Exhibit 10.37
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SECTION 0: SIGNATURE PAGE
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THIS CARRIER AGREEMENT ("Agreement") is made and entered into by and
between AT&T Corp., a corporation organized and existing under the laws of the
State of New York and having an office at 295 North Maple Avenue, Basking Ridge,
New Jersey 07920 ("AT&T") and Boston Communications Group Inc., having an office
at 100 Sylvan Rd., Woburn, MA 01801 ("Customer"). The terms and conditions
herein constitute an offer by Customer as of the date of Customer's signature
below which may be accepted only by AT&T's signature below. This Agreement
shall become effective when signed by both parties.
AT&T and Customer, acting through their duly authorized representatives,
hereby agree to the terms set forth in Sections 1 through 6 of this Agreement as
attached hereto.
CUSTOMER AT&T CORP.
By By
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Robert J. Sullivan David Karlin
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Printed or Typed Name Printer or Typed Name
Vice President Senior Sales Manager
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Title Title
7/10/97 7/14/97
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Date Date
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SECTION 1: GENERAL TERMS AND CONDITIONS
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1.A. Assignment. Customer may not assign this Agreement in whole or in part
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without the prior written consent of AT&T, which shall not be unreasonably
withheld. AT&T may, in its discretion, condition its consent to such
assignment upon the posting of an appropriate deposit by the assignee
pursuant to Paragraph 4.D. of this Agreement. AT&T reserves the right to
deny or revoke its consent to such assignment at any time if the assignee
proves unwilling or unable to meet the eligibility requirements of this
Agreement, in which event the Customer shall remain or again become
responsible for performance of all terms of this Agreement. This provision
shall not affect the Customer's right to resell Service. Further, any
resale or assignment shall not release the original Customer from its
obligations under this Agreement.
1.B. Combination with Other Services or Offers. This AT&T Carrier Agreement
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may not be used in conjunction with any other AT&T Carrier Agreement, AT&T
Contract Tariff, or promotions for any AT&T Services.
1.C. Independent Parties. The relationship established by this Agreement shall
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in no way constitute AT&T (or its agents or employees) as a partner, agent
or fiduciary of Customer. The relationship established by this Agreement
shall in no way constitute the Customer (or their agents or employees) as
a partner, agent or fiduciary of AT&T. The provision of Service described
in this Agreement does not establish any joint undertaking, joint venture,
or fiduciary relationship between AT&T and Customer.
1.D. Acknowledgment of Right to Compete. Customer acknowledges and understands
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that it remains at all times solely responsible for the success and
profits of its business, and that AT&T makes no promises, warranties or
representations regarding the Customer's business success or prospects of
business success in connection with the provision of service pursuant to
this Agreement, Customer acknowledges and understands that AT&T will
continue to market AT&T services directly to the public and that such
marketing may from time to time bring AT&T into direct or indirect
competition with Customer, and that AT&T may also market its services to
competitors of Customer. Customer acknowledges and understands that
nothing in this Agreement diminishes or restricts in any way the fights of
AT&T to engage in competition with Customer or to market its services to
competitors of Customer.
1.E. Use of Proprietary Information. In the event that either Customer or
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AT&T, in the course of performance of their obligations to each other
under this Agreement, obtains or receives proprietary information from the
other, it agrees to use such information only for the purpose of complying
with its obligations under this Agreement and not to use such information
for its own marketing purposes, Customer acknowledges that AT&T may use
for its own marketing purposes any and all information that it obtains
from sources other
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than Customer, including but not limited to information that AT&T may have
regarding Customer's End-Users as a result of the past or present sale or
provision by AT&T of telecommunications services or equipment to said End-
Users.
1.F. Force Majeure. Neither party nor its affiliates, subsidiaries,
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subcontractors, or parent corporation shall be liable in any way for
delay, failure in performance, loss or damage due to any of the following:
fire, strike, embargo, explosion, power blackout, earthquake, volcanic
action, flood, war, water, the elements, labor disputes, civil or military
authority, acts of God, acts of the public enemy, inability to secure raw
materials, inability to secure products, acts or omissions of carriers, or
other causes beyond its reasonable control, whether or not similar to the
foregoing.
1.G. Severability. If any portion of this Agreement shall be found to be
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invalid or unenforceable, such portion shall be void and of no effect, but
the remainder of the Agreement shall continue in full force and effect
unless the Agreement fails of its essential purpose without the voided
portion.
1.H. Notices. All notices, identifications, formal requests or other formal
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communications required or desired to be given in connection with this
Agreement, shall be in writing and shall be effective when delivered in
person, mailed by registered or certified post or sent by Telex or
facsimile ("FAX") to the recipient party, unless the parties otherwise
agree in writing. Notice shall be addressed to the following:
If to AT&T: Senior Sales Manager
AT&T Corner Solutions
4513 Western Avenue, Room 121
Lisle, IL 60532
If to Customer: 100 Sylvan Road
Woburn, MA 01801
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1.I. Modification And Waiver. This Agreement may be modified only by a writing
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signed by both parties. The failure of a party to enforce any right under
this Agreement at any particular point in time shall not constitute a
continuing waiver of any such right with respect to the remaining term of
this Agreement, or the waiver of any other right under this Agreement.
1.J. Compliance with Laws. Each party is responsible for its own compliance
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with all laws and regulations affecting its business, including but not
limited to the collection and remittance of all taxes and other levies
imposed by law.
1.K. Choice of Law. The domestic law of the State of New York, except its
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conflict-of-laws rules, shall govern the construction, interpretation, and
performance of this Agreement.
1.L. Confidentiality. The Terms, conditions, and rates contained in this
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Agreement are confidential, and shall remain so unless and until it shall
be determined by AT&T that the Communications Act of 1934 (or any
subsequent legislation) and the regulations promulgated thereunder require
the filing of this Agreement with the Federal Communications Commission
("Commission"), or unless the Commission orders the filing of this
Agreement pursuant to authority granted to the Commission by law or
regulation. In such event, AT&T shall file the Agreement within thirty
days of its execution, or upon such determination that filing is required,
or upon being ordered by the Commission to do so (whichever is later),
provided, that AT&T nonetheless shall keep the identity of Customer
confidential unless required by law, regulation or the Commission to
disclose such identity. Absent such a filing requirement, neither party
shall disclose the terms or conditions of this Agreement to any third
party, nor issue any public statements relating to this Agreement without
the written consent of the other party, unless such disclosure or
statement is reasonably believed by the party to be compelled by
governmental authority. A disclosing party shall furnish reasonable prior
notice to the other party before making the statement or disclosure unless
prohibited by law from doing so.
1.M. Dispute Resolution. If a dispute arises out of or relates to this
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Agreement, or its breach, the parties agree to submit the dispute to a
sole mediator selected by the parties or, at any time at the option of a
party, to mediation by the American Arbitration Association ("AAA"), to be
held in Morristown, New Jersey, If not resolved by mediation, it shall be
referred to a sole arbitrator selected by the parties within thirty (30)
days of the mediation or, in the absence of such selection, to AAA
arbitration which shall be governed by the United States Arbitration Act
and judgment on the award may be entered in any court having jurisdiction.
The arbitrator may not limit, expand or otherwise modify the terms of this
Agreement. The parties, their representatives, other participants and the
mediator and arbitrator shall hold the existence, content and results of
mediation and arbitration in confidence.
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1.N. Trade Names, Trademarks, Service Marks and Registered Marks Neither
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Customer nor AT&T shall use the other's trade names, trademarks or service
marks ("Marks") without the prior written approval of the other party.
Neither shall display or use the other's Marks, nor pen-nit the same to be
displayed or used by third parties. Nothing in this Agreement creates in a
party rights in the Marks of the other.
1.O. Entire Agreement. This Agreement constitutes the entire agreement of the
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parties with respect to the subject matter hereof and supersedes all prior
written or oral agreements, proposals or understandings.
1.P. Definitions. As used in this Agreement, the definitions set forth in AT&T
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Tariff F.C.C. Nos. 1, 2, 9 and 11 shall apply except to the extent that
they are modified or supplemented as follows:
1.P.1. End-Users: Those persons or entities to which Customer provides
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service as a telecommunications common carrier utilizing the service
provided to Customer by AT&T pursuant to this Agreement,
1.P.2. Dispute: Any controversy or claim between the parties under this
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Agreement or which relates directly or indirectly to this Agreement or the
services provided hereunder, whether based on contract, product liability,
statute, tort (including negligence or strict liability) or other legal or
equitable theory, whenever brought, between the parties or any of their
employees or agents.
1.P.3. CISD: The date for commencement of installation of Service
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established pursuant to Paragraph 3.B. of this Agreement.
1.P.4. Customer Premises: An IXC Switch location as specified in Section
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6.C.1. of this Carrier Agreement.
1.P.5. Tariffs: As used in this Agreement, the term "tariffs" "Applicable
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Tariffs," or any variation thereof shall mean AT&T Tariff F.C.C. Nos. 1,
2, 9, and 14, in effect on the effective date of this Agreement and any
subsequent revisions to such AT&T tariff services provided pursuant to
this Agreement.
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SECTION 2: REQUIREMENTS AND CERTIFICATION OF ELIGIBILITY
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2.A. Eligibility. The rates, terms and conditions herein are expressly
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conditioned upon the Customer's meeting the following eligibility
requirements. Customer is an interexchange telecommunications common
carrier which certifies as follows:
2.A.1. Customer has obtained the required operating authority in all states in
which it conducts business, as well as all authority required by the FCC
for resale of telecommunications services, including but not limited to
authority required pursuant to Section 214 of the Communications Act of
1934, 47 U.S.C. (S)214.
2.A.2. Customer complies and will continue to comply at all times with all
federal and state laws and regulations applicable to the sale and
provision of service to its customers, including but not limited to
those laws and regulations applicable to the authorization and proof of
authorization necessary to convert an End-Users former service to
Customer's service as the End-User's Primary Interexchange Carrier.
2.A.3. Customer has and uses its own carrier identification code ("CIC") in
connection with the origination of all traffic routed via Service
provided under this Agreement. Customer is solely responsible for
installation of its CIC in all access provider end offices (including
Local Exchange Carrier end offices), and for the payment of all charges
associated therewith, including but not limited to charges for
transmission of Customer's CIC to AT&T.
2.A.4. Customer has had a consistent on-time payment record with respect to all
telecommunications service to which it has subscribed with AT&T and all
other telecommunications common carriers for at least 24 consecutive
months prior to the execution of this Agreement. This requirement
includes affiliates, parents, subsidiaries, predecessors and successors
of Customer and any entity owned 20% or more by any person or entity
which also has an ownership interest of 20% or more in Customer on the
Effective Date.
2.A.5. Customer will utilize the Service offered hereunder only for lawful
purposes, including but not limited to resale of the Service or
components thereof. In the event that Customer resells the Service
provided hereunder, it will do so only under its own names, tradenames,
logos, trademarks or servicemarks. Customer will not publish or use any
advertising, sales promotions, press releases, or other publicity
matters which use AT&T's corporate or trade names, logos, trademarks,
service marks, trade dress, or other symbols that serve to identify and
distinguish AT&T from its competitors (or which use confusingly similar
corporate or trade names, logos, trademarks, service marks, trade dress
or other symbols), and will not conduct business under AT&T's
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corporate or trade names, logos, trademarks, service marks, trade dress,
or other symbols that serve to identify and AT&T from its competitors
(or under any confusingly similar corporate or trade names, logos,
trademarks, service marks, trade dress or other symbols). Customer
(including its agents, representatives and independent contractors) will
not indicate or imply to any person or entity that it is AT&T which is
selling or providing service to Customer's end-users, or that it is
affiliated or authorized by AT&T to sell or provide such service to them
or that it is selling or providing such service to them jointly or in
collaboration or partnership with AT&T, or as the agent of AT&T.
2.A.6. Customer has had no complaints or proceedings brought against it, within
two months prior to its execution of this Agreement, by the FCC, by any
state public utilities commission, by any state Attorney General, or by
any other federal or state authority charging Customer with
misrepresenting its affiliation or relationship to AT&T or to any other
carrier whose service it has resold, and no such complaints or
proceedings are pending as of Customer's execution of this Agreement.
2.B. Termination for Lack of Eligibility. If at any time during the term of
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this Agreement Customer fails to comply with any requirement for
eligibility contained in Paragraphs 2.A.1 through 2.A.6., above, such
failure shall constitute a material breach of this Agreement which shall
entitle AT&T to terminate this Agreement and the Service provided
hereunder on thirty (30) days written notice. Customer shall have the
opportunity to cure such failure during the thirty (30) day period
following such notice, and, if such cure is demonstrated to the
satisfaction of AT&T, no termination pursuant to this Paragraph shall
occur. In the event of such termination, Customer shall indemnify,
defend and hold harmless AT&T from any and all complaints, causes or
action or other claims brought against AT&T by any of Customer's End-
Users due to said termination.
2.C. Default. If at any time during the term of this Agreement either party
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shall commit an act of bankruptcy within the meaning of the United
States Federal Bankruptcy Act, or bankruptcy, receivership, insolvency,
reorganization, dissolution, liquidation, or other proceedings shall be
instituted by or against either party or all or any substantial part of
its property under an applicable law of the United States or any state
thereof, and such proceeding shall not be dismissed within ninety (90)
calendar days, the non-defaulting party shall have the right to
terminate this Agreement.
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SECTION 3: RESPONSIBILITIES OF AT&T
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3.A. Provision of Service. Subject to its Correspondent Agreements and
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regulation by Federal and state authorities, AT&T shall provide Service in
accordance with its standard practices and procedures for the operation of
its network. Service shall be available 24 hours per day, seven days per
week. AT&T is responsible for the provision of Service from station to
station, but is not responsible for the quality of transmission or
signaling on the Customer's side of the interface at a Customer's
premises. Service is furnished subject to the availability of the service
components required. AT&T will determine which of those components shall
be used and make modifications to those components at its option.
3.B. Installation. Upon execution of this Agreement AT&T shall establish a due
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date for commencement of installation of Service and confirm said date
with the Customer (CISD). A Customer may delay said due date for
commencement of installation when the Customer's written request for said
delay is received by AT&T at least five (5) business days prior to said
due date, provided that the delay of said due date shall not exceed 30
cumulative calendar days. AT&T will make every reasonable effort to
commence installation of Service by the due date, but Customer
acknowledges that in some cases a delay in commencement of installation
may be unavoidable. If commencement of installation is delayed for more
than 45 days beyond the due date, and such delay is not requested or
caused in whole or in part by the Customer, the Customer may cancel its
order for Service pursuant to this Agreement and shall not thereby be
considered to have breached this Agreement; such cancellation shall he
Customer's sole remedy for such delay.
3.C. Maintenance. AT&T shall maintain Service in conformity with its standard
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network operating procedures.
3.D. Limitation of Liability. AT&T (INCLUDING ITS SUBSIDIARIES, AFFILIATES,
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PREDECESSORS, SUCCESSORS AND ASSIGNS) MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SERVICES OR PRODUCTS
PROVIDED PURSUANT TO THIS AGREEMENT. AT&T'S LIABILITY FOR SERVICE
INTERRUPTIONS FOR ANY SERVICE PROVIDED PURSUANT TO THIS AGREEMENT SHALL
NOT EXCEED AN AMOUNT EQUAL TO A PRO-RATED PORTION OF THE RECURRING CHARGES
PROVIDED FOR UNDER THIS AGREEMENT FOR THE SERVICE AFFECTED FOR THE
PERIOD(S) DURING WHICH SAID SERVICE WAS AFFECTED. THIS LIMITATION OF
LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE (INCLUDING
WITHOUT LIMITATION
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ACTIVE AND PASSIVE NEGLIGENCE). IN NO EVENT SHALL AT&T BE LIABLE FOR
CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OR LOST PROFITS SUSTAINED BY
REASON OF ITS PERFORMANCE OF THIS AGREEMENT, OR FOR ANY FAILURE,
BREAKDOWN, OR INTERRUPTION OF SERVICE, WHATEVER SHALL BE THE CAUSE, OR
HOWEVER LONG IT SHALL LAST, AND REGARDLESS OF WHETHER ANYONE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AT&T SHALL HAVE NO LIABILITY
FOR DAMAGES CAUSED (1) BY CUSTOMER'S FAILURE TO PERFORM ITS
RESPONSIBILITIES UNDER THIS AGREEMENT, OR (2) BY THE ACTS OF THIRD PARTIES
(INCLUDING WITHOUT LIMITATION CUSTOMER'S USERS OR END USERS). AT&T DOES
NOT GUARANTEE OR MAKE ANY WARRANTY WITH RESPECT TO THE SERVICE PROVIDED
PURSUANT TO THIS AGREEMENT WHEN USED IN AN EXPLOSIVE ATMOSPHERE. THIS
AGREEMENT DOES NOT CREATE ANY CLAIM OR RIGHT OF ACTION, NOR IS IT INTENDED
TO CONFER ANY BENEFIT ON ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO ANY
USER OR END-USER OF CUSTOMER. THE LIMITATIONS OF LIABILITY SET FORTH IN
THIS AGREEMENT SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
3.F. Service, Channels or Equipment of Others. AT&T is not liable for damages
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associated with service, channels, or equipment that it does not furnish.
AT&T does not provide Customer equipment.
3.G. No Patent or Software License. No license under patents or software
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copyrights (other than the limited license to use) is granted by AT&T or
shall be implied or arise by estoppel, with respect to Service offered
under this Agreement.
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SECTION 4: RESPONSIBILITIES OF CUSTOMER
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4.A. Placement of Orders and Compliance with Regulations. Customer is
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responsible for placing any necessary orders and for assuring that it, its
Users and its End-Users comply with the provisions of this Agreement and
with all applicable federal and state laws and regulations.
4.B. Billing; Responsibility for Payment. Customer is liable for all amounts
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due to AT&T hereunder, subject to the following. AT&T will provide to
Customer a single monthly bill for each of the Services provided under
this Agreement, or at AT&T's option a single monthly bill for all of the
Services provided under this Agreement. Said bill or bills will be sent to
one Customer location designated by the Customer. Payment of charges is
due upon presentation of a bill unless a different due date appears on the
face of the bill, in which case payment shall be due on said date.
Customer shall be solely responsible for rendering of bills to and
collection of charges from its end-users. Failure of Customer to bill and
collect charges from its end-users shall not excuse in whole or in part
Customer's responsibilities to AT&T under this Agreement, including but
not limited to the responsibility to render to AT&T timely payment of
charges. Customer shall reimburse AT&T for reasonable attorneys fees and
any other costs associated with collecting delinquent payments from
Customer. At AT&T's option, interest charges may be added to any
undisputed adjudged past due amounts at the rate of one and one-half
percent (1 1/2%) per month, unless such interest rate exceeds the maximum
allowed by applicable law, in which case interest shall be at the maximum
lawful rate.
4.C. Interfacing and Communicating with End-Users. Interfacing and
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communicating with End-Users shall be the sole responsibility of Customer
with respect to any use that Customer may make of the service provided
pursuant to this Agreement to in turn provide service to other persons or
entities. Such interfacing and communicating shall include without
rotation installation of service, termination of service, placing of
orders, billing and billing inquiries, reporting of service outages and
problems, collection of charges and handling and resolution of all
disputes.
4.D. Deposits. AT&T may require the Customer, prior to or during the provision
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of service pursuant to this Agreement, to tender a deposit in an amount to
be determined by AT&T in its reasonable discretion to be held by AT&T as a
guarantee for the payment of charges (including but not limited to
shortfall charges attributable to Customer's failure to comply with any
revenue or volume commitment or any monitoring condition in this
Agreement). To determine the financial responsibility of Customer and/or
the specific amount of any deposit required, AT&T may rely upon
commercially reasonable factors to assess and manage the risk of non-
payment, including but not limited to payment history for
telecommunications service (including such service purchased from AT&T),
number of years in business, bankruptcy or insolvency history, current
AT&T account treatment
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status, financial statement analysis, and commercial credit bureau rating.
It shall be Customer's responsibility to provide to AT&T upon request such
information as is necessary for AT&T to determine the financial
responsibility of Customer, including but not limited to Customer's tax
returns, audited or unaudited financial statements and loan applications.
A deposit does not relieve Customer of the responsibility for the prompt
payment of bills on presentation or the due date appearing on the face of
the bills. In lieu of a cash deposit, AT&T will accept Bank Letters of
Credit and Surety Bonds which have been approved by AT&T. Interest will be
paid to a Customer for the period that a cash deposit is held by AT&T. The
interest rate used will be simple interest at the rate of six percent
annually unless a different rate has been established by the appropriate
legal authority in the state where the Service offering is located. The
failure of Customer to post a deposit as required by AT&T pursuant to this
paragraph shall constitute a material breach of this Agreement by Customer
which shall entitle AT&T to terminate this Agreement and the service
provided hereunder upon five (5) days written notice to Customer. When the
service for which the deposit has been required is discontinued, the
deposit will be applied to the final bill and any credit balance will be
refunded to the Customer with applicable interest accrued.
4.E. Customer's Use of Service. Customer may use the services provided
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pursuant to this Agreement for any lawful purpose consistent with the
transmission and switching parameters of the telecommunications network,
and may resell its use (or the use of any part thereof) to a third party
in the normal course of the Customer's business, subject to the
following-.
4.E.1. Abuse - The abuse of Service is prohibited. The Following
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activities constitute abuse:
4.E.1.A. Using Service to make calls that might reasonably be expected to
frighten, abuse, torment, or harass another, or
4.E.1.B. Using Service in such a way that it interferes unreasonably with
the use of Service or AT&T's network by others.
In any instance in which AT&T believes in good faith that there is abuse
of Service as set forth above, AT&T may, upon 5 days prior written notice
to the Customer, and without liability on the part of AT&T, restrict,
suspend or discontinue providing Service, unless Customer cures such abuse
to AT&T's reasonable satisfaction within such period.
4.E.2. Fraudulent Use. The fraudulent use of, or the intended or
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attempted fraudulent use of, Service is prohibited. The following
activities constitute fraudulent use:
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4.E.2.A. Using Service to transmit any message or code, locate a
person, or otherwise give or obtain information, without payment for
Service, or
4.E.2.B. Using or attempting to use Service with the intent to avoid
the payment, either in whole or in part, of any charges by any means
or device, or
4.E.2.C. Using Service to carry calls that originate on the network
of a facilities-based interexchange carrier other than AT&T and
terminate disproportionately to locations for which the cost to AT&T
of terminating switched access is above the average cost of
terminating switched access, based on the published access tariffs of
local exchange companies.
In any instance in which AT&T believes in good faith that there is
fraudulent use of Service as set forth above, AT&T may, immediately
and upon written notice to the Customer, and without liability on the
part of AT&T, restrict, suspend or discontinue providing Service.
4.E.3. Interference, Impairment or Improper Use. Customer may not use
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Service in any manner that subjects AT&T personnel or non-AT&T personnel
to hazardous conditions or results in immediate harm to the AT&T network
or other AT&T services. In any instance in which AT&T believes in good
faith that Service is being used in such manner, AT&T may immediately
restrict Service on a temporary basis. In such cases, AT&T will make a
reasonable effort to give the Customer prior notice. In the event that
Customer does not provide to AT&T within five (5) business days of the
temporary restriction of service acceptable proof that said use has ceased
and that appropriate measures have been taken to prevent its recurrence,
AT&T may immediately and without further notice terminate service.
4.F. Access to Customer's Premises. The Customer is responsible for arranging
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premises access at any reasonable time so that AT&T personnel may install,
repair, maintain, inspect or remove Service components. Premises access
must be made available at a time mutually agreeable to the Customer and
AT&T.
4.G. Loss. The Customer is liable to AT&T for the replacement cost of AT&T-
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provided equipment installed at the Customer's premises in the event of
loss of said equipment for any reason, including but not limited to theft.
4.H. Duty to Indemnify and Defend. Customer shall indemnify, defend, and hold
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harmless AT&T and its directors, officers, employees, agents, parent,
subsidiaries, successors, and assigns from all claims, damages and
expenses (including reasonable attorneys' fees) arising out of or
resulting from, in whole or in part, the acts or omissions of Customer or
its End-Users, their employees, agents or contractors affiliated companies
and their employees, agents or contractors, including but not limited to
claims for libel, slander,
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invasion of privacy, or infringement of copyright arising from any
communication and claims for patent infringement arising from combining or
using services or equipment furnished by AT&T in connection with services
or equipment furnished by others. Customer shall also indemnify, defend
and hold AT&T harmless for all causes of action, claims, liabilities or
expenses asserted or incurred by any of Customer's Users or End-Users
arising out of any failure, breakdown, or interruption of service provided
to Customer by AT&T or to End-Users by Customer. Customer shall indemnify,
defend and hold AT&T harmless for all causes of action, claims, liabilities
or expenses asserted or incurred by Customer's End-Users due to Customer's
marketing efforts, including but not limited to Customer's violation of
laws and regulations applicable to the authorization and proof of
authorization necessary to convert an End-User's former service to
Customer's service as the End-User's Primary Interexchange Carrier, AT&T
shall be indemnified, defended, and held harmless by the Customer, Users
and End-Users against all claims, losses, or damages by any person relating
to such Service when used in an explosive atmosphere.
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SECTION 5: SERVICES AND SERVICE DESCRIPTIONS
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5.A. Domestic Interstate and International Services. The following domestic
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interstate and international services are provided pursuant to this
Agreement:
5.A.1. AT&T MEGACOM(reg) Service - Domestic and International Calling
Capability as described and defined in AT&T Tariff F.C.C. No. 1, as
amended from time to time.
5.A.2. AT&T MEGACOM(reg) 800 Service (Domestic) as described and defined
in AT&T Tariff F.C.C- No. 2, as amended from time to time.
5.A.3. AT&T ACCUNET(reg) T1.5 Access Connections as described and defined
in AT&T Tariff F.C.C. No. 9, as amended from time to time.
5.A.4. AT&T Terrestrial 1.544 Mbps Local Channel service as described and
defined in AT&T Tariff F.C.C. No. 11, as amended from time to time.
5.B. Domestic Intrastate Services. The following intrastate services are
-----------------------------
provided pursuant to AT&T's state tariffs governing such service:
5.B.l. AT&T MEGACOM Service - Domestic as described and defined in AT&T
Tariff F.C.C. No. 1, as amended from time to time.
5.B.2. AT&T MEGACOM 800 Service (Domestic) as described and defined in
AT&T Tariff F.C.C. No. 2, as amended from time to time.
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SECTION 6: SERVICE RATES, TERMS AND CONDITIONS
-----------------------------------
6.A. Service Term. The term of this Agreement is 12 months beginning with the
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first day of the first full billing month within 30 days of the effective
date of this Agreement (hereinafter referred to as the Customer's Initial
Service Date, or ("CISD") for the Services provided under this Carrier
Agreement. There is no renewal option.
6.B. Minimum Volume Commitments
--------------------------
6.8.1.
6.C. Usage Rates. AT&T reserves the right to increase from time to time the
-----------
rates for the Services Provided under this Agreement, regardless of any
provisions in this Agreement that would otherwise stabilize rates or limit
rate increases, as a result of charges imposed on AT&T stemming from an
order, rule or regulation of the Federal Communications Commission or a
court having competent jurisdiction relating to compensation of payphone
service providers. If necessary, revisions will be filed in this Agreement
to reflect the actual rates. The Contract Prices for the Services Provided
pursuant to this Agreement are as follows:
6.C.1. The Contract price for the AT&T MEGACOM Service provided under this
Agreement is the same as the undiscounted Recurring and Nonrecurring Rates
and Charges specified for said Service in AT&T Tariff F.C.C. No. 1, as
amended from time to time, except that the following usage rate, and the
discounts specified in Section 6.D. of this Agreement, applies for AT&T
MEGACOM Service-Domestic Interstate calls which originate at an IXC
Switch: The Contract Price for AT&T MEGACOM Service- Domestic Interstate
Service is for the initial 18 seconds and for each additional 6
seconds or fraction thereof for all day parts and mileage bands. An IXC
Switch is a telecommunications switch with the following characteristics
(a) it is owned and operated by the Customer; (b) it has the capability to
be used for the transmission of calls that are routed by a Local Exchange
Carrier to the IXC Switch using Feature Group D access; (c) it is capable
of interconnecting circuits or transferring calling between circuits; (d)
it has a capacity of at least 100,000 access lines; and (e) it is used by
Customer to provide Common Carriage service to end-users.
6.C.2. The Contract price for the AT&T MEGACOM Service - International
Calling Capability provided under this Agreement is the same as the
undiscounted Recurring and Nonrecurring Rates and Charges specified for
said Service in AT&T Tariff F.C.C. No. 1, as amended from time to time.
6.C.3. The Contract price for the AT&T MEGACOM 800-Domestic Interstate
Service provided under this Agreement is the same as the undiscounted
Recurring and
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Nonrecurring Rates and Charges specified for said Service in AT&T Tariff
F.C.C. No. 1, as amended from time to time, except that the following
usage rate, and the discounts specified in Section 6.D. of this Agreement,
applies for AT&T MEGACOM 800 Service-Domestic Interstate calls which
originate at an IXC Switch: The Contract Price for AT&T MEGACOM 800
Service-Domestic Interstate Service is $ per hour for all day parts and
mileage bands. An IXC Switch is a telecommunications switch with the
following characteristics: (a) it is owned and operated by the Customer;
(b) it has the capability to be used for the transmission of calls that
are routed by a Local Exchange Carrier to the IXC Switch using Feature
Group D access; (c) it is capable of interconnecting circuits or
transferring calling between circuits; (d) it has a capacity of at least
100,000 access lines; and (e) it is used by Customer to provide Common
Carriage service to end-users.
6.C.4. The Contract Price for ACCUNET T1.5 Access connection is the same
as specified in AT&T Tariff F. C. C. No. 9, as amended from time to time.
6.C.5. The Contract Price for AT&T Terrestrial 1.544 Mbps Local Channel
Service is the same as specified in AT&T Tariff F. C. C. No. 11, as
amended from time to time.
6.D. Discounts. Volume discounts applicable to the services provided pursuant
---------
to this Agreement are as follows:
6.D.1. The customer will receive one of the following tiered monthly
discounts for AT&T MEGACOM Service - domestic gross usage in lieu of any
other term plan or discounts.
Monthly Domestic Gross Revenue Discount
------------------------------ --------
6.D.2. AT&T MEGACOM Services International Calling Capability as provided
under this Agreement: The customer will receive the following monthly
discounts for AT&T MEGACOM Services -International Calling Capability
gross usage in lieu of any other term plan or discounts.
Monthly International Gross Revenue Discounts
----------------------------------- ---------
6.D.3. The customer will receive one of the following tiered monthly
discounts for AT&T MEGACOM 800 Service - domestic gross usage in lieu of
any other term plan or discounts.
Monthly Domestic Gross Revenue Discount
------------------------------ --------
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6.E. Additional Discounts, Credits, Waivers.
--------------------------------------
6.E.1.
6.E.2.
6.E.3.
6.F. Classifications, Practices and Regulations. Except as otherwise
-------------------------------------------
provided in this Agreement, the terms, conditions, regulations and charges
for AT&T MEGACOM Service and International Calling Capability as set forth
in AT&T Tariff F. C. C. No 1; for AT&T MEGACOM 800 Service as set forth in
AT&T Tariff F. C. C. No 2, for Service Access Connections as w forth in
AT&T Tariff F. C. C. No. 9; and for AT&T Terrestrial 1.544 Mbps Local
Channel Service as set forth in AT&T Tariff F. C. C. No 11 apply, as these
tariffs may be amended from time to time.
6.F.1. The Customer may include usage from multiple Customer Premises to
satisfy its volume commitments and qualify for discounts.
6.G. Monitoring Conditions. The Customer must satisfy the following Service
----------------------
Requirements which will be monitored on each anniversary of the CISD. The
Monitoring Period is the 12 months immediately preceding each anniversary
of the CISD.
6.G.1. At least % of the Customer's AT&T MEGACOM Service and AT&T
MEGACOM 800 Service domestic usage provided under this Agreement,
following CISD, must be interstate minutes of use.
6.G.2. The Customer must have an Average Length of Call (ALOC) of at least
minutes each for AT&T MEGACOM Service and AT&T MEGACOM 800 Service calls.
If the Customer, during the Monitoring Period, has failed to satisfy any
of the above Monitoring Conditions, AT&T will notify the Customer in
writing of the specific failure(s) and the Customer will be billed and
shall pay within 30 days an amount equal to 20% of all usage billed for
the service to which each unfulfilled Monitoring Condition is applicable
during the Monitoring Period.
6.H. Discontinuance - In lieu of any Discontinuance With or Without Liability
---------------
provisions that are specified in the AT&T Tariff F.C.C. Nos. 1, 2, 9, 11
and 14 the following provisions shall apply.
6.H.l. Discontinuance Without Termination Liability. The Customer may
--------------------------------------------
discontinue this Agreement without incurring a Termination Charge as
defined in Paragraph 6.I., below, prior to the end of the Agreement Term,
provided the Customer
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replaces this Agreement with another AT&T Carrier Agreement for AT&T Tariff
F.C.C. Nos. 1 and 2 Services or equivalent services with revenue
commitments greater than commitments under this Agreement and with a term
equal or greater than the remaining term of this Agreement.
6.H.2. Termination Charge for Discontinuance Prior to End of Agreement
---------------------------------------------------------------
Term. If the Customer discontinues this Agreement prior to the expiration
-----
of the Agreement Term, or if AT&T terminates this Agreement or the service
provided pursuant to this Agreement due to Customer's breach of this
Agreement, prior to the expiration of the Agreement Term, the Customer will
be billed for and shall pay within 30 days a Termination Charge. The
Termination Charge will be an amount equal to 100% of the waived
nonrecurring charges provided for in this Agreement at the time of
discontinuance. Payment is due within 30 days.
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SCHEDULE A
================================================================================
International Usage Rates - AT&T MEGACOM Service-International Calling
- -------------------------
Capabilities
1. Mexico Rate Schedule - This schedule applies to Customer dialed calls to
stations in Mexico from the U.S. Mainland.
(a). The following rates for calls between the U.S. Mainland and the point
of connection at the international boundary apply for all days of the week
including holidays.
The rates for Customer Dialed Person (DP), Operator Placed Station (OS) and
Operator Placed Person-to-Person (OP) calls, (as defined in Section 24.1.2.B.
2.(a) of AT&T Tariff F.C.C. No. 27) between the point of connection at the
international boundary and Mexico are as specified in Section 24.1.2.B.2. of
AT&T Tariff F.C.C. No. 27.
The rates for calls between the point of connection at the international
boundary and Mexico are as specified in AT&T F.C.C. Tariff No. 1, Section
3.2.4.L.5, as amended from time to time.
2. All Other Countries - This schedule applies to Customer dialed calls to
stations in All Other Countries from the U.S.
Mainland.
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