Birch Telecom Inc. Contracts
Sample Business Contracts
Resale Agreement - Southwestern Bell Telephone Co. and Valu-Line of Kansas
RESALE AGREEMENT (MO, KS & AR)
PAGE 1 OF 2
SWBT/LSP
F307
RESALE AGREEMENT BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND VALU-LINE OF KANSAS
TABLE OF CONTENTS
I. DESCRIPTION AND CHARGES FOR SERVICES ........................... 1
II. TERMS AND CONDITIONS FOR RESALE OF SERVICES .................... 1
A. Permitted Use of Resold Services by LSP and
Its End Users ............................................ 2
B. Use of SWBT Trademarks ................................... 3
C. Network and Service Order Conditions ..................... 3
III. ADDITIONAL SERVICES ............................................ 4
A. 911/E911 ................................................. 4
B. Dialing Parity ........................................... 5
C. White Pane Directories: Listings, Distribution
and Information Page ..................................... 5
D. Directory Assistance (DA) ................................ 6
E. Operator Services (OS) ................................... 7
IV. RESPONSIBILITIES OF SWBT ....................................... 7
V. ADDITIONAL RESPONSIBILITIES OF THE PARTIES ..................... 8
VI. CHANGES IN SUBSCRIBER CARRIER SELECTIONS ....................... 9
VII. ADDITIONAL RESPONSIBILITIES OF LSP ............................. 10
A. Payment of Rates and Charges ............................. 10
B. Interfaces with SWBT ..................................... 11
C. Repair Contact Arrangements .............................. 11
D. LSP Operating Company Number (OCN) ....................... 11
E. Special Service Arrangements ............................. 11
F. DA/OS Branding ........................................... 11
VIII. NONEXCLUSIVITY ................................................. 12
IX. SUPPORT SYSTEMS SERVICES ....................................... 12
A. Support Systems Services ................................. 12
B. Network Management Controls .............................. 14
C. Law Enforcement and Civil Process ........................ 14
D. Usage Data ............................................... 15
X. CALL TRACE ..................................................... 15
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RESALE AGREEMENT (MO, KS & AR)
PAGE 2 OF 2
SWBT/LSP
F307
XI. TAXES .......................................................... 15
XII. TERMINATION OF SERVICE TO LSP .................................. 15
XIII. FORCE MAJEURE .................................................. 17
XIV. LIMITATION OF LIABILITY ........................................ 17
XV. NONDISCLOSURE .................................................. 18
XVI. PUBLICITY ...................................................... 19
XVII. ASSIGNMENT ..................................................... 19
XVIII. DISPUTE RESOLUTION ............................................. 19
A. Finality of Disputes ..................................... 19
B. Alternative to Litigation ................................ 20
XIX. VERIFICATION REVIEWS ........................................... 21
XIX. COMPLIANCE WITH LAWS ........................................... 22
XXI. CERTIFICATION REQUIREMENTS ..................................... 23
XXII. EFFECT OF OTHER AGREEMENTS ..................................... 24
XXIII. NOTIFICATION ................................................... 24
XXIV. NOTICES ........................................................ 24
XXV. BENEFICIARIES .................................................. 24
XXVI. TERM ........................................................... 25
XXVII. EFFECTIVE DATE ................................................. 25
XXVIII. WAIVER ......................................................... 25
XXIX. DISCLAIMER OF WARRANTIES ....................................... 25
XXIX. RELATIONSHIP OF THE PARTIES .................................... 25
XXXI. COMPLETE TERMS ................................................. 26
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RESALE AGREEMENT (MO, KS & AR)
PAGE 1 OF 27
SWBT/LSP
F313
RESALE AGREEMENT BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND VALU-LINE OF KANSAS, INC.
This Agreement is between Southwestern Bell Telephone Company ("SWBT"), a
Missouri corporation, and Valu-Line of Kansas, Inc. ("LSP") (collectively, "the
Parties") entered into this ________ day of ________, 1997.
WHEREAS, pursuant to the Telecommunications Act of 1996 (the "Act"), the
Parties wish to establish terms for the purchase by LSP of certain SWBT retail
telecommunications services and certain other services for resale by LSP to its
local exchange end users in the State of Kansas. Therefore, the Parties hereby
agree as follows:
I. DESCRIPTION AND CHARGES FOR SERVICES
The services available to LSP for resale and the discounts for such
services are identified in Attachments A and B. Furthermore, to the extent
that a federal or state regulatory agency adopts a final order
establishing wholesale discounts under 252(d)(3) of the Telecommunications
Act, which is not stayed and which directs SWBT to apply state-specific
wholesale discount percentages which are different from those incorporated
within this Agreement, either Party shall have the option of converting to
that discount level upon ten (10) days' written notice to the other Party.
LSP may offer to resell Customer Initiated Suspension and Restoral Service
to their end users as outlined in the corresponding retail tariff. SWBT
will offer to LSP Company Initiated Suspension Service for their own
purposes at the SWBT retail tariffed rate. Should LSP choose to suspend
their end user through Company Initiated Suspension Service, this
suspension period shall not exceed fifteen (15) calendar days. If LSP
issues a disconnect on their end user account within the fifteen (15) day
period, appropriate services will not be billed for the suspension period.
However, should LSP issue a disconnect after the fifteen (15) day
suspension period, LSP will be responsible for all appropriate charges on
the account back to the suspension date. Should LSP restore their end
user, restoral charges at the SWBT retail tariffed rate will apply and LSP
will be billed for the appropriate service from the time of suspension.
II. TERMS AND CONDITIONS FOR RESALE OF SERVICES
The following terms and conditions are applicable to all services
purchased under this Agreement.
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RESALE AGREEMENT (MO, KS & AR)
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SWBT/LSP
F313
A. Permitted Use of Resold Services by LSP and Its End Users
1. For services included in this Agreement, which are offered
through tariffs by SWBT to its end users, the rules and
regulations associated with the applicable State General
Exchange Tariff; Local Exchange Service Tariff, and the other
tariffs for the resold service (such tariffs collectively
referred to herein as "corresponding tariffs"), apply except
as otherwise provided herein.
2. LSP shall only sell Plexar(R) services to a single end user.
3. Except where otherwise explicitly provided in the
corresponding tariffs, LSP shall not permit the sharing of a
service or services by multiple end users or the aggregation
of traffic from multiple end users onto a single service.
4. LSP shall only resell services purchased under this Agreement
to the same class of end users to whom SWBT sells such
services (e.g. residence service shall not be resold to
business end users). LSP may only resell Lifeline Assistance,
Link-Up, and other like services to similarly situated
customers who are eligible for such services. Further, to the
extent LSP resells services that require certification on the
part of the buyer, LSP will ensure that the buyer has received
proper certification and complies with all rules and
regulations as established by the Commission.
5. SWBT promotions of ninety (90) days or less shall not be
available to LSP for resale.
6. LSP shall not use a resold service to avoid the rates, terms
and conditions of SWBT's corresponding tariffs.
7. LSP shall not use resold local exchange telephone service to
provide access or interconnection services to itself,
interexchange carriers (IXCs), wireless carriers, competitive
access providers (CAPs), or other telecommunications
providers. Provided however, that LSP may permit its end users
to use resold local exchange telephone service to access IXCs,
wireless carriers, CAPs, or other retail telecommunications
providers.
8. If LSP is in violation of a provision of this Agreement, SWBT
shall notify LSP of the violation in writing of the specific
provision being violated. At such time LSP shall have (30)
days to correct
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RESALE AGREEMENT (MO, KS & AR)
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SWBT/LSP
F313
the violation and notify SWBT in writing that the violation
has been corrected. SWBT shall then bill LSP for the charges
which should have been collected by SWBT or the actual
revenues collected by LSP from its end users for the stated
violation, whichever is greater. If LSP disputes the
violation, it shall notify SWBT in writing within fourteen
(14) days of receipt of notice from SWBT. Disputes shall be
resolved as outlined in the Dispute Resolution section of the
Agreement.
9. An End User Common Line (EUCL) charge will continue to apply
for each local exchange line resold under this Agreement. All
federal rules and regulations associated with EUCL charges, as
found in Tariff FCC 73, also apply.
10. To the extent allowable by law, LSP shall be responsible for
Primary Interexchange Carrier (PIC) change charges associated
with such local exchange line. LSP shall pay for PIC changes
at the tariffed rate.
11. SWBT is not required to make services available for resale at
wholesale rates to LSP for its own use. SWBT, however, shall
at its option agree to allow LSP to purchase SWBT's
Telecommunications Services and other services available for
resale as outlined in the exhibits to this Agreement, as long
as said services are not resold exclusively or predominately
to LSP, its subsidiaries, or affiliates.
B. Use of SWBT Trademarks
Except where otherwise required by law, LSP shall not, without
SWBT's written authorization, offer the services covered by this
Agreement using the trademarks, service marks, trade names, brand
names, logos, insignia, symbols or decorative designs of SWBT or its
affiliates. Nor shall LSP state or imply that there is any joint
business association or similar arrangement with SWBT in the
provision of telecommunications services to LSP's own end users. LSP
may brand services included in this Agreement with its own brand
name, but SWBT shall not be responsible for providing such branding.
C. Network and Service Order Conditions
1. SWBT shall provide the services covered by this Agreement
subject to availability of existing facilities and on a
nondiscriminatory basis with its other customers. LSP shall
resell the services provided
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RESALE AGREEMENT (MO, KS & AR)
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SWBT/LSP
F313
herein only in those service areas in which such resale
services or any feature or capability thereof are offered at
retail by SWBT as the incumbent local exchange carrier to its
end users.
2. When LSP converts an end user currently receiving noncomplex
service from the SWBT network, without any changes to SWBT's
network, LSP will be charged a per order (i.e., per billable
telephone number) conversion charge of twenty-five dollars
($25.00) in Kansas. Conversion orders processed and completed
electronically will be charged five dollars ($5.00) per order
on an interim basis. Complex orders will be charged at a rate
of one hundred twenty-five dollars ($125.00). Custom Services
conversions (e.g. Plexar Custom) will be handled on a Customer
Specific Proposal basis.
When LSP converts an end user and adds or changes are made to
the network, the respective conversion charge will apply, as
well as any normal service order charges associated with said
changes. All nonrecurring service connection charges,
excluding the conversion charge mentioned above, will be
charged at a discount for those services listed in Exhibits A
and B.
3. For the purposes of ordering new service under this Agreement,
each request for service shall be handled as a separate and
initial request for service per billable telephone number. The
additional line rate for Service Order Charges shall apply
only to those requests for additional residential service at
the end user's same location where a residential line is
currently provided on SWBT's network, regardless of the
nonfacilities based local service provider of record.
4. For purposes of this section, service orders for LSPs shall be
handled in the same fashion as SWBT requires for its end
users.
III. ADDITIONAL SERVICES
A. 911/E911
1. Access to the 911 or E911 service, available to SWBT end users
in the area(s) served by LSP, shall be made available to LSP's
end users.
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RESALE AGREEMENT (MO, KS & AR)
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SWBT/LSP
F313
2. LSP shall be responsible for collecting and remitting all
applicable 911 surcharges on a per line basis to the Public
Safety Answering Point (PSAP).
3. When requested by SWBT, LSP shall timely provide accurate and
complete information on each of LSP's end users as needed for
the provisioning of 911 service to LSPs end users. Such
information shall be in a format determined by SWBT.
B. Dialing Parity
1. Local Dialing Parity
SWBT agrees that local dialing parity shall be available to
LSP. That is, end users of SWBT and end users of LSP shall
have the same exchange boundaries, such end users shall be
able to dial the same number of digits when making a "local"
call.
2. IntraLATA Toll Dialing Parity.
SWBT agrees to make intraLATA toll dialing parity available in
accordance with Section 251(b)(3) of the Telecommunications
Act of 1996.
C. White Page Directories: Listings, Distribution and Information Page
1. At LSP's request, SWBT shall provide nondiscriminatory access
to White Pages directory listing and distribution services
under the terms and conditions described herein:
a) SWBT shall provide, at no additional charge, a straight
line listing in the appropriate SWBT white pages for
each of LSP's local exchange service end users.
Subscriber listing information shall, however, remain
the property of SWBT.
b) Additional Listing Services (e.g., foreign and signature
listings) can be purchased by LSP for its end users on a
per listing basis. LSP shall pay SWBT for all such
listings provided to LSP's end users. The discounts
applicable to Listing Services are contained in Exhibits
A and B to this Agreement.
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RESALE AGREEMENT (MO, KS & AR)
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SWBT/LSP
F313
c) LSP end users shall be entitled to one directory per
basic residential or business line provided by SWBT
pursuant to this Agreement.
d) SWBT, or its agents shall deliver a White Pages
Directory to LSP end user's premises at the same time
that such directories are delivered to SWBT end users.
If an LSP's end user already has a current SWBT
directory, SWBT shall not be required to deliver a new
directory to that end user until the new directories are
published for that end user's location.
e) LSP hereby releases SWBT from any and all liability for
damages due to errors or omissions in LSP's subscriber
listing information as it appears in the White Pages
directory, including, but not limited to, special,
indirect, consequential, punitive or incidental damages.
To the extent LSP reimburses its end user subscriber any
listing charge due to errors or omissions caused
directly by SWBT, SWBT shall reimburse LSP any
associated wholesale rate.
f) LSP shall indemnify, protect, save harmless and defend
SWBT (or SWBT's officers, employees, agents, assigns,
and representatives) from and against any and all
losses, liability, damages and expense arising out of
any demand, claim, suit, or judgment by a third party in
any way related to any error or omission in LSP's
subscriber listing information as it appears in the
White Pages directory, including any error or omission
related to nonpublished or nonlisted subscriber listing
information; provided, however, LSP shall not be
required to indemnify SWBT for gross negligence or
willful misconduct. LSP shall so indemnify regardless of
whether the demand, claim, or suit by the third party is
brought jointly against LSP and SWBT, and/or against
SWBT alone.
2. Information Page
a) At LSP's request, SWBT shall include in the
"Informational Page" section of SWBT's White Pages
directory, for those geographical areas in which LSP
provides local exchange services, LSP's customer contact
information regarding emergency services, billing and
service information, repair services and other pertinent
information similar to that
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RESALE AGREEMENT (MO, KS & AR)
PAGE 7 OF 27
SWBT/LSP
F313
provided by SWBT in its "Informational Pages." Such
information shall be included on the same page with
other LSP information.
b) At LSP's option, LSP shall be provided a single
"Informational Page" (one side of one page) in the
informational section of the White Pages directory
covering a geographic area where an LSP provides local
exchange service. This page shall be no different in
style, size, color and format than SWBT Informational
Pages." Sixty (60) days prior to the directory close
date, LSP shall provide to SWBT the "Informational Page"
in the form of camera-ready copy. The charges associated
with this service vary from geographic market to market,
and are charged outside this Agreement.
D. Directory Assistance (DA)
SWBT shall provide access to DA to LSP's end users. LSP shall pay
the charges associated with the use of such services by LSP's end
users. The discounts applicable to such services are contained in
Exhibits A and B, which is attached hereto and made a part hereof.
E. Operator Services (OS)
1. SWBT shall provide access to Operator Services to LSP's end
users. LSP shall pay the charges associated with the use of
such services by LSP's end users. The discounts applicable to
such services are contained in Exhibits A and B, which is
attached hereto and incorporated by reference.
2. SWBT shall provide Line Status Verification and Busy Line
Interrupt on calls made on SWBT's network to LSP end users.
LSP shall pay SWBT associated charges when its end users
request such services, with discounts to apply as listed in
Exhibits A and B.
IV. RESPONSIBILITIES OF SWBT
A. SWBT shall allow LSP to place service orders and receive phone
number assignments (for new lines). These activities shall be
accomplished by telephone call or facsimile until electronic
interface capability has been established. SWBT, with input from
LSP, shall provide interface specifications for electronic access
for these functions to LSP once such electronic interfaces become
technically feasible and are in place.
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RESALE AGREEMENT (MO, KS & AR)
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SWBT/LSP
F313
However, LSP shall be responsible for modifying and connecting any
of its systems with SWBT provided interfaces when such interfaces
become available, as outlined in Appendix OSS.
B. SWBT shall implement LSP service orders within the same time
intervals SWBT uses to implement service orders for similar services
for its own end users.
C. LSP will have the ability to report trouble for its end users to
appropriate SWBT trouble reporting centers 24 hours a day, 7 days a
week. LSP will be assigned a customer contact center when initial
service agreements are made. LSP end users calling SWBT may be
referred to LSP at the number provided by LSP.
Methods and procedures for ordering and trouble reporting are
outlined in the Handbook for Non-Switched Based Providers dated
11/15/95, as amended by SWBT from time to time. Both parties agree
to abide by the procedures contained therein.
D. On no less than sixty (60) days advance written notice, LSP may
request SWBT to make certain usage information available to LSP on a
daily basis in a standard electronic format. The information will
consist of usage sensitive charges SWBT will bill to LSP arising out
of the use of resold lines. LSP agrees to pay SWBT three tenths of a
cent ($.003) per message for this service, plus other charges
outlined in Appendix OSS
V. ADDITIONAL RESPONSIBILITIES OF THE PARTIES
Cooperation on Fraud
SWBT shall not be liable to LSP for any fraudulent usage on LSP's end
users' accounts.
The Parties agree to cooperate with one another to investigate, minimize
and take corrective action in cases of fraud. The Parties' fraud
minimization procedures are to be cost effective and implemented so as not
to unduly burden or harm one Party as compared to the other.
At a minimum, such cooperation shall include providing to the other Party,
upon request, information concerning end users who terminate services to
that Party without paying all outstanding charges, when such end user
seeks service from the other Party. The Party seeking such information is
responsible for securing the end user's permission to obtain such
information.
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RESALE AGREEMENT (MO, KS & AR)
PAGE 9 OF 27
SWBT/LSP
F313
VI. CHANGES IN SUBSCRIBER CARRIER SELECTIONS
A. Prior to submitting an order under this Agreement, LSP shall obtain
end user authorization as required by applicable state or federal
laws and regulations, and assumes responsibility for applicable
charges as specified in Section 258(b) of the Telecommunications Act
of 1996. SWBT shall abide by the same applicable laws and
regulations.
B. Only an end user can initiate a challenge to a change in its local
exchange service provider. If an end user notifies SWBT or LSP that
the end user requests local exchange service, the Party receiving
such request shall be free to immediately provide service to such
end user. SWBT shall be free to connect the end user to any local
service provider based upon the local service provider's request and
local service provider's assurance that proper end user
authorization has been obtained. LSP shall make authorization
available to SWBT upon request and at no charge.
C. When an end user changes or withdraws authorization, each Party
shall release customer-specific facilities in accordance with the
end user customer's direction or the direction of the end user's
authorized agent. Further, when an end user abandons the premise,
SWBT is free to reclaim the facilities for use by another customer
and is free to issue service orders required to reclaim such
facilities.
D. Neither Party shall be obligated by this Agreement to investigate
any allegations of unauthorized changes in local exchange service
(slamming) on behalf of the other Party or a third party. If SWBT,
on behalf of LSP, agrees to investigate an alleged incidence of
slamming, SWBT shall charge LSP a fifty dollar ($50) investigation
fee.
E. When SWBT receives an order from LSP for services under this
Agreement and SWBT is currently providing the same services to
another local service provider for the same end user, SWBT shall
notify the end user's local service provider of record of such order
coincident with processing the order. It shall then be the
responsibility of the local service provider of record and LSP to
resolve any issues related to the end user. This paragraph shall not
apply to new additional lines and services purchased by an end user
from multiple LSPs or from SWBT.
F. On no less than sixty (60) days notice, LSP may request the Local
Disconnect Report. SWBT agrees to furnish to LSP the Billing
Telephone Number (BTN), Working Telephone Number (WTN), and terminal
number of all end users who have disconnected LSP's service. LSP
understands and agrees that the CARE interface will be used to
provide such
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RESALE AGREEMENT (MO, KS & AR)
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SWBT/LSP
F313
information and such information will only be available via the CARE
electronic data transmission. Information will be provided on a
per-WTN basis to be priced on a per-WTN basis. SWBT will provide LSP
no less than thirty (30) days notice prior to any change of the
per-WTN charge. SWBT grants to LSP a non-exclusive right to use the
information provided by SWBT. LSP will not permit anyone but its
duly authorized employees or agents to inspect or use this
information. LSP agrees to pay SWBT ten cents ($0.10) per WTN and
any applicable transmission charges for the Local Disconnect Report.
G. The LSP agrees to hold harmless and indemnify SWBT against any and
all liability and claims, including reasonable attorney's fees, that
may result from SWBT acting under this Article.
H. Nothing herein shall be interpreted to apply to conversion of LSP
end users pursuant to Article XII. (Termination of Service to LSP).
VII. ADDITIONAL RESPONSIBILITIES OF LSP
A. Payment of Rates and Charges
1. LSP is solely responsible for the payment of charges for all
services furnished under this Agreement including, but not
limited to, calls originated or accepted at LSP's location and
its end users' service locations, with the exception of any
retail services provided directly by SWBT to the end user
which SWBT shall be responsible for billing.
Interexchange carried traffic (e.g., sent-paid, information
services and alternate operator services messages) received by
SWBT for billing to resold end-user accounts will be returned
as unbillable and will not be passed on to LSP for billing. An
unbillable code returned with those messages to the carrier
will indicate that the messages originated from a resold
account and will not be billed by SWBT.
2. SWBT shall not be responsible for the manner in which the use
of resold service, or the associated charges are allocated to
others by LSP. All applicable rates and charges for such
services will be billed to and shall be the responsibility of
LSP, with the exception of retail services provided directly
to the end user by SWBT as described in paragraph 1 above.
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RESALE AGREEMENT (MO, KS & AR)
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SWBT/LSP
F313
3. Compensation for all services shall be paid by LSP regardless
of LSP's ability or inability to collect charges from its end
user for such service.
4. If LSP does not wish to be responsible for collect, third
number billed, toll, and information services (e.g., 900)
calls, it must order the appropriate blocking for resold lines
under this Agreement and pay any applicable charges. LSP
acknowledges that blocking is not available for certain types
of calls, including 800 numbers.
B. Interfaces with SWBT
LSP shall be responsible for modifying and connecting any of its
systems with SWBT-provided interfaces as described in this
Agreement.
C. Repair Contact Arrangements
LSP shall be responsible for providing to its end users and to SWBT
a telephone number or numbers that LSP's end users can use to
contact LSP in the event of service or repair requests. In the event
that LSP's end users contact SWBT with regard to such requests, SWBT
shall inform the end user that they should call LSP and may provide
LSP contact number.
D. LSP Operating Company Number (OCN)
For the purposes of establishing service and providing efficient and
consolidated billing to the LSP, the LSP is required to provide SWBT
its authorized and nationally recognized OCN.
E. Special Service Arrangements
For special service arrangements for LSP not covered under this
Agreement, special charges shall apply as provided in the applicable
corresponding tariffs.
F. Development of Branding and Customized Routing for Directory
Assistance and Operator Services
1. Requirements - Pursuant to ss. 226 (b) of The
Telecommunications Act of 1996, each provider of Operator
Services is required to:
a) provide its brand at the beginning of each telephone
call and before the consumer incurs any charge for the
call; and
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RESALE AGREEMENT (MO, KS & AR)
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SWBT/LSP
F313
b) disclose immediately to the consumer, upon request a
quote of its rates or charges for the call.
c) Where SWBT provides LSPs OS and DA services via the same
trunk, both the OS and DA calls will be branded with the
same brand. Since SWBT's DA and OS utilize the same
trunk group, LSP will receive the same brand for both
DA/OS. Such branding will be provided pursuant to
Section 2. below.
2. Call Branding - In compliance with F.l. above, SWBT will brand
DA/OS in LSP's name based upon the criteria outlined below:
a) LSP will provide SWBT with written specification of its
company name to be used in creating LSP specific
branding messages for its DA/OS calls.
b) An initial non-recurring charge applies per load for the
establishment of Call Branding as well as a charge per
subsequent load to change the brand. In addition, a per
call charge applies for every DA/OS call handled by SWBT
on behalf of LSP when such services are provided in
conjunction with resale services. Prices for Call
Branding are as outlined in Exhibit C, attached hereto
and incorporated herein.
3. Rate/Reference Information - SWBT will provide LSP DA/OS
Rate/Reference Information based upon the criteria outlined
below:
a) LSP will furnish DA/OS Rate and Reference Information in
a mutually agreed to format or media thirty (30) days in
advance of the date when the DA/OS Services are to be
undertaken.
b) LSP will inform SWBT, in writing, of any changes to be
made to such Rate/Reference Information ten (10) working
days prior to the effective Rate/Reference change date.
LSP acknowledges that it is responsible to provide SWBT
updated Rate/Reference Information in advance of when
the Rates/Reference Information are to become effective.
c) In all cases when a SWBT Operator receives a rate
request from a LSP end user, SWBT will quote the
applicable DA/OS rates as provided by LSP.
d) An initial non-recurring charge will apply for loading
of LSP's DA/OS Rate/Reference Information as well as a
charge for each
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RESALE AGREEMENT (MO, KS & AR)
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SWBT/LSP
F313
subsequent change to either the LSP's DA/OS Services
Rate or Reference Information as outlined in Exhibit C,
attached hereto and incorporated herein.
4. Customized Routine - SWBT shall also offer LSP the opportunity
to customize route DA/OS where technically feasible. LSP
agrees to pay SWBT appropriate charges associated with
customized routing on an ICB basis.
VIII. NONEXCLUSIVITY
This Agreement is nonexclusive. LSP acknowledges that SWBT will be
providing the same or similar services to other local services providers
in accordance with negotiated agreements which will be filed with the
appropriate state commission(s). LSP also acknowledges that SWBT may, upon
end user request, provide any and all of the services provided to LSP
under this Agreement directly to the end users. SWBT acknowledges that LSP
may obtain the same or similar services from other local exchange
companies.
IX. SUPPORT SYSTEMS SERVICES
A. Support Systems Services
1. Transfer of Service Announcements (Intercept)
The Party formerly providing service to an end user shall
provide a Basic Referral announcement, reciprocally and free
of charge on the abandoned telephone number. The announcement
states that the called number has been disconnected or changed
and provides the end user's new telephone number to the extent
that it is listed. SWBT shall provide an intercept referral on
behalf of LSP to their end user as indicated on the
appropriate service order.
Basic Intercept Referral Announcements are to be provided on
residential numbers for a minimum of thirty (30) days where
facilities exist and the threat of telephone number exhaustion
is not imminent.
Basic Intercept Referral Announcements for a single line
business end users and the primary listed telephone number for
Direct Inward Dial (DID) and "Centrex-type" end users, shall
be available for a minimum of thirty (30) days or the life of
the white pages directory, whichever is greater. If the threat
of telephone number exhaustion becomes imminent for a
particular central office, the
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service provider may reissue a disconnected number prior to
the expiration of the directory, but no earlier than thirty
(30) days after the disconnection of the business telephone
number.
2. Coordinated Repair Calls
SWBT shall be responsible for repairing its own network.
However, LSP shall maintain telephone numbers where its end
user may call to report instances of trouble.
The Parties shall employ the following procedures for handling
misdirected repair calls:
a. The Parties shall inform their respective end users of
the correct telephone numbers to call to access their
respective repair bureaus.
b. To the extent the correct provider can be determined,
each Party shall refer misdirected repair calls to the
proper provider of local exchange service, at no charge,
and shall provide the end user the contact telephone
number provided by the other party.
In responding to repair calls, neither Party shall make
disparaging remarks about each other, nor shall they use
these repair calls as the basis for internal referrals
or to solicit customers or to market services. Either
Party may respond with accurate information in answering
customer questions.
c. The Parties shall provide each other their respective
repair contact numbers.
B. Network Management Controls
Each Party shall provide a 24-hour contact number for Network
Traffic Management issues to the other. A FAX number must also be
provided to facilitate event notifications for planned mass calling
events. Additionally, both Parties agree that they shall work
cooperatively that all such events shall attempt to be conducted in
such a manner as to avoid degradation or loss of service to other
end users.
C. Law Enforcement and Civil Process
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SWBT and LSP shall handle law enforcement requests as follows:
1) INTERCEPT DEVICES Local and federal law enforcement agencies
periodically request information or assistance from local
telephone service providers. When either Party receives a
request associated with an end user of the other Party, it
shall refer such request to the appropriate Party, unless the
request directs the receiving Party to attach a pen register,
trap and trace or form of intercept on that Party's own
facilities, in which case that Party shall comply with any
valid request.
2) SUBPOENAS If a Party receives a subpoena for information
concerning an end user the Party knows to be an end user of
the other Party, it shall refer the subpoena to the requesting
entity with an indication that the other Party is the
responsible company. Provided, however, if the subpoena
requests records for a period of time during which the
receiving Party was the end user's service provider, the
receiving Party will respond to any valid request.
3) EMERGENCIES If a Party receives a request from a law
enforcement agency for a temporary number change, temporary
disconnect or one way denial of outbound calls for an end user
of the other party, the receiving Party will comply so long as
it is a valid emergency request. In the case of the LSP, the
LSP shall refer such request to SWBT and SWBT shall honor such
request in accordance with this paragraph. However, neither
Party shall be held liable for any claims or damages arising
from compliance with such requests, and the Party serving the
end user agrees to indemnify and hold the other Party harmless
against any and all such claims.
D. Usage Data
On no less than 60 days advance written notice, LSP may request SWBT
to make certain usage information available to LSP on a daily basis
via a mechanized feed. The information will consist of usage
sensitive charges SWBT will bill to LSP arising out of the use of
resold lines. LSP agrees to pay SWBT $.003 per message for this
service.
X. CALL TRACE
LSP end user's activation of Call Trace shall be handled by the SWBT Call
Trace Center (CTC) or its Annoying and Anonymous Call Bureau. SWBT shall
notify LSP of requests by its end users to provide the call records to the
proper
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authorities. Subsequent communication and resolution of the case with
LSP's end user (whether that end user is the victim or the suspect) will
be coordinated through the LSP.
LSP understands that for services where reports are provided to law
enforcement agencies (e.g., Call Trace) only billing number and address
information shall be provided. It shall be the LSP's responsibility to
provide additional information necessary for any police investigation. LSP
shall indemnify SWBT against any claims that insufficient information led
to inadequate prosecution.
XI. TAXES
LSP shall be responsible for all federal, state or local, sales, use,
excise or gross receipts taxes or fees imposed on or with respect to the
services provided under this Agreement including those taxes and fees
imposed on SWBT. LSP shall reimburse SWBT for the amount of any such taxes
or fees which SWBT is required to pay or collect for services provided to
LSP hereunder.
XII. TERMINATION OF SERVICE TO LSP
A. If LSP fails to pay when due, any and all charges billed to them
under this Agreement, including any late payment charges (Unpaid
Charges), and any portion of such charges remain unpaid more than
fifteen (15) days after the due date of such Unpaid Charges, SWBT
shall notify LSP in writing that in order to avoid having service
disconnected, LSP must remit all Unpaid Charges to SWBT within
fourteen (14) business days.
B. If LSP disputes the billed charges, it shall, within the fourteen
(14) day period provided for above, inform SWBT in writing which
portion of the charges it disputes, including the specific details
and reasons for its dispute; immediately pay to SWBT all undisputed
charges; and pay all disputed charges into an interest bearing
escrow account with a third party escrow agent mutually agreed upon
by the Parties.
C. Disputes hereunder shall be resolved in accordance with the
procedures identified in Article XVIII (Dispute Resolution). Failure
of LSP to pay charges deemed owed to SWBT after conclusion of the
Arbitration shall be grounds for termination under this Article.
D. If any LSP charges remain unpaid or undisputed twenty-nine (29) days
past the due date, SWBT shall notify LSP, the Commission and the end
user's IXC(s) of Record in writing, that unless all charges are paid
within sixteen (16) days, LSP's service shall be disconnected and
its end users shall be
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switched to SWBT local service. SWBT will also suspend order
acceptance at this time.
E. If any LSP charges remain unpaid or undisputed forty (40) days past
the due date, LSP shall, at its sole expense, notify its end users,
the Commission and the end user's of Record that their service may
be disconnected for LSP failure to pay Unpaid Charges, and that its
end users must select a new local service provider within five (5)
days. The notice shall also advise the end user that SWBT will
assume the end user's account at the end of the five (5) day period
should the end user fail to select a new local service provider.
F. If any LSP charges remain unpaid or undisputed forty-five (45) days
past the due date, SWBT shall disconnect LSP and transfer all LSP's
end users who have not selected another local service provider
directly to SWBT's service. These end users shall receive the same
services provided through LSP at the time of transfer. SWBT shall
inform the Commission and the end user's IXC(s) of Record of the
names of all end users transferred through this process. Applicable
service establishment charges for switching end users from LSP to
SWBT shall be assessed to LSP.
G. Within five (5) days of the transfer (50 days past LSP's due date),
SWBT shall notify all affected end users that because of an LSP's
failure to pay, their service is now being provided by SWBT. SWBT
shall also notify the end user that they have thirty (30) days to
select a local service provider.
H. SWBT may discontinue service to LSP upon failure to pay undisputed
charges as provided in this section, and shall have no liability to
LSP or LSP end users in the event of such disconnection.
I. If any end user fails to select a local service provider within
thirty (30) days of the change of providers (80 days past LSP's due
date), SWBT shall terminate the end user's service. SWBT shall
notify the Commission and the end user's IXC of Record of the names
of all end users whose service has been terminated. The end user
shall be responsible for any and all charges incurred during the
selection period.
J. Nothing herein shall be interpreted to obligate SWBT to continue to
provide service to any such end users. Nothing herein shall be
interpreted to limit any and all disconnection rights SWBT may have
with regard to such end users.
K. After disconnect procedures have begun, SWBT shall not accept
service orders from LSP until all unpaid charges are paid. SWBT
shall have the
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right to require a deposit equal to one month's charges (based on
the highest previous month of service from SWBT) prior to resuming
service to LSP after disconnect for nonpayment.
XIII. FORCE MAJEURE
Neither party shall be responsible for delays or failures in performance
resulting from acts or occurrences beyond the reasonable control of such
Party, regardless of whether such delays or failures in performance were
foreseen or foreseeable as of the date of this Agreement, including,
without limitation: fire, explosion, power failure, cable cuts, acts of
God, war, revolution, civil commotion, or acts of public enemies; any law,
order, regulation, ordinance or requirement of any government or legal
body; or labor unrest, including, without limitation, strikes, slowdowns,
picketing or boycotts; or delays caused by the other party or by other
service or equipment vendors; or any other circumstances beyond the
Party's reasonable control. In such event, the Party affected shall, upon
giving prompt notice to the other Party, be excused from such performance
on a day-to-day basis to the extent of such interference (and the other
Party shall likewise be excused from performance of its obligations on a
day-for-day basis to the extent such Party's obligations relate to the
performance so interfered with). The affected party shall use its best
efforts to avoid or remove the cause of nonperformance and both parties
shall proceed to perform with dispatch once the causes are removed or
cease.
XIV. LIMITATION OF LIABILITY
SWBT's liability, if any, for its gross negligence or willful misconduct
is not limited by its corresponding tariffs. With respect to any other
claim or suit, by a LSP or any others, for damages arising out of
mistakes, omissions, interruptions, delays or efforts, or defects in
transmission occurring in the course of furnishing service hereunder,
SWBT's liability, if any, shall not exceed an amount equivalent to the
proportionate charge to the LSP for the period of service during which
such mistake, omission, interruption, delay, error, or defect in
transmission or service occurs and continues. In no event shall SWBT be
responsible for any special, indirect, consequential or exemplary damages.
This liability shall be in addition to any amounts that may otherwise be
due to the LSP under corresponding tariffs as an allowance for
interruptions. However, any such mistakes, omissions, interruptions,
delays, errors, or defects in transmission or service which are caused or
contributed to by the negligence or willful act of the LSP or which arise
from the use of LSP-provided facilities or equipment shall not result in
the imposition of any liability whatsoever upon SWBT.
SWBT shall be indemnified and held harmless by the LSP against claims and
damages arising from provision of the LSP's services or equipment except
those
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directly associated with the provision of local service to the LSP which
is governed by corresponding tariffs.
SWBT shall be indemnified and held harmless from all claims and damages
arising from the discontinuance of service for nonpayment to SWBT by the
LSP. Notice of discontinuance shall be as specified in the Substantive
Rules of the State Commission.
SWBT shall have no liability to the end users of the LSP for claims
arising from the provision of the LSP's service to its end users
including, but not limited to, claims for interruption of service, quality
of service or billing disputes.
When the lines or services of other companies and carriers are used in
establishing connections to and/or from points not reached by SWBT's
lines, SWBT is not liable for any act or omission of the other companies
or carriers.
XV. NONDISCLOSURE
The Parties to this Agreement anticipate and recognize that they will
exchange or come into possession of data about each other's end users and
each other's business as a result of this Agreement which will be
designated as confidential by that Party. Each Party agrees (1) to treat
all such data as strictly confidential and (2) to use such data only for
purposes of performance under this Agreement. Each Party agrees not to
disclose data on the other Party's end users or business which has been
designated as confidential to any person without first securing the
written consent of the other Party. The foregoing shall not apply to
information which is in the public domain.
If a court or governmental agency orders or a third party requests a Party
to disclose or to provide any data or information covered by this Section,
that Party will immediately inform the other Party of the order or request
both by telephone and overnighted mail before disclosing the data or
information. Notification and consent requirements described above are not
applicable in cases where a court order requires the production of toll
billing records of an individual residence or business end user customer.
This section will not preclude the disclosure by the Parties of
information or material described in this Section to consultants, agents,
or attorneys representing the respective Parties or the Office of the
Public Counsel for the states of Arkansas, Kansas, and/or Missouri, and
state regulatory commissions or staffs, or FCC Staff, provided that these
third parties are bound by the same or comparable confidentiality
requirements as the Parties to this Agreement. The provisions of this
Section will remain in effect notwithstanding the termination of this
Agreement, unless agreed to in writing by both Parties.
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Pursuant to Section 222 of the Act, both Parties agree to limit their use
of proprietary information received from the other to the permitted
purposes identified in the Act.
XVI. PUBLICITY
The Parties agree not to use in any advertising or sales promotion, press
releases or other publicity matters any endorsements, direct or indirect
quotes, or pictures implying endorsement by the other Party or any of its
employees without such Party's prior written approval. The Parties will
submit to each other for written approval, prior to publication, all
publicity matters that mention or display one another's name and/or marks
or contain language from which a connection to said name and/or marks may
be inferred or implied.
XVII. ASSIGNMENT
Neither Party may assign, subcontract, or otherwise transfer its rights or
obligations under this Agreement except under such terms and conditions as
are mutually acceptable to the other Party (e.g., a conversion charge will
apply per billable telephone number) and with such Party's prior written
consent, which consent shall not be unreasonably withheld. Assignment
without consent shall be grounds for immediate termination of this
Agreement.
XVIII. DISPUTE RESOLUTION
A. Finality of Disputes
No claims shall be brought for disputes arising from this Agreement
more than 24 months from the date of occurrence which gives rise to
the dispute. If any portion of an amount due to SWBT under such
agreement is subject to a bona fide dispute between the Parties, LSP
shall within fourteen (14) days of its receipt of the invoice
containing such disputed amount give notice to SWBT of the amounts
it disputes and include in such notice the specific details and
reasons for disputing each item. LSP shall pay when due (i) all
undisputed amounts to SWBT and (ii) all Disputed Amounts into an
interest bearing escrow account with a third party escrow agent
mutually agreed upon by the Parties.
B. Alternative to Litigation
The Parties desire to resolve disputes arising out of this Agreement
without litigation. Accordingly, except for action seeking a
temporary restraining order or an injunction related to the purposes
of this Agreement, or suit to
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compel compliance with this dispute resolution process, the Parties
agree to use the following alternative dispute resolution procedure
as their sole remedy with respect to any controversy or claim of
$25,000 or less, arising out of or relating to this Agreement or its
breach. The procedures hereunder may be used with disputes for
$25,000 or more, if mutually agreeable to the Parties.
1. Resolution of Disputes Between Parties to the Agreement
At the written request of a Party, each Party will appoint a
knowledgeable, responsible representative to meet and
negotiate in good faith to resolve any dispute arising under
this Agreement. The location, form, frequency, duration and
conclusion of these discussions shall be left to the
discretion of the representatives. Upon agreement, the
representatives may utilize other alternative dispute
resolution procedures such as mediation to assist in the
negotiations. Discussions and correspondence among the
representatives for purposes of settlement are exempt from
discovery and production and shall not be admissible in the
arbitration described below or in any lawsuit without the
concurrence of all Parties. Documents identified in or
provided with such communications, which are not prepared for
purposes of the negotiations, are not so exempted and, if
otherwise admissible, may be admitted in evidence in the
arbitration or lawsuit.
2. Arbitration
If the negotiations do not resolve the dispute within thirty
(30) days of the initial written request, the dispute shall be
submitted to binding arbitration by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. A Party may demand such arbitration
in accordance with the procedures set out in those rules.
Discovery shall be controlled by the arbitrator and shall be
permitted to the extent set out in this section. Each Party
may submit in writing to a Party, and that Party shall so
respond, to a maximum of any combination of thirty-five (35)
(none of which may have subparts) of the following:
(a) Interrogatories
(b) Demands to produce documents
(c) Requests for admission
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Additional discovery may be permitted upon mutual agreement of
the Parties. The arbitration hearing shall be commenced within
thirty (30) days of the demand for arbitration. The
arbitration shall be held in the city where this Agreement was
executed by SWBT. The arbitrator shall control the scheduling
so as to process the matter expeditiously. The Parties shall
submit written briefs five days before the hearing. The
arbitrator shall rule on the dispute by issuing a written
opinion within twenty (20) days after the close of hearings.
The arbitrator has no authority to order punitive or
consequential damages. The times specified in this section may
be extended upon mutual agreement of the Parties or by the
arbitrator upon a showing of good cause. Judgment upon the
award rendered by the arbitrator may be entered in any court
having jurisdiction.
3. Costs
Each Party shall bear its own costs of these procedures. A
Party seeking discovery shall reimburse the responding Party
the costs of production of documents (including search time
and reproduction costs). The Parties shall equally split the
fees of the arbitration and the arbitrator.
XIX. VERIFICATION REVIEWS
Each Party to this Agreement will be responsible for the accuracy and
quality of its data as submitted to the respective Parties involved. Upon
reasonable written notice, each Party or its authorized representative
(providing such authorized representative does not have a conflict of
interest related to other matters before one of the Parties) shall have
the right to conduct a review and verification of the other Party to give
assurances of compliance with the provisions of this Agreement. This
includes on-site verification reviews at the other Party's or the Party's
vendor locations.
After the initial year of this Agreement verification reviews will
normally be conducted on an annual basis with provision for staged
reviews, as mutually agreed, so that all subject matters are not required
to be reviewed at the same time. Follow up reviews will be permitted
between annual reviews where significant deviations are found. During the
initial year of the Agreement more frequent reviews may occur.
The review will consist of an examination and verification of data
involving records, systems, procedures and other information related to
the services performed by either Party as related to settlement charges or
payments made in connection with this Agreement as determined by either
Party to be reasonably
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required. Each Party, whether or not in connection with an on-site
verification review, shall maintain reasonable records for a period of
time no less than twenty-four (24) months from the date such records are
created and provide the other Party with reasonable access to such
information as is necessary to determine amounts receivable or payable
under this Agreement.
Each Party's right to access information for verification review purposes
is limited to data not in excess of 24 months in age. Once specific data
has been reviewed and verified, it is unavailable for future reviews. Any
items not reconciled at the end of a review will, however, be subject to a
follow-up review effort. Any retroactive adjustments required subsequent
to previously reviewed and verified data will also be subject to follow-up
review. Information of either Party involved with a verification review
shall be subject to the nondisclosure terms of this Agreement.
The Party requesting a verification review shall fully bear its costs
associated with conducting the review. The Party being reviewed will
provide access to required information, as outlined in this Section, at no
charge to the reviewing Party. Should the reviewing Party request
information or assistance beyond that reasonably required to conduct such
a review, the Party being reviewed may, as its option, decline to comply
with such request or may bill actual costs incurred in complying
subsequent to the concurrence of reviewing Party.
XX. COMPLIANCE WITH LAWS
The Parties believe in good faith that the Services to be provided under
this Agreement satisfy the requirements of the Act. In the event a court
or regulatory agency of competent jurisdiction should determine that
modifications of this Agreement are required to bring the Services being
provided hereunder into compliance with the Act, the affected Party shall
promptly give the other Party written notice of the modifications deemed
required. Upon delivery of such notice, the Parties shall expend diligent
efforts to arrive at an agreement respecting such modifications required,
and if the Parties are unable to arrive at such agreement, either Party
may terminate this Agreement, without penalty, effective the day the
affected Party is ordered to implement the modifications deemed required,
or effective on the day either Party concludes and gives notice that the
Parties will not be able to arrive at any agreement respecting such
modifications, whichever date shall occur earlier.
This Agreement is an integrated package that reflects a balancing of
interests critical to the Parties. It will be submitted to the applicable
state regulatory Commission and the FCC as a compliance filing, and the
Parties will specifically request that the applicable state regulatory
Commission and the FCC refrain from taking any action to change, suspend
or otherwise delay implementation of the
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Agreement. In the event the Commission or the FCC rejects any portion or
provision of this Agreement or subsequently issues a ruling or order that
results in a provision being contrary to law, or is invalid for any
reason, the parties shall continue to be bound by the terms of this
Agreement, insofar as possible, except for the portion rejected or
subsequently determined to be unlawful, invalid, or unenforceable. In such
event, the Parties shall negotiate in good faith to replace the rejected,
unlawful, invalid, or unenforceable provision and shall not discontinue
service to the other Party during such period if to do so would disrupt
existing service being provided to an end user. So long as the Agreement
remains in effect, the Parties shall not advocate before any legislative,
regulatory, or other public forum that any terms of this specific
Agreement be modified or eliminated. Notwithstanding this mutual
commitment, however, the Parties enter into this Agreement without
prejudice to any positions they have taken previously, or may take in the
future in any legislative, regulatory, or other public forum addressing
any matters, including matters related to the types of arrangements
prescribed by this Agreement.
XXI. CERTIFICATION REQUIREMENTS
LSP warrants that it has obtained all certifications required in those
jurisdictions in which LSP has ordered services pursuant to this
Agreement. Subject to restrictions in Article II.A. (Permitted Use of
Resold Service by LSP and Its End Users), LSP covenants that any
originating service provider utilizing the resold services under this
Agreement has obtained all required certification. Upon request by any
governmental entity, the LSP is required to provide proof of
certification.
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XXII. EFFECT OF OTHER AGREEMENTS
The Parties agree that pursuant to the requirements of the
Telecommunications Act of 1996, a Party shall treat the other Party no
less favorably than it treats similarly situated local service providers
with whom such Party has an operational interconnection or resale
agreement which has been approved by the State PUC or PSC. If either Party
enters into an agreement (the "Other Agreement") approved by the
Commission pursuant to Section 252 of the Act which provides for the
provision of arrangements covered in this Agreement to another requesting
Telecommunications Carrier, such Party shall make available to the other
Party such arrangements upon the same rates, terms and conditions as those
provided in the Other Agreement.
XXIII. NOTIFICATION
SWBT shall make telecommunications services that SWBT provides at retail
to subscribers who are not telecommunications carriers available for
resale consistent with its obligation under Section 25 I(c)(4)(A) of the
Telecommunications Act. The notification shall advise LSP of the category
in which such new service shall be placed and the same discount already
applicable to LSP in that category shall apply to the new service.
SWBT currently uses the Accessible Letter process to notify LSP of such
changes to the services available for resale. Any change to the process of
notification to the LSP will provide no less notice than the current
Accessible Letter process.
XXIV. NOTICES
In the event any notices are required to be sent under the terms of this
Agreement, they shall be sent by registered mail, return receipt requested
to:
To LSP: To SWBT:
Mary Bush Debbie Watson
Valu-Line of Kansas, Inc. SWBT
1420 C. of E. Drive One Bell Plaza, Room 522
Emporia, KS 66801 Dallas, TX 75202
XXV. BENEFICIARIES
This Agreement shall not provide any nonparty with any remedy, claim,
cause of action or other right.
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XXVI. TERM
SWBT and LSP agree that the initial term of this Agreement shall be for 90
days, and thereafter the Agreement shall continue in force and effect
unless and until terminated as provided herein. Either Party may terminate
this Agreement by providing written notice of termination to the other
Party, at least 60 days in advance of the date of termination. At the
conclusion of the first term, this Agreement shall continue without
interruption unless terminated by either Party or superseded by a new
Agreement between the Parties. By mutual agreement, SWBT and LSP may amend
this Agreement to modify the term of this Agreement. Where LSP has not
made arrangements to provide service over its own facilities to its end
users, the notification and transfer of end user procedures outlined in
Article XJII.D. -F. (Termination of service to LSP) shall apply.
XXVII. EFFECTIVE DATE
The effective date of this Agreement shall be ten (10) days after the date
that the appropriate state regulatory Commission approves this Agreement.
XXVIII. WAIVER
The failure of either Party to enforce or insist that the other party
comply with any of the terms or conditions of this Agreement, or the
waiver by either Party in a particular instance of any of the terms and
conditions of this Agreement, shall not be construed as a general waiver
or relinquishment of the terms and conditions, but the Agreement shall be
and remain at all times in full force and effect.
XXIX. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR
INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED
HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH REGARD TO THE
CORRECTNESS OF DATA OR INFORMATION SUPPLIED BY LSP WHEN THIS DATA OR
INFORMATION IS ACCESSED AND USED BY A THIRD PARTY.
XXX. RELATIONSHIP OF THE PARTIES
This Agreement shall not establish, be interpreted as establishing, or be
used by either Party to establish or to represent their relationship as
any form of agency, partnership or joint venture. Neither Party shall have
any authority to bind the other or to act as an agent for the other unless
written authority, separate from this
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Agreement, is provided. Nothing in the Agreement shall be construed as
providing for the sharing of profits or losses arising out of the efforts
of either or both of the Parties. Nothing herein shall be construed as
making either Party responsible or liable for the obligations and
undertakings of the other Party.
XXXI. COMPLETE TERMS
This Agreement, together with its Attachments constitutes the entire
agreement between the Parties and supersedes all prior discussions,
representations or oral understandings reached between the Parties.
The corresponding tariffs and this Agreement (including the Attachments)
contain all of the applicable rates and charges to be paid by the LSP to
SWBT in connection with SWBT's provision of telecommunications service to
LSP for Resale to its end user customers.
Neither Party shall be bound by any amendment, modification or additional
terms unless it is reduced to writing signed by an authorized
representative of the Party sought to be bound.
By their signatures in the space provided below, LSP and SWBT indicate
their acceptance of this Agreement. This agreement shall not bind LSP and
SWBT until executed by both Parties. This Agreement will be governed by
and interpreted in accordance with the laws of the State of Kansas.
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT.
VALU-LINE OF KANSAS, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
AECN/OCN: 7611
/s/ Rick Tidwell /s/ Ricardo Zamora
----------------------------------- -----------------------------------
Signature Signature
Rick Tidwell Ricardo Zamora
----------------------------------- -----------------------------------
Printed Name Printed Name
President VP-Local Interconnection
----------------------------------- -----------------------------------
Position/Title Position/Title
March 31, 1997 April , 1997
----------------------------------- -----------------------------------
Date Date
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT.
VALU-LINE OF KANSAS, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
AECN/OCN: 7611
/s/ Rick Tidwell /s/ Ricardo Zamora
----------------------------------- -----------------------------------
Signature Signature
Rick Tidwell Ricardo Zamora
----------------------------------- -----------------------------------
Printed Name Printed Name
President VP-Local Interconnection
----------------------------------- -----------------------------------
Position/Title Position/Title
March 31, 1997 April , 1997
----------------------------------- -----------------------------------
Date Date
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RESALE AGREEMENT (MO, KS & AR)
PAGE 28 OF 27
SWBT/LSP
F313
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT.
VALU-LINE OF KANSAS, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
AECN/OCN: 7611
/s/ Rick Tidwell /s/ Ricardo Zamora
----------------------------------- -----------------------------------
Signature Signature
Rick Tidwell Ricardo Zamora
----------------------------------- -----------------------------------
Printed Name Printed Name
President VP-Local Interconnection
----------------------------------- -----------------------------------
Position/Title Position/Title
March 31, 1997 April , 1997
----------------------------------- -----------------------------------
Date Date
<PAGE> 33
RESALE AGREEMENT (MO, KS, AR) - EXHIBIT A
PAGE 1 0F 2
SWBT/LSP
M307
Southwestern Bell's Resale Product* List - Residence
Kansas
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
LOCAL EXCHANGE SERVICE
Link Up America Service 14.9% 14.9%
Residence 1 Party 14.9% 14.9%
Res Flat Rate Trunks 14.9% 14.9%
EXPANDED LOCAL CALLING
Expanded Local Calling (Mandatory) 14.9% 14.9%
MetroPlus 14.9% 14.9%
CALL MANAGEMENT SERVICES
Auto Redial 14.9% 14.9%
Auto Redial - Usage Sensitive 14.9% 14.9%
Call Blocker 14.9% 14.9%
Call Forwarding 14.9% 14.9%
Call Forwarding - Busy Line 14.9% 14.9%
Call Forwarding - Busy Line/Don't Answer 14.9% 14.9%
Call Forwarding - Don't Answer 14.9% 14.9%
Call Return 14.9% 14.9%
Call Return - Usage Sensitive 14.9% 14.9%
Call Trace 14.9% 14.9%
Call Waiting 14.9% 14.9%
Calling Name 14.9% 14.9%
Calling Number 14.9% 14.9%
Personalized Ring (1 dependent number) 14.9% 14.9%
Personalized Ring (2 dependent numbers - 1st number) 14.9% 14.9%
Personalized Ring (2 dependent numbers - 2nd number) 14.9% 14.9%
Preferred Number Service 14.9% 14.9%
Priority Call 14.9% 14.9%
Remote Access to Call Forwarding 14.9% 14.9%
Selective Call Forwarding 14.9% 14.9%
Simultaneous Call Forwarding 14.9% 14.9%
Speed Calling 8 14.9% 14.9%
Three Way Calling 14.9% 14.9%
AIN
Selective Call Acceptance 14.9% 14.9%
Some products not available in all areas.
Resale products available subject to state and federal rules, regulations, and
tariffs.
<PAGE> 34
RESALE AGREEMENT (MO, KS, AR) - EXHIBIT A
PAGE 2 OF 2
SWBT/LSP
M307
Southwestern Bell's Resale Product* List - Residence
Kansas
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
DIRECTORY ASSISTANCE SERVICES 14.9% 14.9%
ISDN
Digiline(SM) 14.9% 14.9%
OTHER
Customer Alerting Enablement 14.9% 14.9%
Grandfathered Services 14.9% 14.9%
Hot Line 14.9% 14.9%
Hunting 14.9% 14.9%
Improved Data Transmission Service 14.9% 14.9%
Local Operator Assistance Service 14.9% 14.9%
Packages 14.9% 14.9%
Promotions (greater than 90 days) 14.9% 14.9%
Preferred Number Service 14.9% 14.9%
Second Line Control 14.9% 14.9%
Toll Restriction 14.9% 14.9%
TouchTone 14.9% 14.9%
Voice Dial 14.9% 14.9%
Warm Line 14.9% 14.9%
TOLL
900 Call Restriction 14.9% 14.9%
Home 800(SM) 14.9% 14.9%
IntraLATA MTS 14.9% 14.9%
Toll Billing Exception 14.9% 14.9%
NON-TELECOMMUNICATION SERVICES
Bill Plus(SM) 14.9% 14.9%
Consolidated Billing 14.9% 14.9%
Company Initiated Suspension and Restoral Service 0.0% 0.0%
Customer Initiated Suspension and Restoral Service 0.0% 0.0%
Enhanced Directory Listings 14.9% 14.9%
* Some products not available in all areas.
Resale products available subject to state and federal rules, regulations,
and tariffs.
<PAGE> 35
RESALE AGREEMENT (MO, KS, AR) - EXHIBIT B
PAGE 1 OF 3
SWBT/LSP
M307
Southwestern Bell's Resale Product* List - Business
Kansas
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
LOCAL EXCHANGE SERVICE
Business 1 Party 14.9% 14.9%
Business - Multi-Line 14.9% 14.9%
Business - Message Rate 1 Party 14.9% 14.9%
Semi Public Coin Telephone Service 14.9% 14.9%
Semi Public Coinless Telephone Service 14.9% 14.9%
Semi Public Coinless - Outward only 14.9% 14.9%
Semi Public Outgoing Only/1 Way Originating only 14.9% 14.9%
TRUNKS
Analog Trunk 14.9% 14.9%
DID 14.9% 14.9%
Digital Trunk 14.9% 14.9%
Hotel/Motel Message Trunks 14.9% 14.9%
EXPANDED LOCAL CALLING
Expanded Local Calling (Mandatory) 14.9% 14.9%
MetroPlus 14.9% 14.9%
CALL MANAGEMENT SERVICES
Auto Redial 14.9% 14.9%
Auto Redial - Usage Sensitive 14.9% 14.9%
Call Blocker 14.9% 14.9%
Call Forwarding 14.9% 14.9%
Call Forwarding - Busy Line 14.9% 14.9%
Call Forwarding - Busy Line/Don't Answer 14.9% 14.9%
Call Forwarding - Don't Answer 14.9% 14.9%
Call Return 14.9% 14.9%
Call Return - Usage Sensitive 14.9% 14.9%
Call Trace 14.9% 14.9%
Call Waiting 14.9% 14.9%
Calling Name 14.9% 14.9%
Calling Number 14.9% 14.9%
Personalized Ring (1 dependent number) 14.9% 14.9%
Personalized Ring (2 dependent numbers - 1st number) 14.9% 14.9%
Personalized Ring (2 dependent numbers - 2nd number) 14.9% 14.9%
Priority Call 14.9% 14.9%
Remote Access to Call Forwarding 14.9% 14.9%
Selective Call Forwarding 14.9% 14.9%
Simultaneous Call Forwarding 14.9% 14.9%
Speed Calling 30 14.9% 14.9%
Three Way Calling 14.9% 14.9%
Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 36
RESALE AGREEMENT (MO, KS, AR) - EXHIBIT B
PAGE 2 OF 3
SWBT/LSP
M307
Southwestern Bell's Resale Product* List - Business
Kansas
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
DID
DID (First Block of 100) 14.9% 14.9%
DID (First Block of 10) 14.9% 14.9%
DID (Ea. adl. block of 10 after first 10) 14.9% 14.9%
DID (Ea. adl. block of 100 after first 100) 14.9% 14.9%
DID (with dial pulse) 14.9% 14.9%
DID (with Mutlifrequency) 14.9% 14.9%
DID (with Dual-Tone Multifrequency) 14.9% 14.9%
AIN
Area Wide Networking 14.9% 14.9%
Caller Intellidata (R) 14.9% 14.9%
Disaster Routing Service 14.9% 14.9%
Intelligent Redirect(SM) 14.9% 14.9%
IntelliNumber(SM) 14.9% 14.9%
Positive ID 14.9% 14.9%
Selective Call Acceptance 14.9% 14.9%
OTHER
Busy Out Arrangement 14.9% 14.9%
Customer Alerting Enablement 14.9% 14.9%
Grandfathered Services 14.9% 14.9%
Foreign Exchange 14.9% 14.9%
Foreign Serving Office 14.9% 14.9%
Frame Relay 14.9% 14.9%
Hot Line 14.9% 14.9%
Hunting 14.9% 14.9%
Improved Data Transmission Service 14.9% 14.9%
Local Operator Assistance Service 14.9% 14.9%
MicroLink 1 (R) 14.9% 14.9%
Multi Pt. Video 14.9% 14.9%
Network Reconfiguration Service 14.9% 14.9%
Night Number associated with a Terminal 14.9% 14.9%
Night Number associated with Telephone Number 14.9% 14.9%
Packages 14.9% 14.9%
Promotions (greater than 90 days) 14.9% 14.9%
Telebranch (R) 14.9% 14.9%
Telephone Answering Secretarial 14.9% 14.9%
Toll Restriction 14.9% 14.9%
TouchTone (Business) 14.9% 14.9%
TouchTone (Trunk) 14.9% 14.9%
Voice Dial 14.9% 14.9%
Warm Line 14.9% 14.9%
* Some products not available in all areas.
Resale products available subject to state and federal rules, regulations
and tariffs.
<PAGE> 37
RESALE AGREEMENT (MO, KS, AR) - EXHIBIT B
PAGE 3 OF 3
SWBT/LSP
M307
Southwestern Bell's Resale Product* List - Business
Kansas
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
ISDN
Digiline(SM) 14.9% 14.9%
Select Video Plus(R) 14.9% 14.9%
Smart Trunk(SM) 14.9% 14.9%
DIRECTORY ASSISTANCE SERVICES 14.9% 14.9%
TOLL
900 Call Restriction 14.9% 14.9%
IntraLATA MTS 14.9% 14.9%
MaxiMizer 800(R) 14.9% 14.9%
OutWATS 14.9% 14.9%
Toll Billing Exception 14.9% 14.9%
PLEXAR(R)
Plexar 1(R) 14.9% 14.9%
Plexar 11(R) 14.9% 14.9%
NON-TELECOMMUNICATION SERVICES
Bill Plus(SM) 14.9% 14.9%
Consolidated Billing 14.9% 14.9%
Company Initiated Suspension and Restoral Service 0.0% 0.0%
Customer Initiated Suspension and Restoral Service 0.0% 0.0%
Enhanced Directory Listings 14.9% 14.9%
* Some products not available in all areas.
Resale products available subject to state and federal rules, regulations
and tariffs.
<PAGE> 38
RESALE AGREEMENT (MO, KS & AR) - EXHIBIT C
PAGE 1 OF 1
SWBT/LSP
M304
APPENDIX RESALE
KANSAS
OS/DA PRICING - BRANDING, RATE & REFERENCE
The following rates will apply for each service element:
----------------------------------------------------------------------------------------------
A. CALL BRANDING
An initial non-recurring charge applies per trunk group for the establishment of
LSP specific Call Branding. A Per Call charge also applies. When there are
subsequent changes to the branding announcement, an additional non-recurring
charge will also apply per change.
Rate per initial load group $2100.00
Rate per load for Brand change $2100.00
Per Call $0.02
----------------------------------------------------------------------------------------------
B. DIRECTORY ASSISTANCE RATE/REFERENCE INFORMATION
An initial non-recurring charge applies for the initial load of LSP's DA
Services Rate/Reference Information. An additional non-recurring charge applies
for each subsequent change to Rate/Reference Information.
Rate per initial load $3375.00
Rate per subsequent rate change $2375.00
Rate per subsequent reference change $2375.00
----------------------------------------------------------------------------------------------
C. OPERATOR SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies for the initial load of LSP's Operator
Services Rate/Reference Information. An additional non-recurring charge applies
for each subsequent change to Rate/Reference Information.
Rate per initial load $3375.00
Rate per subsequent rate change $2375.00
Rate per subsequent reference change $2375.00
----------------------------------------------------------------------------------------------
<PAGE> 39
[LETTERHEAD OF SOUTHWESTERN BELL]
March 25, 1997
Mr. Rick Tidwell
Valu-Line of Kansas
1420 C of E Drive
Emporia, KS 66801
Dear Mr. Tidwell:
Please find enclosed one copy of the Wirework Agreement for your file. Also
enclosed is one copy of the Remote Access Facility LSP Service Activation
Procedures for your review. Please call me if I can be of further assistance.
Sincerely,
/s/ Deborah R Watson
Deborah R Watson
Enclosure
<PAGE> 40
TABLE of CONTENTS
WireWorx(SM) (RESALE) AGREEMENT
Between
SOUTHWESTERN BELL TELEPHONE COMPANY
and
VALU-LINE OF KANSAS, INC.
PAGE
I. DEFINITIONS 3
II. LSP COMPANY OBLIGATIONS 4
III. SWBT OBLIGATIONS 4
IV. OPERATIONAL PROCEDURES 5
A. Repair Referrals to SWBT
B. Pre-Referral Repair Screening
C SWBT Repair Report Handling
D. Jacks/Inside Wire Requests Received Direct from End Users
E. Jacks/Inside Wire Requests via Service Order
F. Coordinated Repair Calls
V. ADDITIONAL RESPONSIBILITIES OF THE PARTIES 7
A. Notice of Network Changes
B. Billing and Payment of Rates and Charges
C. Notice of Price Changes
D. Termination of Service for Nonpayment
VI. FORCE MAJEURE 9
VII. LIMITATION OF LIABILITY 9
VIII. NONDISCLOSURE 9
IX. PUBLICITY 10
X. ASSIGNMENT 10
XI. NOTICES 11
XII. THIRD PARTY BENEFICIARIES 11
1
<PAGE> 41
XIII. TAXES 11
XIV. TERM 11
XV. WAIVER 11
XVI. DISCLAIMER OF WARRANTIES 12
XVII. EFFECTIVE DATE 12
XVIII. RELATIONSHIP OF THE PARTIES 12
XIX. COMPLETE TERMS 13
APPENDIX I - WireWorx(SM) Inside Wire Repair Charges 14
APPENDIX II - Maintenance of Service Charges 15
APPENDIX III - Time Sensitive Jacks/Inside Wire
Installation/Repair Charges 16
2
<PAGE> 42
WireWorx(SM) AGREEMENT
This Agreement is between Valu-Line of Kansas (hereinafter referred to as
"LSP") and Southwestern Bell Telephone Company ("SWBT") (collectively, "the
Parties") entered into this 3rd day of March, 1997.
WHEREAS, SWBT offers a service known as WireWorx(SM) for the installation
and repair of simple inside wire and/or jacks to Local Service Providers; and
LSP desires to obtain WireWorx(SM) from SWBT;
It is therefore agreed in consideration of the mutual promises contained
herein that:
I. DEFINITIONS
As used in this Agreement, the following definitions shall apply:
Customer Premises Equipment (CPE)- Equipment owned by an end user, such as
a telephone set, that can be connected to the telephone network.
Demarcation Point/Network Interface (NI)- The point of demarcation and/or
interconnection between "telephone company communications facilities" and
"wiring at subscriber premises." The terms demarcation point and network
interface (NI) are used interchangeably and mean the same thing.
Inside Wire (1W)- End user premises wiring beyond the established
demarcation point or network interface.
Inside Wire Repair Charge - The recurring monthly price listed in Appendix
I of this Agreement that SWBT will charge LSP for the WireWorx(SM) Option
chosen.
Maintenance of Service Charge (MSC)- The price for dispatching a SWBT
technician to an end users premises for the purpose of isolating trouble
reported by LSP. It is charged to LSP on each dispatch wherein trouble is
isolated to the end user side of the demarcation point/NI and the affected line
is NOT designated as covered by WireWorx(SM) or the trouble is isolated to end
user's CPE (See Appendix II).
Multi-line Service- An end user resold-line account wherein there are two
(2) or more non-designed lines terminating in key equipment. This Agreement
covers repairs of inside wire and jacks from the last common termination point
up to and including the jack.
Off-Premises Extension- An extension of the basic line to a premises
separated from the primary service location by any public roadway or
thoroughfare.
3
<PAGE> 43
Resold Line- A telephone line purchased by LSP from SWBT at wholesale
rates and resold to LSP's end users.
Riser Cable- Copper conductors, typically within a cable sheath, that are
placed exclusively within or between multi-unit buildings from the an entrance
location of a building (typically in the basement or lower floor equipment
closet) to designated equipment space or terminal space within such building.
Time Sensitive Installation Charge- The time sensitive price SWBT charges
for each service order for jack/inside wire installation completed by a SWBT
technician on a resold line, either residence, business or multi-line (See
Appendix III).
Time Sensitive Repair Charge- The time sensitive price SWBT charges for
each repair trip completed by a SWBT technician on a resold line, either
residence, business or multi-line, that is NOT designated as covered by
WireWorx(SM) (See Appendix III).
II. LSP COMPANY OBLIGATIONS
LSP agrees to purchase WireWorx(SM) for residence and single-line business
resold lines at the monthly WireWorx(SM) price listed in Appendix I attached
hereto for the Option chosen by LSP. LSP further agrees to purchase WireWorx(SM)
for multi-line business resold lines and jacks at the monthly price listed in
Appendix I for the Option chosen by LSP.
III. SWBT OBLIGATIONS
A. SWBT agrees to diagnose, isolate trouble and repair the inside wiring
and jacks of LSP's end user at no charge to said end user. WireWorx(SM)
however, does NOT cover:
1. Charges for wire repair due to natural disasters such as flood
and earthquake, riots, acts of war, gross negligence, willful
damage and/or vandalism.
2. Repairs to wire that does not meet SWBT's installation
practices or technical standards as provided under separate
cover.
3. Repair to wire provided and maintained by military personnel.
(Texas Only)
4. Repair and/or replacement of CPE. NOTE: If the trouble is
determined to be in the end user's CPE and NOT in the
facilities up to and including the jacks, a Maintenance of
Service Charge (MSC) equal to the retail rate in the
appropriate state, will be billed to LSP.
5. Repairs to house or riser cable, or cable between buildings.
4
<PAGE> 44
6. Repairs to designated designed services:
a. Trunks
b. Access services
c. Foreign Exchange service
d. WATS
e. Private Line services, Analog & Digital
f. Foreign Serving Office service
g. Off-Premises Extensions
B. SWBT shall not be obligated by this Agreement to provide technicians,
either individual or crews, exclusively dedicated to the performance of
services for LSP.
C. SWBT shall not be obligated by this Agreement to provide LSP with
branding of any kind including but not limited to, technician apparel,
vehicles, forms; nor shall the SWBT technician carry and provide to LSP's
end users, LSP-branded business cards or other printed materials.
IV. OPERATIONAL PROCEDURES
A. Repair Referrals to SWBT
LSP shall be responsible for calling its assigned SWBT trouble reporting
center with each repair referral. The referral shall include:
1. The end users telephone number;
2. A detailed description of the trouble reported by the end
user;
3. A contact name and telephone number (if different from 1.
above) for the end user.
4. LSP representative name and telephone number.
SWBT shall give the next available repair commitment to LSP based upon
whether the trouble is an out-of-service or service-affecting trouble
condition.
B. Pre-Referral Repair Screening
Prior to referring a trouble report to SWBT, LSP shall have its end user
perform the tests described in the SWET printed materials provided under
separate cover, to determine if the trouble is with the end user's CPE.
<PAGE> 45
C. SWBT Repair Report Handling
When SWBT is informed by LSP of trouble on one of its end users lines, a
SWBT technician will be dispatched to repair the end users trouble. If the
cause of trouble is isolated on the SWBT side of the demarcation point/NI,
SWBT will repair its own facilities or equipment. If the trouble is
isolated to the end user side of the demarcation point/NI and the line has
the appropriate 'Every Account' Option designation, the SWBT technician
shall:
1. Advise the end user that SWBT is under Agreement to repair or
restore service and will request the end users consent to enter the
premises; and
2. Where consent is obtained, the SWBT technician shall repair the
trouble (if possible) and follow existing procedures for closing out a
trouble report.
If the trouble is isolated to the end user side of the demarcation
point/NI and the line does NOT have the appropriate WireWorx(SM)
designation per the 'Selected Account' Option, the SWBT technician shall:
1. Advise the end user that the trouble is on their side of the
demarcation point and prepare a Maintenance of Service Charge (MSC) for
billing to LSP, per Appendix II attached hereto; and
2. Then, repair the trouble (if possible) at Time Sensitive Repair
charges, billed to LSP, per Appendix III attached hereto.
Whenever a SWBT technician is dispatched to a LSP end user's premises to
perform work via a repair referral or a service order (See E. below) from
LSP, and if the end user is not present or refuses permission to enter its
premises, a No Access condition shall be deemed to exist.
For No Access conditions, the SWBT technician shall complete an agreed
upon No Access form and leave it at the end users premises. The form shall
advise the end user to contact their local service provider to reschedule
an appointment.
D. Jacks/Inside Wire Installation Requests Received Direct from End
Users
When a LSP end user requests jack/wiring installation directly from a SWBT
technician while the technician is at the end user's premises performing
repair functions, the end user will be referred to LSP to place an order
for the requested services. The service order will be passed from LSP to
SWBT using established service order procedures. Due dates will be
negotiated using established intervals and charges will be billed to LSP
per the rate schedule in Appendix III attached hereto.
<PAGE> 46
E. Jacks/Inside Wire Installation Requests via Service Order
LSP shall forward their end users' requests for installation of jacks
and/or inside wire to SWBT via established service order procedures. Due
dates will be determined using established intervals and time sensitive
charges will be billed to LSP per the rate schedule in Appendix III
attached hereto.
F. Coordinated Repair Calls
The Parties shall employ the following procedures for handling misdirected
repair calls received from the other Party's end users:
1. The Parties shall inform their respective end users of the
correct telephone numbers to call to access their respective
repair bureaus.
2. To the extent the correct provider can be determined,
misdirected repair calls shall be referred to the appropriate
Party in a courteous manner, at no charge. The Party receiving
a misdirected repair call shall provide the end user with the
correct contact telephone number. In responding to repair
calls, neither Party shall make disparaging remarks about the
other Party, nor shall repair calls be used as the basis for
internal referrals, to solicit end users or to market
services. Either Party may respond with accurate information
in answering end user questions.
3. The Parties shall provide their respective repair contact
numbers to one another.
V. ADDITIONAL RESPONSIBILITIES OF THE PARTIES
A. Notice of Network Changes
The Parties agree to provide each other with reasonable notice of
changes in information necessary for the execution of services
listed in this Agreement.
B. Billing and Payment of Rates and Charges
SWBT shall include all maintenance of service charges,
time-sensitive installation and/or repair charges and monthly
flat-rate repair rates per the Option selected, on the monthly
consolidated bill rendered to LSP (hereinafter "invoice"). NOTE: For
multiline accounts, repair rates are charged per line as well as per
jack on those lines designated by LSP to be covered by the "Selected
Account' Option as purchased by LSP for resale,
<PAGE> 47
and detailed on Appendix I. Such rates shall not be subject to
adjustment for trouble isolated to and repaired in SWBT's
facilities.
LSP shall pay all such charges due and owing within 30 days of
invoice.
LSP billing inquiries and/or claims of overbilling by SWBT shall be
referred to SWBT for investigation within six (6) months of the
charge(s) appearance on the invoice to LSP. After six (6) months of
such appearance on the invoice, all billed charges shall be deemed
to be correct.
If the Parties determine that LSP was billed incorrectly for
services rendered pursuant to this Agreement, a billing adjustment
shall be calculated. If a refund is due, an adjustment shall be made
for the overcharges. If an overcharge is adjusted within three
billing cycles of the bill in error, interest will not be
applicable. If the overcharge is not adjusted within three billing
cycles, interest on the amount will be credited at the applicable
rate from SWBT's General Exchange Tariff.
C. Notice of Price Changes
Charges listed on Appendix I shall remain in effect throughout the
initial term of this Agreement as defined in Section XIV. Term. SWBT
may increase such WireWorx(SM) Inside Wire Repair charges by
providing written notice of the increase to LSP at least 120 days
prior to the Agreement expiration date, also defined in Section XIV.
Term. LSP shall provide written response to SWBT at least 60 days
prior to said expiration date of either: a.) acceptance of the
increase(s) and continuation of the Agreement, or b.) refusal of the
increase(s) and the intent to renegotiate or terminate the Agreement
as defined in Section XIV. Term.
D. Termination of Service for Nonpayment
Upon nonpayment of any inside wire installation/repair sum due, or
upon violation of any conditions governing the furnishing of these
services, SWBT may give notice, without incurring any liability,
that SWBT will discontinue furnishing service under this Agreement
("termination"). Proper notice shall consist of notice sent by
certified mail, return receipt requested, at least 30 days prior to
the stated date of termination; notice is complete upon mailing. At
its option, SWBT may net amounts owed by LSP against funds which
otherwise might be due LSP.
Termination hereunder shall not relieve LSP of its obligation to pay
for any services performed by SWBT up to and including the date of
termination.
<PAGE> 48
VI. FORCE MAJEURE
SWBT shall not be responsible for delays or failures in performance
resulting from acts or occurrences beyond SWBT's reasonable control,
regardless of whether such delays or failures in performance were foreseen
or foreseeable as of the date of this Agreement, including, without
limitation: fire, explosion, power failure, acts of God, war, revolution,
civil commotion, or acts of public enemies; any law, order, regulation,
ordinance or requirement of any government or legal body; or labor unrest,
including, without limitation, strikes, slowdowns, picketing or boycotts;
or delays caused by LSP or by other service or equipment vendors; or any
other circumstances beyond SWBT's reasonable control. In such event, SWBT
shall, upon giving prompt notice to LSP, be excused from such performance
on a day-to-day basis to the extent of such interference (and LSP shall
likewise be excused from performance of its obligations on a day-for-day
basis to the extent its obligations relate to the performance so
interfered with). SWBT shall use its best efforts to avoid or remove the
cause of non-performance and both Parties shall proceed to perform with
dispatch once the causes are removed or cease.
VII. LIMITATION OF LIABILITY
With respect to any claim or suit for damages arising out of mistakes,
omissions, defects in furnishing service under this Agreement, the
liability of SWBT, if any, shall not exceed an amount equivalent to the
proportionate monthly price listed in Appendix I for the period of that
particular service under this Agreement during which such mistake,
omission, defect in transmission, interruption, failures, delay or error
occurs and continues.
Neither Party shall be responsible to the other for any indirect, special,
consequential or punitive damages, whether sounding in Agreement or tort.
SWBT shall have no liability to the end users of LSP for claims arising
from the provision of WireWorx(sm) to LSP's end users, including but not
limited to claims related to the marketing or sales of its services
provided hereunder, delayed restoral or nonrestoral of service, quality of
service or any resulting billing or any other type of dispute between LSP
and its end user. LSP agrees to indemnify, defend, and hold SWBT harmless
from and against any and all claims, demands, costs, damages, liabilities,
and expenses (including reasonable attorney fees) arising from any claim
or action initiated by LSP's end user against SWBT for services rendered
under this Agreement.
VIII. NONDISCLOSURE
LSP and SWBT anticipate and recognize that they will come into possession
of, technical or business information or data about the Parties' or their
end users as a result of this Agreement which will be considered
confidential by SWBT. The
<PAGE> 49
Parties agree (1) to treat all such information as strictly confidential
and (2) to use such information only for purposes of performance under
this Agreement. The Parties agree not to disclose confidential information
of the other Party or its end users to any person without first securing
the written consent of such Party. The foregoing shall not apply to
information which is in the public domain.
If a court or governmental agency orders or a third-party requests a Party
to disclose or to provide any data or information covered by this Section,
that Party will immediately inform the other Party of the order or request
before such data is provided and will inform the other Party both by
telephone and certified mail. Notification and consent requirements
described above are not applicable in cases where a court order requires
the production of toll billing records of an individual residence or
business end user customer.
This section will not preclude the disclosure by the Parties of
information or data described in this Section to consultants, agents, or
attorneys representing the respective Parties, or the Office of the Public
Counsel for the State, or appropriate State Commissions or staffs, or FCC
Staff provided that these third-parties are bound by the same or
comparable confidentiality requirements as the Parties to this Agreement.
The provisions of this Section will remain in effect notwithstanding the
termination of this Agreement, unless agreed to in writing by both
Parties.
IX. PUBLICITY
The Parties agree not to use in any advertising or sales promotion, press
releases or other publicity matters any endorsements, direct or indirect
quotes, or pictures implying endorsement by the other Party or any of its
employees without such Party's prior written approval. The Parties will
submit to each other for written approval, prior to publication, all
publicity matters that mention or display one another's name and/or marks
or contain language from which a connection to said name and/or marks may
be inferred or implied.
X. ASSIGNMENT
LSP may not assign, subcontract, or otherwise transfer its rights or
obligations under this Agreement except under such terms and conditions as
are mutually acceptable to SWBT and with SWBT's prior written consent,
which consent shall not be unreasonably withheld.
<PAGE> 50
XI. NOTICES
In an event any notices are required to be sent under the terms of this
Agreement, they shall be sent by registered mail, return receipt requested
to:
To SWBT: To LSP:
SWBT Valu-Line of Kansas, Inc.
Attn: Debbie Watson Attn: Rick Tidwell
One Bell Plaza, Rm 523.08 1420 C of E Drive
Dallas, TX 75202 Emporia, KS 66801
XII. THIRD PARTY BENEFICIARIES
This Agreement shall not provide any non-party with any remedy, claim,
cause of action or other right.
XIII. TAXES
LSP shall be responsible for all federal, state or local, sales, use,
excise or gross receipts taxes or fees imposed on or with respect to the
inside wire installation/repair services provided under this Agreement
including those taxes and fees, the incidence of which is imposed on SWBT.
LSP shall reimburse SWBT for the amount of any such taxes or fees which
SWBT is required to pay or collect.
XIV. TERM
SWBT and LSP agree to the terms and conditions defined in this Agreement
for a term of one (1) year, and thereafter the Agreement shall continue in
force and effect unless and until terminated as provided herein. Either
Party may, at any time, terminate this Agreement by providing written
notice of termination to the other Party, such written notice to be
provided at least 60 days in advance of the date of termination. In the
event of such termination as described herein, this Agreement shall
continue without interruption until the end of the 60 day period or a new
Agreement becomes effective between the parties. By mutual agreement, SWBT
and LSP may amend this Agreement to modify its term.
XV. WAIVER
The failure of either Party to enforce or insist that the other Party
comply with the terms or conditions of this Agreement, or the waiver by
either Party in a particular instance of any of the terms or conditions of
this Agreement, shall not be construed as a general waiver or
relinquishment of the terms and conditions, but this Agreement shall be
and remain at all times, in full force and effect, unless terminated or
amended as provided for herein.
<PAGE> 51
XVI. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR
INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED
HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH REGARD TO THE
CORRECTNESS OF DATA OR INFORMATION SUPPLIED BY LSP WHEN THIS DATA OR
INFORMATION IS ACCESSED AND USED BY A THIRD PARTY.
XVII. EFFECTIVE DATE
The Parties shall effectuate all the terms and conditions of this
Agreement ten (10) business days after both Parties' final authorizing
signatures have been affixed.
XVIII. RELATIONSHIP OF THE PARTIES
This Agreement shall not establish, be interpreted as establishing, or be
used by either Party to establish or to represent their relationship as
any form of agency, partnership or joint venture. Neither Party shall have
any authority to bind the other or to act as an agent for the other unless
written authority, separate from this Agreement, is provided. Nothing in
the Agreement shall be construed as providing for the sharing of profits
or losses arising out of the efforts of either or both of the Parties.
Nothing herein shall be construed as making either Party responsible or
liable for the obligations and undertakings of the other Party.
<PAGE> 52
XIX. COMPLETE TERMS
LSP hereby chooses the WireWorx(sm) Option defined as: 'Every
Account'/'Selected Account' (circle one) with the appropriate rates as
detailed in Appendix I attached hereto. This Agreement together with its
Appendices constitutes the entire Agreement for inside wire installation
and repair services between the Parties and supersedes all prior
discussions, representations or oral understandings pursuant exclusively
to such services, reached between the Parties.
Neither Party shall be bound by any amendment, modification or additional
terms unless it is reduced to writing signed by an authorized
representative of the Party sought to be bound.
If this Agreement is acceptable to LSP and SWBT, both Parties will sign in
the space provided below. This Agreement shall not bind LSP and SWBT until
executed by both parties.
/s/ Rick Tidwell /s/ ILLEGIBLE
---------------------------------- ----------------------------------
(Name Typed) Rick Tidwell (Name Typed) Stephen M. Carter
(Title) President (Title) Vice President-General Manager
(Title) President (Special Markets)
Valu-Line of Kansas Inc. Southwestern Bell Telephone Company
3-3-97 3-12-97
------------------ ------------------
DATE DATE
<PAGE> 53
APPENDIX I
WireWorx(sm) INSIDE WIRE REPAIR CHARGES
OPTION: EVERY ACCOUNT
Billed Monthly per Basic Resold Line
RESIDENCE
WMW $ 2.75
BUSINESS
WMW $ 3.00
MULTILINE
Billed Monthly per Multi-Resold Line and per Station Jack
(CPE Termination)
LINE - WMDLX $ 2.50
STATION - WMDJX $ .50
OPTION: SELECTED ACCOUNT
Billed Monthly per Basic Resold Line Designated
NOTE: All lines for each specific end user account selected must be so
designated.
RESIDENCE
WMWLS $ 3.15
BUSINESS
WMWLS $ 3.50
MULTILINE
Billed Monthly per Multi-Resold Line and per Station Jack
(CPE Termination)
LINE - WMDJS $ 3.00
STATION - WMTDJS $ .60
<PAGE> 54
APPENDIX II
MAINTENANCE OF SERVICE CHARGES
Arkansas 100% of retail
Kansas 100% of retail
Missouri 100% of retail
Oklahoma 100% of retail
Texas 100% of retail
<PAGE> 55
APPENDIX III
TIME SENSITIVE JACKS/INSIDE WIRE
INSTALLATION/REPAIR CHARGES
RESIDENCE First 1/2 hr. Ea. adl. 1/4 hr.
--------- ------------- ----------------
State-by-State 100% of retail 100% of retail
BUSINESS First 1/2 hr. Ea. adl. 1/4 hr.
-------- ------------- ----------------
State-by-State 100% of retail 100% of retail
NOTE: Installation charges shall be billed at 100% of retail rates as structured
state-by-state. Any changes to rates and/or rate structure shall flow through to
LSP effective with the change to SWBT's retail customers.
16
<PAGE> 56
XIII. TAXES 11
XIV. TERM 11
XV. WAIVER 11
XVI. DISCLAIMER OF WARRANTIES 12
XVII. EFFECTIVE DATE 12
XVIII. RELATIONSHIP OF THE PARTIES 12
XIX. COMPLETE TERMS 13
APPENDIX I - WireWorx(sm) Inside Wire Repair Charges 14
APPENDIX II - Maintenance of Service Charges 15
APPENDIX III - Time Sensitive Jacks/Inside Wire
Installation/Repair Charges 16
2
<PAGE> 57
WireWorx(sm) AGREEMENT
This Agreement is between Valu-Line of Kansas (hereinafter referred to as
"LSP") and Southwestern Bell Telephone Company ("SWBT") (collectively, "the
Parties") entered into this ______ day of __________, 1997
WHEREAS, SWBT offers a service known as WireWorx(sm) for the installation
and repair of simple inside wire and /or jacks to Local Service Providers; and
LSP desires to obtain WireWorx(sm) from SWBT;
It is therefore agreed in consideration of the mutual promises contained
herein that:
I. DEFINITIONS
As used in this Agreement, the following definitions shall apply:
Customer Premises Equipment (CPE) - Equipment owned by an end user, such
as a telephone set, that can be connected to the telephone network.
Demarcation Point/Network Interface (NI) - The point of demarcation and/or
interconnection between "telephone company communications facilities" and
"wiring at subscriber premises." The terms demarcation point and network
interface (NI) are used interchangeably and mean the same thing.
Inside Wire (IW) - End user premises wiring beyond the established
demarcation point or network interface.
Inside Wire Repair Charge - The recurring monthly price listed in Appendix
I of this Agreement that SWBT will charge LSP for the WireWorx(sm) Option
chosen.
Maintenance of Service Charge (MSC) - The price for dispatching a SWBT
technician to an end user's premises for the purpose of isolating trouble
reported by LSP. It is charged to LSP on each dispatch wherein trouble is
isolated to the end user side of the demarcation point/NI and the affected line
is NOT designated as covered by WireWorx(sm) or the trouble is isolated to end
user's CPE (See Appendix II).
Multi-line Service - An end user resold-line account wherein there are two
(2) or more non-designed lines terminating in key equipment. This Agreement
covers repairs of inside wire and jacks from the last common termination point
up to and including the jack.
Off-Premises Extension - An extension of the basic line to a premises
separated from the primary service location by any public roadway or
thoroughfare.
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<PAGE> 58
Resold Line - A telephone line purchased by LSP from SWBT at wholesale
rates and resold to LSPs end users.
Riser Cable - Copper conductors, typically within a cable sheath, that are
placed exclusively within or between multi-unit buildings from the an entrance
location of a building (typically in the basement or lower floor equipment
closet) to designated equipment space or terminal space within such building.
Time Sensitive Installation Charge - The time sensitive price SWBT charges
for each service order for jack/inside wire installation completed by a SWBT
technician on a resold line, either residence, business or multi-line (See
Appendix III).
Time Sensitive Repair Charge - The time sensitive price SWBT charges for
each repair trip completed by a SWBT technician on a resold line, either
residence, business or multi-line, that is NOT designated as covered by
WireWorx(sm) (See Appendix III).
II. LSP COMPANY OBLIGATIONS
LSP agrees to purchase WireWorx(sm) for residence and single-line
business resold lines at the monthly WireWorx(sm) price listed in Appendix I
attached hereto for the Option chosen by LSP. LSP further agrees to purchase
WireWorx(sm) for multi-line business resold lines and jacks at the monthly price
listed in Appendix I for the Option chosen by LSP.
III. SWBT OBLIGATIONS
A. SWBT agrees to diagnose, isolate trouble and repair the inside wiring
and jacks of LSP's end user at no charge to said end user. WireWorx(sm)
however, does NOT cover:
1. Charges for wire repair due to natural disasters such as flood
and earthquake, riots, acts of war, gross negligence, willful
damage and/or vandalism.
2. Repairs to wire that does not meet SWB's installation
practices or technical standards as provided under separate
cover.
3 Repair to wire provided and maintained by military personnel.
(Texas Only)
4. Repair and/or replacement of CPE. NOTE: If the trouble is
determined to be in the end user's CPE and NOT in the
facilities up to and including the jacks, a Maintenance of
Service Charge (MSC) equal to the retail rate in the
appropriate state, will be billed to LSP.
5 Repairs to house or riser cable, or cable between buildings.
4
<PAGE> 59
6. Repairs to designated designed services:
a. Trunks
b. Access services
c. Foreign Exchange service
d. WATS
e. Private Line services, Analog & Digital
f. Foreign Serving Office service
g. Off-Premises Extensions
B. SWBT shall not be obligated by this Agreement to provide technicians,
either individual or crews, exclusively dedicated to the performance of
services for LSP.
C. SWBT shall not be obligated by this Agreement to provide LSP with
branding of any kind including but not limited so, technician apparel,
vehicles, forms; nor shall the SWBT technician carry and provide to LSP's
end users, LSP-branded business cards or other printed materials.
IV. OPERATIONAL PROCEDURES
A. Repair Referrals to SWBT
LSP shall be responsible for calling its assigned SWBT trouble reporting
center with each repair referral. The referral shall include:
1. The end user's telephone number;
2. A detailed description of the trouble reported by the end
user;
3. A contact name and telephone number (if different from 1.
above) for the end user.
4. LSP representative name and telephone number.
SWBT shall give the next available repair commitment to LSP based upon
whether the trouble is an out-of-service or service-affecting trouble
condition.
B. Pro-Referral Repair Screening
Prior to referring a trouble report to SWBT, LSP shall have its end user
perform the tests described in the SWBT printed materials provided under
separate cover, to determine if the trouble is with the end user's CPE.
5
<PAGE> 60
C. SWBT Repair Report Handling
When SWBT is informed by LSP of trouble on one of its end user's lines, a
SWBT technician will be dispatched to repair the end user's trouble. If
the cause of trouble is isolated on the SWBT side of the demarcation
point/NI, SWBT will repair its own facilities or equipment. If the trouble
is isolated to the end user side of the demarcation point/NI and the line
has the appropriate 'Every Account' Option designation, the SWBT
technician shall:
1. Advise the end user that SWBT is under Agreement to repair or
restore service and will request the end user's consent to enter the
premises; and
2. Where consent is obtained, the SWBT technician shall repair the
trouble (if possible) and follow existing procedures for closing out a
trouble report.
If the trouble is isolated to the end user side of the demarcation
point/NI and the line does NOT have the appropriate WireWorx(sm)
designation per the 'Selected Account' Option, the SWBT technician shall:
1. Advise the end user that the trouble is on their side of the
demarcation point and prepare a Maintenance of Service Charge (MSC) for
billing to LSP, per Appendix II attached hereto; and
2. Then, repair the trouble (if possible) at Time Sensitive Repair
charges, billed to LSP, per Appendix III attached hereto.
Whenever a SWBT technician is dispatched to a LSP end user's premises to
perform work via a repair referral or a service order (See E. below) from
LSP, and if the end user is not present or refuses permission to enter its
premises, a No Access condition shall be deemed to exist.
For No Access conditions, the SWBT technician shall complete an agreed
upon No Access form and leave it at the end user's premises. The form
shall advise the end user to contact their local service provider to
reschedule an appointment.
D. Jacks/Inside Wire Installation Requests Received Direct from End Users
When a LSP end user requests jack/wiring installation directly from a SWBT
technician while the technician is at the end user's premises performing
repair functions, the end user will be referred to LSP to place an order
for the requested services. The service order will be passed from LSP to
SWBT using established service order procedures. Due dates will be
negotiated using established intervals and charges will be billed to LSP
per the rate schedule in Appendix III attached hereto.
6
<PAGE> 61
E. Jacks/Inside Wire Installation Requests via Service Order
LSP shall forward their end users' requests for installation of jacks
and/or inside wire to SWBT via established service order procedures. Due
dates will be determined using established intervals and time sensitive
charges will be billed to LSP per the rate schedule in Appendix III
attached hereto.
F. Coordinated Repair Calls
The Parties shall employ the following procedures for handling misdirected
repair calls received from the other Party's end users:
1. The Parties shall inform their respective end users of the
correct telephone numbers to call to access their respective
repair bureaus.
2. To the extent the correct provider can be determined,
misdirected repair calls shall be referred to the appropriate
Party in a courteous manner, at no charge. The Party receiving
a misdirected repair call shall provide the end user with the
correct contact telephone number. In responding to repair
calls, neither Party shall make disparaging remarks about the
other Party, nor shall repair calls be used as the basis for
internal referrals, to solicit end users or to market
services. Either Party may respond with accurate information
in answering end user questions.
3. The Parties shall provide their respective repair contact
numbers to one another.
V. ADDITIONAL RESPONSIBILITIES OF THE PARTIES
A. Notice of Network Changes
The Parties agree to provide each other with reasonable notice of
changes in information necessary for the execution of services
listed in this Agreement.
B. Billing and Payment of Rates and Charges
SWBT shall include all maintenance of service charges,
time-sensitive installation and/or repair charges and monthly
flat-rate repair rates per the Option selected, on the monthly
consolidated bill rendered to LSP (hereinafter "invoice"). NOTE: For
multiline accounts, repair rates are charged per line as well as per
jack on those lines designated by LSP to be covered by the 'Selected
Account' Option as purchased by LSP for resale,
7
<PAGE> 62
and detailed on Appendix I. Such rates shall not be subject to
adjustment for trouble isolated to and repaired in SWBT's
facilities.
LSP shall pay all such charges due and owing within 30 days of
invoice.
LSP billing inquiries and/or claims of overbilling by SWBT shall be
referred to SWBT for investigation within six (6) months of the
charge(s) appearance on the invoice to LSP. After six (6) months of
such appearance on the invoice, all billed charges shall be deemed
to be correct.
If the Parties determine that LSP was billed incorrectly for
services rendered pursuant to this Agreement, a billing adjustment
shall be calculated. If a refund is due, an adjustment shall be made
for the overcharges. If an overcharge is adjusted within three
billing cycles of the bill in error, interest will not be
applicable. If the overcharge is not adjusted within three billing
cycles, interest on the amount will be credited at the applicable
rate from SWBT's General Exchange Tariff.
C. Notice of Price Changes
Charges listed on Appendix I shall remain in effect throughout the
initial term of this Agreement as defined in Section XIV. Term. SWBT
may increase such WireWorx(sm) Inside Wire Repair charges by
providing written notice of the increase to LSP at least 120 days
prior to the Agreement expiration date, also defined in Section XIV.
Term. LSP shall provide written response to SWBT at least 60 days
prior to said expiration daze of either a.) acceptance of the
increase(s) and continuation of the Agreement, or b.) refusal of the
increase(s) and the intent to renegotiate or terminate the Agreement
as defined in Section XIV. Term.
D. Termination of Service for Nonpayment
Upon nonpayment of any inside wire installation/repair sum due, or
upon violation of any conditions governing the furnishing of these
services, SWBT may give notice, without incurring any liability,
that SWBT will discontinue furnishing service under this Agreement
("termination"). Proper notice shall consist of notice sent by
certified mail, return receipt requested, at least 30 days prior to
the stated date of termination; notice is complete upon mailing. At
its option, SWBT may net amounts owed by LSP against funds which
otherwise might be due LSP.
Termination hereunder shall not relieve LSP of its obligation to pay
for any services performed by SWBT up to and including the date of
termination.
8
<PAGE> 63
VI. FORCE MAJEURE
SWBT shall not be responsible for delays or failures in performance
resulting from acts or occurrences beyond SWBT's reasonable control,
regardless of whether such delays or failures in performance were foreseen
or foreseeable as of the date of this Agreement, including, without
limitation: fire, explosion, power failure, acts of God, war, revolution,
civil commotion, or acts of public enemies; any law, order, regulation,
ordinance or requirement of any government or legal body; or labor unrest,
including, without limitation, strikes, slowdowns, picketing or boycotts;
or delays caused by LSP or by other service or equipment vendors; or any
other circumstances beyond SWBT's reasonable control. In such event, SWBT
shall, upon giving prompt notice to LSP, be excused from such performance
on a day-to-day basis to the extent of such interference (and LSP shall
likewise be excused from performance of its obligations on a day-for-day
basis to the extent its obligations relate to the performance so
interfered with). SWBT shall use its best efforts to avoid or remove the
cause of non-performance and both Parties shall proceed to perform with
dispatch once the causes are removed or cease.
VII. LIMITATION OF LIABILITY
With respect to any claim or suit for damages arising out of mistakes,
omissions, defects in finishing service under this Agreement, the
liability of SWBT, if any, shall not exceed an amount equivalent to the
proportionate monthly price listed in Appendix I for the period of that
particular service under this Agreement during which such mistake,
omission, defect in transmission, interruption, failures, delay or error
occurs and continues.
Neither Party shall be responsible to the other for any indirect, special,
consequential or punitive damages, whether sounding in Agreement or tort.
SWBT shall have no liability to the end users of LSP for claims arising
from the provision of WireWorx(sm) to LSP's end users, including but not
limited to claims related to the marketing or sales of its services
provided hereunder, delayed restoral or nonrestoral of service, quality of
service or any resulting billing or any other type of dispute between LSP
and its end user. LSP agrees to indemnify, defend, and hold SWBT harmless
from and against any and all claims, demands, costs, damages, liabilities,
and expenses (including reasonable attorney fees) arising from any claim
or action initiated by LSP's end user against SWBT for services rendered
under this Agreement.
VIII. NONDISCLOSURE
LSP and SWBT anticipate and recognize that they will come into possession
of, technical or business information or data about the Parties' or their
end users as a result of this Agreement which will be considered
confidential by SWBT. The
9
<PAGE> 64
Parties agree (1) to treat all such information as strictly confidential
and (2) to use such information only for purposes of performance under
this Agreement. The Parties agree not to disclose confidential information
of the other Party or its end users to any person without first securing
the written consent of such Party. The foregoing shall not apply to
information which is in the public domain.
If a court or governmental agency orders or a third-party requests a Party
to disclose or to provide any data or information covered by this Section,
that Party will immediately inform the other Party of the order or request
before such data is provided and will inform the other Party both by
telephone and certified mail. Notification and consent requirements
described above are not applicable in cases where a court order requires
the production of toll billing records of an individual residence or
business end user customer.
This section will not preclude the disclosure by the Parties of
information or data described in this Section to consultants, agents, or
attorneys representing the respective Parties, or the Office of the Public
Counsel for the State, or appropriate State Commissions or staffs, or FCC
Staff, provided that these third-parties are bound by the same or
comparable confidentiality requirements as the Parties to this Agreement.
The provisions of this Section will remain in effect notwithstanding the
termination of this Agreement, unless agreed to in writing by both
Parties.
IX. PUBLICITY
The Parties agree not to use in any advertising or sales promotion, press
releases or other publicity matters any endorsements, direct or indirect
quotes, or pictures implying endorsement by the other Party or any of its
employees without such Party's prior written approval. The Parties will
submit to each other for written approval, prior to publication, all
publicity matters that mention or display one another's name and/or marks
or contain language from which a connection to said name and/or marks may
be inferred or implied.
X. ASSIGNMENT
LSP may not assign, subcontract, or otherwise transfer its rights or
obligations under this Agreement except under such terms and conditions as
are mutually acceptable to SWBT and with SWBT's prior written consent,
which consent shall not be unreasonably withheld.
10
<PAGE> 65
XI. NOTICES
In an event any notices are required to be sent under the terms of this
Agreement, they shall be sent by registered mail, return receipt requested
to:
To SWBT: To LSP:
SWBT Valu-Line of Kansas, Inc.
Attn: Debbie Watson Attn: Rick Tidwell
One Bell Plaza, Rm 523.08 1420 C of E Drive
Dallas, TX 75202 Emporia, KS 66801
XII. THIRD PARTY BENEFICIARIES
This Agreement shall not provide any non-party with any remedy, claim,
cause of action or other right.
XIII. TAXES
LSP shall be responsible for all federal, state or local, sales, use
excise or gross receipts taxes or fees imposed on or with respect to the
inside wire installation/repair services provided under this Agreement
including those taxes and fees, the incidence of which is imposed on SWBT.
LSP shall reimburse SWBT for the amount of any such taxes or fees which
SWBT is required to pay or collect.
XIV. TERM
SWBT and LSP agree to the terms and conditions defined in this Agreement
for a term of one (1) year, and thereafter the Agreement shall continue in
force and effect unless and until terminated as provided herein. Either
Party may, at any time, terminate this Agreement by providing written
notice of termination to the other Party, such written notice to be
provided at least 60 days in advance of the date of termination. In the
event of such termination as described herein, this Agreement shall
continue without interruption until the end of the 60 day period or a new
Agreement becomes effective between the parties. By mutual agreement, SWBT
and LSP may amend this Agreement to modify its term.
XV. WAIVER
The failure of either Party to enforce or insist that the other Party
comply with the terms or conditions of this Agreement, or the waiver by
either Party in a particular instance of any of the terms or conditions of
this Agreement, shall not be construed as a general waiver or
relinquishment of the terms and conditions, but this Agreement shall be
and remain at all times, in full force and effect, unless terminated or
amended as provided for herein.
11
<PAGE> 66
XVI. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF DATA OR INFORMATION SUPPLIED BY LSP WHEN
THIS DATA OR INFORMATION IS ACCESSED AND USED BY A THIRD PARTY.
XVII. EFFECTIVE DATE
The Parties shall effectuate all the terms and conditions of this
Agreement ten (10) business days after both Parties' final authorizing
signatures have been affixed.
XVIII. RELATIONSHIP OF THE PARTIES
This Agreement shall not establish, be interpreted as establishing, or be
used by either Party to establish or to represent their relationship as
any form of agency, partnership or joint venture. Neither Party shall
have any authority to bind the other or to act as an agent for the other
unless written authority, separate from this Agreement, is provided.
Nothing in the Agreement shall be construed as providing for the sharing
of profits or losses arising out of the efforts of either or both of the
Parties. Nothing herein shall be construed as making either Party
responsible or liable for the obligations and undertakings of the other
Party.
12
<PAGE> 67
XIX. COMPLETE TERMS
LSP hereby chooses the WireWorx(sm) Option defined as: 'Every
Account'/'Selected Account' (circle one) with the appropriate rates as
detailed in Appendix I attached hereto. This Agreement together with its
Appendices constitutes the entire Agreement for inside wire installation
and repair services between the Parties and supersedes all prior
discussions, representations or oral understandings pursuant exclusively
to such services, reached between the Parties.
Neither Party shall be bound by any amendment, modification or additional
terms unless it is reduced to writing signed by an authorized
representative of the Party sought to be bound.
If this Agreement is acceptable to LSP and SWBT, both Parties will sign in
the space provided below. This Agreement shall not bind LSP and SWBT until
executed by both parties.
---------------------------------- ----------------------------------
(Name Typed) (Name Typed) Stephen M. Carter
---------------------- (Title) Vice President-General Manager
(Title) (Special Markets)
--------------------------- Southwestern Bell Telephone Company
----------------------------------
------------------ ------------------
DATE DATE
13
<PAGE> 68
APPENDIX I
WireWorx(sm) INSIDE WIRE REPAIR CHARGES
OPTION: EVERY ACCOUNT
Billed Monthly per Basic Resold Line
RESIDENCE
WMW $ 2.75
BUSINESS
WMW $ 3.00
MULTILINE
Billed Monthly per Multi-Resold Line and per Station Jack
(CPE Termination)
LINE - WMDLX $ 2.50
STATION - WMDJX $ .50
OPTION: SELECTED ACCOUNT
Billed Monthly per Basic Resold Line Designated
NOTE: All lines for each specific end user account selected must be so
designated.
RESIDENCE
WMWLS $ 3.15
BUSINESS
WMWLS $ 3.50
MULTILINE
Billed Monthly per Multi-Resold Line and per Station Jack
(CPE Termination)
LINE - WMDJS $ 3.00
STATION - WMTDJS $ .60
14
<PAGE> 69
APPENDIX II
MAINTENANCE OF SERVICE CHARGES
Arkansas 100% of retail
Kansas 100% of retail
Missouri 100% of retail
Oklahoma 100% of retail
Texas 100% of retail
15
<PAGE> 70
APPENDIX III
TIME SENSITIVE JACKS/INSIDE WIRE
INSTALLATION/REPAIR CHARGES
RESIDENCE First 1/2 hr. Ea. adl. 1/4 hr.
--------- ------------- ----------------
State-by-State 100% of retail 100% of retail
BUSINESS First 1/2 hr. Ea. adl. 1/4 hr.
-------- ------------- ----------------
State-by-State 100% of retail 100% of retail
NOTE: Installation charges shall be billed at 100% of retail rates as structured
state-by-state. Any changes to rates and/or rate structure shall flow through to
LSP effective with the change to SWBT's retail customers.
16
<PAGE> 71
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Birch Telecom, Inc.
We have audited the consolidated financial statements of Birch Telecom,
Inc. (the Company) as of December 31, 1997 and the year then ended and have
issued our report thereon dated April 24, 1998. Our audits also included the
financial statement schedule included in Item 16(b) of this Registration
Statement. This schedule is the responsibility of the management of the Company.
Our responsibility is to express an opinion based on our audit.
In our opinion, the financial statement schedule referred to above,
when considered in relation to the basic financial statements taken as whole,
presents fairly in all material respects the information set forth therein.
Ernst & Young LLP
Kansas City, Missouri
April 24, 1998
BIRCH TELECOM, INC.
SCHEDULE II - CONSOLIDATED VALUATION AND QUALIFYING ACCOUNTS
YEAR ENDED DECEMBER 31, 1997
(IN THOUSANDS)
Additions
Balance Charged Balance
beginning Charged to other Other end of
of year to income accounts deductions year
1997
Valuation allowance-deferred income tax assets $ - $ 681 $ - $ - $ 681
<PAGE> 72
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Valu-Line Companies, Inc.
We have audited the consolidated financial statements of Valu-Line
Companies, Inc (the Predecessor) as of December 31, 1997 and 1996 and three
years ended December 31, 1997 and have issued our reports thereon dated May 15,
1998. Our audits also included the financial statement schedule included in Item
16(b) of this Registration Statement. This schedule is the responsibility of
the management of the Predecessor. Our responsibility is to express an opinion
based on our audits.
In our opinion, the financial statement cchedule referred to above,
when considered in relation to the basic financial statements taken as whole,
presents fairly in all material respects the information set forth therein.
Ernst & Young LLP
Kansas City, Missouri
May 15, 1998
VALU-LINE COMPANIES, INC.
SCHEDULE II - CONSOLIDATED VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1997, 1996, AND 1995
(IN THOUSANDS)
Additions
Balance Charged Balance
beginning Charged to other Other end of
of year to income accounts deductions year
(1)
1997
Allowance for doubtful accounts $ 70 $ 20 $ - $ 10 $ 80
1996
Allowance for doubtful accounts $ 105 $ 45 $ - $ 80 $ 70
1995
Allowance for doubtful accounts $ 35 $ 109 $ - $ 39 $ 105
(1) Accounts written off, net of recoveries.