contract;
(e) Section 8 (Rates and Charges);
(f) Section 10.1 (Price Adjustments); provided, however, that this Section
shall not become operational with respect to OnePoint until Sprint
begins making the adjustments provided for herein for PBC;
(g) Article 12 (Confidential Information);
(h) Article 14 (Representations, Warranties and Covenants);
(i) Article 15 (Intellectual Property Rights);
(j) Article 16 (Indemnification; Third Party Claims);
(k) Section 17.2(c) ("Pass-Through Compensation"); provided, however, that
this Section shall be administered using the same procedures used to
accomplish the pass-through provided for herein for PBC;
(l) Section 17.6(b) (Special Remedies Under Certain Circumstances-Fraud);
(m) Sections 18.2 (Force Majeure), 18.3 (Independent Contractor), 18.4
(Advertising or Publicity), 18.5 (Subcontracting), 18.6 (Dispute
Resolution), and 18.7 (Assignment);
(n) Article 19 (Miscellaneous), with the address of the parties in Section
19.3 (Notices) modified as follows:
If to OnePoint
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OnePoint Communications, LLC
Address: c/o The VenCom Group, Inc.
0000 Xxxxxxxx Xx., Xxxxx X-000
Xxxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: President
3
If to Sprint
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Sprint Communications Company L.P.
Address: 0000 XXX Xxxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Vice President/General Manager RBOC Services
(o) Section I (General Matters) of Attachment BA (Billing and Accounting);
provided, however, that the last sentence of Subsection I.A shall be
replaced with the following:
Sprint hereby waives all charges for any usage not billed within
180 days following the end of the first available monthly billing
cycle after the usage is recorded, unless (a) Sprint can document
in writing that the delayed billing was caused by the Company or
(b) the parties agree in writing to a longer time period.
(p) Section III.A (Cost Categories for General Ledger Account Purposes) of
Attachment BA (Billing and Accounting);
(q) Attachment DE (Definitions);
(r) Sections I.1, I.3, I.4 and I.5 (Sprint Support Levels) of Attachment
PG (Performance Guarantees);
(s) Attachment PS (Pricing of Services) with Attachments.
IN WITNESS WHEREOF, the parties hereto, each acting with proper authority, have
executed this Service Contract, to be effective as of the date first above
written.
ONEPOINT COMMUNICATIONS, LLC SPRINT COMMUNICATIONS COMPANY L.P.
By: [SIGNATURE ILLEGIBLE] By: /s/ Xxx Xxxxx
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Title: Chairman/CEO Title: Vice President
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STAMP APPEARS HERE
4
SERVICES AGREEMENT
BETWEEN
PACIFIC XXXX COMMUNICATIONS
AND
SPRINT COMMUNICATIONS COMPANY. L.P.
Dated February 3, 1997
ATTACHMENTS
Attachment AS Terms of Affiliate Services Agreement
Attachment BA Billing and Accounting
Attachment DE Definitions
Attachment PG Performance Guarantees
Attachment PS Pricing of Services
Diagram 1 Access Services and Transport Services
Table 1 Switched Access Services
Table 2 Domestic Transport Services
Table 3 International Transport Services
Table 4 Calling Card Services
Table 5 Billing Increments
Table 6 Domestic Toll Free Services
Table 7 Directory Assistance Services
Table 8 Operator Services
Table 9 Dedicated Access Services
Table 10 Bulk Transport Services
Table 11 Branding Services
Exhibit PS-1 Price Change Modification Notice
Exhibit PS-II Additional Core Services Notice
Exhibit PS-III Purchased Shopping Services Notice
SERVICES AGREEMENT
This SERVICES AGREEMENT (this "AGREEMENT") is entered into this 3rd
day of February 1997, by and between PACIFIC XXXX COMMUNICATIONS (the "COMPANY")
and SPRINT COMMUNICATIONS COMPANY, L.P. ("SPRINT").
RECITALS
A. The Company, together with certain other parties, issued a
Request for Proposal dated April 18, 1996, which requested from certain long
distance service providers proposals to provide the Company with voice and data
services.
B. In response to certain proposals submitted by Sprint, the Company
has determined, subject to the terms and conditions of this Agreement, to
purchase certain voice and data services offered by Sprint and Sprint has agreed
to provide such services to the Company on the terms and conditions set forth
herein.
C. Sprint acknowledges (i) the interest of the Company in obtaining
competitively priced voice and data services and (ii) that this Agreement is
being entered into by the Company, in part, to obtain the assistance of Sprint
in connection with the Company's entry, upon the receipt of all relevant federal
and state regulatory approvals, into the long distance market.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth below and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, agree as follows.
TERMS OF AGREEMENT
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, capitalized words and phrases shall
have the meanings set forth in ATTACHMENT DE. With respect to any technical or
similar terms or phrases used without definition herein, such technical or
similar terms or phrases shall be governed by their ordinary and common meaning
as generally used by Persons familiar with, and experienced in, the
telecommunications industry.
3.2 Services to Company Affiliates.
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(a) TERMS OF AFFILIATE SERVICES. From the date of this Agreement
until the six (6) month anniversary of the Commercial Commencement Date, each
Company Affiliate may elect in its sole and absolute discretion to obtain from
Sprint, and Sprint shall be obligated to provide to any such Company Affiliate,
any of the Services at the Rates and Charges by execution of a written contract
between such Company Affiliate and Sprint incorporating the terms set forth in
ATTACHMENT AS (the "AFFILIATE CONTRACT"). In addition to the foregoing, Sprint
may provide to the Company Affiliate any additional services specified by the
Company Affiliate at the rates and for the charges to be negotiated in good
faith by such parties in accordance with the applicable Affiliate Contract.
(b) TRANSITION OF AFFILIATE AGREEMENTS. Sprint acknowledges that the
Company intends to offer telecommunications services to its Affiliates after
receipt of all necessary governmental authorizations. In connection therewith,
Sprint agrees that it shall permit any Company Affiliate to which Sprint
provides retail telecommunications services or wholesale services to terminate
such Affiliate's telecommunications agreement or Affiliate Contract, as the case
may be, with Sprint (each, a "SPRINT AGREEMENT") without penalty and without
regard to any contrary provisions contained therein; provided that (i) such
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Company Affiliate, upon termination of such Sprint Agreement, shall obtain the
telecommunications services which were the subject of such Sprint Agreement from
the Company and (ii) the Company shall, subject to the exception to exclusivity
set forth in SECTION 6.1(A)(I) hereof, obtain the telecommunications services
which it provides to such Affiliate from Sprint for the remainder of the
existing term of such Sprint Agreement (without giving effect to any right of
renewal) on an exclusive basis (to the extent, and only to the extent, that such
services were provided to the Affiliate under the Sprint Agreement on such an
exclusive basis) and at a volume consistent with any volume commitments set
forth in such Sprint Agreement.
4.4 Management of LEC and Domestic Alternate Provider Relationship.
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Sprint acknowledges that the Company intends to rely upon Sprint to provide
end-to-end services and to manage, on behalf of the Company, all of Sprint's
relationships with any LEC or Domestic Alternate Provider to the extent
necessary to permit the Company to deliver end-to-end services. In connection
with the foregoing, the Company acknowledges that Sprint is unable to guarantee
the level of service provided by any such LEC or Domestic Alternate Provider,
although Sprint agrees that it shall use its reasonable best efforts to manage
any such relationships in such a manner so as to ensure that the Services meet
the Performance Guarantees. In addition, in no event shall Sprint's level of
managerial effort, on behalf of the Company, with any LEC or Domestic Alternate
Provider differ, in any material and adverse respect, from the efforts Sprint
expands on its own behalf in connection with the provision of services to
Sprint's other customers (including the efforts Sprint uses for its own retail
division).
undertaken in a manner designed to minimize or eliminate, to the extent
commercially practicable, any disruption to the Company's ordinary business
operations, including the provision of end-to-end services by the Company.
4.6 Quality and Value of Services. Sprint expressly acknowledges that
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the provision of competitively priced and highly reliable end-to-end services to
the Company is critical to the Company's business and reputation. Sprint shall
provide all Services in compliance with the applicable Performance Guarantees,
Documentation and other requirements set forth in this Agreement. To the extent
that Sprint uses any service provider (including, without limitation, any LEC or
any Domestic Alternate Provider) in connection with the provision of end-to-end
Services to the Company, Sprint shall use its reasonable best efforts to ensure
that any such other service provider delivers the same level of reliability and
quality of services to the Company as is required of Sprint under the terms of
this Agreement.
ARTICLE 6
EXCLUSIVITY
6.1 Terms of Exclusivity
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(a) GENERALLY. Subject to SECTION 6.2 AND 6.3 hereof, the Company
shall obtain all of its Domestic and international long distance Services from
Sprint, except for (i) services provided by the Company or its Affiliates or by
means of any capitalized assets or owned facilities of the Company or its
Affiliates, (ii) dedicated services that Sprint cannot readily supply or for
which Sprint cannot meet reasonable due dates established in accordance with the
provisions set forth in ATTACHMENT PG, (iii) services directed to another
carrier for emergency backup or redundancy, (iv) services provided by another
carrier under any existing contract as of November 1, 1996 (which contracts will
be terminated as soon as practicable to the extent no breach or penalty results
therefrom), (v) Captive Services (to the extent the Company has determined not
to obtain such Captive Service from Sprint) and any Shopping Services unless
otherwise
expressly agreed by the Company and Sprint, (vi) international Services from a
(1) Foreign Country Carrier pursuant to any Direct Service Agreement, (2)
Strategic Partner, pursuant to any International Service Arrangement, at any
time on or after the first anniversary of the Commercial Commencement Date and
(3) Foreign Carrier, pursuant to any International Service Arrangement, at any
time on or after the second anniversary of the Commercial Commencement Date.
Notwithstanding anything to the contrary in this Agreement or otherwise, (a)
this Agreement shall not, in any manner, limit the Company's right, at any time,
to construct its own facilities or to use facilities of any Affiliate, (b) in
the event the provisions of CLAUSE (VI) of the preceding sentence shall apply to
an International Service Arrangement entered into by the Company with respect to
any foreign country, the exclusivity provisions of this Section 6.1(a) shall,
from and after the date on which such International Service Arrangement has been
entered into, not apply at any time thereafter to such foreign country, and (c)
except pursuant to the express exceptions of the preceding sentence and CLAUSE
(A) of this sentence, the Company shall not engage in transactions with any of
its Affiliates solely for the purpose of circumventing the exclusivity
provisions of this ARTICLE 6.
(b) END-USER REQUIREMENTS. On a case-by-case basis, Sprint shall
negotiate, in good faith, with the Company to satisfy any specific end-user
requirements relating to the Services, including, but not limited to, the use of
an alternate carrier in connection with an end-user's need for redundancy, route
diversity or emergency backup.
6.2 Methods for Domestic Service Delivery.
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(a) INTERLATA SERVICES. Subject to the exceptions set forth in
SECTION 6.1 (A) hereof, the Company shall, at its election, and in its sole and
absolute discretion, obtain interLATA Services from Sprint through any of the
following configurations:
(i) Switchless Configuration. The Company may obtain from
Sprint, Domestic Transport Services, together with, in the sole
and absolute discretion of the Company, either Switched Access
Services or Dedicated Access Services (a "SWITCHLESS CONFIGURATION").
(ii) Carrier Origination Configuration. The Company may
provide for terminated of a call on a Company switch and obtain
from Sprint. Domestic Transport Services, together with, in the
sole and absolute discretion of the Company, either Switched
Origination Services or Dedicated Access Services (a "CARRIER
ORIGINATION CONFIGURATION").
(iii) Carrier Termination Configuration. The Company may
provide for origination of a call on a Company switch and obtain
from Sprint, Domestic Transport Services, together with, in the
sole and absolute discretion of the Company, either Switched
Termination Services
or Dedicated Access Services (a "CARRIER TERMINATION CONFIGURATION") or
(iv) Bulk Transport Configuration. Subject to SECTIONS 6.3(A) AND
7.1(A) hereof, the Company may provide for origination and termination of a
call on a Company switch and obtain from Sprint dedicated connections
between Sprint's POPs (a "BULK TRANSPORT CONFIGURATION") at the rate
specified in TABLE 10 of ATTACHMENT PS.
(b) INTRALATA SERVICES. Subject to the exceptions set forth in
SECTION 6.1(A) hereof, the Company shall obtain intraLATA toll Services from
Sprint through a Switchless Configuration: provided that the Company may, at any
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time, subject to SECTION 7.1(B) hereof, obtain intraLATA toll Services from any
LEC or Domestic Alternate Provider.
6.3 Volume Commitments.
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(a) DOMESTIC VOLUME COMMITMENT. In the event that the Company's
aggregate MOUs over Access Component D (calculated for the period commencing on
the Commercial Commencement Date and ending on the first anniversary of the
Commercial Commencement Date, and for each annual period thereafter (each, a
"MEASUREMENT PERIOD")) shall decline from one (1) Measurement Period to the next
succeeding Measurement Period, other than as a result of Domestic MOUs that have
migrated from the Sprint network as a result of (i) Market Forces, (ii) the
receipt of services by the Company from any other provider pursuant to SECTION
6.1(A) hereof or (iii) the provision by Sprint of Virtual Bulk Transport (such
net difference in Domestic MOUs, the "DOMESTIC SHORTFALL"), the Company shall
pay to Sprint an amount equal to the Domestic Volume Commitment Charge.
(b) INTERNATIONAL VOLUME COMMITMENT. In the event that, after its
receipt of international Services from a Foreign Alternate Provider as permitted
by clause (vi) of the first sentence of SECTION 6.1(A) hereof, the Company's
aggregate MOUs over Transport Component F calculated for each Measurement
Period) shall decline from one (1) Measurement Period to the next succeeding
Measurement Period, other than as a result of international MOUs that have
migrated from the Sprint network as a result of (i) Market Forces, (ii) the
receipt of services by the Company from a PTT pursuant to a Direct Service
Agreement or from any provider other than Sprint pursuant to CLAUSES (I) THROUGH
(V) of the first sentence of SECTION 6.1(A) hereof or (iii) the receipt of
services pursuant to any arrangement with Sprint pursuant to SECTIONS 6.4 OR 7.3
hereof (such net difference in international MOUs, the "INTERNATIONAL
SHORTFALL"), the Company shall pay to Sprint an amount equal to the
International Volume Commitment Charge
6.4 Collateral Agreements.
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(a) COLLATERAL ARRANGEMENTS TO WHICH THE COMPANY IS A PARTY. Sprint
shall have the right to offer the Company the opportunity to participate in any
International Services Arrangement which Sprint reasonably believes may enhance
the terms or conditions under which the Company receives the Services. In any
such event, if the Company, in its sole and absolute discretion, determines to
participate in such International Services Arrangement with Sprint, the terms
and conditions of such International Services Arrangement (to the extent, and
only to the extent, that the Company is a signatory thereto), shall govern the
relationship of the parties hereto with respect to the subject matter thereof,
and the parties understand that the terms and conditions governing such
relationship may, to the extent agreed upon by the parties, include provisions
relating to exclusivity, volume commitments and other matters otherwise
addressed in this Agreement.
(b) COLLATERAL ARRANGEMENTS TO WHICH THE COMPANY IS NOT A PARTY.
Sprint may, from time to time, notify the Company of any opportunity available
to Sprint to participate in any International Services Arrangement which Sprint
reasonably believes (i) may enhance the terms or conditions under which the
Company receives the Services and (ii) will require international traffic volume
commitments from the Company to make the arrangement financially feasible for
Sprint. If the Company, in its sole discretion, determines that Sprint's
participation in such arrangement will benefit the Company, and the Company
agrees in writing to the specific international traffic volume commitments
necessary to make the arrangement feasible for Sprint, then, to the extent
specifically agreed upon by the parties, the Company shall, in accordance with
the express terms of such arrangement, comply with such international traffic
volume commitments with respect to international traffic to countries covered by
such arrangement.
ARTICLE 8
PAYMENT AND TAXES
8.1 Rates and Charges.
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(a) GENERALLY. Subject to ATTACHMENT BA, the Company shall pay the
Rates and Charges set forth in this Agreement and ATTACHMENT PS hereto in
connection with the provision of any of the Services hereunder. Sprint shall
render invoices for Services to the Company not later than the twelfth (12th)
day after the monthly billing cycle in which any usage is recorded. The Company
shall pay any such invoices within thirty (30) days after receipt thereof, with
interest payable by the Company on any overdue amounts at a rate equal to the
lesser of the (x) Prime Rate plus Two Percent (2%) per annum or (y) maximum
interest rate permitted by applicable law; provided that the Company shall not
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be required to pay Sprint, and no interest shall accrue upon, any overdue
amounts which are the subject of a good faith dispute between the Company and
Sprint. In the event of a dispute with respect to any invoice, the Company shall
provide to Sprint, on or before the stated due date of such invoice, a notice
which sets forth, in reasonable detail and with supporting documentation, the
basis of such dispute and the Company shall pay to Sprint, when due, the amount
of any such invoice which is not in dispute. The Company and Sprint shall use
their reasonable best efforts to resolve any such dispute in a commercially
reasonable and expeditious manner; provided that in the event that such dispute
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is not resolved in a ninety (90) day period after the commencement of
negotiations, either party may initiate the dispute resolution procedure set
forth in SECTION 18.6 hereof. Any failure by the Company to pay any amounts due
under this Agreement which are the subject of a bona fide dispute between the
Company and Sprint shall not constitute a default for any purposes of this
Agreement by the Company and shall not form the basis for any termination of
this Agreement or for any suspension or limitation of Services. Subject to any
adjustments permitted or required under the terms of this Agreement, the Rates
and Charges (plus any applicable taxes and tax-related surcharges) set forth in
ATTACHMENT PS hereto constitute the sole charges (recurring and non-recurring)
for which Sprint may xxxx the Company in connection with the provision of any of
the Services set forth in ATTACHMENT PS hereto.
(b) TARIFF 8. The Rates and Charges for any Service Elements that are not
set forth in this Agreement or ATTACHMENT PS, and which the Company shall
determine to obtain from Sprint, shall, to the extent expressly referenced in
TARIFF 8, be an amount equal to the lesser of (i) eighty percent (80%) of the
applicable nondiscounted rates and charges set forth in such Tariff 8 or (ii)
the applicable discounted rates and charges set forth in such Tariff 8, in the
case of each of CLAUSE (I) AND (II) above, for any such Service Elements set
forth in Tariff 8, based upon the applicable Tariff Term Plan for any such
Service Element so purchased and without regard to the date of such purchase. In
the event that the applicable Tariff Term Plan for any such Service Element so
purchased extends beyond the term of this Agreement, then, in such event, each
of the Company and Sprint shall comply with the provisions of such Tariff Term
Plan notwithstanding the termination of this Agreement.
8.2 Taxes and Surcharges.
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(a) GENERALLY. The Company shall pay all sales, federal excise and other
taxes or surcharges lawfully levied by a duly constituted taxing or regulatory
authority against or upon the Services and required by such authority to be paid
by the Company, and billed by Sprint to the Company either on the original
invoice relating to the Services subject to such taxes or within one (1) year
after the date of such original invoice. In the alternative, the Company shall
provide Sprint with a certificate evidencing the Company's exemption from
payment of or liability for any such taxes. Other taxes, including taxes based
on Sprint's income, corporate franchise and ordinary real and personal property
taxes, shall be paid by Sprint.
(b) TAX PROCEDURE. The Company shall pay any tax for which it is legally
responsible in connection with its receipt of Services that may be levied on or
assessed against the Company directly. Sprint shall collect such tax from the
Company in the same manner as it collects such tax from other customers in the
ordinary course of Sprint's business, but in no event prior to the time it
invoices the Company for the Services for which such taxes are levied. If
permitted by law, Sprint may state taxes or surcharges on its invoice as a
single line item, whether or not the taxes or surcharges charged are computed on
the basis of the aggregate amount billed or for particular Services. Sprint
shall maintain records sufficient to demonstrate that any applicable taxes or
surcharges have been correctly computed, collected and remitted in compliance
with any applicable laws or regulations, and shall make such records reasonably
available to the Company for purposes of determining correct billing by Sprint
or in connection with an audit. Sprint shall cooperate reasonably with the
Company to minimize lawfully any such taxes or surcharges payable and such
cooperation shall, if requested, include changes in billing address or service
reconfigurations, subject to the terms of this Agreement sprint shall timely
remit any tax or surcharge collected from the Company to the proper tax or
receiving authority as required by applicable law.
(c) TAX ASSIGNMENT. All refunds of taxes or surcharges paid by the
Company (including any interest allowed thereon, and regardless of whether
actually received by Sprint or allowed as a credit) shall belong to the Company.
Sprint shall promptly remit to the Company all such refunds (including any
interest received or allowed thereon) upon receipt thereof. If permitted by
applicable law or regulation, the Company may initiate and shall manage any
administrative proceedings or litigation on its own behalf to seek refunds of
any taxes or surcharges collected by Sprint from the Company. If applicable law
or regulation requires or permits Sprint to make a refund clam in its own name
with respect to taxes or surcharges paid by the Company, Sprint shall initiate
refund claims at the Company's request. To the extent the proceedings are
attributable to amounts paid by the Company, the Company shall manage the
proceedings at its own expense. Sprint shall cooperate reasonably with the
Company in pursuing any such refund claims, including related administrative,
litigation and appellate proceedings.
(d) TAX NOTICE. Sprint shall provide the Company timely notice
of any audit, proposed assessment or any additional taxes, penalty, addition to
tax, surcharge or interest that may be due by the Company to enable the Company
the opportunity to seek administrative relief, a ruling, judicial review
(original or appellate) or other appropriate review as to the applicability of
such other taxes or additional charges prior to any assessment of such taxes or
other charges. Sprint shall, when requested by the Company (or when ordered to
do so by a governmental entity or court), cooperate or participate with the
Company in any such proceeding, protest or legal challenge. Sprint shall timely
provide the Company with copies of all relevant correspondence, work papers or
other documents reasonably requested by the Company in order to participate
effectively in such proceedings.
ARTICLE 10
PRICE ADJUSTMENTS
10.1 Price Adjustment. Access charges for Domestic and to the extent
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applicable, international Services and the prices for international Services set
forth in ATTACHMENT PS shall, in each case, be subject to adjustment pursuant to
the provisions of SECTIONS 10.1(A) AND 10.1(B) hereof.
(a) SWITCHED ACCESS CHARGE ADJUSTMENTS. Charges for Switched Access
Services purchased from a LEC or Domestic Alternate Provider will be billed to
the Company on the basis of the configurations selected by the Company pursuant
to SECTIONS 6.2(A) AND 6.2(B). The parties intend for Sprint to "pass-through"
to the Company, and for the Company to pay to Sprint, the actual access charges
for Switched
Access Services incurred by Sprint in connection with the provision of Services
hereunder on a LEC-specific or Alternate Domestic Provider-specific basis. In
light of the current capability of Sprint's billing systems to effect such "pass
-through" of actual charges for Switched Access Services on a LEC-specific or
Alternate Domestic Provider specific basis, the parties agree as follows:
(i) Domestic Access Charge Adjustment. Prior to the Carrier Transport
II Date, Sprint shall determine its weighted average access charges for
Access Components A and E, together with the applicable charges for Access
Components B and D calculated on the basis of such Access Components A and
E (including any alternative access servicing arrangements that may be used
by Sprint), through the use of Sprint's AMIS system. Sprint will respond on
a timely basis to reasonable inquiries from the Company regarding the rates
and charges derived from AMIS and other related inquires regarding the AMIS
system. Prior to the Carrier Transport II Date, Sprint shall adjust all
access charges "passed-through" to the Company not less than once per
calendar year so as to ensure that during such period, to the extent
practicable, the rates and charges paid by the Company to Sprint with
respect to Access Components A and E, together with charges for Access
Components B and D calculated on the basis of such Access Components A and
E, reflect Sprint's actual access charges on a "weighted average rate per
LATA" basis (including any alternate access servicing arrangements that may
be used by Sprint). Within thirty (30) days of such adjustment, the Company
shall pay Sprint the net amount of any underpayments or Sprint shall credit
the Company the net amount of the overpayments, for the applicable period
with respect to which such adjustment has been effected. Notwithstanding
the foregoing, the parties agree that in the event of any errors or delays
in timely "passing-through" changes to actual access charges which occur
on or after the date of this Agreement the party owing the other party any
payment as a result of such "true-up" shall pay to the other party, at the
time any such "true-up" is effected, interest on any amounts which have
been or are the subject of such "true-up" at a rate equal to the lesser of
the (x) Prime Rate plus Two Percent (2%) per annum or (y) maximum rate
permitted by applicable law.
(ii) Carrier Transport II System. As of the Carrier Transport II Date,
the Company shall be billed by Sprint for actual access charges based on
actual usage incurred by Sprint in connection the provision of Services
hereunder on a LEC-specific of Domestic Alternate Provider-specific basis,
as such charges may be in effect on the first day of any calendar month,
thus eliminating any need for access "true-ups".
(iii) Attachment PS. The parties acknowledge and agree that
TABLE 1 to ATTACHMENT PS is appended for illustrative purpose only
and shall not constitute the Rates and Charges to be "passed-through"
in connection with Access Components. Sprint shall, in accordance
with SECTION 19.3 hereof, provide to the Company, on a periodic
basis, updated Rates and Charges for Access Components in a format
substantially similar to the format set forth in such TABLE 1.
(b) INTERNATIONAL PRICING. On the first business day of each March
and September during the Term, commencing March 1, 1997, Sprint shall adjust
each of the prices set forth in ATTACHMENT PS attached hereto which relate to
the provision of International Services to the Company and any Affiliate of the
Company in accordance with the following formula:
New International Old International Adjusted
Price (=) Price (x) International
Benchmark
(/) International
Benchmark
In addition to the foregoing, each party shall pay to the other party, at the
time of any adjustment pursuant to this SECTION 10.1(B), interest on any
overpayments or underbillings, as applicable, made by the Company or Sprint, in
respect of international Services as a result of any delays in timely making any
adjustments required by this SECTION 10.1(B) at a rate equal to the lesser of
the (x) Prime Rate plus two percent (2%) per annum or (y) maximum rate permitted
by applicable law. Sprint shall deliver notice of the New International Price to
the Company within five (5) business days after each adjustment undertaken
pursuant to this SECTION 10.1(B), which shall set forth the formula referred to
above.
(c) BOOKS AND RECORDS. Sprint shall maintain all books and records
related to the determination and calculation of any of the Domestic access
charges, international prices or adjustments required by this SECTION 10.1
for a period of not less than two (2) years from the date of any adjustment
effected pursuant to this SECTION 10.1; provided that notwithstanding the
--------
foregoing. Sprint shall maintain all books and records related to the
determination and calculation of the International Benchmark until the
termination of this Agreement.
ARTICLE 12
CONFIDENTIAL INFORMATION
12.1 Confidential Information. During the Term and for a period of
------------------------
three (3) years thereafter, each party hereto shall maintain in strict
confidence all Confidential Information, including preventing disclosure to any
competitor of the other party (known to be such after reasonable inquiry).
Neither party shall, without obtaining the other party's prior consent, use the
other party's Confidential Information for any purpose other than for the
performance of its duties and obligations under this Agreement and for
provision of other services to the other party. Each party shall use, and shall
take reasonable steps to arrange for other persons authorized to receive the
other party's Confidential Information to use, at least the same degree of care
to protect the other party's Confidential Information as it uses to protect its
own Confidential Information.
12.2 Disclosure to Employees and Others. Notwithstanding SECTION 12.1
----------------------------------
hereof, either party may disclose Confidential Information to:
(a) its and its Affiliates' employees, agents, advisors, employees,
outside counsel, auditors and other professional advisors; provided that (i)
--------
disclosure may be made to any such individuals only on a need-to-know basis,
(ii) the disclosing party has taken reasonable steps to ensure that such
Confidential Information is kept strictly confidential consistent with the
confidentiality obligations imposed hereunder and (iii) any Person to whom such
Confidential Information is disclosed shall be instructed not to use any such
Confidential Information outside the scope of employment or engagement; and
(b) in the case of the Company, (i) the employees, agents, advisors,
outside counsel, auditors and other professional advisors of any entity or
Affiliate of such entity that is merging with, or acquiring, the Company or an
Affiliate of the Company;
provided that disclosure may be made to any such individuals only on a
--------
need-to-know basis, and (ii) any state regulatory agencies with jurisdiction
over the companies involved in such merger or acquisition provided that the
--------
Company or its Affiliate shall seek confidential treatment of any Confidential
Information disclosed to such agency; provided further that (1) disclosure may
-------- -------
be made to any such individuals only on a need-to-know basis, (2) the disclosing
party has taken reasonable steps to ensure that such Confidential Information is
kept strictly confidential consistent with the confidentiality obligations
imposed hereunder and (3) any Persons to whom such Confidential Information is
disclosed shall be instructed not to use any such Confidential Information
outside the scope of employment or engagement.
12.3 Required Disclosure.
-------------------
(a) GENERALLY. The restrictions imposed by this ARTICLE 12 do not
apply to the extent, but only to the extent, that Confidential Information must
be disclosed pursuant to a court order or as required by any regulatory agency
or other governmental body of competent jurisdiction. Each party shall make its
own good faith judgment as to the disclosure requirements applicable to it,
including the statutory and regulatory requirements administered or imposed by
the FCC and the Securities and Exchange Commission. In the event that a party is
legally required to disclose the other party's Confidential Information by a
ruling or order of a court, regulatory agency or other governmental body, it
shall notify the other party upon receipt of such an order or determination and
shall use it best efforts to resist, or to assist the other party in resisting,
such disclosure.
(b) PROCEDURE. A party providing another party's Confidential
Information to any court, regulatory agency or other governmental body shall:
(i) use its best efforts to assist the other party in obtaining a
protective order or comparable assurance that the Confidential Information
so provided will be held in confidence by such court, regulatory agency or
governmental body and not be further disclosed to any other person, absent
the owner's prior consent, and
(ii) permit the other party to review any redacted document to be
filed with the court, regulatory agency or other governmental body and
offer its comments thereon before the document is filed.
In any event, the parties shall, to the extent practicable, assist one another
in any action required by this SECTION 12.3(B).
12.4 Remedies. The Company and Sprint acknowledge that any disclosure
--------
or misappropriation of Confidential Information in violation of this Agreement
could cause irreparable and immediate harm, the amount of which may be extremely
difficult to determine, and thereby making any remedy at law or in damages
inadequate. Each party therefore agrees that, notwithstanding SECTION 18.6
hereof, the other party shall have the right to apply to any court of competent
jurisdiction for an order restraining any breach or threatened breach of this
ARTICLE 12 and for any other equitable relief as such other party deems
appropriate.
ARTICLE 14
REPRESENTATIONS, WARRANTIES AND COVENANTS
14.1 Sprint Representations, Warranties and Covenants
------------------------------------------------
(a) AUTHORITY. Sprint has full power and authority to enter into
this Agreement without the consent of any other Person and to perform its
obligations hereunder.
(b) GOOD STANDING. Sprint is and shall continue to be duly
organized, validly existing and in good standing under the laws of the State of
California and is and shall continue to be authorized to do business in the
jurisdictions in which the ownership of its properties or conduct of its
business legally requires such authorization, other than such jurisdictions in
which the failure to be so authorized would not have a material effect upon
Sprint's ability to provide Services in accordance with the terms of this
Agreement.
(c) DUE AUTHORIZATION. This Agreement and the transactions
contemplated hereby have been duly authorized by Sprint, and no further
partnership action is required.
(d) NO CONFLICT. This Agreement and the transactions contemplated
hereby do not conflict in any material respect with any other agreements or
judicial or administrative orders to which Sprint is a party or by which it may
be bound.
(e) COMPLIANCE. Sprint is in compliance, in all material respects,
with and shall, at all times during the Term, comply, in all material respects,
with all foreign
and Domestic laws, statutes, ordinances, rules, regulations and orders or court
decisions applicable to the provision of Services, including, without
limitation, all applicable laws and regulations relating to CPNI. Sprint shall
take all necessary actions to ensure that the Services, and the rates, terms and
conditions set forth in this Agreement, remain in full compliance with all
applicable laws, statutes, ordinances, rules, regulations and orders or
decisions of any court or governmental body. Sprint further agrees that it shall
make all governmental fillings, including tariff fillings, that may be required
from time to time by any governmental body of competent jurisdiction. Sprint
shall promptly notify the Company of any charge of noncompliance with any
applicable foreign, federal, state or local law (including a statue, rule,
regulation or order) of which it becomes aware in connection with the Services.
Sprint shall not do or perform any act, or omit to do or perform any act, that
Sprint should reasonably know would place the Company in violation of any
foreign, federal, state or local statute, rule, regulation or order.
(f) VALID, BINDING AND ENFORCEABLE. This Agreement constitutes a valid and
binding agreement of Sprint, enforceable against Sprint in accordance with its
terms, except as may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance and other laws affecting creditors rights generally and to
general principles of equity.
(g) CLAIMS BY SUBCONTRACTORS. Sprint expressly covenants, warrants and
agrees to pay all subcontractors, materialmen or other laborers with which it
enters into agreements to perform work related to Services. In no event shall
the Company be obligated to pay such subcontractors, materialmen or other
laborers for claims which arise out of work related to Services. Sprint
expressly covenants and agree to hold harmless and defend the Company against
any and all claims (including the cost of defending them) arising out of work by
Sprint subcontractors, materialmen or other laborers related to Services.
(h) PERMITS. Sprint has secured and shall, during the Term, secure all
Domestic and foreign permits, licenses, certifications, regulatory approvals and
authorizations (collectively "PERMITS") legally required for the provision of
Services, and shall take all lawful actions necessary to maintain such Permits
in full force and effect.
(i) ALL REASONABLE EFFORTS. Subject to the terms of this Agreement, Sprint
shall use all reasonable efforts to take, or cause to be taken, all lawful
actions to do, or cause to be done, all things necessary proper or advisable to
comply with the requirements of this Agreement.
(j) NON-INTERFERENCE. The installation maintenance and provision of the
Services shall be performed in such a manner as will minimize any disruption to
the normal business operations of the Company or its Affiliates that might arise
as a result of such activities.
(k) INTELLECTUAL PROPERTY. Sprint has not received a claim that
causes it to believe that the Company's use of equipment or services material to
this Agreement will be interrupted or otherwise disturbed by Sprint or any third
Person asserting a claim under or through Sprint. Sprint has the rights to grant
the license of Intellectual Property granted herein on a royalty free basis,
subject to the payment for Services otherwise required by the terms of this
Agreement.
(l) PRICING CALCULATION. Sprint represents that the International
Benchmark has been calculated in accordance with the definition of such term as
set forth in this Agreement. Sprint shall calculate and implement the Domestic
and international access charge adjustments and the New International Price in
accordance with the requirements of SECTION 10.1 hereof.
14.2 The Company's Representations and Warranties.
--------------------------------------------
(a) AUTHORITY. The Company has full corporate power and authority to
enter into this Agreement without the consent of any other Person and to perform
its obligations hereunder.
(b) GOOD STANDING. Subject to the transactions contemplated by
SECTION 18.1 hereof, the Company is and shall continue to be duly organized,
validly existing and in good standing under the laws of the State of California,
and is and shall, subject to the receipt of all applicable regulatory approvals
and authorizations, continue to be authorized to do business in the
jurisdictions in which the ownership of its properties or conduct of its
business legally requires such authorization, other than such jurisdictions in
which the failure to do so authorized would not have a material effect upon the
Company's ability to engage in the transactions contemplated hereby.
(c) DUE AUTHORIZATION. This Agreement and the transactions
contemplated hereby have been duly authorized by the Company, and no further
corporate action is required.
(d) NO CONFLICT. Except for the applicable regulatory approvals and
authorizations which the Company intends to obtain prior to the resale of the
Services being obtained hereunder, this Agreement and the transactions
contemplated hereby do not conflict in any material respect with any other
agreements or judicial or administrative orders to which the Company is a party
or by which it may be bound.
(e) VALID, BINDING AND ENFORCEABLE. This Agreement constitutes a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
moratorium, fraudulent conveyance and other laws affecting creditors rights
generally and to general principles of equity.
(f) COMPLIANCE. The Company is in compliance, in all material
respects, with and shall, at all times during the Term, comply, in all material
respects, with all foreign and Domestic laws, statutes, ordinances, rules,
regulations and orders or court decisions applicable to the receipt of Services.
The Company shall make all governmental filings, including tariff filings, that
may be required from time to time by any governmental body of competent
jurisdiction. The Company shall promptly notify Sprint of any charge of
noncompliance with any applicable foreign, federal, state or local law
(including a statute, rule, regulation or order) of which it becomes aware in
connection with the receipt of Services. The Company shall not do or perform any
act, or omit to do or perform any act, that the Company should reasonably know
would place Sprint in violation of any foreign, federal, state or local statute,
rule, regulation or order.
(g) PERMITS. Prior to the resale of any Services to any end-users,
the Company shall secure and shall maintain, during the Term, all Domestic and
foreign permits, licenses, certifications, regulatory approvals and
authorizations legally required to permit the Company to resell any of the
Services to any end-users.
(h) ALL REASONABLE EFFORTS. Subject to the terms of this Agreement,
the Company shall use all reasonable efforts to take, or cause to be taken, all
lawful actions to do, or cause to be done, all things necessary, proper or
advisable to comply with requirements of this Agreement.
14.3 Joint Covenant Regarding Definitions of Access Components. Each
----------------------------------------------------------
of the Company and Sprint acknowledge and agree that in the event of any
fundamental change in the methodology or manner of determining any Access
Components as defined herein, the parties hereto shall negotiate, in good faith,
a modification of the definitions of such terms so as to preserve the intention
of the parties to segregate the local access components of any transmission.
ARTICLE 15
INTELLECTUAL PROPERTY RIGHTS
15.1 Rights to Intellectual Property.
-------------------------------
(a) GENERALLY. Unless otherwise agreed in writing, the Company shall
own the entire right, title and interest in and to any Intellectual Property
developed by Sprint specifically for the Company, at the Company's sole expense
provided such Intellectual Property directly relates to systems, features and
functions that operate on a stand alone basis and are not inextricably
integrated with Sprint's other systems. In the event that Sprint develops any
Intellectual Property other than that referred to in the preceding sentence, the
Company and Sprint shall negotiate, in good faith, prior to the
development of such Intellectual Property, the rights of each such party to any
Intellectual Property developed by Sprint in connection with the Services
hereunder.
(b) COMPETITIVENESS. Notwithstanding anything to the contrary, Sprint
and the Company shall use commercially reasonable efforts to protect the
Company's competitive advantage with respect to developments paid for solely by
the Company for a period not to exceed nine (9) months from the date the Company
receives use of such developments.
15.2 Intellectual Property Claims.
----------------------------
(a) INTELLECTUAL PROPERTY CLAIMS NOTICE. Sprint shall give the
Company prompt notice of any written claim asserting infringement or any action
against Sprint which relates to any Intellectual Property being used by the
Company that Sprint, in good faith, believes may have a material adverse affect
on the Company's use of the Services, the Intellectual Property or the
Documentation. The Company agrees to give Sprint prompt notice, in accordance
with the process set forth in SECTION 16.3(A) hereof, of any such action of
which it becomes aware, and copies of all papers served upon or received by the
Company relating to the same. Subject to the provisions set forth in SECTION
16.3(B) and SECTION 16.3(C) hereof, which are incorporated herein, Sprint will
handle, defend or settle any claim, suit or other proceeding and pay all damages
awarded by a judicial or arbitral body, brought against the Company based upon
an allegation that the use of the Service furnished pursuant to this Agreement
constitutes an infringement of any Intellectual Property, provided the Company
notifies Sprint promptly in writing of such allegation, suit or proceeding and
Sprint is given full and complete authority, information and assistance, at
Sprint's expense, for the defense and settlement of same, and also provided that
the Company or its agents does not by any act (including any admission or
acknowledgement) materially impair or compromise the defense of such suit or
proceeding.
(b) ENJOINED USE. If Sprint's or the Company's use of any Service,
Intellectual Property or any Documentation is enjoined as a consequence of a
claim or action of the kind described in SECTION 15.2(A) hereof. Sprint shall
rectify the situation by taking one (1) or more of the following actions at its
own expense and shall, where commercially reasonable, honor the Company's
express desire that they be attempted in the listed order of preference:
(i) immediately procure for the Company the right to continue
using the enjoined Services, Intellectual Property or Documentation;
(ii) immediately modify the enjoined Services, Intellectual
Property or Documentation so that it is non-infringing; provided that
--------
such modification does not materially affect the intended use thereof
as contemplated hereunder;
(iii) upon notice to the Company, substitute for the
Service, Intellectual Property or Documentation a non-infringing
Service, Intellectual Property or Documentation that the Company and
Sprint, in good faith, jointly determine to be a reasonably acceptable
substitute for the enjoined Service or Documentation; and
(iv) upon the Company's request, substitute for the
Service, Intellectual Property or Documentation a non-infringing
Service, Intellectual Property or Documentation that the Company and
Sprint, in good faith, jointly determine to be inferior thereto, but
which Sprint shall offer to the Company on terms and at rates
acceptable to the Company.
(v) discontinue the Service and make an adjustment to the
Rates and Charges for other Services equal to the Company's and Sprint's
good faith, jointly determined estimate of the damages (including
diminution in value) caused by such discontinuance.
(c) DISCLAIMER. This SECTION 15.2 does not apply to the extent
the claim, suit or other proceeding referenced above is based on Service
Developments, modifications, combinations, or uses that are attributable to
the Company's design or specification. This SECTION 15.2 constitutes the
Company's sole remedy and the sole liability of Sprint with respect to any
third party claim based on an infringement of any Intellectual Property.
THE INTELLECTUAL PROPERTY OBLIGATIONS RECITED ABOVE ARE IN LIEU OF ALL
OTHER INTELLECTUAL PROPERTY WARRANTIES WHATSOEVER WHETHER ORAL, WRITTEN,
EXPRESS, IMPLIED OR STATUTORY.
ARTICLE 16
INDEMNIFICATION: THIRD PARTY CLAIMS
16.1 Indemnification by Sprint. Subject to the provisions of
--------------------------
this ARTICLE 16. Sprint shall indemnify, defend and hold harmless the
Company and its Affiliates, and the officers, directors, shareholders,
employees and agents of the Company and its Affiliates from and against all
claims (including, without limitation, claims by third parties), damages,
losses, liabilities, costs and expenses (including, without limitation,
settlement costs and any reasonable legal, accounting or other expenses for
investigating or defending any actions or threatened actions) (collectively,
"DAMAGES") arising out of or caused by (a) the failure of any representation
or warranty made by Sprint in this Agreement to be true and correct in all
respects when made, (b) any breach of any covenant, agreement or obligation
of Sprint contained in this Agreement or (c) the imposition of taxes
relating to the provision of Services under the terms of this
Agreement, except to the extent that the Company is required to pay such taxes
pursuant to SECTION 8.2 hereof and has failed to do so when legally required.
16.2 Indemnification by the Company. Subject to the provisions of
------------------------------
this ARTICLE 16, the Company shall indemnify, defend and hold harmless Sprint
and its Affiliates, and the officers, directors, shareholders, employees and
agents of Sprint and its Affiliates from and against all Damages arising out of
or caused by (a) the failure of any representation or warranty made by the
Company in this Agreement to be true and correct in all respects when made, (b)
any breach of any covenant, agreement or obligation of the Company contained in
this Agreement and (c) the imposition of taxes relating to the provision of
Services under the terms of this Agreement, except to the extent that Sprint is
required to pay such taxes pursuant to SECTION 8.2 hereof and has failed to do
so when legally required.
16.3 Notice and Resolution of Claim.
------------------------------
(a) NOTICE OF CLAIM. An indemnified party hereunder shall promptly
give notice to the indemnifying party after obtaining knowledge of any claim
against the indemnified party as to which recovery may be sought against the
indemnifying party because of the indemnity set forth above. The failure to give
or delay in giving notice as required by this SECTION 16.3(A) in a timely
fashion shall not result in a waiver of any right to indemnification hereunder
except to the extent the indemnifying party is prejudiced thereby and then only
to the extent of such prejudice.
(b) ASSUMPTION OF DEFENSE BY INDEMNIFYING PARTY. Subject to SECTION
16.3(C) hereof, if any indemnification obligation hereunder shall arise from the
claim of a third party, the indemnified party shall permit the indemnifying
party to assume the defense of any such claim or any litigation resulting from
such claim unless such third party is seeking injunctive or equitable remedies
in respect of the indemnified party or its business. If the indemnifying party
assumes the defense of such claim or litigation, the obligations of the
indemnifying party hereunder shall include taking all steps reasonably necessary
in the defense or settlement of such claim or litigation and holding the
indemnified party harmless from and against any and all Damages caused by or
arising out of any settlement approved by the indemnifying party or any judgment
in connection with such claim or litigation. The indemnifying party shall not in
the defense of such claim or litigation, unless the indemnified party otherwise
expressly consents in writing, consent to entry of any judgment or enter into
any settlement (i) unless such judgment or settlement provides only for monetary
damages to be paid by the indemnifying party and (ii) which does not include as
an unconditional term thereof the giving by the claimant or the plaintiff to the
indemnified party of a release from all liability in respect of such claim or
litigation. In cases where the indemnifying party has, by written instrument
delivered to the indemnified party, assumed the defense or a settlement with
respect to a claim for which indemnity is being sought, and is not in default,
or otherwise unable to perform its obligations, under this ARTICLE 16, the
indemnifying party shall be entitled to assume the defense or settlement thereof
with counsel of its own choosing, which counsel shall be reasonably satisfactory
to the indemnified party; provided that the indemnified party (and its counsel)
--------
shall be entitled to continue to participate at its own cost in any such action
or proceeding or in any negotiations or proceedings to settle or otherwise
eliminate any claim for which indemnification is being sought, and the
indemnifying party shall consult in good faith with the indemnified party upon
the indemnified party's request regarding the conduct of such action, proceeding
or claim.
(c) ASSUMPTION OF DEFENSE BY INDEMNIFIED PARTY. If (i) the
indemnifying party does not promptly assume such defense, (ii) the indemnified
party is entitled to assume the defense under the first sentence of SECTION
16.3(B) hereof, (iii) the indemnifying party is in default or otherwise unable
to perform its obligations under this ARTICLE 16 or (iv) the indemnified party
reasonably concludes that there may be legal defenses available to it that are
different from or in addition to those available to the indemnifying party, or
that another conflict of interest exists or may occur in the defense of such
action, then in any of such cases, the indemnified party may assume primary
responsibility for the defense of the claims, and may select legal counsel
reasonably acceptable to the indemnifying party to conduct the defense of such
claims. If the indemnified party assumes and undertakes a defense of a third
party claim or claims in accordance with the immediately preceding sentence, the
indemnifying party shall be liable to the indemnified party for any reasonable
attorneys' fees and expenses incurred by the indemnified party in connection
with such matter, after receiving notice from the indemnified party to the
effect that it intends to take advantage of the provisions set forth in the
immediately preceding sentence; provided that the indemnifying party shall
--------
continue to have the right to participate in the defense of any such action and
to employ separate counsel in connection therewith, but the fees, costs, and
expenses related to such participation shall be at the expense of and paid by
the indemnifying party. In the event the indemnified party assumes primary
responsibility for the defense of the claims pursuant to SECTION 16.3(B) hereof,
the indemnifying party shall continue to pay the legal fees and expenses of
counsel for the indemnified party and the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party.
The indemnified party shall have the right, with the consent of the indemnifying
party (which consent shall not be unreasonably withheld), to settle or
compromise any such action on terms satisfactory to it.
16.4 Payment. The indemnifying party shall promptly pay or reimburse
-------
the indemnified party as contemplated by SECTION 16.3 hereof for (a) the amount
of any judgment rendered or settlement entered into, (b) all Damages and
reasonable expenses, legal or otherwise, incurred by the indemnified party in
connection with the defense against such third party claim or litigation and (c)
all costs incurred by the indemnified party in the securing of such party's
rights under this indemnification agreement.
16.5 Consequential Damages. Subject to SECTION 16.3 hereof, neither
---------------------
Sprint nor the Company shall be liable to each other for incidental,
consequential or special damages, regardless of the form of action whether in
contract, indemnity, warranty, strict liability, or tort, including negligence
of any kind with regard to Services or other conduct under this Agreement.
ARTICLE 17
REMEDIES
17.2 Interruption Credits and Other Credits.
--------------------------------------
(c) "PASS-THROUGH" OF COMPENSATION. Sprint shall promptly
"pass-through" to the Company the full amount of any rebates, credits or other
payments or compensation which Sprint receives from any service provider,
including any LEC or Domestic Alternate Provider, used by Sprint with respect to
any Service that has suffered an Interruption as set forth in SECTION 17.2(A)
hereof, including Interruptions arising outside of Sprint's POPs.
17.6 Special Remedies Under Certain Circumstances.
--------------------------------------------
(b) FRAUD. Sprint shall assume all liability for any costs or
charges for fraudulent use of any Services in the event:
(i) such fraudulent use involves calls which originated
on Sprint's switched network facilities and occurs more than
four (4) hours after the Company notifies Sprint to block an
ANI or calling card using Sprint's card platform: or
(ii) such fraudulent use results from unauthorized
electronic entry into and use of Sprint's (or any of its
suppliers or subcontractors) network systems and facilities
through any circumvention of systems or unauthorized access
to building facilities:
provided that the Company expressly assumes liability for any costs and charges
--------
related to fraudulent use which are not referred to in CLAUSES (I) AND (II) of
this SECTION 17.6(B).
18.2 Force Majeure. In no event shall either party be liable to the
-------------
other party for any delay or other failure to perform hereunder that is due to
(a) the other's delay in supplying or failure to supply approvals, information,
materials, or services called for or reasonably required under the terms of this
Agreement; provided that the party has previously requested such approvals,
--------
information, materials or services with reasonable advance notice or (b) any
Force Majeure Event. Sprint shall (i) give immediate notice to the Company of
any Force Majeure Event and of the cessation of such event and (ii) use its
reasonable best efforts to mitigate the effects of such Force Majeure Event in a
prompt and expeditious manner.
18.3 Independent Contractor. In providing the Services, Sprint shall
----------------------
operate as, and for all purposes be considered, an independent contractor and
not an agent or partner of the Company, and Sprint shall have no authority to
bind or otherwise obligate the Company in any manner whatsoever. All Sprint
personnel shall remain under the exclusive direction and control of Sprint and
shall not be deemed to be employees or agents of the Company. Sprint shall be
solely responsible for payments of all Sprint personnel's compensation,
including overtime wages, employees benefits, social security taxes, employment
taxes and any similar taxes and workmen's compensation, disability and other
insurance, and the withholding or deduction, if any, of such items to the extent
required by applicable law.
18.4 Advertising or Publicity
------------------------
(a) GENERALLY. Neither Sprint nor the Company shall make public
reference to the existence or terms or this Agreement without the prior approval
of the other. This prohibition includes use of the other's name, trademarks,
service marks or logos or any other reference to the other party directly or
indirectly in any advertising, sales presentation, news release, release to any
professional or trade publication or for any other purpose.
(b) REGULATORY COMMISSION. The Company may inform a regulatory
commission verbally or in writing or verbally advise any customer or potential
customer who makes an inquiry that a portion of the services provided by the
Company to such customer or potential customer will be provided over the Sprint
network.
18.5 Subcontracting
--------------
(a) GENERALLY. Subject to SECTION 18.5(B) hereof, Sprint may use
other contractors to assist it in connection with the performance of its
obligations under this Agreement; provided that in no event shall Sprint
--------
subcontract the performance of any significant or substantial portion of the
Services without the prior consent of the
Company. The Company may require the execution by any Sprint subcontractor of a
non-disclosure agreement in a form acceptable to the Company that names the
Company as a third party beneficiary. Sprint shall cause any subcontractor
providing Services under this Agreement to comply with, and be bound by, the
requirements of this Agreement with respect to the provision of such Services.
(b) SPRINT'S OBLIGATIONS. Sprint shall remain fully responsible for
the performance of this Agreement in accordance with it terms including any
obligations it performs through subcontractors and shall be solely responsible
for payments to its subcontractors. No contract, subcontract or other agreement
entered into by Sprint with any third party in connection with its provision of
Services hereunder shall provide for any indemnity, guarantee or assumption of
liability by, or other obligation of, the Company with respect to such
arrangement, except as consented to by the Company.
18.6 Dispute Resolution.
------------------
(a) GENERALLY. Sprint and the Company shall endeavor, in good faith,
to settle through their respective employees any disputes which may arise
between them, and shall so instruct each of their employees performing services
under the terms of this Agreement. In the event that such employees are unable
to resolve any such dispute, or any such dispute is of a nature which requires
the attention of senior management of Sprint or the Company, each of Sprint and
the Company shall seek to resolve such dispute in the manner set forth in this
SECTION 18.6.
(b) ESCALATION. In the event that any matter in dispute shall not
have been adequately resolved by the employees of each of Sprint and the
Company, then, in such event, either Sprint or the Company may bring any such
matter as remains in dispute (and only such matter) to the attention, in the
case of Sprint, of the Vice President and General Manager - Wholesale Services
Group, and, in the case of the Company, the Vice President - Operations
(collectively, the "SENIOR EXECUTIVES"). The Senior Executives shall meet in
person or by telephone within ten (10) days after the submission to them of such
matter and attempt in good faith to resolve such matter. If, notwithstanding the
foregoing dispute resolution provision, Sprint and the Company do not resolve
the matters in dispute, in a mutually satisfactory manner, within thirty (30)
days after submission of the matter to the Senior Executives, either party may,
by notice to the other party, subject such matter (and only such matter) as
remains in dispute to binding arbitration under and pursuant to the rules of the
American Arbitration Association in effect at the time such controversy or
dispute is referred to arbitration. Such hearing shall be held in New York City,
New York or such other location as may be agreed upon by the parties hereto.
Unless the parties hereto otherwise agree, such arbitration shall be conducted
with three (3) independent arbitrators, one (1) chosen by Sprint, one (1) chosen
by the Company and the third chosen by the other two arbitrators: provided that
--------
each party may reject the other party's selection upon a showing of bias. Sprint
and the Company shall each select an arbitrator not later than ten (10) days
from
the date such dispute is referred to arbitration and such arbitrators shall
choose a third arbitrator not later than twenty (20) days after the date such
dispute is referred to arbitration. If any such selections are not timely made,
the American Arbitration Association shall make such selection within five (5)
days of the request by any party. The parties hereto shall submit their dispute
for resolution to the arbitrators within ten (10) days after the selection of
the final arbitrator and the arbitrators shall deliver their award within
forty-five (45) days after the date of such submission. An arbitration award
signed by any two (2) or all three (3) of the arbitrators shall be final and
binding on the parties and not be subject to any appeal or de novo review by any
-- ----
judicial body. The losing party shall pay all costs and fees for the
arbitration, except that each of Sprint and the Company shall bear its own legal
fees. Judgment upon the award rendered may be entered in any court having
jurisdiction or application may be made to any such court for judicial
recognition of the award or any order of enforcement thereof, as the case may
be. The losing party shall pay all costs and expenses, including reasonable
attorneys' fees, incurred by the winning party in any legal proceeding to
enforce any arbitration award.
(c) PERFORMANCE PENDING OUTCOME OF DISPUTE. Pending the resolution
of any dispute or controversy arising under this Agreement, whether by
settlement, arbitration award, or final judgment, each party shall continue to
perform its obligations under this Agreement, and shall not discontinue,
disconnect, or in any other fashion cease to provide all or any substantial
portion of the Services to the Company unless otherwise directed by the Company.
18.7 Assignment. Subject to ATTACHMENT AS, ATTACHMENT MR, SECTION
----------
3.2(A), SECTION 18.1 and SECTION 18.5 hereof, neither party may assign any of
its rights or delegate any of its obligations under this Agreement without the
prior consent of the other party, which the other party may grant or withhold in
its sole discretion. Any prohibited assignment or delegation shall be null and
void.
ARTICLE 19
MISCELLANEOUS
19.1 Successors and Assigns. This Agreement shall be binding on the
----------------------
parties hereto and their respective legal successors and permitted assigns.
19.2 Third Party Beneficiaries. This Agreement shall not be deemed to
-------------------------
provide third party with any remedy, claim, right of action or other right,
except that the provisions in this Agreement shall inure to the benefit of the
parties' Affiliates and any indemnitees hereunder.
19.3 Notices. All notices, requests, demands, consents, reports,
-------
authorizations, approvals or other communications made pursuant to this
Agreement shall be in writing and shall be deemed to have been duly given upon
receipt when delivered personally, by mail, by courier, by facsimile, telegram,
telex or similar means of communication (in all instances other than delivery by
mail, the notifying party shall send confirmation to the recipient by mail) to
the recipient party, to the following addresses:
Any party may change its address for purposes of this SECTION 19.3 by notice to
the other party hereto of such change in the manner specified above.
19.4 Governing Law. The validity of this Agreement, the construction
-------------
and enforcement of its terms, and the interpretation of the rights and duties of
the parties shall be governed by the internal laws of the State of California,
without regard to the principles of the conflicts of laws thereof, except
insofar as federal law may control any aspect of this Agreement, in which case
federal law shall govern such aspect.
19.5 Cumulative Remedies. The remedies available to any party under
-------------------
this Agreement shall be cumulative and not exclusive, and the election of any
one(1) remedy shall not preclude pursuit of other remedies. In arbitration, a
party may seek any remedy generally available under the applicable governing
law.
19.6 Tariffs. Subject to SECTION 8.1(B) hereof, in the event of a
-------
conflict between this Agreement and any applicable tariffs, this Agreement shall
prevail and control.
19.7 Construction. Each party hereto has been represented by counsel
------------
in connection with, and has participated in, the negotiation and execution of
this Agreement and is familiar with the terms and conditions contained herein
and the industry to which this Agreement relates. In light of such factors,
among others, the parties expressly agree that this Agreement shall not as a
matter of law be construed against the party that has drafted it, but rather
shall be considered as an agreement produced jointly by the parties.
19.8 Modification, Amendment, Supplement or Waiver. Subject to
---------------------------------------------
ATTACHMENT CC AND SECTION 3.4 hereof, no modification, amendment, supplement to
or waiver of this Agreement or any of its provisions shall be binding upon the
parties hereto unless made in writing and duly signed by each party hereto. Any
failure of any party hereto to comply with any obligation, covenant, agreement
or condition herein may be waived in writing by the other party hereto, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
19.9 Entirety of Agreement. Except to the extent set forth in SECTION
----------------------
8.1(B) hereof, with respect to Tariff 8. this Agreement, together with all
Attachments, constitutes the complete and exclusive statement of the agreement
between the parties and supersedes all prior or contemporaneous agreements,
promises, representations, understandings and negotiations between the parties,
wether written or oral, with respect
to the subject matter hereof. In the event of any conflict between the
provisions of this Agreement and the Attachments, the terms of this Agreement
shall prevail and control.
19.10 Severability. If any provision of this Agreement shall be
------------
invalid or unenforceable (as a result of any tariff inconsistency or otherwise),
such invalidity or unenforceability shall not invalidate or render this
Agreement unenforceable but rather this Agreement shall be construed as if not
containing the invalid or unenforceable provision. If such provision is an
essential and fundamental element of this Agreement however, the parties shall
promptly attempt to negotiate, in good faith a substitute therefor and either
party may elect to terminate this Agreement if the parties are unable to agree
on a substitute therefor within a reasonable period of time.
19.11 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute one (1) and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto, each acting with proper
authority, have executed this Agreement, to be effective as of the date first
above written.
SPRINT COMMUNICATIONS COMPANY, L.P.
By: /s/ X X Xxxxx
-----------------------------
Name: R. Xxxxxxx Xxxxx
---------------------------
Title: President, WSG
--------------------------
PACIFIC XXXX COMMUNICATIONS
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: President
[SIGNATURE PAGE FOR THE SERVICES AGREEMENT]
ATTACHMENT AS
TERMS OF AFFILIATE SERVICES AGREEMENT
This ATTACHMENT AS is annexed to that certain Services Agreement,
dated as of the 3rd day of February 1997, between the Company and Sprint (the
"AGREEMENT"), and sets forth certain terms and conditions that shall be
incorporated into any contract (the "AFFILIATE CONTRACT") for telecommunications
services that a Company Affiliate may elect to enter into with Sprint in
accordance with SECTION 3.2 of the Agreement. The information and obligations
set forth herein are deemed fully incorporated into the Agreement as if set
forth therein in their entirety. Reference is further made to SECTION 19.9 of
the Agreement. Capitalized terms used without definition herein have their
respective meanings set forth in ATTACHMENT DE.
I. Terms of Affiliate Contract
---------------------------
Sprint shall be obligated, at the election of the Company Affiliate or
unless otherwise expressly agreed, to provide the Services to the Company
Affiliate in accordance with the following terms and conditions and each of such
terms and conditions shall be incorporated into the Affiliate Contract:
1. Definitions. Capitalized terms used in the Affiliate Contract shall have
-----------
their respective meanings set forth in ARTICLE 1 and ATTACHMENT DE of the
Agreement.
2. Term. Unless otherwise extended or earlier terminated in accordance with
----
PARAGRAPH 5 hereof or as contemplated by SECTION 3.2 of the Agreement, the
term of the Affiliate Contract shall commence as of the date of its
execution and shall continue in full force and effect until the first
anniversary of such date (the "TERMINATION DATE").
3. Integration. Sprint shall provide such Services to the Company Affiliate
-----------
as the Company Affiliate may request from time to time pursuant to the
terms of the Affiliate Contract in accordance with SECTION 3.2(A) of the
Agreement, and the Company Affiliate shall be entitled to the benefits of,
and subject to the obligations set forth in, the Agreement with respect to
the provision of such Services to the same extent as if a party to the
Agreement, other than as expressly set forth in the Affiliate Contract.
4. Non-Exclusive Agreement; Rates and Charges. During the term of the
------------------------------------------
Affiliate Contract, the Company Affiliate may elect, without regard to the
exclusivity provisions of ARTICLE 6 of the Agreement, to obtain any of the
Services from Sprint at the Rates and Charges set forth in the Agreement
and ATTACHMENT PS.
5. Company Affiliate's Right to Renew. On or prior to the Termination Date,
----------------------------------
the Company Affiliate may elect, by notice delivered to Sprint, to renew
the Affiliate Contract on either an exclusive or a non-exclusive basis as
follows (subject, in each case, to the right to terminate the Affiliate
Contract in accordance with SECTION 3.2(B) of the Agreement):
(a) EXCLUSIVE BASIS. The Company Affiliate may renew the Affiliate
Contract for a term which is coextensive with the Term of the
Agreement; provided that is such event, the Company Affiliate shall
--------
thereupon become subject to the same exclusivity provisions as set
forth in ARTICLE 6 of the Agreement (excluding any volume commitments
set forth therein except that CLAUSE (IV) of the first sentence of
SECTION 6.1 shall be modified to permit the Company Affiliate to
obtain services provided by a carrier other than Sprint under any
contract existing as of the date of the Company Affiliate's election
to renew the Affiliate Contract pursuant to this Section 5(a) (which
contracts will be terminated as soon as practicable to the extent no
breach or penalty results therefrom).
(b) NON-EXCLUSIVE BASIS. The Company Affiliate may renew the Affiliate
Contract and elect, without regard to the exclusivity provisions of
ARTICLE 6 of the Agreement, to obtain any of the Services from Sprint
at the rates and charges and for the terms and conditions to be
negotiated in good faith.
6. Other Terms and Conditions. The Affiliate Contract shall incorporate by
--------------------------
reference all other terms and conditions of the Agreement, with such
conforming changes as shall be necessary to reflect the identity of the
Company Affiliate and to be consistent with the foregoing.
II. Additional Terms and Conditions
-------------------------------
Each Company Affiliate may elect to obtain from Sprint, and Sprint
shall be obligated to provide to the Company Affiliate any of (i) the Core
Services at the Rates and Charges, (ii) the Captive Services and the Shopping
Services at the rates and for the charges (commensurate with the volumes to be
purchased by such Company Affiliate) to be negotiated by Sprint and the Company
Affiliate in good faith; provided that in the event the Company subsequently
--------
elects to purchase any such Captive or Shopping Service, the Company Affiliate
may elect to purchase the Services at the Rates and Charges and subject to the
Performance Guarantees negotiated by the Company.
ATTACHMENT BA
BILLING AND ACCOUNTING
This ATTACHMENT BA is annexed to that certain Services Agreement,
dated as of the 3rd day of February, 1997, between the Company and Sprint (the
"AGREEMENT"), and sets forth certain billing and accounting matters related to
the provision by Sprint of the Services to the Company. The information and
obligations set forth herein are deemed fully incorporated into the Agreement as
if set forth therein in their entirety. Reference is further made to SECTIONS
19.9 of the Agreement. Capitalized terms used without definition herein have
their respective meanings set forth in ATTACHMENT DE.
I. General Matters
---------------
Sprint shall satisfy the following timeliness, accuracy and
completeness requirements with respect to invoices delivered to the Company for
the Services provided under the Agreement:
A. TIMELINESS. Sprint shall account, and xxxx the Company, for not less than
(i) 97.0% of all usage no later than the first available monthly billing
cycle after the usage is recorded, (ii) 98.0% of all usage no later than
the second available monthly billing cycle after the usage is recorded and
(iii) 99.8% of all usage no later than the third available monthly billing
cycle after the usage is recorded. Sprint hereby waives all charges for any
usage not billed as set forth in the preceding sentence, unless (a) Sprint
can document in writing that the delayed billing was caused by the Company
or (b) the parties agree in writing to a longer time period.
B. ACCURACY. With respect to any monthly billing cycle, the accuracy of the
raw billing information supplied by Sprint to the Company shall not be less
than 99.0% unless (i) Sprint can document in writing that such raw billing
inaccuracy was caused by the Company or (b) the parties agree in writing to
a level of accuracy which differs from that set forth herein.
C. COMPLETENESS. Sprint shall xxxx the Company monthly for at least 99.0% of
all Service Elements with respect to the Services billed during the
relevant current monthly billing cycle, except when mutually agreed by the
parties.
III. Payment Method Requirements
---------------------------
A. COST CATEGORIES FOR GENERAL LEDGER ACCOUNT PURPOSES. Sprint shall, to the
extent possible, provide billing at the Sprint rate element level,
including, without limitation, the following cost categories for Service
Elements at the Company's request for general ledger account purposes.
1. Network Line/Access Cost (TABLE 9 of ATTACHMENT PS)
2. Originating Access (TABLE 1 of ATTACHMENT PS)
3. Termination Access (TABLE 1 of ATTACHMENT PS)
4. Originating and Terminating Switch
5. Transport (TABLES 2 AND 3 of ATTACHMENT PS)
6. Calling Card Surcharges (TABLE 4 of ATTACHMENT PS)
7. Directory Assistance Surcharges (TABLE 7 of ATTACHMENT PS)
8. Operator Assistance Surcharges (TABLE 8 of ATTACHMENT PS)
9. Toll Free Access
10. Other Categories in the Company's Discretion which Sprint is able to
provide without material cost or expense.
B. MANAGEMENT REPORTING. Sprint shall provide NDM feeds to the Company's
server and deliver any reports required to be delivered by Sprint pursuant
to ARTICLE 5 of the Agreement, each as set forth in ARTICLE 5 of the
Agreement for use by the Company in generating management reports and
performing billing analysis.
ATTACHMENT DE
DEFINITIONS
This ATTACHMENT DE is annexed to that certain Services Agreement,
dated as of the 3rd day of February, 1997, between the Company and Sprint (the
"AGREEMENT"), and sets forth certain definitions used in the Agreement and the
Attachments. The definitions set forth herein are deemed fully incorporated into
the Agreement and the Attachments as if set forth therein, respectively, in
their entirety. Reference is made to SECTION 19.9 of the Agreement.
"ACCESS COMPONENT A" shall mean the originating (i) carrier common
line charges, (ii) residual interconnection charges and (iii) local switching,
line intercept, signaling and other metered recurring charges actually incurred
by Sprint on behalf of the Company in connection with the provision of the
Services, in each case as adjusted by actual non-complete call factors (such
adjustment for non-complete call factors not to exceed twelve percent (12%) of
the cost elements set forth in CLAUSES (I) THROUGH (III) above); provided that
--------
Access Component A shall not include associated tandem transport or tandem
switching charges. Access Component A may only be purchased together with Access
Component B and Transport Component C.
"ACCESS COMPONENT B" shall mean the originating local transport costs
incurred from a direct end-office trunk or an access tandem configuration and,
for purposes of the Agreement, shall, in any event, equal four percent (4%) of
the rate for Access Component A. Access Component B may only be purchased
together with Access Component A and Transport Component C.
"ACCESS COMPONENT D" shall mean the terminating local transport costs
incurred from a direct end-office trunk or an access tandem configuration and,
for purposes of the Agreement, shall, in any event, equal four percent (4%) of
the rate for Access Component E. Access Component D may only be purchased
together with Transport Component C and Access Component E.
"ACCESS COMPONENT E" shall mean the terminating (i) carrier common
line charges, (ii) residual interconnection charges, (iii) local switching
charges, line intercept, signaling and other metered recurring charges actually
incurred by Sprint on behalf of the Company in connection with the provision of
the Services and (iv) database query charges in the case of toll free services:
provided that Access Component E shall not include associated tandem transport
--------
or tandem switched charges. Access Component E may only be purchased (i)
together with Access Component D and Transport Component C or (ii) in a Virtual
Bulk Transport configuration.
"ACCESS COMPONENTS" shall mean Access Component A, Access Component B,
Access Component D and Access Component E, as applicable.
"ACCESS SERVICES" shall have the meaning set forth in PARAGRAPH I of
ATTACHMENT PS.
"ACF" shall mean access coordination fee.
"ACT" shall mean the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, and as the same may be amended from time to
time.
"ADDITIONAL CORE SERVICES NOTICE" shall mean the notice in the form
set forth in EXHIBIT PS-II to ATTACHMENT PS.
"ADJUSTED INTERNATIONAL BENCHMARK" shall mean, with respect to any
foreign country, the actual net composite per MOU cost to Sprint of the
international traffic for such foreign country for any six (6) month period, and
shall equal, with respect to any foreign country, the quotient obtained by
dividing (i) Sprint's actual costs from International Transport Arrangements
for such foreign country during such six (6) month period by (ii) Sprint's total
volume of international traffic for such foreign country (based upon MOUs) for
such six (6) month period.
"AFFILIATE" shall have the meaning assigned to such term in the ACT;
provided that, for purposes of the Agreement only, SBCS and its Affiliates shall
--------
be deemed to be Affiliates of the Company.
"AFFILIATE CONTRACT" shall have the meaning set forth in the preamble
to ATTACHMENT AS.
"AGGREGATE PROVISIONING DELAY" shall have the meaning set forth in
PARAGRAPH IV.4.A.2 of ATTACHMENT PG.
"AGREEMENT" shall mean the Services Agreement, to which this
ATTACHMENT DE is attached together with each Attachment attached thereto, as the
same may be amended from time to time in accordance with its terms.
"ALTERNATE PROVIDER" shall mean any Domestic Alternate Provider or
Foreign Alternate Provider.
"ANI" shall mean Automatic Number Identification.
"ANNUAL PRE-XXXX CERTIFICATION CERTIFICATE" shall mean a written
certificate prepared by a nationally recognized independent firm expert in the
pre-xxxx certification process, mutually acceptable to Sprint and the Company,
which confirms that the pre-xxxx certification process referred to in the
Initial Pre-Xxxx Certification Certificate has been fully complied with, in all
material respects, or is otherwise in compliance, in all material respects, with
such modifications thereto as may have been adopted or implemented upon the
mutual agreement of each of Sprint and the Company.
"ATTACHMENT AS" shall mean ATTACHMENT AS, as attached to the Agreement
and incorporated therein, as modified from time to time as permitted or required
by the Agreement.
"ATTACHMENT BA" shall mean ATTACHMENT BA, as attached to the Agreement
and incorporated therein, as modified from time to time as permitted or required
by the Agreement.
"ATTACHMENT CC" shall mean ATTACHMENT CC, as attached to the Agreement
and incorporated therein, as modified from time to time as permitted or required
by the Agreement.
"ATTACHMENT DE" shall mean this ATTACHMENT DE, as attached to the
Agreement and incorporated therein, as modified from time to time as permitted
or required by the Agreement.
"ATTACHMENT MR" shall mean ATTACHMENT MR, as attached to the Agreement
and incorporated therein, as modified from time to time as permitted or required
by the Agreement.
"ATTACHMENT PG" shall mean ATTACHMENT PG, as attached to the Agreement
and incorporated therein, as modified from time to time as permitted or required
by the Agreement.
"ATTACHMENT PS" shall mean ATTACHMENT PS, as attached to the Agreement
and incorporated therein, as modified from time to time as permitted or required
by the Agreement.
"ATTACHMENTS" shall mean, collectively, ATTACHMENT AS, ATTACHMENT BA,
ATTACHMENT CC, ATTACHMENT DE, ATTACHMENT MR, ATTACHMENT PG and ATTACHMENT PS.
"AVERAGE SPEED OF ANSWER" shall have the meaning set forth in
PARAGRAPH IV.1.C.2 of ATTACHMENT PG.
"BULK TRANSPORT CONFIGURATION: shall have the meaning set forth in
SECTION 6.2(a)(iv) of the Agreement.
"BULK TRANSPORT SERVICES" shall have the meaning set forth in
PARAGRAPH 11.7 of ATTACHMENT PS.
"BUSY HOURS" shall have the meaning set forth in PARAGRAPH IV.1.A.1 of
ATTACHMENT PG.
"CALL SET-UP TIME" shall have the meaning set forth in PARAGRAPH
IV.1.B.2 of ATTACHMENT PG.
"CALLING CARD SERVICE CHARGE" shall have the meaning set forth in
TABLE 4 of ATTACHMENT PS.
"CALLING CARD SERVICES" shall have the meaning set forth in PARAGRAPH
II.4 of ATTACHMENT PS.
"CAPTIVE SERVICE" shall mean any telecommunications product, feature
or functionality which (i) relies upon any vertical platforms used in connection
with the provision of any Service, (ii) is an extension, enhancement or
modification to a Core Service or Captive Service (which the Company has elected
to obtain from Sprint) and (iii) the Company cannot reasonably obtain elsewhere
as a result of the network configuration established between the Company and
Sprint, including, without limitation, Clear 64 Channel (ISDN), VPN and Switched
56 Transport; provided that a Captive Service purchased by the Company in
accordance with SECTION 3.1(A) of the Agreement shall upon such purchase by the
Company thereafter be deemed a Core Service and cease to be considered a Captive
Service.
"CARRIER ORIGINATION CONFIGURATION" shall have the meaning set forth
in SECTION 6.2(A)(II) hereof.
"CARRIER TERMINATION CONFIGURATION" shall have the meaning set forth
in SECTION 6.2(A)(III) hereof.
"CARRIER TRANSPORT II DATE" shall mean the date on which Sprint
implements a Carrier Transport II System which is capable of (i) determining
actual access charges for each of Access Components A and E, (ii) calculating
charges for each of Access Components B and D, based upon corresponding Access
Components A and E and (iii) determining actual transport charges for each of
Transport Components C and F, in each case with respect to telecommunications
traffic attributable solely to the Company.
"CDDD" shall have the meaning set forth in PARAGRAPH IV.4 of
ATTACHMENT PG.
"CHANGE CONTROL" shall have the meaning set forth in the preamble to
ATTACHMENT CC.
"CHANGE CONTROL REQUEST" shall have the meaning set forth in PARAGRAPH
4(A) of ATTACHMENT CC.
"CHANGE CONTROL RESPONSE" shall have the meaning set forth in
PARAGRAPH 4(B) of ATTACHMENT CC.
"CIC" shall mean Carrier Identification Code.
"COC" shall mean central office connection.
"COMMERCIAL COMMENCEMENT DATE" shall mean the date on which any
unaffiliated, third party end-user of the Company's telecommunications services
originates the first wire-line, commercial long distance telecommunications
service within the Region.
"COMPANY" shall have the meaning set forth in the preamble to the
Agreement, and shall also include (i) any wholly owned subsidiary of the Company
(which shall not be deemed Affiliates for purposes of the Agreement) and (ii)
any successor and assigns of the foregoing.
"COMPANY CONFIDENTIAL INFORMATION" shall have the meaning set forth in
the definition of "CONFIDENTIAL INFORMATION".
"COMPANY LOCATION" shall have the meaning set forth in PARAGRAPH I.2
of ATTACHMENT PS.
"COMPANY MATERIAL BREACH" shall mean any breach by the Company of any
material provision of the Agreement.
"CONFIDENTIAL INFORMATION" shall mean all non-public information
concerning the business of the Company or of any third party doing business with
the Company (including all of the Company's customers) that Sprint may obtain
from any source in the course of providing the Services under the Agreement
("COMPANY CONFIDENTIAL INFORMATION") or concerning the business of Sprint and
any third party doing business with Sprint that the Company may obtain from any
source in the course of its use of the Services ("SPRINT CONFIDENTIAL
INFORMATION"). Such information shall include the terms of the Agreement (and
discussions, negotiations and proposals from one party to the other related
directly thereto), network designs, communications usage figures, pricing,
financial data, statistics, software code, the identity and configuration of
equipment networks, CPNI, research, development (including development, plans
and specifications for any product or service that is specifically designed or
modified at the Company's request or expense pursuant to ATTACHMENT CC or
otherwise), strategic and other business plans, and related information. All
such information disclosed prior to the execution of the Agreement and during
the Term shall also be considered Confidential Information. All CPNI shall be
Company Confidential Information, as shall all telecommunications network
configuration, design and usage information concerning the Company and any
customer that Sprint acquires by virtue of its provision of the Services to the
Company. "CONFIDENTIAL INFORMATION" shall not include information that: (a) is
already rightfully known by the receiving party at the time it is obtained by
said party, free from any obligation to keep such information confidential, (b)
is or becomes publicly known through no wrongful act of the receiving party or
(c) is rightfully received by the receiving party from a third party without
restriction and without breach of the Agreement. Information equivalent to that
described above that is independently developed by either party without use of
any Confidential Information of the other shall not be considered Confidential
Information for purposes of the Agreement.
"CONFIRMED DATE" shall have the meaning set forth in PARAGRAPH IV.4 of
ATTACHMENT PG.
"CORE SERVICES" shall mean (i) Domestic 1+ Carrier Termination
Services, Domestic 1+ Carrier Origination Services, Domestic 1+ Switchless
Resale Services, International Outbound Services, Calling Card Services,
Operator Services, Domestic Directory Assistance Services, Dedicated Access
Services, Bulk Transport Services, each as set forth in ATTACHMENT PS and (ii)
any Captive or Shopping Services which are purchased by the Company from Sprint
and added to EXHIBIT PS-II of ATTACHMENT PG, pursuant to SECTION 3.1(C)(A) of
the Agreement.
"CPA-POP" shall have the meaning set forth in PARAGRAPH I.2 of
ATTACHMENT PS.
"CPA-SWC" shall have the meaning set forth in PARAGRAPH I.2 of
ATTACHMENT PS.
"CPNI" shall mean Customer Proprietary Network Information, as such
term is defined in the Act and as that term is or may hereinafter be defined by
the FCC.
"DAMAGES" shall have the meaning set forth in SECTION 16.1 of the
Agreement.
"DEDICATED ACCESS SERVICES" shall have the meaning set forth in
PARAGRAPH I.2 of ATTACHMENT PS.
"DEDICATED ACCOUNT TEAM" shall have the meaning set forth in
PARAGRAPH I.I.A of ATTACHMENT PG.
"DEDICATED SERVICE METRIC" shall have the meaning set forth in
PARAGRAPH IV.2 of ATTACHMENT PG.
"DIRECT SERVICE AGREEMENT" shall mean any bilateral service
arrangement between the Company and a Foreign Country Carrier for International
Services in a particular foreign country.
"DIRECTORY ASSISTANCE SERVICES" shall have the meaning set forth in
PARAGRAPH II.6 of ATTACHMENT PS.
"DOCUMENTATION" shall mean those materials in Sprint's possession (or
reasonably available to Sprint but not to the Company) that are necessary for
the Company's use of the Services and the services software or that are normally
made available by Sprint to customers like the Company in the ordinary course of
its business (or by a third party carrier, where a service or software is
obtained by Sprint from another carrier).
"DOMESTIC" shall mean the fifty (50) states of the United States of
America and shall include Puerto Rico and the U.S. Virgin Islands.
"DOMESTIC ALTERNATE PROVIDER" shall mean any carrier which provides
local exchange services other than a LEC.
"DOMESTIC CALL SET-UP TIME" shall have the meaning set forth in
PARAGRAPH IV.1.B.2 of ATTACHMENT PG.
"DOMESTIC OPERATOR SERVICES" shall have the meaning set forth in
PARAGRAPH II.5.A of ATTACHMENT PS.
"DOMESTIC SHORTFALL" shall have the meaning set forth in SECTION
6.3(A) of the Agreement.
"DOMESTIC TOLL FREE SERVICES" shall have the meaning set forth in
PARAGRAPH II.3 of ATTACHMENT PS.
"DOMESTIC TRANSPORT SERVICES" shall have the meaning set forth in
PARAGRAPH II.1 of ATTACHMENT PS.
"DOMESTIC VOLUME COMMITMENT CHARGE" shall mean (A) the Domestic
Shortfall multiplied by (B) the average charge for Access Component D during the
-------------
applicable Measurement Period.
"DS-1 (OUTSIDE POPs)" shall have the meaning set forth in PARAGRAPH
IV.2.A.2 of ATTACHMENT PG.
"DS-1 (POP to POP)" shall have the meaning set forth in PARAGRAPH
IV.2.A.1 of ATTACHMENT PG.
"DS-3 (OUTSIDE POPs)" shall have the meaning set forth in PARAGRAPH
IV.2.A.4 of ATTACHMENT PG.
"DS-3 (POP TO POP)" shall have the meaning set forth in PARAGRAPH
IV.2.A.3 of ATTACHMENT PG.
"EARLY TERMINATION PAYMENT" shall mean an amount equal to Fifty Five
Percent (55%) of the amount by which * * * exceeds the total amount of actual
xxxxxxxx to the Company and its Affiliates (without regard to credits) from the
date of the Agreement through the date of termination; provided that, the * * *
--------
referred to herein shall be reduced to the extent of any reduction in the scope,
or the cancellation, of the Services, including, but not limited to,
disruptions, interruptions or cancellations in the Services referred to in
ARTICLE 17 of the Agreement.
"ECONOMIC VALUE ADDED" shall mean, with respect to the provision of
the Services by Sprint under the Agreement for the applicable Renewal Year, the
amount determined by subtracting (A) the sum of (i) invested capital minus
non-debt liabilities plus (ii) the cost of capital, each as consistently
----
applied, from (B) net operating profits after taxes.
"EFC" shall mean entrance facilities charge.
"END-TO-END GRADE OF SERVICE" shall have the meaning set forth in
PARAGRAPH IV.1.A.1 of ATTACHMENT PG.
"FCC" shall mean the Federal Communications Commission, and any
successor entity thereto responsible for enforcing or interpreting the Act.
"FOC" shall have the meaning set forth in PARAGRAPH IV.4 of ATTACHMENT
PG.
"FORCE MAJEURE EVENT" shall mean any unforeseeable event beyond the
control of the party claiming excusable delay or other failure to perform,
including any act of God, act of a public enemy, fires, floods, riots or the
enactment of any law or regulation of any governmental body of competent
jurisdiction; provided that, without limiting the provisions of SECTION 4.4 of
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the Agreement, a Force Majeure Event shall specifically not include any action
or inaction of any LEC or Domestic Alternate Provider, or any delay in the
performance of services for which a party has subcontracted or is otherwise
dependent on another party to the extent that any such delay is not the result
of any of the matters identified in the forepart of this definition.
"FOREIGN ALTERNATE PROVIDER" shall mean any Foreign Carrier or Foreign
Country Carrier.
"FOREIGN CARRIER" shall mean any foreign telecommunications service
provider other than a provider which is, as of the date of the applicable
International Service Arrangement with such Alternate Provider, predominantly
based in the Domestic United States.
"FOREIGN COUNTRY CARRIER" shall mean any Foreign Carrier that is in
authorized provider of international traffic for the applicable foreign country
(including Telmex) or other international carrier of record.
"GENERAL SERVICE METRIC" shall have the meaning set forth in PARAGRAPH
IV.3 of ATTACHMENT PG.
"HOLD TIME" shall have the meaning set forth in PARAGRAPH IV.1.C.1 of
ATTACHMENT PG.
"INITIAL PRE-XXXX CERTIFICATION CERTIFICATE" shall mean a written
certificate prepared by nationally recognized independent firm expert in the
pre-xxxx certification process, mutually acceptable to Sprint and the Company,
which certifies that the pre-xxxx certification process adopted and implemented
by Sprint complies, in all material respects, with the requirements for such
pre-xxxx certification process established by Coopers & Xxxxxxx or such other
mutually acceptable firm.
"INTELLECTUAL PROPERTY" shall mean any patentable idea, design,
concept, technique, invention, discovery or improvement, and any patent
application filed for, or
patents issuing on, such patentable idea, design, concept, technique, invention,
discovery or improvement, any information, bond, assembly and module final test
know-how, computer software, in any form, tangible or intangible, including, but
not limited to, formulas, patterns, compilations, devices, methods, techniques,
and processes, trade secrets, mask works, works of authorship and any
information not heretofore enumerated, whether or not patentable, copyrightable
or otherwise protectable under statute or common law.
"INTERCONNECTION AND PRODUCT REVIEW TEAM" shall have the meaning set
forth in SECTION 3.3 of the Agreement.
"INTERNATIONAL BENCHMARK" shall mean, with respect to any foreign
country, the actual net composite per MOU costs to Sprint of international
traffic to such foreign country for the six (6) month period ended June 30,
1996, and shall equal, with respect to any foreign country, the quotient
obtained by dividing (i) Sprint's actual costs from all International Transport
Arrangements for such foreign country for the six (6) month period ended June
30, 1996 by (ii) Sprint's total volume of international traffic for such foreign
country (based upon MOUs) for such six (6) month period.
"INTERNATIONAL CALL SET-UP TIME" shall have the meaning set forth in
PARAGRAPH IV.1.B.2 of ATTACHMENT PG.
"INTERNATIONAL OPERATOR SERVICES" shall have the meaning set forth in
PARAGRAPH II.5.B of ATTACHMENT PS.
"INTERNATIONAL SERVICE ARRANGEMENTS" shall mean any arrangement for
the transport or delivery of international voice and data communications between
the Domestic United States and any foreign country, including International
Transport Arrangements.
"INTERNATIONAL SHORTFALL" shall have the meaning set forth in SECTION
6.3(A) of the AGREEMENT.
"INTERNATIONAL TRANSPORT ARRANGEMENTS" shall mean any international
form of transport arrangement for international voice and data communications to
any foreign country, including, without limitation. Direct Service Agreements,
direct operating agreements with foreign telecommunications providers,
international simple resale, refile or any other transit.
"INTERNATIONAL TRANSPORT SERVICES" shall have the meaning set forth in
PARAGRAPH II.2 of ATTACHMENT PS.
"INTERNATIONAL VOLUME COMMITMENT CHARGE" shall mean (A) the
International Shortfall multiplied by (B) the average per MOU costs to Sprint of
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international traffic (i.e., Transport Component F) for the applicable
----
Measurement Period, weighted in accordance with the actual aggregate
distribution of traffic to particular foreign countries during such Measurement
Period.
"INTERRUPTION" shall mean (i) any time a Service or Service Element
becomes unusable to the end-user because of a failure or a material degradation
of a facility or component used to furnish such Service or Service Element, as
provided by Sprint or its subcontractors or (ii) any failure of any Service or
Service Element to meet the Performance Guarantees under the conditions set
forth in the applicable Table of ATTACHMENT PG. Interruptions shall not include
(a) failures caused by the equipment of either the Company or the Company's
end-users, (b) failures resulting from a Force Majeure Event or (c) failures
resulting from actual network usage exceeding forecasted volume by One Hundred
Twenty Five percent (125%) as set forth in SECTION 13.3 of the Agreement.
Interruption is specifically not limited to total loss or discontinuance of the
Service or Service Element. An Interruption begins when Sprint is notified or
becomes aware of the failure, whichever occurs first. An Interruption shall be
deemed to continue until the restored Service is accepted by the Company.
"INTERRUPTION CREDIT" shall mean the credits referenced in TABLE 2B of
ATTACHMENT PG.
"LEC" shall mean the dominant local exchange carrier for a particular
geographic area.
"LIEN CLAIM" shall mean any lien, restriction, encumbrance, charge,
security interest or equitable claim which may be maintained by any
subcontractor, materialman or laborer for services performed.
"MARKET ENTRY DATE" shall mean the date targeted, as set forth in
SECTION 4.1 of the Agreement, for the Company's entry into each State within the
Region in connection with the scheduled delivery of the Services.
"MARKET FORCES" shall mean any decline in (i) the Company's aggregate
market share for the applicable market or (ii) the aggregate volume of traffic
in the applicable market.
"MATERIAL DEGRADATION OF QUALITY" shall mean a material and adverse
degradation in the quality and reliability of any Service or Service Element (i)
which continues, substantially unabated, for a period of not less than ninety
(90) days, (ii) which has resulted in the Company receiving complaints or other
notices of dissatisfaction from any of its end-users with respect to such
Service or Service Element on not less than three (3) occasions during such
period and (iii) with respect to which Sprint has received notice on not less
than two (2) occasions of such material and adverse degradation and has not
undertaken diligent measures to cure such degradation.
"MEAN TIME TO REPAIR" shall have the meaning set forth in PARAGRAPH
IV.I.C.1 of ATTACHMENT PG.
"MEASUREMENT PERIOD" shall have the meaning set forth in SECTION
6.3(A) hereof
"MERGER" shall have the meaning set forth in PARAGRAPH I of ATTACHMENT
MR.
"MERGER AGREEMENT" shall have the meaning set forth in PARAGRAPH I of
ATTACHMENT MR.
"MOUS" shall mean minutes of use.
"NDM" shall mean a Network Data Mover Feed.
"NDM DATA" shall have the meaning set forth in SECTION 5.1 of the
Agreement.
"NETWORK OUTAGE" shall mean any reportable outage as defined, from
time to time, by the FCC, within the Region.
"NEW INTERNATIONAL PRICE" shall mean the price for any international
Service set forth in ATTACHMENT PS, as adjusted pursuant to SECTION 10.1(B) of
the Agreement.
"NO ACCESS" shall have the meaning set forth in PARAGRAPH IV.1.C.1 of
ATTACHMENT PG.
"NORTH AMERICAN SERVICE" shall mean any traffic originating or
terminating (i) in the Domestic United States and (ii) Mexico and Canada.
"NPA" shall mean Numbering Plan Area.
"NTF" shall have the meaning set forth in PARAGRAPH IV.1.B.1 of
ATTACHMENT PG.
"OLD INTERNATIONAL PRICE" shall mean the price for any international
Service set forth in ATTACHMENT PS as of the day next preceding the date on
which any adjustment thereto is required pursuant to SECTION 10.1(B) of the
Agreement.
"OPERATIONAL CONSOLIDATION EVENT" shall have the meaning set forth in
PARAGRAPH I.2 of ATTACHMENT MR.
"OPERATOR SERVICES" shall have the meaning set forth in PARAGRAPH II.5
of ATTACHMENT PS.
"OVERFLOW CONDITION" shall have the meaning set forth in SECTION 13.3
of the Agreement.
"OVERFLOW RATE" shall mean the actual Transport Component F charges
incurred by Sprint during an Overflow Condition.
"PERFORMANCE GUARANTEES" shall mean the standards set forth in
ATTACHMENT PG or EXHIBIT PS-II and EXHIBIT PS-III of ATTACHMENT PS, as
applicable, which may be modified as mutually agreed to incorporate any
published service guarantee or assurance program offered at any time during the
Term by Sprint to any other customer.
"PERMIT" shall have the meaning set forth in SECTION 14.1(H) hereof.
"PERSON" shall mean any individual, corporation, trust, partnership,
limited partnership, governmental agency or body, joint venture, limited
liability company, political subdivision or any other entity.
"POP" shall mean point of presence.
"POSITIVE EVA" shall mean an Economic Value Added which exceeds zero.
"PRICE CHANGE MODIFICATION NOTICE" shall mean the notice described in
the preamble to ATTACHMENT PS, the form of which is set forth in EXHIBIT PS-I
thereto.
"PRIME RATE" shall mean the rate of interest established by Citibank,
N.A. or such other bank as may be mutually agreed from time to time as the
"prime rate" of such bank, with each change in such rate to be effective for
purposes of the Agreement on the day on which such change is effective for such
bank's purposes.
"PROCEDURES MANUAL" shall have the meaning set forth in PARAGRAPH 1.3
of ATTACHMENT PG.
"PROVISIONING DELAY" shall have the meaning set forth in SECTION
IV.4.A.1 of the Agreement.
"PROVISIONING DELAY CREDITS" shall mean the credits referenced in
TABLE 4 of ATTACHMENT PG.
"PSPs" shall have the meaning set forth in PARAGRAPH III.4 of
ATTACHMENT PS.
"PSP COMPENSATION" shall have the meaning set forth in PARAGRAPH III.4
of ATTACHMENT PS.
"PURCHASED SHOPPING SERVICE" shall mean a Shopping Service that is
purchased by the Company in accordance with SECTION 3.1(C)(B) of the Agreement
and added to EXHIBIT PS-III to ATTACHMENT PS.
"PURCHASED SHOPPING SERVICE NOTICE" shall mean that notice in the form
set forth on EXHIBIT PS-III of ATTACHMENT PS.
"RATES AND CHARGES" shall mean the rates and charges for the Core
Services set forth in ATTACHMENT PS.
"RBOC" shall mean a Regional Xxxx Operating Company.
"RED ZONE" shall mean Sprint's failure, at any time, to satisfy fully
the PERFORMANCE GUARANTEES set forth under the caption "RED ZONE" on TABLES 1
THROUGH 3 of ATTACHMENT PG.
"REGION" shall mean the States of California and Nevada.
"RELIABILITY (POP TO POP)" shall have the meaning set forth in
PARAGRAPH IV.3.B. of ATTACHMENT PG.
"RENEWAL YEAR" shall have the meaning set forth in SECTION 2.2 of the
Agreement.
"REPORT CARD" shall mean the report card referred to in SECTION 5.3 of
the Agreement.
"REQUEST FOR PROPOSAL" shall mean the Request for Proposal dated April
18, 1996, as referenced in the recitals to the Agreement.
"REQUIRED APPROVAL" shall have the meaning set forth in SECTION 2.1 of
the Agreement.
"SBCS" shall mean Southwestern Xxxx Communications Services, Inc.
"SBCS AGREEMENT" shall have the meaning set forth in PARAGRAPH I of
ATTACHMENT MR.
"SENIOR EXECUTIVES" shall have the meaning set forth in SECTION
18.6(B) of the Agreement.
"SERVICE CHANGES" shall have the meaning set forth in PARAGRAPH 1 of
ATTACHMENT CC.
"SERVICE DEVELOPMENT" shall have the meaning set forth in SECTION
3.4(B) of the Agreement.
"SERVICE ELEMENT" shall mean a piece-part of a Service which can be
billed either separately or as part of the Service.
"SERVICES" shall mean (i) the Core Services, (ii) the additional Core
Services appended as EXHIBIT PS-II to ATTACHMENT PS and (iii) the Purchased
Shopping Services (as applicable) appended as EXHIBIT PS-III to ATTACHMENT PS.
"SHOPPING SERVICE" shall mean any voice or data service, feature,
function or product offered by Sprint or its Affiliates now or in the future
which the Company may purchase from any other telecommunications vendor and for
which Sprint has the right to counter-offer pursuant to Article 7 of the
Agreement, other than Core Services and Captive Services, including, without
limitation, Prepaid Card, Frame Relay, Sprint Express, Country Direct, OC3s,
International Private Line, Bulk Transport with SS7 Signaling, SDS, VPN for
facility based carriers and complementary calling card; provided that a service
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shall no longer be deemed a Shopping Service to the extent that it is deemed (i)
an additional Core Service and set forth on EXHIBIT PS-II to ATTACHMENT PS or
(ii) a Purchased Shopping Service and set forth on EXHIBIT PS-III to ATTACHMENT
PS.
"SMC" shall have the meaning set forth in PARAGRAPH I.5 of ATTACHMENT
PG.
"SME" shall have the meaning set forth in PARAGRAPH I.1.A of
ATTACHMENT PG.
"SPECIAL INDEPENDENT AUDIT" shall mean an audit of Sprint requested by
the Company pursuant to SECTION 2.2 or ARTICLE 9 of the Agreement which shall be
conducted by an independent party unaffiliated with the Company or Sprint, who
shall be mutually agreed upon by the Company and Sprint and who shall have
substantial experience in the telecommunications industry.
"SPRINT" shall have the meaning set forth in the preamble to the
Agreement, and shall include any successors and assigns thereto.
"SPRINT AGREEMENT" shall have the meaning set forth in SECTION 3.2(B)
of the Agreement.
"SPRINT CONFIDENTIAL INFORMATION" shall have the meaning set forth in
the definition of "CONFIDENTIAL INFORMATION".
"SPRINT MATERIAL BREACH" shall mean (i) a failure to meet any Market
Entry Date which continues for more than thirty (30) days, (ii) a Material
Degradation of Quality which has, or, in the good faith determination of the
Company, is reasonably likely to have, a material adverse effect on the
business, condition (financial or otherwise) and prospects of the Company or
(iii) any breach of any other material provision of the Agreement not otherwise
expressly addressed by CLAUSES (I) AND (II) above.
"SPRINT PROVIDED ACCESS" shall have the meaning set forth in PARAGRAPH
1.2 of ATTACHMENT PS.
"STRATEGIC PARTNER" shall mean any Foreign Carrier with whom the
Company or an Affiliate of the Company enters into an alliance or a joint
venture agreement which contemplates, as a material part thereof, a
telecommunications venture (other than or in addition to an International
Service Arrangement).
"SWC" shall have the meaning set forth in PARAGRAPH I.2 of ATTACHMENT
PS.
"SWITCHED ACCESS SERVICES" shall have the meaning set forth in
PARAGRAPH I.1 of ATTACHMENT PS.
"SWITCHED NETWORK AVAILABILITY" shall have the meaning set forth in
PARAGRAPH IV.1.A.2 of ATTACHMENT PG.
"SWITCHED SERVICE CREDITS" shall mean the credits referenced in TABLE
1B of ATTACHMENT PG.
"SWITCHED SERVICE METRIC" shall have the meaning set forth in
PARAGRAPH IV.1 of ATTACHMENT PG.
"SWITCHLESS CONFIGURATION" shall have the meaning set forth in SECTION
6.2(A)(I) hereof.
"TARIFF 8" shall mean Sprint's FCC Tariff 8, as applicable for the
term of the access loop.
"TARIFF TERM PLAN" shall mean, as applicable, the Sprint tariff term
plan referred to in Tariff 8.
"TELMEX" shall mean Telefonos de Mexico, S.A. DE C.V., a Mexican
corporation and its Affiliates.
"TERM" shall mean the term of the Agreement, as described in SECTION
2.1 of the Agreement and as extended by any Renewal Year or as earlier
terminated pursuant to the provisions of the Agreement.
"TERMINATION DATE" shall have the meaning set forth in PARAGRAPH 2 of
ATTACHMENT AS.
"TIGHT COUPLING" shall mean the interconnection of Sprint's network
and the Company's network in a manner which ensures the seamless hand-off of
voice and data messages across demarcation points.
"TIME TO FIX" shall have the meaning set forth in PARAGRAPH IV.1.C.1
of ATTACHMENT PG.
"TIME TO NOTIFY" shall have the meaning set forth in PARAGRAPH
IV.1.C.1. of ATTACHMENT PG.
"TRANSITION PERIOD" shall have the meaning set forth in SECTION
17.9(B).
"TRANSPORT COMPONENT C" shall mean the Domestic transport component of
long distance traffic, the charges for which are set forth on TABLE 2 of
ATTACHMENT PS, as applicable.
"TRANSPORT COMPONENT F" shall mean the international transport
component of long distance traffic, the charges for which are set forth on TABLE
3 to ATTACHMENT PS, as applicable, as adjusted pursuant to the terms of the
Agreement.
"TRANSPORT COMPONENTS" shall mean Transport Component C and Transport
Component F, as applicable.
"TRANSPORT SERVICES" shall have the meaning set forth in PARAGRAPH
II.2 of ATTACHMENT PS.
"TROUBLE TICKET" shall have the meaning set forth in PARAGRAPH
IV.1.B.1 of ATTACHMENT PG.
"TROUBLES PER DROP" shall have the meaning set forth in PARAGRAPH
IV.2.B. of ATTACHMENT PG.
"TROUBLES PER 10K" shall have the meaning set forth in PARAGRAPH
IV.1.B.1 of ATTACHMENT PG.
"VIRTUAL BULK TRANSPORT CONFIGURATION" shall have the meaning set
forth in SECTION 7.1(A) hereof.
ATTACHMENT PG
PERFORMANCE GUARANTEES
This ATTACHMENT PG is annexed to that certain Services Agreement,
dated as of the 3rd day of February 1997, between the Company and Sprint (the
"AGREEMENT"), and sets forth certain performance guarantees related to the
provision by Sprint of the Services to the Company. The information and
obligations set forth herein are deemed fully incorporated into the Agreement as
if set forth therein in their entirety. Reference is further made to SECTION
19.9 of the Agreement. Capitalized terms used without definition herein have
their respective meanings set forth in ATTACHMENT DE.
I. Sprint Support Services
-----------------------
1. DEDICATED ACCOUNT TEAM.
A. Sprint shall appoint, no later than thirty (30) days after execution
of the Agreement, a dedicated account team (the "DEDICATED ACCOUNT
TEAM") which shall include, but not be limited to, an Account Manager
and one or more subject matter experts (each, a "SME") capable of
addressing each of the following areas: customer sales, billing,
operator services, customer acquisition, product development and
network operations. All travel expenses for Sprint account support
personnel, including members of the Dedicated Account Team, shall be
borne by Sprint.
B. Sprint's Dedicated Account Team shall, either directly or through one
or more designees, (i) be authorized to initiate the process to seek
modification of (with the Company's prior consent) service order
intervals, maintenance response times, priorities for the restoration
of Interrupted Services and other performance standards by which the
Services shall be measured and managed, (ii) meet regularly with
designated Company representatives to review Sprint's performance
(including reviewing Sprint's performance statistics and reconciling
the Company's and Sprint's Interruption records), coordinate the
provision of the Services, discuss changes in the pricing of the
Services and discuss the Company's future service requirements, (iii)
ensure that Sprint personnel are available as needed at all reasonable
times and are adequate in number
and quality, (iv) ensure that Sprint personnel are provided the tools,
training and support necessary for their work, (v) supervise Sprint
personnel and ensure that they provide the Services in accordance with
the Performance Guarantees set forth herein and in the Agreement and
(vi) except as otherwise expressly provided in the Agreement or this
ATTACHMENT PG, serve as the principal interface between Sprint and the
Company with respect to all issues relating to the Services provided
hereunder.
3. PROCEDURES MANUAL. Within one hundred and twenty (120) days of the
Agreement. Sprint shall develop and maintain a procedures manual (including
relevant material from the Agreement and the Attachments) (the "PROCEDURES
MANUAL") that shall address the service ordering process, procedures to be
followed to request or make inquiries concerning restoration of Interrupted
Services, the form and medium by which Sprint will report the availability
of dedicated Service Elements for acceptance testing by the Company,
training, billing, optimization, network management, dispute resolution and
escalation and all similar administrative and logistical matters related to
the provision of and payment for the Services. The Company shall review and
approve a draft outline of the manual prior to its final publication. The
manual shall be specifically
adapted to the Company's needs and usage patterns and shall be updated
periodically as necessary. The manual shall identify those persons
authorized by the Company to place orders under the Agreement and
responsible for the management of the Agreement and the Services. Sprint
shall distribute copies of the manual and all updates or modifications
thereto to a reasonable number of the Company employees, which employees
shall be determined by the Company. The manual and all updates or
modifications thereto shall be maintained in confidence in accordance with
the terms of the Agreement and shall be subject to the Company's review and
prior written approval. The manual may be modified from time to time upon
the manual agreement of the parties, but in no event shall it amend, waive
or supersede any portion of the Agreement.
4. STAFFING; PERSONNEL ON CALL; ACCESS TO INFORMATION; TROUBLE REPORTING
A. Sprint shall provide a single telephone number for reporting all
levels of trouble.
B. Sprint shall provide names and telephone numbers for the appropriate
Sprint personnel with the requisite responsibility for providing the
Company the Services during normal business hours. Sprint shall
provide the pager number of such personnel for contacts made at times
other than normal business hours.
C. If requested, Sprint shall provide, at no additional cost. Sprint
personnel on the Company's premises. The Company shall provide, at its
expense, appropriate work space, telephone service, and similar
support systems, for use by Sprint's personnel on the Company's
premises.
D. Sprint shall provide personnel to participate in the creation and
implementation of any beta test plan for the Services purchased from
Sprint, at no additional cost.
E. Sprint and the Company shall exchange appropriate escalation lists.
5. SERVICE MANAGEMENT CENTER ESCALATION GUIDELINES. The Service Management
Center ("SMC") shall prioritize and work tickets based on their severity,
as mutually agreed upon and reflected in the Procedures Manual. Outside the
established escalation process, the Company reserves the right to begin
immediate escalation when situations warrant.
ATTACHMENT PS
PRICING OF SERVICES
This ATTACHMENT PS is annexed to that certain Services Agreement,
dated as of the 3rd of February, 1997, between the Company and Sprint (the
"AGREEMENT") and sets forth certain information regarding the Services and
related Rates and Charges to be offered to the Company. The information and
obligations set forth herein are deemed fully incorporated into the Agreement as
if set forth therein in their entirety. Reference is further made to SECTION
19.9 of the Agreement. Capitalized terms used without definition herein have
their respective meanings as set forth in ATTACHMENT DE.
Except as otherwise provided herein (e.g., the adjustment of charges
----
for Access Components and adjustments of charges for Transport Component F), the
Rates and Charges set forth in this ATTACHMENT PS shall be subject to change
upon the mutual written agreement of each of the Vice President - Operations of
the Company (or any other authorized officer designated to act on behalf of the
Company pursuant to this paragraph) and the Vice President and General Manager
RBOC Services - Wholesale Services Group of Sprint (or any other authorized
officer designated to act on behalf of Sprint pursuant to this paragraph). Any
such change shall be effected by delivery of the Price Change Modification
Notice annexed hereto as EXHIBIT PS-I.
I. Access Services to be Offered
-----------------------------
This PARAGRAPH I sets forth the manner in which Switched Access
Services and Dedicated Access Services (the "ACCESS SERVICES") shall be provided
by Sprint to the Company under the terms of the Agreement, subject to the Rates
and Charges set forth in PARAGRAPH V hereof and the Tables attached thereto.
Access Services shall be provided, at the Company's sole and absolute
discretion, by Sprint or the Company, as the case may be, as more fully set
forth below. DIAGRAM 1 illustrates the Access Components for Switched and
Dedicated Access. Sprint shall provide the following Access Services, at the
request of the Company:
I. SWITCHED ACCESS SERVICES. Subject to the provisions of SECTION 6.2(A) AND
SECTION 10.1(A) of the Agreement, Sprint shall provide, at the request of
the Company, switched origination services ("SWITCHED ORIGINATION
SERVICES") to the Company at the applicable Rates and Charges (Access
Components A and B) and switched termination services ("SWITCHED
TERMINATION SERVICES") to the Company at the applicable Rates and Charges
(Access Components D and E). TABLE I, incorporated for illustrative
purposes only, sets forth an example of Sprint's rate structure for
Switched Origination Services and Switched Termination Services (together,
the "SWITCHED ACCESS SERVICES").
2. DEDICATED ACCESS SERVICES. Sprint shall provide, at the request of the
Company, dedicated special access circuits ("DEDICATED ACCESS SERVICES")
connecting Sprint with any Domestic location of the Company or of any customer
of the Company (each, a "COMPANY LOCATION"). Dedicated Access Services shall
include, at the election of the Company, configurations whereby (i) Sprint
provides access between Sprint and the Company Location ("SPRINT PROVIDED
ACCESS"), (ii) the Company provides access to the serving wire center (the
"SWC") and Sprint provides access from the applicable Sprint POP to the SWC (the
"CPA-SWC") and (iii) the Company provides access into the Sprint POP
("CPA-POP"). The Rates and Charges for Dedicated Access Services are set forth
on TABLE 9.
II. Core Services to be Offered
---------------------------
This PARAGRAPH II sets forth the Core Services which Sprint shall
provide to the Company under the terms of the Agreement, subject to the Rates
and Charges set forth in PARAGRAPH V hereof and the Tables attached thereto.
1. DOMESTIC TRANSPORT SERVICES. Sprint shall provide full-duplex, bi-
directional, metered Domestic transport of baseband. Sprint circuit-
switched messages ("DOMESTIC TRANSPORT SERVICES") at the applicable Rates
and Charges set forth in TABLE 2 ("TRANSPORT COMPONENT C"). DIAGRAM 1
illustrates the provision of Sprint Domestic Transport Services. Billing
increments for Domestic Transport are set forth in TABLE 5. For purposes of
this Agreement, Domestic Transport Services shall be considered Core
Services to the extent that such Domestic Transport Services constitute a
necessary component of a Core Service otherwise listed in this PARAGRAPH
II.
2. INTERNAL TRANSPORT SERVICES. Sprint shall provide full-duplex,
unidirectional (Domestic originated and foreign terminated), metered
international transport of baseband Sprint gateway circuit-switched
messages ("INTERNATIONAL TRANSPORT SERVICES" and, together with Domestic
Transport, "TRANSPORT SERVICES") at the applicable Rates and Charges set
forth in TABLE 3 ("TRANSPORT COMPONENT F"), subject to SECTION 10.1(B) of
this Agreement. Transport Component F does not include charges for (i)
Access Services or (ii) Domestic Transport Services or Bulk Transport
Services, as applicable. DIAGRAM 1 illustrates the provision of Sprint
International Transport Services. Billing increments for International
Transport are set forth in TABLE 5.
3. DOMESTIC TOLL-FREE SERVICES. Sprint shall provide the Company with
applicable features and functions in connection with the provision of
domestic toll-free service ("DOMESTIC TOLL-FREE SERVICES"). The Company
shall pay Sprint the applicable service fees, surcharges and feature
charges for Domestic Toll-Free Services set froth in TABLE 6.
4. CALLING CARD SERVICES. Sprint shall provide the Company with those Core
Services which permit the Company to provide end-users with travel cards
which
enable such end-users to originate calls from the Domestic United States
(to be terminated both Domestically and internationally) using a BTN-DID
and a four-digit pin number authorization code (the "CALLING CARD
SERVICES"). TABLE 4 sets forth charges for Calling Card Services and shall
be in addition to applicable charges for International Transport Services.
Complementary calling cards shall be a Shopping Service until otherwise
agreed by Sprint and the Company. Billing increments for Calling Card
Services are set forth in TABLE 5.
5. OPERATOR SERVICES. Sprint shall provide the Company with Domestic Operator
Services and International Operator Services (the "OPERATOR SERVICES") at
the Rates and Charges set forth on TABLE 8, which charges shall be in
addition to applicable charges for Access Services and Transport Services,
as applicable.
A. Domestic Operator Services. Sprint shall provide those Core Services
--------------------------
pursuant to which any of the Company's end-users may obtain live and
automated operator assistance for station-to-station, person-to-
person, general assistance, problem assistance, busy line interrupt
and verification and Domestic Originated Directory Assistance
Services ("DOMESTIC OPERATOR SERVICES"). Such Domestic Operator
Services shall be accessed by 0++, 0+ or 0- dialing. End-users of
Domestic Operator Services shall be permitted to use collect, third
party, local exchange calling cards and commercial credit cards: to
the extent that the Company has established arrangements as
appropriate for payment. Sprint shall provide operator services
support, including multi-lingual capabilities for Cantonese, French,
German, Italian, Japanese, Mandarin, Polish, Russian, Spanish and
Tagalog, for all interstate, intrastate and Domestic-to-international
calls.
B. International Operator Services. Sprint shall provide a wholesale
-------------------------------
feature which connects Domestic callers with an international operator
in any of approximately two hundred thirty (230) countries, currently
configured for the Services (the "INTERNATIONAL OPERATOR SERVICES").
The following International Operator Services may be provided before
the caller and foreign operator are connected: international Directory
Originated Assistance Services (as set forth in PARAGRAPH 6 hereof),
international general assistance, foreign language assistance for call
completion and access to additional countries.
6. DIRECTORY ASSISTANCE SERVICES. Sprint shall provide those Core Services
originated in the Domestic United States pursuant to which (i) calls are
routed to an operator center supported by an electronic database, (ii)
callers can receive listed phone numbers and related information as allowed
by law and (iii) Sprint's line operator center can complete most calls at
the caller's request (collectively, DIRECTORY ASSISTANCE SERVICES"). TABLE
7 sets forth the charges for Directory Assistance Services originated in
the Domestic United States. Directory Assistance Services will be branded
by the LEC or Alternate Service Provider.
7. BULK TRANSPORT SERVICES. Sprint shall provide those Core Services pursuant
to which the Company may obtain point-to-point, dedicated, digital circuits
between Sprint's Domestic POPs which shall support data and voice
applications. Such digital access circuits shall provide line speeds of DS-
1 (1.544 Mbps) and DS-3 (45.736 Mbps) ("BULK TRANSPORT SERVICES"). As set
forth in PARAGRAPH 1.2 hereof, the associated access loops may be procured,
in the Company's discretion, by either Sprint or the Company. TABLE 10 sets
forth the Rates and Charges for Bulk Transport service.
III. Certain Other Matters
---------------------
1. SERVICE CHANGE RATE. Subject to the terms of ATTACHMENT CC and the
procedures described therein, the Company shall pay Sprint for all Service
Changes undertaken pursuant to SECTION 3.4(B) of the Agreement at the rate
of $81.50 per person hour, plus any directly related, reasonably incurred
travel expenses.
2. PIC PROCESSING FEE. Subject to SECTION 3.7 of the Agreement, the Company
shall pay Sprint $1.52 per ANI, and Sprint shall "pass-through" any
directly-related LEC charges actually incurred by Sprint in connection
therewith, plus five percent (5%) of such LEC charges, including "slamming"
charges.
3. BRANDING SERVICES. TABLE 11 sets forth the Rates and Charges for each
additional brand use to support the Company, as provided in SECTION 3.6(A)
of the Agreement.
4. PAYPHONE COMPENSATION. The parties acknowledge that Sprint, as a
facilities-based carrier, must compensate payphone service providers
("PSPS") for completed interstate and intrastate calls using the PSP's
payphone pursuant to FCC rules adopted in CC Docket No. 96-128 to implement
Section 276 of the act ("PSP COMPENSATION"). The Company shall reimburse
Sprint for all PSP Compensation actually paid by sprint to the Company's
PSPs. The method for such reimbursement shall be mutually agreed by the
parties.
IV. Support Systems
---------------
Sprint shall provide the following support systems, upon request and
as applicable to the services rendered, each as more fully detailed in
Sprint's Reseller Handbook, at no additional charge, and such other support
systems as Sprint may from time to time provide to any other wholesale customers
at no additional charge.
1. ANI BATCH ORDER PROCESSING
. Automated orders and confirmation process
. Error notification
. Processed via SprintMail
. Once per day for 1+ and FONCard
. Twice per day for toll free
. ANI loading and error resolution for branding purposes
. One ANI file
2. DEDICATED ORDER PROCESSING
. Support DAL. DS-1 and DS-3 access
. Inbound, outbound and private line service types
. Processed via SprintMail and/or paper
. Cycle times dependent upon LEC/Domestic Alternate Provider
3. RESELLER DESKTOP MANAGER
. Provides means to view customer information
. Support switched Services (1+, FONCard, toll free)
. Additional users and access points are extra charge
4. PIC ACTIVATION (333)
. Mechanized PIC
. LEC reject processing without customer contact
. Company responsible for LOA, PIC disputes, and third party
verification
. Cycle times dependent upon each LEC contact
. Current Company configurations do not require PIC Activation
. Implementation will require coordination with Sprint with a minimum of
ninety (90) days notice
5. TOLL FREE CARRIER COMMAND CENTER
. SMS administration for Sprint 800 numbers
. RESPORG functions for Sprint 800 numbers
6. FRAUD MONITORING FOR SPRINT FONCARD PLATFORM
. Deactivation of cards and other ABS services when fraud threshold is
exceeded
. Notification given to Company when card is deactivated
. Reinstate customers requested by Company
7. SERVICES MANAGEMENT CENTER (ATTACHMENT PG PARAGRAPH 4)
. Company single point of contact for all network trouble reporting
. Track resolution activity
. Coordinate maintenance activity
. Obtain trouble report status updates and closure information
. Escalation of resolution activities
. Company shall have Internet access to Sprint's on-line trouble
reporting system (Agreement (S)5)
8. PRIVATE LINE SERVICE CENTER FOR PRIVATE LINES PURCHASED FROM SPRINT
. Monitoring of domestic private lines
. Centrally install and maintain the entire private line network
. Technical assistance surveillance center notification of outages
9. WHOLESALE BILLING FOR SPRINT SERVICES USED BY COMPANY
. Wholesale invoicing on one or more cycles for the Company
. A minimum of one (1) invoice for wholesale services will be rendered
for each billing platform used to support the Services
. Xxxx summary reporting
10. NETWORK OPERATIONS CONTROL CENTER FOR SPRINT'S NETWORK
. Provide network management
. Interface with regional control centers to obtain geographical network
status
. National surveillance system
. Sprint to notify Company of any network events
11. BRANDING
. One brand for Company for Operator Services and Calling Card Services
when 800 access is used pursuant to SECTION 3.4(A) of the Agreement.
12. END-USER CUSTOMER CDR FEED
. One CDR feed per day for the Company
. One NDM-link for passing daily CDRs to Company
13. CIC ACTIVATION
. Reference is made to SECTION 3.4 of the Agreement
14. CLIENT/SERVER DATA DOWNLOADING CAPABILITY
. 1 NDM-link for Company
. Systems extract of Company data which can be uniquely identified
15. NETWORK MANAGEMENT OF SPRINT NETWORK
. Grade of service management (ATTACHMENT PG IV)
. LEC and Domestic Alternate Provider trouble reporting
. Disaster recovery and restoration (Agreement (S)4.3)
. Maintenance of LEC and Domestic Alternate Provider facilities
(Agreement (S)4.1)
. Backbone monitoring
. Escalation (ATTACHMENT PG I.5)
. SS7 signaling with switched voice products
. Fundamental network infrastructure improvement (e.g., SONET)
----
. Use of Sprint's entrance facilities for certified LEC and Domestic
Alternate Provider
16. DEDICATED ACCOUNT TEAM AND TECHNICAL SUPPORT
. Dedicated account team (ATTACHMENT PG I.1)
. Access to WSG customer service support
V. Prices for Services
-------------------
This PARAGRAPH V, and the Tables incorporated herein, sets forth the
Rates and Charges which Sprint shall provide to the Company for the Services and
references, where appropriate, certain Captive and Shopping Services.
1. CORE SERVICES. Subject to the terms and conditions of the Agreement, Sprint
and the Company agree that during the Term, Sprint shall be obligated to
provide the Core Services referenced in this ATTACHMENT PS and the Tables
attached hereto.
2. ADDITIONAL CORE SERVICES. Sprint and the Company hereby agree that, subject
to the terms and conditions of the Agreement, Sprint's obligation to
provide, and the Company's obligation to purchase, any Captive Services or
Shopping Services (pursuant to SECTION 3.1(A) of the Agreement), shall be
subject to the mutual written agreement of authorized officers of each of
the Company and Sprint in the manner set forth on EXHIBIT PS-II, which
authorization shall be effective on the date such EXHIBIT PS-II is appended
to this ATTACHMENT PS.
3. PURCHASED SHOPPING SERVICES. No reference herein to a Shopping Service
shall be deemed to obligate Sprint to provide such Shopping Service to the
Company, or to obligate the Company to purchase such Shopping Service from
Sprint, until such time as the Company and Spring expressly agree in
writing that such Shopping Service shall be designated an additional Core
Service or a Purchased Shopping Service, pursuant to SECTION 3.1(C) of the
Agreement. Upon the mutual written agreement of authorized officers of each
of the Company and Sprint in the manner set forth on EXHIBIT PS-III, which
authorization shall be effective on the
date such EXHIBIT PS-III is appended to this ATTACHMENT PS, such service shall
be deemed a Purchased Shopping Service for purposes of the Agreement.
DIAGRAM 1
ACCESS SERVICES AND TRANSPORT SERVICES
[CHART OF ACCESS SERVICES AND TRANSPORT SERVICES APPEARS HERE]
A - Access Component A EO - End Office
B - Access Component B TT - Trunk Tandem
C - Transport Component C POP - Point of Presence
D - Access Component D
E - Access Component E
F - Transport Component F
Interstate
DOMESTIC
PAC XXXX RESET RATE: INTERSTATE
***
Intrastate
DOMESTIC
PAC XXXX RESET RATE: INTRASTATE
***
TABLE 1
***
TABLE 2
DOMESTIC TRANSPORT SERVICES
(TRANSPORT COMPONENT C)
Peak Off-Peak
---- --------
Transport Component C $*** $***
Notes to Table 2
----------------
All charges are presented on a per MOU basis. Charges for Domestic Transport
Services do not include charges for applicable Access Services. Transport
Component C is applicable to Transport Services within the Domestic United
States. The applicable time periods for peak Domestic Transport Services shall
be 8:00 a.m. to, but not including 5:00 p.m., Monday though Friday. The
applicable time periods for off-peak Domestic Transport Services shall be (i)
5:00 p.m. to, but not including, 8:00 a.m., Monday though Friday (subject to
CLAUSE (II) below) and (ii) 12:01 a.m. Saturday to, but not including 8:00 a.m.
Monday.
TABLE 3
***
TABLE 4
CALLING CARD SERVICES
Sprint shall provide an automated calling card platform to process
Domestic-to-Domestic and Domestic-to-international calls under the Company's
private labeled (branded, except as provided herein) calling card. Prior to the
Commercial Commencement Date (i) the Company shall pay Sprint $*** per MOU for
Domestic Calling Card Services using Sprint's platform (the "CALLING CARD
SERVICE CHARGE") which charge includes applicable charges for Access Services
and Domestic Transport Services and (ii) charges for Access Services included in
the Calling Card Service Charge will be based on Sprint's nationally weighted
average charges for applicable Access Services. After the Commercial
Commencement Date, the Calling Card Service Charge will be adjusted based on
actual geographic-specific charges for Access Services. As soon as practical
after commencement of the Agreement, Sprint will segregate the charges for
Access Services from the Calling Card Service Charge in order that such charges
for Access Services can be periodically adjusted to reflect actual charges for
Access Services. The Calling Card Service Charges for FONcard direct dial
services are set forth in this TABLE 4 on a per call basis. Such Calling Card
Service Charges do not include charges for applicable International Transport
Services.
To
--
From: U.S. Mainland Alaska Hawaii International
---- ------------- ------ ------ -------------
U.S. Mainland $*** $*** $*** $***
Alaska $*** $*** $*** $***
Hawaii $*** $*** $*** $***
International N/A N/A N/A N/A
Operator-Assisted Station-to-Station $***
Operator-Assisted Person-to-Person $***
Director Assistance $***
Notes to Table 4
----------------
The Calling Card Service Charge for interstate FONcard direct dial services
including database query charges.
TABLE 5
***
TABLE 6
DOMESTIC TOLL-FREE SERVICES
(SERVICE FEES, SURCHARGES AND FEATURES CHARGES)
1. 800 DATABASE QUERY CHARGES
Interstate $*** per call
Intrastate $*** per call
2. CUSTOMER ACCOUNT FEE
Switched Access Switchless Resale $*** per month
3. INBOUND DIRECTORY ASSISTANCE LISTING CHARGE
Charge Per Inbound Number "Pass-Through" of charges
(currently $*** per month)
4. NONCOMPLETE CALL SURCHARGE. In any month that the Company exceeds the
Maximum Noncomplete 800 Call Percentage for dedicated 800 and/or switched
800 traffic as stated below, the Company shall pay Sprint a surcharge equal
to the amount stated below for each Noncomplete 800 call in excess of the
Maximum Noncomplete 800 Call Percentage. This surcharge shall be calculated
for Resale Direct Toll Free Service and Resale Direct Toll free Extension
Service.
Dedicated and Switched Per
Toll-Free Maximum Noncomplete Call
Usage Type (Rate Element) 800 Call Percentage Surcharge
------------------------- ------------------- ---------
Intrastate/Interstate 15% $***
5. INBOUND FEATURES. Sprint shall provide the following inbound Domestic
features as set forth below:
Canadian (Toll-Free) Coverage $*** per month per toll-free number
$*** installation (waived)
Toll-Free Number Charge $*** per month per toll-free number
$*** installation (waived)
Uniform Call Distribution $*** per month per service group
$*** installation per service group
Dialed Number Identification $*** per month per service group
System $*** installation per service group
$*** per month per service group (waived)
TABLE 7
DIRECTORY ASSISTANCE SERVICES
(DOMESTIC ORIGINATED)
Switched Access Dedicated Access
--------------- ----------------
Interstate $*** $***
Intrastate $*** $***
Canada $*** $***
Caribbean $*** $***
International (all other) $*** $***
Notes to Table 7
----------------
1. All charges are applied per call and includes charges for Access Services
and Transport Services.
2. International Directory Assistance Service charges include Domestic-to-
international service only.
TABLE 8
OPERATOR SERVICES
(DOMESTIC AND INTERNATIONAL)
A. LIVE OPERATOR
Agent Work Time $*** per work second
B. AUTOMATED
LEC Calling Card $*** per attempt
Operator $*** per attempt
C. PROCESSING
Call Validation $*** per query
Call Rating $*** per message
Outclearing $*** per message
D. MULTI-LINGUAL SUPPORT
Sprint shall provide multi-lingual support at no additional cost to the
Company in languages referenced in PARAGRAPH II.5.A of ATTACHMENT PS.
E. CALL AND XXXX TYPES SUPPORTED
(1) CALL TYPES SUPPORTED (0++, 0+ AND 0-)
Station-to-Station
Person-to-Person
Problem Assistance
General Assistance
Busy Line Interrupt and Verification
Directory Assistance
(2) XXXX TYPES SUPPORTED
Reseller FONcard
LEC Calling Card
Collect
Third Party
Sent Paid
TABLE 8
OPERATOR SERVICES
(DOMESTIC AND INTERNATIONAL)
F. APPLICABLE CHARGES, BY CALL TYPE
--------------------------------------------------------------------------------
CALL TYPE COMPLETED CALLS UNBILLABLE ATTEMPTS
--------------------------------------------------------------------------------
0++ Mechanized Calling Card Mechanized Calling Card
STATION-TO-STATION Validation Validation
LEC CALLING CARD Call Rating
Outclearing
LEC Billing (pass through)
Network Facilities
--------------------------------------------------------------------------------
0+ Agent Work Time Agent Work Time
PERSON-TO-PERSON Validation Validation
LEC CALLING CARD Call Rating
Outclearing
LEC Billing (pass through)
Network Facilities
--------------------------------------------------------------------------------
0+ Automated Operator Automated Operator
STATION-TO-STATION Validation Validation
LEC CALLING CARD Call Rating
Outclearing
LEC Billing (pass through)
Network Facilities
--------------------------------------------------------------------------------
0- Agent Work Time Agent Work Time
STATION-TO-STATION Validation Validation
LEC CALLING CARD Call Rating
Outclearing
LEC Billing (pass through)
Network Facilities
--------------------------------------------------------------------------------
0- Agent Work Time Agent Work Time
PERSON-TO-PERSON Validation Validation
LEC CALLING CARD Call Rating
Outclearing
LEC Billing (pass through)
Network Facilities
--------------------------------------------------------------------------------
0- Agent Work Time Agent Work Time
STATION-TO-STATION Validation Validation
COLLECT Call Rating
Outclearing
LEC Billing (pass through)
Network Facilities
--------------------------------------------------------------------------------
TABLE 8
OPERATOR SERVICES
(DOMESTIC AND INTERNATIONAL)
--------------------------------------------------------------------------------
0- Agent Work Time Agent Work Time
DIRECTORY ASSISTANCE Validation Validation
LEC CALLING CARD Call Rating
Outclearing
LEC Billing (pass through)
Network Facilities
Directory Assistance
--------------------------------------------------------------------------------
0- Agent Work Time Agent Work Time
PROBLEM ASSIST
GENERAL ASSIST
--------------------------------------------------------------------------------
0- Agent Work Time Agent Work Time
BUSY LINE INTERRUPT AND Validation Validation
VERIFICATION Call Rating
LEC CALLING CARD Outclearing
LEC Billing (pass through)
Network Facilities
--------------------------------------------------------------------------------
TABLE 9
DEDICATED ACCESS SERVICES
T-1 CIRCUIT ACCESS CHARGES
(MONTHLY) SPA CPA-SWC CPA-POP
--------------------------------------------------------------------------------
COC $*** $*** $***
ACF waived N/A N/A
EFC N/A $*** N/A
Local Access Loop ICB per Tariff 8 N/A N/A
Installation waived waived waived
Notes to Table 9
----------------
1. Minimum Monthly Usage is measured per port and is One Hundred Dollars
($***) per port.
2. Monthly recurring and non-recurring charges for the associated access loops
shall be as set forth in Tariff 8 pursuant to SECTION 8.1(B) of the
Agreement.
TABLE 10
BULK TRANSPORT SERVICES
DS-1 CIRCUIT ACCESS CHARGES
(MONTHLY) SPA CPA-SWC CPA-POP
--------------------------------------------------------------------------------
COC $*** $*** $***
ACF waived N/A N/A
EFC N/A $*** N/A
Local Access Loop ICB per Tariff 8 N/A N/A
Installation waived waived waived
MILEAGE RATE
Miles 0-000 000+
Minimum Monthly Charge $*** $***
DSO Rate/Mile/Month $*** $***
DS-3 CIRCUIT ACCESS CHARGES
(MONTHLY) SPA CPA-SWC CPA-POP
--------------------------------------------------------------------------------
COC $*** $*** $***
ACF N/A N/A N/A
EFC N/A ICB N/A
Local Access Loop ICB N/A N/A
Installation waived waived waived
MILEAGE RATE
Minimum Monthly Charge $***
DSO rate/Mile/Month $***
Notes to Table 10
-----------------
1. The minimum term for DS-1s and DS-3s shall be one (1) year.
2. To the extent that Sprint provides the associated DS-1 access loops, the
rates for such access loops shall be set forth in Tariff 8 pursuant to
SECTION 8.1(B) of the Agreement.
TABLE 11
BRANDING SERVICES
-----------------------------------------------------------------------------------------------------------------
RESELLER BRANDED GENERIC BRANDED
------------------------------------------------------------------------------------------------------------------
TYPE OF SOLUTION OPERATOR SERVICES CALLING CARD OPERATOR SERVICES CALLING CARD
------------------------------------------------------------------------------------------------------------------
ANI Initial $*** Initial $*** Initial $*** first. Initial $***
Monthly Monthly Initial $*** thereafter Monthly
Maintenance $*** Maintenance $*** Monthly Maintenance $*** Maintenance $***
------------------------------------------------------------------------------------------------------------------
CIP Solution with Initial $*** Initial $*** Initial $*** first. $*** first.
Reseller CIC Monthly Monthly Initial $*** thereafter $*** thereafter
Maintenance $*** Maintenance $*** Monthly Maintenance $*** Monthly
Maintenance $***
------------------------------------------------------------------------------------------------------------------
Notes to Table 11
-----------------
1. CIC activation charges are not included.
2. If the same brand can be used for both Operator Services and Calling Card
Services, only one OPART charge applies because only one OPART is needed to
support both Services.
3. The first reseller has an additional $*** charge because of the OPART
required. All subsequent resellers can use the same OPART as the first
reseller and shall not be charged for an OPART.
EXHIBIT PS-I
PRICE CHANGE MODIFICATION NOTICE
This Price Change Modification Notice confirms that the following
rates and charges for the Services described are amended as of the date set
forth below:
1. Description of Service and Product:
2. Price Change
(a) Old Rates:
(b) New Rates:
3. Effective Date of New Rates:
Each of the undersigned confirms the information set forth herein and
that each such person has the requisite authority under the Agreement to effect
the modifications set forth herein.
SPRINT COMMUNICATIONS COMPANY, L.P.
By: _________________________________________
Name:
Title: Vice President and General Manager
RBOC Services - Wholesale Services
Group
PACIFIC XXXX COMMUNICATIONS
By: _________________________________________
Name:
Title: Vice President - Operations
EXHIBIT PS-II
ADDITIONAL CORE SERVICES NOTICE
This additional Core Services Notice confirms that the following
service has been incorporated by the Company and Sprint as a Core Service as of
the date set forth below:
1. Description of Service and Product:
2. Rate and Changes:
3. Performance Guarantees:
Each of the undersigned confirms the information set forth herein and
that each person has the requisite authority under the Agreement to effect the
modifications set forth herein.
SPRINT COMMUNICATIONS COMPANY, L.P.
By: ______________________________
Name:
Title: Vice President and General Manager
RBOC Services - Wholesale Services
Group
PACIFIC XXXX COMMUNICATIONS
By: _______________________________
Name:
Title: Vice President - Operations
EXHIBIT PS-III
PURCHASED SHOPPING SERVICE NOTICE
This Purchased Shopping Service Notice confirms that the following
service has been incorporated by the Company and Sprint as a Purchased Shopping
Service as of the date set forth below:
1. Description of Service and Product:
2. Exclusivity Terms:
3. Rates and Charges:
4. Performance Guarantees:
5. Modifications to Terms of the Agreement:
Each of the undersigned confirms the information set forth herein and
that each such person has the requisite authority under the Agreement to effect
the modifications set forth herein.
SPRINT COMMUNICATIONS COMPANY, L.P.
BY: ___________________________________
Name:
Title: Vice President and General Manager
RBOC Service - Wholesale Services
Group
PACIFIC XXXX COMMUNICATIONS
By: ___________________________________
Name:
Title: Vice President - Operations
