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Exhibit 10.19
WORLDCOM NETWORK SERVICES, INC.
CLASSIC/TRANSCEND SWITCHED SERVICES
TELECOMMUNICATIONS SERVICES AGREEMENT
This TELECOMMUNICATIONS SERVICES AGREEMENT (the "TSA") is entered into
as of the 20th day of April, 1999, by and between WORLDCOM NETWORK SERVICES,
INC., a Delaware corporation, with its principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("WORLDCOM") and AMERIVISION COMMUNICATIONS, INC.,
an Oklahoma corporation, with its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CUSTOMER").
In consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. SWITCHED SERVICES; OTHER DOCUMENTS; START OF SERVICE.
(A) Services. WorldCom agrees to provide and Customer agrees to accept
and pay for switched telecommunications services and other associated
services (collectively the "SWITCHED SERVICES") as further described in
the "SERVICE SCHEDULE" attached hereto and incorporated herein by
reference, which describes the particular services, specific terms and
other information necessary or appropriate for WorldCom to provide the
Service to Customer. The Switched Services provided by WorldCom are
subject to (i) the terms and conditions contained in this TSA and the
Program Enrollment Terms (the "PET") which are attached hereto and
incorporated herein by reference, (ii) the rates and discounts set
forth in the applicable Rate and Discount Schedule (the "RATE
SCHEDULE") attached hereto and incorporated herein by reference, and
(iii) each Service Request (described below) which is accepted
hereunder. The PET, as subscribed to by the parties, shall set forth
the Effective Date, the Service Term, Customer's minimum monthly
commitment, if any, and other information necessary to provide the
Switched Services under this TSA. In the event of a conflict between
the terms of this TSA, the PET, the Service Schedule, the Rate Schedule
and the Service Request(s), the following order of precedence will
prevail: (1) the PET, (2) the Rate Schedule, (3) the Service Schedule,
(4) this TSA, and (5) Service Request(s). This TSA, the Pet, the
Service Schedule and the applicable Rate and Discount Schedule are
sometimes collectively referred to as the "AGREEMENT."
(B) Service Requests. Customer's request to initiate or cancel Switched
Services shall be described in an appropriate WorldCom Services Request
("SERVICE REQUEST"). A Service Request may consist of machine readable
tapes, facsimiles or
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other means approved by WorldCom. Further, Service Requests shall
specify all reasonable information, as determined by WorldCom,
necessary or appropriate for WorldCom to provide the Switched
Service(s) in question, which shall include without limitation, the
type, quantity and end point(s) (when necessary) of circuits comprising
a Service Interconnection as described in the applicable Service
Schedules, or automatic number identification ("ANI") information
relevant to the Switched Service(s), the Requested Service Date, and
charges, if any, relevant to the Switched Services described in the
Service Request. After WorldCom's receipt and verification of a valid
Service Request for SWITCHED ACCESS Service (as defined in the Service
Schedule) requiring a change in the primary interchange carrier
("PIC"), WorldCom agrees to (i) submit the ANI(s) relevant to such
Service Requests to the following local exchange carriers ("LECS")
(with which WorldCom currently has electronic interface capabilities)
within ten (10) days: Ameritech, ▇▇▇▇ Atlantic, BellSouth, Nynex,
Pacific ▇▇▇▇, Southwestern ▇▇▇▇, US West, GTE and United, and (ii)
submit the ANI(s) relevant to such Service Requests to those LECs with
which WorldCom does not have electronic interface capabilities within a
reasonable time.
(C) Start of Service. WorldCom's obligation to provide and Customer's
obligation to accept and pay for non-usage sensitive charges for
Switched Services shall be binding to the extent provided for in this
Agreement upon the submission of an acceptable Service Request to
WorldCom by Customer. Customer's obligation to pay for usage sensitive
charges for Switched Services shall commence with respect to any
Switched Service as of the date the Switched Service in question is
made available to and used by Customer ("START OF SERVICE"), but in no
event later than the "REQUESTED SERVICE DATE" if such Switched Service
is available for Customer's use as of such Requested Service Date.
Start of Service for particular Services shall be further described in
the Service Schedule relevant to the Switched Services in question.
2. CANCELLATION.
(A) Cancellation Charge. At any time after the Effective Date, Customer
may cancel this Agreement if Customer provides written notification
thereof to WorldCom not less than thirty (30) days prior to the
effective date of cancellation. In such case (or in the event WorldCom
terminates this Agreement as provided in Section 7), Customer shall pay
to WorldCom all charges for Services provided through the effective
date of such cancellation plus a cancellation charge (the "CANCELLATION
CHARGE") equal to one hundred percent (100%) of Customer's
commitment(s), if any, (as described in the PET) that would have become
due for the unexpired portion of the Service Term.
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(B) Liquidated Damages. It is agreed that WorldCom's damages in the
event Customer cancel this Agreement shall be difficult or impossible
to ascertain. The provision for a cancellation charge in Subsection
2(A) above is intended, therefore, to establish liquidated damages in
the event of a cancellation and is not intended as a penalty.
(C) Cancellation Without Charge. Notwithstanding anything to the
contrary contained in Subsection 2(A) above, Customer may cancel this
Agreement without incurring any cancellation charge if (i) WorldCom
fails to provide a network as warranted in Section 8 below; (ii)
WorldCom fails to deliver call detail records promptly based on the
frequency selected by Customer (i.e., monthly, weekly or daily); or
(iii) WorldCom fails to submit ANI(s) relevant to such Service Requests
to the LECs within the time period described in Subsection 1(B) above.
Provided, however, Customer must give WorldCom written notice of any
such default and an opportunity to cure such default within five (5)
days of the notice. In the event WorldCom fails to cure any such
default within the five-day period on more than three (3) occasions
within any six (6) month period, Customer may cancel this Agreement
without incurring any cancellation charge.
3. CUSTOMER'S END USERS.
(A) End Users. Customer will obtain and upon WorldCom's request provide
WorldCom (within two (2) business days of the date of the request) a
written Letter of Agency ("LOA") acceptable to WorldCom [or with any
other means approved by the Federal Communications Commission ("FCC")
or any applicable public utility commission ("PUC")], for each ANI
indicating the consent of such end user of Customer ("END User") to be
served by Customer and transferred (by way of change of such End User's
designated PIC) to the WorldCom network prior to order processing. Each
LOA will provide, among other things, that the End User has consented
to the transfer being performed by Customer or Customer's designee.
When applicable, Customer will be responsible for notifying its End
Users, in writing (or by any other means approved by the FCC) that (i)
a transfer charge will be reflected on their LEC ▇▇▇▇ for effecting a
change in their PIC, (ii) the entity name under which their interstate,
intrastate and/or operator services will be billed (if different from
Customer), and (iii) the "primary" telephone number(s) to be used for
maintenance and questions concerning their long distance service and/or
billing. Customer agrees to send WorldCom a copy of the documentation
Customer uses to satisfy the above requirements promptly upon request
of WorldCom. WorldCom may change the foregoing requirements for
Customer's confirming orders and/or for notifying End Users regarding
the transfer charge at any time in order to conform with applicable FCC
and state regulations. Provided, however, Customer will be solely
responsible for ensuring that the transfer of End Users to the WorldCom
network conforms with applicable FCC and state regulations, including
without limitation, the regulations established by the FCC with respect
to verification of
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orders for long distance service generated by telemarketing as
promulgated in 47 C.F.R., Part 64, Subpart K, Section 64.1100 or any
successor regulation(s).
(B) Transfer Charges/Disputed Transfers. Customer agrees that it is
responsible for (i) all charges incurred by WorldCom to change the PIC
of End Users to the WorldCom network, (ii) all charges incurred by
WorldCom to change End Users back to their previous PIC arising from
disputed transfers to the WorldCom network plus, at WorldCom's option,
an administrative charge equal to --**-- of such charges, and (iii) any
other damages suffered by or awards against WorldCom resulting from
disputed transfers.
(C) Excluded ANIs. WorldCom has the right to reject any ANI supplied by
Customer for any of the following reasons: (i) WorldCom is not
authorized to provide or does not provide long distance services in the
particular jurisdiction in which the ANI is located, (ii) a particular
ANI submitted by Customer is not in proper form, (iii) Customer is not
certified to provide long distance services in the jurisdiction in
which the ANI is located, (iv) Customer is in material default of this
Agreement, (v) Customer fails to cooperate with WorldCom in
implementing reasonable verification processes determined by WorldCom
to be necessary or appropriate in the conduct of business, or (vi) any
other circumstance reasonably determined by WorldCom which could
adversely affect WorldCom's performance under this Agreement or
WorldCom's general ability to transfer its other customers to other end
users to the WorldCom network, including without limitation, WorldCom's
ability to electronically effect PIC changes with the LECs. In the
event WorldCom rejects an ANI, WorldCom will notify Customer of its
decision specifically describing the rejected ANI and the reason(s) for
rejecting that ANI, and will not incur any further liability under this
Agreement with regard to that ANI. Further, any ANI requested by
Customer for Switched Services may be deactivated by WorldCom if no
Switched Services ▇▇▇▇▇▇▇▇ relevant thereto are generated in any three
(3) consecutive calendar month/billing periods. WorldCom will be under
no obligation to accept ANIs within the last full calendar month period
preceding the scheduled expiration of the Service Term.
(D) Records. Customer will maintain documents and records ("RECORDS")
supporting Customer's re-sale of Switched Services, including, but not
limited to, appropriate and valid LOAs from End Users for a period of
not less than (twelve) 12 months or such longer period as may be
required by applicable law, rule or regulation. Customer shall
indemnify WorldCom for any costs, charges or expenses incurred by
WorldCom arising from disputed PIC selections involving Switched
Services to be provided to Customer for which Customer cannot produce
an
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--**-- This symbol signifies information from the agreement that has
been omitted because the Company has requested confidential treatment. The
information has been filed separately with the Securities and Exchange
Commission.
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appropriate LOA relevant to the ANI and PIC charge in question, or
when WorldCom is not reasonably satisfied that the validity of a
disputed LOA has been resolved.
(E) Customer Service. Customer will be solely responsible for billing
its End Users and providing such End Users with customer service.
Customer agrees to notify WorldCom as soon as reasonably possible in
the event an End User notifies Customer of problems associated with the
Switched Services, including without limitation, excess noise, echo, or
loss of service.
4. CUSTOMER'S RESPONSIBILITIES.
(A) Expedite Charges. In the event Customer requests expedited services
and/or charges to Service Requests and WorldCom agrees to such request,
WorldCom will pass through the charges assessed by any supplying
parties (e.g., local access providers) for such expedited charges
and/or charges to Service Requests involved at the same rate to
Customer. WorldCom may further condition its performance and such
request upon Customer's payment of such addition charges to WorldCom.
(B) Fraudulent Calls. Customer shall indemnify and hold WorldCom
harmless from all costs, expenses, claims or actions arising from
fraudulent claims of any nature which may comprise a portion of the
Switched Services to the extent that the party claiming the call(s) in
question to be fraudulent is (or had been at the time of the call) an
End User of such Switched Services through Customer or an end user of
the Switched Services through Customer's distribution channels.
Customer shall not be excused from paying WorldCom for Switched
Services provided to Customer or any portion thereof on the basis that
fraudulent calls comprised a corresponding portion of the Switched
Services. In the event WorldCom discovers fraudulent calls being made
(or reasonably believes fraudulent calls are being made), nothing
contained herein shall prohibit WorldCom from taking immediate action
(without notice to Customer) that is reasonably necessary to prevent
such fraudulent calls from taking place, including without limitation,
denying Switched Services to particular ANIs or terminating Switched
Services to or perform specific locations.
5. CHARGES AND PAYMENT TERMS.
(A) Payment. WorldCom ▇▇▇▇▇▇▇▇ for Switched Services hereunder are made
on a monthly basis (or such other basis as may be mutually agreed to by
the parties) following Start of Service. Subject to Subsection 5(C)
below, Switched Services shall be billed at the rates set forth in the
applicable Rate and Discount Schedule attached hereto. Customer will be
notified of WorldCom's time of day rate periods (including WorldCom
Recognized National Holidays). Discounts, if any, applicable to the
rates for certain Services are set forth in the Rate and Discount
Schedule.
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Customer will pay all undisputed charges relative to each WorldCom
invoice for Switched Services within thirty (30) days of the invoice
date set forth on each WorldCom invoice to Customer ("DUE DATE"). If
payment is not received by WorldCom on or before the Due Date, Customer
shall also pay a late fee in the amount of the lesser of one and
one-half percent (12%) of the unpaid balance of the charges for
Switched Services rendered per month or the maximum lawful rate under
applicable state law.
(B) Taxes. Customer acknowledges and understands that WorldCom computes
all charges herein exclusive of any applicable federal, state or local
use, gross receipts, sales and privilege taxes, duties, fees or similar
liabilities (other than general income or property taxes), whether
charged to or against WorldCom or Customer because of the Switched
Services furnished to Customer ("ADDITIONAL Charges"). Customer shall
pay such Additional Charges in addition to all other charges provided
for herein. Customer will not be liable for certain Additional Charges
if Customer provides WorldCom with an appropriate exemption
certificate.
(C) Modification of Charges. WorldCom reserve the right to eliminate
particular Switched Services and/or modify charges for particular
Switched Services (which charge modifications shall not exceed
then-current generally available WorldCom charges for comparable
services), upon not less than sixty (60) days prior notice to Customer,
which notice will state the effective date for the charge modification.
In the event WorldCom notifies Customer of the elimination of a
particular Switched Service and/or an increase in the charges, Customer
may terminate this Agreement without incurring a cancellation charge
only with respect to the Switched Service(s) affected by the increase
in charges. In order to cancel such Switched Service(s), Customer must
notify WorldCom, in writing, at least thirty (30) days prior to the
effective date of the increase in charges. In the event Customer
cancels its subscription to a particular Switched Service as described
in this Subsection 5(C), WorldCom and Customer agree to negotiate in
good faith concerning Customer's minimum monthly commitment, if any,
described in the PET.
(D) Billing Disputes. Notwithstanding the foregoing, amounts reasonably
disputed by Customer (along with late fees attributable to such
amounts) shall apply but shall not be due and payable for a period of
sixty (60) days following the Due date therefor, provided Customer: (i)
pays all undisputed charges on or before the Due Date, (ii) presents a
written statement of any billing discrepancies to WorldCom in
reasonable detail on or before the Due Date of the invoice in question,
and (iii) negotiates in good faith with WorldCom for the purpose of
resolving such dispute within said sixty (60) day period. In the event
such dispute is mutually agreed upon and resolved in favor of WorldCom,
Customer agrees to pay WorldCom the disputed amounts together with any
applicable late fees within ten (10) days of the resolution (the
"ALTERNATE DUE DATE"). In the event of such dispute is mutually greed
upon and
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resolved in favor of Customer, Customer will receive a credit for the
disputed charges in question and the applicable late fees. In the event
WorldCom has responded to Customer's dispute in writing and the parties
fail to mutually resolve or settle the dispute within such sixty (60)
day period (unless WorldCom has agreed in writing to extend such
period) all disputed amounts together with late fees shall become due
and payable, and this provision shall not be construed to prevent
Customer from pursuing any available legal remedies. WorldCom shall not
be obligated to consider any Customer notice of billing discrepancies
which are received by WorldCom more than sixty (60) days following the
Due Date of the invoice in question.
6. CREDIT; CREDITWORTHINESS:
(A) Credit. Customer's execution of this Agreement signifies Customer's
acceptance of WorldCom's initial and continuing credit approval
procedures and policies. WorldCom reserves the right to withhold
initiation or full implementation of any or all Switched Services under
this Agreement pending WorldCom's initial satisfactory credit review
and approval thereof which may be conditioned upon terms specified by
WorldCom, including, but not limited to, security for payments due
hereunder in the form of a cash deposit or other means. WorldCom
reserves the right to modify its requirements, if any, with respect to
any security or other assurance provided by Customer for payments due
hereunder in light of Customer's actual usage when compared to
projected usage levels upon which any security or assurance requirement
was based.
(B) Creditworthiness. If at any time there is a material adverse change
in Customer's creditworthiness, then in addition to any other remedies
available to WorldCom, WorldCom may elect, in its sole discretion, to
exercise one or more of the following remedies: (i) cause Start of
Service for Switched Services described in a previously executed
Service Request to be withheld; (ii) cease providing Switched Services
pursuant to a Suspension Notice in accordance with Section 7(A); (iii)
decline to accept a Service Request or other requests from Customer to
provide Switched Services which WorldCom may otherwise be obligated to
accept and/or (iv) condition its provision of Switched Services or
acceptance of a Service Request on Customer's assurance of payment
which shall be a deposit or such other means to establish reasonable
assurance of payment. An adverse material change in Customer's
creditworthiness shall include, but not be limited to: (i) Customer's
material default of its obligations to WorldCom under this or any other
agreement with WorldCom; (ii) failure of Customer to make full payment
of all undisputed charges due hereunder on or before the Due Date (or
disputed charges on or before the Alternate Due Date) on three (3) or
more occasions during any period of twelve (12) or fewer months or
Customer's failure to make such payment on or before the
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Due Date (or the Alternate Due Date, if applicable) in any two (2)
consecutive months, (iii) acquisition of Customer (whether in whole or
by majority or controlling interest) by an entity which is insolvent,
which is subject to bankruptcy or insolvency proceedings, which owes
past due amounts to WorldCom or any entity affiliated with WorldCom or
which is a materially greater credit risk than Customer; or (iv)
Customer's being subject to or having filed for bankruptcy or
insolvency proceedings or the legal insolvency of Customer.
7. REMEDIES FOR BREACH.
(A) Suspension of Service. In the event all undisputed charges due
pursuant to WorldCom's invoice are not paid in full by the Due Date or
undisputed charges owed by Customer, if any, are not paid in full by
the Alternate Due Date, WorldCom shall have the right, after giving
Customer at least ten (10) days prior notice and opportunity to pay
such charges within such 10-day period, to suspend all or any portion
of the Switched Services to Customer ("SUSPENSION NOTICE") until such
time (designated by WorldCom in its Suspension Notice) as Customer has
paid in full all undisputed charges then due to WorldCom, including any
late fees. Following such payment, WorldCom shall reinstitute Switched
Services to Customer only when Customer provides WorldCom with
satisfactory assurance of Customer's ability to pay for such Switched
Services (i.e., a deposit, letter of credit or other means acceptable
to WorldCom) and Customer's advance payment of the cost of
reinstituting such Switched Services. If Customer fails to make the
required payment by the date set forth in the Suspension Notice,
Customer will be deemed to have canceled the Services suspended
effective as of the date of suspension which cancellation shall not
relieve Customer for payment of application cancellation charges as
described in Section 2.
(B) Disconnection of Service. In the event Customer is in material
breach of this Agreement, including without limitation, failure to pay
all undisputed charges due hereunder by the date stated in the
Suspension Notice described in Subsection 7(A) above, WorldCom shall
have the right, after giving Customer at least five (5) days prior
written notice and opportunity to cure (which notice may be given
instead of or in conjunction with the Suspension Notice described in
Subsection 7(A) above), and in addition to foreclosing any security
interest WorldCom may have, to (i) disconnect all or any portion the
Switched Services being provided hereunder and/or terminate this
Agreement; (ii) withholding billing information from Customer; and/or
(iii) contact the End Users (for whom calls are originated and
terminated solely over facilities comprising the WorldCom network)
directly and ▇▇▇▇ such End Users directly until such time as WorldCom
has been paid in full for the amount owed by Customer. If Customer
fails to make payment by the date stated in the Suspension Notice and
WorldCom, after giving Customer five (5) days prior written notice,
terminates this Agreement as provided in this Section 7, such
termination shall not
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relieve Customer for payment of applicable cancellation charges as
described in Section 2 above.
8. WARRANTY. WorldCom will use reasonable efforts under the circumstances
to maintain its overall network quality. The quality of Switched Services
provided hereunder shall be consistent with telecommunications common carrier
industry standards, government regulations and sound business practices.
WORLDCOM MAKES NO OTHER WARRANTIES ABOUT THE SWITCHED SERVICES PROVIDED
HEREUNDER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
9. LIABILITY; GENERAL INDEMNITY; REIMBURSEMENT.
(A) Limited Liability. IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE
TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF
REVENUE, LOSS OF CUSTOMERS OR CLIENTS, LOSS OF GOODWILL OR LOSS OF
PROFITS ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE
OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
(B) General Indemnity. In the event parties other than Customer (e.g.,
Customer's End Users) shall have use of Switched Services through
Customer, then Customer agrees to forever indemnify and hold WorldCom,
its affiliated companies and any third-party provider or operator of
facilities employed in provision of the Switched Services harmless from
and against any and all claims, demands, suits, actions, losses,
damages, assessments or payments which those parties may assert arising
out of or relating to any defect in the Switched Services.
(C) Reimbursement. Customer agrees to reimburse WorldCom for all
reasonable costs and expenses incurred by WorldCom due to WorldCom's
direct participation (either as a party or witness) in any
administrative, regulatory or criminal proceeding concerning Customer
if WorldCom's involvement in said proceeding is based solely on
WorldCom's provision of Switched Services to Customer.
10. FORCE MAJEURE. If WorldCom's performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with by causes
beyond its reasonable control including, but not limited to, acts of God, fire,
explosion, vandalism, cable cut, storm or other similar occurrence, any law,
order, regulation, direction, action or request of the United States government,
or state or local governments, or of any department, agency, commission, court,
bureau, corporation or other instrumentality of any one or more such
governments, or of any civil or military authority, or by national emergency,
insurrection, riot, war, strike,
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lockout or work stoppage or other labor difficulties, or supplier failure,
shortage, breach or delay, then WorldCom shall be excused from such performance
on a day-to-day basis to the extent of such restriction or interference.
WorldCom shall use reasonable efforts under the circumstances to avoid or remove
such causes or nonperformance and shall proceed to perform with reasonable
dispatch whenever such causes are removed or cease.
11. STATE CERTIFICATION. Customer warrants that in all jurisdictions in
which it provides long distance services that require certification, it has
obtained the necessary certification from the appropriate governmental authority
and, if required by WorldCom, agrees to provide proof of such certification
acceptable to WorldCom. In the event Customer is prohibited, either on a
temporary or permanent basis, from continuing to conduct its telecommunications
operations in a given state, Customer shall (i) immediately notify WorldCom by
facsimile, and (ii) send written notice to WorldCom within twenty-four (24)
hours of such prohibition.
12. INTERSTATE/INTRASTATE SERVICE. Except with respect to Services
specifically designated as intrastate Services or international Services, the
rates provided to Customer in the Service Schedule are applicable only to
Switched Services if such Switched Services are used for carrying interstate
telecommunications (i.e., Switched Services subject to FCC jurisdiction).
WorldCom shall not be obligated to provide Switched Services with end points
within a single state or Switched Services which originate/terminate at points
both of which are situated within a single state. In those states where WorldCom
is authorized to provide intrastate service (i.e., telecommunications
transmission services subject to the jurisdiction of state regulatory
authorities), WorldCom will, at its option, provide intrastate Switched Services
pursuant to applicable state laws, regulations and applicable tariff, if any,
filed by WorldCom with state regulatory authorities as required by applicable
law.
13. AUTHORIZED USE OF WORLDCOM NAME; PRESS RELEASES. Without WorldCom's
prior written consent, Customer shall not (i) refer to itself as an authorized
representative of WorldCom whenever it refers to the Switched Services in
promotional, advertising or other materials, or (ii) use WorldCom's logos, trade
marks, service marks, or any variations thereof in any of its promotional,
advertising, or other materials. Additionally, Customer shall provide to
WorldCom for its prior review and written approval, all promotions, advertising
or other materials or activity using or displaying WorldCom's name or the
Services to be provided by WorldCom. Customer agrees to change or correct, at
Customer's expense, any such material or activity which WorldCom, in its sole
judgment, determines to be inaccurate, misleading or otherwise objectionable.
Customer is explicitly authorized to only use the following statements in its
sales literature or if in response to an inquiry by Customer's end user: (i)
"Customer utilizes the WorldCom network", (ii) "Customer utilizes WorldCom's
facilities", (iii) "WorldCom provides only the network facilities", and (iv)
"WorldCom is our network services provider". Except as specifically provided in
this Section 13, the parties further agree that any press release, advertisement
or publication generated by a party regarding this Agreement, the Services
provided hereunder or in which a party desires to
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mention the name of the other party or the other party's parent or affiliated
company(ies), will be submitted to the non-publishing party for its written
approval prior to publication.
14. NOTICES. Notices under this Agreement shall be in writing and delivered
to the person identified below at the offices of the parties as they appear
below or as otherwise provided for by proper notice hereunder. Customer shall
notify WorldCom in writing if Customer's billing address is different than the
address shown below. The effective date for any notice under this Agreement
shall be the date of actual receipt of such notice by the appropriate party,
notwithstanding the date of mailing or transmittal via hand delivery of
facsimile.
IF TO WORLDCOM: WorldCom Network Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Carrier Sales Dept.
IF TO CUSTOMER:
--------------------------------
--------------------------------
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Attn:
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Telephone No.:
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Fax No.:
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15. NO-WAIVER. No term or provision of this Agreement shall be deemed
waived and no breach or default shall be deemed excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived or
consented. A consent to waiver of or excuse for a breach or default by either
party, whether express or implied, shall not constitute a consent to, waiver of,
or excuse for any different or subsequent breach or default.
16. PARTIAL INVALIDITY; GOVERNMENT ACTION.
(A) Partial Invalidity. If any part of any provision of this Agreement
or any other agreement, document or writing given pursuant to or in
connection with this Agreement shall be invalid or unenforceable under
applicable law, rule or regulation, that part shall be ineffective to
the extent of such invalidity only, without in any way affecting the
remaining parts of that provision or the remaining provisions of this
Agreement. In such event, Customer and WorldCom will negotiate in good
faith with respect to any such invalid or unenforceable part of the
extent necessary to render such part valid and enforceable.
(B) Government Action. Upon thirty (30) days prior notice, either party
shall have the right, without liability to the other, to cancel an
affected portion of the Switched Service if any material rate or term
contained herein and relevant to the affected Switch Service is
substantially changed (to the detriment of the terminating party) or
found to be unlawful or the relationship between the parties hereunder
is
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found to be unlawful by order of the highest court of competent
jurisdiction to which the matter is appealed, the FCC, or other local,
state or federal government authority of competent jurisdiction.
17. EXCLUSIVE REMEDIES. Except as otherwise specifically provided for
herein, the remedies set forth in this Agreement comprise the exclusive remedies
available to either party at law or in equity.
18. USE OF SERVICE. Upon WorldCom's acceptance of a Service Request
hereunder, WorldCom will provide the Switched Services specified therein to
Customer upon condition that such Switched Services should be not used for any
unlawful purpose. The provision of Switched Services will not create a
partnership or joint venture between the parties or result in a joint
communications service offering to any third parties, and WorldCom and Customer
agree that this Agreement, to the extent it is subject to FCC regulation, is an
inter-carrier agreement which is not subject to the filing requirements of
Section 211(a) of the Communications Act of 1934 (47 U.S.C. Section 211(a)) as
implemented in 47 C.F.R. Section 43.51.
19. CHOICE OF LAW; FORUM
(A) Law. This Agreement shall be construed under the laws of the State
of Oklahoma without regard to notice of law principles.
(B) Forum. Any legal action or proceeding with respect to this
Agreement may be brought in the Courts of the State of Oklahoma in and
for the County of Tulsa or the United States of America for the
Northern District of Oklahoma. By execution of this Agreement, both
Customer and WorldCom hereby submit to such jurisdiction, hereby
expressly waiving whatever rights may correspond to either of them by
reason of their present or future domicile. In furtherance of the
foregoing, Customer and WorldCom hereby agree to service by U.S. Mail
at the notice addresses referenced in Section 14. Such service shall be
deemed effective upon the earlier of actual receipt or seven (7) days
following the date of posting.
20. PROPRIETARY INFORMATION.
(A) Confidential Information. The parties understand and agree that the
terms and conditions of this Agreement (but not the existence thereof),
all documents referenced herein (including invoices to Customer for
Switched Services provided hereunder), communications between the
parties regarding this Agreement or the Switched Services to be
provided or actually provided hereunder), as well as such information
relevant to any other agreement between the parties (collectively
"CONFIDENTIAL Information"), are confidential as between Customer and
WorldCom.
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(B) Limited Disclosure. A party shall not disclose Confidential
Information (unless subject to discovery or disclosure pursuant to
legal process), to any other party other than the directors, officers,
and employees of a party or a party's agents including their respective
attorneys, consultants, brokers, lenders, insurance carriers or bona
fide prospective purchasers who have specifically agreed in writing to
nondisclosure of the terms and conditions hereof. Any disclosure hereof
required by legal process shall only be made after providing the
non-disclosing party with notice thereof in order to permit the
non-disclosing party to seek an appropriate protective order or
exemption. Violation by a party or its agents of the foregoing
provisions shall entitle the non-disclosing party, at its option, to
obtain injunctive relief without a showing of irreparable harm or
injury and without bond.
(C) Survival of Confidentiality. The provisions of this Section 20 will
be effective as of the date of this Agreement and remain in full force
and effect for a period which will be the longer of (i) one (1) year
following the date of this Agreement, or (ii) one (1) year from the
termination of all Services hereunder.
21. SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon and
insure to the benefit of the parties hereto and their respective successors or
assigns, provided, however, that Customer shall not assign or transfer its
rights or obligations under this Agreement without the prior written consent of
WorldCom, which consent shall not be unreasonably withheld or delayed, and
further provided that any assignment or transfer without such consent shall be
void.
22. GENERAL.
(A) Survival of Terms. The terms and provision contained in this
Agreement that by their sense of context are intended to survive the
performance thereof by the parties hereto shall so survive the
completion of performance and termination of this Agreement, including,
without limitation, provisions for indemnification and the making of
any and all payments due hereunder.
(B) Headings. Descriptive headings in this Agreement are for the
convenience only and shall not affect the construction of this
Agreement.
(C) Industry Terms. Words having well-known technical or trade meanings
shall be so construed, and all listings of items shall not be taken to
be exclusive, but shall include other items, whether similar or
dissimilar to those listed, as the context reasonably requires.
(D) Rule of Construction. No rule of construction requiring
interpretation against the drafting party hereof apply in the
interpretation of this Agreement.
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23. ENTIRE AGREEMENT. This Agreement consists of (i) all the terms and
conditions contained herein, and (ii) all documents incorporated herein
specifically by reference. This Agreement constitutes the complete and exclusive
statement of the understandings between the parties and supersedes all proposals
and prior agreements (oral or written) between the parties relating to the
Switched Services provided hereunder. No subsequent agreement between the
parties concerning the Switched Services shall be effective or binding unless it
is made in writing and subscribed to by Customer and WorldCom.
24. OTHER AGREEMENTS. Customer acknowledges and agrees that this Agreement
and the Switched Services described herein may not be combined with any other
switched services products or services offered by WorldCom, WorldCom's parent
company or WorldCom's affiliates. Additionally, Customer acknowledges and agrees
that:
(A) Current Services. As of the Effective Date of this Agreement, (i)
all switched telecommunications services ("CURRENT SERVICES") offered
by WorldCom (formerly WilTel, Inc.), WorldCom's parent company,
WorldCom, Inc. (formerly LDDS Communications, Inc.) or any of
WorldCom's affiliates, including without limitation, IDB WorldCom
Services, Inc. (hereinafter referred to as the "WORLDCOM Group"), which
are currently being provided by a member of the WorldCom group,
Customer (which for purposes of this Section 24 will include Customer's
parent company, Customer's subsidiaries and any other entities under
common control with Customer; hereinafter referred to as the "CUSTOMER
GROUP") pursuant to existing service agreements ("EXISTING AGREEMENTS")
will be cancelled and no longer in force or effect except for changes
or credits due for Current Services rendered as of the Effective Date
of this Agreement and provisions intended to survive termination, such
as limitation of liability, indemnification and confidentiality, and
(ii) all Current Services provided a member of the Customer Group by a
member of the WorldCom Group will be provisioned under the terms and
conditions of this TSA. Simultaneous with the execution of this
Agreement, if applicable, Customer shall cause all members of the
Customer Group to agree to the cancellation of such Existing Agreements
and the provision of Current Services under the terms and conditions of
this Agreement and Customer agrees to provide WorldCom with reasonable
documentation evidencing such agreement.
(B) Third Party Agreements. If Customer acquires or merges or combines
with a third party after the Effective Date of this Agreement, and such
third party has existing agreement(s) with a member of the WorldCom
Group (collectively referred to as the "THIRD PARTY AGREEMENTS") for
the provision of switched telecommunications services ("THIRD PARTY
EXISTING SERVICES"), then ninety (90) days following the date of such
acquisition, merger or combination (or such earlier date contained in a
written notice from Customer to WorldCom) (the "TRANSFER DATE"), (i)
the Third Party Agreements will be canceled and no longer in force or
effect except for commitments, if any, contained in such Third Party
Agreements and
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charges and credits due for Services rendered prior to the Transfer
Date, (ii) Third Party Existing Services will be provisioned under this
Agreement, and (iii) the aggregate commitment(s) (e.g., revenue,
volume, minute, etc.) remaining under such Third Party Agreements, if
any, shall be added on a pro rata basis to the commitment(s), if any,
existing under this Agreement. Simultaneous with the closing of such
acquisition, combination or merger, Customer will cause such third
party and all of its affiliates who are parties to such Third Party
Agreements, to agree to the cancellation of such Third Party Agreements
and the provision of Third Party Existing Services under the terms and
conditions of this Agreement and Customer agrees to provide WorldCom
with reasonable documentation evidencing such agreement. In the event
any Third Party Agreement(s) have a provision similar to the provision
contained herein, the parties agree to negotiate in good faith
concerning which agreement (i.e., this Agreement or any Third Party
Agreement) shall survive and which agreement(s) shall be terminated.
Example: Assume (i) Customer's Commitment is $500,000, (ii) there are
twenty-four (24) months remaining in the Service Term of this
Agreement, and (iii) Customer acquires a third party who has an
existing switched telecommunications services agreement with a member
of the WorldCom Group which contains a minimum monthly revenue
commitment of $250,000 and has ten (10) months remaining in the term of
such agreement. Customer's "new" Commitment will be $604,166 for the
remaining twenty-four (24) months in the Service Term {$500,000 +
[($250,000 x 10)/24]}.
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IN WITNESS WHEREOF, the parties have executed this Telecommunications
Services Agreement as of the dates set forth below which Agreement will be
effective as described in the PET attached hereto.
WORLDCOM NETWORK SERVICES, INC. AMERIVISION COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇ ▇. Krummez By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------ ----------------------------------
(Signature) (Signature)
▇▇▇▇ ▇. Krummez ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------- -------------------------------------
(Print Name) (Print Name)
Senior Vice President President
--------------------------------------- -------------------------------------
(Title) (Title)
April 20, 1999 April 19, 1999
--------------------------------------- -------------------------------------
(Date) (Date)
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WORLDCOM NETWORK SERVICES, INC.
SERVICE SCHEDULE FOR AMERIVISION
Capitalized terms not defined in this Service Schedule shall have the
same meaning ascribed to them in the Telecommunications Services Agreement,
TSA#AVI-990301, between AmeriVision Communications, Inc. and WorldCom Network
Services, Inc. Any reference to Customer in this Service Schedule shall be
deemed as a reference to AmeriVision.
1. SWITCHED SERVICES: During the Service Term of the Agreement, WorldCom
will provide the following Switched Services (all as more particularly described
herein), (i) to and from the locations below, and (ii) for the charges and
applicable discounts set forth in the applicable Rate Schedule for Customer:
(a) "TERMINATION SERVICE" which is WorldCom's termination of calls
received from Customer's Service Interconnection(s).
(b) "TOLL FREE ORIGINATION SERVICE" which is the origination of
Toll Free calls by WorldCom and the termination of such calls
to Customer's Service Interconnection(s).
(c) "SWITCHED ACCESS SERVICE" which is the origination (via
individual telephone access lines) and termination of calls
solely over facilities comprising the WorldCom network.
(d) "DEDICATED ACCESS SERVICE" which is the origination and
termination of calls solely over facilities comprising the
WorldCom network which origination or termination is via
dedicated access lines.
(e) "TRAVEL CARD SERVICE" which is the origination (via Travel
Card Toll Free number access) and termination of calls solely
over facilities comprising the WorldCom network.
2. SERVICE INTERCONNECTIONS:
(a) In order to utilize (i) TERMINATION Service and TOLL FREE
ORIGINATION Service, one or more full time dedicated connections
between Customer's network and the WorldCom network at one or more
WorldCom designated locations ("WORLDCOM POP") must be established
("CARRIER SERVICE INTERCONNECTIONS"), and (ii) DEDICATED ACCESS
Service, one or more full time dedicated connections between an End
User's private branch exchange ("PBX") or other customer premise
equipment and the WorldCom network at one or more WorldCom POP(s) must
be established ("DEDICATED SERVICE INTERCONNECTIONS"). Each Carrier
Service Interconnection and Dedicated Service Interconnection shall be
comprised of one or more dedicated access circuits, as the case may be.
Carrier Service
Page 1 of 9
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18
Interconnections and Dedicated Service Interconnections are
collectively referred to as "SERVICE INTERCONNECTIONS".
(b) The circuit(s) comprising each Service Interconnection to a
WorldCom POP shall be requested by Customer on the appropriate WorldCom
Service Request. Each Service Request will describe (among other
things) the WorldCom POP to which a Service Interconnection is to be
established, the Requested Service Date therefor, the type and quantity
of circuits comprising the Service Interconnection and any charges and
other information relevant thereto, such as, Customer's terminating or
originating switch location, as the case may be. Such additional
information may be obtained from Customer or gathered by WorldCom and
recorded in Technical Information Sheets provided by WorldCom.
(c) Once ordered, and unless otherwise provided for in this TSA,
Service Interconnections or the circuits comprising each Service
Interconnection may only be canceled by Customer upon not less than
thirty (30) days prior written notice to WorldCom.
(d) With respect to a Carrier Service Interconnection, absent the
automatic number identification ("ANI") of the calling party, Customer
shall provide WorldCom with a written certification (the
"CERTIFICATION") of the percentage of interstate (including
international) and intrastate minutes of use relevant to the minutes of
traffic to be terminated in the same state in which the WorldCom POP is
located to which the Carrier Service Interconnection is made. This
Certification shall be provided by Customer prior to Start of Service
for any Carrier Service Interconnection and may be modified from time
to time by Customer and subject to recertification upon the request of
WorldCom which requests shall not be made unilaterally by WorldCom more
than once each calendar quarter. Any such modification(s) or
Certification(s) shall be effective as of the first day of any calendar
month and following at least forty-five (45) days notice from Customer.
In the event Customer fails to make such Certification, the relevant
minutes of use will be deemed to be subject to the Intrastate Rates
described in the applicable Rate and Discount Schedule. In the event
WorldCom or any other third party requires an audit of WorldCom's
interstate/intrastate minutes of traffic, Customer agrees to cooperate
in such audit at its expense and make its call detail records, billing
systems and other necessary information reasonably available to
WorldCom or any third party solely for the purpose of verifying
Customer's interstate/intrastate minutes of traffic. Customer agrees to
indemnify WorldCom for any liability WorldCom incurs in the event
Customer's Certification is different than that determined by the
audit.
(e) With respect to Carrier Service Interconnections, Customer shall be
solely responsible for establishing and maintaining each Carrier
Service Interconnection over facilities subject to WorldCom's approval.
With respect to Dedicated Service Interconnections, WorldCom will
provision and maintain local access facilities between the End User
location (i.e., PBX) and the WorldCom POP, subject to any LEC charges
plus other applicable terms and charges set forth in WorldCom's F.C.C.
Tariff No. 5, however,
CONFIDENTIAL - EXECUTION COPY
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19
Customer may elect to be responsible for establishing each Dedicated
Service Interconnection over facilities subject to WorldCom's approval.
Service Interconnections shall only be comprised of DS-1 facilities
unless otherwise provided for in the Service Request and agreed to in
writing by WorldCom. If a Service Interconnection is proposed to be
made via a local exchange carrier, WorldCom will have the authority to
direct Customer to utilize WorldCom's entrance facilities or local
serving arrangement ("LSA") with the relevant local telephone operating
company, and Customer will be subject to a non-discriminatory charge
therefor from WorldCom. The monthly recurring charge relevant to
Customer's use of LSA capacity shall be subject to upward adjustment by
WorldCom from time to time which adjustment, if any, shall not exceed
the rate that otherwise would be charged for the equivalent switched
access capacity between the same points by the relevant local telephone
operating company pursuant to its published charges for the type of
service in question.
(f) If other private line interexchange facilities are necessary to
establish a Service Interconnection, and such facilities are requested
from WorldCom, such facilities will be provided on an individual case
basis.
(g) Commencing with the second full calendar month following Start of
Service for each circuit comprising a Service Interconnection (i.e.,
both Carrier Service Interconnections and Dedicated Service
Interconnections) and thereafter, Customer will maintain Switched
Services measured usage charges per DS-1 (or DS-1 equivalent circuit)
of not less than an average of --**-- per calendar month/billing period
("MINIMUM MONTHLY USAGE"). In the event Customer fails to obtain the
required Minimum Monthly Usage for the circuits comprising each Service
Interconnection, WorldCom will charge and Customer will pay the
difference between the number of DS-1s times the Minimum Monthly Usage
(i.e., --**--) and Customer's total Switched Services measured usage
charges for the circuit(s) comprising the Service Interconnection in
question ("MINIMUM USAGE CHARGE"). WorldCom TERMINATION Service and
TOLL FREE ORIGINATION Service minutes carried over the same Service
Interconnection, if any, shall be included in determining if Customer
has met the Minimum Monthly Usage requirement.
Example: Assume Customer's actual Switched Services measured
usage charges for 2 DS-1s comprising a Carrier Service
Interconnection at WorldCom POP A is $3,500, Customer's actual
Switched Services measured usage charges for 2 DS-1s
comprising a Carrier Service Interconnection at WorldCom POP B
is $4,500, and Customer's End User's actual Switched Services
measured usage charges for 1 DS-1 comprising a Dedicated
Service Interconnection at WorldCom POP C is $600. Customer
would not be subject to a Minimum Usage Charge since
Customer's actual Minimum Monthly Usage is $8,600 which
exceeds Customer's Minimum Monthly Usage of --**--.
--------------------
--**-- This symbol signifies information from the agreement that has
been omitted because the Company has requested confidential treatment. The
information has been filed separately with the Securities and Exchange
Commission.
CONFIDENTIAL - EXECUTION COPY
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20
(h) DS-1 circuits comprising all Service Interconnections will be
subject to a nonrecurring --**-- per DS-1 switch port installation
charge, and DS-3 circuits comprising all Service Interconnections will
be subject to a nonrecurring per DS-3 switch port installation charge
as determined on an individual case basis.
3. FORECASTS: Before Customer's initial order for Switched Services, Customer
shall provide WorldCom with a forecast regarding the number of minutes expected
to be terminated or originated in various LATAs and/or Tandems, so as to enable
WorldCom to configure optimum network arrangements. IN THE EVENT CUSTOMER'S
SWITCHED SERVICE TRAFFIC VOLUMES RESULT IN A LOWER THAN INDUSTRY STANDARD
COMPLETION RATE OR OTHERWISE ADVERSELY AFFECT THE WORLDCOM NETWORK, WORLDCOM
RESERVES THE RIGHT TO BLOCK THE SOURCE OF SUCH ADVERSE TRAFFIC AT ANY TIME.
Customer will provide WorldCom with additional forecasts from time to time upon
WorldCom's request which shall not be more frequent than once every three (3)
months.
4. START OF SERVICE: Start of Service for the various Switched Services
will occur as described below:
-------------------------------------------- --------------------------------------------------------------
SERVICE START OF SERVICE
-------------------------------------------- --------------------------------------------------------------
TERMINATION Service Concurrently with the activation of each circuit comprising
Carrier Service Interconnections relevant to TERMINATION
Service
-------------------------------------------- --------------------------------------------------------------
TOLL FREE ORIGINATION Service
Concurrently with the
activation of each circuit
comprising Carrier Service
Interconnections relevant
to TOLL FREE ORIGINATION
Service
-------------------------------------------- --------------------------------------------------------------
SWITCHED ACCESS Service ANI by ANI
basis concurrently with
the activation of each ANI
to be served, and a TOLL
FREE Number by TOLL FREE
Number basis concurrently
with activation of each
TOLL FREE Number
-------------------------------------------- --------------------------------------------------------------
DEDICATED ACCESS Service Concurrently with the activation of each circuit comprising
Dedicated Service Interconnections
-------------------------------------------- --------------------------------------------------------------
TRAVEL CARD Service Code by Code
basis concurrently with
the activation of each
Code.
-------------------------------------------- --------------------------------------------------------------
5. LIMITATION OF ORIGINATION OR TERMINATION LOCATIONS:
----------------------------------- ------------------------------------- ---------------------------------
SWITCHED SERVICE ORIGINATION FROM TERMINATION TO
----------------------------------- ------------------------------------- ---------------------------------
TERMINATION Service Any WorldCom POP Any direct dialable location
worldwide
----------------------------------- ------------------------------------- ---------------------------------
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21
----------------------------------- ------------------------------------- ---------------------------------
SWITCHED SERVICE ORIGINATION FROM TERMINATION TO
----------------------------------- ------------------------------------- ---------------------------------
TOLL FREE ORIGINATION Service Locations in the 48 contiguous Any Customer designated Carrier
United States, Hawaii, Alaska, the Service Interconnection
US Virgin Islands, Puerto Rico and
Canada
----------------------------------- ------------------------------------- ---------------------------------
SWITCHED ACCESS (1+) Service All equal
access exchanges in the Any direct
dialable location 48 contiguous
United States (except worldwide in
LATA ▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇)
and Hawaii
----------------------------------- ------------------------------------- ---------------------------------
SWITCHED ACCESS (Toll Free) Locations in the 48 contiguous Locations in the 48 contiguous
Service United States, Hawaii, Alaska, the United States and Hawaii
US Virgin Islands, Puerto Rico
----------------------------------- ------------------------------------- ---------------------------------
DEDICATED ACCESS (1+) Service Locations in the 48 contiguous Any direct dialable location
United States worldwide
----------------------------------- ------------------------------------- ---------------------------------
DEDICATED ACCESS (Toll Free) Locations in the 48 contiguous Any Customer designated
Service United States, Hawaii, Alaska, the Dedicated Service
US Virgin Islands, Puerto Rico Interconnection
----------------------------------- ------------------------------------- ---------------------------------
BASIC TRAVEL CARD Service Locations in the 48 contiguous Locations in the 48 contiguous
United States United States, Hawaii, Alaska,
the US Virgin Islands, Puerto
Rico and Canada
----------------------------------- ------------------------------------- ---------------------------------
BASIC TRAVEL CARD Service Locations in Hawaii, Alaska, the US Locations in the 48 contiguous
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
----------------------------------- ------------------------------------- ---------------------------------
BASIC TRAVEL CARD Service Select International locations Locations in the 48 contiguous
United States
----------------------------------- ------------------------------------- ---------------------------------
TRAVEL CARD Service - Enhanced SEE Schedule 6 to the applicable SEE Schedule 6 to the
Features Rate and Discount Schedule applicable Rate and Discount
Schedule
----------------------------------- ------------------------------------- ---------------------------------
6. BILLING INCREMENTS:
(A) Switched Service - (i) all calls (excluding California IntraLATA
and California intrastate calls and calls to International Locations,
Canada and Mexico) will be billed in six (6) second increments and
subject to a six (6) second minimum charge, (ii) California IntraLATA
and California intrastate calls will be billed in six (6) second
increments and subject to an eighteen (18) second minimum, and (iii)
calls to International Locations, Canada and Mexico will be billed in
six (6) second increments and subject to a thirty (30) second minimum
charge.
(B) All calls will be billed (i) utilizing Hardware Answer Supervision
where available, and with respect to TOLL FREE Services, commencing
with Customer's switch wink or answer back. If Customer is found to be
non-compliant in passing back appropriate answer supervision, i.e.,
answer back, WorldCom reserves the right to suspend TOLL FREE Service
or deny requests by Customer for additional Service until appropriate
compliance is established.
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7. CDR MEDIA: WorldCom will provide Call Detail Records (CDRs) for
WorldCom's Switched Services in machine readable form in one of several magnetic
tape formats (selected by Customer on Customer's Service Request) ("CDR MEDIA").
CDR Media provided under this Section (i) monthly is provided at no charge, (ii)
weekly is subject to a recurring monthly charge of --**--, and (iii) daily is
subject to the applicable non-recurring Installation Charge as described below
(plus all leased-line and equipment costs necessary to implement Daily CDR Media
which will be determined on an individual case basis depending on Customer's
specific configuration).
---------------------------------------------- -------------------------- --------------------------
TYPE TOTAL CONTRACT NON-RECURRING
VALUE INSTALLATION CHARGE
---------------------------------------------- -------------------------- --------------------------
Daily CDR Media-Customer provided hardware --**-- --**--
and software
---------------------------------------------- -------------------------- --------------------------
Daily CDR Media-PC Solution --**-- --**--
---------------------------------------------- -------------------------- --------------------------
Sub-Daily CDR Media-Customer provided --**-- --**--
hardware and software
---------------------------------------------- -------------------------- --------------------------
Sub-Daily CDR Media-PC Solution --**-- --**--
---------------------------------------------- -------------------------- --------------------------
8. TOLL FREE NUMBERS:
(a) TOLL FREE numbers will be issued to Customer (i.e., issuance
equates to activation or reservation, whichever occurs first) on a
random basis. Customer requests for specific numbers will be considered
by WorldCom, and if provided, will be subject to additional charges as
set forth below and WorldCom's then current reservation policy which
shall also apply to any randomly selected and reserved TOLL FREE
number. At any time preceding three (3) months from the scheduled
expiration of the Service Term, Customer may only reserve TOLL FREE
numbers in an amount equal to the greater of (i) 50, or (II) --**-- of
the total number to TOLL FREE numbers activated by WorldCom for
Customer. Customer requests for TOLL FREE numbers inconsistent with the
above stated conditions may be considered by WorldCom on an individual
case basis. TOLL FREE numbers reserved for Customer will be activated
upon Customer's request.
(b) Customer Request for Specific Numbers - --**-- per individual TOLL
FREE number.
(c) Customer specifically agrees that regardless of the method in which
a TOLL FREE number is reserved for or otherwise assigned to Customer,
that Customer will not seek any remedy from WorldCom under a theory of
detrimental reliance or otherwise that such TOLL FREE number(s) are
found not to be available for Customer's use until such TOLL FREE
number is put in service for the benefit of Customer, and that such
TOLL FREE number(s) shall not be sold, bartered, brokered or otherwise
released by Customer for a fee ("TOLL FREE NUMBER TRAFFICKING"). Any
attempt by Customer to engage in TOLL FREE
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Number Trafficking shall be grounds for reclamation by WorldCom for
reassignment of the TOLL FREE number(s) reserved for or assigned to
Customer.
9 ENHANCED TOLL FREE SERVICES: The following TOLL FREE identification services
and routing options (collectively, "ENHANCED TOLL FREE SERVICES") are available
from WorldCom:
IDENTIFICATION SERVICES:
i. Dialed Number Identification Service - identification of
specific TOLL FREE number dialed.
ii. Real-Time ANI - receipt of telephone number of calling party.
TOLL FREE ROUTING OPTIONS:
i. Message Referral - recording (up to six (6) months) that
informs callers that the TOLL FREE number has been
disconnected or refers callers to new number.
ii. Call Area Selection - selection or blockage of locations from
which TOLL FREE numbers can be received (i.e., State, NPA,
LATA or NXX level).
iii. Call Distributor Routing - distribution of TOLL FREE traffic
evenly over dedicated access lines in a trunk group (e.g.,
ascending, descending, most idle, least idle).
iv. Route Completion (Overflow) - overflow of TOLL FREE dedicated
access traffic only to up to five (5) pre-defined alternate
routing groups (e.g., dedicated access, WATs access lines or
switched access lines).
v. Geographic Routing - termination of calls to a single TOLL
FREE number from two or more originating routing groups to
different locations.
vi. Time-of-Day Routing - routing of calls to single TOLL FREE
number based on time of day (up to forty-eight (48) time slots
of 15-minute increments in a 24-hour period).
vii. Day-of-Week Routing - routing of calls to singe TOLL FREE
number based on each day of the week.
viii. Day-of-Year Routing - routing of calls to single TOLL FREE
number based on up to fifteen (15) customer-specified
holidays.
ix. Percent Allocation Routing - routing of calls for each
originating routing group to two (2) or more terminating
locations based on customer-specified percentage.
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Customer will receive the Identification Services described above at no
charge. The minutes of use rates for TOLL FREE Routing Options
described above (in addition to the TOLL FREE Routing Option Feature
Charges described below) will be the same rates for SWITCHED ACCESS
Service (TOLL FREE) and DEDICATED ACCESS Service (TOLL FREE), whichever
is applicable, as described in the applicable Rate and Discount
Schedule excluding Route Completion (Overflow). If Customer selects
Route Completion (Overflow) and Customer's traffic overflows from
DEDICATED ACCESS Service (TOLL FREE) to SWITCHED ACCESS Service (TOLL
FREE), Customer's minute of use rate will be the rate associated with
SWITCHED ACCESS Service (TOLL FREE). The TOLL FREE Routing Option
Feature Charges are as follows:
Installation Charge: --**-- per feature; maximum of --**-- per TOLL
FREE number.
Change Order Charge: --**-- per feature; maximum of --**-- per TOLL
FREE number.
Monthly Recurring Charge: --**-- per feature; maximum of --**-- per
TOLL FREE number.
Expedite Charge: --**-- (i.e., outside normal interval time of four (4)
business days).
Note: More than ten (10) points of termination for a single feature
will be treated as two (2) features. Further, every additional ten (10)
points of termination will be treated as a separate feature.
10. RESPORG SERVICES: Responsible Organization Services (relevant to TOLL
FREE Numbers) if provided by WorldCom will be provided by WorldCom pursuant to
WorldCom's F.C.C. Tariff No. 5.
11. AUTHORIZATION CODES FOR TRAVEL CARD SERVICE: WorldCom will supply
Customer with authorization codes ("CODES") containing nine (9) or fourteen (14)
digits for use with a corresponding TOLL FREE Service number for origination and
termination of TRAVEL CARD Service calls. The Codes may be obtained by Customer
in blocks of ten (10) not to exceed a total of 1000 Codes at any one time.
WorldCom reserves the right to deny access to any Code at any time.
12. INBOUND PORTION OF TRAVEL CARD SERVICE CALL: The inbound service
portion of a TRAVEL CARD Service call (i.e., the TOLL FREE Service) must be
provided by WorldCom.
13. ACCOUNTING CODES: For every billed telephone number (BTN) requested by
Customer, whether verified or non-verified, Customer shall pay a monthly
recurring charge of --**--.
14. PAY PHONE SURCHARGE: In the event WorldCom is required to compensate
payphone service providers (PSPs) for toll-free or access code calls which
originate from payphones (including without limitation, any Order adopted by the
FCC) ("PAYPHONE SURCHARGE"), WorldCom will charge and Customer agrees to pay
WorldCom the amount of the Payphone Surcharge which is required to be paid by
WorldCom.
Page 8 of 9
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15. RBOC TERMINATION/ORIGINATION: With respect to Classic Switched
Services, following Start of Service for TERMINATION SERVICE, TOLL FREE
ORIGINATION Service and/or DEDICATED ACCESS Service, Customer will maintain at
least 80% of the minutes of traffic (during any calendar month or pro rata
portion thereof) with respect to each of the above-mentioned Services for
termination or origination in a Tandem owned and operated by a Regional ▇▇▇▇
Operating Company ("RBOC TERMINATIONS/ORIGINATIONS") and subject to such RBOC's
tariffed access charges. WorldCom shall have the right to apply a $0.020 per
minute surcharge to the number of minutes by which Non-RBOC
Terminations/Originations exceed 20% of total monthly minutes for each of the
following Services: TERMINATION Service, TOLL FREE ORIGINATION Service and
DEDICATED ACCESS Service.
16. PRESUBSCRIBED INTEREXCHANGE CARRIER CHARGE (PICC): With respect to
Switched Services to be provided under the Agreement, WorldCom will charge
Customer for any LEC-assessed presubscribed interexchange carrier charge ("PICC
CHARGE") which PICC Charge will be reasonably determined by WorldCom as of a
date certain each month (the "PICC CHARGE DETERMINATION DATE") but only if
WorldCom is directly billed by the LEC for such PICC Charge. Customer's PICC
Charge will be determined as of the PICC Charge Determination Date and will be
based on the same criteria for which WorldCom is assessed such charge by the LEC
(e.g., number and type of Customer's End Users (i.e., residential or business)
as well as the type of line associated with each such End User (i.e., single
line, secondary line or multi-line). This Section 16 will be deemed to include
any other similar additional charges assessed by a LEC after the date of this
Agreement (i.e., charges for which WorldCom is not currently being assessed).
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