DIAL ACCESS SERVICES AGREEMENT
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
This
Dial
Access Services Agreement (“Agreement”) is entered into as of January 31,
2002 (“Effective Date”) by and between Pac-West Telecomm, Inc. (“Pac-West”), a
California corporation, and Qwest Communications Corporation (“Qwest” or
“Customer”), a Delaware corporation.
WHEREAS,
Pac-West is the single point of contact through which Customer may order
services under this Agreement for itself and its affiliates from the Pac-West
family of companies;
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Pac-West and Customer agree as follows:
1. Service
Description
(a) General
Service Overview
Pac-West
is providing to Customer, Customer’s end users, and Customer’s clients and
reseller’s end users (collectively, “Users”) a turn-key bundled service offering
as described in this Section 1 (“Service”). The Customer-facing product is
measured in units of modem ports (“Ports”) that are capable of terminating local
or long distance end-user-originated modem or ISDN calls to effect connectivity
to the Internet. The Ports are housed in network devices of various
configurations and referred to as network access servers (“NAS”). The NASs and
associated equipment shall be obtained and installed by Pac-West, at its sole
cost and expense. Pac-West shall also purchase and manage at its own expense
hardware maintenance contracts for the NASs and shall ensure that Customer
is
authorized pursuant to such contracts to submit and coordinate Returned
Merchandise Authorizations (RMAs) and similar correspondence with the
maintenance provider. The NASs are managed by Customer in all software regards
upon Service acceptance, and shall be installed in telco-grade co-location
facilities or Pac-West operated central offices (“Pac-West Equipment Sites”) at
Pac-West’s discretion. Incoming User’s calls will be connected to the NAS from a
Pac-West-owned and operated switch or functional equivalent (“Pac-West Switch”)
using an ISDN primary rate interface (“PRI”) using NFAS technology on PRIs. The
current operational configuration utilizes two D channels per 28 T-1s. If
another solution is requested, it must be a mutually agreed upon alternative,
and comparable telecommunication facility provided by Pac-West (“Ingress
Circuits”). When more than one PRI is required to support the peak simultaneous
User load from a given local calling area (“LCA”), Pac-West will provision any
additional PRI’s ordered by Customer for the same LCA such that incoming User
calls will be routed to the additional PRI’s associated with that LCA until
saturation of the current PRI receiving calls (“Rotary”). Where possible, unless
requested otherwise by Qwest, Pac-West will provision all LCAs served by a
given
Pac-West Switch into one consolidated trunk group prior to the hand off to
the
NAS. Each LCA’s Rotary will be provisioned by Pac-West for multiple unique phone
number assignments in quantities defined hereafter. Pac-West will maintain
an
appropriate level of inter-machine trunking (“IMT”) to the Pac-West Switch from
the Public Switched Telephone Network (“PSTN”) such that all User offered load
for which there are available Ports on the NAS can be supported. Pac-West will
install, maintain, and provide as part of Service all additional supporting
management and aggregation infrastructure that is required locally within each
Pac-West Equipment Site as specified herein. Customer will carry User traffic
from the egress port of the last Pac-West-owned equipment through which the
User
call is routed back to Customer’s network via various circuit architectures as
defined herein (“Egress Circuits”); the ordering and cost burden of such
backhaul circuitry being the sole responsibility of Customer. Pac-West will
▇▇▇▇
and Customer shall pay for Service on a per port unit basis in accordance with
the provisions and conditions as defined in this Agreement.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
1
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(b) Accepted
Service Configurations
Following
is a list of attached Exhibits that detail the architecture, operational
requirements, and relevant technical parameters associated with the Service,
which such list can be appended upon Customer’s request to include additional
configurations upon certification by Customer.
(i) Cisco
Equipment Configurations (Refer to Exhibit 6).
(c) Service
Elements
The
Service provided by Pac-West is a bundled offering that includes in the per
port
unit cost paid by Customer: all telco-grade and manufacturer recommended
physical facilities and associated environment required for the proper function
of the equipment used to provide Service, including without limitation floor
space, UPS fed AC power, DC power, battery bank, rectifiers, generator backup,
heating, ventilation, air conditioning (HVAC), and any other utilities as may
be
necessary; functional PRI’s from the Pac-West Switch to the NAS, delivered in
time intervals that are in accordance with the SLA as defined in this Agreement;
sufficient IMT capacity into the Pac-West Switch to support all incoming User
calls up to the number of Ports purchased by Customer, which IMT provisioning
shall be the sole responsibility of Pac-West and which IMT bandwidth will be
verified through IMT peak load reports provided to Customer at its request
by
Pac-West; a Rotary for each LCA that has been provisioned with at least 40
unique DID numbers, the ability to accept long distance calls, two-way traffic
(i.e., in-bound and for testing purposes, out-bound (if trunks are to be used
for outbound services on a new product or service application then Pac-West
and
Customer agree to review outbound traffic patterns and agree to work towards
a
mutually acceptable price structure for the outbound minutes, if any, at that
time)), and calls delivered via both transient and reciprocal trunks;
two (2) out of band (“OOB”) modems, each with an active POTS line, per
equipment site that will be used for service activation and outage-related
equipment maintenance, two (2) DS0 test phone numbers for every switch
that
provides ingress circuits for this Service; the purchase, installation, and
maintenance of all equipment, telecommunication services and other related
facilities required to provide Service up to the point of Service demarcation,
which demarcation point shall be defined as the physical port of the equipment
to which Customer’s Egress Circuit is connected (“Service Demarcation Point”);
and anything else not yet identified that would be required to terminate a
User
call on the NAS and subsequently hand off the call to Customer at the Service
Demarcation Point onto Customer’s Egress Circuits.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
2
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(d) Service
Egress Circuits
All
costs
associated with the acquisition and installation of the Egress Circuits to
the
Service Demarcation Point shall be the sole responsibility of Customer excepting
any Pac-West imposed Egress Circuit port fees, which fees are included in the
per port unit price of the Service. Customer agrees to use any existing
available facilities in place between Customer and Pac-West, should such
facilities exist and such use is permitted by law, as the preferred mechanism
for Egress Circuit provisioning so as to activate Service in as expeditious
a
manner as possible provided said facilities are either i) under the
ownership and control of Customer, or ii) under the ownership and control
of Pac-West and being provided to Customer at or below then current market
rates. Pac-West agrees to fully cooperate with Customer and any third-party
provider selected by Customer to connect all Egress Circuits provisioned by
such
third-party provider to the specific ports identified by Customer at the Service
Demarcation Point.
(e) NAS
Equipment
(i) Responsibility
Pac-West
or its affiliates shall (a) obtain and install the NAS equipment received
from KMC Funding Corporation pursuant to the terms and conditions of its
Bailment Agreement of certain equipment used in the providing of services herein
with Pac-West dated January 30, 2002, marked Exhibit 5 and attached
hereto (“KMC Agreement”) and (b) lease and install ancillary equipment
received and leased from Customer. The execution and performance of the KMC
Agreement, including but limited to delivery and possession of the equipment
defined therein, which also includes all other required supporting equipment
needed to provide Service to the Service Demarcation Point to Pac-West by KMC
are conditions precedent to Pac-West’s obligations herein.
(ii) Selection
Pac-West
will only provide Service using an architecture that is consistent with the
specified NAS vendors and the specific NAS configurations as identified in
Section 1(b) above and the Appendices associated therewith. If Customer
has
a preferred configuration among the list identified in Section 1(b),
Pac-West agrees to cooperate with Customer to provide Service using Customer’s
preferred NAS configuration.
(iii) Maintenance
Pac-West
shall proactively maintain all NAS equipment and all related equipment used
in
connection with the Service to the extent possible without having direct console
access. Pac-West shall maintain a sparing pool of parts for the NAS as provided
in Exhibit 2. Pac-West shall provide Customer with 7x24x365 NOC-to-NOC technical
support. Pac-West will continuously examine its processes and consider revisions
in servicing Customer’s accounts in an ongoing effort to provide improved
customer service for Customer.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
3
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(iv) Operational
Control
During
the initial configuration of the NAS, OOB modems, and Management Console,
Pac-West agrees to assist Customer as required. Upon Service Acceptance as
defined in Section 11, and notwithstanding Section 1(e)(iii)
above,
Customer shall have exclusive responsibility for all existing and future NAS
software operational elements, including without limitation operating system
(“OS”) revision control and selection, OS upgrades, NAS configuration, network
management of the NAS, software feature enhancement coordination and costs,
and
any other activity relating to the purchase, installation or management of
the
software elements of the NAS. Customer shall be responsible for fault
identification and isolation, and Pac-West shall assist in the trouble
resolution as required in accordance with the SLA requirements and maintenance
procedures defined in the Agreement.
(v) User
Authentication
Customer
shall have exclusive responsibility for User authentication.
(vi) Technology
Upgrades
Pac-West
agrees that additional Accepted Service Configurations may be appended to this
Agreement at the request of Customer as referenced in Section l(b),
and
Pac-West’s selection from that list shall be as defined in
Section l(e)(ii). In the event an alternate NAS configuration to existing
installed Service requiring a hardware upgrade is desired by Customer or
Pac-West, the parties shall confer and mutually agree as to whether to deploy
such hardware upgrade. Negotiation of the particulars with respect to such
hardware upgrade, including without limitation cost sharing, migration
scheduling, manufacturer purchase credits, and used equipment re-sale or
re-deployment, shall be executed in good faith as conditions dictate on an
individual case by case basis and structured according to the unique
circumstances as may apply.
(vii) KMC
Equipment
If
KMC
Funding Corporation as to the KMC Agreement either (i) requests the
return
of the Ports; or (ii) terminates said Agreement, or (iii) breaches
its
covenants under such KMC Agreement, or (iv) provides equipment that
is not
in working order for Pac-West to provide service on the date of delivery of
such
equipment, or (v) rejects the KMC Agreement after a petition, under
an
applicable bankruptcy act or receivership statute, is filed by or against KMC
Funding Corporation, then in any such event Pac-West may cease without penalty
to provide the Services with respect to those Ports affected by (i), (ii),
(iii), (iv) or (v) above, unless Customer, in its sole discretion and at its
own
expense, either (a) provides all the replacement equipment reasonably
necessary for Pac-West to continue to provide Services with respect to such
Ports; or (b) cancels its obligations as to the affected Ports for the
remaining term of the contract; provided, however, that such cessation of
Services shall not release Qwest of any obligation to pay the Monthly Recurring
Charges of said Ports per the Early Termination (Section 3(b)) schedule.
Additionally, Customer will have an obligation to pay any Monthly Maintenance
Charges incurred by Pac-West for the cancelled Ports for the remainder of the
term those maintenance agreements are in place. Lastly, if KMC requires Pac-West
to return any of the said Ports, Pac-West shall solicit cost information from
third parties to de-install and ship the Ports to KMC and shall also develop
a
cost for Pac-West to use its own personnel to de-install and ship the Ports
to
KMC. Customer shall have the option to select which method it prefers for the
return of the Ports to KMC and shall, accordingly, reimburse amounts paid by
Pac-West to the third party selected, or pay Pac-West its agreed charges, to
de-install and ship the Ports to KMC.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
4
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
2. Service
Term
(a) Boundary
Definition/Co-Termination
The
Service Term (as set forth in Section 2(b) below) shall begin upon the
activation of any Ports pursuant to this Agreement, but no later than
June 30, 2002. All Ports under each of the Phases described below shall
have a co-terminus expiration date as set forth in
Section 2(b).
(b) Length
Except
as
provided in Sections 2(c) (Service Term Renewal), 3 (Early Termination),
7(a) (Payment and Taxes), 12(a) (Service Installation Intervals), 13(c) (Tariff
Regulatory Changes), 13(d) (Tariff Misapplication), and 21 (Force Majeure),
the
Service Term of this Agreement shall commence as provided in Section 2(a)
above and extend until June 30, 2005.
(c) Renewal
Upon
expiration, Customer may extend the term of this Agreement for an additional
period of twelve (12) months by providing at least 30 days prior
written notice to Pac-West.
3. Early
Termination
(a) For
Cause
This
Agreement may be terminated by either party for cause without penalty or
termination liabilities. Unless otherwise mutually agreed, termination due
to
cause shall be effective thirty (30) days after receipt of written notice
sent to the defaulting party if such default has not been cured during such
thirty (30) day notice period. Cause will be defined as any of the events
of default below.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
5
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(i) Fundamental
Material Breach
Fundamental
Material Breach will have been deemed to occur if either party fails to perform
or comply with any material provision of this Agreement.
(ii) Insolvency
Breach
An
Insolvency Breach will have been deemed to occur if (i) a party becomes
insolvent, makes an assignment for the benefit of creditors, or provides written
notification of an inability to pay debts as they mature or, with respect to
Pac-West, (ii) the insolvency of Pac-West is reasonably believed to
be
imminent.
(iii) Bankruptcy
Breach
A
Bankruptcy Breach will have been deemed to occur if a petition, under any
foreign, state, or United States bankruptcy act or receivership statute, is
filed by either party against the other party, or against either party by any
third party.
(b) Without
Cause — By Customer
Customer
may terminate this Agreement without cause in whole or in part (i.e., on a
per
Port basis) prior to the end of the Service Term subject to the early
termination liabilities. In the event of Port termination prior to the Service
Term, any Port for which Customer has satisfied the appropriate early
termination charges as defined herein shall continue to be recognized by
Pac-West as applicable towards the satisfaction of the Minimum Service
Commitment pursuant to Section 4. The early termination liability for
any
given Port shall be determined by multiplying the total number of whole months
between termination notice date and the end of the Service Term by the
applicable price per Port pursuant to Section 5 by the declining liability
percentage scale defined below:
|
Active
Service Term Months
|
Liability
Percentage
|
|
0-12
|
100%
|
|
13-24
|
85%
|
|
25-36
|
70%
|
(c) Survivorship
The
provisions set forth in Sections 17-20 (Warranties, Limitation of
Liability, Intellectual Property Indemnity, and Confidentiality), as well as
any
other provision that reasonably may be expected to survive, shall survive the
expiration or termination of this Agreement.
(d) Migration
Assistance
Upon
expiration or any termination of this Agreement, Pac-West shall (i) provide
Customer, or at Customer’s request Customer’s designees, reasonable assistance
and consultation to ensure a smooth and timely transition of Customer’s purchase
of Services then expiring or being terminated to another vendor or vendors
or to
Customer, and (ii) continue to provide the Services then expiring or
being
terminated to Customer (at prices then in effect as of the date of such
expiration, termination or cancellation) and otherwise perform all of its
obligations under this Agreement (such Pac-West obligations described in this
Section collectively “Transition Assistance”) for the Transition Period.
“Transition Period” shall mean a time period commencing upon the effective date
of expiration or termination, and ending after six (6) months in
duration.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
6
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
4. Minimum
Service Commitment
Except
as
otherwise provided herein, Customer agrees to maintain the Ports set forth
below
for the duration of the respective Service Terms (“Port Commitment”). The
parties agree to work cooperatively to complete a deployment plan within
thirty (30) days after the Effective Date that will result in the fastest
reasonable delivery and activation for the entirety of the ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇.
▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇:
Minimum
of [**] Ports activated within 45 days of the Effective Date, at the
locations set forth in Exhibit 4.
▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇:
Minimum
of [**] additional Ports activated on or before June 30, 2002, at the
locations set forth in Exhibit 4.
5. Service
Pricing
(a) Non
Recurring Charges
No
non-recurring charges shall apply to this Service offering provided that the
Port Commitment set forth in Section 4 has been satisfied. To the extent
that any applicable tariff includes non-recurring charges, Pac-West agrees
that
such non-recurring charges already have been factored into the monthly fee
for
the bundled Service as set forth above, and if necessary will file a tariff
amendment or supplement to reflect the same.
(b) Monthly
Recurring Charges
The
billing for the Service will be determined by the total number of active Ports
at the end of any calendar month. A Port shall be deemed active when it is
capable of terminating an end-user call originated on the Public Switched
Telephone Network (“PSTN”) that results in that end-user achieving Internet
connectivity. The monthly fee per active Port for a given calendar month or
any
fraction thereof shall be [**] (“Port Rate”) plus any applicable taxes and
surcharges in accordance with Section 7(b). For avoidance of doubt,
this
port rate includes Pac-West purchasing and providing hardware maintenance
contracts with associated vendor Equipment as well as charges for Pac-West’s
private virtual circuit use.
(c) Rebate
At
the
end of each calendar month of the Service Term, and at the end of each calendar
month during any extension thereof pursuant to Section 2(c), Pac-West
shall
calculate the total hours of usage of (i) the Ports used by Customer
pursuant to this Agreement and (ii) the Ports used by Customer pursuant
to
that certain Dial Access Services Agreement between the parties dated as of
December 29, 2000 (collectively, the “Port Usage”). If the Port Usage
equals or exceeds an average of [**] hours per Port for such month, Pac-West
shall provide Customer a rebate of [**] for each of the Ports under this
Agreement for such month. Any such rebates shall be paid by check within
10 days after the end of the applicable calendar quarter in which the
rebates became due.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
7
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
6. Service
Billing Procedures
Pac-West
shall ▇▇▇▇ Customer monthly in arrears based on the applicable monthly fee
pursuant to Section 5 for all active Ports as of the last day of the
preceding month.
7. Payment
& Taxes
(a) Payment
Pac-West
will ▇▇▇▇ Customer monthly. Bills are due when issued and payable within
30 days after the ▇▇▇▇ is received. Undisputed amounts are past due
if they
are not received by Pac-West or its agent within 30 days after Customer
receives the ▇▇▇▇. Any amounts past due will be subject to a late payment charge
accruing at the rate of 1-1/2% per month, or portion thereof, until paid. In
addition, bills not paid within 10 days after Customer receives notice that
they
are past due, that are not otherwise subject to a legitimate dispute, may result
in service interruption or suspension of access privileges to Pac-West’s
collocate facility until the full, undisputed amount of the ▇▇▇▇ is paid;
provided, however, that Pac-West shall not interrupt service or suspend access
privileges without providing at least 15 business days prior written notice
to
Customer. Customer agrees to pay all costs incurred by Pac-West in collecting
any unpaid, undisputed amounts, including attorneys fees.
(b) Taxes
All
prices for Services provided hereunder are exclusive of any sales, use or VAT
taxes imposed or levied by any government entity on the Services provided
hereunder (“Taxes”). Customer agrees to pay any applicable Taxes that Pac-West
is required to collect or pay in connection with any Service provided hereunder;
provided that in no event shall Customer be required to pay any taxes on the
net
income, municipal franchise, real or personal property, or gross receipts of
Pac-West. In the event that Customer believes it is exempt from otherwise
applicable Taxes, Customer shall provide Pac-West with an exemption certificate
evidencing such claimed exemption, which Pac-West shall honor. All applicable
Taxes shall be itemized in each invoice.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
8
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(c) Invoicing
All
invoices for Services provided hereunder shall be sent to:
Qwest
Communications Corporation
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Accounts Payable
8. Applicable
Service Territory
To
the
extent requested by Customer, Pac-West agrees to provide Service as defined
in
this Agreement in all locations that Pac-West is technically capable of
providing Service using its current and/or future affiliates’ telecommunication
facilities within their existing or future network footprint.
9. Service
Portability
Both
parties agree that due to the dynamic nature of Dial Access Internet traffic,
it
is their intent to allow portability of the Ports to different locations.
Reasonable re-allocation of Ports between LCAs that are serviced by a single
physical Pac-West location shall be accommodated without charge. In the event
of
a re-allocation of Ports between LCAs that are serviced by different physical
Pac-West locations, the parties agree to negotiate in good faith with regard
to
timeframes and the one-time non-recurring costs, which shall be limited to
reasonable time and materials, for such portability.
10. Service
Ordering Procedure
(a) Orders
Pac-West
shall be the single point of contact through which Customer may order services
under this Agreement for itself and its affiliates from the Pac-West family
of
companies set forth in the recitals to this Agreement. Customer has no
obligation but may at its option purchase additional Ports under the terms
and
conditions of this Agreement. The parties agree to follow the procedures for
any
additional Port orders in accordance with that which is defined in this
Section 10.
(b) Request
For Information
Customer
shall provide Pac-West with a non-binding request for information (“RFI”) in
writing identifying (i) the number of Ports being considered for deployment
by Customer; and (ii) the geographic location (for a new Rotary) or
the LCA
(for the expansion of an existing Rotary) for such identified
Ports.
(c) RFI
Response
Pac-West
shall have seven (7) calendar days from receipt of such RFI to advise
Customer in writing whether (i) Pac-West agrees to provision such
identified Ports, if ordered, within the SLA installation time frame set forth
in Section 12 below; (ii) Pac-West agrees to provision such identified
Ports, if ordered, within an alternative, reasonable time frame that is greater
than the SLA installation time frame set forth in Section 12 below;
or
(iii) Pac-West does not agree to provision such identified
Ports.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
9
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(d) Firm
Order Placement
In
the
event that Pac-West has identified that it agrees to provision the identified
Ports, if ordered, Customer shall have seven (7) calendar days from
receipt
of Pac-West’ s written response to send Pac-West a firm and binding order in
writing (“Firm Order”) for the identified Ports or any fraction thereof. If
Customer does not send Pac-West a Firm Order within seven (7) calendar
days
from receipt of Pac-West’s written response, Customer’s RFI and Pac-West’s
response thereto shall be deemed to have expired.
11. Service
Acceptance Procedures
Customer’s
acceptance of newly activated Ports at a given location shall be made promptly
following the successful completion of service acceptance tests conducted
jointly by the parties. At a minimum, such service acceptance tests shall
include the login and RADIUS authentication to Customer’s network specifically
via the newly activated Ports. A full, and mutually agreeable acceptance policy
and procedure will need to be constructed within 30 days of contract
acceptance from both parties. Once Service has been accepted by Customer, which
acceptance shall not be unreasonably withheld, Customer agrees to the billing
provisions pursuant to Section 6 by Pac-West for all accepted
Ports.
12. Service
Level Agreements (“SLA”)
Pac-West
agrees to provide Service in accordance with the performance standards as
defined herein.
(a) Service
Installation
Pac-West
agrees to use best efforts to install all Ports of the Port Commitment in
accordance with the provisions of Section 4. Pac-West agrees to use commercially
reasonable efforts to install all new Ports that may be ordered beyond the
Port
Commitment within forty-five (45) calendar days after receipt of a Firm
Order from Customer. In the event that Pac-West determines after beginning
the
Port installation process that it will not be able to meet this installation
objective and notifies Customer of same, or Pac-West fails to meet the scheduled
installation date without prior notification, Customer may cancel the ordered
Ports without liability for any termination charges.
(b) Acceptable
Service Availability
“Service
Level” shall be defined as the level of service at or above which Pac-West shall
provide the Service to Customer and includes the following elements (all of
which shall be based on industry-standard measurements) provided by Pac-West:
(i) 7x24x365 (at the Pac-West equipment location) remote hands services;
(ii) a network designed to ensure P.01 grade of service per industry
standards; (iii) installation of Service in accordance with the
installation guidelines as defined in Section 12(a); (iv) a time
to
repair from the time Customer’s calls to the Pac-West help desk are answered
(“MTTR”) that is consistent with the provisions of Section l2(e) below;
(v) Pac-West’s ongoing efforts to meet or exceed industry standards for
onsite power and environmental provided to devices, PRI lines, local loop
access, and for out-of-band access to the devices under this Agreement;
(vi) an average uptime of ninety nine and ninety eight hundredths percent
(99.98%) for the portion of the Pac-West network from and including Pac-West
switches, measured on a per-Port basis; and (vii) monthly reports of a kind
reasonably standard in the industry that relate to performance issues and
service levels in relation to the Pac-West network. Pac-West will be deemed
to
have failed to meet the above Service Level elements where one percent (1%)
of the Ports provided under this Agreement fail to meet any of the standards
as
set forth in this Service Level definition.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
10
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(c) Service
Outage Credits
Service
outage credits may be claimed by Customer when any Port is interrupted or does
not meet performance standards for any period lasting one (1) or more
consecutive hours. No credit will be available if the interruption is caused
by
(i) the failure of Customer to properly operate the NAS equipment;
(ii) the negligence or willful misconduct of Customer; or (iii) an
event of Force Majeure as provided in the Agreement. The amount of the credit
shall be equal to the pro-rata monthly fee due for all affected Ports during
which a confirmed outage has occurred, including the initial one (1)
hour.
(d) Service
Failure Definitions
(i) Severity
1 — CRITICAL - Service
Outage
A
service-outage situation is critical-system outage or service degradation severe
enough to completely inhibit custom-network usage. This includes outages or
system degradation of NAS equipment or of Local Exchange Carrier (LEC) networks.
Examples of Severity 1 Service Failure are:
| z |
T-1
Outage(s) (Affecting 50% or higher of affected
LCA)
|
| z |
Circuit
Outage DS-3 or Above (Affecting dial
service)
|
| z |
Backbone
Equipment (Router, etc.) affecting dial
service
|
| z |
NAS
Failure (Affecting 50% or higher of
POP)
|
| z |
Fiber
Cut (Related to dial service
outage)
|
| z |
Power
Outage (Related to dial service
outage)
|
| z |
Denial
of Service (Authentication issues)
|
| z |
Emergency
Maintenance
|
(ii) Severity
2 — MAJOR - Service
Affecting
A
service-affecting situation involves performance deviations that degrade network
performance, but do not completely inhibit customer usage of the network.
Examples of Severity 2 Service Failure are:
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
11
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
| z |
T-1
Outage(s) (Affecting 49% or less of affected
LCA)
|
| z |
NAS
Failure (Affecting 49% or less of
POP)
|
| z |
Capacity
problems due to circuit or router
outage
|
| z |
Performance
problem not severe
|
(iii) Severity
3 — MINOR - Non-Service
Affecting
A
non-service affecting situation involves remote-access issues, non-service
affecting system/network configurations, or scheduled or unscheduled maintenance
to the network and/or network equipment. The regular maintenance window will
be
utilized under all non-emergency situations, and the customer will be notified
if any work needs to be done outside of these windows. Examples of
Severity 3 Service Failure are:
| z |
Routine
Maintenance
|
| z |
Remote
Access Issues
|
| z |
Non-Service
Affecting Configurations and Code
|
(iv) Service
Failure Response Times
Pac-West
shall use commercially reasonable efforts to diligently respond and repair
any
service failure based upon the grade of the failure, in accordance with the
tables set forth below.
|
Security
Level
|
Maximum
Time to
Repair
(MTTR)
|
|
1
|
2
hours
|
|
2
|
4
hours
|
|
3
|
8
hours
|
(v) Escalations
Exhibit 3
contains Pac-West’s operations and senior management escalation matrix. Pac-West
agrees to update and maintain such matrix on a current basis for the duration
of
the Service Term. Such matrix shall include email addresses and telephone access
numbers for operations and senior management points of contact who are available
and authorized to address and resolve Service performance issues on a 24x7x365
basis. Fault Notification Procedures
For
all
problems requiring Customer’s NOC interaction, attention should be sent to
▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
or
contact to be made through the Wholesale direct number, 800.360.2577. Pac-West
will provide a single point of contact for Customer to use as a network outage
contact.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
12
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
13. Applicable
Federal, State. or Local Tariffs
(a) Tariff
Disclosure
This
Agreement is in addition to, and in no way replaces, any applicable tariff
provisions, and together with such tariff provisions, shall be used to settle
any dispute that may arise with respect to the Service provided hereunder.
Pac-West agrees to provide Customer with a list of all applicable tariffs and
corresponding territories that may apply to this Service offering within
thirty (30) days of the Effective Date.
(b) Service-related
Tariff Filings
In
the
event that Pac-West is required to make any tariff filings with respect to
this
Agreement, Pac-West agrees to provide Customer with a draft of such tariff
filing for Customer’s review, comment, and approval, which shall not be
unreasonably withheld, conditioned, or delayed by Customer. Pac-West agrees
to
afford Customer a reasonable period of time to conduct such review, but no
less
than fourteen (14) calendar days, and to incorporate or otherwise address
any reasonable comments provided in writing by Customer to Pac-West. In no
event
shall such a tariff filing be inconsistent with or contrary to the terms and
conditions of the Agreement.
(c) Regulatory
Changes to Service
Pac-West
and Customer acknowledge that this Agreement and some or all of the Services
provided hereunder may be subject to review by certain federal, state, and
local
regulatory bodies. If any regulatory action by such bodies alters the terms
and
conditions of this Agreement materially and adversely to either party, the
affected party may terminate the affected Service(s) without liability for
any
termination charges upon thirty (30) days prior written notice to the
other
party; provided that the parties are unable to negotiate in good faith a
mutually agreeable alternate relationship within ten (10) day’s of such
notice. Notwithstanding the foregoing, if a proposed regulatory action includes
future charges relating to regulatory changes in interconnect agreements with
an
incumbent local exchange carrier (“ILEC”), the Parties agree to the following
procedure:
(i) Pac-West
shall provide notice to Qwest of such proposed regulatory action immediately
after the same is received by Pac-West;
(ii) If
such
regulatory action occurs and results in an increase in charges in interconnect
agreements between Pac-West and an ILEC, Customer shall nonetheless receive
the Services on the same rates and charges as provided herein for a period
of
six (6) months. After that six-month period, Customer may choose to
either
(i) pay
the increase in charges on a pass-through basis, without markup, or
(ii) terminate the Agreement without penalty or liability, including,
without limitation, any early
termination charges in Section 3. If Customer chooses to terminate the
Agreement as provided in this subsection, Customer shall receive the Transition
Assistance
provided in Section 3(d) during the Transition Period, but the price
payable by Customer during such Transition Period shall reflect the increase
in
charges
on a pass-through basis, without markup, as described in this
subsection.
(d) Tariff
Misapplication
Notwithstanding
anything in this Agreement to the contrary, in the event that Pac-West enforces
or attempts to enforce any tariff provision that is materially different from
the provisions, spirit, and intent of this Agreement, Customer may cancel the
Service(s) affected by such enforcement or attempted enforcement without
liability for any termination charges upon thirty (30) days prior written
notice to Pac-West.
14. Sale
of Assets
In
the
event that Pac-West or its affiliate(s) sell(s) any network assets used in
connection with the Services to a third party, the number of Ports associated
with the network assets sold by Pac-West or its affiliate shall survive the
sale
with respect to Customer’s satisfaction of the Minimum Service Commitment set
forth in Section 4.
15. Annual
Review
On
or
about the anniversary date of the Effective Date of this Agreement, the parties
shall meet on an annual basis to review and discuss the Services’ architecture
and equipment, market conditions, regulatory changes, and the market
competitiveness of the prices and commitment levels set forth herein, as well
as
any business, performance, or operational issues as may arise between the
parties. The parties also shall discuss the deployment of future technologies
in
Pac-West’s networks, including without limitation alternative call delivery
technologies (e.g., SS7 and/or soft switch technologies), and any corresponding
price decreases associated with such deployment. The parties agree to negotiate
in good faith to maintain the competitive viability of this
Agreement.
16. Representations
and Warranties
(a) Execution
Authority
Each
party represents and warrants to the other that it has the power and authority
to enter into this Agreement and each Schedule or Exhibit
hereunder.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
13
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(b) Service
Authority
Pac-West
represents and warrants that it has the ability and authority to provide,
directly or indirectly through its affiliates and/or subcontractors, the
Services described in this Agreement agreed upon by the parties within those
LATAs where Pac-West or its affiliates operate.
Pac-West
represents and warrants that:
(i) it
shall
provide suitably qualified personnel to perform the Services defined in this
Agreement in a timely and efficient manner with diligence and care, consistent
with the professional standards of practice in the industry, and in conformance
with all applicable laws and regulations, and that the Services shall comply
with this Agreement and the SLA. Pac-West shall provide, maintain, and upgrade
the Services in accordance with the same first-class standards applied by
Pac-West to similar projects for itself, for any of its affiliated companies,
and for other clients; and
(ii) any
software, (including any updates, releases and versions thereto) and any media
used to distribute it used by Pac-West to provide the Services (collectively,
the “Software”), contains no computer instructions, circuitry, routines or other
technological means (“Harmful Code”) whose purpose is to disrupt, damage or
interfere with Customer’s use of its computer and telecommunications facilities
for their commercial, test or research and development purposes. Pac-West
further represents that current releases of the Software contain no third party
software that would require Customer to obtain any licenses or agree to any
terms and conditions in addition to those set forth in this Agreement. Pac-West
shall indemnify Customer and hold Customer harmless from and against any and
all
claims, losses, costs, liabilities, damages and/or expenses, including
reasonable attorneys fees and allocated cost of Customer’s in-house counsel,
arising from the presence of Harmful Code in or with the Software used by
Pac-West in providing the Services; and
(iii) it
has
obtained and shall maintain the full power and authority to grant the rights
granted and provide the Services herein without the further consent of any
other
person. Pac-West will indemnify Customer and hold it harmless from and against
any and all claims, losses, costs, liabilities, damages and/or expenses,
including reasonab1e attorney’s fees and allocated cost of Customer’s in-house
counsel, arising out of any breach or claimed breach of this warranty;
and
(iv) the
Software, materials and equipment used to provide the Services shall be able
to
accurately process data (including without limitation, calculating, compiling
and sequencing) from, into and between the twentieth and twenty-first centuries,
including leap year calculations, and will create, store, process and output
information related to or including dates on or after January 1, 2000
without error or omissions. At Customer’s request, Pac-West will provide
evidence sufficient to demonstrate the ability of the Equipment provided under
this Agreement to meet these requirements; and
(v) there
are
no pending or threatened lawsuits, claims, disputes or actions (i) alleging
that the equipment infringes or misappropriates any third party’s patent,
copyright, trademark, trade secret, proprietary or other intellectual property
rights, or (ii) adversely affecting the equipment, the Services or
Pac-West’s ability to undertake and perform its obligations under this
Agreement.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
14
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(d) Express
Warranties
THE
EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY
AND
FITNESS FOR A PARTICULAR PURPOSE.
17. Limitation
of Liability
(a) Customer
Indemnification
Pac-West
shall indemnify Customer from any claim or damages due to the injury or death
of
any individual, or the loss or damage to real or personal property, resulting
from the willful or negligent acts, or omissions of Pac-West, its agents or
employees.
(b) General
Liability Limitation
EXCEPT
WITH RESPECT TO THE PARTIES’ OBLIGATIONS UNDER SECTIONS 18 (INTELLECTUAL
PROPERTY INDEMNITY) AND 19 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY
BE
LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
(c) Applicable
Law
In
the
event any applicable law does not allow the limitation or exclusion of liability
as provided for in this Agreement, the subject limitation or exclusion of
liability shall be deemed modified so as to limit or exclude the parties’
liability for damages hereunder to the greatest extent permitted by such
law.
(d) Internet
Disclaimers & Limitations
Neither
party will be liable or responsible for the content of any information contained
on the Internet. Neither party will assume any responsibility for any
consequences suffered by any third person as a result of obtaining Internet
access, including without limitation damages arising from accessing Internet
content or from computer viruses.
18. Intellectual
Property Indemnity
(a) Pac-West
shall defend, indemnify, and hold harmless Customer from any third party claim
alleging that the Services provided hereunder violate the patent, trade secret,
copyright, or other intellectual property right of any third party; provided
that Customer provides Pac-West: (a) prompt notice of such claim;
(b) sole control over the defense and/or settlement of such claim; and
(c) all assistance reasonably required for the defense of such
claim.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
15
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(b) Customer
shall defend, indemnify, and hold harmless Pac-West from any third party
claim
alleging that Customer’s Service specifications provided to Pac-West hereunder
(if any) violate the patent, trade secret, copyright, or other intellectual
property right of any third party; provided that Pac-West provides Customer:
(a) prompt notice of such claim; (b) sole control over the
defense
and/or settlement of such claim; and (c) all assistance reasonably
required
for the defense of such claim.
19. Confidentiality
The
parties agree to abide by the Mutual Non-disclosure Agreement attached hereto
for reference as Exhibit 1, which shall be executed by the parties
contemporaneously herewith.
20. No
Publicity
Neither
party may use the name, logo, trademarks, service marks, or other proprietary
identifying symbols of the other party in any press release, public statement,
advertising, signage, marketing materials, brochures, or other materials in
any
medium without the other party’s prior written consent. With respect to
Customer, such prior written consent shall be required from both: (a) a
Vice President or more senior officer of Customer; and (b) an authorized
representative of Customer’s media relations department. Any such permitted use
shall comply with the guidelines or instructions provided by the other
party.
21. Force
Majeure
(a) Definition
Neither
party shall be liable for any loss or damage resulting from any cause beyond
its
reasonable control (“Force Majeure”), such as, but not limited to, fire,
explosion, lightning, flood, earthquake, strikes or labor disputes, terrorism,
floods, storms, acts of God, war, civil disturbances, acts of civil or military
authorities, or the public enemy. Upon the occurrence of any Force Majeure
event
and to the extent such Force Majeure event substantially interferes with a
party’s performance with respect to a Service, such party shall be excused from
such performance during the period of the Force Majeure event; provided that
the
party invoking this Section 21(a) uses all commercially reasonable efforts
to avoid or remove such causes of nonperformance. In the event that Pac-West
invokes this Section 21(a), Customer’s payment obligations for any affected
Service(s) shall be suspended during the period of such Force Majeure
event.
(b) Termination
Rights
In
the
event of a delaying or interfering condition having more than thirty (30)
calendar days duration, the other party may terminate the affected Service(s)
without liability for any termination charges upon ten (10) days prior
written notice to the party invoking Section 21(a) above and the Ports
associated with such terminated Services shall be counted for purposes of
satisfying the Port Commitment.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
16
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
22. Insurance
During
the term of this Agreement, Pac-West shall maintain insurance of the kinds
and
in the amounts specified below with insurers of recognized responsibility,
licensed to do business in the State(s) where the Services are being performed,
and having either: an A.M Best’s rating of A-8, a Standard & Poor’s
(“S&P’s”) rating of AA, or a ▇▇▇▇▇’▇ rating of AZ. If any Services provided
for or to be performed under this Agreement are subcontracted, Pac-West shall
require the subcontractor(s) to maintain and furnish it with insurance approved
by Customer.
(a) Insurance
Coverage
In
accordance with the above, Pac-West and any subcontractors shall maintain the
following insurance coverage:
(i) Commercial
General Liability Insurance: $1,000,000 per occurrence combined single
limit/$2,000,000 general aggregate and will include coverage for contractual
liability, coverage for the use of independent contractors, products and
completed operations, and will not contain an exclusion for explosion, collapse,
and underground coverage.
(ii) Business
Automobile Liability Insurance including coverage for owned, hired, leased,
rented and non-owned vehicles as follows: $1 million combined single
limit
per accident.
(iii) Worker’s
Compensation and Employers’ Liability Insurance: Workers’ Compensation in the
statutory amount(s) and with benefits required by the laws of the state in
which
the Services are performed and the state(s) in which employees are hired, if
the
state(s) are other than that in which the Services are performed. Employers’
Liability with minimum limit of liability of: (a) $l million
for
bodily injury by accident/each accident, (b) $1 million for bodily
injury by disease/each employee, and (c) $1 million for bodily
injury
by disease/policy limit (aggregate).
(iv) A
combination of primary and excess/umbrella liability policies will be acceptable
as a means to meet the limits specifically required hereunder. THE REQUIRED
MINIMUM LIMITS OF COVERAGE SHOWN ABOVE, HOWEVER, WILL NOT IN ANY WAY RESTRICT
OR
DIMINISH PAC-WEST’S LIABILITY UNDER THIS AGREEMENT.
(b) Insurance
Certification
Certificates
of such insurance shall be submitted to Customer naming Customer as ADDITIONAL
INSURED on such policies as appropriate, prior to the start of any Services
associated with this Agreement. These certificates shall certify that
termination of such coverage shall be effective without at least ten (10)
days advance notice to Customer.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
17
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(c) Subcontractor
Insurance
Pac-West
shall require each subcontractor to provide and maintain at all times during
the
term of this Agreement insurance equivalent to that which is required of
Pac-West. Each subcontractor shall waive all right to recovery against Customer
for any injuries to persons or damage to property in the execution of Services
performed under this Agreement, exclusive of such liability resulting from
Customer’s negligence or intentional misconduct.
(d) Insurance
Deficiency Remedies
Should
Pac-West at any time neglect or refuse to provide the insurance required, or
should such insurance be canceled or non-renewed, Customer shall have the right
to purchase such insurance, and the cost shall be billed to Pac-West. In
addition, should Pac-West at any time neglect or refuse to pay the necessary
premium, Customer shall have the right to deduct this amount from monies due
Pac-West.
(e) OSHA
Compliance
Pac-West
and all subcontractors shall comply with the terms of the Occupational Safety
and Health Administration (OSHA) and all locations’ and jurisdictions’ safety
and health regulations during the full term of this Agreement.
23. Assignment
Neither
party may assign, transfer or convey any of its rights, in whole or in part,
by
operation of law or otherwise, nor delegate any of its duties of performance
under this Agreement, without the prior written consent of the other party,
and
any attempted delegation or assignment without such written consent shall be
absolutely null and void ab
initio
and of
no force or effect. Notwithstanding the foregoing, (i) Customer may
assign
its rights and benefits and delegate its duties and obligations under this
Agreement without the consent of Pac-West to any Affiliate of Customer or if
necessary to satisfy the rules, regulations and/or orders of any federal, state
or local governmental agency or body, provided that unless Pac-West agrees
otherwise in writing, such consent not to be unreasonably withheld, Customer
shall remain liable hereunder if it assigns this Agreement to its Affiliate
and
(ii) Pac-West may assign its rights and benefits and delegate its duties
and obligations under this Agreement without the consent of Customer to an
affiliate of Pac-West provided that unless Qwest agrees otherwise in writing,
such consent not to be unreasonably withheld, Pac-West shall remain liable
hereunder if it assigns this Agreement to its Affiliate. Subject to the
restrictions contained in the preceding sentences, this Agreement shall be
binding upon the successors and assigns of the parties. “Affiliate” means, with
respect to a party, any person, group of persons or entity which controls,
is
controlled by, or is under common control with such party. For purposes hereof,
“control” shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of management and policies of any such entity
whether through the ownership of voting securities, by contract or
otherwise.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
18
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
24. Governing
Law
(a) Governing
State Law
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without reference to any conflict of laws principles;
provided that if a Service purchased hereunder is subject to an alternative
governing law provision set forth in an applicable tariff, then such alternative
governing law provision shall apply to such Service.
(b) Dispute
Resolution
The
parties shall in good faith attempt to resolve through informal negotiations,
at
the lowest possible level of authority, any disagreement, controversy, claim,
or
dispute arising under this Agreement (“Dispute”). The parties agree that time
shall be of the essence in the resolution of such Dispute. In the event that
such negotiations are not successful, the Dispute shall be referred to each
party’s respective operational Vice President or its equivalent, who shall
attempt to resolve the Dispute within thirty (30) days. In the event
that
the parties are not able to resolve the Dispute within this thirty (30)
day
period, or such other period of time as the parties may mutually agree upon,
either party may submit the dispute to arbitration in San Francisco,
California, under the commercial arbitration rules of the American Arbitration
Association, or, at its option, shall prior to the commencement of arbitration
be entitled to pursue its legal and/or equitable remedies in a federal or state
court of competent jurisdiction.
25. Notices
All
notices or other communications hereunder shall be deemed to have been fully
given when made in writing and delivered in person, by confirmed facsimile
or
overnight courier, or deposited in the United States mail, postage prepaid,
and
addressed as follows:
To
Customer:
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
President - Qwest Internet Solutions
Attn:
General Counsel
To
Pac-West Telecomm, Inc.:
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇.,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇
Vice
President of Sales
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
19
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
The
address to which notices may be given by either party may be changed upon
written notice given to the other party pursuant to this
Section 25.
26. Construction
(a) This
Agreement shall be construed wherever possible to avoid conflict between the
Articles hereof and the attachments and exhibits hereto (“Attachments”). Where a
conflict cannot be avoided, the provisions set forth in the Articles of this
Agreement shall control over the Attachments hereto.
(b) The
parties acknowledge that they have participated jointly in the negotiation
and
drafting of this Agreement. In the event an ambiguity or question of intent
or
interpretation arises, the Agreement shall be construed as if drafted jointly
by
the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
27. Non-Waiver
The
failure of Pac-West or Customer to insist upon strict performance of any
provision of this Agreement in any one or more instances shall not be construed
as a waiver or relinquishment for the future of any such provision, but the
same
shall be and remain in full force and effect.
28. Severability
If
any
term of this Agreement is found to be unenforceable in any jurisdiction, then
such term shall be enforced to the maximum extent permitted by law, rather
than
voided, and the remaining terms of this Agreement shall remain in full force
and
effect.
29. Headings
Article,
section, or paragraph headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
30. Relationship
of Parties
(a) Non-Exclusivity
The
relationship created by this Agreement is non-exclusive. Customer shall be
free
to acquire services similar to the Services from alternative sources without
obligation to Pac-West.
(b) Pac-West
as Independent Contractor
Pac-West’s
relationship to Customer is that of an independent contractor. Pac-West’s
employees and subcontractors shall be deemed to be independent contractors,
and
not employees of Customer, for the purposes of all applicable laws and
regulations.
Confidential
Information Redacted and Filed Separately with the Commission. Omitted
Portions
Indicated by [**].
20
Confidential
Treatment Requested by Pac-West Telecomm, Inc.
(c) Relationship
Boundary
This
Agreement is not intended by the parties to constitute or create any form of
business relationship beyond the express terms hereof, and the rights and
obligations of the parties shall only be those expressly set forth in writing.
Neither party shall have authority to bind the other, except to the extent
authorized herein.
31. Purchases
on Behalf of Customer Affiliates
Customer
may purchase Services pursuant to this Agreement for the use by Customer’s
Affiliates and their end users.
32. Entire
Agreement
This
Agreement and any applicable tariff provisions shall constitute the complete,
final, and exclusive statement of the terms of the agreement between Pac-West
and Customer regarding the subject matter hereof, and shall supersede all prior
or contemporaneous written or oral representations, understandings, and
communications relating thereto. The terms and conditions of this Agreement
shall not be varied, supplemented, waived, qualified, modified, or interpreted
by any prior or subsequent course of dealing between the parties, failure,
or
delay to enforce any rights hereunder, or by any usage of trade or manner other
than by a subsequent writing signed by authorized representatives of both
parties. Neither party shall be bound by any pre-printed terms additional to
or
different from those in this Agreement that may appear subsequently in the
other
party’s form documents, purchase orders, quotations, acknowledgments, invoices,
or other communications, except for any applicable tariff
provisions.
IN
WITNESS WHEREOF, the parties have caused this Dial Access Services Agreement
to
be executed by their respective authorized representatives.
AUTHORIZED
APPROVALS
Qwest
Communications Corporation Pac-West
Telecomm, Inc.
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Printed
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Printed
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: Title:
Vice
President - Sales