Exhibit 10.1
Wholesale DSL Agreement
This Wholesale DSL Agreement (the "Agreement") is made and entered into as
of 11/17/2005 (the "Effective Date"), by and between BellSouth
Telecommunications, Inc. ("BellSouth"), a Georgia corporation, with offices at
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and [NSP], a Georgia corporation,
with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇-▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (BellSouth and
[NSP] may be referred to herein individually as "Party" and collectively as
"Parties")
NSP = Synkronus, Inc. dba Speedfactory
Whereas, BellSouth offers wholesale DSL, as more particularly described
in Attachment A (the "Service") to network service providers; and
Whereas, [NSP] is a network service provider that desires to purchase
the Service from BellSouth.
NOW, THEREFORE, for and in consideration of the promises herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. PROVISION OF SERVICE
BelISouth shall provide the Service, when and where available and [NSP] shall
purchase the Service pursuant to the terms of this Agreement and the Attachments
hereto. (Use of the defined term "Agreement" herein shall be deemed to include
all Attachments.")
2. TERM
This Agreement shall commence on the Effective Date and shall continue in effect
from the Effective Date and shall continue in effect for two (2) years from the
Effective Date ("Initial Term") unless terminated as a result of a default as
set forth below, or by mutual agreement of the Parties in writing. The term
shall automatically renew on a month-to-month basis ("Renewal Term") at the end
of the Initial Term; provided, however, either Party may provide notice of
non-renewal to the other Party no later than thirty (30) days before expiration
of the Initial Term or any Renewal Term.
3. TERMINATION; REFUSAL OF NEW SERVICE
(a) BellSouth may terminate this Agreement if [NSP]: (i) breaches any material
term, condition, or obligation of this Agreement and fails to cure such breach
within thirty (30) days after written notice of such breach; or (ii) becomes the
subject of a voluntary or involuntary bankruptcy, insolvency, reorganization, or
liquidation proceeding, makes an assignment for the benefit of creditors, or
admits in writing its inability to pay debts when due. (Subsections (i) and (ii)
may be referred to collectively herein as an "Event of Default.")
(b) Upon an Event of Default, BellSouth may, in its sole discretion, and in
lieu of termination, elect to refuse orders for new Service and/or refuse to
complete pending orders for Service until such time as the Event of Default is
cured. Such election to refuse orders for Service shall not be a waiver of
BellSouth's right to terminate under Section 3(a), above. In the event BellSouth
elects to refuse orders for Service, and thereafter desires to terminate under
Section 3(a), BellSouth shall send written notice to [NSP] of its intent to
terminate, and if the Event of Default continues, BellSouth may terminate this
Agreement on or after fifteen (15) days from the date of such notice.
(c) Upon termination or expiration of this Agreement, BellSouth will disable
[NSP]'s ability to order Services; will disconnect all Services ordered
hereunder; and all applicable charges, including termination charges, shall
become due.
4. RATES AND CHARGES
The rates and charges payable by [NSP] for the
Service shall be as set forth in Attachment B, which is attached hereto and
incorporated herein by this reference. Rates may be subject to Promotions as set
forth in Attachment C, which is attached hereto and incorporated herein by this
Reference. BellSouth will ▇▇▇▇ [NSP] monthly for the Service. Payment, including
amounts disputed pursuant to Section 11, below, is due thirty (30) days after
the ▇▇▇▇ or invoice date. If any payment due hereunder is not received within
the date stated on the ▇▇▇▇ or invoice, BellSouth may assess a late payment
charge of 1% per month.
5. TRANSPORT SERVICES.
[NSP] shall be responsible for obtaining pursuant to BellSouth's tariffs all
necessary transport elements required for use with the Service. The tariff
rates, terms and conditions shall govern such purchases.
6. DISCLAIMER OF LIABILITY; LIMITATION OF LIABILITY.
(a) BellSouth's liability, if any, for its willful misconduct is not limited by
this Agreement. With respect to any other claim or suit by [NSP], or by any
others, for damages associated with the installation, provision, preemption,
termination, maintenance, repair or restoration of Service, BellSouth's
liability shall not exceed an amount equal to the proportionate charge for the
Service for the period during which the Service was affected.
(b) BellSouth shall not be liable for any act or omission of [NSP], nor shall
BellSouth hold liable [NSP] for BellSouth's own act or omission.
(c) EXCEPT FOR [NSP]'s INDEMNIFICATION OBLIGATIONS, BELOW, NEITHER [NSP] NOR
BELLSOUTH SHALL HAVE ANY LIABILITY TO THE OTHER FOR LOST PROFITS OR INCIDENTAL,
CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF
WHETHER SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) In the event an arbitration panel or court should hold that the limitations
of liabilities as set forth in this Agreement, or any portions thereof, are
unenforceable for any reason, or that any of [NSP]'s remedies under this
Agreement fail of their essential purpose, [NSP] expressly agrees that under no
circumstance shall BellSouth's total liability to [NSP] or any party claiming
by, through or under [NSP] for any cause whatsoever, and regardless of the form
of action, whether in contract or in tort, including negligence, in the
aggregate, exceed the amount of charges paid or to be paid by [NSP] for use of
the Service during the period in which [NSP] purchased Service under this
Agreement.
7. LIMITATION AND DISCLAIMER OF WARRANTIES.
NEITHER BELLSOUTH NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, LICENSORS,
EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR
FREE; NOR DOES BELLSOUTH OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, LICENSORS,
EMPLOYEES, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE
OF THE SERVICE. UNLESS EXPRESSLY STATED TO THE CONTRARY HEREIN, THE SERVICE IS
PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
OTHERWISE, OTHER THAN THOSE WARRANTIES (IF ANY) WHICH ARE IMPLIED BY AND
INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE
TO THIS AGREEMENT, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED.
8. INDEMNIFICATION
(a) Provided that BellSouth is promptly notified in writing of any action
brought against [NSP] based on a claim that the Service infringes a United
States patent, copyright, trademark, or other intellectual property right,
BellSouth will indemnify [NSP] for all its directly related and reasonably
incurred expenses, including reasonable attorneys fees, defend that action at
its expense and will pay any and all fees, costs or damages that may be finally
awarded in that action and/or a settlement resulting from it (provided that
[NSP] shall permit BellSouth to have sole control over the defense or settlement
of such action; NSP shall not make any compromise, admission of liability or
settlement or take any other action impairing the defense of such claim without
BelISouth's prior written approval; and NSP shall cooperate with BellSouth in
all reasonable ways to facilitate the settlement or defense of any claim). If a
final injunction is obtained against [NSP] prohibiting usage of the Service by
reason of infringement of a United States patent, copyright, trademark, or other
intellectual property right, or if in BellSouth's opinion the Service is likely
to become subject to a valid and enforceable claim of infringement, BellSouth
will, at its option, either: (1) at its expense procure the right for [NSP] to
continue using the Service; ; (2) modify the Service so that it is
non-infringing; (3) return the price paid for the Service; or (4) direct [NSP]
to cease using the Service. In the latter event, the Service shall terminate
immediately.
(b) [NSP] will indemnify and save harmless BellSouth from and against all loss,
liability, damage, and expense, including all reasonable counsel fees, due to
claims for infringement of patents, copyright, trademark, or other intellectual
property rights arising from (1) [NSP] or [NSP]'s end user or any other third
party combining or using the Service in connection with equipment, software,
data, processes, or facilities furnished by [NSP] , [NSP]'s end user, or other
third party; (2) NSP, NSP's end user or other third party's use of the Service
based on specifications supplied by or specific instructions furnished by NSP,
NSP's end user, or other third party; (3) alterations or modifications to the
Service by NSP, NSP's end user, or other third party; (4) use of the Service not
in compliance with BellSouth's specifications or requirements; and (5) use of
the Service without the most current release or version of equipment, software,
data, processes, or facilities associated with the Service. NSP will indemnify
and save harmless BellSouth from and against all loss, liability, damage, and
expense, including all reasonable counsel feesdue to any other claims or causes
of action by third parties of any nature whatsoever, arising from the use of, or
in connection with, the Service or otherwise relating to or arising out of use
of the Service by [NSP], an authorized user of [NSP], including any end user of
[NSP], or any other third party. [NSP] shall have no obligation to indemnify
BellSouth for any claim that the Service infringes a United States patent,
copyright, trademark, or other intellectual property right.
(c) This section states the entire liability of BellSouth, and NSP's sole
remedy, with respect to any infringement or alleged infringement of any
intellectual property rights or proprietary rights.
9. USE OF SERVICE.
(a) [NSP] and its end users may use the Service to access their choice of legal
Internet content; run applications of their choice; and attach any devices or
equipment of their choice, subject to the provisions of Sections 9(b), (c), (d)
and (e), below.
(b) The characteristics and methods of operation of any circuits, facilities,
devices or equipment provided by [NSP] or any other third party and used in
connection with or otherwise associated with the Service shall not interfere
with or impair any other service provided by BellSouth, its affiliated
companies, or any carrier, including a competitive local exchange carrier, that
is using BellSouth's network; cause damage to BellSouth facilities; impair the
privacy of any communications carried over BellSouth facilities; or create
hazards to the employees of BellSouth; its affiliated companies; or any carrier,
including a competitive local exchange carrier, that is using BellSouth's
network; or the public.
(c) The Service shall not be used for any illegal or unlawful purpose.
BellSouth reserves the right to immediately disconnect Service, with or without
notice to [NSP], at a location where BellSouth becomes aware that the Service is
being used for an unlawful purpose.
(d) Excessive use of bandwidth is not permitted. The Service is designed to
handle traffic that is bursty in nature. Although some of the Services are best
effort services, and other Services have minimum guaranteed speeds, the data
rates, actual throughput and latency of all Services are affected by excessive
use of bandwidth. Applications such as file sharing, peer to peer traffic, and
video streaming can result in degradation of services being provided by
BellSouth and third parties as well as loss of quality of service experienced by
the end users of BellSouth and third parties. BellSouth will monitor its network
for excessive use. Excessive use of bandwidth shall be determined on the basis
of the percentage of bandwidth on the Service used at a particular location,
upstream or downstream, over a period of time. BellSouth reserves the right to
immediately disconnect Service, upon notice to [NSP], at any location that
BellSouth determines is adversely affecting BellSouth's network.
(e) In the event BellSouth determines the Service is being used in such a
manner as to invade the privacy or cause harm to third parties by such means as
propagation of a virus or worm; hacking; spamming; or threat of violence,
BellSouth reserves the right to immediately disconnect Service, upon notice to
[NSP], at the location where the Service is being used in such manner.
(f) The Service is not subject to resale. End user products that use or
incorporate the Service must be sold, supported, and billed by [NSP].
10. USE OF MARKS; NO LICENSE GRANT.
(a) [NSP] may, in response to a direct end user inquiry, advise end users that
a portion of the service [NSP] furnishes to its end users is provided by
BellSouth; provided, however, [NSP] shall not represent that BellSouth jointly
participates in [NSP]'s services. The BellSouth Company names, Iogos, services,
service marks and trademarks are owned by BellSouth Intellectual Property
Corporation and may not be used by [NSP] in any advertising, publicity,
marketing communication, publication, or in any other commercial manner, except
under an express, written license agreement with BellSouth Intellectual Property
Marketing Corporation. [NSP] acknowledges that it is separate and distinct from
BellSouth and that it provides a separate and distinct service and agrees that
[NSP] may not, expressly or impliedly, state, advertise or market that it is, or
offers the same service as, BellSouth or engage in any other activity that may
result in a likelihood of confusion between its own service and BellSouth's
service.
(b) No license is granted by BellSouth to [NSP] under any copyright, trademark,
patent or other intellectual property right in the Service, or any materials,
processes or technology related thereto.
11. ▇▇▇▇ DISPUTES
[NSP] shall submit a documented written claim in support of each specific
disputed amount. Upon receipt of [NSP]'s documented ▇▇▇▇ dispute, BellSouth
shall work with [NSP] to resolve the dispute in a timely manner. If the dispute
is resolved in favor of [NSP], interest equivalent to the late payment charge
set forth in Section 4, above, shall be calculated from the date of the
overpayment to the resolution date; provided, however, that if [NSP] submits the
dispute more than ninety (90) days after the date [NSP] paid the ▇▇▇▇ and said
dispute is resolved in favor of [NSP], interest shall be calculated from the
dispute date to the resolution date.
12. DEPOSITS
(a) In the event [NSP] has a history of late payments to BelISouth or is
without established credit, BellSouth may require [NSP] to make a deposit prior
to or at any time after the provision of Service to be held by BellSouth as a
guarantee of the payment of rates and charges. BellSouth reserves the right to
require an initial or an additional deposit of [NSP] if [NSP]'s credit decreases
from when the Service was established.
(b) BellSouth will provide written notice to [NSP] of such deposit requirement.
[NSP] will be required to make payment of such deposit prior to the provision of
new Service in those cases where [NSP] has not established credit with
BellSouth, or otherwise within ten (10) business days of such notice for [NSP]s
with existing Services.
(c) The deposit amount shall be calculated on the basis of the actual or
estimated rates and charges for the Service for a two month period. The fact
that a deposit has been made shall not relieve [NSP] from complying with its
obligation to make prompt payment hereunder. At such time as the provision of
the Service to the [NSP] is terminated, the amount of the deposit will be
credited to [NSP]'s account and any remaining balance shall be refunded, or in
the alternative, if there remains an unpaid balance for Service, BellSouth may
apply all or a portion of the deposit to such balance.
(d) Such a deposit will be refunded or credited to [NSP]'s account when [NSP]
has established credit or, in any event, after [NSP] has established a one-year
prompt payment record at any time prior to the termination of the provision of
the Service to [NSP]. In the case of a cash deposit, for the period the deposit
is held by BellSouth, [NSP] will receive simple interest at the rate of 1% per
month (.000329 per day) or 12% annually. The rate will be calculated from the
date [NSP]'s deposit is received by BellSouth up to and including the date such
deposit is credited to [NSP]'s account or the date the deposit is refunded by
BellSouth.
13. ORDERING
(a) [NSP] shall place an electronic (Internet or "web-based" interface) order
utilizing a BellSouth specified order and response system ("Ordering System") to
request Service be provisioned to an [NSP] designated end user premises.
BellSouth shall provide an identification and password for access to the
Ordering System when [NSP] provides to BellSouth all information requested by
BellSouth for provision and billing of the Service.
(b) BellSouth may make the Ordering System available to [NSP] for testing of
new services that are in production mode. Use of the Ordering System for such
testing shall be subject to this Agreement.
(c) [NSP] may request a modification of its order at any time prior to the due
date. BellSouth will make every effort to accommodate the requested modification
when it is able to do so with the normal work force assigned to complete such a
modification within normal business hours, without charge. Customer-requested
modifications that cannot be completed prior to the due date will be completed
as if for new service.
14. BILLING OPTIONS
(a) [NSP] may select as the primary billing medium either a standard billing
option (standard paper ▇▇▇▇ or CD-ROM) or billing data tape. Billing data tape
format is available in the four options below. [NSP] may select one of these
options as the primary billing medium at no charge and will also receive an
abbreviated paper ▇▇▇▇ for ▇▇▇▇ payment purposes at no charge.
1. CONNECT: DIRECT - This option provides an electronic transmission of
[NSP]'s ▇▇▇▇ in billing data tape and requires [NSP] have a dedicated
circuit from [NSP]'s premises to a BellSouth data center.
2. CD-ROM - This option provides the delivery of [NSP]'s in billing data tape
format via a physical medium, i.e., CD-ROM
CARTRIDGE TAPE - This option provides the delivery of [NSP]'s ▇▇▇▇ in
billing data tape format via a physical medium, i.e., Cartridge Tape. When
[NSP] elects to receive additional copies of its ▇▇▇▇ on cartridge tape,
only one copy of the cartridge tape will be provided. BellSouth does not
require [NSP] to return previously supplied tapes.
4. INTERNET MAILBOX - This option provides the delivery of [NSP]'s ▇▇▇▇ in
billing data tape format to an Internet-based, secure mailbox from which
[NSP]s may download their ▇▇▇▇.
(b) Rates and charges for additional copies of the [NSP]'s ▇▇▇▇ are as follows:
Billing Option Rate
-------------- -------
Standard Billing Options
Paper ▇▇▇▇ - per paper page $.25
CD ROM - Per CD ROM $60.00
Billing Data Tape (BDT) Options
(a) Connect: Direct - per record transmitted $.000932
(b) CD ROM - Per CD ROM $60.00
(c) Cartridge Tape
1) per tape $51.84
2) per record $.0018
(d) Internet Mailbox - per mailbox, per month $40.00
(c) Unless otherwise specified by [NSP], standard paper bills, cartridge tape
and/or CD ROM will be sent via U.S. Mail service. However, at [NSP]'s request,
[NSP] or [NSP]'s representative may pick up the paper bills, CD ROM or cartridge
tape at a location designated by BellSouth.
15. INSTALLATION; MAINTENANCE; AVAILABILITY FOR TESTING
(a) BellSouth will install Service to that point where provision is made for
termination of BellSouth's outside distribution network facilities. The Service
shall have only one point of termination per end user premises. Any additional
termination points beyond such point of termination are the sole responsibility
of [NSP].
(b) BellSouth shall maintain the Service. [NSP] or any third party shall not be
permitted to move, rearrange, disconnect, remove or attempt to repair any
facilities provided by BellSouth other than by connection or disconnection to
any interface means used, except with the written consent of BellSouth.
(c) The Service shall be available to BellSouth at times mutually agreed upon
to permit BellSouth to make tests and adjustments appropriate for maintaining
the Service in satisfactory operating condition. Such tests and adjustments
shall be completed within a reasonable time. No credit will be allowed for any
interruptions involved during such tests and adjustments.
16. CHANGES AND SUBSTITUTIONS
BellSouth may, where reasonably required in the operation of its business,
substitute, change or rearrange any facilities used in providing Service under
this Agreement, or change minimum protection criteria, operating or maintenance
characteristics of facilities or operations and procedures. BellSouth shall not
be responsible if any such substitution, change or rearrangement renders any
[NSP] furnished Services obsolete or requires modification or alteration thereof
or otherwise affects their use or performance. If such substitution, change or
rearrangement materially affects the operating characteristics of the facility,
BelISouth will provide reasonable notification to [NSP] and reasonable time will
be allowed for any redesign and implementation required by the change in
operating characteristics.
17. TAXES, UNIVERSAL SERVICE FUND, AND OTHER FEES
(a) For purposes of this section, the term "Tax" shall include but not be
limited to federal, state or local sales, use, excise, gross receipts or other
taxes or tax-like fees of whatever nature and however designated (including
tariff surcharges and any fees, charges or other payments, contractual or
otherwise, for the use of public streets or rights-of-way, whether designated as
franchise fees or otherwise), which are imposed, or sought to be imposed, on or
with respect to the services furnished hereunder or measured by the charges or
payments therefor.
(b) Except as otherwise provided in this section, BellSouth shall separately
state on each applicable invoice, and the [NSP] shall pay, all applicable Taxes.
(c) BellSouth shall not invoice [NSP] for a Tax if, and to the extent that, (i)
the [NSP] furnishes BellSouth with a properly executed certificate of exemption
or direct pay permit and satisfies any other requirements under applicable law;
and, if in BelISouth's judgment such Tax is considered by the taxing authority
to apply to some or all of the services furnished hereunder, (ii) the [NSP]
furnishes BelISouth with a ruling or similar documentation from the taxing
authority stating that such Tax does not apply to some or all of the services
furnished hereunder.
(d) The [NSP] shall protect and indemnify BellSouth from and against the
assessment or collection by a taxing authority of any Tax not invoiced by
BellSouth, provided that BellSouth permits the [NSP] to contest the assessment
or collection of such Tax or, if necessary and if requested by the [NSP],
contests such assessment or collection on behalf of the [NSP] but at the [NSP]'s
expense.
(e) BellSouth shall permit the [NSP] to contest any Tax paid by such [NSP],
either by assigning to the [NSP] its right to claim a refund of such Tax or, if
necessary and requested by the [NSP], filing and pursuing a claim for refund on
behalf of the [NSP] but at the [NSP]'s expense.
(f) In any contest of a Tax by BelISouth or the [NSP], the other party shall
cooperate fully by providing records, testimony and such additional information
or assistance as may reasonably be necessary to pursue the contest; provided,
however that the reasonable costs of providing such assistance shall be
reimbursed by the requesting party.
(g) To the extent BellSouth pays into the universal service fund for Services
purchased by [NSP], [NSP] shall reimburse BellSouth for all such universal
service fund charges paid.
18. RESOLUTION OF DISPUTES
(a) Except for a breach of the obligations set forth in Section 8, entitled
"Indemnification," Section 10, entitled "Use of Marks, No License Grant", or a
collection action for nonpayment brought by BellSouth, and without limiting
either party's right to seek appropriate injunctive relief, any controversy,
claim or dispute arising out of or relating to this Agreement for the breach,
termination, enforcement, interpretation or validity thereof ("Disputed
Matter"), whether based in contract, tort, statute, fraud, misrepresentation or
any other legal or equitable theory, shall be resolved by final and binding
arbitration governed by the Federal Arbitration Act, 9 USC ss.ss.1-16. (However,
disputes that meet the small claims court requirements in the state in which the
services are provided may be resolved in small claims court, if both parties
concur in the use of that court.)
(b) In the event of any Disputed Matter, the BellSouth and [NSP] shall submit
the matter to mediation within thirty (30) days of one Party receiving from the
other Party a written request to mediate. The Parties may choose any
institutional or informal means to mediate a Disputed Matter.
(c) In the event the Parties cannot resolve the matter by mediation, any
ensuing arbitration of a Disputed Matter conducted pursuant to this Agreement
shall be administered by the International Institute for Conflict Prevention and
Resolution ("The Institute"; f/k/a the CPR Institute for Dispute Resolution and
the Center for Public Resources) pursuant to its then current Rules for
Non-Administered Arbitration ("The Rules.")
(d) In the event the Parties agree that the Disputed Matter involves a sum at
issue of less than $1 million, the arbitration will be submitted to one
arbitrator to be selected by The Institute in accordance with The Rules. If one
Party or both Parties reasonably consider the Disputed Matter to involve a sum
at issue in excess of $1 million, the arbitration shall be conducted by three
arbitrators, of whom each Party shall designate one in accordance with the
"screened" appointment procedure provided in The Rules.
(e) The parties have the right to be represented by counsel. The arbitrator(s)
shall be bound by and strictly enforce the terms of this Agreement, and may not
limit, expand or otherwise modify the terms of this Agreement in conducting the
arbitration and making any award. The arbitrator(s) shall also be bound by the
substantive law of the State of Georgia, without giving effect to its choice of
law principles. Any arbitration will be conducted in Atlanta, Georgia.
Arbitrations under this Agreement shall be kept confidential.
(f) Disputes under this Agreement may not be (1) resolved on a class-wide
basis, (2) joined with another lawsuit, or (3) joined in an arbitration with a
dispute of any other entity. The arbitrator(s) may not award, and the Parties
waive any claims for awards for punitive, exemplary or similar damages, or
attorney's fees. The arbitrators are not empowered to award damages in excess of
compensatory damages. The arbitrator(s) shall be bound by and apply any and all
other limitations of liability or disclaimers of liability contained in any
section of this Agreement, which are hereby incorporated in this Section 18.
(g) Subject to applicable substantive law that may provide otherwise, each
Party must pay its own expenses to participate in the arbitration, including
attorney's fees and expenses related to the presentation of evidence, witnesses
and document production.
(h) Unless both Parties agree to an extension of time, any hearing of a
Disputed Matter shall be completed no later than 180 days after the date of the
initial pre-hearing conference required by The Rules. The arbitration award
shall be issued no later than thirty (30) days after the completion of the
hearing. Such award shall be final when deemed final in accordance with The
Rules. The award shall state the reasons supporting the award. The motion for
entry of judgment on the award may be filed in any court of competent
jurisdiction.
19. NON-WAIVER.
No delay or failure by either Party to exercise any right under this Agreement
and no partial exercise of any right under this Agreement shall constitute a
waiver of that right or any other right.
20. NOTICES.
Unless otherwise stated, notices, authorizations, and requests required or
desired to be given or made in connection with this Agreement shall be in
writing, given by certified or registered mail (return receipt requested),
express air courier (charges prepaid) or hand delivery, and addressed as follows
(or to such other address as the Party to receive the notice or request so
designates by notice to the other):
If to BellSouth, one copy being directed to the attention of the Legal
Department and the second to Wholesale DSL Marketing as follows:
BellSouth Legal Department:
ATTN: Senior Counsel - Broadband and Internet Services
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BellSouth Broadband Services
ATTN: Director - Wholesale DSL ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to [NSP], notice shall be to the following location location:
If a notice is given by either Party by certified or registered mail, it will be
deemed received by the other Party on the third business day following the date
on which it is deposited for mailing. If a notice is given by either Party by
air express courier, it will be deemed received by the other Party on the next
business day following the date on which it is provided to the air express
courier. If a notice is given by hand-delivery, it will be deemed received by
the other Party upon such delivery.
21. FORCE MAJEURE.
No Party shall be responsible for any delay or failure in delivery or
performance of any of its duties hereunder due to acts of God, acts or omissions
of any regulated telephone network or any other occurrence commonly known as
force majeure, including, but not limited to, war, terrorist acts, riots,
embargoes, hurricane or other natural disasters, strikes, work stoppage, work
slowdown, or other concerted acts of workers (whether of BellSouth or others),
casualties or accidents, or any other causes or circumstances whether of a
similar or dissimilar nature to the foregoing, which prevent or hinder the
delivery of DSL. BellSouth may delay performance of its obligation to provide
the Service for so long as such occurrence or occurrences affect BellSouth's
ability to provide the Service, and in such event such BellSouth shall have no
liability to [NSP] for failure to provide the Service.
22. REGULATORY MANDATES.
[NSP] expressly recognizes that BelISouth is a communications common carrier
licensed and regulated by the Federal Communications Commission ("FCC") and
state public utility commissions. The FCC has authorized BellSouth to offer the
Service via a private carriage arrangement. In the event such authority ceases,
BellSouth may terminate this Agreement effective with the cessation of such
authority. In addition, this Agreement may be subject to such other changes or
modifications as any such regulatory body may from time to time direct in the
exercise of its jurisdiction.
23. ASSIGNMENTS.
[NSP] shall not assign its rights, duties or obligations hereunder without the
prior written consent of BellSouth; provided, however, that [NSP] shall not be
obligated to obtain BellSouth's consent to any assignment to an affiliate or
subsidiary of [NSP], or any entity with which [NSP] is under common control. Any
attempt by [NSP] to assign or transfer any of the rights, duties, or obligations
of [NSP] with respect to the Service where BelISouth's consent is required but
not obtained shall be void, and no assignment or transfer shall release [NSP]
from any of its obligations with respect to the Service. BellSouth shall not
assign its rights, duties or obligations hereunder without the prior written
consent of [NSP]; provided, however, that BellSouth shall not be obligated to
obtain [NSP]'s consent to any assignment to an affiliate or subsidiary of
BellSouth, or any entity with which BellSouth is under common control.
24. LIMITATION OF ACTIONS.
No action, regardless of form, arising out of this Agreement may be brought by
either BellSouth or [NSP] more than two years after the cause of action has
arisen.
25. ENTIRE AGREEMENT.
This Agreement set forth the entire agreement between [NSP] and BellSouth
respecting any Service ordered hereunder, and supersedes any prior written or
verbal proposals, agreements, letters of intent, understandings or other
discussions respecting the same. BellSouth will not be bound by any provision
contained in any order, request for service, confirmation, correspondence or
other communication from [NSP] that is at variance with, in addition to, or
conflicts with any provision of this Agreement, unless such variance, addition
or conflict is specifically identified in a written agreement signed by [NSP]
and an authorized representative of BelISouth. No agent, employee, or
representative of BellSouth has any authority to bind BelISouth to any
affirmation, representation, or warranty unless the same is specifically set
forth in this Agreement or other written agreement as provided above.
26. SEVERABILITY.
If any provision of this Agreement conflicts with the law under which this
Agreement is to be construed or if any such provision is held invalid by a court
with jurisdiction over the Parties, such provision shall be deemed inoperative
to the extent it is deemed invalid, but the validity of the remaining portions
of provisions shall not be affected thereby so long as the Parties' respective
rights and obligations in the aggregate hereunder would not be materially
affected thereby taken as a whole. Notwithstanding the foregoing, to the extent
any such provision held invalid may be made enforceable by limiting or restating
the provision to reflect as nearly as possible the original intentions of the
Parties, then such provision shall be deemed so limited or restated. The
remainder of this Agreement shall remain in full force and effect.
27. AMENDMENT OR MODIFICATION.
No subsequent amendment, modification or waiver of any of the provisions of this
Agreement shall be effective unless in writing and signed by the Parties.
28. NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement is intended to confer benefits, rights or remedies
unto any person or entity other than the Parties and their permitted successors
and assigns.
29. SURVIVAL
The following Sections will survive termination or
expiration of this Agreement: Section 4, Rates and Charges; Section 6,
Disclaimer of Liability; Limitation of Liability; Section 8, Indemnification;
Section 10, Use of Marks; No License Grant; Section 11, ▇▇▇▇ Disputes; Section
12(c); Section 17, Taxes; Section 18, Resolution of Disputes; Section 19,
Non-waiver; Section 20, Notices; ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇; Section 24;
Limitation of Actions; Section 26, Severability; Section 27, Amendment or
Modification; Section 28, No Third Party Beneficiaries; Section 31,
Counterparts.
At a later date, when BellSouth is in a position to discuss Volume and Term
Agreements, Synkronus, Inc. will be able to participate in those discussion,
which may or may not include the addition of new products such as the 6MB dsl
product.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ 11/17/05
30. COMPLIANCE WITH LAWS.
Each Party shall comply with all prevailing laws, rules and regulations and
obtain all necessary approvals, consents and permits required by the applicable
agencies of the government of the jurisdictions that apply to its activities or
obligations under this Agreement.
31. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument. Faxed signatures shall have the same effect as original
signatures. IN WITNESS WHEREOF, the Parties to this Agreement by their duly
authorized representatives have executed this Agreement as follows:
ACKNOWLEDGED AND AGREED:
BELLSOUTH TELECOMMUNICATIONS, INC. [NSP]
By: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Title: President
Date: Date: 11/17/05
Schedule of Attachments to Wholesale DSL Agreement
Attachment A: BellSouth DSL Terms of Service
Attachment B: DSL Rates and Charges
Attachment C: DSL Promotions
Attachment D: Glossary of Terms