RESALE AGREEMENT
BETWEEN
GTE SOUTHWEST INCORPORATED
AND
VALU-LINE LONG DISTANCE
TABLE OF CONTENTS
ARTICLE I
SCOPE AND INTENT OF AGREEMENT ...................................... I-1
ARTICLE II
DEFINITIONS ........................................................ II-1
1. General Definitions ................................................ II-1
1.1 "Act" ........................................................ II-1
1.2 "Applicable Law" ............................................. II-1
1.3 "Bona Fide Request (BFR)" .................................... II-1
1.4 "Business Day" ............................................... II-1
1.5 "Centralized Message Distribution System" (CMDS) ............. II-1
1.6 "Commission" ................................................. II-1
1.7 "Competitive Local Exchange Carrier" (CLEC) .................. II-1
1.8 "compliance" ................................................. II-1
1.9 "Customer" ................................................... II-1
1.10 "Customer Usage Data" ........................................ II-1
1.11 "EMR" ........................................................ II-1
1.12 "E-911 Service" .............................................. II-2
1.13 "Exchange Service" ........................................... II-2
1.14 "FCC" ........................................................ II-2
1.15 generator .................................................... II-2
1.16 "GTOC" ....................................................... II-2
1.17 "Guide" ...................................................... II-2
1.18 hazardous chemical ........................................... II-2
1.19 hazardous waste .............................................. II-2
1.20 imminent danger .............................................. II-2
1.21 "Incumbent Local Exchange Carrier" (ILEC) .................... II-2
1.22 "Interim Number Portability (INP)" ........................... II-2
1.23 "IXC" or "Interexchange Carrier" ............................. II-2
1.24 "Line Information Data Base (LIBD)"........................... II-3
1.25 "Local Exchange Carrier" or "LEC" ............................ II-3
1.26 "Local Number Portability (LNP)" ............................. II-3
1.27 "Local Traffic" .............................................. II-3
1.28 "NANP" ....................................................... II-3
1.29 "Numbering Plan Area" or "NPA" ............................... II-3
1.30 "NXX", "NXX Code", "Central Office Code" or "CO Code" ........ II-3
1.31 "911 Service" ................................................ II-3
1.32 owner and operator ........................................... II-3
1.33 "Provider" ................................................... II-3
1.34 spill or release ............................................. II-3
1.35 "Subsidiary" ................................................. II-4
1.36 "Telecommunications Services" ................................ II-4
1.37 third party contamination .................................... II-4
1.38 Undefined Terms .............................................. II-4
1.39 "Vertical Features" (Including "CLASS Features") ............. II-4
ARTICLE III
GENERAL PROVISIONS ................................................. III-1
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1. Scope of General Provisions ....................................... III-1
2. Term and Termination
2.1 Term ........................................................ III-1
2.2 Post-Termination Arrangements ............................... III-1
2.3 Termination Upon Default .................................... III-1
2.4 Termination Upon Sale ....................................... III-I
2.5 Liability Upon Termination .................................. III-1
3. Amendments ........................................................ III-2
4. Assignment ........................................................ III-2
5. Authority ......................................................... III-2
6. Responsibility for Payment ........................................ III-2
7. Billing and Payment ............................................... III-2
7.1 Dispute ..................................................... III-2
7.2 Late Payment Charge ......................................... III-2
7.3 Due Date .................................................... III-2
7.4 Audits ...................................................... III-2
8. Binding Effect .................................................... III-2
9. Compliance with Laws and Regulations .............................. III-3
10. Confidential Information .......................................... III-3
10.1 Identification .............................................. III-3
10.2 Handling .................................................... III-3
10.3 Exceptions .................................................. III-3
10.4 Survival .................................................... III-4
11. Consent ........................................................... III-4
12. Cooperation on Fraud Minimization ................................. III-4
13. Dispute Resolution ................................................ III-4
13.1 Alternative to Litigation ................................... III-4
13.2 Negotiations ............................................... III-4
13.3 Arbitration ................................................. III-4
13.4 Expedited Arbitration Procedures ............................ III-5
13.5 Costs ....................................................... III-5
13.6 Continuous Service .......................................... III-5
14. Entire Agreement .................................................. III-5
15. Expenses .......................................................... III-5
16. Force Majeure ..................................................... III-5
17. Good Faith Performance ............................................ III-5
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18. Governing Law ..................................................... III-6
19. GTE Standard Practices ............................................ III-6
20. Headings .......................................................... III-6
21. Independent Contractor Relationship ............................... III-6
22. Law Enforcement Interface ......................................... III-6
23. Liability and Indemnity ........................................... III-6
23.1 Indemnification ............................................. III-6
23.2 End User and Content-Related Claims ......................... III-6
23.3 DISCLAIMER .................................................. III-7
23.4 Limitation of Liability ..................................... III-7
23.5 Intellectual Property ....................................... III-7
24. Multiple Counterparts ............................................. III-7
25. No Offer .......................................................... III-7
26. No Third Party Beneficiaries ...................................... III-7
27. Notices ........................................................... III-7
28. Protection ........................................................ III-8
28.1 Impairment of Service ....................................... III-8
28.2 Resolution .................................................. III-8
29. Publicity ......................................................... III-8
30. Regulatory Agency Control ......................................... III-8
31. Changes in Legal Requirements ..................................... III-8
32. Effective Date .................................................... III-9
33. Regulatory Matters ................................................ III-9
34. Rule of Construction .............................................. III-9
35. Section References ................................................ III-9
36. Service Standards ................................................. III-9
36.1 .............................................................. III-9
36.2 .............................................................. III-9
36.3 .............................................................. III-9
36.4 .............................................................. III-9
37. Severability ...................................................... III-9
38. Subcontractors .................................................... III-9
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39. Subsequent Law ..................................................... III-9
40. Taxes .............................................................. III-10
41. Trademarks and Trade Names ......................................... III-10
42. Waiver ............................................................. III-10
43. Amendment of Certain Rates ......................................... III-10
ARTICLE IV
GENERAL RULES GOVERNING RESOLD SERVICES ........................... IV-1
1. General ........................................................... IV-1
2. Liability of GTE .................................................. IV-1
2.1 Inapplicability of Tariff Liability ......................... IV-1
2.2 Valu-Line Tariffs or Contracts .............................. IV-1
2.3 No Liability for Errors ..................................... IV-1
3. Unauthorized Changes .............................................. IV-1
3.1 Procedures .................................................. IV-1
3.2 Option to Restrict Changes Without Evidence of
Authorization ............................................... IV-2
4. Impact of Payment of Charges on Service ........................... IV-2
5. Unlawful Use of Service ........................................... IV-2
6. Timing of Messages ................................................ IV-3
7. Procedures For Preordering, Ordering, Provisioning, Etc. .......... IV-3
8. Customer Contacts ................................................. IV-3
ARTICLE V
RESALE OF SERVICES ................................................ V-I
1. General ........................................................... V-I
2. Terms and Conditions .............................................. V-I
2.1 Quality and Performance ..................................... V-I
2.2 Restrictions on Resale ...................................... V-I
2.3 Restrictions on Discount of Retail Services ................. V-I
2.4 Resale to Other Carriers .................................... V-2
3. Ordering and Billing .............................................. V-2
3.1 Local Service Request ....................................... V-2
3.2 Certificate of Operating Authority .......................... V-2
3.3 Letter of Authorization ..................................... V-2
3.4 Directory Assistance Listings ............................... V-2
3.5 Nonrecurring Charges ........................................ V-2
3.6 Transfers Between Valu-Line and Another Reseller of
GTE Services ................................................ V-2
3.7 Local Calling Detail ........................................ V-2
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3.8 Procedures .................................................... V-2
3.9 LIDB .......................................................... V-2
3.10 "OLN" ......................................................... V-2
4. Maintenance ......................................................... V-3
4.1 Maintenance, Testing and Repair ............................... V-3
4.2 Specifics and Procedures for Maintenance ...................... V-3
5. Services Available for Resale ....................................... V-3
5.1 Description of Local Exchange Services Available for Resale ... V-3
5.2 List of Services Available for Resale ......................... V-3
5.3 Rates ......................................................... V-3
5.4 Grandfathered Services ........................................ V-4
5.5 Access ........................................................ V-4
5.6 Operator Services (OS) and Directory Assistance (DA) .......... V-4
ARTICLE VI
ADDITIONAL SERVICES AND COORDINATED SERVICE ARRANGEMENTS ............ VI-1
1. Bona Fide Request Process ........................................... VI-1
1.1 Intent ........................................................ VI-1
1.2 Process ....................................................... VI-1
2. Transfer of Service Announcements ................................... VI-1
3. Misdirected Calls ................................................... VI-1
3.1 ............................................................... VI-2
3.2 ............................................................... VI-2
4. 911/E911 Arrangements ............................................... VI-2
4.1 Description of Service ........................................ VI-2
4.2 Cooperation and Level of Performance .......................... VI-2
4.3 Updates to MSAG ............................................... VI-2
4.4 Updates to Database ........................................... VI-2
4.5 Compensation .................................................. VI-2
4.6 Liability ..................................................... VI-2
5. Information Services Traffic ........................................ VI-2
5.1 Blocking ...................................................... VI-2
6. Directory Assistance Listings Information ........................... VI-3
6.1 ............................................................... VI-3
6.2 ............................................................... VI-3
6.3 ............................................................... VI-3
7. Directory Listings and Directory Distribution ....................... VI-3
8. Busy Line Verification and Busy Line Verification Interrupt ......... VI-3
9. SAG ............................................................... VI-4
10. Dialing Format Changes .............................................. VI-4
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11. Operational Support Systems (OSS) ................................... VI-4
APPENDIX A
SERVICES AVAILABLE FOR RESALE ....................................... A-I
APPENDIX B
SERVICE ORDERING, PROVISIONING, BILLING AND MAINTENANCE ............. B-I
APPENDIX 43A ............................................................. C-I
APPENDIX 43B ............................................................. D-l
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This Resale Agreement (the "Agreement"), is made effective as of _______, 199__,
by and between GTE Southwest Incorporated, with its address for purposes of this
Agreement at 000 Xxxxxx Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000 ("GTE"), and Valu-Line
Long Distance, in its capacity as a certified provider of local dial-tone
service ("Valu-Line"), with its address for this Agreement at Attention: Xxxxxxx
X. Xxxxxx, Xx., 0000 X. Xxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxx, Xxxxx 00000
(GTE and Valu-Line being referred to collectively as the "Parties" and
individually as a "Party"). This Agreement covers services in the state of Texas
only (the "State").
WHEREAS, Section 251 of the Telecommunications Act of 1996 (the "Act") imposes
specific obligations on LECs with respect to the interconnection of their
networks, resale of their telecommunications services, access to their poles,
ducts, conduits and rights-of-way and, in certain cases, the offering of certain
unbundled network elements and physical collocation of equipment in LEC
premises;
WHEREAS, GTE is entering, under protest, into certain aspects of this Agreement
that incorporate adverse results from the arbitrated agreements approved or
which may be approved by the Commission in this state and is doing so in order
to avoid the expense of arbitration while at the same time preserving its legal
positions, rights and remedies.
NOW, THEREFORE, in consideration of the mutual provisions contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, GTE and Value-Line hereby covenant and agree as follows:
ARTICLE I
SCOPE AND INTENT OF AGREEMENT
This Agreement governs the purchase by Valu-Line of certain telecommunications
services provided by GTE in its franchise areas for resale by Valu-Line. This
Agreement is an integrated package that reflects a balancing of interests
critical to the Parties. This Agreement will be submitted to the Texas Public
Utility Commission (the "Commission") for approval. The Parties agree that their
entrance into this Agreement is without prejudice to and does not waive any
positions they may have taken previously, or may take in the future, in any
legislative, regulatory, judicial or other public forum addressing any matters,
including matters related to the same types of arrangements covered in this
Agreement.
The services and facilities to be provided to Valu-Line by GTE in satisfaction
of this Agreement may be provided pursuant to GTE tariffs and then current
practices. Should such services and facilities be modified by tariff or by
Order, including any modifications resulting from other Commission proceedings,
federal court review or other judicial action, such modifications will be deemed
to automatically supersede any rates and terms and conditions of this Agreement.
GTE will provide notification to Valu-Line before such a tariff becomes
effective, and Valu-Line may provide input on such proposed tariff. The Parties
shall cooperate with one another for the purpose of incorporating required
modifications into this agreement.
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ARTICLE II
DEFINITIONS
1. General Definitions. Except as otherwise specified herein, the following
definitions shall apply to all Articles and Appendices contained in this
Agreement. Additional definitions that are specific to the matters
covered in a particular Article may appear in that Article. To the
extent that there may be any conflict between a definition set forth in
this Article II and any definition in a specific Article or Appendix,
the definition set forth in the specific Article or Appendix shall
control with respect to that Article or Appendix.
1.1 "Act" means the Telecommunications Act of 1996, Public Law 104-104 of
the 000xx Xxxxxx Xxxxxx Congress effective February 8,1996.
1.2 "Applicable Law" shall mean all laws, statutes, common law, regulations,
ordinances, codes, rules, guidelines, orders, permits, and approvals of
any Governmental Authority, which apply or relate to the subject matter
of this Agreement.
1.3 "Bona Fide Request (BFR)" process is intended to be used when requesting
customized Service Orders for certain services, features, capabilities
or functionality defined and agreed upon by the Parties as services to
be ordered as Bona Fide Requests.
1.4 "Business Day" shall mean Monday through Friday, except for holidays on
which the U.S. mail is not delivered.
1.5 "Centralized Message Distribution System" (CMDS) means the billing
record and clearing house transport system that the Regional Xxxx
Operating Companies ("RBOCs") and other incumbent LECs use to
efficiently exchange out collects and in collects as well as Carrier
Access Billing System ("CABS") records.
1.6 "Commission" means the Texas Public Utility Commission.
1.7 "Competitive Local Exchange Carrier" (CLEC) means any company or person
authorized to provide local exchange services in competition with an
Incumbent Local Exchange Carrier ("ILEC").
1.8 "compliance" means environmental and safety laws and regulations are
based upon a federal regulatory framework, with certain responsibilities
delegated to the States. An environmental/safety compliance program may
include review of applicable laws/regulations, development of written
procedures, training of employees and auditing.
1.9 "Customer" may mean GTE or Valu-Line depending on the context and which
Party is receiving the service from the other Party.
1.10 "Customer Usage Data" means that the local telecommunications services
usage data of a Valu-Line customer, measured in minutes, sub-minute
increments, message units, or otherwise, that is recorded and exchanged
by the Parties.
1.11 "EMR" means the Exchange Message Record which is an industry standard
record used to exchange telecommunications message information among
CLECs for billable, non-billable, sample, settlement and study data. EMR
format is defined in BR-010-200-010 XXXX Exchange Message Record,
published by Bellcore and which defines the industry standard for
exchange message records.
II-1
1.12 "E-911 Service" is a method of routing 911 calls to a Public Service
Answering Point that uses a customer location database to determine the
location to which a call should be routed. E-9-1-1 service includes the
forwarding of the caller's Automatic Number Identification (ANI) to the
PSAP where the ANI is used to retrieve and display the Automatic
Location Identification (ALI) on a terminal screen at the answering
Attendant's position. It usually includes selective routing.
1.13 "Exchange Service" refers to all basic access line services, or any
other services offered to end users which provide end users with a
telephonic connection to, and a unique telephone number address on, the
public switched telecommunications network ("PSTN"), and which enable
such end users to place or receive calls to all other stations on the
PSTN.
1.14 "FCC" means the Federal Communications Commission.
1.15 generator means under Resource Conservation Recovery Act (RCRA), the
person whose act produces a hazardous waste (40 CFR 261) or whose act
first causes a hazardous waste to become subject to regulation. The
generator is legally responsible for the proper management and disposal
of hazardous wastes in accordance with regulations.
1.16 "GTOC" means GTE Telephone Operating Company.
1.17 "Guide" means the GTE Open Market Transition Order/Processing Guide/ALEC
Customer Guide, which contains GTE's operating procedures for ordering,
provisioning, trouble reporting and repair for resold services and
unbundled elements. Except as specifically provided otherwise in this
Agreement, service ordering, provisioning, billing and maintenance shall
be governed by the "Guide" which may be amended from time to time by GTE
as needed. A copy has been provided to Valu-Line and is incorporated by
reference into this Agreement.
1.18 hazardous chemical means as defined in the U.S. Occupational Safety and
Health (OSHA) hazard communication standard (29 CFR 1910.1200), any
chemical which is a health hazard or physical hazard.
1.19 hazardous waste means as described in RCRA, a solid waste(s) which may
cause, or significantly contribute to an increase in mortality or
illness or pose a substantial hazard to human health or the environment
when improperly treated, stored, transported or disposed of or otherwise
managed because of its quantity, concentration or physical or chemical
characteristics.
1.20 imminent danger means as described in the Occupational Safety and Health
Act and expanded for environmental matters, any conditions or practices
at a facility which are such that a danger exists which could reasonably
be expected to cause death or serious harm or significant damage to the
environment or natural resources.
1.21 "Incumbent Local Exchange Carrier" (ILEC) means any local exchange
carrier that was as of February 8, 1996, deemed to be a member of the
Exchange Carrier Association as set forth in 47 C.F.R. ss.69.601(b) of
the FCC's regulations.
1.22 "Interim Number Portability (INP)" means the delivery of LNP
capabilities, from a customer standpoint in terms of call completion,
with as little impairment of functioning, quality, reliability, and
convenience as possible and from a carrier standpoint in terms of
compensation, through the use of existing and available call routing,
forwarding, and addressing capabilities.
1.23 "IXC" or "Interexchange Carrier" means a telecommunications service
provider authorized by the FCC to provide interstate long distance
communications services between LATAs and are authorized by the State to
provide inter- and/or intraLATA long distance communications services
within the State.
II-2
1.24 "Line Information Data Base (LIDB)" means one or all, as the context may
require, of the Line Information databases owned individually by GTE and
other entities which provide, among other things, calling card
validation functionality for telephone line number cards issued by GTE
and other entities. A LIDB also contains validation data for collect and
third number-billed calls; i.e., Billed Number Screening.
1.25 "Local Exchange Carrier" or "LEC" means any company certified by the
Commission to provide local exchange telecommunications service. This
includes the Parties to this Agreement.
1.26 "Local Number Portability (LNP)" means the ability of users of
telecommunications services to retain, at the same location, existing
telecommunications numbers without impairment of quality, reliability,
or convenience when switching from one telecommunications carrier to
another.
1.27 "Local Traffic" means traffic that is originated by an end user of one
Party and terminates to the end user of the other Party within GTE's
then current local serving area, including mandatory local calling scope
arrangements. A mandatory local calling scope arrangement is an
arrangement that provides end users a local calling scope, Extended Area
Service ("EAS"), beyond their basic exchange serving area. Local Traffic
does not include optional local calling scopes (i.e., optional rate
packages that permit the end user to choose a local calling scope beyond
their basic exchange serving area for an additional fee), referred to
hereafter as "optional EAS".
1.28 "NANP" means the "North American Numbering Plan", the system of
telephone numbering employed in the United States, Canada, and the
Caribbean countries that employ NPA 809.
1.29 "Numbering Plan Area" or "NPA" is also sometimes referred to as an area
code. This is the three digit indicator which is defined by the "A",
"B", and "C" digits of each 10-digit telephone number within the NANP.
Each NPA contains 800 possible NXX Codes. There are two general
categories of NPA, "Geographic NPAs" and "Non-Geographic NPAs". A
Geographic NPA is associated with a defined geographic area, and all
telephone numbers bearing such NPA are associated with services provided
within that geographic area. A Non-Geographic NPA, also known as a
"Service Access Code" or "SAC Code" is typically associated with a
specialized telecommunications service which may be provided across
multiple geographic NPA areas. 800, 900, 700, and 888 are examples of
Non-Geographic NPAs.
1.30 "NXX", "NXX Code", "Central Office Code" or "CO Code" is the three digit
switch entity indicator which is defined by the "D", "E", and "F" digits
of a 10-digit telephone number within the NANP. Each NXX Code contains
10,000 station numbers. Historically, entire NXX code blocks have been
assigned to specific individual local exchange end office switches.
1.31 "911 Service" means a universal telephone number which gives the public
direct access to the PSAP. Basic 911 service collects 911 calls from one
or more local exchange switches that serve a geographic area. The calls
are then sent to the correct authority designated to receive such calls.
1.32 owner and operator means as used in OSHA regulations, owner is the legal
entity, including a lessee, which exercises control over management and
record keeping functions relating to a building or facility. As used in
the Resource Conservation and Recovery Act (RCRA), operator means the
person responsible for the overall (or part of the) operations of a
facility.
1.33 "Provider" may mean GTE or Valu-Line depending on the context and which
Party is providing the service to the other Party.
1.34 spill or release means as described under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), it
includes, but is not limited to: spilling, leaking,
11-3
dumping or disposing into the environment of any hazardous chemical,
extremely hazardous substance or CERCLA hazardous substance.
1.35 "Subsidiary" of a Party means a corporation or other legal entity that
is majority owned by such Party.
1.36 "Telecommunications Services" means the offering of telecommunications
for a fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the
facilities used.
1.37 third party contamination means environmental pollution that is not
generated by the LEC or Valu-Line but results from off-site activities
impacting a facility.
1.38 Undefined Terms means the Parties acknowledge that terms may appear in
this Agreement which are not defined and agree that any such terms shall
be construed in accordance with their customary usage in the
telecommunications industry as of the effective date of this Agreement.
1.39 "Vertical Features" (including "CLASS Features") means vertical services
and switch functionalities provided by GTE, including: Automatic Call
Back; Automatic Recall; Call Forwarding Busy Line/Don't Answer; Call
Forwarding Don't Answer; Call Forwarding Variable; Call Forwarding -
Busy Line; Call Trace; Call Waiting; Call Number Delivery Blocking Per
Call; Calling Number Blocking Per Line; Cancel Call Waiting; Distinctive
Ringing/Call Waiting; Incoming Call Line Identification Delivery;
Selective Call Forward; Selective Call Rejection; Speed Calling; and
Three Way Calling/Call Transfer.
11-4
ARTICLE III
GENERAL PROVISIONS
1. Scope of General Provisions. Except as may otherwise be set forth in a
particular Article or Appendix of this Agreement, in which case the
provisions of such Article or Appendix shall control, these General
Provisions apply to all Articles and Appendices of this Agreement.
2. Term and Termination.
2.1 Term. Subject to the termination provisions contained in this Agreement,
the term of this Agreement shall be two (2) years from the effective
date referenced in the first paragraph of this Agreement and shall
continue in effect for consecutive one (1) year terms until either Party
gives the other Party at least ninety (90) calendar days written notice
of termination, which termination shall be effective at the end of the
then-current term. In the event notice is given less than 90 calendar
days prior to the end of the current term, this Agreement shall remain
in effect for 90 calendar days after such notice is received, provided,
that in no case shall the term be extended beyond 90 calendar days after
the end of the current term.
2.2 Post-Termination Arrangements. Except in the case of termination as a
result of either Party's default or a termination upon sale, for service
arrangements made available under this Agreement and existing at the
time of termination, those arrangements may continue without
interruption (a) under a new agreement voluntarily executed by the
Parties; (b) standard terms and conditions approved and made generally
effective by the Commission, if any; (c) tariff terms and conditions
made generally available to all CLECs; or (d) any rights under Section
252(i) of the Act.
2.3 Termination Upon Default. Either Party may terminate this Agreement in
whole or in part in the event of a default by the other Party; provided
however, that the non-defaulting Party notifies the defaulting party in
writing of the alleged default and that the defaulting Party does not
cure the alleged default within sixty (60) calendar days of receipt of
written notice thereof. Default is defined to include:
(a) A Party's insolvency or the initiation of bankruptcy or
receivership proceedings by or against the Party; or
(b) A Party's refusal or failure in any material respect properly to
perform its obligations under this Agreement, or the violation
of any of the material terms or conditions of this Agreement.
2.4 Termination Upon Sale. Notwithstanding anything to the contrary
contained herein, a Party may terminate this Agreement as to a specific
operating area or portion thereof of such Party if such Party sells or
otherwise transfers the area or portion thereof. The Party shall provide
the other Party with at least ninety (90) calendar days' prior written
notice of such termination, which shall be effective on the date
specified in the notice. Notwithstanding termination of this Agreement
as to a specific operating area, this Agreement shall remain in full
force and effect in the remaining operating areas.
2.5 Liability upon Termination. Termination of this Agreement, or any part
hereof, for any cause shall not release either Party from any liability
which at the time of termination had already accrued to the other Party
or which thereafter accrues in any respect to any act or omission
occurring prior to the termination or from an obligation which is
expressly stated in this Agreement to survive termination.
III-1
3. Amendments. Any amendment, modification, or supplement to this Agreement
must be in writing and signed by an authorized representative of each
Party. The term "this Agreement" shall include future amendments,
modifications, and supplements.
4. Assignment. Any assignment by either Party of any right, obligation, or
duty, in whole or in part, or of any interest, without the written
consent of the other Party shall be void, except that either Party may
assign all of its rights, and delegate its obligations, liabilities and
duties under this Agreement, either in whole or in part, to any entity
that is, or that was immediately preceding such assignment, a Subsidiary
or Affiliate of that Party without consent, but with written
notification. The effectiveness of an assignment shall be conditioned
upon the assignee's written assumption of the rights, obligations, and
duties of the assigning Party.
5. Authority. Each person whose signature appears on this Agreement
represents and warrants that he or she has authority to bind the Party
on whose behalf he or she has executed this Agreement.
6. Responsibility for Payment. All charges for Services provided under this
Agreement will be billed to Valu-Line, including all applicable taxes
and surcharges. In addition, the End User Common Line (EUCL) Charge from
GTOC Tariff FCC No. 1 is applicable to Resold Services. Valu-Line is
responsible for payment of charges billed regardless of any billing
arrangements or situation between Valu-Line and its end user customer.
7. Billing and Payment. Except as provided elsewhere in this Agreement,
Valu-Line and GTE agree to exchange all information to accurately,
reliably, and properly xxxx for features, functions and services
rendered under this Agreement.
7.1 Dispute. If one Party disputes a billing statement issued by the other
Party, the billed Party shall notify Provider in writing regarding the
nature and the basis of the dispute within sixty (60) calendar days of
the statement date or the dispute shall be waived. The Parties shall
diligently work toward resolution of all billing issues.
7.2 Late Payment Charge. If any undisputed amount due on the billing
statement is not received by Provider on the payment due date, Provider
may charge, and Customer agrees to pay, at Provider's option, interest
on the past due balance at a rate equal to the lesser of the interest
rates set forth in the applicable GTE/Contel state access tariffs or the
GTOC/GSTC FCC No. 1 tariff, one and one-half percent (1 1/2%) per month
or the maximum nonusurious rate of interest under applicable law. Late
payment charges shall be included on the next statement.
7.3 Due Date. Payment is due 30 calendar days from the xxxx date or 20
calendar days from receipt of xxxx whichever is later.
7.4 Audits. Either Party may conduct an audit of the other Party's books and
records pertaining to the Services provided under this Agreement, no
more frequently than once per twelve (12) month period, to evaluate the
other Party's accuracy of billing, data and invoicing in accordance with
this Agreement. Any audit shall be performed as follows: (i) following
at least thirty (30) Business Days' prior written notice to the audited
Party; (ii) subject to the reasonable scheduling requirements and
limitations of the audited Party; (iii) at the auditing Party's sole
cost and expense; (iv) of a reasonable scope and duration; (v) in a
manner so as not to interfere with the audited Party's business
operations; and (vi) in compliance with the audited Party's security
rules.
8. Binding Effect. This Agreement shall be binding on and inure to the
benefit of the respective successors and permitted assigns of the
Parties.
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9. Compliance with Laws and Regulations. Each Party shall comply with all
federal, state, and local statutes, regulations, rules, ordinances,
judicial decisions, and administrative rulings applicable to its
performance under this Agreement.
10. Confidential Information.
10.1 Identification. Either Party may disclose to the other proprietary or
confidential customer, technical, or business information in written,
graphic, oral or other tangible or intangible forms ("Confidential
Information"). In order for information to be considered Confidential
Information under this Agreement, it must be marked "Confidential" or
"Proprietary," or bear a marking of similar import. Orally or visually
disclosed information shall be deemed Confidential Information only if
contemporaneously identified as such and reduced to writing and
delivered to the other Party with a statement or marking of
confidentiality within thirty (30) calendar days after oral or visual
disclosure.
Notwithstanding the foregoing, all orders for Services placed by
Valu-Line pursuant to this Agreement, and information that would
constitute customer proprietary network information of Valu-Line end
user customers pursuant to the Act and the rules and regulations of the
FCC, as well as recorded usage information with respect to Valu-Line end
users, whether disclosed by Valu-Line to GTE or otherwise acquired by
GTE in the course of its performance under this Agreement, and where GTE
is the NANP Number Plan Administrator, Valu-Line information submitted
to GTE in connection with such responsibilities shall be deemed
Confidential Information of Valu-Line for all purposes under this
Agreement whether or not specifically marked or designated as
confidential or proprietary.
10.2 Handling. In order to protect such Confidential Information from
improper disclosure, each Party agrees:
(a) That all Confidential Information shall be and shall remain the
exclusive property of the source;
(b) To limit access to such Confidential Information to authorized
employees who have a need to know the Confidential Information
for performance of this Agreement;
(c) To keep such Confidential Information confidential and to use
the same level of care to prevent disclosure or unauthorized use
of the received Confidential Information as it exercises in
protecting its own Confidential Information of a similar nature;
(d) Not to copy, publish, or disclose such Confidential Information
to others or authorize anyone else to copy, publish, or disclose
such Confidential Information to others without the prior
written approval of the source;
(e) To return promptly any copies of such Confidential Information
to the source at its request; and
(f) To use such Confidential Information only for purposes of
fulfilling work or services performed hereunder and for other
purposes only upon such terms as may be agreed upon between the
Parties in writing.
10.3 Exceptions. These obligations shall not apply to any Confidential
Information that was legally in the recipient's possession prior to
receipt from the source, was received in good faith from a third party
not subject to a confidential obligation to the source, now is or later
becomes publicly known through no breach of confidential obligation by
the recipient, was developed by the recipient without the developing
persons having access to any of the Confidential Information received in
confidence from the source, or that is required to be disclosed pursuant
to subpoena
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or other process issued by a court or administrative agency having
appropriate jurisdiction, provided, however, that the recipient shall
give prior notice to the source and shall reasonably cooperate if the
source deems it necessary to seek protective arrangements.
10.4 Survival. The obligation of confidentiality and use with respect to
Confidential Information disclosed by one Party to the other shall
survive any termination of this Agreement for a period of three (3)
years from the date of the initial disclosure of the Confidential
Information.
11. Consent. Where consent, approval, or mutual agreement is required of a
Party, it shall not be unreasonably withheld or delayed.
12. Cooperation on Fraud Minimization. Valu-Line assumes responsibility for
all fraud associated with its end user customers and accounts. GTE shall
have no responsibility for, nor is it required to investigate or make
adjustments to Valu-Line's account in cases of fraud. The Parties agree
that they shall cooperate with one another to resolve cases of fraud.
The Parties' fraud minimization procedures are to be cost effective and
implemented so as not to unduly burden or harm one Party as compared to
the other.
13. Dispute Resolution.
13.1 Alternative to Litigation. Except as provided under Section 252 of the
Act with respect to the approval of this Agreement by the Commission,
the Parties desire to resolve disputes arising out of or relating to
this Agreement without litigation. Accordingly, except for action
seeking a temporary restraining order or an injunction related to the
purposes of this Agreement, or suit to compel compliance with this
dispute resolution process, the Parties agree to use the following
alternative dispute resolution procedures as their sole remedy with
respect to any controversy or claim arising out of or relating to this
Agreement or its breach.
13.2 Negotiations. At the written request of a Party, each Party will appoint
a knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any dispute arising out of or relating to this
Agreement. The Parties intend that these negotiations be conducted by
non-lawyer, business representatives. The location, format, frequency,
duration, and conclusion of these discussions shall be left to the
discretion of the representatives. Upon agreement, the representatives
may utilize other alternative dispute resolution procedures such as
mediation to assist in the negotiations. Discussions and correspondence
among the representatives for purposes of these negotiations shall be
treated as confidential information developed for purposes of
settlement, exempt from discovery, and shall not be admissible in the
arbitration described below or in any lawsuit without the concurrence of
all Parties. Documents identified in or provided with such
communications, which are not prepared for purposes of the negotiations,
are not so exempted and may, if otherwise discoverable, be discovered or
otherwise admissible, be admitted in evidence, in the arbitration or
lawsuit.
13.3 Arbitration. If the negotiations do not resolve the dispute within sixty
(60) Business Days of the initial written request, the dispute shall be
submitted to binding arbitration by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association
except that the Parties may select an arbitrator outside American
Arbitration Association rules upon mutual agreement. A Party may demand
such arbitration in accordance with the procedures set out in those
rules. Discovery shall be controlled by the arbitrator and shall be
permitted to the extent set out in this section. Each Party may submit
in writing to a Party, and that Party shall so respond to, a maximum of
any combination of thirty-five (35) (none of which may have subparts) of
the following: interrogatories, demands to produce documents, or
requests for admission. Each Party is also entitled to take the oral
deposition of one individual of another Party. Additional discovery may
be permitted upon mutual agreement of the Parties. The arbitration
hearing shall be commenced within sixty (60) Business Days of the demand
for arbitration. The arbitration shall be held in a mutually agreeable
city. The arbitrator shall control the scheduling
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so as to process the matter expeditiously. The Parties may submit
written briefs. The arbitrator shall rule on the dispute by issuing a
written opinion within thirty (30) Business Days after the close of
hearings. The times specified in this section may be extended upon
mutual agreement of the Parties or by the arbitrator upon a showing of
good cause. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
13.4 Expedited Arbitration Procedures. If the issue to be resolved through
the negotiations referenced in Section 13.2 directly and materially
affects service to either Party's end user customers, then the period of
resolution of the dispute through negotiations before the dispute is to
be submitted to binding arbitration shall be five (5) Business Days.
Once such a service affecting dispute is submitted to arbitration, the
arbitration shall be conducted pursuant to the expedited procedures
rules of the Commercial Arbitration Rules of the American Arbitration
Association (i.e., rules 53 through 57).
13.5 Costs. Each Party shall bear its own costs of these procedures. A Party
seeking discovery shall reimburse the responding Party the costs of
production of documents (including search time and reproduction costs).
The Parties shall equally split the fees of the arbitration and the
arbitrator.
13.6 Continuous Service. The Parties shall continue providing services to
each other during the pendency of any dispute resolution procedure, and
the Parties shall continue to perform their obligations (including
making payments in accordance with Article IV, Section 4) in accordance
with this Agreement.
14. Entire Agreement. This Agreement constitutes the entire agreement of the
Parties pertaining to the subject matter of this Agreement and
supersedes all prior agreements, negotiations, proposals, and
representations, whether written or oral, and all contemporaneous oral
agreements, negotiations, proposals, and representations concerning such
subject matter. No representations, understandings, agreements, or
warranties, expressed or implied, have been made or relied upon in the
making of this Agreement other than those specifically set forth herein.
15. Expenses. Except as specifically set out in this Agreement, each Party
shall be solely responsible for its own expenses involved in all
activities related to the subject of this Agreement.
16. Force Majeure. In the event performance of this Agreement, or any
obligation hereunder, is either directly or indirectly prevented,
restricted, or interfered with by reason of fire, flood, earthquake or
likes acts of God, wars, revolution, civil commotion, explosion, acts of
public enemy, embargo, acts of the government in its sovereign capacity,
labor difficulties, including without limitation, strikes, slowdowns,
picketing, or boycotts, unavailability of equipment from vendor, changes
requested by Customer, or any other circumstances beyond the reasonable
control and without the fault or negligence of the Party affected, the
Party affected, upon giving prompt notice to the other party, shall be
excused from such performance on a day-to-day basis to the extent of
such prevention, restriction, or interference (and the other Party shall
likewise be excused from performance of its obligations on a day-to-day
basis until the delay, restriction or interference has ceased); provided
however, that the Party so affected shall use diligent efforts to avoid
or remove such causes of nonperformance and both Parties shall proceed
whenever such causes are removed or cease.
17. Good Faith Performance. In the performance of their obligations under
this Agreement, the Parties shall act in good faith. In situations in
which notice, consent, approval or similar action by a Party is
permitted or required by any provision of this Agreement, such action
shall not be unreasonably delayed, withheld or conditioned.
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18. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the state where the Services are
provided or the facilities reside and shall be subject to the exclusive
jurisdiction of the courts therein.
19. GTE Standard Practices. The Parties acknowledge that GTE shall be
establishing industry standard approaches to various requirements
hereunder applicable to Valu-Line industry which will be added in the
Guide. Valu-Line agrees that GTE may implement such industry standard
practices to satisfy any GTE obligations under this Agreement to which
such GTE standard practices apply.
20. Headings. The headings in this Agreement are inserted for convenience
and identification only and shall not be considered in the
interpretation of this Agreement.
21. Independent Contractor Relationship. The persons provided by each Party
shall be solely that Party's employees and shall be under the sole and
exclusive direction and control of that Party. They shall not be
considered employees of the other Party for any purpose. Each Party
shall remain an independent contractor with respect to the other and
shall be responsible for compliance with all laws, rules and regulations
involving, but not limited to, employment of labor, hours of labor,
health and safety, working conditions and payment of wages. Each Party
shall also be responsible for payment of taxes, including federal, state
and municipal taxes, chargeable or assessed with respect to its
employees, such as Social Security, unemployment, workers' compensation,
disability insurance, and federal and state withholding. Each Party
shall indemnify the other for any loss, damage, liability, claim,
demand, or penalty that may be sustained by reason of its failure to
comply with this provision.
22. Law Enforcement Interface.
22.1 Except to the extent not available in connection with GTE's operation of
its own business, GTE shall provide seven day a week/twenty-four hour a
day assistance to law enforcement persons for emergency traps,
assistance involving emergency traces and emergency information
retrieval on customer invoked CLASS services, including, without
limitation, call traces requested by Valu-Line.
22.2 GTE agrees to work jointly with Valu-Line in security matters to support
law enforcement agency requirements for taps, traces, court orders, etc.
Charges for providing such services for Valu-Line Customers will be
billed to Valu-Line.
22.3 GTE will, in non emergency situations, inform the requesting law
enforcement agencies that the end-user to be wire tapped, traced, etc.
is a Valu-Line Customer and shall refer them to Valu-Line.
23. Liability and Indemnity.
23.1 Indemnification. Value-Line agrees to release, indemnify, defend, and
hold harmless GTE from all losses, claims, demands, damages, expenses,
suits, or other actions, or any liability whatsoever, including, but not
limited to, costs and attorney's fees, whether suffered, made,
instituted, or asserted by any other party or person, for invasion of
privacy, personal injury to or death of any person or persons, or for
losses, damages, or destruction of property, whether or not owned by
others, regardless of form of action.
23.2 End User and Content-Related Claims. Valu-Line agrees to release,
indemnify, defend, and hold harmless GTE, its affiliates, and any
third-party provider or operator of facilities involved in the provision
of Services (collectively, the "Indemnified Party") from all losses,
claims, demands, damages, expenses, suits, or other actions, or any
liability whatsoever, including, but not limited to, costs and
attorney's fees, suffered, made, instituted, or asserted by Valu-Line's
end users
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against an Indemnified Party arising from Services. Valu-Line further
agrees to release, indemnify, defend, and hold harmless the Indemnified
Party from all losses, claims, demands, damages, expenses, suits, or
other actions, or any liability whatsoever, including, but not limited
to, costs and attorney's fees, suffered, made, instituted, or asserted
by any third party against an Indemnified Party arising from or in any
way related to actual or alleged defamation, libel, slander,
interference with or misappropriation of proprietary or creative right,
or any other injury to any person or property arising out of content
transmitted by the Indemnified Party or such Party's end users, or any
other act or omission of the Indemnified Party or such Party's end
users.
23.3 DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY IN THIS
AGREEMENT, GTE MAKES NO REPRESENTATIONS OR WARRANTIES TO CUSTOMER
CONCERNING THE SPECIFIC QUALITY OF ANY SERVICES PROVIDED UNDER THIS
AGREEMENT. PROVIDER DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTY OR
GUARANTEE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM USAGES OF
TRADE.
23.4 Limitation of Liability. GTE's liability, whether in contract, tort or
otherwise, shall be limited to direct damages, which shall not exceed
the pro rata portion of the monthly charges for the Services for the
time period during which the Services provided pursuant to this
Agreement are inoperative, not to exceed in total GTE's monthly charge
to Customer. Under no circumstance shall GTE be responsible or liable
for indirect, incidental, or consequential damages, including, but not
limited to, economic loss or lost business or profits, damages arising
from the use or performance of equipment or software, or the loss of use
of software or equipment, or accessories attached thereto, delay, error,
or loss of data. In connection with this limitation of liability, the
Parties recognize that GTE may, from time to time, provide advice, make
recommendations, or supply other analysis related to the Services
described in this Agreement, and, while GTE shall use diligent efforts
in this regard, Customer acknowledges and agrees that this limitation of
liability shall apply to provision of such advice, recommendations, and
analysis.
23.5 Intellectual Property. GTE shall have no obligation to defend, indemnify
or hold harmless, or acquire any license or right for the benefit of, or
owe any other obligation or have any liability to, Valu-Line based on or
arising from any claim, demand, or proceeding by any third party
alleging or asserting that the use of any circuit, apparatus, or system,
or the use of any software, or the performance of any service or method,
or the provision or use of any facilities by either Party under this
Agreement constitutes direct or contributory infringement, or misuse or
misappropriation of any patent, copyright, trademark, trade secret, or
any other proprietary or intellectual property right of any third party.
24. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of
which shall together constitute but one and the same document
25. No Offer. This Agreement will be effective only upon execution and
delivery by both Parties and approval by the Commission in accordance
with Section 252 of the Act.
26. No Third Party Beneficiaries. Except as may be specifically set forth in
this Agreement, this Agreement does not provide and shall not be
construed to provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other right or privilege.
27. Notices. Any notice to a Party required or permitted under this
Agreement shall be in writing and shall be deemed to have been received
on the date of service if served personally, on the date receipt is
acknowledged in writing by the recipient if delivered by regular U.S.
mail, or on the date stated on the receipt if delivered by certified or
registered mail or by a courier service that obtains a written receipt.
Upon prior immediate oral agreement of the parties' designated
recipients
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identified below, notice may also be provided by facsimile, internet or
electronic messaging system, which shall be effective if sent before
5:00 p.m. on that day, or if sent after 5:00 p.m. it will be effective
on the next Business Day following the date sent. Any notice shall be
delivered using one of the alternatives mentioned in this section and
shall be directed to the applicable address indicated below or such
address as the Party to be notified has designated by giving notice in
compliance with this section:
If to GTE: GTE Central Incorporated
Attention: Regulatory Director
Address:816 Xxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile number: (000) 000-0000
If to Valu-Line: Valu-Line Long Distance
Attention: Xxxxxxx X. Xxxxxx, Xx.
0000 X. Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxx 00000
Facsimile number: (000) 000-0000
Internet Address:_____________
28. Protection.
28.1 Impairment of Service. The characteristics and methods of operation of
any circuits, facilities or equipment of either Party connected with the
services, facilities or equipment of the other Party pursuant to this
Agreement shall not interfere with or impair service over any facilities
of the other Party, its affiliated companies, or its connecting and
concurring carriers involved in its services, cause damage to their
plant, violate any applicable law or regulation regarding the invasion
of privacy of any communications carried over the Party's facilities or
create hazards to the employees of either Party or to the public (each
hereinafter referred to as an "Impairment of Service").
28.2 Resolution. If either Party causes an Impairment in Service, the Party
whose network or service is being impaired (the "Impaired Party") shall
promptly notify the Party causing the Impairment of Service (the
"Impairing Party") of the nature and location of the problem and that,
unless promptly rectified, a temporary discontinuance of the use of any
circuit, facility or equipment may be required. The Impairing Party and
the Impaired Party agree to work together to attempt to promptly resolve
the Impairment of Service. If the Impairing Party is unable to promptly
remedy the Impairment of Service, then the Impaired Party may at its
option temporarily discontinue the use of the affected circuit, facility
or equipment.
29. Publicity. Any news release, public announcement, advertising, or any
form of publicity pertaining to this Agreement, provision of Services
pursuant to it, or association of the Parties with respect to provision
of the services described in this Agreement shall be subject to prior
written approval of both GTE and Valu-Line.
30. Regulatory Agency Control. This Agreement shall at all times be subject
to changes, modifications, orders, and rulings by the Federal
Communications Commission and/or applicable state utility regulatory
commission to the extent the substance of this Agreement is or becomes
subject to the jurisdiction of such agency.
31. Changes in Legal Requirements. GTE and Valu-Line further agree that the
terms and conditions of this Agreement were composed in order to
effectuate the legal requirements in effect at the
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time the Agreement was produced. Any modifications to those requirements
will be deemed to automatically supersede any terms and conditions of
this Agreement.
32. Effective Date. If this Agreement or changes or modifications thereto
are subject to approval of a regulatory agency, the "effective date" of
this Agreement for such purposes will be ten (10) Business Days after
such approval. Such date shall become the "effective date" of this
Agreement for all purposes.
33. Regulatory Matters. Each Party shall be responsible for obtaining and
keeping in effect all their own FCC, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with the performance of its obligations under this
Agreement. Valu-Line shall reasonably cooperate with GTE in obtaining
and maintaining any required approvals for which GTE is responsible, and
GTE shall reasonably cooperate with Valu-Line in obtaining and
maintaining any required approvals for which Valu-Line is responsible.
34. Rule of Construction. No rule of construction requiring interpretation
against the drafting party hereof shall apply in the interpretation of
this Agreement.
35. Section References. Except as otherwise specified, references within an
Article of this Agreement to a Section refer to Sections within that
same Article.
36. Service Standards.
36.1 The Parties shall meet applicable quality of local service standards
imposed by the Commission and will provide a level of services to each
other under this Agreement in compliance with the nondiscrimination
requirements of the Act.
36.2 The Parties agree to implement mutually agreed upon standards to measure
the quality of Local Service supplied by GTE with respect to
pre-ordering, order/provisioning, maintenance and billing.
36.3 GTE shall provide Valu-Line with notice of any new or changed feature,
functionality or price pertaining to pre-ordering,
ordering/provisioning, maintenance and billing for "Services" necessary
to ensure that Valu-Line can provide retail local exchange services
which are at least equal in quality to comparable GTE retail local
exchange services.
36.4 The Parties will alert each other to any network events that can result
or have resulted in service interruption, blocked calls, and/or changes
in network performance. GTE will treat Valu-Line in a nondiscriminatory
manner equal to GTE's established business practice, e.g., GTE will
advise Valu-Line of any such network event resulting in blocked calls or
lost features.
37. Severability. If any provision of this Agreement is held by a court or
regulatory agency of competent jurisdiction to be unenforceable, the
rest of the Agreement shall remain in full force and effect and shall
not be affected unless removal of that provision results, in the opinion
of either Party, in a material change to this Agreement. If a material
change as described in this paragraph occurs as a result of action by a
court or regulatory agency, the Parties shall negotiate in good faith
for replacement language. If replacement language cannot be agreed upon
within a reasonable period, either Party may terminate this Agreement
without penalty or liability for such termination upon written notice to
the other Party.
38. Subcontractors. Provider may enter into subcontracts with third parties
or affiliates for the performance of any of Providers duties or
obligations under this Agreement.
39. Subsequent Law. The terms and conditions of this Agreement shall be
subject to any and all applicable laws, rules, or regulations that
subsequently may be prescribed by any federal, state
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or local governmental authority. To the extent required by any such
subsequently prescribed law, rule, or regulation, the Parties agree to
modify, in writing, the affected term(s) and condition(s) of this
Agreement to bring them into compliance with such law, rule, or
regulation.
40. Taxes. Any state or local excise, sales, or use taxes (excluding any
taxes levied on income) resulting from the performance of this Agreement
shall be borne by the Party upon which the obligation for payment is
imposed under applicable law, even if the obligation to collect and
remit such taxes is placed upon the other Party. The collecting Party
shall charge and collect from the obligated Party, and the obligated
Party agrees to pay to the collecting Party, all applicable taxes,
except to the extent that the obligated Party notifies the collecting
Party and provides to the collecting Party appropriate documentation
that qualifies the obligated Party for a full or partial exemption. Any
such taxes shall be shown as separate items on applicable billing
documents between the Parties. The obligated Party may contest the same
in good faith, at its own expense, and shall be entitled to the benefit
of any refund or recovery, provided that such Party shall not permit any
lien to exist on any asset of the other Party by reason of the contest.
The collecting Party shall cooperate in any such contest by the other
Party.
40.1 Tax - A charge which is statutorily imposed by the state or local
jurisdiction and is either (a) imposed on the seller with the seller
having the right or responsibility to pass the charge(s) on to the
purchaser and the seller is responsible for remitting the charge(s) to
the state or local jurisdiction or (b) imposed on the purchaser with the
seller having an obligation to collect the charge(s) from the purchaser
and remit the charge(s) to the state or local jurisdiction.
Taxes shall include but not be limited to: federal excise tax,
state/local sales and use tax, state/local utility user tax, state/local
telecommunication excise tax, state/local gross receipts tax, and local
school taxes. Taxes shall not include income, income-like, gross
receipts on the revenue of a provider, or property taxes. Taxes shall
not include payroll withholding taxes unless specifically required by
statute or ordinance.
40.2 Fees/Regulatory Surcharges - A charge imposed by a regulatory authority,
other agency, or resulting from a contractual obligation, in which the
seller is responsible or required to collect the fee/surcharge from the
purchaser and the seller is responsible for remitting the charge to the
regulatory authority, other agency, or contracting party.
Fees/Regulatory Surcharges shall include but not be limited to E911/911,
E311/311, franchise fees, Lifeline, hearing impaired, and Commission
surcharges.
41. Trademarks and Trade Names. Except as specifically set out in this
Agreement, nothing in this Agreement shall grant, suggest, or imply any
authority for one Party to use the name, trademarks, service marks, or
trade names of the other for any purpose whatsoever.
42. Waiver. The failure of either Party to insist upon the performance of
any provision of this Agreement, or to exercise any right or privilege
granted to it under this Agreement, shall not be construed as a waiver
of such provision or any provisions of this Agreement, and the same
shall continue in full force and effect.
43. Amendment of Certain Rates. The Parties agree as follows with respect to
modification of the rates initially provided for herein:
The rates, terms and conditions in this Agreement that are specified in
Attachment 43A (the "MCI Terms") were taken from the GTE/MCI
Interconnection, Resale and Unbundling Agreement (the "MCI Agreement")
that has been approved by the Commission in Docket No. 16355. The rates,
terms and conditions not included in this Agreement but referenced in
Attachment 00X (xxx "XXX Xxxxx") were excluded from the MCI Agreement by
the Commission in Docket No. 16355. GTE
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and Valu-Line agree that if the MCI Terms are deemed to be unlawful, or
are stayed, enjoined or otherwise modified, in whole or in part, by a
court or commission of competent jurisdiction, then this Agreement shall
be deemed to have been amended accordingly, by modification of the MCI
Terms or, as appropriate, the substitution of GTE Terms for all stayed
and enjoined MCI Terms, and such amendments shall be effective
retroactive to the Effective Date of this Agreement.
GTE and Valu-Line further agree that the terms and conditions of this
Agreement reflect certain requirements of the FCC's First Report and
Order in CC Docket No. 96-98. The terms and conditions of this Agreement
shall be subject to any and all actions by any court or other
governmental authority that invalidate, stay, vacate or otherwise modify
the FCC's First Report and Order, in whole or in part ("subsequent
action"). To the extent warranted by any such subsequent action, the
Parties agree that this Agreement shall be deemed to have been modified
accordingly as in the first paragraph of this Section 43. The Parties
agree to immediately apply any affected terms and conditions, including
any in other sections and articles of this Agreement, consistent with
such subsequent action, and within a reasonable time incorporate such
modified terms and conditions in writing into this Agreement. If the MCI
terms are affected by such subsequent action and GTE determines they
cannot be consistently applied therewith, the GTE terms shall apply.
Valu-Line acknowledges that GTE may seek to enforce such subsequent
action before a commission or court of competent jurisdiction. GTE does
not waive any position regarding the illegality or inappropriateness of
the FCC's First Report and Order.
The rates, terms and conditions (including rates which may be applicable
under true-up) specified in both the GTE Terms and the MCI Terms are
further subject to amendment, retroactive to the Effective Date of the
Agreement, to provide for charges or rate adjustments resulting from
future Commission or other proceedings, including but not limited to any
generic proceeding to determine GTE's unrecovered costs (e.g., historic
costs, contribution, undepreciated reserve deficiency, or similar
unrecovered GTE costs (including GTE's end user surcharge)), the
establishment of a competitively neutral universal service system, or
any appeal or other litigation.
If the Commission (or any other commission or federal or state court) in
reviewing this Agreement pursuant to applicable state or federal laws,
including Section 252(e) of the Telecommunications Act of 1996, deletes
or modifies in any way this Section 43, then the Parties agree that they
will reopen negotiations within ten (10) days after receipt of the final
decision making such deletion or modification in order to attempt to
craft the new provision that will provide substantially the same
protections to GTE and Valu-Line as this Section 43. If the Parties
cannot reach agreement on such a provision within twenty (20) calendar
days thereafter, the Parties agree that the entire Agreement is void and
will not become effective, and Valu-Line agrees to withdraw this
Agreement from consideration by the Commission (or any other commission
or federal or state court). In such event, each Party shall have 25 days
following the close of the 20-day negotiation period within which to
file a petition for arbitration before the Commission under Section
252(e) of the Telecommunications Act of 1996 of the issues that remain
in dispute under this paragraph.
III-11
ARTICLE IV
GENERAL RULES GOVERNING RESOLD SERVICES
1. General. General regulations, terms and conditions governing rate
applications, technical parameters, service availability, definitions
and feature interactions, as described in the appropriate GTE intrastate
local, toll and access tariffs, as referenced in the third column of
Appendix A (the "GTE Retail Tariff"), apply to retail services made
available by GTE to Valu-Line for resale provided by GTE to Valu-Line,
when appropriate, unless otherwise specified in this Agreement. As
applied to services under this Agreement, the term "Customer" contained
in the GTE Retail Tariff shall be deemed to mean "Valu-Line" as defined
in this Agreement.
2. Liability of GTE.
2.1 Inapplicability of Tariff Liability. GTE's general liability, as
described in the GTE Retail Tariff, does not extend to Valu-Line's
customers or any other third party. Liability of GTE to Valu-Line
resulting from any and all causes arising out of services, or any other
items relating to this Agreement shall be governed by the liability
provisions contained in this Agreement and no other liability whatsoever
shall attach to GTE. GTE shall be liable for the individual services,
facilities or elements that it separately provides to Valu-Line and
shall not be liable for the integration of components combined by
Valu-Line.
2.2 Valu-Line Tariffs or Contracts. Valu-Line shall, in its tariffs or other
contracts for services provided to its end users using services obtained
from GTE, provide that in no case shall GTE be liable to Valu-Line's end
users or any third parties for any indirect, special or consequential
damages, including, but not limited to, economic loss or lost business
or profits, whether foreseeable or not, and regardless of notification
by Valu-Line of the possibility of such damages and Valu-Line shall
indemnify and hold GTE harmless from any and all claims, demands,
causes of action and liabilities based on any reason whatsoever from its
customers as provided in this Agreement. Nothing in this Agreement shall
be deemed to create a third party beneficiary relationship with
Valu-Line's end users.
2.3 No Liability for Errors. GTE is not liable for mistakes that appear in
GTE's listings, 911 and other information databases, or for incorrect
referrals of end users to Valu-Line for any ongoing Valu-Line service,
sales or repair inquiries, and with respect to such mistakes or
incorrect referrals, Valu-Line shall indemnify and hold GTE harmless
from any and all claims, demands, causes of action and liabilities
whatsoever, including costs, expenses and reasonable attorney's fees
incurred on account thereof, by third parties, including Valu-Line's end
users or employees. For purposes of this Section 2.3, mistakes and
incorrect referrals shall not include matters arising out of the willful
misconduct of GTE or its employees or agents.
3. Unauthorized Changes.
3.1 Procedures. If Valu-Line submits an order for resold services under this
Agreement in order to provide service to an end user that at the time
the order is submitted is obtaining its local services from GTE or
another LEC using GTE resold services, and the end user notifies GTE
that the end user did not authorize Valu-Line to provide local exchange
services to the end user, Valu-Line must provide GTE with written
documentation of authorization from that end user within three (3)
Business Days of notification by GTE. If Valu-Line cannot provide
written documentation of authorization within such time frame, Valu-Line
must within three (3) Business Days thereafter:
(a) notify GTE to change the end user back to the LEC providing
service to the end user before the change to Valu-Line was made;
and
IV-1
(b) provide any end user information and billing records Valu-Line
has obtained relating to the end user to the LEC previously
serving the end user; and
(c) notify the end user and GTE that the change back to the previous
LEC has been made; and
(d) pay GTE fifty dollars ($50.00) per affected line to compensate
GTE for switching the end user back to the original LEC.
3.2 Option to Restrict Changes Without Evidence of Authorization.
Valu-Line's or GTE's end users may request GTE to permit changes of
their provider of local exchange services only upon end user written
notification to GTE that the end user wishes to change the end user's
provider of local exchange services. In such a situation, GTE will not
change an end user's provider of local exchange services without such
written notification.
4. Impact of Payment of Charges on Service. Valu-Line is solely responsible
for the payment of all charges for all services, facilities and elements
furnished under this Agreement, including, but not limited to, calls
originated or accepted at its or its end users' service locations. If
Valu-Line fails to pay when due any and all charges billed to Valu-Line
under this Agreement, including any late payment charges (collectively,
"Unpaid Charges"), and any or all such charges remain unpaid more than
forty-five (45) Business Days after the due date of such Unpaid Charges
excepting previously disputed charges for which Valu-Line may withhold
payment, GTE shall notify Valu-Line in writing that it must pay all
Unpaid Charges to GTE within seven (7) Business Days. If Valu-Line
disputes the billed charges, it shall, within said seven (7) day period,
inform GTE in writing of which portion of the Unpaid Charges it
disputes, including the specific details and reasons for the dispute,
unless such reasons have been previously provided, and shall immediately
pay to GTE all undisputed charges. If Valu-Line and GTE are unable,
within thirty (30) Business Days thereafter, to resolve issues related
to the disputed charges, then either Valu-Line or GTE may file a request
for arbitration under Article III of this Agreement to resolve those
issues. Upon resolution of any dispute hereunder, if Valu-Line owes
payment it shall make such payment to GTE with any late payment charge
under Article III, Section 7.2, from the original payment due date. If
Valu-Line owes no payment, but has previously paid GTE such disputed
payment, then GTE shall credit such payment including any late payment
charges. If Valu-Line fails to pay any undisputed Unpaid Charges,
Valu-Line shall, at its sole expense, within five (5) Business Days
notify its end users that their service may be disconnected for
Valu-Line's failure to pay Unpaid Charges, and that its end users must
select a new provider of local exchange services. If Valu-Line fails to
provide such notification or any of Valu-Line's end users fail to select
a new provider of services within the applicable time period, GTE will
provide local exchange services to Valu-Line's end users under GTE's
applicable end user tariff at the then current charges for the services
being provided. In this circumstance, otherwise applicable service
establishment charges will not apply to Valu-Line's end user, but will
be assessed to Valu-Line. GTE may discontinue service to Valu-Line upon
failure to pay undisputed charges as provided in this Section 4, and
shall have no liability to Valu-Line or Valu-Line's end users in the
event of such disconnection.
5. Unlawful Use of Service. Services provided by GTE pursuant to this
Agreement shall not be used by Valu-Line or its end users for any
purpose in violation of law. Valu-Line, and not GTE, shall be
responsible to ensure that Valu-Line and its end users use of services
provided hereunder comply at all times with all applicable laws. GTE may
refuse to furnish service to Valu-Line or disconnect particular services
provided under this Agreement to Valu-Line or, as appropriate,
Valu-Line's end user when (i) an order is issued by a court of competent
jurisdiction finding that probable cause exists to believe that the use
made or to be made of the service is prohibited by law or (ii) GTE is
notified in writing by a law enforcement agency acting within its
jurisdiction that any facility furnished by GTE is being used or will be
used for the purpose of transmitting or receiving gambling information
in interstate or foreign commerce in violation of
IV-2
law. Termination of service shall take place after reasonable notice is
provided to Valu-Line, or as ordered by the court. If facilities have
been physically disconnected by law enforcement officials at the
premises where located, and if there is not presented to GTE the written
finding of a court, then upon request of Valu-Line and agreement to pay
restoral of service charges and other applicable service charges, GTE
shall promptly restore such service.
6. Timing of Messages. With respect to GTE resold measured rate local
service(s), chargeable time begins when a connection is established
between the calling station and the called station. Chargeable time ends
when the calling station "hangs up," thereby releasing the network
connection. If the called station "hangs up" but the calling station
does not, chargeable time ends when the network connection is released
by automatic timing equipment in the network.
7. Procedures For Preordering, Ordering, Provisioning, Etc. Certain
procedures for preordering, ordering, provisioning, maintenance and
billing and electronic interfaces for many of these functions are
described in Appendix B. All costs and expenses for any new or modified
electronic interfaces Valu-Line requires that GTE determines are
technically feasible and GTE agrees to develop will be paid by Valu-Line
pursuant to Appendix B. The schedule for implementation of any new or
modified electronic interfaces will be developed by GTE according to
industry standards and will be based upon the amount of work needed to
design, test and implement the new or modified interface.
8. Customer Contacts. Except as otherwise provided in this Agreement or as
agreed to in a separate writing by Valu-Line, Valu-Line shall provide
the exclusive interface with Valu-Line's end user customers in
connection with the marketing or offering of Valu-Line services. Except
as otherwise provided in this Agreement, in those instances in which GTE
personnel are required pursuant to this Agreement to interface directly
with Valu-Line's end users, such personnel shall not identify themselves
as representing GTE. All forms, business cards or other business
materials furnished by GTE to Valu-Line end users shall bear no
corporate name, logo, trademark or trade name other than Valu-Line's. In
no event shall GTE personnel acting on behalf of Valu-Line pursuant to
this Agreement provide information to Valu-Line end users about GTE
products or services.
IV-3
ARTICLE V
RESALE OF SERVICES
1. General. The purpose of this Article V is to define the Exchange
Services and related Vertical Features and other Services (collectively
referred to for purposes of this Article V as the "Services") that may
be purchased from GTE and resold by Valu-Line and the terms and
conditions applicable to such resold Services. Except as specifically
provided otherwise in this Agreement, provisioning of Exchange Services
for resale will be governed by the GTE Guide. GTE will make available to
Valu-Line for resale any Telecommunications Service that GTE currently
offers, or may offer hereafter, on a retail basis to subscribers that
are not telecommunications carriers, except as qualified by Section 2.2
below.
2. Terms and Conditions.
2.1 Quality and Performance. GTE shall provide Services to Valu-Line that
are equal in quality and performance standards to the same Services
provided by GTE to its own end user customers.
2.2 Restrictions on Resale. The following restrictions shall apply to the
resale of retail services by Valu-Line.
2.2.1 Valu-Line shall not resell Basic Exchange Residential Service.
2.2.2 Valu-Line shall not resell to one class of customers a service
that is offered by GTE only to another class of customers in
accordance with State requirements (e.g., R-1 to B-1, disabled
services or Lifeline services to non-qualifying customers).
2.2.3 Valu-Line shall not resell public pay telephone lines.
2.2.4 Valu-Line shall not resell semi-public pay telephone lines.
2.2.5 Valu-Line shall not resell promotional offerings.
2.3 Restrictions on Discount of Retail Services. The discount specified
in Section 5.3 herein shall apply to all retail services except for
the following:
2.3.1 Valu-Line shall resell services that are provided at a volume
discount in accordance with terms and conditions of applicable
tariff. Valu-Line shall not aggregate end user traffic in order
to qualify for volume discount.
2.3.2 Valu-Line shall resell ICB/Contract services without a discount
and only to end user customers that already have such services.
2.3.3 Valu-Line shall resell COCOT coin or coinless line but no
discount applies.
2.3.4 Valu-Line shall resell Lifeline services and services for the
disabled but no discount shall apply and they shall only be
resold to end user customers who qualify under GTE's tariffs and
state/Commission rules, orders and regulations.
2.3.5 Valu-Line shall resell special access but no discount applies.
2.3.6 Valu-Line shall resell Operator Services and Directory
Assistance as specified in Section 5.6 herein however no
discount applies.
V-1
2.4 Resale to Other Carriers. Services available for resale may not be used
by Valu-Line to provide access to the local network as an alternative to
tariffed switched and special access by other carriers, including, but
not limited to; interexchange carriers, wireless carriers, competitive
access providers, or other retail telecommunications providers.
3. Ordering and Billing.
3.1 Local Service Request. Orders for resale of Services will be placed
utilizing a standard Local Service Request ("LSR") form. GTE will
continue to participate in industry forums for developing service
order/disconnect order formats and will incorporate appropriate industry
standards. A complete and accurate LSR (containing the requisite end
user information as described in the Guide) must be provided by
Valu-Line before a request can be processed.
3.2 Certificate of Operating Authority. When ordering, Valu-Line must
represent and warrant to GTE that it is a certified provider of local
dial-tone service. Valu-Line will provide a copy of its Certificate of
Operating Authority or other evidence of its status to GTE upon request.
3.3 Letter of Authorization. A Letter of Authorization ("LOA") will be
required before resold Services will be provided in cases in which the
subscriber currently receives Exchange Service from GTE or from a local
service provider other than Valu-Line. Such LOA may be a blanket LOA or
such other form as agreed upon between GTE and Valu-Line. GTE will not
release information to Valu-Line on GTE end user customer accounts
unless Valu-Line first provides to GTE a written LOA, signed by the end
user customer, authorizing the release of such information to Valu-Line
or if state or federal law provides otherwise, in accordance with such
law.
3.4 Directory Assistance Listings. GTE shall include a Valu-Line customer
listing in its Directory Assistance database as part of the Local
Service Request ("LSR") process. GTE will honor Valu-Line Customers
preferences for listing status, including non-published and unlisted, as
noted on the LSR and will enter the listing in the GTE database which is
used to perform Directory Assistance functions as it appears on the LSR.
3.5 Nonrecurring Charges. Valu-Line shall be responsible for the payment of
all nonrecurring charges ("NRCs") applicable to resold Services (e.g.,
installation, changes, ordering charges) in accordance with the
appropriate tariff referenced on Appendix A. No discount applies to
nonrecurring charges.
3.6 Transfers Between Valu-Line and Another Reseller of GTE Services. When
Valu-Line has obtained an end user customer from another reseller of GTE
services, Valu-Line will inform GTE of the transfer by submitting a
standard LSR to GTE.
3.7 Local Calling Detail. Except for those Services and in those areas where
measured rate local service is available to end users, monthly billing
to Valu-Line does not include local calling detail. However, Valu-Line
may request and GTE shall consider developing the capabilities to
provide local calling detail in those areas where measured local service
is not available for a mutually agreeable charge.
3.8 Procedures. An overview of the procedures for preordering, ordering,
provisioning and billing for resold services are outlined in Appendix B,
attached hereto and made a part hereof.
3.9 LIDB. For resale services, GTE's service order will generate updates to
the LIDB for validation of calling card, collect, and third number
billed calls.
3.10 "OLN". Upon request, GTE will update the database to provide Originating
Line Number ("OLN") Screening which indicates to an operator the
acceptable billing methods for calls originating from the calling number
(e.g., penal institutions, COCOTS).
V-2
4. Maintenance.
4.1 Maintenance, Testing and Repair. GTE will provide repair and maintenance
services to Valu-Line and its end user customers for resold Services in
accordance with the same standards and charges used for such services
provided to GTE end user customers. GTE will not initiate a maintenance
call or take action in response to a trouble report from a Valu-Line end
user until such time as trouble is reported to GTE by Valu-Line.
Valu-Line must provide to GTE all end user information necessary for the
installation, repair and servicing of any facilities used for resold
Services according to the procedures described in the Guide.
4.2 Specifics and Procedures for Maintenance. An overview of the procedures
for maintenance of resold services and additional matters agreed to by
the Parties concerning maintenance are set forth in Appendix B.
5. Services Available for Resale.
5.1 Description of Local Exchange Services Available for Resale. Resold
basic Exchange Service includes, but is not limited to, the following
elements:
(a) Voice Grade Local Exchange Access Line - includes a telephone
number and dial tone.
(b) Local Calling - at local usage measured rates if applicable to
the end user customer.
(c) Access to long distance carriers
(d) E-911 Emergency Dialing
(e) Access to Special Access Codes - e.g., 800, 888, 900
(f) Use of AIN Services (those currently available to end users)
(g) End User Private Line Services
(h) Listing of telephone number in appropriate "white pages"
directory; and
(i) Copy of "White Pages" and "Yellow Pages" directories for the
appropriate GTE service area
5.2 List of Services Available for Resale. The type of Services listed on
Appendix A, attached hereto and made a part of this Agreement, are
available for resale by Valu-Line. Subject to the limitations on resale
enumerated in this Article, any new services that GTE offers in the
future at retail to customers who are not telecommunications carriers
shall also be available to Valu-Line for resale under the same terms and
conditions contained in this Agreement. Additional regulations, terms
and conditions relating to the type of Services listed on Appendix A can
be found in the appropriate intrastate local, toll and access tariffs
referenced on Appendix A and in Article IV of this Agreement. Terms,
conditions and other matters concerning rate applications, technical
parameters, provisioning capability, definitions and feature
interactions contained in such tariffs are applicable to the type of
Services offered under this Agreement and are incorporated herein by
reference. Modifications to Services listed on Appendix E shall be
provided to Valu-Line in accordance with GTE's practices and procedures.
5.3 Rates. The prices charged to Valu-Line for Local Services shall be
calculated as follows:
(1) Avoided Cost Discount of 13.63% shall apply to all retail
services except those services listed in Section 2.2 and Section
2.3 herein.
V-3
(2) The discount dollar amount calculated under Step 1 above will be
deducted from the retail rate.
(3) The resulting rate is the Wholesale Rate.
(4) This discount dollar amount in Step 2 above shall not change
during the Term of this Agreement, even though GTE may change
its retail rates.
5.4 Grandfathered Services. Services identified in GTE Tariffs as
grandfathered in any manner are available for resale only to end user
customers that already have such grandfathered service. An existing end
user customer may not move a grandfathered service to a new service
location.
5.5 Access. GTE retains all revenue due from other carriers for access to
GTE facilities, including both switched and special access charges.
5.6 Operator Services (OS) and Directory Assistance (DA). Where GTE provides
access to GTE Operator Services for local and toll assistance (for
example, call completion, busy line verification and emergency
interruption) and Directory Assistance (e.g., 411 calls routed to GTE's
DA operator centers) as an element of Exchange Services offered for
resale, Valu-Line will be billed in accordance with Appendix A. GTE will
provide its existing OS and DA to a Valu-Line at the same quality and in
a nondiscriminatory manner as the service GTE's end users receive.
5.6.1 Where Customized Routing is available and Valu-Line so requests,
GTE will offer unbranded OS and DA or rebranded OS and DA with
the Valu-Line brand. GTE will provide such unbranding or
rebranding on a switch-by-switch basis, subject to capability
and capacity limitations. Upon receipt of an order for
unbranding or rebranding, GTE will implement within 90 Business
Days when technically capable.
5.6.2 Valu-Line will be billed for unbranding or rebranding and
Customized Routing. Upon written request from the Valu-Line, GTE
will provide Valu-Line with terms and conditions for providing
customized routing and branding, plus the applicable charges.
5.6.3 For those offices that Valu-Line has requested GTE to rebrand
and/or unbrand OS and DA, Valu-Line shall continue exclusively
to use GTE rebranded and/or unbranded OS and DA for the duration
of the Agreement. Live operators handling OS and DA calls from
Valu-Line local service customers will identify themselves as
Valu-Line operators; where such rebranding is not technically
feasible, live operator response will be provided on an
unbranded basis. Valu-Line agrees to withdraw its request for
branding of OS and DA for calls that are handled by automated
systems until these systems are capable of rebranding.
V-4
ARTICLE VI
ADDITIONAL SERVICES AND COORDINATED SERVICE ARRANGEMENTS
1. Bona Fide Request Process.
1.1 Intent. The Bona Fide Request process is intended to be used when
Valu-Line requests customized Service Orders for certain services,
features, capabilities or functionality defined and agreed upon by the
Parties as services to be ordered as Bona Fide Requests.
1.2 Process.
1.2.1 A Bona Fide Request shall be submitted in writing by Valu-Line
and shall specifically identify the need to include technical
requirements, space requirements and/or other such
specifications that clearly define the request such that GTE has
sufficient information to analyze and prepare a response.
1.2.2 Although not expected to do so, Valu-Line may cancel a Bona Fide
Request in writing at any time prior to Valu-Line and GTE
agreeing to price and availability. GTE will then cease analysis
of the request.
1.2.3 Within two (2) Business Days of its receipt, GTE shall
acknowledge in writing the receipt of the Bona Fide Request and
identify a single point of contact and any additional
information needed to process the request.
1.2.4 Except under extraordinary circumstances, within ten (10)
Business Days of its receipt of a Bona Fide Request, GTE shall
provide a proposed price and availability date, or it will
provide a detailed explanation as to why GTE is not able to meet
Valu-Line's request. If extraordinary circumstances prevail, GTE
will inform Valu-Line as soon as it realizes that it cannot meet
the ten (10) Business Day response due date. Valu-Line and GTE
will then determine a mutually agreeable date for receipt of the
request.
1.2.5 Unless Valu-Line agrees otherwise, all proposed prices shall be
consistent with the pricing principles of the Act, FCC and/or
the Commission. Payments for services purchased under a Bona
Fide Request will be made upon delivery, unless otherwise agreed
to by Valu-Line, in accordance with the applicable provisions of
the Agreement.
1.2.6 Upon affirmative response from GTE, Valu-Line will submit in
writing its acceptance or rejection of GTE's proposal. If at any
time an agreement cannot be reached as to the terms and
conditions or price of the request, the Dispute resolution
procedures described above in this Article may be used by a
Party to reach a resolution.
1.2.7 If GTE responds that it cannot or will not offer the requested
item in the Bona Fide Request and Valu-Line deems the item
essential to its business operations, and deems GTE's position
to be inconsistent with the Act, FCC or Commission regulations
and/or the requirements of this Agreement, the Dispute
resolution procedures described above in this Article may be
used by a Party to reach a resolution.
2. Transfer of Service Announcements. For GTE resold services, GTE shall
provide an intercept referral on behalf of Valu-Line. This announcement
will provide the new number of the customer and will remain in effect
for the same time period this service is provided to GTE's own end
users.
3. Misdirected Calls. The Parties will employ the following procedures for
handling any misdirected calls (e.g., Business office, repair bureau,
etc.).
VI-1
3.1 To the extent the correct provider can be determined, each Party will
refer misdirected calls to the proper provider of local exchange
service. When referring such calls, both Parties agree to provide the
end user the correct contact telephone number, at no charge and in a
courteous manner.
3.2 In responding to misdirected calls, neither Party shall make disparaging
remarks about each other, nor shall they use these calls as a basis for
internal referrals or to solicit end users or to market services.
4. 911/E911 Arrangements.
4.1 Description of Service. Where GTE is the 911 service provider, GTE shall
provide 911 Service as described in this Section as an element of local
exchange services available for resale.
4.2 Cooperation and Level of Performance. The Parties agree to provide
access to 911/E911 in a manner that is transparent to the end user.
The Parties will work together to facilitate the prompt, reliable and
efficient level of performance that will provide the same grade of
service as that which GTE provides to its own end users.
4.3 Updates to MSAG. It shall be the responsibility of Valu-Line to ensure
that the address of each of its end users is included in the Master
Street Address Guide (MSAG). Where GTE is the lead telco, GTE will
accept address records provided on Valu-Line's Local Service Request
("LSR"). GTE and Valu-Line will work together to develop the process by
which LSR errors out of the MSAG will be handled, with appropriate cost
recovery to GTE. Where GTE is not the lead telco, GTE has no action and
Valu-Line must establish a separate relationship with the lead telco to
submit records for MSAG validation. Where GTE is the lead telco, it will
have a copy of the MSAG and will provide a copy to Valu-Line upon
request at a reasonable charge.
4.4 Updates to Database. The 911/E91I database will be updated with
Valu-Line's end user 911/E911 information. If Valu-Line provides its
update data to GTE as frequently as does GTE's internal systems, the
update process will be as timely. In any case, GTE will not update the
ALI database any later than one working day subsequent to receipt of
data from Valu-Line.
4.5 Compensation.
(a) In situations in which GTE is responsible for maintenance of the
911/E911 database and can be compensated for maintaining
Valu-Line's information by the 911 district, GTE will seek such
compensation from the 911 district. GTE will seek compensation
from Valu-Line only if and to the extent that GTE is unable to
obtain such compensation from the 911 district.
(b) Compensation to GTE for provision of services it provides
Valu-Line hereunder shall be according to reasonable rates
developed by GTE and agreed upon by Valu-Line.
4.6 Liability. GTE will not be liable for errors with respect to 911/E911
services except for its gross negligence as addressed in applicable
tariffs.
5. Information Services Traffic.
5.1 Blocking. Nothing in this Agreement shall restrict either Party from
offering to its end user customers the ability to block the completion
of information service traffic. If Valu-Line does not wish to be
responsible for collect, third number billed, toll, 900 and 976 calls,
it must order blocking for resold lines and pay any applicable charges.
Should GTE block its end users from making 976 calls, GTE shall also
block Valu-Line resale end users from making such calls.
VI-2
6. Directory Assistance Listings Information. GTE will include listings in
its directory assistance database for Valu-Line end users in the same
geographic area as GTE provides directory assistance for GTE end users
as specified in Article V, Section 3.4.
6.1 GTE shall provide to Valu-Line, at Valu-Line's request, for purposes of
Valu-Line providing Valu-Line-branded directory assistance services to
its local customers, within sixty (60) Business Days after an order for
such tape is received, all published DA listings for that specific state
via magnetic tape. Changes to the DA Listing Information shall be
updated on a daily basis through the same means used to transmit the
initial list. DA Listing Information provided shall indicate whether the
customer is a residence or business customer. The rate to be paid by the
Valu-Line to GTE will be reasonable and mutually agreed.
6.2 The Parties will not release DA Listing Information that includes the
other Party's end user information to Third Parties without the other
Party's approval. The other Party will inform the Releasing Party if it
desires to have the Releasing Party provide the other Party's DA Listing
Information to the Third Party, in which case, the Releasing Party shall
provide the other Party's DA Listing Information at the same time as the
Releasing Party provides the Releasing Party's DA Listing Information to
the Third Party. The rate to be paid by the Releasing Party to the other
Party shall be no more than the direct costs of compiling such
information. The other Party shall be responsible for billing the Third
Party.
6.3 The Parties will work together to identify and develop procedures for
database error corrections.
7. Directory Listings and Directory Distribution. Valu-Line will be
required to negotiate a separate agreement for directory listings and
directory distribution, except as set forth below, with GTE's directory
publication company.
Listings. Valu-Line agrees to supply GTE on a regularly
scheduled basis, at no charge, and in a mutually agreed upon
format (e.g. Ordering and Billing Forum developed), all listing
information for Valu-Line's subscribers who wish to be listed in
any GTE published directory for the relevant operating area.
Listing information will consist of names, addresses (including
city, state and zip code) and telephone numbers. Nothing in this
Agreement shall require GTE to publish a directory where it
would not otherwise do so.
Listing inclusion in a given directory will be in accordance
with GTE's solely determined directory configuration, scope, and
schedules, and listings will be treated in the same manner as
GTE's listings.
Distribution. Upon directory publication, GTE will arrange for
the initial distribution of the directory to service subscribers
in the directory coverage area at no charge.
Valu-Line will supply GTE in a timely manner with all required
subscriber mailing information including non-listed and
non-published subscriber mailing information, to enable GTE to
perform its distribution responsibilities.
8. Busy Line Verification and Busy Line Verification Interrupt. Each Party
shall establish procedures whereby its operator assistance bureau will
coordinate with the operator assistance bureau of the other Party to
provide Busy Line Verification ("BLV") and Busy Line Verification and
Interrupt ("BLVI") services on calls between their respective end users.
Each Party shall route BLV and BLVI inquires over separate inward
operator services trunks. Each Party's operator assistance bureau will
only verify and/or interrupt the call and will not complete the call of
the end user initiating the BLV or BLVI. Each Party shall charge the
other for the BLV and BLVI services at the rates contained in Appendix
A, or if there is no applicable rate listed in Appendix A, at the rates
in their respective tariffs.
VI-3
9. SAG. GTE will provide to Valu-Line upon request the Street Address Guide
at a reasonable charge. Two companion files will be provided with the
SAG which lists all services and features at all LSOs, and lists
services and features that are available in a specific LSO.
10. Dialing Format Changes. GTE will provide reasonable notification to
Valu-Line of changes to local dialing format, i.e., 7 to 10 digit, by
end office.
11. Operational Support Systems (OSS). GTE shall provide OSS functions to
Valu-Line for ordering, provisioning and billing that are generally
available as described in Appendix B attached to this Agreement.
Valu-Line shall pay GTE for access to GTE's OSS functions consistent
with processes defined in Appendix B.
GTE's execution of this Agreement is not a concession or waiver in any
manner concerning its position that certain of the rates, terms and
conditions contained herein are unlawful, illegal and improper.
IN WITNESS WHEREOF, each Party has executed this Agreement to be
effective as of the date first above written.
GTE SOUTHWEST INCORPORATED VALU-LINE LONG DISTANCE
By /s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxx
---------------------------------- -----------------------------
Name Xxxxxx X. Xxxxxxxx Name Xxxxxxx X. Xxxxxx, Xx.
Title Director of Negotiations Title President
Date 9/12/97 Date 7/29/97
APPROVED AS TO FORM BY
LEGAL DEPARTMENT
/s/ [Illegible]
---------------------
VI-4
APPENDIX A
SERVICES AVAILABLE FOR RESALE
General. The rates contained in this Appendix A are based upon an avoided cost
discount from GTE's retail rates as provided in Article V, Section 5.3 of the
Agreement to which this Appendix A is attached and are subject to change
resulting from future Commission or other proceedings, including but not limited
to any generic proceeding to determine GTE's unrecovered costs (e.g., historic
costs, contribution, undepreciated reserve deficiency, or similar unrecovered
GTE costs (including GTE's end user surcharge)), the establishment of a
competitively neutral universal service system, or any appeal or other
litigation. In addition, GTE shall assess Valu-Line a charge for lost
contribution associated with intraLATA toll service from a resold business line
if GTE does not provide the intraLATA toll associated with the line.
Non-Recurring Charges for Resale Services
Initial Service Order, per order $41.50
Subsequent Service Order, per order $24.00
Installation, per line $27.00
Outside Facility Connection Charge, per order* $Tariffed
* This charge will apply when field work is required for establishment of new
resale service. The terms, conditions and rates that apply for this work are
described in GTE's retail local service tariffs.
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