1
PORTIONS OF THIS EXHIBIT FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN
GRANTED ARE MARKED BY BRACKETS [ ].
EXHIBIT 10.47
WILMAX TSA#MCL-940211
TELECOMMUNICATIONS SERVICES AGREEMENT
This Telecommunications Services Agreement (hereinafter referred to as
the "Agreement" or the "TSA") is entered into this 14th day of March, 1994, by
and between WILTEL, INC., a Delaware corporation, with its principal office at
One Williams Center, Tulsa, Oklahoma, 74172 ("WilTel") and MCLEOD TELEMANAGEMENT
INC., a Iowa corporation, with its principal office at 221 3rd Avenue SE, Cedar
Rapids, Iowa 52401 ("Customer").
WITNESSETH:
WilTel agrees to provide and Customer agrees to accept switched
telecommunications services ("Switched Services") and other associated services
(collectively the "Services"), (i) as described in the Service Schedules
identified herewith, (ii) subject to the terms and conditions contained in this
Agreement, including without limitation those and conditions contained in the
Program Enrollment Terms ("PET") which are attached hereto and incorporated
herein by reference, and (iii) in conformity with each Service Request
(described below) which is accepted hereunder.
In the event of a conflict between the terms of this Agreement, the
PET, the Service Schedule/Pricing Exhibit and the Service Request(s), the
following order of precedence will prevail: (1) PET, (2) Service
Schedule/Pricing Exhibit, (3) the Agreement, and (4) Service Request(s).
NOW, THEREFORE, in consideration of the above premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. TERM.
(A) Effective Date. This Agreement shall be effective between the
parties as of the date first written above (the "Effective Date") and
shall continue for the period of time set forth in the PET (the
"Term"). Upon the expiration of the Term, the Service in question
will continue to be provided subject to termination by either party
upon thirty (30) days prior written notice to the other party.
Customer shall be liable for all charges associated with actual usage
of the Service in question during the Term and any extension thereof.
(B) PET. The PET, as subscribed to by the parties, shall set forth
the Discount Schedule applicable to Switched Service charges due under
this Agreement, Customer's Minimum Monthly Commitment, if any, and
other information necessary to provide the Service under this
Agreement.
(C) Start of Service. WilTel's obligation to provide and
Customer's obligation to accept and pay for non-usage sensitive
charges for Service shall be binding to the extent provided for in
this Agreement upon the submission of an acceptable Service Request to
WilTel by Customer. Customer's obligation to pay for usage sensitive
charges for Switched Services shall commence with respect to any
Service as of the earlier of (i) the "Requested Service Date" set
forth in each Service Request, or (ii) the date the Service in
question is made available to Customer and used ("Start of Service").
Start of Service for particular Services shall be further described in
the Service Schedule relevant to the Switched Service in question.
(D) Service Schedules. Services to be provided under this
Agreement shall be described in the WilTel Service Schedule which is
subscribed to by authorized representatives of WilTel and
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Customer (collectively referred to as the "Service Schedules"). Each
Service Schedule shall become a part of this Agreement to the extent
that it describes the particular Services therefor, specific terms and
other information necessary or appropriate for WilTel to provide such
Service(s) to Customer.
(E) Service Requests. Customer's requests to initiate or cancel
Services shall be described in an appropriate WilTel Service Request
("Service Requests"). Service Requests may consist of machine
readable tapes, facsimiles or other means approved by WilTel.
Further, Service Requests shall specify all reasonable information, as
determined by WilTel, necessary or appropriate for WilTel to provide
the Service(s) in question, which shall include without limitation,
the type, quantity and end point(s) (when necessary) of circuits
comprising a Service Interconnection as described in the applicable
Service Schedules, or automatic number identification ("ANI")
information relevant to the Service(s), the Requested Service Date,
and charges, if any, relevant to the Services described in the Service
Request. After WilTel's receipt and verification of a valid Service
Request for SWITCHED Service (as defined in the Service Schedule)
requiring a change in the primary interexchange carrier ("PIC"),
WilTel agrees to (i) submit the ANI(s) relevant to such Service
Requests to the following local exchange carriers ("LECs") (with which
WilTel currently has electronic interface capabilities) within ten
(10) days: Ameritech, Bell Atlantic, BellSouth, Nynex, Pacific Bell,
Southwestern Bell, US West, GTE and United, and (ii) submit the ANI(s)
relevant to such Service Requests to those LECs with which WilTel does
not have electronic interface capabilities within a reasonable time.
2. Cancellation.
(A) Cancellation Charge. At any time after the Effective Date,
Customer may cancel this Agreement if Customer provides written
notification thereof to WilTel not less than thirty (30) days prior to
the effective date of cancellation. In such case (or in the event
WilTel terminates this Agreement as provided in Section 8), Customer
shall pay to WilTel all charges for Service provided through the
effective date of such cancellation plus a cancellation charge (the
"Cancellation Charge") equal to one hundred percent (100%) of the
Minimum Monthly Commitment, if any, (as described in the PET) that
would have become due for the unexpired portion of the Term.
(B) Liquidated Damages. It is agreed that WilTel's damages in the
event Customer cancels Service shall be difficult or impossible to
ascertain. The provision for a cancellation charge in Subsection 2(A)
above is intended, therefore, to establish liquidated damages in the
event of a cancellation and is not intended as a penalty.
(C) Cancellation Without Charge. Notwithstanding anything to the
contrary contained in Subsection 2(A) above, Customer may cancel this
Agreement without incurring any cancellation charge if (i) WilTel
fails to provide a network as warranted in Section 9 below; (ii)
WilTel fails to deliver call detail records promptly based on the
frequency selected by Customer (i.e., monthly, weekly or daily); or
(iii) WilTel fails to submit ANI(s) relevant to such Service Requests
to the LECs within the time period described in Subsection 1(E) above.
Provided, however, Customer must give WilTel written notice of any
such default and an opportunity to cure such default within five (5)
days of the notice. In the event WilTel fails to cure any such
default within the five-day period on more than three (3) occasions
within any six (6) month period, Customer may cancel this Agreement
without incurring any cancellation charge.
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3. Customer's End Users.
(A) End Users. Customer will obtain and upon WilTel's request
provide WilTel (within two (2) business days of the date of the
request) a written Letter of Agency ("LOA") acceptable to WilTel [or
with any other means approved by the Federal Communications Commission
("FCC")], for each ANI indicating the consent of the end users of
Customer ("End Users") to be served by Customer and transferred (by
way of change of such End User's designated PIC) to the WilTel network
prior to order processing. Each LOA will provide, among other things,
that the End Users have consented to the transfer being performed by
Customer or Customer's designee. When applicable, Customer will be
responsible for notifying End Users, in writing (or by any other means
approved by the FCC) that (i) a transfer charge will be reflected on
their LEC bill for effecting a change in their primary interexchange
carrier ("PIC"), (ii) the entity name under which their interstate,
intrastate and/or operator services will be billed (if different from
Customer), and (iii) the "primary" telephone number(s) to be used for
maintenance and questions concerning their long distance service
and/or billing. Customer agrees to send WilTel a copy of the
documentation Customer uses to satisfy the above requirements promptly
upon request of WilTel. WilTel may change the foregoing requirements
for Customer's confirming orders and/or for notifying End Users
regarding the transfer charge at any time in order to conform with
applicable FCC and state regulations. Provided, however, Customer
will be solely responsible for ensuring that the transfer of End Users
to the WilTel network conforms with applicable FCC and state
regulations, including without limitation, the regulations established
by the FCC with respect to verification of orders for long distance
service generated by telemarketing as promulgated in 47 C.F.R., Part
64, Subpart K, Section 64.1100 or any successor regulation(s).
(B) Transfer Charges/Disputed Transfers. Customer agrees that it
is responsible for (i) all charges incurred by WilTel to change the
PIC of End Users to the WilTel network, (ii) all charges incurred by
WilTel to change End Users back to their previous PIC arising from
disputed transfers to the WilTel network plus an administrative charge
equal to twenty percent (20%) of such charges, and (iii) any other
damages suffered by or awards against WilTel resulting from disputed
transfers.
(C) Excluded ANIs. WilTel has the right to reject any ANI supplied
by Customer for any of the following reasons: (i) WilTel is not
authorized to provide or does not provide long distance services in
the particular jurisdiction in which the ANI is located, (ii) a
particular ANI submitted by Customer is not in proper form, (iii)
Customer is not certified to provide long distance services in the
jurisdiction in which the ANI is located, (iv) Customer is in default
of this Agreement, (v) Customer fails to cooperate with WilTel in
implementing reasonable verification processes determined by WilTel to
be necessary or appropriate in the conduct of business, or (vi) any
other circumstance reasonably determined by WilTel which could
adversely affect WilTel's performance under this Agreement or WilTel's
general ability to transfer its other customers or other end users to
the WilTel network, including without limitation, WilTel's ability to
electronically effect PIC changes with the LECs. In the event WilTel
rejects an ANI, WilTel will notify Customer as soon as possible of its
decision specifically describing the rejected ANI and the reason(s)
for rejecting that ANI, and will not incur any further liability under
this Agreement with regard to that ANI. Further, any ANI requested by
Customer for Switched Service may be deactivated by WilTel if no
Switched Service billings relevant thereto are generated in any three
(3) consecutive calendar month/billing periods. WilTel will be under
no obligation to accept ANIs within the three (3) full calendar month
period preceding the scheduled expiration of the Term.
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(D) Records. Customer will maintain documents and records
("Records") supporting Customer's re-sale of Switched Service,
including, but not limited to, appropriate and valid LOAs from End
Users for a period of not less than 12 months or such other longer
period as may be required by applicable law, rule or regulation.
Customer shall indemnify WilTel for any costs, charges or expenses
incurred by WilTel arising from disputed PIC selections involving
Switched Service to be provided to Customer for which Customer cannot
produce an appropriate LOA relevant to the ANI and PIC charge in
question, or when WilTel is not reasonably satisfied that the validity
of a disputed LOA has been resolved.
(E) Customer Service. Customer will be solely responsible for
billing the End Users and providing the End Users with customer
service. Customer agrees to immediately notify WilTel in the event an
End User notifies Customer of problems associated with the Service,
including without limitation, excess noise, echo, or loss of Service.
4. CUSTOMER'S RESPONSIBILITIES.
(A) Expedite Charges. In the event Customer requests expeditious
Service and/or changes to Service Orders and WilTel agrees to such
request, WilTel will pass through the charges assessed by any
supplying parties (e.g., local access providers) involved at the same
rate to Customer. WilTel may further condition its performance of
such request upon Customer's payment of additional charges to WilTel.
(B) Fraudulent Calls. Customer shall indemnify and hold WilTel
harmless from all costs, expenses, claims or actions arising from
fraudulent calls of any nature which may comprise a portion of the
Service to the extent that the party claiming the call(s) in question
to be fraudulent is (or had been at the time of the call) an End User
of the Service through Customer or an end user of the Service through
Customer's distribution channels. Customer shall not be excused from
paying WilTel for Service provided to Customer or any portion thereof
on the basis that fraudulent calls comprised a corresponding portion
of the Service. In the event WilTel discovers fraudulent calls being
made (or reasonably believes fraudulent calls are being made), nothing
contained herein shall prohibit WilTel from taking immediate action
(without notice to Customer) that is reasonably necessary to prevent
such fraudulent calls from taking place, including without limitation,
denying Service to particular ANIs or terminating Service to or from
specific locations.
5. CHARGES AND PAYMENT TERMS.
(A) Payment. WilTel billings for Service are made on a monthly
basis (or such other basis as may be mutually agreed to by the
parties) following Start of Service. Subject to Subsection 5(D)
below, Service shall be billed at the rates set forth on the Pricing
Exhibit executed by the parties and attached hereto and incorporated
herewith, and Service Requests, as the case may be. Discounts, if
any, applicable to the rates for certain Switched Services are set
forth in the PET. Customer will pay each WilTel invoice in full for
Switched Service within thirty (30) days of the invoice date set forth
on each WilTel invoice to Customer ("DUE DATE"). If payment is not
received by WilTel on or before the Due Date, Customer shall also pay
a late fee in the amount of the lesser of one and one-half percent (1
1/2%) of the unpaid balance of the Service charges per month or the
maximum lawful rate under applicable state law.
(B) Definitions. Time of day rate periods (including WilTel
Recognized National Holidays) will be as described in WilTel's F.C.C.
Tariff No. 5.
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(C) Taxes. Customer acknowledges and understands that WilTel
computes all charges herein exclusive of any applicable federal, state
or local use, excise, gross receipts, sales and privilege taxes,
duties, fees or similar liabilities (other than general income or
property taxes), whether charged to or against WilTel or Customer
because of the Service furnished to Customer ("ADDITIONAL CHARGES").
Customer shall pay such Additional Charges in addition to all other
charges provided for herein.
(D) Modification of Charges. WilTel reserves the right to
eliminate Service offerings and/or modify charges for Service
offerings (which charge modifications shall not exceed then-current
generally available WilTel charges for comparable services), upon not
less than sixty (60) days prior notice to Customer, which notice will
state the effective date for the charge modification. In the event
WilTel notifies Customer of an increase in the charges, Customer may
terminate this Agreement, without incurring a cancellation charge only
with respect to the Service offering affected by the increase in
charges. In order to cancel that offering, Customer must notify
WilTel, in writing, at least thirty (30) days prior to the effective
date of the increase in charges. Further, in the event Customer
cancels its subscription to a Switched Service offering as described
in this Subsection 5(D), WilTel and Customer agree to negotiate in
good faith concerning Customer's Minimum Monthly Commitment, if any,
described in the PET.
(E) Billing Disputes. Notwithstanding the foregoing, late fees
shall apply (but shall not be due and payable for a period of sixty
(60) days following the Due Date therefor) for amounts reasonably
disputed by Customer, provided Customer: (i) pays all undisputed
charges on or before the Due Date, (ii) presents a written statement
of any billing discrepancies to WilTel in reasonable detail on or
before the Due Date of the invoice in question, and (iii) negotiates
in good faith with WilTel for the purpose of resolving such dispute
within said sixty (60) day period. In the event such dispute is
resolved in favor of WilTel, Customer agrees to pay WilTel the
disputed amounts together with any applicable late fees within ten
(10) days of the resolution. In the event such dispute is resolved in
favor of Customer, Customer will receive a credit for the disputed
charges in question and the applicable late fees. In the event the
dispute can not be resolved within such sixty (60) day period (unless
WilTel has agreed in writing to extend such period) all disputed
amounts together with late fees shall become due and payable, and this
provision shall not be construed to prevent Customer from pursuing any
available legal remedies. WilTel shall not be obligated to consider
any Customer notice of billing discrepancies which are received by
WilTel more than sixty (60) days following the Due Date of the invoice
in question.
(F) Suspension of Service. In the event charges due pursuant to
WilTel's invoice are not paid in full by the Due Date, WilTel shall
have the right, after giving Customer ten (10) days prior notice (in
which case suspension may be effective as of the day following the Due
Date), to suspend all or any portion of the Service to Customer
("SUSPENSION NOTICE") until such time (designated by WilTel in its
Suspension Notice) as Customer has paid in full all charges then due
to WilTel, including any late fees. Following such payment, WilTel
shall reinstitute Service to Customer only when Customer provides
WilTel with satisfactory assurance of Customer's ability to pay for
Service (i.e., a deposit, letter of credit or other means acceptable
to WilTel) and Customer's advance payment of the cost of reinstituting
Service. If Customer fails to make the required payment by the date
set forth in the Suspension Notice, Customer will be deemed to have
canceled the Service suspended effective as of the date of suspension.
Such cancellation shall not relieve Customer for payment of applicable
cancellation charges as described in Section 2.
6. CREDIT: Customer's execution of this Agreement signifies Customer's
acceptance of WilTel's initial and continuing credit approval procedures and
policies. WilTel reserves the right to withhold
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initiation or full implementation of Service under this Agreement pending
WilTel's initial satisfactory credit review and approval thereof which may be
conditioned upon terms specified by WilTel, including, but not limited to,
security for payments due hereunder in the form of a cash deposit or other
means. WilTel reserves the right to modify its requirements, if any, with
respect to any security or other assurance provided by Customer for payments
due hereunder in light of Customer's actual usage when compared to projected
usage levels upon which any security or assurance requirement was based.
7. CREDITWORTHINESS: If at anytime there is a material adverse change in
Customer's creditworthiness, then in addition to any other remedies available
to WilTel, WilTel may elect, in its sole discretion, to exercise one or more of
the following remedies: (i) cause Start of Service for Service described in a
previously executed Service Request to be withheld; (ii) cease providing
Service pursuant to a Suspension Notice; (iii) decline to accept a Service
Request or other requests from Customer to provide Service which WilTel may
otherwise be obligated to accept and/or (iv) condition its provision of Service
or acceptance of a Service Request on Customer's assurance of payment which
shall be a deposit or such other means to establish reasonable assurance of
payment. An adverse material change in Customer's creditworthiness shall
include, but not be limited to: (i) Customer's default of its obligations to
WilTel under this or any other agreement with WilTel; (ii) failure of Customer
to make full payment of charges due hereunder on or before the Due Date on
three (3) or more occasions during any period of twelve (12) or fewer months or
Customer's failure to make such payment on or before the Due Date in any two
(2) consecutive months; (iii) acquisition of Customer (whether in whole or by
majority or controlling interest) by an entity which is insolvent, which is
subject to bankruptcy or insolvency proceedings, which owes past due amounts to
WilTel or any entity affiliated with WilTel or which is a materially greater
credit risk than Customer; or, (iv) Customer's being subject to or having filed
for bankruptcy or insolvency proceedings or the legal insolvency of Customer.
8. REMEDIES FOR BREACH. In the event Customer is in breach of this
Agreement, including without limitation, failure to pay charges due hereunder
by the date stated in the Suspension Notice described in Subsection 5(F),
WilTel shall have the right, after giving Customer five (5) days prior notice,
and in addition to foreclosing any security interest WilTel may have, to (i)
terminate this Agreement; (ii) withhold billing information from Customer;
and/or (iii) contact the End Users (for whom calls are originated and
terminated solely over facilities comprising the WilTel network) directly and
bill such End Users directly until such time as WilTel has been paid in full
for the amount owed by Customer. If Customer fails to make payment by the date
stated in the Suspension Notice and WilTel, after giving Customer five (5) days
prior notice, terminates this Agreement as provided in this Section 8, such
termination shall not relieve Customer for payment of applicable cancellation
charges as described in Section 2 above.
9. WARRANTY. WilTel will use reasonable efforts under the circumstances
to maintain its overall network quality. The quality of Service provided
hereunder shall be consistent with telecommunications common carrier industry
standards, government regulations and sound business practices. WILTEL MAKES
NO OTHER WARRANTIES ABOUT THE SERVICE PROVIDED HEREUNDER, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE,
10. LIABILITY; GENERAL INDEMNITY; REIMBURSEMENT.
(A) Limited Liability. IN NO EVENT WILL EITHER PARTY HERETO BE
LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS
OF REVENUE, LOSS OF CUSTOMERS OR CLIENTS, LOSS OF GOODWILL OR
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LOSS OF PROFITS ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE
PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
(B) General Indemnity. In the event parties other than Customer
(e.g., Customer's End Users) shall have use of the Service through
Customer, then Customer agrees to forever indemnify and hold WilTel,
its affiliated companies and any third-party provider or operator of
facilities employed in provision of the Service harmless from and
against any and all claims, demands, suits, actions, losses, damages,
assessments or payments which those parties may assert arising out of
or relating to any defect in the Service.
(C) Reimbursement. Customer agrees to reimburse WilTel for all
reasonable costs and expenses incurred by WilTel due to WilTel's
direct participation (either as a party or witness) in any
administrative, regulatory or criminal proceeding concerning Customer
if WilTel's involvement in said proceeding is based solely on WilTel's
provision of Services to Customer.
11. FORCE MAJEURE. If WilTel's performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with by causes
beyond its reasonable control including, but not limited to, acts of God, fire,
explosion, vandalism, cable cut, storm or other similar occurrence, any law,
order, regulation, direction, action or request of the United States
government, or state or local governments, or of any department, agency,
commission, court, bureau, corporation or other instrumentality of any one or
more such governments, or of any civil or military authority, or by national
emergency, insurrection, riot, war, strike, lockout or work stoppage or other
labor difficulties, or supplier failure, shortage, breach or delay, then WilTel
shall be excused from such performance on a day-to-day basis to the extent of
such restriction or interference. WilTel shall use reasonable efforts under
the circumstances to avoid or remove such causes or nonperformance and shall
proceed to perform with reasonable dispatch whenever such causes are removed or
cease.
12. STATE CERTIFICATION. Customer warrants that in all jurisdictions in
which it provides long distance services that require certification, it has
obtained the necessary certification from the appropriate governmental
authority. Further, if required by WilTel, Customer agrees to provide proof of
such certification acceptable to WilTel. In the event Customer is prohibited,
either on a temporary or permanent basis, from conducting its
telecommunications operations in a given state, Customer shall (i) immediately
notify WilTel by facsimile, and (ii) send written notice to WilTel within
twenty-four (24) hours of such prohibition.
13. INTERSTATE/INTRASTATE SERVICE. Except with respect to Switched
Service specifically designated as intrastate Service or international Service,
the rates provided to Customer in a Service Schedule are applicable only to
Switched Service if such Service is used for carrying interstate
telecommunications (i.e., Service subject to FCC jurisdiction). WilTel shall
not be obligated to provide Switched Service with end points within a single
state or Switched Service which originates/terminates at points both of which
are situated within a single state. In those states where WilTel is authorized
to provide intrastate service (i.e., telecommunications transmission services
subject to the jurisdiction of state regulatory authorities), WilTel will, at
its option, provide intrastate Service pursuant to applicable state laws,
regulations and applicable tariff, if any, filed by WilTel with state
regulatory authorities as required by applicable law.
14. AUTHORIZED USE OF WILTEL NAME. Without WilTel's prior written
consent, Customer shall not (i) refer to itself as an authorized representative
of WilTel whenever it refers to the Services in promotional, advertising or
other materials, or (ii) use WilTel's logos, trade marks, service marks, or any
variations thereof in any of its promotional, advertising or other materials.
Additionally, Customer shall provide to WilTel for its prior review and written
approval, all promotions, advertising or other
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materials or activity using or displaying WilTel's name or the Services to be
provided by WilTel. Customer agrees to change or correct, at Customer's
expense, any such material or activity which WilTel, in its sole judgment,
determines to be inaccurate, misleading or otherwise objectionable. Customer is
explicitly authorized to only use the following statements in its sales
literature: (i) "Customer utilizes the WilTel network", (ii) "Customer utilizes
WilTel's facilities" (iii) "WilTel provides only the network facilities", and
(iv) "WilTel is our network services provider".
15. NOTICES. Notices under this Agreement shall be in writing and
delivered to the person identified below at the offices of the parties as they
appear below or as otherwise provided for by proper notice hereunder. Customer
shall notify WilTel in writing if Customer's billing address is different than
the address shown below. The effective date for any notice under this
Agreement shall be the date of actual receipt of such notice by the appropriate
party, notwithstanding the date of mailing.
IF TO WILTEL: WilTel, Inc. IF TO CUSTOMER: McLeod Telemanagement, Inc.
One Williams Center, 28th Flr 221 3rd Ave. S.E.
Tulsa, OK 74172 Cedar Rapids, IA 52401
Attn: Carrier Sales Dept. Attn: Kirk E. Kaalberg
16. NO-WAIVER. No term or provision of this Agreement shall be deemed
waived and no breach or default shall be deemed excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived or
consented. A consent to waiver of or excuse for a breach or default by either
party, whether express or implied, shall not constitute a consent to, waiver
of, or excuse for any different or subsequent breach or default.
17. PARTIAL INVALIDITY; GOVERNMENT ACTION.
(A) Partial Invalidity. If any part of any provision of this
Agreement or any other agreement, document or writing given pursuant
to or in connection with this Agreement shall be invalid or
unenforceable under applicable law, rule or regulation, that part
shall be ineffective to the extent of such invalidity only, without in
any way affecting the remaining parts of that provision or the
remaining provisions of this Agreement. In such event, Customer and
WilTel will negotiate in good faith with respect to any such invalid
or unenforceable part to the extent necessary to render such part
valid and enforceable.
(B) Goverment Action. Upon thirty (30) days prior notice, either
party shall have the right, without liability to the other, to cancel
an affected portion of the Service if any material rate or term
contained herein and relevant to the affected Service is substantially
changed (to the detriment of the terminating party) or found to be
unlawful or the relationship between the parties hereunder is found to
be unlawful by order of the highest court of competent jurisdiction to
which the matter is appealed, the FCC, or other local, state or
federal government authority of competent jurisdiction.
18. EXCLUSIVE REMEDIES. Except is otherwise specifically provided for
herein, the remedies set forth in this Agreement comprise the exclusive
remedies available to either party at law or in equity.
19. USE OF SERVICE. Upon WilTel's acceptance of a Service Request
hereunder, WilTel will provide the Service specified therein to Customer upon
condition that the Service shall not be used for any unlawful purpose. The
provision of Service will not create a partnership or joint venture between the
parties or result in a joint communications service offering to any third
parties, and WilTel and Customer agree that this Agreement, to the extent it is
subject to FCC regulation, is an inter-carrier agreement
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which is not subject to the filing requirements of Section 211(a) of the
Communications Act of 1934 (47 U.S.C. Section 211(a)) as implemented in
47 C.F.R. Section 43-51.
20. CHOICE OF LAWS; FORUM.
(A) Law. This Agreement shall be construed under the laws of the
State of Oklahoma without regard to choice of law principles.
(B) Forum. Any legal action or proceeding with respect to this
Agreement may be brought in the Courts of the State of Oklahoma in and
for the County of Tulsa or the United States of America for the
Northern District of Oklahoma. By execution of this Agreement, both
Customer and WilTel hereby submit to such jurisdiction, hereby
expressly waiving whatever rights may correspond to either of them by
reason of their present or future domicile. In furtherance of the
foregoing, Customer and WilTel hereby agree to service by U.S. Mail at
the notice addresses referenced in Section 15. Such service shall be
deemed effective upon the earlier of actual receipt or seven (7) days
following the date of posting.
21. PROPRIETARY INFORMATION.
(A) Confidential Information. The parties understand and
agree that the terms and conditions of this Agreement, all documents
referenced (including invoices to Customer for Service provided
hereunder) herein, communications between the parties regarding this
Agreement or the Service to be provided hereunder (including price
quotes to Customer for any Service proposed to be provided or actually
provided hereunder), as well as such information relevant to any other
agreement between the parties (COLLECTIVELY "CONFIDENTIAL
INFORMATION"), are confidential as between Customer and WilTel.
(B) Limited Disclosure. A party shall not disclose Confidential
Information unless subject to discovery or disclosure pursuant to
legal process, or to any other party other than the directors,
officers, and employees of a party or a party's agents including their
respective brokers, lenders, insurance carriers or bona fide
prospective purchasers who have specifically agreed in writing to
nondisclosure of the terms and conditions hereof. Any disclosure
hereof required by legal process shall only be made after providing
the non-disclosing party with notice thereof in order to permit the
non-disclosing party to seek an appropriate protective order or
exemption. Violation by a party or its agents of the foregoing
provisions shall entitle the non-disclosing party, at its option, to
obtain injunctive relief without a showing of irreparable harm or
injury and without bond.
(C) Press Releases. The parties further agree that any press
release, advertisement or publication generated by a party regarding
this Agreement, the Service provided hereunder or in which a party
desires to mention the name of the other party or the other party's
parent or affiliated company(ies), will be submitted to the
non-publishing party for its written approval prior to publication.
(D) Survival of Confidentiality. The provisions of this Section 21
will be effective as of the date of this Agreement and remain in full
force and effect for a period which will be the longer of (i) one (1)
year following the date of this Agreement, or (ii) one (1) year from
the termination of all Service hereunder.
22. SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors or
assigns, provided, however, that Customer shall not
1/14/94 Page 9 of 10 CONFIDENTIAL
10
assign or transfer its rights or obligations under this Agreement without the
prior written consent of WilTel, which consent shall not be unreasonably
withheld, and further provided that any assignment or transfer without such
consent shall be void.
23. GENERAL.
(A) Survival of Terms. The terms and provisions contained in this
Agreement that by their sense and context are intended to survive the
performance thereof by the parties hereto shall so survive the
completion of performance and termination of this Agreement,
including, without limitation, provisions for indemnification and the
making of any and all payments due hereunder.
(B) Headings. Descriptive headings in this Agreement are for
convenience only and shall not affect the construction of this
Agreement.
(C) Industry Terms. Words having well-known technical or trade
meanings shall be so construed, and all listings of items shall not be
taken to be exclusive, but shall include other items, whether similar
or dissimilar to those listed, as the context reasonably requires.
(D) Rule of Construction. No rule of construction requiring
interpretation against the drafting party hereof shall apply in the
interpretation of this Agreement.
24. ENTIRE AGREEMENT. This Agreement consists of (i) all the terms and
conditions contained herein, and, (ii) all documents incorporated herein
specifically by reference. This Agreement constitutes the complete and
exclusive statement of the understandings between the parties and supersedes
all proposals and prior agreements (oral or written) between the parties
relating to Service provided hereunder. No subsequent agreement between the
parties concerning the Service shall be effective or binding unless it is made
in writing and subscribed to by authorized representatives of Customer and
WilTel.
IN WITNESS WHEREOF, the parties have executed this Telecommunications
Services Agreement on the date first written above.
WILTEL INC. MCLEOD TELEMANAGEMENT, INC.
BY: [SIG] [SIG]
-------------------------------- ------------------------------------
(SIGNATURE) (SIGNATURE)
Robert Brejcha Kirk E. Kaalberg
-------------------------------- ------------------------------------
(PRINT NAME) (PRINT NAME)
Director Carrier Sales Senior Vice President
-------------------------------- ------------------------------------
(TITLE) (TITLE)
1/14/94 Page 10 of 10 CONFIDENTIAL
11
PORTIONS OF THIS EXHIBIT FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN
GRANTED ARE MARKED BY BRACKETS [ ].
WILMAX
PRICING EXHIBIT
[CARRIER]
This Pricing Exhibit is made as of the 14th day of March, 1994, by and
between WilTel, Inc. ("WilTel") and McLeod Telemanagement, Inc. ("Customer")
and is part of their agreement for switched services, identified as
TSA#MCL-940211 (the "Agreement").
A. TERMINATION SERVICE
INTERSTATE RATES PER MINUTE
[ ] Day, [ ] Nonday within the 48 contiguous United States except
with respect to termination in the Supersaver LATAs listed below.
INTERSTATE EXTENDED RATES PER MINUTE
[ ] Day, [ ] Nonday from the 48 contiguous United States to Hawaii,
Alaska, Puerto Rico and the United States Virgin Islands.
INTERSTATE SUPERSAVER RATES PER MINUTE
[ ] Day, [ ] Nonday. These rates are only available and only apply
to Interstate TERMINATION Service calls to the following Supersaver
LATAs set forth below (i.e., Intrastate TERMINATION Service calls will
not be subject to Supersaver Rates):
Atlanta, GA (LATA 438)
Boston, MA (LATA 128)
Chicago, IL (LATA 358)
Dallas, TX (LATA 552)
Denver, CO (LATA 656)
Houston, TX (LATA 560)
Kansas City, MO (LATA 524)
Las Vegas, NV (LATA 721)
Los Angeles, CA (LATA 730)
Miami, FL (LATA 460)
Minneapolis, MN (LATA 628)
New York, NY (LATA 132)
Newark, NJ (LATA 224)
Philadelphia, PA (LATA 228)
St. Louis, MO (LATA 520)
San Francisco, CA (LATA 722)
Seattle, WA (LATA 674)
Washington, DC (LATA 236)
INTRASTATE RATES PER MINUTE [NOT SUBJECT TO DISCOUNT]
Intrastate charges for calls and directory assistance shall be
accordance with WilTel's tariffed rates for WilMAX Extended Network
Termination Service.
1/14/94 Page 1 of 8 CONFIDENTIAL
12
CANADA RATES (1+) [NOT SUBJECT TO DISCOUNT]
================================================================================================
Metro Area or NPA Rate Period 1st 30 Sec. Add'l 6 Sec.
- ------------------------------------------------------------------------------------------------
Montreal Day [ ] [ ]
Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
Ottawa Day [ ] [ ]
Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
Toronto Day [ ] [ ]
Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
Vancouver Day [ ] [ ]
Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
Guelph, Hamilton, London, Day [ ] [ ]
Kitchner Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
NPA 416, 514, 519, 613, Day [ ] [ ]
819 Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
All other areas Day [ ] [ ]
Nonday [ ] [ ]
================================================================================================
MEXICO RATES (1+) [NOT SUBJECT TO DISCOUNT]
=================================================
Band* Rate Period Rate
-------------------------------------------------
Band 1 Day [ ]
Nonday [ ]
-------------------------------------------------
Band 2 Day [ ]
Nonday [ ]
-------------------------------------------------
Band 3 Day [ ]
Nonday [ ]
-------------------------------------------------
Band 4 Day [ ]
Nonday [ ]
-------------------------------------------------
Band 5 Day [ ]
Nonday [ ]
-------------------------------------------------
Band 6 Day [ ]
Nonday [ ]
-------------------------------------------------
Band 7 Day [ ]
nonday [ ]
-------------------------------------------------
Band 8 Day [ ]
Nonday [ ]
=================================================
* As defined in WilTel's F.C.C. Tariff No. 2.
1/14/94 Page 2 of 8 CONFIDENTIAL
13
B. 800 ORIGINATION SERVICE
INTERSTATE RATES PER MINUTE
[ ] Day, [ ] Nonday within the 48 contiguous United States.
INTERSTATE EXTENDED RATES PER MINUTE
[ ] Day, [ ] Nonday from Alaska to the 48 contiguous United States.
[ ] Day, [ ] Nonday from Hawaii to the 48 contiguous United States.
[ ] Day, [ ] Nonday from Puerto Rico and the United States Virgin
Islands to the 48 contiguous United States.
CANADA RATES [NOT SUBJECT TO DISCOUNT]
[ ] Day, [ ] Nonday from all locations in Canada to the 48
contiguous United States.
INTRASTATE SERVICE RATES PER MINUTE [NOT SUBJECT TO DISCOUNT]
Intrastate charges for calls shall be in accordance with WilTel's
tariffed rates for WilMAX Extended Network 800 Service.
C. SWITCHED SERVICE
INTERSTATE (1+ AND 800) RATES PER MINUTE
[ ] Day, [ ] Nonday within the 48 contiguous United States.
INTERSTATE (1+) EXTENDED RATES PER MINUTE
[ ] Day, [ ] Nonday from the 48 contiguous United States to Alaska,
Hawaii, Puerto Rico and the United States Virgin Islands.
INTERSTATE (800) EXTENDED RATES PER MINUTE [NOT SUBJECT TO DISCOUNT]
[ ] Day, [ ] Nonday from Alaska to the 48 contiguous United States.
[ ] Day, [ ] Nonday from Hawaii to the 48 contiguous United States.
[ ] Day, [ ] Nonday from Puerto Rico to the 48 contiguous United
States.
[ ] Day, [ ] Nonday from the United States Virgin Islands to the 48
contiguous United States.
CANADA RATES (800) [NOT SUBJECT TO DISCOUNT]
[ ] Day, [ ] Nonday from all locations in Canada to the 48
contiguous United States.
1/14/94 Page 3 of 8 CONFIDENTIAL
14
CANADA RATES (1+) [NOT SUBJECT TO DISCOUNT]
==================================================================================================
Metro Area or NPA Rate Period 1st 30 Sec. Add'l 6 Sec.
- --------------------------------------------------------------------------------------------------
Montreal Day [ ] [ ]
Nonday [ ] [ ]
- --------------------------------------------------------------------------------------------------
Ottawa Day [ ] [ ]
Nonday [ ] [ ]
- --------------------------------------------------------------------------------------------------
Toronto Day [ ] [ ]
Nonday [ ] [ ]
- --------------------------------------------------------------------------------------------------
Vancouver Day [ ] [ ]
Nonday [ ] [ ]
- --------------------------------------------------------------------------------------------------
Guelph, Hamilton, London, Day [ ] [ ]
Kitchner Nonday [ ] [ ]
- --------------------------------------------------------------------------------------------------
NPA 416, 514, 519, 613, Day [ ] [ ]
819 Nonday [ ] [ ]
- --------------------------------------------------------------------------------------------------
All other areas Day [ ] [ ]
Nonday [ ] [ ]
==================================================================================================
MEXICO RATES (1+) [NOT SUBJECT TO DISCOUNT]
==============================================
Band* Rate Period Rate
----------------------------------------------
Band 1 Day [ ]
Nonday [ ]
----------------------------------------------
Band 2 Day [ ]
Nonday [ ]
----------------------------------------------
Band 3 Day [ ]
Nonday [ ]
----------------------------------------------
Band 4 Day [ ]
Nonday [ ]
----------------------------------------------
Band 5 Day [ ]
Nonday [ ]
----------------------------------------------
Band 6 Day [ ]
Nonday [ ]
----------------------------------------------
Band 7 Day [ ]
nonday [ ]
----------------------------------------------
Band 8 Day [ ]
Nonday [ ]
==============================================
* As defined in WilTel's F.C.C. Tariff No. 2.
1/14/94 Page 4 of 8 CONFIDENTIAL
15
WILTEL'S TARIFFED INTRASTATE RATES PER MINUTE (1+ AND 800) (SUBJECT TO CHANGE
BY WILTEL) [NOT SUBJECT TO DISCOUNT]
===================================================================
State Rate State Rate State Rate State Rate
- -------------------------------------------------------------------
AL [ ] IN [ ] NH [ ] SC [ ]
- -------------------------------------------------------------------
AR [ ] KS [ ] NJ [ ] SD [ ]
- -------------------------------------------------------------------
AZ [ ] KY [ ] NM [ ] TN [ ]
- -------------------------------------------------------------------
CA [ ] LA [ ] NY [ ] TX [ ]
- -------------------------------------------------------------------
CO [ ] MA [ ] NC [ ] UT [ ]
- -------------------------------------------------------------------
CT [ ] MD [ ] ND [ ] VA [ ]
- -------------------------------------------------------------------
DE [ ] MI [ ] NV [ ] VT [ ]
- -------------------------------------------------------------------
FL [ ] MN [ ] OH [ ] WA [ ]
- -------------------------------------------------------------------
GA [ ] MO [ ] OK [ ] WI [ ]
- -------------------------------------------------------------------
IA [ ] MS [ ] OR [ ] WV [ ]
- -------------------------------------------------------------------
ID [ ] MT [ ] PA [ ] WY [ ]
- -------------------------------------------------------------------
IL [ ] NE [ ]
===================================================================
D. DEDICATED ACCESS SERVICE
INTERSTATE (1+ AND 800) RATES PER MINUTE
[ ] Day, [ ] Nonday within the 48 contiguous United States.
INTERSTATE (1+) EXTENDED RATES PER MINUTE
[ ] Day, [ ] Nonday from the 48 contiguous United States to Alaska,
Hawaii, Puerto Rico and the United States Virgin Islands.
INTERSTATE (800) EXTENDED RATES PER MINUTE [NOT SUBJECT TO DISCOUNT]
[ ] Day, [ ] Nonday calls from Alaska to the 48 contiguous United
States.
[ ] Day, [ ] Nonday from Hawaii to the 48 contiguous United
States.
[ ] Day, [ ] Nonday from Puerto Rico to the 48 contiguous United
States.
[ ] Day, [ ] Nonday from the United States Virgin Islands to the 48
contiguous United States.
CANADA RATES (800) [NOT SUBJECT TO DISCOUNT]
[ ] Day, [ ] Nonday from all locations in Canada to the 48
contiguous United States.
1/14/94 Page 5 of 8 CONFIDENTIAL
16
CANADA RATES (1+) [NOT SUBJECT TO DISCOUNT]
================================================================================================
Metro Area or NPA Rate Period 1st 30 Sec. Add'l 6 Sec.
- ------------------------------------------------------------------------------------------------
Montreal Day [ ] [ ]
Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
Ottawa Day [ ] [ ]
Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
Toronto Day [ ] [ ]
Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
Vancouver Day [ ] [ ]
Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
Guelph, Hamilton, London, Day [ ] [ ]
Kitchner Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
NPA 416, 514, 519, 613, Day [ ] [ ]
819 Nonday [ ] [ ]
- ------------------------------------------------------------------------------------------------
All other areas Day [ ] [ ]
Nonday [ ] [ ]
================================================================================================
MEXICO RATES (1+) [NOT SUBJECT TO DISCOUNT]
=============================================
Band* Rate Period Rate
---------------------------------------------
Band 1 Day [ ]
Nonday [ ]
---------------------------------------------
Band 2 Day [ ]
Nonday [ ]
---------------------------------------------
Band 3 Day [ ]
Nonday [ ]
---------------------------------------------
Band 4 Day [ ]
Nonday [ ]
---------------------------------------------
Band 5 Day [ ]
Nonday [ ]
---------------------------------------------
Band 6 Day [ ]
Nonday [ ]
---------------------------------------------
Band 7 Day [ ]
nonday [ ]
---------------------------------------------
Band 8 Day [ ]
Nonday [ ]
=============================================
* As defined in WilTel's F.C.C. Tariff No. 2.
1/14/94 Page 6 of 8 CONFIDENTIAL
17
WILTEL'S TARIFFED INTRASTATE RATES PER MINUTE (1+ AND 800) (SUBJECT TO CHANGE
BY WILTEL) [NOT SUBJECT TO DISCOUNT]
===================================================================
STATE RATE STATE RATE STATE RATE STATE RATE
- -------------------------------------------------------------------
AL [ ] IN [ ] NH [ ] SC [ ]
- -------------------------------------------------------------------
AR [ ] KS [ ] NJ [ ] SD [ ]
- -------------------------------------------------------------------
AZ [ ] KY [ ] NM [ ] TN [ ]
- -------------------------------------------------------------------
CA [ ] LA [ ] NY [ ] TX [ ]
- -------------------------------------------------------------------
CO [ ] MA [ ] NC [ ] UT [ ]
- -------------------------------------------------------------------
CT [ ] MD [ ] ND [ ] VA [ ]
- -------------------------------------------------------------------
DE [ ] MI [ ] NV [ ] VT [ ]
- -------------------------------------------------------------------
FL [ ] MN [ ] OH [ ] WA [ ]
- -------------------------------------------------------------------
GA [ ] MO [ ] OK [ ] WI [ ]
- -------------------------------------------------------------------
IA [ ] MS [ ] OR [ ] WV [ ]
- -------------------------------------------------------------------
ID [ ] MT [ ] PA [ ] WY [ ]
- -------------------------------------------------------------------
IL [ ] NE [ ]
===================================================================
E. TRAVEL CARD SERVICE
INTERSTATE SERVICE RATES PER MINUTE
[ ] Day, [ ] Nonday within the 48 contiguous United States.
Note: All TRAVEL CARD Service calls (other than Directory Assistance
calls) are subject to a $0.25 surcharge per call.
INTRASTATE TRAVEL CARD SERVICE RATES PER MINUTE [NOT SUBJECT TO
DISCOUNT]
Intrastate charges for calls shall be in accordance with the
applicable intrastate SWITCHED Service rate plus a $0.25 surcharge
per call.
CANADA RATES PER MINUTE [NOT SUBJECT TO DISCOUNT]
[ ] Day, [ ] NonDay for calls originating in the 48 contiguous
United States and terminating in Canada
1/14/94 Page 7 of 8 CONFIDENTIAL
18
F. DIRECTORY ASSISTANCE SERVICE
INTERSTATE RATE PER CALL: $0.50
WILTEL'S TARIFFED INTRASTATE RATE PER CALL (SUBJECT TO CHANGE BY
WILTEL) [NOT SUBJECT TO DISCOUNT]: $0.60.
G. INTERNATIONAL SERVICE [NOT SUBJECT TO DISCOUNT]
See attached Schedule of applicable WilMAX International Rates.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS PRICING EXHIBIT ON
THE DATE FIRST WRITTEN ABOVE.
WILTEL INC. MCLEOD TELEMANAGEMENT, INC.
BY: [SIG] [SIG]
-------------------------------- ------------------------------------
(SIGNATURE) (SIGNATURE)
Robert Brejcha Kirk E. Kaalberg
-------------------------------- ------------------------------------
(PRINT NAME) (PRINT NAME)
Director Carrier Sales Senior Vice President
-------------------------------- ------------------------------------
(TITLE) (TITLE)
1/14/94 Page 8 of 8 CONFIDENTIAL
19
PORTIONS OF THIS EXHIBIT FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN
GRANTED ARE MARKED BY BRACKETS [ ].
WILMAX
SERVICE SCHEDULE
[CARRIER]
This Service Schedule is made as ____ of the day of March, 1994, by
and between WilTel, Inc. ("WILTEL") and McLeod Telemanagement, Inc,
("CUSTOMER") and is a part of their agreement for switched services, identified
as TSA#MCL-940211 ("THE AGREEMENT"). Neither Customer nor WilTel shall be
obligated with respect to the Service described below, nor any other condition
of Service until Customer has submitted and WilTel has accepted a Service
Request with respect to the particular Services.
1. WILMAX SERVICES: During the Service Term of the Agreement, WilTel will
provide the following Services (all as more particularly described herein), (i)
to and from the locations below, (ii) for the charges set forth in the Pricing
Exhibit dated concurrently herewith, and (iii) subject to the Discount Schedule
set forth in the Program Enrollment Terms:
(a) WilMAX Extended Network Termination Service ("TERMINATION
Service") which is WilTel's termination of calls received from Customer's
Service Interconnection(s).
(b) WilMAX Extended Network 800 Service ("800 ORIGINATION
Service") which is the origination of calls by WilTel and the termination of
such calls to Customer's Service Interconnection(s).
(c) WilMAX Switched Access Service ("SWITCHED Service") which is
the origination and termination of calls solely over facilities comprising the
WilTel network.
(d) WilMAX Dedicated Access Service ("DEDICATED ACCESS Service")
which is the origination and termination of calls solely over facilities
comprising the WilTel network.
(e) WilMAX TRAVEL CARD Service ("TRAVEL CARD Service") which is
the origination and termination of calls solely over facilities comprising the
WilTel network.
2. START OF SERVICE:
(a) Start of Service for TERMINATION Service will occur
concurrently with the activation of each circuit comprising Service
Interconnections relevant to WilTel TERMINATION Service.
(b) Start of Service for 800 ORIGINATION Service will occur
concurrently with the activation of each circuit comprising Service
Interconnections relevant to 800 ORIGINATION Service.
(c) Start of Service for SWITCHED Service will occur on (i) an ANI
by ANI basis concurrently with the activation of each ANI to be served, and
(ii) an 800 Number by 800 Number basis concurrently with the activation of each
800 Number.
(d) Start of Service for DEDICATED ACCESS Service will occur
concurrently with the activation of each circuit comprising Service
Interconnections relevant to DEDICATED ACCESS Service.
1/1/94 Page 1 of 7 CONFIDENTIAL
20
(e) Start of Service for TRAVEL CARD Service will occur on a Code
by Code basis concurrently with the activation of each Code.
3. SERVICE INTERCONNECTIONS - TERMINATION SERVICE AND 800 ORIGINATION
SERVICE:
(a) In order to utilize TERMINATION Service and 800 ORIGINATION
Service, one or more full time dedicated connections between Customer's network
and the WilTel network at one or more WilTel designated locations ("WILTEL
POP") must be established ("Service Interconnection(s)"). Each Service
Interconnection shall be comprised of one or more DS-1 circuits.
(b) The circuit(s) comprising each Service Interconnection to a
WilTel POP shall be requested by Customer on the appropriate WilTel Service
Request. Each Service Request for TERMINATION Service or 800 Origination
Service will describe (among other things) the WilTel POP to which a Service
Interconnection is to be established, the Requested Service Date therefor, the
type and quantity of circuits comprising the Service Interconnection and any
charges and other information relevant thereto, such as, Customer's terminating
or originating switch location, as the case may be. Such additional
information may be obtained from Customer or gathered by WilTel and recorded in
Technical Information Sheets provided by WilTel.
(c) Once ordered, and unless otherwise provided for in this
Agreement, Service Interconnections or the circuits comprising each Service
Interconnection may only be canceled by Customer upon not less than thirty (30)
days prior written notice to WilTel.
(d) Absent the automatic number identification ("ANI") of the
calling party, Customer shall provide WilTel with a written certification ("THE
CERTIFICATION") of the percentage of interstate (including international) and
intrastate minutes of use relevant to the minutes of traffic to be terminated
in the same state in which the WilTel POP is located to which the Service
Interconnection is made. This Certification shall be provided by Customer
prior to Start of Service for any Service Interconnection and may be modified
from time to time by Customer and subject to recertification upon the request
of WilTel which requests shall not be made unilaterally by WilTel more than
once each calendar quarter. Any such modification(s) or Certification(s) shall
be effective as of the first day of any calendar month and following at least
forty-five (45) days notice from Customer. In the event Customer fails to make
such Certification, the relevant minutes of use will be deemed to be subject to
the Intrastate Rates provided for in the Pricing Exhibit. In the event WilTel
or any other third party requires an audit of WilTel's interstate/intrastate
minutes of traffic, Customer agrees to cooperate in such audit at its expense
and make its call detail records, billing systems and other necessary
information reasonably available to WilTel or any third party solely for the
purpose of verifying Customer's interstate/intrastate minutes of traffic.
Customer agrees to indemnify WilTel for any liability WilTel incurs in the
event Customer's Certification is different than that determined by the audit.
(e) Customer shall be solely responsible for establishing and
maintaining each Service Interconnection over facilities subject to WilTel's
approval. Service Interconnections shall only be comprised of DS-1 facilities
unless otherwise provided for in the Service Request and agreed to in writing
by WilTel. If a Service Interconnection is proposed to be made via a local
exchange carrier, WilTel will have the authority to direct Customer to utilize
WilTel's entrance facilities or local serving arrangement ("LSA") with the
relevant local telephone operating company, and Customer will be subject to a
non-discriminatory charge therefor from WilTel. The monthly recurring charge
relevant to Customer's use of LSA capacity shall be subject to upward
adjustment by WilTel from time to time. Such adjustment, if any, shall not
exceed the rate that otherwise would be charged for the equivalent switched
access
1/1/94 Page 2 of 7 CONFIDENTIAL
21
capacity between the same points by the relevant local telephone operating
company pursuant to its published charges for the type of service in question.
(f) If other private line interexchange facilities are necessary
to establish a Service Interconnection, and such facilities are requested from
WilTel, such facilities will be provided on an individual case basis.
(g) Commencing with the first full calendar month following Start
of Service for each circuit comprising a Service Interconnection and
thereafter, Customer will maintain an average loading of traffic per DS-1 (or
DS-1 equivalent circuit) of not less than 100,000 minutes of use per calendar
month/billing period ("MINIMUM MONTHLY USAGE"). In the event Customer fails to
obtain the required Minimum Monthly Usage level for the circuits comprising
each Service Interconnection, WilTel will charge and Customer will pay [ ]
multiplied by the difference between the Minimum Monthly Usage and the actual
minutes of use for the circuit(s) comprising the Service Interconnection in
question ("Minimum Usage Charge"). WilTel TERMINATION Service and 800
ORIGINATION Service minutes carried over the same Service Interconnection, if
any, shall be included in determining if Customer has met the Minimum Monthly
Usage requirement.
EXAMPLE: CUSTOMER'S ACTUAL MONTHLY USAGE FOR 2 DS-1S
COMPRISING CUSTOMER'S SERVICE INTERCONNECTION AT
WILTEL POP A IS 180,000 MINUTES AND CUSTOMER'S ACTUAL
MONTHLY USAGE FOR 2 DS-1S COMPRISING CUSTOMER'S
SERVICE INTERCONNECTION AT WILTEL POP B IS 270,000
MINUTES. CUSTOMER WOULD BE SUBJECT TO A MINIMUM
USAGE CHARGE OF [ ] SINCE CUSTOMER'S MINIMUM MONTHLY
USAGE AT WILTEL POP A WAS BELOW 200,000 [(2 x
100,000) - 180,000 x [ ] = [ ] AND NO MINIMUM MONTHLY
USAGE CHARGE FOR THE SERVICE INTERCONNECTION AT
WILTEL POP B, BECAUSE CUSTOMER EXCEEDED THE REQUIRED
MINIMUM OF 200,000 IN ACTUAL MINUTES OF USE FOR THE 2
DS-1S COMPRISING THE SERVICE INTERCONNECTION AT
WILTEL POP B.
(h) Customer may cancel circuits comprising the Service
Interconnection(s) at any time without liability to WilTel for cancellation
charges. In the event Customer does not have a Minimum Commitment and Customer
cancels all circuits comprising all Service Interconnections at any time during
the Service Term, the Cancellation Charge described in Subsection 2(A) of the
Agreement shall not apply. Provided, however, Customer shall nevertheless be
liable to pay WilTel a cancellation charge (regardless of the number of DS-1 or
DS-1 equivalent circuits comprising the Service Interconnection(s) in question)
of $1,000 multiplied by the number of months (or pro rata portion thereof)
remaining in the Service Term ("CARRIER SERVICE CANCELLATION CHARGE").
(i) Because the damages to WilTel from Customer's cancellation or
termination of all circuits comprising all Service Interconnections prior to
completion of the Service Term is difficult if not impossible to determine, the
Carrier Service Cancellation Charge due to WilTel in accordance with this
Subsection is intended by the parties to establish liquidated damages payable
by Customer to WilTel and not as a penalty of any kind.
4. SERVICE INTERCONNECTIONS - DEDICATED ACCESS:
(a) In order to utilize DEDICATED ACCESS Service, one or more full
time dedicated connections between an End User's private branch exchange
("PBX") or other customer premise equipment and the WilTel network at one or
more WilTel designated locations ("WILTEL POP") must be established ("DEDICATED
SERVICE INTERCONNECTION(S)"). Each Dedicated Service Interconnection shall be
comprised of one or more DS-1 circuits or DS-3 circuits, as the case may be.
1/1/94 Page 3 of 7 CONFIDENTIAL
22
(b) The circuit(s) comprising each Dedicated Service
Interconnection to a WilTel POP shall be requested by Customer on the
appropriate WilTel Service Request. Each Service Request for DEDICATED ACCESS
Service will describe (among other things) the WilTel POP to which a Dedicated
Service Interconnection is to be established, the Requested Service Date
therefor, the type and quantity of circuits comprising the Dedicated Service
Interconnection and any charges and other information relevant thereto, such
as, the location of the end user's originating or terminating location, as the
case may be. Such additional information may be obtained from Customer or
gathered by WilTel and recorded in Technical Information Sheets provided by
WilTel.
(c) Once ordered, and unless otherwise provided for in this
Agreement, Dedicated Service Interconnections or the circuits comprising each
Dedicated Service Interconnection may only be canceled by Customer upon not
less than thirty (30) days prior written notice to WilTel.
(d) Customer shall be responsible for establishing each Dedicated
Service Interconnection over facilities subject to WilTel's approval.
Dedicated Service Interconnections shall only be comprised of DS-1 facilities
unless otherwise provided for in the Service Request. If a Dedicated Service
Interconnection is proposed to be made via a local exchange carrier, WilTel
will have the authority to direct Customer to utilize WilTel's entrance
facilities or local serving arrangement ("LSA") with the relevant local
telephone operating company, and Customer will be subject to a
non-discriminatory charge therefor from WilTel. The recurring charge relevant
to Customer's use of LSA capacity shall be stated in the corresponding Service
Request subject, however, to upward adjustment by WilTel. Such adjustment if
any, shall not exceed the rate that otherwise would be charged for the
equivalent capacity between the same points by the relevant local telephone
operating company pursuant to its published charges for the type of service in
question.
(e) Upon Customer's request, WilTel will provision and maintain
local access facilities between the End User Location and the WilTel POP,
subject to any LEC charges plus other applicable terms and charges set forth in
WilTel's F.C.C. Tariff No. 5. If other private line interexchange facilities
are necessary to establish a Dedicated Service Interconnection, such facilities
will be provided on an individual case basis.
(f) DEDICATED ACCESS SERVICE MINUTES OF USE ARE NOT SUBJECT TO
AGGREGATION FOR THE PURPOSE OF DETERMINING IF CUSTOMER HAS MET ITS MINIMUM
MONTHLY USAGE FOR TERMINATION SERVICE OR 800 ORIGINATION SERVICE.
5. BILLING INCREMENTS: U.S. Domestic (including Alaska, Hawaii, United
States Virgin Islands and Puerto Rico) Service calls will be billed in six (6)
second increments and subject to a six (6) second minimum charge (i) utilizing
Hardware Answer Supervision where available, and (ii) with respect to 800
Services, commencing with Customer's switch wink or answer back. If Customer
is found to be non-compliant in passing back appropriate answer supervision,
i.e., answer back, WilTel reserves the right to suspend 800 Service or deny
requests by Customer for additional Service until appropriate compliance is
established. All international calls, with the exception of Mexico, will be
billed in six (6) second increments and subject to a thirty (30) second minimum
charge. Mexico calls will be billed in one (1) minute increments and subject
to a one (1) minute minimum charge.
6. FORECASTS: Before Customer's initial order for Service, Customer shall
provide WilTel with a forecast regarding the number of minutes expected to be
terminated or originated in various LATAs and/or Tandems, so as to enable
WilTel to configure optimum network arrangements. IN THE EVENT CUSTOMER'S
SERVICE TRAFFIC VOLUMES RESULT IN A LOWER THAN INDUSTRY STANDARD COMPLETION
RATE OR
1/1/94 Page 4 of 7 CONFIDENTIAL
23
OTHERWISE ADVERSELY AFFECT THE WILTEL NETWORK, WILTEL RESERVES THE RIGHT TO
BLOCK THE SOURCE OF SUCH ADVERSE TRAFFIC AT ANY TIME. Customer will provide
WilTel with additional forecasts from time to time upon WilTel's request which
shall not be more frequent than once every three (3) months.
7. RBOC TERMINATION/ORIGINATION: Following Start of Service for
TERMINATION SERVICE or 800 ORIGINATION Service, Customer will maintain at least
80% of the minutes of traffic (during any calendar month or pro rata portion
thereof) comprising Customer's TERMINATION Service or 800 Service for
termination or origination in a Tandem owned and operated by a Regional Bell
Operating Company ("RBOC TERMINATIONS/ORIGINATIONS") and subject to such RBOC's
tariffed access charges. WilTel shall have the right to apply a [ ] per
minute surcharge to the number of minutes by which Non-RBOC
Terminations/Originations exceed 20% of total monthly TERMINATION Service or
800 ORIGINATION Service minutes.
8. SERVICE INTERCONNECTION INSTALLATION:
(a) DS-1 circuits comprising all Service Interconnections
(including Dedicated Service Interconnections) will be subject to a
nonrecurring $400 per DS-1 switch port installation charge.
(b) DS-3 circuits comprising all Service Interconnections
(including Dedicated Service Interconnections) will be subject to a
nonrecurring per DS-3 switch port installation charge as determined on an
individual case basis.
9. CDR TAPES: WilTel will provide Call Detail Records for WilTel's
Services in machine readable form ("CDR TAPES") subject to the provisions set
forth below:
(a) WilTel will provide Customer one (1) CDR Tape once each month
in one of several magnetic tape formats (to be selected on Customer's Service
Request) which WilTel currently is then making available to its Customers.
Monthly CDR Tapes under this Subsection are provided at no charge.
(b) Customer may order a monthly delivery of toll records on 3.5"
floppy diskette subject to a recurring charge of $250 per month.
(c) Customer may order and WilTel will provide Customer one (1)
CDR Tape once each week in one of several magnetic tape formats (to be selected
on Customer's Service Request) which WilTel currently is then making available
to its Customers. Weekly CDR Tapes under this Subsection are subject to a
recurring monthly charge of $150.
10. 800 NUMBERS:
(a) 800 numbers will be issued to Customer (i.e., issuance equates
to activation or reservation, whichever occurs first) on a random basis.
Customer requests for specific numbers will be considered by WilTel, and if
provided, will be subject to additional charges as set forth below and WilTel's
then current reservation policy which shall also apply to any randomly selected
and reserved 800 number. At any time preceding three (3) months from the
scheduled expiration of the Service Term, Customer may only reserve 800 numbers
in an amount equal to the greater of (i) 50, or (ii) fifteen percent (15%) of
the total number of 800 numbers activated by WilTel for Customer. Customer
requests for 800 numbers inconsistent with the above stated conditions may be
considered by WilTel on an individual case basis. 800 numbers reserved for
Customer will be activated upon Customer's request, however, each 800 number
will be subject to reversion to WilTel without notice to Customer after sixty
(60) days from issuance to Customer in the event WilTel records no level of
measured charges associated with such number as of the expiration or after said
sixty (60) day period.
1/1/94 Page 5 of 7 CONFIDENTIAL
24
(B) CUSTOMER REQUEST FOR SPECIFIC NUMBERS - $25 PER INDIVIDUAL
NUMBER.
(C) CUSTOMER SPECIFICALLY AGREES THAT REGARDLESS OF THE METHOD IN
WHICH AN 800 NUMBER IS RESERVED FOR OR OTHERWISE ASSIGNED TO CUSTOMER, THAT
CUSTOMER WILL NOT SEEK ANY REMEDY FROM WILTEL UNDER A THEORY OF DETRIMENTAL
RELIANCE OR OTHERWISE THAT SUCH 800 NUMBER(S) ARE FOUND NOT TO BE AVAILABLE FOR
CUSTOMER'S USE UNTIL SUCH 800 NUMBER IS PUT IN SERVICE FOR THE BENEFIT OF
CUSTOMER, AND THAT SUCH 800 NUMBER(S) SHALL NOT BE SOLD, BARTERED, BROKERED OR
OTHERWISE RELEASED BY CUSTOMER FOR A FEE ("800 NUMBER TRAFFICKING"). ANY
ATTEMPT BY CUSTOMER TO ENGAGE IN 800 NUMBER TRAFFICKING SHALL BE GROUNDS FOR
RECLAMATION BY WILTEL FOR REASSIGNMENT OF THE 800 NUMBER(S) RESERVED FOR OR
ASSIGNED TO CUSTOMER.
11. RESPORG SERVICES: Responsible Organization Services (relevant to 800
Numbers) if provided by WilTel are provided pursuant to WilTel's F.C.C. Tariff
No. 5.
12. LIMITATION OF ORIGINATION OR TERMINATION LOCATIONS:
(a) TERMINATION Service: (i) origination is available from any
WilTel POP; and (ii) termination is to any direct dialable location worldwide.
(b) 800 ORIGINATION Service: (i) origination is available from
locations in the 50 United States, the United States Virgin Islands, Puerto
Rico and Canada; and (ii) termination is to any Customer designated Service
Interconnection.
(c) SWITCHED Service (1+): (i) origination is available from all
equal access exchanges in the 48 contiguous United States except in LATA 921
(Fishers Island, NY); and (ii) termination is to any direct dialable location
worldwide.
(d) SWITCHED Service (800): (i) origination is available from
locations in the 50 United States, the United States Virgin Islands, Puerto
Rico and Canada; and (ii) termination is available to locations in the 48
contiguous United States.
(e) DEDICATED ACCESS Service (1+): (i) origination is available
from locations in the 48 contiguous United States; and (ii) termination is
available to any direct dialable location worldwide.
(f) DEDICATED ACCESS Service (800): origination is available from
locations in the 50 United States, the United States Virgin Islands, Puerto
Rico and Canada; and (ii) termination is available to any Customer designated
Dedicated Service Interconnection.
(g) TRAVEL CARD Service: (i) origination is available from
locations in the 50 United States, the United States Virgin Islands, Puerto
Rico and Canada; (ii) termination is available to locations in the 48
contiguous United States for calls from locations in the 50 United States, the
United States Virgin Islands, Puerto Rico and Canada; and (iii) termination is
available to locations in the 50 United States, the United States Virgin
Islands, Puerto Rico and Canada for calls from locations in the 48 contiguous
United States.
1/1/94 Page 6 of 7 CONFIDENTIAL
25
13. AUTHORIZATION CODES: WilTel will supply Customer with authorization
codes ("Codes") containing nine (9) digits for use with a corresponding 800
Service number for origination and termination of Travel Card calls. The Codes
may be obtained by Customer in blocks of ten (10) not to exceed a total of 1000
Codes at any one time. WilTel reserves the right to deny access to any Code at
any time.
14. INBOUND PORTION OF TRAVEL CARD CALL: The inbound service portion of a
TRAVEL CARD Service call (i.e., the 800 Service) must be provided by WilTel.
IN WITNESS WHEREOF, the parties have executed this Service Schedule on
the date first written above.
WILTEL INC. MCLEOD TELEMANAGEMENT, INC.
BY: [SIG] [SIG]
-------------------------------- ------------------------------------
(SIGNATURE) (SIGNATURE)
Robert Brejcha Kirk E. Kaalberg
-------------------------------- ------------------------------------
(PRINT NAME) (PRINT NAME)
Director, Carrier Sales Sr. Vice President
-------------------------------- ------------------------------------
(TITLE) (TITLE)
1/1/94 Page 7 of 7 CONFIDENTIAL
26
PORTIONS OF THIS EXHIBIT FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN
GRANTED ARE MARKED BY BRACKETS [ ].
WILMAX
AMENDED and RESTATED
PROGRAM ENROLLMENT TERMS II
[CARRIER]
These Amended and Restated Program Enrollment Terms II ("PET") are
made the first day of June, 1995 (the "Effective Date"), by and between
WorldCom Network Services, Inc. d/b/a WilTel (formerly WilTel, Inc.)
("WilTel") and McLeod Telemanagement, Inc. ("Customer") and are part of
their agreement for switched services, more particularly identified as
TSA#MCL-940211 (the "Agreement").
The parties acknowledge that they previously entered into Amended and
Restated Program Enrollment Terms dated June 1, 1994 (the "Prior Amended
PET"). The parties agree that as of the Effective Date the Prior Amended
PET, and Exhibit I, thereto shall be of no further force or effect, and
shall be superseded by this PET. In accordance with the Agreement, charges
to Customer for Service obtained thereunder shall be subject to the
Discount Schedule set forth below and the Agreement shall also be subject
to the terms and conditions set forth herein.
1. The Service Term will commence on the Effective Date and continue
through October 31, 2001.
2. Discount Schedule. Customer will automatically receive the next higher
discount when Customer's eligible Monthly Revenue reaches the next
level.
Monthly
Revenue (a) Discount
----------------- --------
$ 0 - $ 49,999 1.5%
$ 50,000 - $249,999 3.0%
$250,000 - $499,999 5.0%
$500,000 - $999,999 8.0%
$1,000,000+ 12.0%
(a) For purposes of this Agreement "Monthly Revenue" will
include all measured and per call Switched Service charges
(i.e., Directory Assistance and both Domestic and
International) plus three (3) times Customer's recurring
monthly Private Line Interchange Service charges (i.e., both
Domestic and International) from WilTel (exclusive of any
pro rata charges, access charges, ancillary or special
feature charges, such as, Authorization codes or CDR Tapes,
or any other charges other than those identified by the
relevant WilTel invoice as Monthly Recurring Interexchange
Service Charges).
3. Customer's Discount: Commencing with the Effective Date and continuing
through August 31, 1995, provided Customer is not in default of its
obligations under the Agreement, and further provided Customer
maintains Monthly Revenue from WilTel equal to or greater than the
amounts shown below in the months indicated ("Checkpoint Months"),
Customer's applicable percentage discount will be [ ]. In the
event the Customer's actual Monthly Revenues are less than the amounts
shown below in a particular checkpoint Month, then for such Checkpoint
month and each successive month up to but not including the next
Checkpoint Month, Customer will receive the
03/01/95 Page 1 of 5 CONFIDENTIAL
27
applicable discount described in Section 2 above corresponding with
Customer's actual level of Monthly Revenue. In the event Customer's
actual Monthly Revenue is equal to or greater than the amount shown
below for the next Checkpoint Month, Customer will receive a fifteen
percent (15%) discount for such Checkpoint Month and for the following
months up to but not including the next Checkpoint Month.
Checkpoint Monthly
Month Revenue
--------------- -------
September, 1995 [ ]
February, 1996 [ ]
4. Customer's Minimum Commitment: Commencing May 1, 1996 and continuing
through November 30, 1996 (the "First Commitment Period"), Customer
agrees to obtain Monthly Revenue of at least [ ] ("Customer's
First Commitment"). Commencing December 1, 1996 and continuing
through November 30, 1997 (the "Second Commitment Period"), Customer
agrees to obtain Monthly Revenue of at least [ ] ("Customer's
Second Commitment"). Commencing December 1, 1997 and continuing
through the end of the Service Term, including any extensions thereof
(the "Final Commitment Period"), Customer agrees to obtain Monthly
Revenue of at least [ ] ("Customer's Final Commitment").
5. Deficiency Charge: In the event Customer does not maintain Customer's
First Commitment, Customer's Second Commitment, or Customer's Final
Minimum Commitment, during any month of the First Commitment Period, the
Second Commitment Period or the Final Commitment Period, respectively,
then for those month(s) only, Customer will pay WilTel the difference
between Customer's First Commitment, Customer's Second Commitment, or
Customer's Final Commitment, as the case may be, and Customer's actual
Monthly Revenue as described in Section 2 above, net of any applicable
discount, (collectively, the "Deficiency Charge"). The Deficiency
Charge will be due at the same time payment is due for Service
provided to Customer, or immediately in an amount equal to Customer's
Minimum Commitment for the unexpired portion of the Term, if
(i) Customer cancels all circuits comprising all Service
Interconnections as described in the Service Schedules, or (ii) WilTel
terminates the Agreement based on Customer's default.
6. Application of Discounts: The applicable percentage will only be
applied to Monthly Revenues comprised of Customer's interstate
(including Alaska, Hawaii, the United States Virgin Islands and Puerto
Rico unless otherwise noted on the Pricing Exhibit dated concurrently
herewith) measured usage charges (which includes 1+ and 800 usage,
whether switched access or dedicated access). During the Service Term
of the Agreement, accumulated credits derived from the Discount will
be applied in arrears commencing with the first day of the month
following the Effective Date, that is, the Discount will be applied to
Customer's interstate measured usage charges for the preceding month
(the "Discount Period").
Example: In March, 1996, Customer has $50,000 in Private Line
Interexchange Service charges (both Interstate and
Intrastate) and is credited with $150,000 in Monthly
Revenue plus $150,000 in Switched Service Intrastate
charges and $1,000,000 in Interstate Switched Service
charges. Customer's Monthly Revenue for the month in
question would equal a total of $1,300,000. Customer
would receive a [ ] discount which, subject to the
other conditions set forth in this Section Six would be
applied to the total Interstate Switched Service
charges of $1,000,000 to produce a credit relevant to
the month in question of [ ].
03/01/95 Page 2 of 5 CONFIDENTIAL
28
Each Discount will result in the application of a credit obtained
during the Discount Period to the WilTel invoice to Customer relevant
to the billed measured Interstate Switched Service for the calendar
month next following the completion of each Discount Period, provided
Customer has paid undisputed charges on a current basis for that month
and has not otherwise been subject to a Suspension Notice in
accordance with the Agreement. Failure of Customer to comply with the
foregoing provision shall result in no credit for the Discount Period
in question. In addition, as the Discount is only applicable for
purposes of reducing the Interstate Switched Service charge to
Customer, the Discount will only be applied to the Interstate Switched
Service charges for the Discount Period in question to the extent that
such charge shall not be reduced below zero and without carry-forward
of any unused portion of the accumulated credit if Interstate Switched
Service charges for the month in question do not exceed the
accumulated credit.
7. Cancellation: The parties agree to delete Subsection 2(A) of the
Agreement in its entirety and replace it with the following:
(A) Cancellation Charge: At any time after the Effective Date,
Customer may cancel this Agreement if Customer sends written
notification thereof to WilTel not less than sixty (60) days prior to
the effective date of cancellation, and provided the effective date of
cancellation is on the first day of a calendar month. In such case,
Customer shall pay to WilTel (i) all charges for Service provided
through the effective date of such cancellation, plus (ii) a
cancellation charge equal to [ ] times the number of months
remaining in the service Term after the effective date of
cancellation, plus (iii) an amount equal to the difference between the
discounts actually received by Customer under the Agreement (i.e.,
taking into account Customer's discount of [ ], if applicable) and
the discounts Customer would have received under the Discount Schedule
shown in Section 2 above based on the Customer's actual Monthly
Revenue (collectively referred to as the "Cancellation Charge").
8. Modification of Charges: the parties agree to delete Subsection 5(D)
of the Agreement in its entirety and replace it with the following
provision:
(D) Modification of Charges: WilTel reserves the right to eliminate
Service offerings and/or modify charges for Service offerings (which
charge modification will not exceed 10% and which shall be non-
discriminatory, that is, applicable to all WilTel customers obtaining
the same Service) upon not less than sixty (60) days prior notice to
Customer, which notice will state the effective date for the charge
modification which date must be the first day of a calendar month.
Wiltel may, however, increase its charges for Service offerings by
more than ten percent (10%) provided WilTel gives Customer
satisfactory evidence that such increase is based on WilTel's local
access costs. In the event WilTel notifies Customer of the
elimination of a Service offering and/or an increase in the charges,
Customer may terminate Customer's Minimum Commitment (as described in
Section 4 of the PET) without incurring any Cancellation Charge
described in Section 7 above, provided Customer notifies WilTel, in
writing, at least sixty (60) days prior to the monthly billing period
in which the termination is to be effective. Commencing with the
effective date of termination and continuing through the end of the
Service Term (including any extensions thereof), Customer will receive
the applicable discount described in Section 2 above.
9. Service Interconnections: The parties agree to delete Subsection 3(a)
of the Service Schedule dated concurrently with this Agreement in its
entirety and replace it with the following provision:
03/01/95 Page 3 of 5 CONFIDENTIAL
29
(a) In order to utilize TERMINATION Service and 800 ORIGINATION
Service, one or more full time dedicated connections must be
established between the WilTel network at one or more WilTel
designated locations ("WilTel POP") and Customer's network or certain
Centrex or other Central Office locations of the LECS ("Service
Interconnection(s)"). Each Service Interconnection shall be comprised
of one or more DS-1 circuits.
10. DS-1 Aggregation: The parties agree to delete Subsection 3(G) of the
Service Schedule in its entirety and replace it with the following:
(g) Commencing with the [ ] full calendar month following the
Effective Date, Customer will maintain an average loading of traffic
per DS-1 (or DS-1 equivalent circuit) of not less than 100,000 minutes
of use per calendar month billing period ("Minimum Monthly Usage").
In the event Customer fails to obtain the required Minimum Monthly
Usage level, WilTel will charge and Customer will pay [ ]
multiplied by the difference between the Minimum Monthly Usage and the
actual minutes of use for the for the DS-1 circuits in question ("Minimum
Usage Charge"). WilTel TERMINATION and 800 ORIGINATION Service
minutes carried over the same DS-1 circuit shall be included in
determining if Customer has met the Minimum Monthly Usage requirement.
11. Minimum Usage Charge: The parties agree to add Subsection 3(j) to the
Service Schedule dated concurrently with the Agreement to read as
follows:
(j) Notwithstanding anything to the contrary, the Minimum Monthly
Usage and Minimum Usage Charge shall not apply (and, if applicable,
Customer will receive a credit equal to the amount of any Minimum
Usage charge assessed by WilTel) for a period of [ ] full
calendar months following the Effective Date.
12. [
]
13. Exclusivity: During the Service Term, Customer agrees to utilize
WilTel; or at least [ ] of its terminating traffic (which
includes traffic terminating within the fifty United States as well as
international locations). WilTel shall have the right, at WilTel
expense to
03/01/95 Page 4 of 5 CONFIDENTIAL
30
audit Customer's records not more than one time in any 12-month
period, for the purpose of determining Customer's compliance with the
foregoing requirement.
IN WITNESS WHEREOF, the parties have executed these Program Enrollment
Terms on the date first written above.
WORLDCOM NETWORK SERVICES, INC. MCLEOD TELEMANAGEMENT, INC.
D/B/A WILTEL
By: /s/ DENNIS PFLAUM /s/ STEPHEN BRANDENBERG
-------------------- ---------------------------------
(Signature) (Signature)
Dennis Pflaum Stephen Brandenberg
- ----------------------- --------------------------------
(Print Name) (Print Name)
Sr. Vice President
RVP, Central Region Intelligent Technologies Systems
- ----------------------- --------------------------------
(Title) (Title)
03/01/95 Page 5 of 5 CONFIDENTIAL