INTERCONNECTION AGREEMENT-MISSOURI
between
Southwestern ▇▇▇▇ Telephone Company
and
Birch Telecom of Missouri, Inc.
INTERCONNECTION AGREEMENT-MISSOURI
between
Southwestern ▇▇▇▇ Telephone Company
and
Birch Telecom of Missouri, Inc.
TABLE OF CONTENTS
INTERCONNECTION AGREEMENT-MISSOURI
BETWEEN
SOUTHWESTERN ▇▇▇▇ TELEPHONE COMPANY
AND
BIRCH TELECOM OF MISSOURI, INC.
1. INTRODUCTION......................................................................2
2. EFFECTIVE DATE....................................................................3
3. THIS SECTION INTENTIONALLY LEFT BLANK.............................................3
4. TERM OF AGREEMENT.................................................................3
5. ASSIGNMENT........................................................................5
6. CONFIDENTIALITY AND PROPRIETARY INFORMATION.......................................6
7. LIABILITY AND INDEMNIFICATION.....................................................7
8. PAYMENT OF RATES AND CHARGES.....................................................12
9. DISPUTE RESOLUTION...............................................................12
10. TERMINATION OF SERVICE TO CLEC...................................................15
11. NOTICES..........................................................................17
12. TAXES............................................................................17
13. FORCE MAJEURE....................................................................19
14. PUBLICITY........................................................................19
15. NETWORK MAINTENANCE AND MANAGEMENT...............................................20
16. LAW ENFORCEMENT AND CIVIL PROCESS................................................20
17. CHANGES IN SUBSCRIBER CARRIER SELECTION..........................................21
18. AMENDMENTS OR WAIVERS............................................................22
19. AUTHORITY........................................................................24
20. BINDING EFFECT...................................................................24
21. CONSENT..........................................................................24
22. EXPENSES.........................................................................24
23. HEADINGS.........................................................................24
24. RELATIONSHIP OF PARTIES..........................................................25
25. CONFLICT OF INTEREST.............................................................25
26. MULTIPLE COUNTERPARTS............................................................25
27. THIRD PARTY BENEFICIARIES........................................................25
28. REGULATORY APPROVAL..............................................................25
29. TRADEMARKS AND TRADE NAMES.......................................................25
30. REGULATORY AUTHORITY.............................................................26
31. COMMISSION INTERPRETATION OF SAME OR SUBSTANTIVELY SIMILAR LANGUAGE..............27
32. VERIFICATION REVIEWS.............................................................27
33. COMPLETE TERMS...................................................................28
34. COOPERATION ON PREVENTING END USER FRAUD.........................................28
35. NOTICE OF NETWORK CHANGES........................................................29
36. GOOD FAITH PERFORMANCE...........................................................29
37. RESPONSIBILITY OF EACH PARTY.....................................................29
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38. TRANSMISSION OF TRAFFIC TO THIRD PARTIES.........................................29
39. GOVERNMENTAL COMPLIANCE..........................................................30
40. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION...................................30
41. SUBCONTRACTING...................................................................32
42. REFERENCED DOCUMENTS.............................................................32
43. SEVERABILITY.....................................................................32
44. SURVIVAL OF OBLIGATIONS..........................................................33
45. GOVERNING LAW....................................................................33
46. PERFORMANCE CRITERIA.............................................................33
47 OTHER OBLIGATIONS OF CLEC........................................................33
48. DIALING PARITY; INTERIM NUMBER PORTABILITY.......................................33
49. BRANDING.........................................................................34
50. CUSTOMER INQUIRIES...............................................................34
51. DISCLAIMER OF WARRANTIES.........................................................34
52. NO WAIVER........................................................................34
53. DEFINITIONS......................................................................35
54. RESALE...........................................................................35
55. UNBUNDLED NETWORK ELEMENTS.......................................................35
56. ORDERING AND PROVISIONING, MAINTENANCE, CONNECTIVITY BILLING
AND RECORDING , AND PROVISION OF CUSTOMER USAGE DATA.............................35
57. NETWORK INTERCONNECTION ARCHITECTURE.............................................36
58. COMPENSATION FOR DELIVERY OF TRAFFIC.............................................36
59. ANCILLARY FUNCTIONS..............................................................36
60. SEPARATE AFFILIATE COMMITMENTS...................................................36
61. OTHER REQUIREMENTS AND ATTACHMENTS...............................................37
ATTACHMENTS
RESALE
Attachment 1: Resale
Appendix Services/Pricing
Exhibit A: SWBT's Telecommunications Services Available for Resale
Exhibit B: SWBT's Other Services Available for Resale
Appendix Customized Routing-Resale
Appendix DA-Resale
Appendix OS-Resale
Appendix White Pages (WP)-Resale
Attachment 2: Ordering and Provisioning-Resale
Attachment 3: Maintenance-Resale
Attachment 4: Connectivity Billing-Resale
Attachment 5: Provision of Customer Usage Data-Resale
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UNBUNDLED NETWORK ELEMENTS
Attachment 6: Unbundled Network Elements (UNE)
Appendix Pricing-UNE
Appendix Pricing-UNE: Exhibit 1
Appendix Pricing-UNE Schedule of Prices
Attachment 7: Ordering and Provisioning-UNE
Attachment 8: Maintenance-UNE
Attachment 9: Billing-Other
Attachment 10: Provision of Customer Usage Data-UNE
NETWORK INTERCONNECTION ARCHITECTURE AND COMPENSATION
Attachment 11: Network Interconnection Architecture
Appendix Interconnection Trunking Requirement (ITR)
Appendix Network Interconnection Methods (NIM)
▇▇▇▇▇▇▇▇ ▇▇▇ Interconnection
Attachment 12: Compensation
Appendix FGA
ANCILLARY FUNCTIONS
Attachment 13: Ancillary Functions
Physical Collocation Appendix
Virtual Collocation Appendix
Appendix Poles, Conduit, ROW
OTHER REQUIREMENTS
Attachment 14: Interim Number Portability
Appendix Location Routing Number - PNP
Attachment 15: E911
Attachment 16: Network Security and Law Enforcement
Attachment 17: Performance Remedy Plan
Appendix Measurements Subject to Per Occurrence Damages or
Assessment with a Cap and Measurements Subject to Per Measure
Damages or Assessment Appendix Performance Measures Subject to
Tier-1 and Tier-2 Damages Identified as High, Medium and Low
Appendix 3 Performance Measurement Business Rules (Version 1.7)
Attachment 18: Mutual Exchange of Directory Listing Information
Attachment 19: White Pages-Other (WP-O)
Attachment 20: Clearinghouse
Attachment 21: Numbering
Attachment 22: DA-Facilities Based
Attachment 23: OS-Facilities Based
Attachment 24: Recording-Facilities Based
Attachment 25: DSL/HFPL/Line Splitting
Attachment 26: Legitimately Related Provisions
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INTERCONNECTION AGREEMENT -
MISSOURI
This
Interconnection Agreement -
Missouri ("Agreement") is between Birch
Telecom of
Missouri, Inc. ("CLEC"), a Delaware corporation, having an office at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Southwestern ▇▇▇▇
Telephone Company ("SWBT"), a
Missouri corporation, having an office at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (collectively "the Parties").
WHEREAS, pursuant to the Telecommunications Act of 1996 (the "Act"), the
Parties wish to establish terms for the resale of SWBT services and for the
provision by SWBT of Interconnection, unbundled Network Elements, and Ancillary
Functions as designated in the Attachments hereto.
WHEREAS, SWBT participated in a collaborative process with the Public
Utility Commission of Texas ("Texas PUC," or "Texas Commission") and numerous
competitive local exchange carriers ("CLECs") as part of the process for SWBT to
obtain in-region interLATA authority in Texas.
WHEREAS, SWBT made the following representations as part of the public
interest phase of that collaborative process and made the following
representations to the Missouri Public Service Commission ("Missouri PSC,"
"Missouri Commission," or "Commission") as part of the process for SWBT to
obtain in-region interLATA authority in Missouri:
(1) SWBT represented that it has already made several, and represented
that it would continue, process improvements designed to ▇▇▇▇▇▇
better relationships with and provide better service to its CLEC
customers (such improvements include, but are not limited to: the
restructuring of its organizations and the creation of new
departments to provide faster and better responses to CLECs; the
improvement of communications with CLECs through a greatly
expanded Internet website, internal broadcast e-mails and user
group meetings; the distribution of customer satisfaction surveys;
and the creation of an Internal Escalation Process Intervals
Policy);
(2) SWBT represented that it would follow certain Commission
arbitration awards and other decisions, as set forth elsewhere in
this Agreement (SWBT, however, made such commitment without
waiving its right to appeal awards or decisions specifically set
forth in this Section 18.1, 18.2, and 18.3 of General Terms and
Conditions);
(3) SWBT represented that it would continue to work with its CLEC
customers, and invite their feedback, to provide them a meaningful
opportunity to compete in Missouri;
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(4) SWBT represented that it will comply with the FCC's rules and
subsequent Section 271 decisions relating to the structural and
nonstructural requirements for a Section 272 affiliate;
WHEREAS SWBT offered as part of the Missouri 271 proceeding to make
certain modifications to the
Interconnection Agreement-Missouri between
Southwestern ▇▇▇▇ Telephone Company and AT&T Communications of the Southwest,
Inc. ("the AT&T Interconnection Agreement") available to other CLECs.
WHEREAS, CLEC wishes to enter an agreement containing those terms and
conditions.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of this Agreement CLEC and SWBT hereby agree as follows:
1.0 INTRODUCTION
1.1 This Agreement sets forth the terms, conditions and prices under which
SWBT agrees to provide (a) services for resale (hereinafter referred to
as Resale services), (b) unbundled Network Elements, or combinations of
such Network Elements (Combinations), (c) Ancillary Functions and (d)
Interconnection to CLEC. This Agreement also sets forth the terms and
conditions for the interconnection of CLEC's network to SWBT's network
and reciprocal compensation for the transport and termination of
telecommunications.
1.2 The Network Elements, Combinations or Resale services provided pursuant
to this Agreement may be connected to other Network Elements,
Combinations or Resale services provided by SWBT or to any network
components provided by CLEC itself or by any other vendor. Subject to the
requirements of this Agreement, CLEC may at any time add, delete,
relocate or modify the Resale services, Network Elements or Combinations
purchased hereunder.
1.3 Except as provided in this Agreement, during the term of this Agreement,
SWBT will not discontinue, as to CLEC, any Network Element, Combination,
or Ancillary Functions offered to CLEC hereunder. During the term of this
Agreement, SWBT will not discontinue any Resale services or features
offered to CLEC hereunder except as provided in this Agreement. This
Section is not intended to impair SWBT's ability to make changes in its
Network, so long as such changes are consistent with the Act and do not
result in the discontinuance of the offerings of Network Elements,
Combinations, or Ancillary Functions made by SWBT to CLEC as set forth in
and during the terms of this Agreement.
1.4 SWBT may fulfill the requirements imposed upon it by this Agreement by
itself or may cause its Affiliates to take such actions to fulfill the
responsibilities.
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1.5 This Agreement includes and incorporates herein the Attachments listed in
Section 61 of this Agreement, and all accompanying Appendices, Addenda
and Exhibits.
1.6 Unless otherwise provided in the Agreement, SWBT will perform all of its
obligations concerning its offering of Resale services and unbundled
Network Elements under this Agreement throughout the entire service area
where SWBT is the incumbent local exchange carrier; provided, that SWBT's
obligations to provide Ancillary Functions or to meet other requirements
of the Act covered by this Agreement are not necessarily limited to such
service areas.
2.0 EFFECTIVE DATE
2.1 Any CLEC that wants to accept this entire Agreement (after the Missouri
Public Service Commission has issued an order finding that this Agreement
satisfies the competitive checklist under 47 U. S. C. Section 271(c) and
supporting SWBT's application for in-region intraLATA relief for the
State of Missouri), shall notify SWBT in writing. Within 5 business days
of such notification, SWBT shall present the CLEC with a signed
Interconnection Agreement substantively identical to this Agreement.
Within 5 business days of receipt of the SWBT signed Interconnection
Agreement, the CLEC shall sign the Interconnection Agreement and file it
with this Commission. The signed Interconnection Agreement between SWBT
and the CLEC shall become effective by operation of law immediately upon
filing with the Commission (the "Effective Date").
3.0 THIS SECTION INTENTIONALLY LEFT BLANK
4.0 TERM OF AGREEMENT
4.1 This Agreement will become effective as of the Effective Date stated
above, and will expire March 6, 2002, unless the Federal Communications
Commission (FCC) approves SWBT's application to provide in-region
interLATA service in Missouri under 47 U.S.C. Section 271 by June 29,
2001, in which event the terms of this Agreement will automatically be
extended until March 6, 2005. In the event the FCC approves SWBT's
application to provide in-region interLATA service in Missouri under 47
U.S.C. Section 271 after June 29, 2001, but prior to ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇
shall have the option of extending the Agreement until March 6, 2005. In
such event, SWBT will provide notice to the Commission and to CLEC,
within five business days of FCC approval, of its agreement to extend
the Agreement until March 6, 2005. If either party desires to negotiate
a
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successor agreement to this Agreement, such party must provide the other
party with a written request to negotiate such successor agreement
(Request to Negotiate) not later than 180 days prior to the expiration of
this Agreement. A Request to Negotiate does not activate the negotiation
timeframe set forth in this Agreement, nor does it shorten the life of
this Agreement. The noticing Party will delineate the items desired to be
negotiated. Not later than 30 days from receipt of said Notice to
Negotiate, the receiving Party will notify the sending Party of
additional items desired to be negotiated, if any. The Parties will begin
negotiations not later than 135 days prior to expiration of this
Agreement. If the FCC approves SWBT's application to provide in-region
interLATA service in Missouri after June 29, 2001 and SWBT provides
notice of its agreement under this Section to extend the Agreement until
March 6, 2005 CLEC may withdraw its Request to Negotiate.
4.1.1 This Agreement will not go into effect until the Missouri Public Service
Commission has issued an Order finding that this Agreement satisfies the
competitive checklist under 47 U.S.C. Section 271(c) and supporting
SWBT's application for in-region interLATA relief for the State of
Missouri. SWBT's offering of this Agreement and all sections, attachments
and offerings therein are expressly conditioned upon the Missouri Public
Service Commission's support for SWBT's application for in-region
interLATA relief for the State of Missouri. If the Missouri Public
Service Commission does not support SWBT's application for in-region
interLATA relief for the State of Missouri, then SWBT's offering of this
Agreement and all sections, attachments and offerings therein is
immediately withdrawn and this Agreement will not go into effect.
4.1.2 Should CLEC opt to incorporate any provision of another interconnection
agreement into this Agreement pursuant to Section 252(i) of the Act, such
incorporated provision shall expire on the date it would have expired
under the interconnection agreement from which it was taken. Should CLEC
opt to incorporate any provision of this Agreement into another
interconnection agreement pursuant to Section 252(i) of the Act, the
provision from this Agreement shall expire on the date provided in
Section 4.1 above and shall not control the expiration date of the
provisions of the other interconnection agreement.
4.2 If either party has served a Notice to Negotiate pursuant to paragraph
4.1 above then, notwithstanding the expiration of the Agreement in
accordance with paragraph 4.1 above, the terms, conditions, and prices of
this Agreement will remain in effect for a maximum of 135 days after
expiration of the Agreement for completion of said negotiations and any
necessary arbitration. The Parties agree to resolve any impasse by
submission of the disputed matters to the Missouri PSC for arbitration.
Should the Missouri PSC decline jurisdiction, the Parties will resort to
a commercial provider of arbitration services.
4.2.1 Pursuant to Sections 18.2 and 18.3, SWBT and CLEC agree not to challenge
the lawfulness of any provision of this Agreement. In the event that one
of the Parties to this Agreement nonetheless challenges the lawfulness of
any provision of this Agreement in a
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judicial, dispute resolution, or regulatory proceeding, then the other
Party, at its option, may terminate this Agreement immediately. In such
event, the Parties shall have a period not to exceed 135 days in which to
negotiate, and 135 additional days to arbitrate any disputes for, a
replacement interconnection agreement. However, should a non-party
successfully challenge the lawfulness of any provision of this Agreement,
SWBT and CLEC agree that, despite such challenge, the terms and
conditions of this Agreement will continue to apply and be effective
between SWBT and CLEC. Nothing in this Section 4.2.1 is intended to imply
that pursuit of resolution of disputes concerning a Party's
clarifications or interpretations of the provisions of this Agreement, as
provided in Sections 18.2 and 18.3, is a challenge to the lawfulness of
this Agreement.
4.3 Upon termination of this Agreement, CLEC's liability will be limited to
payment of the amounts due for Network Elements, Combinations, Ancillary
Functions and Resale Services provided up to and including the date of
termination and thereafter as reasonably requested by CLEC to prevent
service interruption, but not to exceed 135 days after the expiration of
this agreement to allow for completion of negotiations, and any
arbitration for, a successor agreement (such 135 day
negotiation/arbitration period being in addition to the pre-expiration
negotiation period of a minimum of 135 days, as provided for in Section
4.1 above). The Network Elements, Combinations, Ancillary Functions and
Resale services provided hereunder are vital to CLEC and must be
continued without interruption. When CLEC provides or retains another
vendor to provide such comparable Network Elements, Combinations,
Ancillary Functions or Resale services, SWBT and CLEC agree to co-operate
in an orderly and efficient transition to CLEC or another vendor. SWBT
and CLEC further agree to coordinate the orderly transition to CLEC or
another vendor such that the level and quality of the Network Elements,
Combinations, Ancillary Functions and Resale Services is not degraded and
each Party will exercise its best efforts to effect an orderly and
efficient transition.
5.0 ASSIGNMENT
5.1 Neither Party hereto may assign or otherwise transfer its rights or
obligations under this Agreement, except with the prior written consent
of the other Party hereto, which consent will not be unreasonably
withheld; provided, that SWBT may assign its rights and delegate its
benefits and delegate its duties and obligations under this Agreement
without the consent of CLEC to a 100 per cent owned affiliate of SWBT,
provided the performance of any such assignee is guaranteed by the
assignor. Nothing in this Section is intended to impair the right of
either Party to utilize subcontractors.
5.2 Each Party will notify the other in writing not less than 60 days in
advance of anticipated assignment.
6.0 CONFIDENTIALITY AND PROPRIETARY INFORMATION
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6.1 For the purposes of this Agreement, "Confidential Information" means
confidential or proprietary technical or business information given by
the Discloser to the Recipient. All information which is disclosed by one
party to the other in connection with this Agreement, during negotiations
and the term of this Agreement, will automatically be deemed proprietary
to the Discloser and subject to this Agreement, unless otherwise
confirmed in writing by the Discloser. In addition, by way of example and
not limitation, all orders for Resale Services, Network Elements or
Combinations placed by CLEC pursuant to this Agreement, and information
that would constitute Customer Proprietary Network Information of CLEC's
customers pursuant to the Act and the rules and regulations of the
Federal Communications Commission (FCC), and Recorded Usage Data as
described in Attachments 5 and 10 concerning Recorded Usage Data, whether
disclosed by CLEC to SWBT or otherwise acquired by SWBT in the course of
the performance of this Agreement, will be deemed Confidential
Information of CLEC for all purposes under this Agreement.
6.2 For a period of five (5) years from the receipt of Confidential
Information from the Discloser, except as otherwise specified in this
Agreement, the Recipient agrees (a) to use it only for the purpose of
performing under this Agreement, (b) to hold it in confidence and
disclose it to no one other than its employees having a need to know for
the purpose of performing under this Agreement, and (c) to safeguard it
from unauthorized use or disclosure using at least the same degree of
care with which the Recipient safeguards its own Confidential
Information. If the Recipient wishes to disclose the Discloser's
Confidential Information to a third-party agent or consultant, such
disclosure must be agreed to in writing by the Discloser, and the agent
or consultant must have executed a written agreement of nondisclosure and
nonuse comparable in scope to the terms of this Section.
6.3 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations under this Agreement. All
such copies will be subject to the same restrictions and protections as
the original and will bear the same copyright and proprietary rights
notices as are contained on the original.
6.4 The Recipient agrees to return all Confidential Information in tangible
form received from the Discloser, including any copies made by the
Recipient within thirty (30) days after a written request is delivered to
the Recipient, or to destroy all such Confidential Information if
directed to do so by Discloser except for Confidential Information that
the Recipient reasonably requires to perform its obligations under this
Agreement. If either Party loses or makes an unauthorized disclosure of
the other Party's Confidential Information, it will notify such other
party immediately and use reasonable efforts to retrieve the lost or
wrongfully disclosed information.
6.5 The Recipient will have no obligation to safeguard Confidential
Information: (a) which was in the possession of the Recipient free of
restriction prior to its receipt from the
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Discloser, (b) after it becomes publicly known or available through no
breach of this Agreement by the Recipient; (c) after it is rightfully
acquired by the Recipient free of restrictions on its disclosure; or (d)
after it is independently developed by personnel of the Recipient to whom
the Discloser's Confidential Information had not been previously
disclosed. In addition, either Party will have the right to disclose
Confidential Information to any mediator, arbitrator, state, or federal
regulatory body, or a court in the conduct of any mediation, arbitration
or approval of this Agreement, so long as, in the absence of an
applicable protective order, the Discloser has been promptly notified by
the Recipient and so long as the Recipient undertakes all lawful measures
to avoid disclosing such information until Discloser has had reasonable
time to negotiate a protective order with any such mediator, arbitrator,
state or regulatory body or a court, and complies with any protective
order that covers the Confidential Information.
6.6 The Parties acknowledge that an individual end user may simultaneously
seek to become or be a customer of both Parties. Nothing in this
Agreement is intended to limit the ability of either Party to use
customer specific information lawfully obtained from end users or sources
other than the Disclosing Party.
6.7 Each Party's obligations to safeguard Confidential Information disclosed
prior to expiration or termination of this Agreement will survive such
expiration or termination.
6.8 Except as otherwise expressly provided elsewhere in this Agreement, no
license is hereby granted under any patent, trademark, or copyright, nor
is any such license implied solely by virtue of the disclosure of any
Confidential Information.
6.9 Each Party agrees that the Discloser may be irreparably injured by a
disclosure in breach of this Agreement by the Recipient or its
representatives and the Discloser will be entitled to seek equitable
relief, including injunctive relief and specific performance, in the
event of any breach or threatened breach of the confidentiality
provisions of this Agreement. Such remedies will not be deemed to be the
exclusive remedies for a breach of this Agreement, but will be in
addition to all other remedies available at law or in equity.
7.0 LIABILITY AND INDEMNIFICATION
7.1 LIMITATION OF LIABILITIES
7.1.1 Except as specifically provided in Attachment 25 DSL-MO, the Parties'
liability to each other during any Contract Year resulting from any and
all causes, other than as specified below in Sections 7.3.1 and 7.3.6,
following, and for willful or intentional misconduct (including gross
negligence), will not exceed the total of any amounts due and owing to
CLEC pursuant to Section 46 (Performance Criteria) and the Attachment
referenced in that Section, plus the amounts charged to CLEC by SWBT
under this Agreement during the Contract Year in which such cause accrues
or arises. For purposes of this Section, the
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first Contract Year commences on the first day this Agreement becomes
effective and each subsequent Contract Year commences on the day
following that anniversary date.
7.1.2 Except for losses alleged or made by an end user of either Party, or
except as otherwise provided in specific appendices, in the case of any
loss alleged or made by a third party arising under the negligence or
willful misconduct of both Parties, each Party shall bear, and its
obligation under this section shall be limited to, that portion (as
mutually agreed to by the Parties) of the resulting expense caused by its
own negligence or willful misconduct or that of its agents, servants,
contractors, or others acting in aid or concert with it.
7.2 NO CONSEQUENTIAL DAMAGES
7.2.1 EXCEPT AS OTHERWISE PROVIDED IN ATTACHMENT 17, NEITHER CLEC NOR SWBT WILL
BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL CONSEQUENTIAL,
RELIANCE, OR SPECIAL DAMAGES SUFFERED BY SUCH OTHER PARTY (INCLUDING
WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST
SAVINGS, OR LOST PROFITS SUFFERED BY SUCH OTHER PARTIES), REGARDLESS OF
THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR
TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE OF ANY KIND WHETHER ACTIVE
OR PASSIVE, AND REGARDLESS OF WHETHER THE PARTIES KNEW OF THE POSSIBILITY
THAT SUCH DAMAGES COULD RESULT. EACH PARTY HEREBY RELEASES THE OTHER
PARTY (AND SUCH OTHER PARTY'S SUBSIDIARIES AND AFFILIATES, AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) FROM ANY SUCH
CLAIM. NOTHING CONTAINED IN THIS SECTION WILL LIMIT SWBT'S OR CLEC'S
LIABILITY TO THE OTHER FOR (i) WILLFUL OR INTENTIONAL MISCONDUCT
(INCLUDING GROSS NEGLIGENCE); (ii) BODILY INJURY, DEATH, OR DAMAGE TO
TANGIBLE REAL OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY SWBT OR
CLEC'S NEGLIGENT ACT OR OMISSION OR THAT OF THEIR RESPECTIVE AGENTS,
SUBCONTRACTORS OR EMPLOYEES, NOR WILL ANYTHING CONTAINED IN THIS SECTION
LIMIT THE PARTIES INDEMNIFICATION OBLIGATIONS, AS SPECIFIED BELOW.
7.3 OBLIGATION TO INDEMNIFY
7.3.1 Each Party will and hereby agrees to defend at the other's request,
indemnify, and hold harmless the other Party and each of its officers,
directors, employees, and agents (each, an Indemnitee) against and in
respect of any loss, debt, liability, damage, obligation, claim, demand,
judgment, or settlement of any nature or kind, known or unknown,
liquidated or unliquidated, including without limitation all reasonable
costs and expenses incurred (legal, account or otherwise) (collectively,
Damages) arising out of, resulting
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from, or based upon any pending or threatened claim, action, proceeding
or suit by any third party (a Claim) (i) alleging any omissions, breach
of any representation, warranty, or covenant made by such indemnifying
Party (the Indemnifying Party) in this Agreement, (ii) based upon
injuries or damages to any person or property or the environment arising
out of or in connection with this Agreement that are the result of the
Indemnifying Party's actions, breach of Applicable Law, or the actions,
omissions or status of its employees, agents, and subcontractors.
7.3.1.1 In the case of any loss alleged or made by an end user of either
Party, the Party whose end user alleged or made such loss
(Indemnifying Party) shall defend and indemnify the other party
(Indemnified Party) against any and all such claims or loss by its end
users regardless of whether the underlying service was provided or
unbundled element was provisioned by the Indemnified Party, unless the
loss was caused by the gross negligence or intentional or willful
misconduct or breach of applicable law of the other (Indemnified)
Party.
7.3.2 CLEC acknowledges that its right under this Agreement to interconnect
with SWBT's Missouri network and to unbundle and/or combine SWBT's
network elements (including combining with CLEC's network elements) may
be subject to or limited by Intellectual Property rights (including
without limitation, patent, copyright, trade secret, trade ▇▇▇▇, service
▇▇▇▇, trade name and trade dress rights) and contract rights of third
parties.
7.3.3 The Parties acknowledge that on April 27, 2000, the FCC released its
Memorandum Opinion and Order in CC Docket ▇▇. ▇▇-▇▇ (▇▇▇▇ ▇▇. ▇▇▇▇▇▇.
▇▇-▇), ▇▇ THE MATTER OF PETITION OF MCI FOR DECLARATORY RULING. Absent
any stay, reconsideration or appeal, such Order will become effective
thirty (30) days following the future publication of such Order in the
Federal Register. The Parties further acknowledge and agree that by
executing this Agreement, neither Party waives any of its rights,
remedies, or arguments with respect to such decision and any remand
thereof, including its right to seek legal review or a stay pending
appeal of such decision.
7.3.3.1 When the Order referenced in Section 7.3.3 (or any reconsideration or
appeal therefrom) is effective, SWBT agrees to use its best efforts to
obtain for CLEC, under commercially reasonable terms, Intellectual
Property rights to each unbundled network element necessary for CLEC
to use such unbundled network element in the same manner as SWBT.
7.3.3.2 SWBT shall have no obligation to attempt to obtain for CLEC any
Intellectual Property right(s) that would permit CLEC to use any
unbundled network element in a different manner than used by SWBT.
7.3.3.3 When the Order referenced in Section 7.3.3 (or any reconsideration or
appeal therefrom) is effective, to the extent not prohibited by a
contract with the vendor
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of the network element sought by CLEC that contains Intellectual
Property licenses, SWBT shall reveal to CLEC the name of the vendor,
the Intellectual Property rights licensed to SWBT under the vendor
contract and the terms of the contract (excluding cost terms). SWBT
shall, at CLEC's request, contact the vendor to attempt to obtain
permission to reveal additional contract details to CLEC.
7.3.4 SWBT hereby conveys no licenses to use such Intellectual Property rights
and makes no warranties, express or implied, concerning CLEC's (or any
third party's) rights with respect to such Intellectual Property rights
and contract rights, including whether such rights will be violated by
such interconnection or unbundling and/or combining of network elements
(including combining with CLEC's network elements) in SWBT's network or
CLEC's use of other functions, facilities, products or services furnished
under this Agreement. Any licenses or warranties for Intellectual
Property rights associated with unbundled network elements are vendor
licenses and warranties and are a part of the Intellectual Property
rights SWBT agrees in Section 7.3.3.1 to use its best efforts to obtain.
7.3.5 SWBT does not and shall not indemnify, defend or hold CLEC harmless, nor
be responsible for indemnifying or defending, or holding CLEC harmless,
for any Claims or Damages for actual or alleged infringement of any
Intellectual Property right or interference with or violation of any
contract right that arises out of, is caused by, or relates to CLEC's
interconnection with SWBT's network and unbundling and/or combining
SWBT's network elements (including combining with CLEC's network
elements) or CLEC's use of other functions, facilities, products or
services furnished under this Agreement. Any indemnities for Intellectual
Property rights associated with unbundled network elements shall be
vendor's indemnities and are a part of the Intellectual Property rights
SWBT agrees in Section 7.3.3.1 to use its best efforts to obtain.
7.3.6 CLEC hereby agrees to release, indemnify and hold SWBT harmless from and
against all Damages arising out of, caused by, or relating to any Claim
that CLEC's interconnection with SWBT's network, or CLEC's use of SWBT's
network elements, or unbundling and/or combining of SWBT's network
elements (including combining with CLEC's network elements) or CLEC's use
of other functions, facilities, products or services furnished under this
Agreement violates or infringes upon any third party Intellectual
Property rights or constitutes a breach of contract rights of third
parties.
7.3.7 All costs associated with the extension of Intellectual Property rights
to CLEC pursuant to Section 7.3.3.1, including the cost of the license
extension itself and the costs associated with the effort to obtain the
license, shall be a part of the cost of providing the unbundled network
element to which the Intellectual Property rights relate and apportioned
to all requesting carriers using that unbundled network element including
SWBT.
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7.4 OBLIGATION TO DEFEND; NOTICE; COOPERATION
7.4.1 Whenever a Claim will arise for indemnification under this Section, the
relevant Indemnitee, as appropriate, will promptly notify the
Indemnifying party and request the Indemnifying Party to defend the same.
Failure to so notify the Indemnifying Party will not relieve the
Indemnifying Party of any liability that the Indemnifying Party might
have, except to the extent that such failure prejudices the Indemnifying
Party's ability to defend such Claim. The Indemnifying Party will have
the right to defend against such liability or assertion in which event
the Indemnifying Party will give written notice to the Indemnitee of
acceptance of the defense of such Claim and the identity of counsel
selected by the Indemnifying Party. Except as set forth below, such
notice to the relevant Indemnitee will give the Indemnifying Party full
authority to defend, adjust, compromise, or settle such Claim with
respect to which such notice will have been given, except to the extent
that any compromise or settlement might prejudice the Intellectual
Property Rights of the relevant Indemnities. The Indemnifying Party will
consult with the relevant Indemnitee prior to any compromise or
settlement that would affect the Intellectual Property Rights or other
rights of any Indemnitee, and the relevant Indemnitee will have the right
to refuse such compromise or settlement and, at the refusing Party's or
refusing Party's cost, to take over such defense, provided that in such
event the Indemnifying Party will not be responsible for, nor will it be
obligated to indemnify the relevant Indemnitee against any cost or
liability in excess of such refused compromise or settlement. With
respect to any defense accepted by the Indemnifying Party, the relevant
Indemnitee will be entitled to participate with the Indemnifying Party in
such defense if the Claim requests equitable relief or other relief that
could affect the rights of the Indemnitee and also will be entitled to
employ separate counsel for such defense at such Indemnitee's expense. In
the event the Indemnifying Party does not accept the defense of any
indemnified Claim as provided above, the relevant Indemnitee will have
the right to employ counsel for such defense at the expense of the
Indemnifying Party. Each Party agrees to cooperate and to cause its
employees and agents to cooperate with the other Party in the defense of
any such Claim.
7.5 OSHA STATEMENT
7.5.1 CLEC, in recognition of SWBT's status as an employer, agrees to abide by
and to undertake the duty of compliance on behalf of SWBT with all
federal, state and local laws, safety and health regulations relating to
CLEC's activities concerning Collocated Space, and to indemnify and hold
SWBT harmless for any judgments, citations, fines, or other penalties
which are assessed against SWBT as the result solely of CLEC's failure to
comply with any of the foregoing. SWBT, in its status as an employer,
will comply with all federal, state and local laws, safety and health
standards and regulations with respect to all other portions of the
Premises, and agrees to indemnify and hold CLEC harmless for any
judgments, citations, fines or other penalties which are assessed against
CLEC as a result solely of SWBT's failure to comply with any of the
foregoing.
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8.0 PAYMENT OF RATES AND CHARGES
8.1 Except as otherwise specifically provided elsewhere in this Agreement,
the Parties will pay all rates and charges due and owing under this
Agreement within thirty (30) days of receipt of an invoice. Except as
otherwise specifically provided in this Agreement interest on overdue
invoices will apply at the six (6) month Commercial Paper Rate applicable
on the first business day of each calendar year.
8.2 If CLEC fails to remit payment for any charges for services by the ▇▇▇▇
Due Date, or if a payment or any portion of a payment is received from
CLEC after the ▇▇▇▇ Due Date, or if a payment or any portion of a payment
is received in funds which are not immediately available to SWBT as of
the ▇▇▇▇ Due Date (individually and collectively, "Past Due"), then a
late payment charge shall be assessed as provided in Sections 8.2.1
through 8.2.2, as applicable.
8.2.1 If any charge incurred under this Agreement that is billed out of any
SWBT billing system other than the SWBT Customer Records Information
System (▇▇▇▇) is Past Due, the unpaid amounts shall bear interest from
the ▇▇▇▇ Due Date until paid at the lesser of (i) the rate used to
compute the Late Payment Charge in the SWBT Missouri intrastate access
services tariff or (ii) the highest rate of interest that may be charged
under Applicable Law, compounded daily from the ▇▇▇▇ Due Date to and
including the date that the payment is actually made and available.
8.2.2 If any charge incurred under this Agreement that is billed out of SWBT's
▇▇▇▇ system is Past Due, the unpaid amounts shall bear interest from the
▇▇▇▇ Due Date until paid. The interest rate applied to SWBT ▇▇▇▇-billed
Past Due unpaid amounts shall be the lesser of (i) the rate used to
compute the Late Payment Charge contained in the SWBT General Exchange
tariff for business End Users in Missouri or (ii) the highest rate of
interest that may be charged under Applicable Law, compounded daily from
the ▇▇▇▇ Due Date to and including the date that the payment is actually
made and available.
9.0 DISPUTE RESOLUTION
9.1 FINALITY OF DISPUTES
9.1.1 Except as otherwise specifically provided in this Agreement, no claims
will be brought for disputes arising from this Agreement more than 24
months from the date the occurrence which gives rise to the dispute is
discovered or reasonably should have been discovered with the exercise of
due care and attention.
9.2 ALTERNATIVE TO LITIGATION
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9.2.1 The Parties desire to resolve disputes arising out of 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 Dispute Resolution
procedure with respect to any controversy or claim arising out of or
relating to this Agreement or its breach.
9.3 INFORMAL RESOLUTION OF DISPUTES
9.3.1 In the case of any dispute and 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 under this
Agreement. The location, form, frequency, duration, and conclusion of
these discussions will be left to the discretion of the representatives.
Upon agreement, the representatives may utilize other alternative
informal dispute resolution procedures such as mediation to assist in the
negotiations. Discussions and the correspondence among the
representatives for purposes of settlement are exempt from discovery and
production and will not be admissible in the arbitration described below
or in any lawsuit without the concurrence of both parties. Documents
identified in or provided with such communications, which are not
prepared for purposes of the negotiations, are not so exempted and, if
otherwise admissible, may be admitted in evidence in the arbitration or
lawsuit.
9.3.2 Request for Expedited Resolution
When a dispute affects the ability of a party to provide uninterrupted
service or hinders the provisioning of any service, functionality or
network element, the party may file a complaint to initiate an expedited
informal dispute resolution proceeding. This process applies to the
following types of issues: establishment of service, service
interruption, service outage or disconnection. This process is not
intended to address complex business problems that do not preclude a CLEC
from providing service, such as billing accuracy. This process is in
addition to any other dispute resolution process or procedure that exists
under the rules and regulations of the Commission. The parties agree to
recommend that the Commission appoint Commission Staff to the case to
proceed on an expedited bases.
Any complaint filed pursuant to this procedure must include the following
information:
a) the specific circumstances that make the dispute eligible for the
expedited dispute resolution process;
b) a description of the particular service-affecting issue giving
rise to the complaint;
c) a description of the parties' efforts to resolve the disputed
issue;
d) A list of cross-references to the area or areas of the M2A
applicable to the issue in dispute as applicable; and
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e) Any proposed resolution of the dispute.
The respondent shall file a response to the complaint within five
business days after the filing of the complaint. The respondent shall
serve a copy of the response on the complainant by hand-delivery or
facsimile on the same day as it is filed with the Commission.
The parties agree to meet with the appointed Commission Staff within 10
business days, but no sooner than 5 business days, of the date the
response is filed. The parties agree that Commission Staff has authority
to oversee the discussion between the parties and may act in the capacity
of the mediator.
If a party believes that a more formal proceeding is necessary, the party
may file a Complaint to proceed according to the rules and regulations
governing administrative procedure by the Commission and the parties
agree to jointly recommend expedited handling of the complaint.
9.4 BILLING DISPUTES
9.4.1 The Parties agree that with respect to matters that are purely unresolved
billing disputes, all bills, including bills disputed in whole or in
part, are to be paid when due, that interest applies to all overdue
invoices as set forth in Section 8 to this Agreement, and that no other
late payment fee or charge applies to overdue invoices. The Parties
further agree that if any billing dispute is resolved in favor of the
disputing Party the disputing Party will receive, by crediting or
otherwise, interest applied to the disputed amount as set forth in
Section 8.
9.4.2 To the extent that any other portions of this Agreement provide for a
▇▇▇▇ closure process between the parties, or if such a process is
mutually agreed to by the Parties, the procedures involved in such
processes will not be deemed to place a particular billing item in
dispute for purposes of this Section.
9.4.3 Each Party agrees to notify the other Party of a billing dispute and may
invoke the informal dispute resolution process described in Section 9.2.
The parties will endeavor to resolve the dispute within thirty (30)
calendar days of the ▇▇▇▇ Date on which such disputed charges appear, or,
if the charges have been subject to the ▇▇▇▇ closure process described in
Section 9.4.2, above, within thirty (30) calendar days of the closure of
the billing period covered by such ▇▇▇▇ closure process.
9.5 FORMAL RESOLUTION OF DISPUTES
9.5.1 Except as otherwise specifically set forth in this Agreement, for all
disputes arising out of or pertaining to this Agreement, including but
not limited to matters not specifically
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addressed elsewhere in this Agreement which require clarification,
renegotiation, modifications or additions to this Agreement, either party
may invoke dispute resolution procedures available pursuant to the
dispute resolution rules, as amended from time to time, of the Public
Service Commission of Missouri. Also, upon mutual agreement, the parties
may seek commercial binding arbitration as specified in Section 9.6.
9.5.2 The Parties agree that the Dispute Resolution procedures set forth in
this Agreement are not intended to conflict with applicable requirements
of the Act or the state commission with regard to procedures for the
resolution of disputes arising out of this Agreement.
9.6 ARBITRATION
9.6.1 When both parties agree to binding arbitration, disputes will be
submitted to a single arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association or pursuant to such other
provider of arbitration services or rules as the Parties may agree. The
place where each separate arbitration will be held will alternate between
Dallas, Texas, and St. Louis, Missouri, unless the Parties agree
otherwise. The arbitration hearing will be requested to commence within
60 days of the demand for arbitration. The arbitrator will control the
scheduling so as to process the matter expeditiously. The Parties may
submit written briefs upon a schedule determined by the arbitrator. The
Parties will request that the arbitrator rule on the dispute by issuing a
written opinion within 30 days after the close of hearings. The
arbitrator has no authority to order punitive or consequential damages.
The times specified in this Section may be extended or shortened upon
mutual agreement of the Parties or by the arbitrator upon a showing of
good cause. Each Party will bear its own costs of these procedures. The
Parties will equally split the fees of the arbitration and the
arbitrator. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
10.0 TERMINATION OF SERVICE TO CLEC
10.1 Failure of CLEC to pay charges may be grounds for termination of this
Agreement. If CLEC fails to pay when due, any and all charges billed to
them under this Agreement, (Unpaid Charges), and any portion of such
charges remain unpaid more than fifteen (15) calendar days after the due
date of such Unpaid Charges, SWBT will notify CLEC in writing that in
order to avoid having service disconnected, CLEC must remit all Unpaid
Charges, whether disputed or undisputed, to SWBT within fifteen (15)
calendar days after receipt of said notice. Disputes hereunder will be
resolved in accordance with the Dispute Resolution Procedures set out in
Section 9 of this Agreement.
10.2 If any CLEC charges remain unpaid at the conclusion of the time period as
set forth in Section 10.1 above (30 calendar days from the due date of
such unpaid charges), SWBT will notify CLEC, the appropriate
commission(s) and the end user's IXC(s) of Record in writing, that unless
all charges are paid within fifteen (15) calendar days, CLEC's service
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will be disconnected and CLEC's resale end users may be switched to SWBT
local service. SWBT will also suspend order acceptance at this time.
10.3 If any CLEC charges remain unpaid or undisputed thirty (30) calendar days
past the due date of the unpaid charges as described in Section 10.2
above, CLEC will, at its sole expense, notify its end users, the
Commission and the end user's IXC of Record that their service may be
disconnected for CLEC failure to pay unpaid charges, and that its end
users must select a new local service provider within fifteen (15)
calendar days. The notice will also advise the resale end user that SWBT
will assume the resale end user's account at the end of the fifteen (15)
calendar day period should the resale end user fail to select a new local
service provider.
10.4 If any CLEC charges remain unpaid or undisputed forty-five (45) calendar
days past the due date, SWBT will disconnect CLEC and transfer all CLEC's
resale end users who have not selected another local service provider
directly to SWBT's service. These resale end users will receive the same
services provided through CLEC at the time of transfer. SWBT will inform
the Commission and the end user's IXC(s) of Record of the names of all
end users transferred through this process. Applicable service
establishment charges for switching end users from CLEC to SWBT will be
assessed to CLEC.
10.5 Within five (5) calendar days of the transfer (50 calendar days past
CLEC's due date), SWBT will notify all transferred end users that because
of a CLEC's failure to pay, their service is now being provided by SWBT.
SWBT will also notify the transferred end user that they have thirty (30)
calendar days to select a local service provider. If the transferred end
user does not select an LSP within 30 calendar days, the customer's
service will be terminated.
10.6 SWBT may discontinue service to CLEC upon failure to pay undisputed
charges as provided in this section, and will have no liability to CLEC
in the event of such disconnection.
10.7 After disconnect procedures have begun, SWBT will not accept service
orders from CLEC until all unpaid charges are paid. SWBT will have the
right to require a deposit equal to one month's charges (based on the
highest previous month of service from SWBT) prior to resuming service to
CLEC after disconnect for nonpayment.
10.8 Beyond the specifically set out limitations in this section, nothing
herein will be interpreted to obligate SWBT to continue to provide
service to any such end users or to limit any and all disconnection
rights SWBT may have with regard to such end users.
11.0 NOTICES
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11.1 In the event any notices are required to be sent under the terms of this
Agreement, they may be sent by mail and are deemed to have been given on
the date received. Notice may also be effected by personal delivery or by
overnight courier, and will be effective upon receipt. Notice may also be
provided by facsimile, which will be effective on the next business day
following the date of transmission; provided, however, notices to a
Party's 24-hour maintenance contact number will be by telephone and/or
facsimile and will be deemed to have been received on the date
transmitted. The Parties will provide the appropriate telephone and
facsimile numbers to each other. Unless otherwise specifically provided
in this Agreement, notice will be directed as follows:
11.2 If to CLEC:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel
Birch Telecom of Missouri, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
11.3 If to SWBT:
Contract Management
ATTN: Notices Manager
Four ▇▇▇▇ Plaza, 9th Flr.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Either Party may unilaterally change its designated representative and/or
address, telephone contact number or facsimile number for the receipt of
notices by giving seven (7) days' prior written notice to the other Party
in compliance with this Section. Any notice or other communication will
be deemed given when received.
12.0 TAXES
12.1 With respect to any purchase of service under this Agreement, if any
Federal, state or local government tax, fee, surcharge, or other tax-like
charge (a "Tax") is required or permitted by applicable law, ordinance or
tariff to be collected from a purchasing Party by the providing Party,
then (i) the providing Party will ▇▇▇▇, as a separately stated item, the
purchasing Party for such Tax, (ii) the purchasing Party will timely
remit such Tax to the providing Party, and (iii) the providing Party will
remit such collected Tax to the applicable taxing authority.
12.2 If the providing Party does not collect a Tax because the purchasing
Party asserts that it is not responsible for the tax, or is otherwise
excepted from the obligation which is later
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determined by formal action to be wrong then, as between the providing
Party and the purchasing Party, the purchasing Party will be liable for
such uncollected Tax and any interest due and/or penalty assessed on the
uncollected Tax by the applicable taxing authority or governmental
entity.
12.3 If either Party is audited by a taxing authority or other governmental
entity the other Party agrees to reasonably cooperate with the Party
being audited in order to respond to any audit inquiries in a proper and
timely manner so that the audit and/or any resulting controversy may be
resolved expeditiously.
12.4 If applicable law excludes or exempts a purchase of services under this
Agreement from a Tax, and if such applicable law also provides an
exemption procedure, such as an exemption certificate requirement, then,
if the purchasing Party complies with such procedure, the providing
Party, subject to Section 12.2, will not collect such Tax during the
effective period of the exemption. Such exemption will be effective upon
receipt of the exemption certificate or affidavit in accordance with
Section 12.7.
12.5 If applicable law excludes or exempts a purchase of services under this
Agreement from a Tax, but does not also provide an exemption procedure,
then the providing Party will not collect such Tax if the purchasing
Party (i) furnishes the providing Party with a letter signed by an
officer of the purchasing Party claiming an exemption and identifying the
applicable law which allows such exemption, and (ii) supplies the
providing Party with an indemnification agreement, reasonably acceptable
to the providing Party, which holds the providing Party harmless on an
after-tax basis with respect to forbearing to collect such Tax.
12.6 With respect to any Tax or Tax controversy covered by this Section 12,
the purchasing Party will be entitled to contest, pursuant to applicable
law, and at its own expense, any Tax that it is ultimately obligated to
pay. The purchasing Party will be entitled to the benefit of any refund
or recovery resulting from such a contest. The providing Party will
cooperate in any such contest.
12.7 All notices, affidavits, exemption certificates or other communications
required or permitted to be given by either Party to the other under this
Section 12, will be made in writing and will be delivered by certified
mail, and sent to the addresses stated in Section 11 and to the
following:
To SWBT:
Director-Taxes
▇▇▇▇ ▇. ▇▇. ▇▇▇▇'▇, ▇▇▇▇ ▇▇-▇-▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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To CLEC:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Birch Telecom of Missouri, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Either Party may from time-to-time designate another address or addressee
by giving notice in accordance with the terms of this Section 12.7.
Any notice or other communication will be deemed to be given when
received.
13.0 FORCE MAJEURE
Except as otherwise specifically provided in this Agreement, neither
Party will be liable for any delay or failure in performance of any part
of this Agreement caused by a Force Majeure condition, including acts of
the United States of America or any state, territory, or political
subdivision thereof, acts of God or a public enemy, fires, floods, labor
disputes such as strikes and lockouts, freight embargoes, earthquakes,
volcanic actions, wars, civil disturbances, cable cuts, or other causes
beyond the reasonable control of the Party claiming excusable delay or
other failure to perform. Provided, Force Majeure will not include acts
of any Governmental Authority relating to environmental, health, or
safety conditions at work locations. If any Force Majeure condition
occurs the Party whose performance fails or is delayed because of such
Force Majeure conditions will give prompt notice to the other Party, and
upon cessation of such Force Majeure condition, will give like notice and
commence performance hereunder as promptly as reasonably practicable.
14.0 PUBLICITY
14.1 The Parties agree not to use in any advertising or sales promotion, press
releases or other publicity matters, any endorsements, direct or indirect
quotes or pictures implying endorsement by the other Party or any of its
employees without such Party's prior written approval. The Parties will
submit to each other for written approval, prior to publication, all such
publicity endorsement matters that mention or display the other's name
and/or marks or contain language from which a connection to said name
and/or marks may be inferred or implied.
14.2 Neither Party will offer any services using the trademarks, service
marks, trade names, brand names, logos, insignia, symbols or decorative
designs of the other Party or its affiliates without the other Party's
written authorization.
15.0 NETWORK MAINTENANCE AND MANAGEMENT
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15.1 The Parties will work cooperatively to implement this Agreement. The
Parties will exchange appropriate information (e.g., maintenance contact
numbers, network information, information required to comply with law
enforcement and other security agencies of the Government, etc.) to
achieve this desired reliability.
15.2 Each Party will provide a 24-hour contact number for Network Traffic
Management issues to the other's surveillance management center. A
facsimile (FAX) number must also be provided to facilitate event
notifications for planned mass calling events. Additionally, both Parties
agree that they will work cooperatively to ensure that all such events
will attempt to be conducted in such a manner as to avoid disruption or
loss of service to other end users. Each party will maintain the
capability of respectively implementing basic protective controls such as
"Cancel To" or "Call Gap."
15.3 Neither Party will use any service provided under this Agreement in a
manner that impairs the quality of service to other carriers or to either
Party's subscribers. Either Party will provide the other Party notice of
said impairment at the earliest practicable time.
16.0 LAW ENFORCEMENT AND CIVIL PROCESS
16.1 INTERCEPT DEVICES
16.1.1 Local and federal law enforcement agencies periodically request
information or assistance from local telephone service providers. When
either Party receives a request associated with a customer of the other
Party, the receiving Party will refer such request to the appropriate
Party, unless the request directs the receiving Party to attach a pen
register, trap-and-trace or form of intercept on the Party's own
facilities, in which case that Party will comply with any valid request,
to the extent the receiving party is able to do so; if such compliance
requires the assistance of the other Party such assistance will be
provided.
16.2 SUBPOENAS
16.2.1 If a Party receives a subpoena for information concerning an end user the
Party knows to be an end user of the other Party, the receiving Party
will refer the subpoena to the requesting entity with an indication that
the other Party is the responsible company. Provided, however, if the
subpoena requests records for a period of time during which the receiving
Party was the end user's service provider, the receiving Party will
respond to any valid request to the extent the receiving party is able to
do so; if response requires the assistance of the other party such
assistance will be provided.
16.3 LAW ENFORCEMENT EMERGENCIES
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16.3.1 If a Party receives a request from a law enforcement agency to implement
at its switch a temporary number change, temporary disconnect, or one-way
denial of outbound calls for an end user of the other Party, the
receiving Party will comply so long as it is a valid emergency request.
Neither Party will be held liable for any claims or damages arising from
compliance with such requests, and the Party serving the end user agrees
to indemnify and hold the other Party harmless against any and all such
claims.
17.0 CHANGES IN SUBSCRIBER CARRIER SELECTION
17.1 With respect to Resale services and unbundled Network Elements provided
to end users, each Party must obtain end user authorization prior to
requesting a change in the end users' provider of local exchange service
(including ordering end user specific Network Elements) and must retain
such authorizations for twelve (12) months. The authorization must
conform with federal rules regarding changes of presubscribed
interexchange carriers until such time as there are federal or state
rules applicable to changes of local exchange service providers.
Thereafter, the authorization must comply with each such rule. The Party
submitting the change request assumes responsibility for applicable
charges as specified in Section 258(b) of the Telecommunications Act of
1996.
17.2 Only an end user can initiate a challenge to a change in its local
exchange service provider. In connection with such challenges each Party
will follow procedures which conform with federal rules regarding
challenges to changes of presubscribed interexchange carriers until such
time as there are federal or state rules applicable to challenges to
changes of Local Exchange Service Providers. Thereafter, the procedures
each Party will follow concerning challenges to changes of local exchange
service providers will comply with such rule. If an end user notified
SWBT or CLEC that the end user requests local exchange service, the Party
receiving such request shall be free to immediately provide service to
such end user. SWBT shall be free to connect the end user to any local
service provider based upon the local service provider's request and
assurance that proper end user authorization has been obtained. CLEC
shall make authorization available to SWBT upon request and at no charge.
17.3 When an end user changes or withdraws authorization, each Party will
release customer specific facilities in accordance with the end user
customer's directions, or the directions of the end user's agent.
Further, when an end user abandons the premise, SWBT is free to reclaim
the facilities for use by another customer and is free to issue service
orders required to reclaim such facilities.
17.4 Neither Party shall be obligated by this Agreement to investigate any
allegations of unauthorized changes in local exchange service
("slamming") on behalf of the other Party or a third party. If SWBT, on
behalf of CLEC, agrees to investigate an alleged incidence
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of slamming, SWBT shall charge CLEC a cost-based or mutually agreed
investigation fee.
18.0 AMENDMENTS OR WAIVERS
18.1 Except as otherwise provided in this Agreement, no amendment or waiver of
any provision of this Agreement and no consent to any default under this
Agreement will be effective unless the same is in writing and signed by
an officer of the Party against whom such amendment, waiver or consent is
claimed. In addition, no course of dealing or failure of a Party strictly
to enforce any term, right or condition of this Agreement will be
construed as a waiver of such term, right, or condition.
18.2 Pursuant to Attachment 6, Section 14.8, and for the time periods
specified in Attachment 6, Section 14, SWBT expressly waives its right to
assert that it need not provide pursuant to the "necessary and impair"
standard of FTA Section 251(d)(2) a network element set forth in
Attachment 6, Unbundled Network Elements, Sections 3-11 and/or its rights
with regard to the combination of any such network elements that are not
already assembled pursuant to the provisions in Attachment 6, Section 14.
By entering into this Agreement to obtain the benefits set forth herein
in whole or in part, SWBT expressly waives its right to challenge the
terms of this Agreement in any judicial, dispute resolution or regulatory
proceeding, except that SWBT expressly reserves the right to seek
clarification or interpretation of the terms of this Agreement through
the dispute resolution process established by the Commission or challenge
in any judicial, dispute resolution or regulatory proceeding the
interpretation of this agreement or any agreement containing the same or
substantively similar language to this Agreement; such right to seek
clarification or interpretation or challenge the interpretation also
includes the right to appeal the final judicial, dispute resolution or
regulatory decision and to continue to pursue pending appeals. When any
final decision is rendered by the appellate court, the affected contract
provision shall be revised to reflect the result of such appeal except
those relating to the prices and other terms and conditions at issue in
SWBT vs. Missouri Public Service Commission, et al., Case Nos. 99-3833
and 99-3908 in the United States Court of Appeals for the 8th Circuit.
Any dispute between the Parties regarding the manner in which this
Agreement should be modified to reflect the affect of the appellate court
decision shall be resolved by the Commission. SWBT also expressly
reserves the right to contest any order or decision requiring the payment
of reciprocal compensation for ISP traffic, including the right to seek
refunds or to implement an alternate approach to such reciprocal
compensation pursuant to regulatory or judicial approval. Except as
provided in this section, SWBT reserves the right to pursue pending
appeals and to appeal any other state or federal regulatory decision,
but, absent a stay or reversal, will comply with any such final decision.
Nothing in this Agreement limits SWBT's right or ability to participate
in any proceedings regarding the proper interpretation and/or application
of the FTA.
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18.3 By entering into this Agreement to obtain the benefits set forth herein
in whole or in part, CLEC expressly waives its right to challenge the
terms of this Agreement in any judicial, dispute resolution or regulatory
proceeding, except that CLEC expressly reserves the right to seek
clarification or interpretation of the terms of this Agreement through
the dispute resolution process established by the Commission or challenge
in any judicial, dispute resolution or regulatory proceeding the
interpretation of this agreement or any agreement containing the same or
substantially similar language to this agreement; such right to seek
clarification or interpretation or challenge the interpretation also
includes the right to appeal the final judicial, dispute resolution or
regulatory decision and to continue to pursue pending appeals. When a
final decision is rendered by the appellate court, the affected contract
provision shall be revised to reflect the result of such appeal. Any
dispute between the Parties regarding the manner in which this Agreement
should be modified to reflect the effect of the appellate court decision
shall be resolved by the Commission. CLEC expressly reserves the right to
contest any order or decision requiring the payment of reciprocal
compensation for ISP traffic, including the right to seek refunds or to
implement an alternate approach to such reciprocal compensation pursuant
to regulatory or judicial approval. Except as provided in this section,
CLEC reserves the right to pursue pending appeals and to appeal any other
state or federal regulatory decision, but, absent a stay or reversal,
will comply with any such final decision. Nothing in this Agreement
limits CLEC's right or ability to participate in any proceedings
regarding the proper interpretation and/or application of the FTA.
18.4 This agreement is entered into as a result of the Missouri Public Service
Commission's Order in Case No. TO-99-227, reviewing SWBT's compliance
with Section 271 of the Federal Telecommunications Act of 1996, and
incorporates some of the results of arbitrations by the Commission. In
the event that any of the rates, terms and/or conditions herein, or any
of the laws or regulations that were the basis or rationale for such
rates, terms and/or conditions in the Agreement, are invalidated,
modified or stayed by any action of any state or federal regulatory or
legislative bodies or courts of competent jurisdiction, including but not
limited to any decision by the Eighth Circuit relating to any of the
costing/pricing rules adopted by the FCC in its First Report and Order,
IN RE: IMPLEMENTATION OF THE LOCAL COMPETITION PROVISIONS IN THE
TELECOMMUNICATIONS ACT OF 1996, 11 FCC Rcd 15499 (1996)(e.g., Section
51.501, et seq.), upon review and remand from the United States Supreme
Court, in AT&T CORP. V. IOWA UTILITIES BD., ▇▇▇ ▇. ▇▇. ▇▇▇ (1999) or
AMERITECH V. FCC, No. 98-1381, 1999 WL 116994, 1999 Lexis 3671 (June 1,
1999), the affected provision shall be immediately invalidated, modified,
or stayed, consistent with the action of the legislative body, court, or
regulatory agency upon the written request of either Party. In such
event, the Parties shall expend diligent efforts to arrive at an
agreement regarding the appropriate conforming modifications to the
Agreement. If negotiations fail, disputes between the Parties concerning
the interpretation of the actions required or provisions affected by such
governmental actions shall be resolved pursuant to the dispute resolution
process provided for in this Agreement. The Parties acknowledge and agree
that by executing this Agreement, neither Party waives
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any of its rights, remedies, or arguments with respect to such decisions
and any remand thereof, including its right to seek legal review or a
stay pending appeal of such decisions or its rights under this
Intervening Law paragraph. Nothing herein is intended to modify the
rights and obligations contained in Attachment 6, Sections 14.3.2;
14.4.2; 14.8 and Section 18.2 of these General Terms and Conditions. The
Parties agree that any rates contained in Attachment 6, Unbundled
Network Elements which are invalidated, modified or stayed or otherwise
affected by such governmental action will remain unaffected during the
time periods referenced in Attachment 6, Sections 14.3.2 and 14.4.2,
respectively, but will become interim, subject to true up retroactive to
the dates specified as the "beginning as of" date in each of the
referenced Sections.
19.0 AUTHORITY
19.1 Each person whose signature appears below represents and warrants that he
or she has authority to bind the Party on whose behalf he or she has
executed this Agreement.
20.0 BINDING EFFECT
20.1 This Agreement will be binding on and inure to the benefit of the
respective successors and permitted assigns of the Parties.
21.0 CONSENT
21.1 Where consent, approval, or mutual agreement is required of a Party, it
will not be unreasonably withheld or delayed.
22.0 EXPENSES
22.1 Except as specifically set out in this Agreement, each party will be
solely responsible for its own expenses involved in all activities
related to the subject of this Agreement.
23.0 HEADINGS
23.1 The headings in this Agreement are inserted for convenience and
identification only and will not be considered in the interpretation of
this Agreement.
24.0 RELATIONSHIP OF PARTIES
24.1 This Agreement will not establish, be interpreted as establishing, or be
used by either party to establish or to represent their relationship as
any form of agency, partnership or joint venture. Neither Party will have
any authority to bind the other or to act as an agent for the other
unless written authority, separate from this Agreement, is provided.
Nothing in the Agreement will be construed as providing for the sharing
of profits or losses arising
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out of the efforts of either or both of the Parties. Nothing herein will
be construed as making either Party responsible or liable for the
obligations and undertakings of the other Party.
25.0 CONFLICT OF INTEREST
25.1 The Parties represent that no employee or agent of either Party has
been or will be employed, retained, paid a fee, or otherwise received
or will receive any personal compensation or consideration from the
other Party, or any of the other Party's employees or agents in
connection with the arranging or negotiation of this Agreement or
associated documents.
26.0 MULTIPLE COUNTERPARTS
26.1 This Agreement may be executed in multiple counterparts, each of which
will be deemed an original but all of which will together constitute but
one, and the same document.
27.0 THIRD PARTY BENEFICIARIES
27.1 Except as may be specifically set forth in this Agreement, this Agreement
does not provide and will not be construed to provide third parties with
any remedy, claim, liability, reimbursement, cause of action, or other
privilege.
28.0 REGULATORY APPROVAL
28.1 Each Party agrees to cooperate with the other and with any regulatory
agency to obtain regulatory approval. During the term of this Agreement,
each Party agrees to continue to cooperate with each other and any
regulatory agency so that the benefits of this Agreement may be achieved.
29.0 TRADEMARKS AND TRADE NAMES
29.1 Except as specifically set out in this Agreement, nothing in this
Agreement will 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, absent written consent of the other Party.
30.0 REGULATORY AUTHORITY
30.1 SWBT will be responsible for obtaining and keeping in effect all Federal
Communications Commission, state regulatory commission, franchise
authority and other regulatory approvals that may be required in
connection with the performance of its obligations under this Agreement.
CLEC will be responsible for obtaining and keeping in
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effect all Federal Communications Commission, state regulatory
commission, franchise authority and other regulatory approvals that may
be required in connection with its offering of services to CLEC Customers
contemplated by this Agreement. CLEC will reasonably cooperate with SWBT
in obtaining and maintaining any required approvals for which SWBT is
responsible, and SWBT will reasonably cooperate with CLEC in obtaining
and maintaining any required approvals for which CLEC is responsible.
30.2 SWBT will not, of its own volition, file a tariff or make another similar
filing which supersedes this Agreement in whole or in part. SWBT will
make no filings which are inconsistent with this commitment. This Section
is not intended to apply to any SWBT tariffs or filings which do not
affect CLEC's rights or SWBT's obligations to CLEC under this Agreement.
This Section does not impair SWBT's right to file tariffs nor does it
impair SWBT's right to file tariffs proposing new products and services
and changes in the prices, terms and conditions of existing products and
services, including discontinuance or grandfathering of existing features
or services, of any telecommunications services that SWBT provides or
hereafter provides to CLEC under this Agreement pursuant to the provision
of Attachment 1: Resale, nor does it impair CLEC's right to contest such
tariffs before the appropriate Commission.
30.3 SWBT will provide thirty (30) days advance notice before the tariff
filing date of new products and services and changes to existing products
and services, including the discontinuance of existing features or
services, that are available for resale. SWBT will provide a minimum of
thirty (30) days notice before the tariff filing date of pricing changes
for services that are available for resale.
30.4 In the event that SWBT is required by any governmental authority to file
a tariff or make another similar filing in connection with the
performance of any action that would otherwise be governed by this
Agreement, SWBT will provide CLEC notice of the same as set forth in
Section 30.3 above.
30.5 If any tariff referred to in Section 30.4 becomes ineffective by
operation of law, through deregulation or otherwise, the terms and
conditions of such tariffs, as of the date on which the tariffs became
ineffective, will be deemed incorporated if not inconsistent with this
Agreement.
31.0 COMMISSION INTERPRETATION OF SAME OR SUBSTANTIVELY SIMILAR LANGUAGE
31.1 Any ruling by the Commission interpreting the same or substantively
similar language in another Interconnection Agreement is applicable to
the same or substantively similar language in this Agreement.
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32.0 VERIFICATION REVIEWS
32.1 Subject to each Party's reasonable security requirements and except as
may be otherwise specifically provided in this Agreement, either Party
may audit the other Party's books, records and other documents once in
each Contract Year for the purpose of evaluating the accuracy of the
other Party's billing and invoicing. The Parties may employ other persons
or firms for this purpose. Such audit will take place at a time and place
agreed on by the Parties no later than thirty (30) days after notice
thereof.
32.2 Each Party will promptly correct any billing error that is revealed in an
audit, including making refund of any overpayment by the other Party in
the form of a credit on the invoice for the first full billing cycle
after the Parties have agreed upon the accuracy of the audit results. Any
disputes concerning audit results will be resolved pursuant to the
Dispute Resolution procedures described in Section 9 of this Agreement.
32.3 Each Party will cooperate fully in any such audit, providing reasonable
access to any and all appropriate employees and books, records and other
documents reasonably necessary to assess the accuracy of the Party's
bills.
32.4 Either Party may audit the other Party's books, records and documents
more than once during any Contract Year if the previous audit found
previously uncorrected net variances or errors in invoices in the other
Party's favor with an aggregate value of at least two percent (2%) of the
amounts payable by CLEC for Resale services, Network Elements or
Combinations provided during the period covered by the audit.
32.5 Audits will be at the auditing Party's expense.
32.6 Upon (i) the discovery by either Party of overcharges not previously
reimbursed to the other Party or (ii) the resolution of disputed audits,
the affected Party will promptly reimburse the other Party the amount of
any overpayment times the commercial paper rate applicable on the last
day of the month preceding the month of discovery or resolution as above.
In no event, however, will interest be assessed on any previously
assessed or accrued late payment charges.
32.7 CLEC may require that, at the end of the first year of implementation of
this Agreement, SWBT submit to an audit or examination of services
performed under the interconnection agreement. Subsequent to the first
year of implementation, CLEC may require that audits or examinations be
performed if: (1) CLEC can show cause that it has a commercially
reasonable basis to seek an audit or examination; and (2) the request for
audit or examination specifically defines the particular services that it
seeks to audit or examine. All audits requested by CLEC under this
section shall be conducted at its expense. The dispute resolution
provisions of this Agreement shall be used to resolve disputes arising
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concerning requests for audits or examinations, or the results of the
audits or examinations.
32.8 For a period of fourteen (14) months from the Effective Date of this
Agreement, SWBT may audit CLEC's operations, books, records, and other
documents related to the development of the percent local usage (PLU) to
be used to measure and settle untransmitted calling party numbers (CPN)
in connection with Attachment 12: Compensation. SWBT will bear the
reasonable expenses associated with this inspection.
32.9 Information obtained or received by CLEC in conducting the inspections
described in Section 32.7 and information obtained or received by either
Party in connection with Sections 32.1 through 32.6 and 32.8 will be
subject to the confidentiality provisions of Section 6 of this Agreement.
33.0 COMPLETE TERMS
33.1 This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes any prior agreements,
representations, statements, negotiations, understandings, proposals or
undertakings, oral or written, with respect to the subject matter
expressly set forth herein.
33.2 Neither Party will be bound by an amendment, modification or additional
term unless it is reduced to writing signed by an authorized
representative of the Party sought to be bound.
34.0 COOPERATION ON PREVENTING END USER FRAUD
34.1 The Parties agree to cooperate with one another to investigate, minimize,
and take corrective action in 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.
34.2 In cases of suspected fraudulent activity by an end user, at a minimum,
the cooperation referenced in the above paragraph will include providing
to the other Party, upon request, information concerning end users who
terminate services to that Party without paying all outstanding charges.
The Party seeking such information is responsible for securing the end
user's permission to obtain such information.
35.0 NOTICE OF NETWORK CHANGES
SWBT agrees to provide CLEC reasonable notice consistent with applicable
FCC rules of changes in the information necessary for the transmission
and routing of services using SWBT's facilities or networks, as well as
other changes that affect the interoperability of those respective
facilities and networks. This Agreement is not intended to limit SWBT's
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ability to upgrade its network through the incorporation of new
equipment, new software or otherwise so long as such upgrades are not
inconsistent with SWBT's obligations to CLEC under the terms of this
Agreement.
36.0 GOOD FAITH PERFORMANCE
36.1 In the performance of their obligations under this Agreement the Parties
will act in good faith and consistently with the intent of the Act. Where
notice, approval or similar action by a Party is permitted or required by
any provision of this Agreement, (including, without limitation, the
obligation of the parties to further negotiate the resolution of new or
open issues under this Agreement) such action will not be unreasonably
delayed, withheld or conditioned.
37.0 RESPONSIBILITY OF EACH PARTY
37.1 Each Party is an independent contractor, and has and hereby retains the
right to exercise full control of and supervision over its own
performance of its obligations under this Agreement and retains full
control over the employment, direction, compensation and discharge of its
employees assisting in the performance of such obligations. Each Party
will be solely responsible for all matters relating to payment of such
employees, including compliance with social security taxes, withholding
taxes and all other regulations governing such matters. Each party will
be solely responsible for proper handling, storage, transport and
disposal at its own expense of all (i) substances or materials that it or
its contractors or agents bring to, create or assume control over at Work
Locations or, (ii) Waste resulting therefrom or otherwise generated in
connection with its or its contractors' or agents' activities at the Work
Locations. Subject to the limitations on liability and except as
otherwise provided in this Agreement, each Party will be responsible for
(i) its own acts and performance of all obligations imposed by applicable
law in connection with its activities, legal status and property, real or
personal and, (ii) the acts of its own affiliates, employees, agents and
contractors during the performance of the Party's obligations hereunder.
38.0 TRANSMISSION OF TRAFFIC TO THIRD PARTIES
38.1 CLEC will not send to SWBT local traffic that is destined for the network
of a third party unless CLEC has the authority to exchange traffic with
that third party.
39.0 GOVERNMENTAL COMPLIANCE
39.1 CLEC and SWBT each will comply at its own expense with all applicable law
related to i) its obligations under or activities in connection with this
Agreement; of ii) its activities undertaken at, in connection with or
relating to Work Locations. CLEC and SWBT each agree to indemnify,
defend, (at the other party's request) and save harmless the other, each
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of its officers, directors and employees from and against any losses,
damages, claims, demands, suits, liabilities, fines, penalties, and
expenses (including reasonable attorneys' fees) that arise out of or
result from i) its failure or the failure of its contractors or agents to
so comply or ii) any activity, duty or status of it or its contractors or
agents that triggers any legal obligation to investigate or remediate
environmental contamination. SWBT, at its own expense, will be solely
responsible for obtaining from governmental authorities, building owners,
other carriers, and any other persons or entities, all rights and
privileges (including, but not limited to, space and power), which are
necessary for SWBT to provide the Network Elements and Resale services
pursuant to this Agreement.
40.0 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
40.1 DISCLOSURE OF POTENTIAL HAZARDS: When and if CLEC notifies SWBT that CLEC
intends to enter or perform work pursuant to this Agreement in, on, or
within the vicinity of any particular SWBT building, manhole, pole, duct,
conduit, right-of-way, or other facility (hereinafter "Work Location"),
SWBT shall timely notify CLEC of any Environmental Hazard at that Work
Location of which SWBT has actual knowledge, except that this duty shall
not apply to any Environmental Hazard (i) of which CLEC already has
actual knowledge or (ii) was caused solely by CLEC or (iii) would be
obvious and apparent to anyone coming to the Work Location. For purposes
of this Agreement, "Environmental Hazard" shall mean (i) the presence of
petroleum vapors or other gases in hazardous concentrations in a manhole
or other confined space, or conditions reasonably likely to give rise to
such concentrations; (ii) the presence of electrical cable in a conduit
system; (iii) asbestos-containing materials; (iv) emergency exit routes
and warning systems, if and to the extent owned or operated by SWBT; and
(v) any potential hazard that would not be obvious to an individual
entering the Work Location or detectable using work practices standard in
the industry.
40.2 EVALUATION OF POTENTIAL HAZARDS: Without limiting the foregoing, after
providing prior notice to SWBT, CLEC shall have the right to inspect,
test, or monitor any Work Location for possible Environmental Hazards as
necessary or appropriate to comply with law or to protect its employees,
contractors or others from the possible effects of Environmental Hazards.
CLEC shall be responsible for conducting such inspections, testing or
monitoring in a way that does not unreasonably interfere with SWBT's
business operations after consultation with SWBT, and shall return SWBT's
property to substantially the same condition as it would have been
without such inspections, testing or monitoring.
40.3 MANAGING DISTURBED MATERIALS AND MEDIA: If and to the extent that CLEC's
activity at any Work Location involves the excavation, extraction, or
removal of asbestos or other manmade materials or contaminated soil,
groundwater, or other environmental media, then CLEC rather than SWBT
shall be responsible in the first instance for the subsequent treatment,
disposal, or other management of such materials and media.
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40.4 INDEMNIFICATION:
40.4.1 Each party shall indemnify, on request defend, and hold harmless the
other party and each of its officers, directors and employees from any
and all suits, claims, demands, losses, damages, liabilities, fines,
penalties, or expenses, of every kind and character (including reasonable
attorneys' fees), on account of or in connection with any injury, loss,
or damage to any person or property, or to the environment, to the extent
any of them arise out of or in connection with the violation or breach,
by any employee of the indemnifying party or other person acting on the
indemnifying party's behalf, of this Section 40.0 or any federal, state,
or local environmental statute, rule, regulation, ordinance, or other
applicable law or provision of this agreement dealing with hazardous
substances or protection of human health or the environment.
40.4.2 CLEC shall indemnify, on request defend, and hold harmless SWBT and each
of its officers, directors and employees from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or expenses, of
every kind and character (including reasonable attorneys' fees), on
account of or in connection with any injury, loss, or damage to any
person or property, or to the environment, to the extent any of them
arise out of or in connection with (i) the release or discharge, onto any
public or private property, of any hazardous substances, regardless of
the source of such hazardous substances, by any employee of CLEC, or by
any person acting on CLEC's behalf, while at a Work Location or (ii) the
removal or disposal of any hazardous substances by any employee of CLEC
or by any person acting on CLEC's behalf, or the subsequent storage,
processing or other handling of such hazardous substances by any person
or entity, after such substances have thus been removed from a Work
Location or (iii) any environmental contamination or Environmental Hazard
or release of a hazardous substance caused or created by CLEC or its
contractors or agents.
40.4.3 SWBT shall indemnify, on request defend, and hold harmless CLEC and each
of its officers, directors and employees from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or expenses, of
every kind and character (including reasonable attorneys' fees), asserted
by any government agency or other third party on account of or in
connection with any injury, loss, or damage to any person or property, or
to the environment, to the extent any of them arise out of or in
connection with (i) the release or discharge, onto any public or private
property, of any hazardous substances, regardless of the source of such
hazardous substances, by any employee of SWBT or by any person acting on
SWBT's behalf, at a Work Location or (ii) the removal or disposal of any
hazardous substances by any employee of SWBT or by any person acting on
SWBT's behalf, or the subsequent storage, processing or other handling of
such hazardous substances by any person or entity, after such substances
have thus been removed from a Work Location or (iii) any environmental
contamination or Environmental Hazard or release of a hazardous substance
either (x) existing or occurring
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at any Work Location on or before the date of this agreement or (y)
caused or created by SWBT or its contractors or agents.
41.0 SUBCONTRACTING
41.1 If any obligation is performed through a subcontractor, each party will
remain fully responsible for the performance of this Agreement in
accordance with its terms, including any obligations either party
performs through subcontractors, and each party will be solely
responsible for payments due the party's subcontractors. No contract,
subcontract or other Agreement entered into by either Party with any
third party in connection with the provision of Resale services or
Network Elements hereunder will provide for any indemnity, guarantee or
assumption of liability by, or other obligation of, the other Party to
this Agreement with respect to such arrangement, except as consented to
in writing by the other Party. No subcontractor will be deemed a third
party beneficiary for any purposes under this Agreement. Any
subcontractor who gains access to CPNI or Confidential Information
covered by this Agreement will be required by the subcontracting Party to
protect such CPNI or Confidential Information to the same extent the
subcontracting Party is required to protect the same under the terms of
this Agreement.
42.0 REFERENCED DOCUMENTS
42.1 Whenever any provision of this Agreement refers to a technical reference,
technical publication, CLEC Practice, SWBT Practice, any publication of
telecommunications industry administrative or technical standards, or any
other document specifically incorporated into this Agreement, it will be
deemed to be a reference to the most recent version or edition (including
any amendments, supplements, addenda, or successors) of each document
that is in effect, and will include the most recent version or edition
(including any amendments, supplements, addenda, or successors) of each
document incorporated by reference in such a technical reference,
technical publication, CLEC Practice, SWBT Practice, or publication of
industry standards.
43.0 SEVERABILITY
43.1 Except as otherwise specifically provided in Sections 4.2.1, 18.1, 18.2
and 18.3 of the General Terms & Conditions, if any term, condition or
provision of this Agreement is held to be invalid or unenforceable for
any reason, such invalidity or unenforceability will not invalidate the
entire Agreement, unless such construction would be unreasonable. The
Agreement will be construed as if it did not contain the invalid or
unenforceable provision or provisions, and the rights and obligations of
each party will be construed and enforced accordingly; provided, however,
that in the event such invalid or unenforceable provision or provisions
are essential elements of this Agreement and substantially impair the
rights or obligations of either Party, the Parties will promptly
negotiate a replacement
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provision or provisions. If impasse is reached, the Parties will resolve
said impasse under the dispute resolution procedures set forth in Section
9.5.
44.0 SURVIVAL OF OBLIGATIONS
44.1 Any liabilities or obligations of a Party for acts or omissions prior to
the cancellation or termination of this Agreement, any obligation of a
Party under the provisions regarding indemnification, Confidential
Information, limitations on liability, and any other provisions of this
Agreement which, by their terms, are contemplated to survive (or to be
performed after) termination of this Agreement, will survive cancellation
or termination thereof.
45.0 GOVERNING LAW
45.1 The validity of this Agreement, the construction and enforcement of its
terms, and the interpretation of the rights and duties of the Parties
will be governed by the laws of the State of Missouri other than as to
conflicts of laws, except insofar as federal law may control any aspect
of this Agreement, in which case federal law will govern such aspect. The
Parties submit to personal jurisdiction in Jefferson City, Missouri, and
waive any and all objections to a Missouri venue.
46.0 PERFORMANCE CRITERIA
46.1 Specific provisions governing failure to meet Performance Criteria are
contained in Attachment 17: Performance Remedy Plan.
47.0 OTHER OBLIGATIONS OF CLEC
47.1 For the purposes of establishing service and providing efficient and
consolidated billing to CLEC, CLEC is required to provide SWBT its
authorized and nationally recognized Operating Company Number (OCN).
48.0 DIALING PARITY; INTERIM NUMBER PORTABILITY
48.1 SWBT will ensure that all CLEC Customers experience the same dialing
parity as similarly-situated customers of SWBT services, such that, for
all call types: (i) an CLEC Customer is not required to dial any greater
number of digits than a similarly-situated SWBT customer; (ii) the
post-dial delay (time elapsed between the last digit dialed and the first
network response), call completion rate and transmission quality
experienced by an CLEC Customer is at least equal in quality to that
experienced by a similarly-situated SWBT customer; and (iii) the CLEC
Customer may retain its local telephone number. SWBT further agrees to
provide Interim Number Portability in accordance with the
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requirements of the Act. Specific requirements concerning Interim Number
Portability are set forth in Attachment 14: Interim Number Portability.
49.0 BRANDING
49.1 Specific provisions concerning the branding of services provided to CLEC
by SWBT under this Agreement are contained in the following Attachments
and Appendices to this Agreement: Attachment 1: Resale; Appendix
OS-Resale; Appendix DA-Resale; Attachment 2: Ordering &
Provisioning-Resale; Attachment 3: Maintenance-Resale; Attachment 7:
Ordering & Provisioning-Unbundled Network Elements; Attachment 8:
Maintenance-Unbundled Network Elements.
50.0 CUSTOMER INQUIRIES
50.1 Each Party will refer all questions regarding the other Party's services
or products directly to the other Party at a telephone number specified
by that Party.
50.2 Each Party will ensure that all of their representatives who receive
inquiries regarding the other Party's services: (i) provide the numbers
described in Section 50.1 to callers who inquire about the other Party's
services or products; and (ii) do not in any way disparage or
discriminate against the other Party or its products or services.
51.0 DISCLAIMER OF WARRANTIES
51.1 TO THE EXTENT CONSISTENT WITH ITS OBLIGATIONS UNDER THE ACT, SWBT MAKES
NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR INTENDED OR
PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED HEREUNDER.
52.0 NO WAIVER
52.1 CLEC's agreement herein to accept less than fully operational electronic
interfaces to operations support systems functions on and after January
1, 1997, will not be deemed a waiver of Section 251(c)(3) of the Act to
receive such interfaces on that date.
53.0 DEFINITIONS
53.1 For purposes of this Agreement, certain terms have been defined in this
Agreement to encompass meanings that may differ from, or be in addition
to, the normal connotation of the defined word. Unless the context
clearly indicates otherwise, any term defined or used in the singular
will include the plural. The words "will" and "shall" are used
interchangeably throughout this Agreement and the use of either connotes
a mandatory
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requirement. The use of one or the other will not mean a different degree
of right or obligation for either Party. A defined word intended to
convey its special meaning is capitalized when used. Other terms that are
capitalized and not defined in this Agreement will have the meaning in
the Act.
54.0 RESALE
54.1 At the request of CLEC, and pursuant to the requirements of the Act, any
telecommunications service that SWBT currently provides or hereafter
offers to any customer in the geographic area where SWBT is the incumbent
LEC will be made available to CLEC by SWBT for Resale in accordance with
the terms, conditions and prices set forth in this Agreement. Specific
provisions concerning Resale are addressed in Attachment 1: Resale, and
other applicable Attachments.
55.0 UNBUNDLED NETWORK ELEMENTS
55.1 At the request of CLEC and pursuant to the requirements of the Act, SWBT
will offer in the geographic area where SWBT is the incumbent LEC Network
Elements to CLEC on an unbundled basis on rates, terms and conditions set
forth in this Agreement that are just, reasonable, and
non-discriminatory. Specific Provisions concerning Unbundled Network
Elements are addressed in Attachment 6: Unbundled Network Elements, and
other applicable Attachments.
56.0 ORDERING AND PROVISIONING, MAINTENANCE, CONNECTIVITY BILLING AND
RECORDING, AND PROVISION OF CUSTOMER USAGE DATA
56.1 In connection with its Resale of services to CLEC, SWBT agrees to provide
to CLEC Ordering and Provisioning Services, Maintenance services,
Connectivity Billing and Recording services and Provision of Customer
Usage Data services pursuant to the terms specified in Attachments 2, 3,
4 and 5, respectively.
56.2 In connection with its furnishing Unbundled Networks Elements to CLEC,
SWBT agrees to provide to CLEC Ordering and Provisioning Services,
Maintenance services, Connectivity Billing and Recording services and
Provision of Customer Usage Data services pursuant to the terms specified
in Attachments 7, 8, 9 and 10, respectively.
57.0 NETWORK INTERCONNECTION ARCHITECTURE
57.1 Where the Parties interconnect their networks, for purposes of exchanging
traffic between their networks, the Parties agree to utilize the
interconnection methods specified in Attachment 11: Network
Interconnection Architecture. SWBT expressly recognizes that this
provision and said Attachment are in no way intended to impair in any way
CLEC's
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right to interconnect with unbundled Network Elements furnished by SWBT
at any technically feasible point within SWBT's network, as provided in
the Act.
58.0 COMPENSATION FOR DELIVERY OF TRAFFIC
58.1 The Parties agree to compensate each other for the transport and
termination of traffic as provided in Attachment 12: Compensation.
59.0 ANCILLARY FUNCTIONS
Ancillary Functions may include, but are not limited to, Collocation,
Rights-of-Way, Conduit and Pole Attachments. SWBT agrees to provide
Ancillary Functions to CLEC as set forth in Attachment 13: Ancillary
Functions.
60.0 SEPARATE AFFILIATE COMMITMENTS
SWBT will comply with all FCC rules and orders relating to the structural
and nonstructural requirements for Section 272 affiliates. To satisfy its
obligation to publicly disclose all transactions between SWBT and any
Section 272 affiliate, SWBT will:
(a) Post the full text of all agreements between SWBT and Southwestern
▇▇▇▇ Long Distance (SBLD) within 10 days on its Internet website,
including rates, terms, and conditions of those agreements,
frequency of occurrence of transactions under the agreements, and
information concerning the level, rate of pay, and quantity of
employees who perform work under the agreements, and post
summaries of the agreements on the Internet;
(b) Post, for each agreement, the states where SBLD's operations are
supported by the agreement;
(c) Maintain, for each agreement, information indicating the specific
FCC pricing methodology used by SWBT to determine the rates for
the agreement;
(d) Maintain on the Internet a posting of the title, address,
telephone number, and fax number of the person to contact to
review paper copies of the agreements; and
SWBT will also maintain at its headquarters in San Antonio detailed
information concerning all affiliate transactions between SWBT and SBLD.
(This information includes the information posted on the Internet as well
as the Detailed Billing Reports, which provide the month-by-month billing
detail by specific contract, contract schedule, and pricing addendum.
SWBT represented that it would update the Detailed Billing
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Reports, which are available for inspection upon execution of a
Protective Agreement, on a semi-annual basis).
61.0 OTHER REQUIREMENTS AND ATTACHMENTS
61.1 This Agreement incorporates a number of listed Attachments which,
together with their associated Appendices, Exhibits, and Addenda,
constitute the entire Agreement between the Parties. In order to
facilitate use and comprehension of the Agreement, the Attachments have
been grouped under the following broad headings: Resale; Unbundled
Network Elements; Network Interconnection Architecture; Ancillary
Functions; and Other Requirements. It is understood that these groupings
are for convenience of reference only, and are not intended to limit the
applicability which any particular Attachment may otherwise have.
61.2 Appended to this Agreement and incorporated herein are the Attachments
listed below. To the extent that any definitions, terms or conditions in
any given Attachment differ from those contained in the main body of this
Agreement, those definitions, terms or conditions will supersede those
contained in the main body of this Agreement, but only in regard to the
services or activities listed in that particular Attachment. In
particular, if an Attachment contains a term length that differs from the
term length in the main body of this Agreement, the term length of that
Attachment will control the length of time that services or activities
are to occur under the Attachment, but will not affect the term length of
the remainder of this Agreement, except as may be necessary to interpret
the Attachment.
RESALE
Attachment 1: Resale
Appendix Services/Pricing
Exhibit A: SWBT's Telecommunications Services Available for Resale
Exhibit B: SWBT's Other Services Available for Resale
Appendix Customized Routing-Resale
Appendix DA-Resale
Appendix OS-Resale
Appendix White Pages (WP)-Resale
Attachment 2: Ordering and Provisioning-Resale
Attachment 3: Maintenance-Resale
Attachment 4: Connectivity Billing-Resale
Attachment 5: Provision of Customer Usage Data-Resale
UNBUNDLED NETWORK ELEMENTS
Attachment 6: Unbundled Network Elements (UNE)
Appendix Pricing-UNE
Appendix Pricing-UNE: Exhibit 1
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Appendix Pricing-UNE Schedule of Prices
Attachment 7: Ordering and Provisioning-UNE
Exhibit A-Electronic Ordering and Provisioning-UNE
Attachment 8: Maintenance-UNE
Attachment 9: Billing-Other
Attachment 10: Provision of Customer Usage Data-UNE
NETWORK INTERCONNECTION ARCHITECTURE AND COMPENSATION
Attachment 11: Network Interconnection Architecture
Appendix Interconnection Trunking Requirement (ITR)
Appendix Network Interconnection Methods (NIM)
▇▇▇▇▇▇▇▇ ▇▇▇ Interconnection
Attachment 12: Compensation
Appendix FGA
ANCILLARY FUNCTIONS
Attachment 13: Ancillary Functions
Physical Collocation Appendix
Virtual Collocation Appendix
Appendix Poles, Conduit, ROW
OTHER REQUIREMENTS
Attachment 14: Interim Number Portability
Appendix Location Routing Number - PNP
Attachment 15: E911
Attachment 16: Network Security and Law Enforcement
Attachment 17: Performance Remedy Plan
Appendix Measurements Subject to Per Occurrence Damages or
Assessment with a Cap and Measurements Subject to Per Measure
Damages or Assessment Appendix Performance Measures Subject to
Tier-1 and Tier-2 Damages Identified as High, Medium and Low
Appendix 3 Performance Measurement Business Rules (Version 1.7)
Attachment 18: Mutual Exchange of Directory Listing Information
Attachment 19: White Pages-Other (WP-O)
Attachment 20: Clearinghouse
Attachment 21: Numbering
Attachment 22: DA-Facilities Based
Attachment 23: OS-Facilities Based
Attachment 24: Recording-Facilities Based
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OTHER ATTACHMENTS
Attachment 25: DSL/HFPL/Line Splitting
Attachment 26: Legitimately Related Provisions
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 4/17/01 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 4/16/01
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Sign and Print Name: Date Sign and Print Name: Date
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
VP, REGULATORY & CARRIER RELATIONS FOR/ PRESIDENT-INDUSTRY MARKETS
------------------------------------- -----------------------------------
Position/Title Position/Title
BIRCH TELECOM OF MISSOURI, INC. SOUTHWESTERN ▇▇▇▇ TELEPHONE COMPANY
OCN/AECN# 8665