Exhibit 10.18
[LOGO] AT&T
AT&T Master Carrier Agreement
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CUSTOMER Name (Full Legal Name): AT&T Sales Representative:
▇▇.▇▇▇ Network Services AT&T Corp., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Corp. a New York corporation ("AT&T")
("CUSTOMER")
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CUSTOMER Name (and Title) for Notice: AT&T Name (and Title) for Notice: AT&T Contact Telephone Number:
▇▇▇▇▇ ▇▇▇▇▇, VP ▇▇▇▇ ▇▇▇▇▇▇▇▇, GM ▇▇▇-▇▇▇-▇▇▇▇
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CUSTOMER Address: AT&T Address: Initial Deposit Amount Required:
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $100,000
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City State Zip Code City State Zip Code
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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CUSTOMER Fax number for Notice: AT&T Fax number for Notice:
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
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This Master Carrier Agreement shall be legally binding when signed by both
parties and shall continue in effect until the end of the longest term specified
in the Attachment(s), or until otherwise terminated as provided in accordance
with this Agreement. The rates and commitments provided in the Attachments shall
be effective as provided in each Attachment.
This Master Carrier Agreement consists of this Cover Sheet, the attached Terms
and Conditions, and the Attachment(s) listed below (these documents together are
collectively referred to as the "Agreement"). In the event of any inconsistency
between these documents, precedence will be given to the documents in the
following order: (1) this Cover Sheet; (2) Attachment(s); (3) the Terms and
Conditions. In the event of any inconsistency between the terms of this
Agreement and the terms of an applicable Tariff, the terms of the Agreement
shall prevail.
Title Doc. ID Date/time stamp
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Master Carrier Agreement - Terms and Conditions MCA 990816.doc 08/16/99 3:42pm
Supplemental Terms and Conditions Attachment MCAsupp 09/15/99 4:47pm
PFNET091599.doc
Data Service Terms and Pricing PFNet-D991020.doc 10/20/99 1:37pm
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CUSTOMER'S SIGNATURE BELOW ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTANDS AND
AGREES TO EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT THE
INDIVIDUAL SIGNING THIS AGREEMENT IS DULY AUTHORIZED TO DO SO.
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CUSTOMER AT&T Corp.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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(Authorized Customer Signature) (Authorized AT&T Signature)
FOR: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, [ILLEGIBLE]
▇▇▇▇ ▇▇▇▇▇▇▇, Admin. & Operations
▇▇▇▇▇ ▇▇▇▇▇ VP M[ILLEGIBLE]
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(Typed or Printed Name and Title) (Typed or Printed Name and Title)
Date: 12-17-99 Date: 12/21/99
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AT&T PROPRIETARY
Use Pursuant to AT&T Instructions
MASTER CARRIER AGREEMENT -- TERMS AND CONDITIONS Page 1
1. Provision of Services. CUSTOMER hereby orders and AT&T hereby agrees to
provide the AT&T services described in the Attachment(s) to this Agreement (the
"Services"). Jurisdictionally intrastate services may be provided pursuant to an
Attachment to this Agreement, pursuant to applicable state tariffs, or as
otherwise permitted by applicable state law. AT&T is not responsible for the
quality of transmission or signaling on CUSTOMER'S side of the network interface
between AT&T and CUSTOMER. Service is furnished subject to the availability of
the service components required, and subject to operational and systems
constraints.
2. Billing and Payment for the Services. Except as may be provided in an
Attachment, AT&T will send a single monthly ▇▇▇▇ for each of the Services to one
location designated by CUSTOMER. CUSTOMER is liable for all amounts due to AT&T
under this Agreement. Payment is due upon presentation of a ▇▇▇▇. Payment will
be considered timely if made to AT&T within thirty days after the ▇▇▇▇ date (for
voice services, the ▇▇▇▇ date is the day after the end of the usage period
covered by the ▇▇▇▇; for data services, the ▇▇▇▇ date is the first day of the
service period covered by the ▇▇▇▇). Any charges not paid to AT&T within such
period will be considered past due.
3. Non-Payment. At AT&T's option, interest charges may be added to any past due
amounts at the lower of 12.0% per year or the maximum rate allowed by law.
CUSTOMER shall reimburse AT&T for reasonable attorney's fees and any other costs
associated with collecting delinquent or dishonored payments. Restrictive
endorsements or other statements on checks accepted by AT&T will not apply.
4. Billing Disputes. If CUSTOMER wishes to dispute a charge on a ▇▇▇▇, CUSTOMER
must identify the specific charge in dispute and provide a full written
explanation of the basis for the dispute using a standard AT&T billing dispute
form within 90 days after the ▇▇▇▇ date. CUSTOMER may withhold payment of a
charge subject to a good faith dispute provided: (a) CUSTOMER submits the
billing dispute, using a standard AT&T billing dispute form, before making
payment of the disputed charge; (b) CUSTOMER pays the undisputed portion of all
charges; and (c) CUSTOMER cooperates reasonably with AT&T's efforts to
investigate and resolve the dispute. If AT&T determines that a disputed charge
was billed in error, AT&T shall issue a credit to reverse the amount incorrectly
billed. If AT&T determines that a disputed charge was billed correctly, payment
shall be due from CUSTOMER within five days after AT&T advises CUSTOMER in
writing that the dispute is denied.
5. Deposits. Using its Deposit standards, AT&T has assessed and CUSTOMER shall
pay the initial Deposit amount specified on the Cover Sheet before Services are
provided. AT&T may require CUSTOMER, during the term of this Agreement, to
tender a deposit in an amount to be determined by AT&T in its reasonable
discretion. AT&T will rely upon commercially reasonable factors to determine the
need for and amount of any deposit. These factors may include, but are not
limited to, payment history, number of years in business, history of service
with AT&T, bankruptcy history, current account treatment status, financial
statement analysis, and commercial credit bureau rating, as well as commitment
levels and anticipated monthly charges. Any deposit will be held by AT&T as a
guarantee for the payment of charges (including but not limited to potential
shortfall charges). A deposit does not relieve CUSTOMER of the responsibility
for the prompt payment of bills. Interest (at the rate of 6% per year) will be
paid to CUSTOMER for any period that a cash deposit is held by AT&T. A failure
of CUSTOMER to post a deposit as required by AT&T pursuant to this paragraph
shall constitute a material breach of this Agreement by CUSTOMER.
6. Obligations Regarding Taxes. CUSTOMER shall pay any applicable local, state
and federal taxes, levied upon the sale, installation, use or provision of the
Services, except to the extent customer provides a valid tax exemption
certificate to AT&T prior to the delivery of Services. Gross Receipts Taxes will
be charged to CUSTOMER as provided in AT&T Tariff F.C.C. No. 1, Section 2.5.14,
as amended from time to time.
7. CUSTOMER is a Carrier. CUSTOMER certifies it is a "common carrier" as defined
in the Communications Act of 1934 (see sections 153(10) and 211), with all
required state and federal operating authority.
8. Responsibilities of CUSTOMER. CUSTOMER is responsible for interfacing and
communicating with its End Users, for placing any orders, and for assuring that
it and its Intermediate Resellers (if any) comply with the provisions of this
Agreement and with all applicable federal and state laws and regulatory
requirements with respect to the resale of Services provided under this
Agreement. CUSTOMER is responsible for arranging premises access at any
reasonable time so that AT&T personnel may install, repair, maintain, inspect or
remove service components.
9. Abuse of Service. The abuse of Service is prohibited. Using Service or
permitting Service to be used in the following ways constitutes abuse: (a)
making calls that might reasonably be expected to frighten, abuse, torment, or
harass another; (b) carrying calls that originate on the network of a
facilities-based interexchange carrier other than AT&T and terminate
disproportionately to domestic locations for which AT&T's cost of terminating
switched access (based on the published access rates of the incumbent local
AT&T PROPRIETARY
Use Pursuant to AT&T Instructions
MASTER CARRIER AGREEMENT -- TERMS AND CONDITIONS Page 2
exchange companies) is above AT&T's price for the call under this Agreement
(after application of discounts); (c) interfering unreasonably with the use of
AT&T service by others or the operation of the AT&T network; (d) subjecting AT&T
personnel or non-AT&T personnel to hazardous conditions; (e) transmitting any
message or code, locating a person, or otherwise giving or obtaining
information, without payment for the Services; or (f) attempting to avoid the
payment, in whole or in part, of any charges by any means or device (non-payment
of billed charges will not be considered abuse of service for purposes of this
Section). In any instance in which AT&T believes in good faith that there is
abuse of Service as set forth above, AT&T may immediately restrict, suspend or
discontinue providing Service, without liability on the part of AT&T, and then
notify CUSTOMER of the action that AT&T has taken and the reason for such
action. To the extent doing so does not interfere with its ability to prevent
abuse of Service (to be determined in AT&T's reasonable judgment), AT&T will
attempt to limit any restriction, suspension or discontinuance under this
Section to the locations, phone numbers, or Services with respect to which the
abuse is taking place.
10. Default. If a party breaches any material term of this Agreement and the
breach continues unremedied for 60 days after written notice of default, the
other party may terminate for cause any Attachment materially affected by the
breach. If CUSTOMER is in breach of its payment obligations (including failure
to pay a required deposit), and fails to make payment in full within 5 days
after receipt of written notice of default, AT&T may, at its option, terminate
the Agreement, terminate affected Attachments, suspend Service under the
affected Attachments, and/or require a deposit, advanced payment, or other
satisfactory assurances in connection with any or all Attachments as a condition
of continuing to provide Services; except that AT&T will not take any such
action as a result of CUSTOMER's non-payment of a charge subject to a timely
billing dispute, unless AT&T has reviewed the dispute and determined that the
charge is correct. An Attachment may be terminated by either party immediately
upon written notice if the other party has become insolvent or involved in a
liquidation or termination of its business, or adjudicated bankrupt, or been
involved in an assignment for the benefit of its creditors. CUSTOMER shall be
liable to AT&T for Termination Charges, as specified in a terminated Attachment,
in the event that AT&T terminates an Attachment as a result of a breach by
CUSTOMER. Termination by either party of an Attachment does not waive any other
rights or remedies it may have under this Agreement.
11. No Warranties. AT&T MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS
AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. AT&T DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES WILL MEET CUSTOMER'S
REQUIREMENTS OR THAT THE SERVICES WILL PREVENT UNAUTHORIZED ACCESS BY THIRD
PARTIES. AT&T DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS
BEHALF AND CUSTOMER SHOULD NOT RELY ON ANYONE MAKING SUCH STATEMENTS.
12. Limitation of Liability. THE LIABILITY OF AT&T ASSOCIATED WITH THE
INSTALLATION, PROVISION, USE, MAINTENANCE, REPAIR, TERMINATION OR RESTORATION OF
SERVICE PROVIDED PURSUANT TO THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO
THE INITIAL PERIOD CHARGE FOR AFFECTED CALLS (FOR CALLS SUBJECT TO MEASURED
CHARGES) OR THE CHARGES FOR AFFECTED SERVICE FOR THE PERIOD DURING WHICH THAT
SERVICE WAS AFFECTED (FOR ALL OTHER SERVICES). IN NO EVENT SHALL AT&T BE LIABLE
FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL
DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, ADVANTAGE,
SAVINGS OR REVENUES OF ANY KIND, OR INCREASED COST OF OPERATIONS, WHETHER OR NOT
AT&T HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY CLAIM OR
DAMAGES CAUSED BY OR ARISING OUT OF (i) ANY ACT OR OMISSION (INCLUDING WITHOUT
LIMITATION UNAUTHORIZED USE, THEFT, OR ALTERATION OF SERVICE, OR INTERFERENCE
WITH SERVICE) BY CUSTOMER, AN INTERMEDIATE RESELLER, AN END USER, OR ANOTHER
THIRD PARTY, (ii) SERVICE INTERRUPTIONS, OR (iii) INTEROPERABILITY, INTERACTION
OR INTERCONNECTION OF THE SERVICES PROVIDED UNDER THIS AGREEMENT WITH
APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD
PARTIES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL SURVIVE
FAILURE OF AN EXCLUSIVE REMEDY, AND SHALL APPLY REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE
(INCLUDING WITHOUT LIMITATION ACTIVE AND PASSIVE NEGLIGENCE).
13. Force Majeure. Neither party nor its Affiliates, subsidiaries, or
subcontractors shall be liable to the other party for any delay, failure in
performance, loss or damage due to force majeure conditions such as fire,
AT&T PROPRIETARY
Use Pursuant to AT&T Instructions
MASTER CARRIER AGREEMENT -- TERMS AND CONDITIONS Page 3
explosion, power blackout, earthquake, volcanic action, flood, hurricane, the
elements, strike, embargo, labor disputes, civil or military authority, war,
acts of God, acts or omissions of other carriers (except, for CUSTOMER, the acts
of omissions of its Intermediate Resellers), acts of regulatory or governmental
agencies, or other causes beyond their reasonable control, except that
CUSTOMER's obligation to pay for services provided shall not be excused. Changes
in economic, business or competitive conditions are not force majeure
conditions. If CUSTOMER is unable to meet its commitments as a direct result of
a force majeure condition, CUSTOMER may suspend its commitments for one full
billing month (or longer, with AT&T's written consent, which shall not be
unreasonably withheld). The effect of such a suspension of commitment will be to
exclude the affected month(s) from all calculations affecting the CUSTOMER's
commitments and to extend the term of this Agreement by the same number of
months. CUSTOMER must provide notice to AT&T of the force majeure condition
giving rise to the right to suspend commitments within 30 days after its
occurrence.
14. Indemnification. CUSTOMER shall indemnify, defend, and hold harmless AT&T
and its directors, officers, employees, agents, subsidiaries, affiliates,
successors and assigns from any and all claims, damages and expenses whatsoever
(including reasonable attorneys' fees) arising on account of or in connection
with CUSTOMER's use, resale or sharing of the Services provided under this
Agreement, including but not limited to: (a) claims for libel, slander, invasion
of privacy; (b) claims for infringement of copyright arising from any
communication; (c) claims arising from any failure, breakdown, interruption or
deterioration of service provided by AT&T to CUSTOMER or by CUSTOMER to End
Users or Intermediate Resellers; (d) claims arising from CUSTOMER's marketing
efforts, including but not limited to CUSTOMER'S violation of laws and
regulations applicable to the authorization and proof of authorization necessary
to convert an End User to CUSTOMER's service; and (e) claims of patent
infringement arising from combining or using services or equipment furnished by
AT&T in connection with services or equipment furnished by others. AT&T shall
indemnify, defend, and hold harmless CUSTOMER and its directors, officers,
employees, agents, subsidiaries, affiliates, successors and assigns from all
claims of patent infringement arising solely from the use of the Services.
CUSTOMER'S indemnification obligations do not apply to claims for damages to
real or tangible personal property or for bodily injury or death negligently
caused by AT&T.
15. Use of Marks. Nothing in this Agreement creates in a party any rights in the
other party's trade names, trademarks, service marks or any other intellectual
property. Either party may use the other party's trade names, trademarks, or
service marks only to the extent such use is not prohibited by this Agreement
and is otherwise permitted by law (including but not limited to the ▇▇▇▇▇▇ Act).
In no event shall either party use or display, in advertising or otherwise, any
of the other party's logos, trade dress, trade devices or other indicia of
origin, or any confusingly similar logos, trade dress, trade devices or indicia
of origin. CUSTOMER will not conduct business under any AT&T corporate or trade
name, trademark, service ▇▇▇▇, logo, trade dress, trade device, indicia of
origin or other symbol that serves to identify and distinguish AT&T from its
competitors. or under any confusingly similar corporate or trade name,
trademark, service ▇▇▇▇, logo, trade dress, trade device, indicia of origin or
other symbol. CUSTOMER will not indicate or imply to any other party that
CUSTOMER is affiliated with AT&T, that CUSTOMER is authorized by AT&T to sell or
provide service to them, that CUSTOMER is providing (or will provide) service to
such party jointly or in collaboration or partnership with AT&T, or as the agent
of AT&T, or that service provided by CUSTOMER or another carrier is provided by
AT&T. Except to the limited extent (if any) as may be required under law,
neither CUSTOMER nor an Intermediate Reseller shall indicate or imply to any
existing or potential End User (or Intermediate Reseller) that any portion of
the service provided to the End User (or Intermediate Reseller) by CUSTOMER or
the Intermediate Reseller is provided by AT&T or is carried over the AT&T
network or AT&T facilities.
16. Relationship of the Parties. The relationship between the parties shall be
that of independent contractors and not of principal and agent, employer and
employee, franchiser and franchisee, partners or joint venturers. This Agreement
does not establish CUSTOMER as a dealer, distributor or franchisee of AT&T, and
no fee is being paid to AT&T to enter into this Agreement
17. Acknowledgment of Right to Compete. Each party acknowledges that nothing in
this Agreement diminishes or restricts in any way the rights of the parties to
engage in competition with each other. Each party acknowledges that it remains
at all times solely responsible for the success and profits of its own business.
18. Use of Marketing Information. Either party may use for its own marketing
purposes any and all information that it lawfully obtains from sources other
than the other party, including but not limited to information that either party
may have as a result of the sale by that party of telecommunications services or
equipment to End Users.
19. Confidential Information Defined. "Confidential Information" consists of the
following: all information
AT&T PROPRIETARY
Use Pursuant to AT&T Instructions
MASTER CARRIER AGREEMENT -- TERMS AND CONDITIONS Page 4
disclosed by one party or its agent or representative (the "Disclosing Party")
to the other party or its agent or representative (the "Receiving Party") in
connection with this Agreement regarding the telecommunications needs of
CUSTOMER and/or the telecommunications offerings of AT&T, to the extent that (a)
for information disclosed in written, graphic or other tangible form, it is
designated by appropriate markings to be confidential or proprietary or (b) for
information disclosed orally, it is both identified as proprietary or
confidential at the time of disclosure and summarized in a writing so marked
within 15 business days following the oral disclosure. Notwithstanding the
foregoing, all written or oral pricing, contract, and tariff proposals exchanged
between the parties shall be Confidential Information, whether or not so
designated. Confidential Information is the property of the Disclosing Party and
shall be returned to the Disclosing Party upon request. This Agreement is
Confidential Information as to which each party is both a Disclosing Party and a
Receiving Party. Information made known to the public by the Disclosing Party or
a third party or previously known to the Receiving Party free of any obligation
to keep it confidential, or independently developed by the Receiving Party,
shall not be Confidential Information.
20. Confidentiality Obligations. A Receiving Party shall hold all Confidential
Information in confidence from the time of disclosure until at least 2 years
following the termination of this Agreement. During that period, the Receiving
Party: (a) shall use such Confidential Information only for the purposes of
performing this Agreement and using the Services; (b) shall reproduce such
Confidential Information only to the extent necessary for such purposes; (c)
shall restrict disclosure of such Confidential Information to employees that
have a need to know for such purposes; (d) shall advise those employees of the
obligations of this Agreement; (e) shall not disclose Confidential Information
to any third party without prior written approval of the Disclosing Party except
as expressly provided in this Agreement; and (f) shall use at least the same
degree of care (in no event less than reasonable care) as it uses with regard to
its own proprietary or confidential information to prevent the disclosure,
unauthorized use or publication of Confidential Information.
21. Publicity. No public statements or announcements relating to this Agreement
shall be issued by either party without the prior written consent of the other
party.
22. Alternative Dispute Resolution. The parties will attempt to settle any claim
for non-payment of charges or recovery of overpayment of charges for the
Services provided under this Agreement (hereinafter a "Billing Dispute"),
through good faith negotiations. The parties may agree to submit a Billing
Dispute to non-binding mediation. At any time, the party seeking payment may
submit a notice of arbitration of a Billing Dispute for arbitration under the
United States Arbitration Act pursuant to the terms of this Section and the
Non-Administered Arbitration Rules of the CPR Institute for Dispute Resolution
("CPR"), to the extent such rules do not conflict. The Arbitration will be held
in New York, New York, or any other location selected by mutual agreement of the
parties. The arbitrator shall not have the power to award any damages in excess
of the limits set forth in or excluded under the limitations of liability
provided in this Agreement. The arbitrator may not limit, expand or otherwise
modify the terms of this Agreement. The arbitrator shall strictly limit
discovery to the production of documents directly relevant to the facts alleged
in the notices of arbitration and defense. If depositions are required, the
arbitrator shall permit each Party to conduct an equal number of depositions
(not to exceed five per side), with equal limits on the number of deposition
hours for each Party (not to exceed 7 per deposition). If an evidentiary hearing
is held, each Party's presentation of its case shall be limited to three (3)
days. Requests for temporary injunctive relief may be submitted to a court of
competent jurisdiction if the arbitrator has not yet been appointed, but the
arbitrator shall have the authority to modify any injunctive relief granted by
such a court. The arbitration award shall be made final within eight months of
filing of the notice of arbitration and judgment upon the award may be entered
in any court having competent jurisdiction. All participants and the arbitrator
shall hold the existence, content and results of mediation and arbitration in
confidence, except as necessary to enforce a final settlement agreement or to
enforce an arbitration Award. Each party shall bear its own expenses and equally
share expenses related to the compensation of the arbitrator. The arbitrators
award shall be in writing and shall state the reasons for the award.
23. Time to Bring Claims. Any initial demand for arbitration pursuant to this
Agreement, and any legal action arising under this Agreement, must be initiated
within two years after the cause of action arises.
24. Notices. All notices under this Agreement shall be in writing and shall be
made: (a) by personal delivery; (b) by certified or registered mail, postage
prepaid return receipt requested, (c) by overnight delivery, or (d) by facsimile
transmission. Notice shall be sent to the individuals identified on the Cover
Sheet (at the address and/or fax number designated for notice), or to such other
individual, address or fax number as a party may designate by notice to the
other party.
25. Equipment. AT&T shall retain title to all of its equipment and facilities
used to provide service under this Agreement. CUSTOMER is liable to AT&T for the
replacement cost of any AT&T-provided equipment installed at CUSTOMER's premises
in the event of loss
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Use Pursuant to AT&T Instructions
MASTER CARRIER AGREEMENT -- TERMS AND CONDITIONS Page 5
of said equipment for any reason, including but not limited to theft.
26. Export Regulations. The parties acknowledge that any products, software, and
technical information (including, but not limited to, services and training)
provided under this Agreement are subject to U.S. export laws and regulations
and any use of or transfer of such products, software and technical information
must be authorized under those regulations. CUSTOMER agrees that it will not use
distribute, transfer or transmit the products, software or technical information
(even if incorporated into other products) except in compliance with U.S. export
regulations. If requested by AT&T, CUSTOMER also agrees to sign written
assurances and other export-related documents as may be required for AT&T to
comply with U.S. export regulations.
27. Quality Monitoring. CUSTOMER authorizes AT&T to monitor and record calls to
AT&T concerning the Services for training and quality control purposes.
26. Assignment. This Agreement may not be assigned by either party except that
either party may assign its rights or delegate its duties under this Agreement
to an Affiliate of that party.
29. No Third Party Beneficiaries. This Agreement does not expressly or
implicitly provide any third party (including End Users) with any remedy, claim,
liability, reimbursement, cause of anion or other right or privilege.
30. Non-Waiver. The failure of a party to enforce any right under this Agreement
at any particular point in time shall not constitute a continuing waiver of any
such right with respect to the remaining term of this Agreement, or the waiver
of any other right under this Agreement.
31. Severability. If any portion of this Agreement is found to be invalid or
unenforceable, the remaining provisions shall remain in effect and the parties
shall immediately begin negotiations to replace any invalid or unenforceable
portions that are essential parts of this Agreement.
32. Survival of Terms. The rights and obligations of either party that by their
nature would continue beyond the termination or expiration of this Agreement
shall survive termination or expiration of this Agreement. For example, the
provisions of this Agreement regarding Confidentiality shall remain in effect
for 2 years following termination of this Agreement and the provisions of this
Agreement regarding arbitration, indemnification, and/or limitation of liability
shall survive termination of this Agreement as to any cause of action arising
under the Agreement.
33. Choice of Law. The domestic law of the State of New York, except its
conflict-of-laws rules, shall govern the construction, interpretation, and
performance of this Agreement, except to the extent superceded by federal law.
34. Amendment. No amendment, supplement, modification or waiver of any provision
of this Agreement shall be effective unless in writing and signed by authorized
representatives of both parties.
35. Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the Services. This Agreement supersedes all prior
agreements, proposals, representations, statements or understandings, whether
written or oral, concerning the Services or the parties' rights or obligations
relating to the Services. Any prior representations, promises, inducements or
statements of intent regarding the Services that are not embodied in this
Agreement are of no effect.
36. Definitions. The following definitions apply in addition to the definitions
set forth elsewhere in this Agreement:
"Affiliate" - any entity that controls, is controlled by or is under common
control with a party.
"End User" - the entity that actually uses the service resold by CUSTOMER.
"Intermediate Reseller" - any reseller or other intermediary (other than
CUSTOMER or its agents or employees) in the sales chain between CUSTOMER and an
End User.
"Tariff" - the AT&T Tariffs identified in the Attachments, and the successor
documents of general applicability that replace such tariffs in the event of
detariffing.
If not otherwise defined, capitalized terms shall be defined as provided in
AT&T's Tariffs.
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AT&T PROPRIETARY
Use Pursuant to AT&T Instructions