license, either express or implied, with respect to any patent, copyright, trade name, trade mark, service mark, trade secret, or other proprietary interest or intellectual property, now or hereafter owned, controlled or licensable by either Party.
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The Principal Document is the joint work product of the representatives of the Parties. For convenience, the Principal Document has been drafted in final form by one of the Parties. Accordingly, in the event of ambiguities, no inferences shall be drawn against either Party solely on the basis of authorship of the Principal Document.
23.1.1 THE LIABILITY, IF ANY, OF SPRINT, SPRINT’S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS, OF SPRINT AND SPRINT’S AFFILIATES, TO BA, BA’S CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A SPRINT OFFERED SERVICE, OR FROM ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A SPRINT OFFERED SERVICE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH IN SPRINT’S TARIFFS.
23.2.1 TO THE EXTENT THE SPRINT TARIFFS APPLICABLE TO A SPRINT OFFERED SERVICE DO NOT CONTAIN A LAWFUL, ENFORCEABLE PROVISION WHICH LIMITS OR EXCLUDES THE LIABILITY OF SPRINT, SPRINT’S AFFILIATES, OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS, OF SPRINT OR SPRINT’S AFFILIATES, TO BA, BA’S CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A SPRINT OFFERED SERVICE, OR FROM ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A SPRINT OFFERED SERVICE, OR TO THE EXTENT A SPRINT OFFERED SERVICE IS NOT SUBJECT TO A SPRINT TARIFF, SECTION 23.2.2 SHALL APPLY.
23.2.2 THE LIABILITY, IF ANY, OF SPRINT, SPRINT’S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS, OF SPRINT AND SPRINT’S AFFILIATES, TO BA, BA’S CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A SPRINT OFFERED SERVICE, OR FROM ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A SPRINT OFFERED SERVICE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN EXCESS OF: (A) TWICE THE PROPORTIONATE CHARGE FOR THE SPRINT OFFERED SERVICE AFFECTED, DURING THE PERIOD OF THE FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE THE SPRINT OFFERED SERVICE, OR THE MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR
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DEFICIENCY, IN THE SPRINT OFFERED SERVICE; OR, (B) IF THERE IS NO CHARGE FOR THE SPRINT OFFERED SERVICE AFFECTED, FIVE HUNDRED DOLLARS ($500.00).
23.3.1 THE LIABILITY, IF ANY, OF BA, BA’S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS, OF BA AND BA’S AFFILIATES, TO SPRINT, SPRINT’S CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A BA OFFERED SERVICE, OR FROM ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A BA OFFERED SERVICE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH IN BA’S TARIFFS.
23.4.1 TO THE EXTENT THE BA TARIFFS APPLICABLE TO A BA OFFERED SERVICE DO NOT CONTAIN A LAWFUL, ENFORCEABLE PROVISION WHICH LIMITS OR EXCLUDES THE LIABILITY OF BA, BA’S AFFILIATES, OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS, OF BA OR BA’S AFFILIATES, TO SPRINT, SPRINT’S CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A BA OFFERED SERVICE, OR FROM ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A BA OFFERED SERVICE, OR TO THE EXTENT A BA OFFERED SERVICE IS NOT SUBJECT TO A BA TARIFF, SECTION 23.4.2 SHALL APPLY.
23.4.2 THE LIABILITY, IF ANY, OF BA, BA’S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS, OF BA AND BA’S AFFILIATES, TO SPRINT, SPRINT’S CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A BA OFFERED SERVICE, OR FROM ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A BA OFFERED SERVICE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN EXCESS OF: (A) TWICE THE PROPORTIONATE CHARGE FOR THE BA OFFERED SERVICE AFFECTED, DURING THE PERIOD OF THE FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE THE BA OFFERED SERVICE, OR THE MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN THE BA OFFERED SERVICE; OR, (B) IF THERE IS NO CHARGE FOR THE BA OFFERED SERVICE AFFECTED, FIVE HUNDRED DOLLARS ($500.00).
23.5 EXCEPT AS OTHERWISE STATED IN SECTION 23.7, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, THE OTHER PARTY’S CUSTOMERS, OR ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO,
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DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS, OR LOST PROFITS).
23.6 THE LIMITATIONS UPON AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS 23.1 THROUGH 23.5, ABOVE, SHALL APPLY REGARDLESS OF THE FORM OF CLAIM OR ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT (INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF THE PERSON CLAIMING LIMITATION OR EXCLUSION OF LIABILITY), AND REGARDLESS OF WHETHER THE PARTIES KNEW OF THE POSSIBILITY THAT SUCH DAMAGES COULD RESULT.
23.7 NOTHING CONTAINED IN SECTIONS 23.1 THROUGH 23.6 SHALL EXCLUDE OR LIMIT LIABILITY:
(a) FOR DAMAGES ARISING OUT OF OR RESULTING FROM WILLFUL OR INTENTIONAL MISCONDUCT;
(b) FOR DAMAGES ARISING OUT OF OR RESULTING FROM BODILY INJURY OR DEATH TO PERSONS, DAMAGE TO OR LOSS OF TANGIBLE REAL OR TANGIBLE PERSONAL PROPERTY, OR ENVIRONMENTAL HAZARDS;
(c) FOR A CLAIM FOR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE NAME, TRADE MARK, SERVICE MARK, OR OTHER INTELLECTUAL PROPERTY INTEREST;
(d) UNDER ANY OF SECTIONS 10, 20, 33, 38, 48.10 OR 48.11; OR
(e) UNDER ANY PROVISION OF THIS AGREEMENT (INCLUDING A TARIFF) THAT REQUIRES A PARTY TO INDEMNIFY, DEFEND AND/OR HOLD HARMLESS THE OTHER PARTY OR ANOTHER PERSON.
23.8 Except as may be specifically set forth in this Agreement: (a) each Party’s obligations under this Agreement shall extend only to the other Party; (b) a Party shall have no liability under this Agreement to Customers of the other Party or to any other third party; and, (c) nothing in this Agreement shall be deemed to create a third party beneficiary relationship between a Party and the other Party’s Customers or any other third party.
Except as otherwise expressly provided in this Agreement, each of the remedies provided under this Agreement is cumulative and is in addition to any other remedies that may be available under this Agreement or at law or in equity.
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Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in hard-copy writing (unless otherwise specifically provided herein) and shall be sufficiently given if delivered personally or by prepaid overnight express service to the following (unless otherwise specifically required by this Agreement to be delivered to another representative or point of contact):
| |
| If to Sprint: |
| |
| Director of Local Market Development |
| Sprint Communications Company L.P. |
| 8140 Ward Parkway |
| Kansas City, Missouri, 64114 |
| |
| with a copy to: |
| |
| Director of State Regulatory—East |
| Sprint Communications Company L.P. |
| 1850 M Street, N.W., Suite 1110 |
| Washington, DC 20036 |
| |
| If to BA: |
| |
| Bell Atlantic Network Services, Inc. |
| Attention: Director, Interconnection Initiatives |
| 1320 North Courthouse Road, 2nd Floor |
| Arlington, Virginia 22201 |
| |
| with a copy to: |
| |
| General Attorney, Carrier Services |
| Bell Atlantic Network Services, Inc. |
| 1320 North Courthouse Road, 8th Floor |
| Arlington, Virginia 22201 |
Either Party may unilaterally change its designated representative and/or address for the receipt of notices by giving seven (7) days prior written notice to the other Party in compliance with this Section 25.
Any notice or other communication shall be deemed given when received.
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26. | Option to Obtain Offered Services Under Other Agreements |
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26.1 If, at any time while this Agreement is in effect, either Party (“Third-Person Contracting Party”) enters into an agreement with a third-person operating within the State of New Jersey to provide any Network Interconnection, unbundled Network Element, or Telecommunications Service (including, but not limited to, any Network Interconnection, unbundled Network Element, or Telecommunications Service of the Third-Person Contracting Party that is an Offered Service under this Agreement), to the third-person, which agreement is subject to approval by the Commission pursuant to 47 U.S.C. § 252, the Third-Person Contracting Party shall make such agreement publicly available within ten (10) days after the date it is approved by the Commission under 47 U.S.C. § 252. BA shall give Sprint notice of Commission approval under 47 U.S.C. § 252 of any such agreement as to which BA is the Third-Person Contracting Party. Such notice by BA to Sprint shall be given quarterly, shall identify for each agreement the parties to the agreement and the date the agreement was approved by the Commission under 47 U.S.C. § 252, and may be provided in writing or electronically, including, but not limited to, by allowing Sprint to access a data base or Internet site containing the applicable information.
26.2 To the extent required by Applicable Law, the Third-Person Contracting Party, upon written request by the other Party, shall make available to the other Party any Network Interconnection, unbundled Network Element, or Telecommunications Service (including, but not limited to, any Network Interconnection, unbundled Network Element or Telecommunications Service of the Third-Person Contracting Party that is an Offered Service under this Agreement), offered by the Third-Person Contracting Party under the agreement with the third-person upon the same terms and conditions (including prices) provided in the agreement with the third-person, but only on a prospective basis. This Agreement shall thereafter be amended to prospectively incorporate the terms and conditions (including prices) from the third-person agreement applicable to the Network Interconnection, unbundled Network Element or Telecommunications Service, that the requesting Party has elected to purchase pursuant to the terms and conditions of the third-person agreement.
26.3 To the extent the exercise of the foregoing option requires a rearrangement of facilities by the Providing Party, the requesting Party shall be liable for the non-recurring charges associated therewith, as well as for any termination
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charges associated with the termination of existing facilities or Offered Services.
27.1 This Agreement applies only to “Offered Services”, as defined in this Agreement. To the extent that Offered Services subscribed to under this Agreement by a Purchasing Party are interconnected to or used with other services, facilities, equipment, software, or wiring, provided by the Providing Party or by other persons, such other services, facilities, equipment, software, or wiring, shall not be construed to be provided under this Agreement. Any Providing Party services, facilities, equipment, software, or wiring, to be used by the Purchasing Party which are not subscribed to by the Purchasing Party under this Agreement must be subscribed to by the Purchasing Party separately, pursuant to other written agreements (including, but not limited to, applicable Providing Party Tariffs).
27.2.1 Without in any way limiting Section 27.1 and without attempting to list all BA products and services that are not subject to this Agreement, the Parties agree that this Agreement does not apply to the following BA services and products: Bell Atlantic Answer Call, Bell Atlantic Answer Call Plus, Bell Atlantic Home Voice Mail, Bell Atlantic Home Voice Mail Plus, Bell Atlantic Basic Mailbox, Bell Atlantic Voice Mail, Bell Atlantic OptiMail Service, and other BA voice mail, fax mail, voice messaging, and fax messaging, services; Bell Atlantic Optional Wire Maintenance Plan; Bell Atlantic Guardian Enhanced Maintenance Service; Bell Atlantic Sentry I Enhanced Maintenance Service; Bell Atlantic Sentry II Enhanced Maintenance Service; Bell Atlantic Sentry III Enhanced Maintenance Service; customer premises equipment; Bell Atlantic Call 54 service; Bell Atlantic Telephone Directory bold listings; and, Bell Atlantic Telephone Directory advertisements.
27.2.2 If Sprint at any time believes that any of the BA services or products listed in Section 27.2.1 is a Telecommunications Service, Sprint may request that the Parties amend Section 27.2.1 to delete the reference to the service or product which Sprint believes is a Telecommunications Service. If BA disagrees with Sprint’s belief, Sprint may request the Commission or another governmental entity of appropriate jurisdiction to determine whether the service or product is a Telecommunications Service. If the service or product is determined by the Commission or other governmental entity of appropriate jurisdiction to be a Telecommunications Service, the
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Parties shall amend Section 27.2.1 to delete the reference to the service or product which the Commission or other governmental entity of appropriate jurisdiction has determined to be a Telecommunications Service.
27.3 Without in any way limiting Section 27.1 or Section 27.2, the Parties also agree that this Agreement does not apply to the installation, maintenance, repair, inspection, or use of any facilities, equipment, software, or wiring, located on the Purchasing Party Customer premises side of the Network Rate Demarcation Point applicable to the Purchasing Party and does not grant to the Purchasing Party a right to installation, maintenance, repair, inspection, or use, of any such facilities, equipment, software, or wiring. Installation, maintenance, repair, inspection, or use of facilities, equipment, software, or wiring, located on the Purchasing Party Customer premises side of the Network Rate Demarcation Point applicable to the Purchasing Party must be contracted for by the Purchasing Party separately, pursuant to other written agreements, at rates stated in such other written agreements.
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28. | Provision and Use of Offered Services |
28.1 A Party may fulfill its obligations under this Agreement itself or may cause an Affiliate of the Party to take the action necessary to fulfill the Party’s obligations; provided, that a Party’s use of an Affiliate to perform this Agreement shall not release the Party from any liability or duty to fulfill its obligations under this Agreement.
28.2 Except as otherwise expressly stated in this Agreement, including, but not limited to, in Section 15.1, each Party, at its own expense, shall be responsible for obtaining from governmental authorities, property owners, other Telecommunications Carriers, and any other persons or entities, all rights and privileges (including, but not limited to, rights of way, space and power), which are necessary for the Party to provide its Offered Services pursuant to this Agreement.
28.3 Except as otherwise provided in this Agreement, this Agreement does not prevent a Purchasing Party from using the Offered Services provided by a Providing Party pursuant to this Agreement in connection with other technically compatible Offered Services provided by the Providing Party pursuant to this Agreement or with any services provided by the Purchasing Party or a third party.
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Neither Party shall use the name of the other Party in connection with this Agreement in a written press release or written press statement except as permitted by Applicable Law.
Whenever any provision of this Agreement refers to a Technical Document, it will be deemed to be a reference to the version or edition of such Technical Document that is cited in this Agreement (or if no version or edition of such Technical Document is specifically cited in this Agreement, the version or edition of such Technical Document that is in effect on the Effective Date) and any subsequent version or edition (including, any amendments, supplements, addenda, or successors) of such Technical Document that the Parties agree in writing to adhere to, and, unless this Agreement provides otherwise, will include the version or edition of each document incorporated by reference in such a Technical Document that is cited in such a Technical Document (or if no version or edition of such document is specifically cited in the Technical Document, the version or edition of such document that was in effect on the date of issuance of the Technical Document) and any subsequent version or edition (including, any amendments, supplements, addenda, or successors) of such document that the Parties agree in writing to adhere to.
31.1 BA shall be responsible for obtaining and keeping in effect all Federal Communications Commission, Commission, franchise authority and other governmental approvals, that may be required in connection with the performance of its obligations under this Agreement.
31.2 Without in any way limiting Section 31.1, within thirty (30) days after the execution of this Agreement, the Agreement shall be submitted by the Parties to the Commission for approval by the Commission. Following such submission, the Agreement shall be submitted by BA to any other applicable governmental entity by which it must be approved for approval by that governmental entity.
31.3 Sprint shall be responsible for obtaining and keeping in effect all Federal Communications Commission, Commission, franchise authority and other governmental approvals, that may
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be required in connection with the performance of its obligations under this Agreement.
31.4 Sprint shall reasonably cooperate with BA in obtaining and maintaining any required governmental approvals for which BA is responsible, and BA shall reasonably cooperate with Sprint in obtaining and maintaining any required governmental approvals for which Sprint is responsible.
31.5 In the event that any legally binding legislative, regulatory, judicial or other legal action materially affects any material terms of this Agreement, or the ability of Sprint or BA to perform any material terms of this Agreement, Sprint or BA may, on thirty (30) days written notice (delivered not later than thirty (30) days following the date on which such action has become legally binding) require that such terms be renegotiated, and the Parties shall renegotiate in good faith such mutually acceptable new terms as may be required.
31.6 Except as otherwise provided in this Agreement, when this Agreement is filed with the Commission for approval, the Parties will request that the Commission (a) approve the Agreement and (b) refrain from taking any action to change, suspend or otherwise delay implementation of the Agreement.
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32. | Relationship of the Parties |
32.1 Each Party is an independent contractor, and has and hereby retains the right to exercise full control of and supervision over its own performance of its obligations under this Agreement.
32.2 Each Party retains full control over the employment, direction, compensation and discharge, of all of its employees, Agents and contractors, assisting in the performance of its obligations under this Agreement. Each Party will be solely responsible for all matters relating to payment of its employees, Agents and contractors, and payment of Social Security and other taxes in association with such employees, Agents and contractors, and withholding and remittance of taxes from such employees, Agents and contractors.
32.3 Nothing contained within this Agreement shall:
(a) make either Party the Agent, servant or employee, of the other Party;
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(b) grant either Party the authority to enter into a contract on behalf of, or otherwise legally bind, the other Party in any way;
(c) create a partnership, joint venture, or other similar relationship between the Parties; or
(d) grant to either Party a franchise, distributorship, or similar interest.
32.4 The relationship of the Parties under this Agreement is a non-exclusive relationship. Each Party shall have the right:
(a) to provide services to be provided by it under this Agreement to persons other than the other Party; and
(b) to purchase services which can be purchased by it under this Agreement from persons other than the other Party.
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33. | Selection of A Telephone Exchange Service Provider |
33.1 The Parties agree to apply the principles and procedures set forth in Section 64.1100 of the FCC Rules, 47 CFR § 64.1100, to the process for end-user selection of a Telephone Exchange Service provider; provided, that if the FCC or the Commission adopts rules governing the process for end-user selection of a Telephone Exchange Service provider, the Parties shall apply such rules rather than the principles and procedures set forth in § 64.1100.
33.2 If a Party (“Requesting Party”) who requests the other Party to change an end user’s Telecommunications Service (including, but not limited to, an end user’s selection of a Telephone Exchange Service provider) (a) in the event of a dispute over the end user’s choice of a Telephone Exchange Service provider, fails to provide the documentary evidence of the end user’s Telephone Exchange Service provider selection required by Applicable Law (or, in the absence of Applicable Law, by Section 64.1100) upon request, (b) has requested the change in the end user’s Telecommunications Service without having obtained authorization for such change from the end user pursuant to the principles and procedures set forth in Section 64.1100 or other applicable FCC or Commission rules, or (c) has mistakenly changed the end-user’s Telecommunications Service, the Requesting Party shall indemnify, defend and hold harmless the other Party for any resulting Claims. In addition, the Requesting Party shall be liable to the other Party for all charges that would be applicable to the end user for the initial change in the end user’s Telecommunications Service and any charges for restoring the end user’s Telecommunications Service to its end user authorized condition, including to the appropriate Telephone Exchange Service provider.
33.3 Except as otherwise required by Applicable Law, a Providing Party shall not require the Purchasing Party to produce a letter of authorization, disconnect order, or other writing, from the Purchasing Party’s Customer as a pre-condition to processing an Order from the Purchasing Party.
34.1 Each Party shall in providing an Offered Service to the other Party meet all of the quality and performance standards required by Applicable Law and this Agreement.
34.2 BA shall provide to Sprint the performance measurement reports listed in Attachment 12. Such reports shall be deemed
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to be Confidential Information of BA under Section 11, “Confidential Information”. Notwithstanding the preceding sentence and Section 11, the reports may be used and disclosed by Sprint for the purposes of enforcing Applicable Law and Sprint’s rights under Applicable Law and this Agreement (including, but not limited to, pursuant to Attachment 12, Section 1.3). In making any such disclosure, Sprint shall make reasonable efforts to preserve the confidentiality of the reports while they are in the possession of any person to whom they are disclosed, including, but not limited to, by requesting a governmental entity to whom the reports are disclosed to treat them as confidential.
34.3 In the event that any BA Resale Service or Sprint Resale Service is not installed or provided in accordance with the due dates specified in this Agreement, the Providing Party shall grant the Purchasing Party a credit equal to the credit that would be available for the Providing Party’s own end-user retail Customers, adjusted for any applicable wholesale discount.
35.1 If any term, condition or provision of this Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not invalidate the entire Agreement (unless such construction would be unreasonable), and the Agreement shall be construed as if it did not contain the invalid or unenforceable provision or provisions, and the rights and obligations of each Party construed and enforced accordingly.
35.2 In the event any invalid or unenforceable provision or provisions are essential elements of this Agreement and the invalidity of such provisions or provisions substantially impairs the rights or obligations of either Party, the provisions of Section 31.5 shall apply.
If any obligation under this Agreement is performed through a subcontractor, the subcontracting Party shall remain fully responsible for the performance of this Agreement in accordance with its terms, including any obligations it performs through the subcontractor. The subcontracting Party shall be solely responsible for payments due its subcontractors. Except as may be specifically set forth in this Agreement, no subcontractor
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shall be deemed a third party beneficiary for any purposes under this Agreement.
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37. | Survival of Obligations |
Any liabilities or obligations of a Party for acts or omissions occurring prior to the expiration, cancellation or termination of this Agreement, any obligation of a Party under any provision for indemnification or defense (including, but not limited to, any of Sections 10 and 20), under Section 11, “Confidential Information”, under Section 33.2, or under any provision for limitation of liability, and any obligation of a Party under any other provisions of this Agreement which, by their terms, are contemplated to survive (or to be performed after) expiration, cancellation or termination of this Agreement, shall survive expiration, cancellation or termination of this Agreement.
38.1 With respect to any purchase of Offered Services under this Agreement, if any Federal, state or local government tax, fee, duty, surcharge, or other tax-like charge (a “Tax”) is required or permitted by Applicable Law to be collected from a Purchasing Party by the Providing Party, then (a) to the extent required by Applicable Law, the Providing Party shall bill the Purchasing Party for such Tax as a separately stated item, (b) the Purchasing Party shall timely remit such Tax to the Providing Party (including both Taxes billed by the Providing Party and Taxes the Purchasing Party is required by Applicable Law to remit without billing by the Providing Party), and (c) the Providing Party shall remit such collected Tax to the applicable taxing authority.
38.2 With respect to any purchase of Offered Services under this Agreement, if any Tax is imposed by Applicable Law on the receipts of the Providing Party, which Applicable Law permits the Providing Party to exclude certain receipts received from sales of Offered Services for resale by the Purchasing Party, such exclusion being based solely on the fact that the Purchasing Party is also subject to a tax based upon receipts (“Receipts Tax”), then the Purchasing Party, upon request in writing by the Providing Party, shall provide notice in writing in accordance with Section 38.7 of whether the Purchasing Party will pay the Receipts Tax. Such notice shall remain in effect until it is revoked in writing by the Purchasing Party in accordance with Section 38.7.
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38.3 With respect to any purchase of Offered Services under this Agreement, that are resold by the Purchasing Party to a Customer of the Purchasing Party, if any Tax is imposed by Applicable Law on the Customer of the Purchasing Party in connection with its purchase of the resold Offered Services which the Purchasing Party is required to impose and/or collect from the Customer, then the Purchasing Party (a) shall impose and/or collect such Tax from the Customer, and (b) shall timely remit such Tax to the applicable taxing authority.
38.4.1 If the Providing Party, in accordance with Applicable Law, properly bills the Purchasing Party for any Tax but the Purchasing Party fails to remit the Tax to the Providing Party as required by Section 38.1, then, as between the Providing Party and the Purchasing Party, the Purchasing Party shall be liable for such uncollected Tax and any interest and/or penalty assessed on the uncollected Tax by the applicable taxing authority.
38.4.2 If the Providing Party does not collect a Tax because the Purchasing Party has provided the Providing Party with an exemption certificate which is later found to be inadequate by the applicable taxing authority, then, as between the Providing Party and the Purchasing Party, the Purchasing Party shall be liable for such uncollected Tax and any interest and/or penalty assessed on the uncollected Tax by the applicable taxing authority.
38.4.3 Except as provided in Section 38.4.4, if the Purchasing Party fails to pay the Receipts Tax which it has given notice of its intent to pay pursuant to Section 38.2, then, as between the Providing Party and the Purchasing Party, (a) the Providing Party shall be liable for any Tax imposed on the Providing Party’s receipts, (b) the Purchasing Party shall be liable for any interest and/or penalty imposed on the Providing Party with respect to the Tax on the Providing Party’s receipts, and (c) the Purchasing Party shall be liable for any Tax imposed on the Purchasing Party’s receipts and any interest and/or penalty assessed by the applicable taxing authority on the Purchasing Party with respect to the Tax on the Purchasing Party’s receipts.
38.4.4 If any discount or portion of a discount in price provided to the Purchasing Party under this Agreement (including, but not limited to, the discount provided for in Attachment 1) represents Tax savings to the Providing Party which it was anticipated the Providing Party would receive,
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because it was anticipated that receipts from sales of Providing Party Offered Services, that would otherwise be subject to a Tax on such receipts, could be excluded from such Tax under Applicable Law, because the Providing Party Offered Services would be sold to the Purchasing Party for resale, and the Providing Party is, in fact, required by Applicable Law to pay such Tax on receipts from sales of Providing Party Offered Services to the Purchasing Party, then, as between the Providing Party and the Purchasing Party, (a) the Purchasing Party shall be liable for any such Tax, and (b) the Purchasing Party shall be liable for any interest and/or penalty assessed by the applicable taxing authority on either the Purchasing Party or the Providing Party with respect to the Tax on the Providing Party’s receipts.
38.4.5 If the Purchasing Party fails to impose and/or collect any Tax from Purchasing Party Customers as required by Section 38.3, then, as between the Providing Party and the Purchasing Party, the Purchasing Party shall remain liable for such uncollected Tax and any interest and/or penalty assessed on such uncollected Tax by the applicable taxing authority.
38.4.6 With respect to any Tax that the Purchasing Party has agreed to pay, is responsible for because the Purchasing Party received a discount in price on Providing Party Offered Services attributable to anticipated Tax savings by the Providing Party, or is required to impose on and/or collect from Purchasing Party Customers, the Purchasing Party agrees to indemnify and hold the Providing Party harmless on an after-tax basis for any costs incurred by the Providing Party as a result of actions taken by the applicable taxing authority to recover the Tax from the Providing Party due to failure of the Purchasing Party to timely remit the Tax to the Providing Party, or timely pay, or collect and timely remit, the Tax to the taxing authority.
38.5 If either Party is audited by a taxing authority, the other Party agrees to reasonably cooperate with the Party being audited in order to respond to any audit inquiries in a proper and timely manner so that the audit and/or any resulting controversy may be resolved expeditiously.
38.6.1 If Applicable Law exempts a purchase of Offered Services under this Agreement from a Tax, and if such Applicable Law also provides an exemption procedure, such as an exemption certificate requirement, then, if the Purchasing Party complies with such procedure, the Providing Party shall not collect such Tax during the effective period of the exemption. Such
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exemption shall be effective upon receipt of the exemption certificate or affidavit in accordance with Section 38.7.
38.6.2 If Applicable Law exempts a purchase of Offered Services under this Agreement from a Tax, but does not also provide an exemption procedure, then the Providing Party shall not collect such Tax if the Purchasing Party (a) furnishes the Providing Party with a letter signed by an officer of the Purchasing Party claiming an exemption and citing the provision in the Applicable Law which allows such exemption, and (b) supplies the Providing Party with an indemnification agreement, reasonably acceptable to the Providing Party, which holds the Providing Party harmless on an after-tax basis with respect to forbearing to collect such Tax.
38.7 All notices, affidavits, exemption certificates or other communications required or permitted to be given by either Party to the other under this Section 38, shall be made in writing and shall be delivered personally or sent by prepaid overnight express service, and sent to the addresses stated in Section 25 and to the following:
| | |
| To BA: | Tax Administration |
| | Bell Atlantic Network Services, Inc. |
| | 1717 Arch Street, 30th Floor |
| | Philadelphia, PA 19103 |
| | |
| To Sprint: | Director, State & Local Taxes |
| | Sprint Communications Company L.P. |
| | 903 E. 104th Street |
| | Kansas City, Missouri 64131 |
Either Party may from time-to-time designate another address or addressee by giving notice in accordance with the terms of this Section 38.7.
Any notice or other communication shall be deemed to be given when received.
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39. | Third-Party Beneficiaries |
Except as may be specifically set forth in this Agreement, this Agreement does not provide and shall not be construed to provide any third parties (including, but not limited to, Customers or subcontractors of a Party) with any right, remedy, claim, reimbursement, cause of action, or other privilege.
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EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES WITH RESPECT TO ITS OFFERED SERVICES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE A PARTY’S EXCLUSIVE WARRANTIES WITH RESPECT TO ITS OFFERED SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. EACH PARTY DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO ITS OFFERED SERVICES, INCLUDING, BUT NOT LIMITED TO,WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST INFRINGEMENT, AND WARRANTIES ARISING BY TRADE CUSTOM, TRADE USAGE, COURSE OF DEALING, OR OTHERWISE.
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PART II
BA OFFERED SERVICES AND RELATED MATTERS
41.1 Upon request by Sprint, and pursuant to the provisions of this Agreement, BA will provide to Sprint BA Offered Services.
41.2 All BA Offered Services offered by BA to Sprint are subject to the terms and conditions (including prices) of this Agreement, even though the BA Offered Services may not be specifically listed or described in the Principal Document.
42.1 Sprint shall be responsible for and shall pay all charges for any BA Offered Service provided to Sprint (including, but not limited to, any BA Offered Service provided to Sprint for resale to Sprint’s Customers), if the BA Offered Service is ordered, activated or used by Sprint, Sprint’s Customer or another person.
42.2 With respect to Audiotex services (including Dial-It services) provided by BA or BA Customers, Sprint agrees to either bill and collect the charges for calls to such services by Sprint’s local service Customers, or to block access to such calls. If Sprint elects to bill and collect charges for calls to Audiotex services (including Dial-It services) provided by BA or BA Customers, the Parties agree to negotiate a mutually acceptable agreement for the performance of such billing and collection.
42.3 The Parties agree to negotiate a mutually acceptable reciprocal billing and collection agreement for their respective alternately billed local and intraLATA toll charges (i.e., collect, calling card and billed to third number). Under this agreement, BA will bill Sprint charges to BA local service Customers and Sprint will bill BA charges to Sprint local service Customers. BA and Sprint will compensate each other for billing these charges to their respective Customers at the same rate per billable charge record.
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43. | Changes in BA Offered Services |
43.1 Subject to the requirements of this Agreement, BA may, at any time, add, modify or discontinue, a BA Offered Service.
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43.2 BA will give Sprint notice of:
(a) Any material changes in the terms and conditions (including prices) under which BA offers a BA Offered Service;
(b) The addition of a BA Offered Service;
(c) The material modification of the operation of a BA Offered Service; and
(d) The discontinuance of a BA Offered Service.
43.3 Except as otherwise required by this Agreement or Applicable Law:
(a) The notice to be provided under Section 43.2(a) and (b) shall be given no later than three (3) business days after the earlier of: (i) the first date on which BA gives public notice of the change or addition to BA’s own end user retail Customers; or (ii) (A) if a publicly available Tariff filing with the Commission or the Federal Communications Commission is made by BA, the date on which such filing is made, or (B) if a publicly available Tariff filing with the Commission or the Federal Communications Commission is not made by BA, the date on which the change or the addition becomes effective; and
(b) The notice to be provided under Section 43.2(c) and (d) shall be provided at least sixty (60) days prior to the time the material modification or the discontinuance becomes effective.
43.4 The notice to be provided under Section 43.2 may be provided in writing or electronically, including, but not limited to, by allowing Sprint to access a data base or Internet site containing the applicable information.
44.1.1 Except as otherwise provided in this Agreement, Sprint shall be the single and sole point of contact for all Sprint Customers with regard to services and products (including, but not limited to, resold BA Offered Services) provided, or to be provided, by Sprint to Sprint’s Customers.
44.1.2 Without in any way limiting Section 44.1.1, Sprint shall be the single and sole point of contact for Sprint’s Customers: (a) to request information about or provision of services
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(including, but not limited to, resold BA Offered Services) which they wish to purchase from Sprint; (b) to change, terminate, or request information about, assistance in using, or repair or maintenance of, services (including, but not limited to, resold BA Offered Services) which they have purchased from Sprint; (c) to make inquiries concerning Sprint’s bills, and charges for Sprint’s services (including, but not limited to, resold BA Offered Services); and, (d) if the Sprint Customers receive dial tone line service from Sprint, to report and request assistance with regard to annoyance calls.
44.1.3 Sprint shall establish telephone numbers at which Sprint’s Customers may communicate with Sprint and shall make reasonable efforts to advise Sprint’s Customers who may wish to communicate with Sprint of these telephone numbers.
44.2 BA shall provide to BA’s employees who are reasonably likely to communicate, either by telephone or face-to-face, with Sprint’s Customers during the service provisioning or maintenance processes, such training as shall be reasonably necessary for those employees to conform to the requirements of this Agreement with regard to their contact with Sprint Customers.
45.1 Availability and Use
45.1.1 BA shall provide BA Resale Services to Sprint where, and to the same extent, that BA provides BA Resale Services to BA’s own end user retail Customers.
45.1.2 BA Resale Services may be purchased by Sprint under this Agreement only for the purpose of resale by Sprint as a Telecommunications Carrier. BA Resale Services to be purchased by Sprint for other purposes (including, but not limited to, Sprint’s own use) must be purchased by Sprint pursuant to separate written agreements, including, but not limited to, applicable BA Tariffs. Sprint may purchase BA Resale Services under this Agreement for resale to Sprint’s Affiliates if Sprint resells such BA Resale Services to Sprint’s Affiliates as a Telecommunications Carrier pursuant to terms and conditions that comply with all applicable Commission rules, including non-discrimination rules.
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45.1.3 To the extent required by Applicable Law, BA Resale Services shall include contract and other customer-specific offerings.
45.2 Restrictions on Resale
45.2.1 Except as otherwise provided in the Principal Document or authorized by the Commission or the FCC, BA Resale Services shall not be subject to any category-to-category restrictions.
45.2.2 Sprint shall not sell residential BA Resale Services to Customers who are ineligible to subscribe to such BA Resale Services from BA.
45.2.3 Sprint shall not sell Lifeline or any other means-tested BA Resale Service offerings to Customers who are not eligible to subscribe to such service offerings from BA.
45.2.4 Sprint shall not sell grandfathered BA Resale Services to Customers who are ineligible to subscribe to such BA Resale Services from BA.
45.2.5 The Parties agree to negotiate the applicability of any category-to-category restriction on the resale of BA Resale Services proposed by BA in the future.
45.3 Service Parity
45.3.1 BA shall provide BA Resale Services, such that, for all call types, a Sprint Customer served by resold BA Resale Services is not required to dial any greater number of digits than a similarly-situated BA Customer to make calls to the same destination.
45.3.2 BA shall provide BA Resale Services, such that: (a) a Sprint Customer served by the resold BA Resale Services can complete calls to the same locations as a similarly-situated BA Customer; (b) a Sprint Customer served by the resold BA Resale Services may subscribe to the same extended calling area(s), if any, available to a similarly-situated BA Customer; (c) 1+ intraLATA toll services and Primary Interexchange Carrier (“PIC”) 1+ and dial-around (e.g., Carrier Identification Code) services are available to a Sprint Customer served by the resold BA Resale Services on the same basis as they are offered to a similarly-situated BA Customer; and, (d) the post-dial delay (time elapsed between the last digit dialed and first network response), call completion rate, transmission quality, dial
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tone, ring, and capability for dial/pulse or touch-tone recognition, are provided at Parity.
45.3.3 The Parties agree that a BA Customer, or a Sprint Customer served by a resold BA Resale Service dial tone line, may retain its local telephone number when changing its Telephone Exchange Service provider from one Party to the other Party, if the Customer remains at the same location, retains the same type and class of Telephone Exchange Service, and continues to be served by a BA Resale Service dial tone line.
45.3.4 The Parties agree that a BA Customer, or a Sprint Customer served by a resold BA Resale Service dial tone line, may retain its Telephone Exchange Service without unreasonable interruption of such service when changing its Telephone Exchange Service provider from one Party to the other Party, if the Customer remains at the same location, retains the same type and class of Telephone Exchange Service, and continues to be served by a BA Resale Service dial tone line.
45.3.5 To the extent technically feasible, a BA Resale Service provided by BA to Sprint shall be provided at Parity.
45.4 Billing For BA Resale Services
45.4.1 BA shall bill Sprint for BA Resale Services provided to Sprint in accordance with the terms and conditions of this Agreement, including, but not limited to, the terms and conditions in Attachment 6.
45.4.2 BA shall recognize Sprint as the customer of record for all BA Resale Services provided to Sprint and send all notices, bills and other pertinent information directly to Sprint.
45.5 Specific BA Resale Services
45.5.1 The BA Resale Services that Sprint may purchase for resale, include, but are not limited to, the BA Resale Services listed in this Section 45.5.
45.5.2 Centrex
45.5.2.1 Sprint may purchase for resale any Centrex Telecommunications Service that BA provides at retail to BA subscribers who are not Telecommunications Carriers.
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45.5.2.2 Sprint shall pay applicable charges, as set forth in this Agreement, to suppress the need for Sprint Customers served by resold Centrex Telecommunications Service to dial “9” when placing calls outside the Centrex System.
45.5.3 CLASS, Custom Calling, IQ, and AIN Based Services
Sprint may purchase for resale any BA CLASS, Custom Calling, IQ, or Advanced Intelligent Network (“AIN”) based, Telecommunications Service that BA provides at retail to BA subscribers who are not Telecommunications Carriers.
45.5.4 Call Blocking Services
Upon request by Sprint, BA will provide for use on BA Resale Service dial tone lines which are resold by Sprint such call blocking services (including, but not limited, to 700, 900 and Audiotex call blocking services) as BA provides to BA’s own end user retail Customers, where and to the extent BA provides such call blocking services to BA’s own end user retail Customers.
45.5.5 Voluntary Federal Customer Financial Assistance Programs
Except to the extent prohibited by Applicable Law, Sprint may purchase for resale to eligible Sprint Customers any Telecommunications Service that BA provides at retail to BA subscribers who are not Telecommunications Carriers and who are eligible for government established programs for low-income Customers, such as the Voluntary Federal Customer Financial Assistance Program, and Link-Up America.
45.5.6 Telecommunications Relay Service
Where and to the extent BA provides Telecommunications Relay Service to BA’s own end user retail Customers, BA shall make such Telecommunications Relay Service available to Sprint for use by Sprint Customers served by resold BA Resale Service dial tone lines.
45.5.7 Coin Services
Sprint may purchase for resale any payphone related Telecommunications Service (including, but not limited to, station controlled line service [coin customer-owned, coin-operated telephone {“COCOT”} line service], and network controlled coin and coinless line service), that BA provides at
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retail to BA subscribers who are not Telecommunications Carriers.
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46. | BA Unbundled Network Elements |
46.1 Upon request by Sprint, and pursuant to the provisions of this Agreement, BA will provide to Sprint Network Elements as set forth in Attachment 2.
46.2 Notwithstanding any other provision of this Agreement, BA shall be obligated to provide a Combination of Network Elements only to the extent such Combination is technically feasible and required by Applicable Law.
46.3 The Parties agree that a BA Customer, or a Sprint Customer served by a BA local switching Network Element, may retain its local telephone number when changing its Telephone Exchange Service provider from one Party to the other Party, if the Customer remains at the same location, and continues to be served by a BA Resale Service dial tone line or a BA local switching Network Element using the same BA network facilities.
46.4 The Parties agree that a BA Customer, or a Sprint Customer served by a BA local switching Network Element, may retain its Telephone Exchange Service without unreasonable interruption of such service when changing its Telephone Exchange Service provider from one Party to the other Party, if the Customer remains at the same location, and continues to be served by a BA Resale Service dial tone line or a BA local switching Network Element using the same BA network facilities.
47.1 E911/911 Services
47.1.1 Where and to the extent BA provides E911/911 call routing to the appropriate Public Safety Answering Point (“PSAP”) to BA’s own end user retail Customers, BA shall provide to Sprint, for resold BA Resale Service dial tone lines, E911/911 call routing to the appropriate PSAP. BA shall provide Sprint Customer information for resold BA Resale Service dial tone lines to the PSAP as that information is provided to BA by Sprint where and to the same extent that BA provides BA Customer information to the PSAP. BA shall update and maintain, on the same schedule that BA uses for BA’s own end user retail Customers, for Sprint Customers served by resold BA Resale Service dial tone lines, the Sprint Customer information in BA’s
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E911 databases. To the extent technically feasible, the services provided by BA to Sprint under this Section 47.1.1 shall be provided at Parity.
47.1.2 Where Sprint provides service to Sprint’s Customers by a means other than through BA Resale Service dial tone lines (for instance, through unbundled Network Elements provided by BA), at such time as BA makes available to Sprint an electronic interface for entering E911 Customer information into the appropriate E911 databases, Sprint shall be responsible for entering E911 Customer information into the appropriate E911 databases. The electronic interface will be available no earlier than May 15, 1998. Prior to availability of the electronic interface, existing processes will be used and Sprint will provide E911 Customer information for Sprint Customers to BA for entry by BA into the appropriate BA E911 databases.
47.1.3 To the extent that it is necessary (whether as a requirement of Applicable Law or otherwise) for Sprint to enter into any agreements or other arrangements with governmental entities (or governmental entity contractors) related to E911/911 in order for Sprint to provide Telecommunications Services, Sprint shall at Sprint’s expense enter into such agreements and arrangements. Where this Section 47.1 or other portions of this Agreement refer to or describe E911/911 functions, services, or facilities as BA functions, services, or facilities, the Parties agree that, in New Jersey, some such functions, services, and facilities are provided, owned, or controlled not by BA but by the State of New Jersey, and that Sprint will look to the State of New Jersey, and not BA, and make arrangements with the State of New Jersey, and not BA, for the provision of such functions, services, and facilities. BA will cooperate with Sprint in identifying all such functions, services, and facilities that are provided, owned, or controlled by the State of New Jersey and in identifying the contact points and procedures BA believes will facilitate Sprint’s promptly securing such arrangements with the State of New Jersey as may be necessary for the effective provision of E911/911 service to Customers of Sprint.
47.2 Routing to Repair, Directory Assistance and Operator Services
47.2.1.1 Each Party will provide its Customers with a toll-free or ordinary telephone number to call for repair services and will not use 611 for this or any other purpose. Calls to 611
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will be answered by an announcement only (there will be no human intercept or call transfer capability) as follows:
(a) Callers will be informed that 611 is no longer a valid number and will be instructed to contact their local service provider.
(b) No local service provider, including BA, will be named in the announcement.
47.2.1.2 The Parties agree that the provisions of this Section 47.2.1 shall not prejudice any arguments either of them may make concerning the appropriate use of N11 codes.
47.2.2 Upon request by Sprint, BA will implement the capability of rerouting to Sprint’s platforms directory assistance traffic from Sprint Customers served by resold BA Resale Service dial tone lines (including 411 and 555-1212) and operator services traffic from Sprint Customers served by resold BA Resale Service dial tone lines (including O+ and 0- intraLATA calls). Implementation will be completed, as to a particular switch as to which rerouting is requested by Sprint, within ninety (90) days after the request by Sprint. BA will use its best efforts to accommodate Sprint’s requests as to the sequence of implementing this capability in particular switches on a nondiscriminatory basis.
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47.3 Emergency Public Agency Telephone Numbers
BA and Sprint shall provide to each other, pursuant to terms, conditions and prices to be negotiated by BA and Sprint following execution of this Agreement, the emergency public agency (e.g., police, fire, ambulance) telephone numbers linked to each NPA-NXX, including all changes, alterations, modifications, and updates, to such information.
47.4 LSV/VCI
BA and Sprint agree to interconnect their Local Operator Service systems to provide, in accordance with Attachment 15, Line Status Verification and Verification with Call Interruption (“LSV/VCI”) services.
47.5 Line Information Database
BA shall maintain Customer information (including restricted collect and third-number billing notation) for Sprint Customers who subscribe to resold BA Resale Service dial tone lines, in BA’s Line Information Database (“LIDB”) where and to the same extent that BA maintains information in BA’s LIDB on BA’s own end-user retail Customers. BA shall update and maintain, on the same schedule that it uses for BA’s own end-user retail Customers, the Sprint Customer information in BA’s LIDB. To the extent technically feasible, the services provided by BA to Sprint under this Section 47.5 shall be provided at Parity.
47.6 Telephone Line Number Calling Card Numbers
If an end-user terminates BA Resale Service dial tone line service provided to the end-user by BA and, in place thereof, subscribes to Sprint for resold BA Resale Service dial tone line service, BA will remove from BA’s LIDB any BA-assigned telephone line calling card number (including area code) (“TLN”) and Personal Identification Number (“PIN”) associated with the terminated BA Resale Service dial tone line service. The BA-assigned TLN and PIN will be removed from BA’s LIDB within twenty-four (24) hours after BA terminates the BA Resale Service dial tone line service with which the numbers were associated. Sprint may issue a new telephone calling card to such Customer, utilizing the same TLN, and the same or a different PIN. Upon request by Sprint, BA will enter such TLN and PIN in BA’s LIDB for calling card validation purposes.
47.7 Law Enforcement and Service Annoyance
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BA and Sprint will develop mutually-agreed procedures to handle requests from law enforcement agencies for service termination, assistance with electronic surveillance, and provision of Customer information, pursuant to Applicable Law, and procedures to handle Customer complaints about harassing or annoying calls. Such procedures will include, but not be limited to, a process for the Parties to interface with each other regarding law enforcement and service annoyance issues on a 24 hour per day, seven days per week basis.
47.8 Intercept Services
Sprint may order any Intercept Telecommunications Services that BA provides at retail to BA subscribers who are not Telecommunications Carriers. Such services will be made available for use by Sprint’s Customers where and to the same extent as such services are made available to BA’s own end user retail Customers. To the extent technically feasible, the services provided by BA to Sprint under this Section 47.8 shall be provided at Parity.
48.1 As used in this Section 48, references to a Sprint Customer’s “Listing” shall mean such Sprint Customer’s name, address and telephone number. Upon request by Sprint, BA will provide the Listing services described in this Section 48.
48.2 BA will include a primary Listing for a Sprint Customer in BA’s White Pages telephone directory (residence and business Listings) and BA’s Yellow Pages telephone directory (business Listings), that covers the service address of the Sprint Customer. Listings for Sprint Customers will be interfiled with the listings of other persons in BA’s telephone directories in accordance with the standard alphabetical or other order for listings in such telephone directories. Where there are two telephone numbers for the same resold BA dial tone line due to the implementation of Interim Local Number Portability, only the ported number will be included in the Listing.
48.3 BA will provide BA White Pages additional Listings for a Sprint Customer.
48.4 BA will include in BA’s directory assistance database and in any BA electronic directories in which BA’s own end user retail Customers are ordinarily included a Listing for Sprint Customers.
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Such service will be provided where and to the same extent that BA provides this service to BA’s own end user retail Customers. To the extent technically feasible, the service provided by BA to Sprint under this Section 48.4 shall be provided at Parity.
48.5 Where a Customer for a BA Resale Service dial tone line resold by Sprint elects not to have a Listing in a telephone directory, electronic directory and/or BA’s directory assistance database, Sprint shall purchase the applicable service to effect this (e.g., BA private number, non-published listing, or non-listed number, service).
48.6 BA shall deliver BA White Pages and BA Yellow Pages telephone directories to Sprint Customers. Timing of such delivery and the determination of which primary telephone directories shall be delivered (by Customer address, NPA/NXX, or other criteria), and the number of telephone directories to be provided per Sprint Customer, shall be provided under the same terms and conditions that BA delivers primary telephone directories to BA’s own similarly situated Customers. These deliveries will be made for no additional charge. Sprint may request additional telephone directories from BA’s Directory Fulfillment Centers for Sprint’s Customers, which Centers will provide such additional telephone directories for the same charges applicable to comparable requests by BA’s own Customers.
48.7 BA shall provide the following White and Yellow Pages Directory Listing criteria to Sprint not later than ten (10) days after the Effective Date of this Agreement, and shall provide all changes to such Directory Listing criteria at the same time such changes are provided to BA’s own directory listings Customer contact personnel:
(a) Classified heading information;
(b) Rules for White Pages and Yellow Pages listings, other than information which is publicly available in BA’s Tariffs (e.g., eligibility for free White and Yellow Pages listings, space restrictions, unlisted and unpublished listings, abbreviated listings, foreign listings, and heading requirements);
(c) Publication schedules for White Pages and Yellow Pages Directories;
(d) Identification of the coverage areas of Telephone Directories by NPA/NXX;
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(e) Telephone directory delivery schedules;
(f) Restrictions, if any, on number of Telephone Directories provided at no charge to a Customer; and
(g) Processes and terms and conditions for obtaining foreign Telephone Directories from BA.
48.8 Sprint shall provide to BA daily listing information on all new Sprint Customers in the format required by BA or a mutually agreed upon industry standard format. The information shall include the Sprint Customer’s name, telephone number, address, the delivery address and number of directories to be delivered, and, in the case of a business listing, the primary business heading under which the Sprint Customer desires to be placed, and any other information necessary for the publication and delivery of directories. Sprint shall also provide BA with daily listing information showing (a) Sprint Customers that have disconnected or terminated their service with Sprint, and (b) any changes in daily listing information that was previously provided by Sprint.
48.9 Upon written request by Sprint, BA shall include in the customer information section of any BA telephone directory distributed in any area where Sprint is providing Telephone Exchange Service at the closing date for entry of material in the BA telephone directory, telephone numbers for Sprint customer sales, service and repair, and such other service related information as may be agreed upon by the Parties, including Sprint trademarks and logos. Such information shall be provided by Sprint to BA in the format required by BA no later than the closing date for entry of such material in the BA telephone directory. BA shall provide Sprint with a list of the applicable closing dates for BA’s Telephone Directories.
48.10 Sprint shall adhere to all practices, standards and requirements (including, but not limited to, ethics standards), of BA with regard to Listings. By providing Listings to BA, Sprint warrants that it has the authority to place such Listings on behalf of Sprint’s Customers, that the address and telephone number information in the Listings submitted to BA is accurate, and that the Customer name information in the Listings submitted to BA accurately states the Customer name information requested for the Listings by the Customers. Sprint shall take commercially reasonable action to attempt to assure that any Sprint Customer to be listed has the right and is authorized to
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(a) provide the product or service offered by the Customer, and (b) use any personal or corporate name, trade name, trade mark, service mark or other language contained in the Listing. In addition, Sprint agrees to indemnify, defend and hold harmless, BA, BA’s Affiliates, and the directors, officers, employees, Agents and contractors of BA and BA’s Affiliates, from and against any and all claims, losses, damages, suits, or other actions, or any liability whatsoever, suffered, made, instituted, or asserted by any person arising out of BA’s listing of the Listing information provided by Sprint hereunder.
48.11 THE LIABILITY, IF ANY, OF BA, BA’S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS, OF BA AND BA’S AFFILIATES, TO SPRINT, SPRINT’S CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A LISTING IN A WHITE PAGES DIRECTORY, YELLOW PAGES DIRECTORY, ELECTRONIC DIRECTORY, DIRECTORY ASSISTANCE DATABASE, OR OTHER PUBLICATION OR DATABASE, OR FROM ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A LISTING, IN A WHITE PAGES DIRECTORY, YELLOW PAGES DIRECTORY, ELECTRONIC DIRECTORY, DIRECTORY ASSISTANCE DATABASE, OR OTHER PUBLICATION OR DATABASE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH IN SECTION 23 FOR BA OFFERED SERVICES.
48.12 Sprint agrees to take, with respect to Sprint’s Customers, all reasonable steps to assure that Sprint’s and BA’s liability to Sprint’s Customers in the event of an error in or omission of a Listing shall be subject to limitations of liability comparable to the limitations of BA’s liability under this Agreement.
49.1 Subscriber List Information
49.1.1 Under a separate license agreement, BA shall provide to Sprint access to all published BA Subscriber List Information to the same extent, and on the same terms and conditions (including prices), that BA provides BA Subscriber List Information to third parties who are similarly situated to Sprint. Such license agreement shall specify the terms and conditions under which, and the media on which, the Subscriber List Information is available.
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49.1.2 Unless authorized by Sprint, BA shall not provide Sprint Customer Subscriber List Information to third parties. If Sprint does authorize BA to provide Sprint Customer Subscriber List Information to third parties, BA shall have the right to exclusively retain any compensation received from third parties for performing this activity and shall not be obligated to account to Sprint or compensate Sprint for provision of the Sprint Customer Subscriber List Information to third parties.
49.2 Directory Assistance Information
The Parties acknowledge that they have not reached agreement with regard to Sprint’s request that BA provide to Sprint BA directory assistance database information, and updates to such information, on other than a listing-by-listing basis through a query to BA’s directory assistance database (including, but not limited to, on magnetic tape, magnetic disk or similar media). This section will be revised as required by or as necessary to comply with Applicable Law.
50.1 BA will provide to Sprint the capabilities for ordering and provisioning set forth in Attachment 4.
50.2.1 BA will provide to Sprint customer usage data in accordance with Attachment 7.
50.2.2 If Sprint wishes BA to record and provide to Sprint Customer usage information and other billing information that BA does not record when furnishing a Telecommunications Service to BA’s own end user retail Customers (e.g., usage on flat rated lines), BA will, to the extent BA’s switch suppliers offer a generic software capability that permits such recording on a line-by-line basis, negotiate with Sprint terms, conditions and prices pursuant to which BA will record and provide such information to Sprint.
51.1 To the extent service readiness or operations readiness testing may not have been conducted or concluded pursuant to a separate testing agreement between the Parties, the Parties shall mutually develop and implement a plan and schedule to test the interconnection of their respective gateway interfaces and the operation of their operational support systems. The testing
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shall be conducted in accordance with this Agreement and Applicable Law.
51.2 During the term of this Agreement, the Parties will participate in such cooperative testing as is provided for in this Agreement, including, but not limited to, cooperative testing pursuant to Attachment 2, Section 15.1, and such other cooperative testing as they may mutually agree to conduct.
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PART III
SPRINT OFFERED SERVICES AND RELATED MATTERS
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52. | Sprint Offered Services |
52.1 Upon request by BA, and pursuant to the provisions of this Agreement, Sprint will provide to BA Sprint Offered Services, including, but not limited to, any Sprint Resale Services that are available to Sprint Customers.
52.2 All Sprint Offered Services offered by Sprint to BA are subject to the terms and conditions (including prices) of this Agreement, even though the Sprint Offered Services may not be specifically listed or described in the Principal Document.
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53. | Charges for Sprint Offered Services |
BA shall be responsible for and shall pay all charges for any Sprint Offered Service provided to BA (including, but not limited to, any Sprint Offered Service provided to BA for resale to BA’s Customers), if the Sprint Offered Service is ordered, activated or used by BA, BA’s Customer or another person.
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54. | Changes in Sprint Offered Services |
54.1 Subject to the requirements of this Agreement, Sprint may, at any time, add, modify or discontinue, a Sprint Offered Service.
54.2 Sprint will give BA notice of:
(a) Any material changes in the terms and conditions (including prices) under which Sprint offers a Sprint Offered Service;
(b) The addition of a Sprint Offered Service;
(c) The material modification of the operation of a Sprint Offered Service; and
(d) The discontinuance of a Sprint Offered Service.
54.3 Except as otherwise required by this Agreement or Applicable Law:
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(a) The notice to be provided under Section 54.2(a) and (b) shall be given no later than three (3) business days after the earlier of: (i) the first date on which Sprint gives public notice of the change or addition to Sprint’s own end user retail Customers; or (ii) (A) if a publicly available Tariff filing with the Commission or the Federal Communications Commission is made by Sprint, the date on which such filing is made, or (B) if a publicly available Tariff filing with the Commission or the Federal Communications Commission is not made by Sprint, the date on which the change or the addition becomes effective; and
(b) The notice to be provided under Section 54.2(c) and (d) shall be provided at least sixty (60) days prior to the time the material modification or the discontinuance becomes effective.
54.4 The notice to be provided under Section 54.2 may be provided in writing or electronically, including, but not limited to, by allowing BA to access a data base or Internet site containing the applicable information.
55.1.1 Except as otherwise provided in this Agreement, BA shall be the single and sole point of contact for all BA Customers with regard to services and products (including, but not limited to, resold Sprint Offered Services) provided, or to be provided, by BA to BA’s Customers.
55.1.2 Without in any way limiting Section 55.1.1, BA shall be the single and sole point of contact for BA’s Customers: (a) to request information about or provision of services (including, but not limited to, resold Sprint Offered Services) which they wish to purchase from BA; (b) to change, terminate, or request information about, assistance in using, or repair or maintenance of, services (including, but not limited to, resold Sprint Offered Services) which they have purchased from BA; (c) to make inquiries concerning BA’s bills, and charges for BA’s services (including, but not limited to, resold Sprint Offered Services); and, (d) if the BA Customers receive dial tone line service from BA, to report and request assistance with regard to annoyance calls.
55.1.3 BA shall establish telephone numbers at which BA’s Customers may communicate with BA and shall make reasonable efforts to advise BA’s Customers who may wish to communicate with BA of these telephone numbers.
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55.2 Sprint shall provide to Sprint’s employees who are reasonably likely to communicate, either by telephone or face-to-face, with BA’s Customers during the service provisioning or maintenance processes, such training as shall be reasonably necessary for those employees to conform to the requirements of this Agreement with regard to their contacts with BA Customers.
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56. | Sprint Resale Services |
56.1 Availability and Use
56.1.1 Sprint shall provide Sprint Resale Services to BA where, and to the same extent, that Sprint provides Sprint Resale Services to Sprint’s own end user retail Customers.
56.1.2 Sprint Resale Services may be purchased by BA under this Agreement only for the purpose of resale by BA as a Telecommunications Carrier. Sprint Resale Services to be purchased by BA for other purposes (including, but not limited to, BA’s own use) must be purchased by BA pursuant to separate written agreements, including, but not limited to, applicable Sprint Tariffs. BA may purchase Sprint Resale Services under this Agreement for resale to BA’s Affiliates if BA resells such Sprint Resale Services to BA’s Affiliates as a Telecommunications Carrier pursuant to terms and conditions that comply with all applicable Commission rules, including non-discrimination rules.
56.1.3 To the extent required by Applicable Law, Sprint Resale Services shall include contract and other customer-specific offerings.
56.2 Restrictions on Resale
56.2.1 Except as otherwise provided in the Principal Document or authorized by the Commission or the FCC, Sprint Resale Services shall not be subject to any category-to-category restrictions.
56.2.2 BA shall not sell residential Sprint Resale Services to Customers who are ineligible to subscribe to such Sprint Resale Services from Sprint.
56.2.3 BA shall not sell Lifeline or any other means-tested Sprint Resale Service offerings to Customers who are not eligible to subscribe to such service offerings from Sprint.
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56.2.4 BA shall not sell grandfathered Sprint Resale Services to Customers who are ineligible to subscribe to such Sprint Resale Services from Sprint.
56.2.5 The Parties agree to negotiate the applicability of any category-to-category restriction on the resale of Sprint Resale Services proposed by Sprint in the future.
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56.3 Service Parity
56.3.1 Sprint shall provide Sprint Resale Services, such that, for all call types, a BA Customer served by resold Sprint Resale Services is not required to dial any greater number of digits than a similarly-situated Sprint Customer to make calls to the same destination.
56.3.2 Sprint shall provide Sprint Resale Services, such that: (a) a BA Customer served by the resold Sprint Resale Services can complete calls to the same locations as a similarly-situated Sprint Customer; (b) a BA Customer served by the resold Sprint Resale Services may subscribe to the same extended calling area(s), if any, available to a similarly-situated Sprint Customer; (c) 1+ intraLATA toll services and Primary Interexchange Carrier (“PIC”) 1+ and dial-around (e.g., Carrier Identification Code) services are available to a BA Customer served by the resold Sprint Resale Services on the same basis as they are offered to a similarly-situated Sprint Customer; and, (d) the post-dial delay (time elapsed between the last digit dialed and first network response), call completion rate, transmission quality, dial tone, ring, and capability for dial/pulse or touch-tone recognition, are provided at Parity.
56.3.3 The Parties agree that a Sprint Customer, or a BA Customer served by a resold Sprint Resale Service dial tone line, may retain its local telephone number when changing its Telephone Exchange Service provider from one Party to the other Party, if the Customer remains at the same location, retains the same type and class of Telephone Exchange Service, and continues to be served by a Sprint Resale Service dial tone line.
56.3.4 The Parties agree that a Sprint Customer, or a BA Customer served by a resold Sprint Resale Service dial tone line, may retain its Telephone Exchange Service without unreasonable interruption of such service when changing its Telephone Exchange Service provider from one Party to the other Party, if the Customer remains at the same location, retains the same type and class of Telephone Exchange Service, and continues to be served by a Sprint Resale Service dial tone line.
56.3.5 To the extent technically feasible, a Sprint Resale Service provided by Sprint to BA shall be provided at Parity.
56.4 Billing For Sprint Resale Services
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56.4.1 Sprint shall bill BA for Sprint Resale Services provided to BA in accordance with the terms and conditions of this Agreement, including, but not limited to, the terms and conditions in Attachment 6.
56.4.2 Sprint shall recognize BA as the customer of record for all Sprint Resale Services provided to BA and send all notices, bills and other pertinent information directly to BA.
57.1 E911/911 Services
Where and to the extent Sprint provides E911/911 call routing to the appropriate Public Safety Answering Point (“PSAP”) to Sprint’s own end user retail Customers, Sprint shall provide to BA, for resold Sprint Resale Service dial tone lines, E911/911 call routing to the appropriate PSAP. Sprint shall provide BA Customer information for resold Sprint Resale Service dial tone lines to the PSAP as that information is provided to Sprint by BA where and to the same extent that Sprint provides Sprint Customer information to the PSAP. Sprint shall update and maintain, on the same schedule that Sprint uses for Sprint’s own end user retail Customers, the BA Customer information in Sprint’s E911 databases.To the extent technically feasible, the services provided by Sprint to BA under this Section 57.1 shall be provided at Parity.
57.2 Directory Assistance and Operator Service Traffic
Upon request by BA, Sprint will implement the capability of rerouting to BA’s platforms directory assistance traffic from BA Customers served by resold Sprint Resale Service dial tone lines (including 411 and 555-1212) and operator services traffic from BA Customers served by resold Sprint Resale Service dial tone lines (including O+ and 0- intraLATA calls). Implementation will be completed, as to a particular switch as to which rerouting is requested by BA, within ninety (90) days after the request by BA. Sprint will use its best efforts to accommodate BA’s requests as to the sequence of implementing this capability in particular switches on a nondiscriminatory basis.
57.3 Line Information Database
Sprint shall maintain Customer information (including restricted collect and third-number billing notation) for BA Customers who subscribe to resold Sprint Resale Service dial tone lines, in
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Sprint’s Line Information Database (“LIDB”) where and to the same extent that Sprint maintains information in Sprint’s LIDB on Sprint’s own end-user retail Customers. Sprint shall update and maintain, on the same schedule that it uses for Sprint’s own end-user retail Customers, the BA Customer information in Sprint’s LIDB. To the extent technically feasible, the services provided by Sprint to BA under this Section 57.3 shall be provided at Parity.
57.4 Telephone Line Number Calling Card Numbers
If an end-user terminates Sprint Resale Service dial tone line service provided to the end-user by Sprint and, in place thereof, subscribes to BA for resold Sprint Resale Service dial tone line service, Sprint will remove from Sprint’s LIDB any Sprint-assigned telephone line calling card number (including area code) (“TLN”) and Personal Identification Number (“PIN”) associated with the terminated Sprint Resale Service dial tone line service. The Sprint-assigned TLN and PIN will be removed from Sprint’s LIDB within twenty-four (24) hours after Sprint terminates the Sprint Resale Service dial tone line service with which the numbers were associated. BA may issue a new telephone calling card to such Customer, utilizing the same TLN, and the same or a different PIN. Upon request by BA, Sprint will enter such TLN and PIN in Sprint’s LIDB for calling card validation purposes.
57.5 Intercept Services
BA may order any Intercept Telecommunications Services that Sprint provides at retail to Sprint subscribers who are not Telecommunications Carriers. Such services will be made available for use by BA’s Customers where and to the same extent as such services are made available to Sprint’s own end user retail Customers. To the extent technically feasible, the services provided by Sprint to BA under this Section 57.5 shall be provided at Parity.
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In witness whereof, Bell Atlantic—New Jersey, Inc., and Sprint Communications Company L.P., each acting by its authorized representative, execute this Agreement:
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Bell Atlantic—New Jersey, Inc., by, | | Sprint Communications Company L.P., by, |
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Signature | | Signature |
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Name | | Name |
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Title | | Title |
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Date | | Date |
