EXHIBIT 10.28
AGREEMENT
BETWEEN
BELLSOUTH TELECOMMUNICATIONS INC.
AND
BUSINESS TELECOM, INC.
TABLE OF CONTENTS
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General Terms and Conditions
Part A
1. Purpose
2. Term of the Agreement
3. Ordering Procedures
4. Parity
5. White Pages Listings
6. Bona Fide Request/New Business Request Process for Further Unbundling
7. Court Ordered Requests for Call Detail Records and Other Subscriber
Information
8. Liability and Indemnification
9. Intellectual Property Rights and Indemnification
10. Treatment of Proprietary and Confidential Information
11. Assignments
12. Resolution of Disputes
13. Taxes
14. Force Majeure
15. Year 2000 Compliance
16. Modification of Agreement
17. Waivers
18. Governing Law
19. Arm's Length Negotiations
20. Notices
21. Rule of Construction
22. Headings of No Force or Effect
23. Multiple Counterparts
24. Implementation of Agreement
25. Filing of Agreement
26. Entire Agreement
Part B - Definitions
Attachment 1 - Resale
Attachment 2 - Network Elements and Other Services
Attachment 3 - Network Interconnection
Attachment 4 - Physical Collocation
Attachment 5 - Access to Numbers and Number Portability
Attachment 6 - Ordering and Provisioning
Attachment 7 - Billing and Billing Accuracy Certification
Attachment 8 - Rights-of-Way, Conduits and Pole Attachments
Attachment 9 - Performance Measurements
Attachment 10 - Agreement Implementation Template
General Terms and Conditions - Part A
Page 1
AGREEMENT
THIS AGREEMENT is made by and between BellSouth Telecommunications,
Inc., ("BellSouth"), a Georgia corporation, and Business Telecom, Inc., ("BTI")
a North Carolina corporation, and shall be deemed effective as of February 21,
2000. This Agreement may refer to either BellSouth or BTI or both as a "Party"
or "Parties."
W I T N E S S E T H
WHEREAS, BellSouth is a local exchange telecommunications company
authorized to provide telecommunications services in the states of Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina and Tennessee; and
WHEREAS, BTI is or seeks to become an alternative local exchange
telecommunications company ("CLEC") authorized to provide telecommunications
services in the states of Alabama, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina, and Tennessee; and
WHEREAS, the Parties wish to resell BellSouth's telecommunications
services and/or interconnect their facilities, purchase network elements and
other services, and exchange traffic specifically for the purposes of fulfilling
their obligations pursuant to sections 251 and 252 of the Telecommunications Act
of 1996 ("the Act").
NOW THEREFORE, in consideration of the mutual agreements contained
herein, BellSouth and BTI agree as follows:
1. Purpose
The Parties agree that the rates, terms and conditions contained
within this Agreement, including all Attachments, comply and conform
with each Parties' obligations under sections 251 and 252 of the Act.
The resale, access and interconnection obligations contained herein
enable BTI to provide competing telecommunications service pursuant
to the Act, to residential and business subscribers within the
territory of BellSouth. The Parties agree that BTI will not be
considered to have offered telecommunications services to the public
in any state within BellSouth's region until such time as it has
ordered services for resale or interconnection facilities for the
purposes of providing business and/or residential telecommunications
services pursuant to the Act to customers.
General Terms and Conditions - Part A
Page 2
2. Term of the Agreement
2.1 The term of this Agreement shall be two years, beginning February 21,
2000, and shall apply to the state(s) of Alabama, Florida, Georgia,
Kentucky, Louisiana, Mississippi, North Carolina, South Carolina and
Tennessee. If as of the expiration of this Agreement, a Subsequent
Agreement (as defined in Section 2.2 below) has not been executed by
the Parties, this Agreement shall continue on a month-to-month basis
while a Subsequent Agreement is being negotiated. The Parties' rights
and obligations with respect to this Agreement after expiration shall
be as set forth in Section 2.4 below.
2.2 The Parties agree that by no later than one hundred and eighty (180)
days prior to the expiration of this Agreement, they shall commence
negotiations with regard to the terms, conditions and prices of resale
and/or local interconnection to be effective beginning on the
expiration date of this Agreement ("Subsequent Agreement").
2.3 If, within one hundred and thirty-five (135) days of commencing the
negotiation referred to in Section 2.2 above, the Parties are unable
to satisfactorily negotiate new resale and/or local interconnection
terms, conditions and prices, either Party may petition the Commission
to establish appropriate local interconnection and/or resale
arrangements pursuant to 47 U.S.C. 252. The Parties agree that, in
such event, they shall encourage the Commission to issue its order
regarding the appropriate local interconnection and/or resale
arrangements no later than the expiration date of this Agreement. The
Parties further agree that in the event the Commission does not issue
its order prior to the expiration date of this Agreement, or if the
Parties continue beyond the expiration date of this Agreement to
negotiate the local interconnection and/or resale arrangements without
Commission intervention, the terms, conditions and prices ultimately
ordered by the Commission, or negotiated by the Parties, will be
effective retroactive to the day following the expiration date of this
Agreement.
2.4 Notwithstanding the foregoing, in the event that as of the date of
expiration of this Agreement the parties are negotiating in good faith
and have converted the existing agreement to a month-to-month term,
the Parties have not entered into a Subsequent Agreement and either no
arbitration proceeding has been filed in accordance with Section 2.3
above, or the Parties have not mutually agreed (where permissible) to
extend the arbitration window for petitioning the applicable
Commission(s) for resolution of those terms upon which the Parties
have not agreed, then either Party may terminate this Agreement upon
sixty (60) days notice to the other Party. In the event that
BellSouth terminates this Agreement as provided above, BellSouth shall
continue to offer services to BTI pursuant to the terms, conditions
and rates set forth in either BellSouth's Statement of Generally
Available Terms (SGAT) to the extent an SGAT has been approved by the
applicable Commission(s), or the then current standard interconnection
agreement. In the event that the SGAT or BellSouth's standard
General Terms and Conditions - Part A
Page 3
interconnection agreement becomes effective as between the Parties,
the Parties may continue to negotiate a Subsequent Agreement, and the
terms of such Subsequent Agreement shall be effective retroactive to
the day following expiration of this Agreement.
3. Ordering Procedures
3.1 BTI shall provide BellSouth its Carrier Identification Code (CIC),
Operating Company Number (OCN), Group Access Code (GAC) and Access
Customer Name and Address (ACNA) code as applicable prior to placing
its first order.
3.2 The Parties agree to adhere to the BellSouth Local Interconnection and
Facility Based Ordering Guide and Resale Ordering Guide, as
appropriate for the services ordered.
3.3 BTI shall pay charges for Operational Support Systems (OSS) as set
forth in this Agreement in Attachment 1 and/or in Attachment 2, 3, 5
and 7 as applicable.
4. Parity
When BTI purchases, pursuant to Attachment 1 of this Agreement,
telecommunications services from BellSouth for the purposes of resale
to end users, BellSouth shall provide said services so that the
services are equal in quality, subject to the same conditions, and
provided within the same provisioning time intervals that BellSouth
provides to its affiliates, subsidiaries and end users. To the extent
technically feasible, the quality of a Network Element, as well as the
quality of the access to such Network Element provided by BellSouth to
BTI shall be at least equal in quality to that which BellSouth
provides to itself. The quality of the interconnection between the
networks of BellSouth and the network of BTI shall be at a level that
is equal to that which BellSouth provides itself, a subsidiary, an
Affiliate, or any other party. The interconnection facilities shall
be designed to meet the same technical criteria and service standards
that are used within BellSouth's network and shall extend to a
consideration of service quality as perceived by end users and service
quality as perceived by BTI.
5. White Pages Listings
BellSouth shall provide BTI and their customers access to white pages
directory listings under the following terms:
5.1 Listings. BTI shall provide all new, changed and deleted listings on
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a timely basis and BellSouth or its agent will include BTI residential
and business customer listings in the appropriate White Pages
(residential and business) or alphabetical directories. Directory
listings will make no distinction between BTI and BellSouth
subscribers.
General Terms and Conditions - Part A
Page 4
5.2 Rates. Subscriber primary listing information in the White Pages
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shall be provided at no charge to BTI or its subscribers and BTI will
provide subscriber listing information to BellSouth at no charge.
5.3 Procedures for Submitting BTI Subscriber Information. BellSouth will
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provide to BTI a magnetic tape or computer disk containing the proper
format for submitting subscriber listings. BTI will be required to
provide BellSouth with directory listings and daily updates to those
listings, including new, changed, and deleted listings, on a magnetic
tape, computer disk, or other mutually agreed upon means. These
procedures are detailed in BellSouth's Local Interconnection and
Facility Based Ordering Guide.
5.4 Unlisted/Non-Published Subscribers. BTI will be required to provide
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to BellSouth the names, addresses and telephone numbers of all BTI
customers that wish to be omitted from directories.
5.5 Inclusion of BTI Customers in Directory Assistance Database.
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BellSouth will include and maintain BTI subscriber listings in
BellSouth's Directory Assistance databases at no charge and BTI shall
provide such Directory Assistance listings at no charge. BellSouth
and BTI will formulate appropriate procedures regarding lead time,
timeliness, format and content of listing information.
5.6 Listing Information Confidentiality. BellSouth will accord BTI's
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directory listing information the same level of confidentiality that
BellSouth accords its own directory listing information, and BellSouth
shall limit access to BTI's customer proprietary confidential
directory information to those BellSouth employees who are involved in
the preparation of listings.
5.7 Optional Listings. Additional listings and optional listings will be
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offered by BellSouth at tariffed rates as set forth in the General
Subscriber Services Tariff, less the wholesale discount.
5.8 Delivery. BellSouth or its agent shall deliver White Pages
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directories to BTI subscribers at no charge.
General Terms and Conditions - Part A
Page 5
6. Bona Fide Request/New Business Request Process for Further Unbundling
To the extent BTI is a facilities based provider or a facilities
based and resale provider, this section shall apply. BellSouth shall,
upon request of BTI, provide to BTI access to its network elements at
any technically feasible point for the provision of BTI's
telecommunications service where such access is necessary and failure
to provide access would impair the ability of BTI to provide services
that it seeks to offer. Any request by BTI for access to a network
element, interconnection option, or for the provisioning of any
service or product that is not already available shall be treated as a
Bona Fide Request/New Business Request, and shall be submitted to
BellSouth pursuant to the Bona Fide Request/New Business Request
process set forth following.
6.1 A Bona Fide Request/New Business Request shall be submitted in writing
to BTI's Account Manager by BTI and shall specifically identify the
requested service date, technical requirements, space requirements
and/or such specifications that clearly define the request such that
BellSouth has sufficient information to analyze and prepare a
response. Such a request also shall include BTI's designation of the
request as being (i) pursuant to the Telecommunications Act of 1996 or
(ii) pursuant to the needs of the business.
7. Court Ordered Requests for Call Detail Records and Other Subscriber
Information
To the extent technically feasible, BellSouth maintains call detail
records for BTI end users for limited time periods and can respond to
subpoenas and court ordered requests for this information. BellSouth
shall maintain such information for BTI end users for the same length
of time it maintains such information for its own end users.
7.1 BTI agrees that BellSouth will respond to subpoenas and court ordered
requests delivered directly to BellSouth for the purpose of providing
call detail records when the targeted telephone numbers belong to BTI
end users. Billing for such requests will be generated by BellSouth
and directed to the bona fide requesting party.
7.2 BTI agrees that in cases where BTI receives subpoenas or court ordered
requests for call detail records for targeted telephone numbers
belonging to BTI end users, BTI will advise the law enforcement agency
initiating the request to redirect the subpoena or court ordered
request to BellSouth. Billing for call detail information will be
generated by BellSouth and directed to the law enforcement agency
initiating the request.
7.3 In cases where the timing of the response to the law enforcement
agency prohibits BTI from having the subpoena or court ordered request
redirected to BellSouth by
General Terms and Conditions - Part A
Page 6
the law enforcement agency, BTI will furnish the official request to
BellSouth for providing the call detail information. BellSouth will
provide the call detail records to BTI and bill BTI a reasonable rate
for the information. BTI agrees to reimburse BellSouth for the call
detail information provided.
7.4 BTI will provide BTI end user and/or other customer information that
is available to BTI in response to subpoenas and court orders for
their own customer records. BellSouth will redirect subpoenas and
court ordered requests for BTI end user and/or other customer
information to BTI for the purpose of providing this information to
the law enforcement agency.
8. Liability and Indemnification
8.1 BellSouth Liability. BellSouth shall take financial responsibility
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for its own actions in causing, or its lack of action in preventing,
unbillable or uncollectible BTI revenues.
8.2 BTI Liability. In the event that BTI consists of two (2) or more
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separate entities as set forth in the preamble to this Agreement, all
such entities shall be jointly and severally liable for the
obligations of BTI under this Agreement.
8.3 Liability for Acts or Omissions of Third Parties. Neither BellSouth
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nor BTI shall be liable for any act or omission of another
telecommunications company providing a portion of the services
provided under this Agreement.
8.4 Limitation of Liability.
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8.4.1 Each Party's liability to the other for any loss, cost, claim, injury
or liability or expense, including reasonable attorney's fees relating
to or arising out of any negligent act or omission in its performance
of this Agreement whether in contract or in tort, shall be limited to
a credit for the actual cost of the services or functions not
performed or improperly performed.
8.4.2 Limitations in Tariffs. A Party may, in its sole discretion, provide
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in its tariffs and contracts with its Customer and third parties that
relate to any service, product or function provided or contemplated
under this Agreement, that to the maximum extent permitted by
Applicable Law, such Party shall not be liable to Customer or third
Party for (i) any Loss relating to or arising out of this Agreement,
whether in contract, tort or otherwise, that exceeds the amount such
Party would have charged that applicable person for the service,
product or function that gave rise to such Loss and (ii) Consequential
Damages. To the extent that a Party elects not to place in its tariffs
or contracts such limitations of liability, and the other Party incurs
a Loss as a result thereof, such Party shall indemnify and reimburse
the other Party for that portion of the Loss that would have been
limited had the first Party included in its tariffs and contracts the
limitations of liability that such other Party included in its own
tariffs at the time of such Loss.
General Terms and Conditions - Part A
Page 7
8.4.3 Neither BellSouth nor BTI shall be liable for damages to the other's
terminal location, POI or other company's customers' premises
resulting from the furnishing of a service, including, but not limited
to, the installation and removal of equipment or associated wiring,
except to the extent caused by a company's negligence or willful
misconduct or by a company's failure to properly ground a local loop
after disconnection.
8.4.4 Under no circumstance shall a Party be responsible or liable for
indirect, incidental, or consequential damages, including, but not
limited to, economic loss or lost business or profits, damages arising
from the use or performance of equipment or software, or the loss of
use of software or equipment, or accessories attached thereto, delay,
error, or loss of data. In connection with this limitation of
liability, each Party recognizes that the other Party may, from time
to time, provide advice, make recommendations, or supply other
analyses related to the Services, or facilities described in this
Agreement, and, while each Party shall use diligent efforts in this
regard, the Parties acknowledge and agree that this limitation of
liability shall apply to provision of such advice, recommendations,
and analyses.
8.5 Indemnification for Certain Claims. The Party providing services
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hereunder, its affiliates and its parent company, shall be
indemnified, defended and held harmless by the Party receiving
services hereunder against any claim, loss or damage arising from the
receiving company's use of the services provided under this Agreement
pertaining to (1) claims for libel, slander or invasion of privacy
arising from the content of the receiving company's own
communications, or (2) any claim, loss or damage claimed by the
customer of the Party receiving services arising from such company's
use or reliance on the providing company's services, actions, duties,
or obligations arising out of this Agreement.
8.6 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY IN THIS
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AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO
THE OTHER PARTY CONCERNING THE SPECIFIC QUALITY OF ANY SERVICES, OR
FACILITIES PROVIDED UNDER THIS AGREEMENT. THE PARTIES DISCLAIM,
WITHOUT LIMITATION, ANY WARRANTY OR GUARANTEE OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING, OR FROM USAGES OF TRADE.
9. Intellectual Property Rights and Indemnification
9.1 No License. No patent, copyright, trademark or other proprietary
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right is licensed, granted or otherwise transferred by this Agreement.
BTI is strictly prohibited from any use, including but not limited to
in sales, in marketing or
General Terms and Conditions - Part A
Page 8
advertising of telecommunications services, of any BellSouth name,
service mark or trademark.
9.2 Ownership of Intellectual Property. Any intellectual property which
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originates from or is developed by a Party shall remain in the
exclusive ownership of that Party. Except for a limited license to
use patents or copyrights to the extent necessary for the Parties to
use any facilities or equipment (including software) or to receive any
service solely as provided under this Agreement, no license in patent,
copyright, trademark or trade secret, or other proprietary or
intellectual property right now or hereafter owned, controlled or
licensable by a Party, is granted to the other Party or shall be
implied or arise by estoppel. It is the responsibility of each Party
to ensure at no additional cost to the other Party that it has
obtained any necessary licenses in relation to intellectual property
of third Parties used in its network that may be required to enable
the other Party to use any facilities or equipment (including
software), to receive any service, or to perform its respective
obligations under this Agreement.
9.3 Indemnification. The Party providing a service pursuant to this
---------------Agreement will defend the Party receiving such service
or data provided as a result of such service against claims of
infringement arising solely from the use by the receiving Party of
such service and will indemnify the receiving Party for any damages
awarded based solely on such claims in accordance with Section 8 of
this Agreement.
9.4 Claim of Infringement. In the event that use of any facilities or
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equipment (including software), becomes, or in reasonable judgment of
the Party who owns the affected network is likely to become, the
subject of a claim, action, suit, or proceeding based on intellectual
property infringement, then said Party shall promptly and at its sole
expense, but subject to the limitations of liability set forth below:
9.4.1 modify or replace the applicable facilities or equipment (including
software) while maintaining form and function, or
9.4.2 obtain a license sufficient to allow such use to continue.
9.4.3 In the event 9.4.1 or 9.4.2 are commercially unreasonable, then said
Party may, terminate, upon reasonable notice, this contract with
respect to use of, or services provided through use of, the affected
facilities or equipment (including software), but solely to the extent
required to avoid the infringement claim.
9.5 Exception to Obligations. Neither Party's obligations under this
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Section shall apply to the extent the infringement is caused by: (i)
modification of the facilities or equipment (including software) by
the indemnitee; (ii) use by the indemnitee of the facilities or
equipment (including software) in combination with equipment or
facilities (including software) not provided or authorized by the
indemnitor provided the facilities or equipment (including software)
would not be infringing
General Terms and Conditions - Part A
Page 9
if used alone; (iii) conformance to specifications of the indemnitee
which would necessarily result in infringement; or (iv) continued use
by the indemnitee of the affected facilities or equipment (including
software) after being placed on notice to discontinue use as set forth
herein.
9.6 Exclusive Remedy. The foregoing shall constitute the Parties' sole
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and exclusive remedies and obligations with respect to a third party
claim of intellectual property infringement arising out of the conduct
of business under this Agreement.
10. Treatment of Proprietary and Confidential Information
10.1 Confidential Information. It may be necessary for BellSouth and BTI
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to provide each other with certain confidential information, including
trade secret information, including but not limited to, technical and
business plans, technical information, proposals, specifications,
drawings, procedures, customer account data, call detail records and
like information (hereinafter collectively referred to as
"Information"). All Information shall be in writing or other
tangible form and clearly marked with a confidential, private or
proprietary legend and that the Information will be returned to the
owner within a reasonable time. The Information shall not be copied
or reproduced in any form. BellSouth and BTI shall receive such
Information and not disclose such Information. BellSouth and BTI
shall protect the Information received from distribution, disclosure
or dissemination to anyone except employees of BellSouth and BTI with
a need to know such Information and which employees agree to be bound
by the terms of this Section. BellSouth and BTI will use the same
standard of care to protect Information received as they would use to
protect their own confidential and proprietary Information.
10.2 Exception to Obligation. Notwithstanding the foregoing, there will be
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no obligation on BellSouth or BTI to protect any portion of the
Information that is: (1) made publicly available by the owner of the
Information or lawfully disclosed by a Party other than BellSouth or
BTI; (2) lawfully obtained from any source other than the owner of
the Information; or (3) previously known to the receiving Party
without an obligation to keep it confidential.
General Terms and Conditions - Part A
Page 10
11. Assignments
Any assignment by either Party to any non-affiliated entity of any
right, obligation or duty, or of any other interest hereunder, in
whole or in part, without the prior written consent of the other Party
shall be void. A Party may assign this Agreement or any right,
obligation, duty or other interest hereunder to an Affiliate company
of the Party without the consent of the other Party. All obligations
and duties of any Party under this Agreement shall be binding on all
successors in interest and assigns of such Party. No assignment or
delegation hereof shall relieve the assignor of its obligations under
this Agreement in the event that the assignee fails to perform such
obligations.
12. Resolution of Disputes
Except as otherwise stated in this Agreement, the Parties agree that
if any dispute arises as to the interpretation of any provision of
this Agreement or as to the proper implementation of this Agreement,
either Party may petition the Commission for a resolution of the
dispute. However, each Party reserves any rights it may have to seek
judicial review of any ruling made by the Commission concerning this
Agreement.
13. Taxes
13.1 Definition. For purposes of this Section, the terms "taxes" and
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"fees" shall include but not limited to federal, state or local sales,
use, excise, gross receipts or other taxes or tax-like fees of
whatever nature and however designated (including tariff surcharges
and any fees, charges or other payments, contractual or otherwise, for
the use of public streets or rights of way, whether designated as
franchise fees or otherwise) imposed, or sought to be imposed, on or
with respect to the services furnished hereunder or measured by the
charges or payments therefore, excluding any taxes levied on income.
13.2 Taxes and Fees Imposed Directly On Either Providing Party or
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Purchasing Party.
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13.2.1 Taxes and fees imposed on the providing Party, which are not permitted
or required to be passed on by the providing Party to its customer,
shall be borne and paid by the providing Party.
13.2.2 Taxes and fees imposed on the purchasing Party, which are not required
to be collected and/or remitted by the providing Party, shall be borne
and paid by the purchasing Party.
13.3 Taxes and Fees Imposed on Purchasing Party But Collected And Remitted
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By Providing Party.
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General Terms and Conditions - Part A
Page 11
13.3.1 Taxes and fees imposed on the purchasing Party shall be borne by the
purchasing Party, even if the obligation to collect and/or remit such
taxes or fees is placed on the providing Party.
13.3.2 To the extent permitted by applicable law, any such taxes and/or fees
shall be shown as separate items on applicable billing documents
between the Parties. Notwithstanding the foregoing, the purchasing
Party shall remain liable for any such taxes and fees regardless of
whether they are actually billed by the providing Party at the time
that the respective service is billed.
13.3.3 If the purchasing Party determines that in its opinion any such taxes
or fees are not payable, the providing Party shall not bill such taxes
or fees to the purchasing Party if the purchasing Party provides
written certification, reasonably satisfactory to the providing Party,
stating that it is exempt or otherwise not subject to the tax or fee,
setting forth the basis therefor, and satisfying any other
requirements under applicable law. If any authority seeks to collect
any such tax or fee that the purchasing Party has determined and
certified not to be payable, or any such tax or fee that was not
billed by the providing Party, the purchasing Party may contest the
same in good faith, at its own expense. In any such contest, the
purchasing Party shall promptly furnish the providing Party with
copies of all filings in any proceeding, protest, or legal challenge,
all rulings issued in connection therewith, and all correspondence
between the purchasing Party and the taxing authority.
13.3.4 In the event that all or any portion of an amount sought to be
collected must be paid in order to contest the imposition of any such
tax or fee, or to avoid the existence of a lien on the assets of the
providing Party during the pendency of such contest, the purchasing
Party shall be responsible for such payment and shall be entitled to
the benefit of any refund or recovery.
13.3.5 If it is ultimately determined that any additional amount of such a
tax or fee is due to the imposing authority, the purchasing Party
shall pay such additional amount, including any interest and penalties
thereon.
13.3.6 Notwithstanding any provision to the contrary, the purchasing Party
shall protect, indemnify and hold harmless (and defend at the
purchasing Party's expense) the providing Party from and against any
such tax or fee, interest or penalties thereon, or other charges or
payable expenses (including reasonable attorney fees) with respect
thereto, which are incurred by the providing Party in connection with
any claim for or contest of any such tax or fee.
13.3.7 Each Party shall notify the other Party in writing of any assessment,
proposed assessment or other claim for any additional amount of such a
tax or fee by a taxing authority; such notice to be provided, if
possible, at least ten (10) days prior to the date by which a
response, protest or other appeal must be filed, but in no event later
than thirty (30) days after receipt of such assessment, proposed
assessment or claim.
General Terms and Conditions - Part A
Page 12
13.4 Taxes and Fees Imposed on Providing Party But Passed On To Purchasing
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Party.
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13.4.1 Taxes and fees imposed on the providing Party, which are permitted or
required to be passed on by the providing Party to its customer, shall
be borne by the purchasing Party.
13.4.2 To the extent permitted by applicable law, any such taxes and/or fees
shall be shown as separate items on applicable billing documents
between the Parties. Notwithstanding the foregoing, the purchasing
Party shall remain liable for any such taxes and fees regardless of
whether they are actually billed by the providing Party at the time
that the respective service is billed.
13.4.3 If the purchasing Party disagrees with the providing Party's
determination as to the application or basis for any such tax or fee,
the Parties shall consult with respect to the imposition and billing
of such tax or fee. Notwithstanding the foregoing, the providing Party
shall retain ultimate responsibility for determining whether and to
what extent any such taxes or fees are applicable, and the purchasing
Party shall abide by such determination and pay such taxes or fees to
the providing Party. The providing Party shall further retain
ultimate responsibility for determining whether and how to contest the
imposition of such taxes and fees; provided, however, that any such
contest undertaken at the request of the purchasing Party shall be at
the purchasing Party's expense.
13.4.4 In the event that all or any portion of an amount sought to be
collected must be paid in order to contest the imposition of any such
tax or fee, or to avoid the existence of a lien on the assets of the
providing Party during the pendency of such contest, the purchasing
Party shall be responsible for such payment and shall be entitled to
the benefit of any refund or recovery.
13.4.5 If it is ultimately determined that any additional amount of such a
tax or fee is due to the imposing authority, the purchasing Party
shall pay such additional amount, including any interest and penalties
thereon.
13.4.6 Notwithstanding any provision to the contrary, the purchasing Party
shall protect indemnify and hold harmless (and defend at the
purchasing Party's expense) the providing Party from and against any
such tax or fee, interest or penalties thereon, or other reasonable
charges or payable expenses (including reasonable attorney fees) with
respect thereto, which are incurred by the providing Party in
connection with any claim for or contest of any such tax or fee.
13.4.7 Each Party shall notify the other Party in writing of any assessment,
proposed assessment or other claim for any additional amount of such a
tax or fee by a taxing authority; such notice to be provided, if
possible, at least ten (10) days prior to the date by which a
response, protest or other appeal must be filed, but in
General Terms and Conditions - Part A
Page 13
no event later than thirty (30) days after receipt of such assessment,
proposed assessment or claim.
13.5 Mutual Cooperation. In any contest of a tax or fee by one Party, the
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other Party shall cooperate fully by providing records, testimony and
such additional information or assistance as may reasonably be
necessary to pursue the contest. Further, the other Party shall be
reimbursed for any reasonable and necessary out-of-pocket copying and
travel expenses incurred in assisting in such contest.
14. Force Majeure
In the event performance of this Agreement, or any obligation
hereunder, is either directly or indirectly prevented, restricted, or
interfered with by reason of fire, flood, earthquake or like acts of
God, wars, revolution, civil commotion, explosion, acts of public
enemy, embargo, acts of the government in its sovereign capacity,
labor difficulties, including without limitation, strikes, slowdowns,
picketing, or boycotts, unavailability of equipment from vendor,
changes requested by Customer, or any other circumstances beyond the
reasonable control and without the fault or negligence of the Party
affected, the Party affected, upon giving prompt notice to the other
Party, shall be excused from such performance on a day-to-day basis to
the extent of such prevention, restriction, or interference (and the
other Party shall likewise be excused from performance of its
obligations on a day-to-day basis until the delay, restriction or
interference has ceased); provided however, that the Party so affected
shall use diligent efforts to avoid or remove such causes of non-
performance and both Parties shall proceed whenever such causes are
removed or cease.
15. Year 2000 Compliance
Each Party warrants that it has implemented a program the goal of
which is to ensure that all software, hardware and related materials
(collectively called "Systems") delivered, connected with BellSouth or
supplied in the furtherance of the terms and conditions specified in
this Agreement: (i) will record, store, process and display calendar
dates falling on or after January 1, 2000, in the same manner, and
with the same functionality as such software records, stores,
processes and calendar dates falling on or before December 31, 1999;
and (ii) shall include without limitation date data century
recognition, calculations that accommodate same century and
multicentury formulas and date values, and date data interface values
that reflect the century.
16. Modification of Agreement
16.1 BellSouth shall make available, pursuant to 47 USC (S) 252 and the FCC
rules and regulations regarding such availability, to BTI any
interconnection, service, or network element provided under any other
agreement filed and approved pursuant to 47 USC (S) 252. The Parties
shall adopt all rates, terms and conditions concerning
General Terms and Conditions - Part A
Page 14
such other interconnection, service or network element and any other
rates, terms and conditions that are interrelated or were negotiated
in exchange for or in conjunction with the interconnection, service or
network element being adopted. The adopted interconnection, service,
or network element and agreement shall apply to the same states as
such other agreement and for the identical term of such other
agreement.
16.2 If BTI changes its name or makes changes to its company structure or
identity due to a merger, acquisition, transfer or any other reason,
it is the responsibility of BTI to notify BellSouth of said change and
request that an amendment to this Agreement, if necessary, be executed
to reflect said change.
16.3 No modification, amendment, supplement to, or waiver of the Agreement
or any of its provisions shall be effective and binding upon the
Parties unless it is made in writing and duly signed by the Parties.
16.4 Execution of this Agreement by either Party does not confirm or infer
that the executing Party agrees with any decision(s) issued pursuant
to the Telecommunications Act of 1996 and the consequences of those
decisions on specific language in this Agreement. Neither Party
waives its rights to appeal or otherwise challenge any such
decision(s) and each Party reserves all of its rights to pursue any
and all legal and/or equitable remedies, including appeals of any such
decision(s).
16.5 In the event that any final and nonappealable legislative, regulatory,
judicial or other legal action materially affects any material terms
of this Agreement, or the ability of BTI or BellSouth to perform any
material terms of this Agreement, BTI or BellSouth may, on thirty (30)
days' written notice require that such terms be renegotiated, and the
Parties shall renegotiate in good faith such mutually acceptable new
terms as may be required. In the event that such new terms are not
renegotiated within ninety (90) days after such notice, the Dispute
shall be referred to the Dispute Resolution procedure set forth in
Section 12.
16.6 If any provision of this Agreement, or the application of such
provision to either Party or circumstance, shall be held invalid, the
remainder of the Agreement, or the application of any such provision
to the Parties or circumstances other than those to which it is held
invalid, shall not be effective thereby, provided that the Parties
shall attempt to reformulate such invalid provision to give effect to
such portions thereof as may be valid without defeating the intent of
such provision.
17. Waivers
A failure or delay of either Party to enforce any of the provisions
hereof, to exercise any option which is herein provided, or to require
performance of any of the provisions hereof shall in no way be
construed to be a waiver of such provisions or options, and each
Party, notwithstanding such failure, shall have the right thereafter
General Terms and Conditions - Part A
Page 15
to insist upon the specific performance of any and all of the
provisions of this Agreement.
18. Governing Law
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Georgia, without regard to
its conflict of laws principles.
19. Arm's Length Negotiations
This Agreement was executed after arm's length negotiations between
the undersigned Parties and reflects the conclusion of the undersigned
that this Agreement is in the best interests of all Parties.
20. Notices
20.1 Every notice, consent, approval, or other communications required or
contemplated by this Agreement shall be in writing and shall be
delivered in person or given by postage prepaid mail, address to:
BellSouth Telecommunications, Inc.
CLEC Account Team
9/th/ Floor
600 North 19/th/ Street
Birmingham, Alabama 35203
and
General Attorney - COU
Suite 4300
675 W. Peachtree St.
Atlanta, GA 30375
BTI
Anthony M. Copeland
Executive Vice President and General Counsel
4300 Six Forks Road
Raleigh, North Carolina 27609
or at such other address as the intended recipient previously shall
have designated by written notice to the other Party.
General Terms and Conditions - Part A
Page 16
20.2 Where specifically required, notices shall be by certified or
registered mail. Unless otherwise provided in this Agreement, notice
by mail shall be effective on the date it is officially recorded as
delivered by return receipt or equivalent, and in the absence of such
record of delivery, it shall be presumed to have been delivered the
fifth day, or next business day after the fifth day, after it was
deposited in the mails.
20.3 BellSouth shall provide BTI notice via Internet posting of price
changes and of changes to the terms and conditions of services
available for resale.
21. Rule of Construction
No rule of construction requiring interpretation against the drafting
Party hereof shall apply in the interpretation of this Agreement.
22. Headings of No Force or Effect
The headings of Articles and Sections of this Agreement are for
convenience of reference only, and shall in no way define, modify or
restrict the meaning or interpretation of the terms or provisions of
this Agreement.
23. Multiple Counterparts
This Agreement may be executed multiple counterparts, each of which
shall be deemed an original, but all of which shall together
constitute but one and the same document.
24. Implementation of Agreement
If BTI is a facilities based provider or a facilities based and resale
provider, this section shall apply. Within 60 days of the execution
of this Agreement, the Parties will adopt a schedule for the
implementation of the Agreement. The schedule shall state with
specificity time frames for submission of including but not limited
to, network design, interconnection points, collocation arrangement
requests, pre-sales testing and full operational time frames for the
business and residential markets. An implementation template to be
used for the implementation schedule is contained in Attachment 10 of
this Agreement.
25. Filing of Agreement
Upon execution of this Agreement it shall be filed with the
appropriate state regulatory agency pursuant to the requirements of
Section 252 of the Act. If the regulatory agency imposes any filing
or public interest notice fees regarding the filing or approval of the
Agreement, BTI shall be responsible for publishing the required notice
and the publication and/or notice costs shall be borne by BTI.
General Terms and Conditions - Part A
Page 17
26. Entire Agreement
This Agreement and its Attachments, incorporated herein by this
reference, sets forth the entire understanding and supersedes prior
Agreements between the Parties relating to the subject matter
contained herein and merges all prior discussions between them, and
neither Party shall be bound by any definition, condition, provision,
representation, warranty, covenant or promise other than as expressly
stated in this Agreement or as is contemporaneously or subsequently
set forth in writing and executed by a duly authorized officer or
representative of the Party to be bound thereby.
This Agreement may include attachments with provisions for the
following services:
Network Elements and Other Services
Local Interconnection
Resale
Collocation
The following services are included as options for purchase by BTI.
BTI shall elect said services by written request to its Account
Manager if applicable.
Optional Daily Usage File (ODUF)
Enhanced Optional Daily Usage File (EODUF)
Access Daily Usage File (ADUF)
Line Information Database (LIDB) Storage
Centralized Message Distribution Service (CMDS)
Calling Name (CNAM)
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year
above first written.
BellSouth Telecommunications, Inc. Business Telecom, Inc.
/s/ Jerry Hendrix /s/ Anthony M. Copeland
- ----------------------------- ----------------------------------------
Signature Signature
Jerry Hendrix Anthony M. Copeland
- ----------------------------- ----------------------------------------
Name Name
Senior Director Executive Vice President/General Counsel
---------------------------- ----------------------------------------
Title Title
02/21/00 February 16, 2000
- ----------------------------- ----------------------------------------
Date Date