GENERAL TERMS AND CONDITIONS - NV

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NEVADA/LIBERTY TELECOM LLC


AGREEMENT


between


NEVADA BELL


and


LIBERTY TELECOM LLC




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NEVADA/LIBERTY TELECOM LLC


TABLE OF CONTENTS


Section


  Page

1. PROVISION OF LOCAL SERVICE AND UNBUNDLED ELEMENTS

  5

2. TERM OF AGREEMENT; TRANSITIONAL SUPPORT

  6

3. GOOD FAITH PERFORMANCE

  7

4. OPTION TO OBTAIN LOCAL SERVICES OR NETWORK ELEMENTS UNDER OTHER AGREEMENTS

  7

5. RESPONSIBILITY OF EACH PARTY

  7

6. GOVERNMENTAL COMPLIANCE

  8

7. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION

  8

8. REGULATORY MATTERS

  9

9. LIABILITY AND INDEMNITY

  10

10. AUDITS AND INSPECTIONS

  12

11. PERFORMANCE STANDARDS AND REMEDIES

  14

12. UNCOLLECTIBLE OR UNBILLABLE REVENUES

  14

13. CUSTOMER CREDIT HISTORY

  14

14. FORCE MAJEURE

  15

15. CERTAIN STATE AND LOCAL TAXES

  15

16. ALTERNATIVE DISPUTE RESOLUTION

  16

17. NOTICES

  16

18. CONFIDENTIALITY AND PROPRIETARY INFORMATION

  17

19. BRANDING

  19

20. MISCELLANEOUS

  19



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ATTACHMENTS


Attachment 1

  

Definitions

Attachment 2

  

Acronyms

Attachment 3

  

Alternative Dispute Resolution

Attachment 4

  

Directory Listing Requirements

Attachment 5

  

Local Services Resale

Attachment 6

  

Specifications, Service Descriptions and Implementation Schedule for Unbundled Network Elements

Attachment 7

  

Rights of Way, Conduits, Pole Attachments

Attachment 8

  

Pricing

Attachment 9

  

Access to VeriGate, LEX and POS Operations Support Systems

Attachment 10

  

Collocation

Attachment 11

  

Provisioning and Ordering

Attachment 12

  

Maintenance

Attachment 13

  

Connectivity Billing and Recording

Attachment 14

  

Provision of Customer Usage Data

Attachment 15

  

Local Number Portability and Number Assignment

Attachment 16

  

Security

Attachment 17

  

Service Performance Measures and Related Remedies

Attachment 18

  

Interconnection


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NEVADA/LIBERTY TELECOM LLC.


PREFACE


AGREEMENT


This Agreement, which shall become effective as of the              day of                     , 1999 (“Effective Date”), is entered into by and between Liberty Telecom LLC, a Delaware corporation, having an office at 316 California Street, Suite 149, Reno, NV 89509, on behalf of itself, and its Affiliates (individually and collectively “CLEC”), and NEVADA BELL (“NEVADA”), a Nevada corporation, having an office at 1450 Vassar, Reno, Nevada.


RECITALS


WHEREAS, The Telecommunications Act of 1996 was signed into law on February 8, 1996 (the “Act”) and substantially amends the Communications Act of 1934; and


WHEREAS, the Act places certain duties and obligations upon, and grants certain rights to, Telecommunications Carriers; and


WHEREAS, NEVADA is an Incumbent Local Exchange Carrier; and


WHEREAS, NEVADA is willing to sell unbundled Network Elements and Ancillary Functions and additional features, as well as services for resale, on the terms and subject to the conditions of this Agreement; and


WHEREAS, CLEC is a Telecommunications Carrier and pursuant to Section 252 (i) of the Federal Telecommunications Act of 1996 CLEC and NEVADA have entered into an agreement on the same terms and conditions contained in the NEVADA/AT&T Communications of Nevada, Inc. Interconnection Agreement for the State of Nevada (“the underlying Agreement”) for the provision of interconnection, unbundled Network Elements (including Ancillary Functions and additional features), and services pursuant to the Act and in conformance with NEVADA’S duties under the Act; and


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NOW, THEREFORE, in consideration of the premises and the mutual covenants of this Agreement, CLEC and NEVADA hereby agree as follows:


DEFINITIONS and ACRONYMS


For purposes of this Agreement, certain terms have been defined in Attachment 1 and elsewhere in this Agreement to encompass meanings that may differ from, or be in addition to, the normal connotation of the defined word. Unless the context clearly indicates otherwise, any term defined or used in the singular shall include the plural. The words “shall” and “will” are used interchangeably throughout this Agreement and the use of either connotes a mandatory requirement. The use of one or the other shall not mean a different degree of right or obligation for either Party. A defined word intended to convey its special meaning is capitalized when used. Other terms that are capitalized, and not defined in this Agreement, shall have the meaning in the Act, unless the context clearly indicates otherwise. For convenience of reference only, Attachment 2 provides a list of acronyms used throughout this Agreement.


GENERAL TERMS AND CONDITIONS


1. PROVISION OF LOCAL SERVICE AND UNBUNDLED ELEMENTS

 1.1. This Agreement and its Attachments are subject to the Act, regulations thereunder and relevant FCC and Commission decisions in effect on the Effective Date of this Agreement. The effect on this Agreement of changes in the Act, regulations thereunder and relevant FCC and Commission decisions is set forth in Section 8 of this Agreement.

 1.2. This Agreement, which consists of this statement of General Terms and Conditions, and Attachments 1 through 18, inclusive, sets forth the terms, conditions and prices under which NEVADA agrees to provide to CLEC (a) services for resale (hereinafter referred to as “Local Services”) and (b) certain unbundled Network Elements, Ancillary Functions and additional features and (c) other services or combinations of such Local Services, Network Elements, Ancillary Functions and other services (“Combinations”) for CLEC’s own use or for resale to others, and for purposes of offering telecommunications services of any kind. This Agreement also sets forth the terms and conditions for the interconnection of CLEC’s network to NEVADA’s network and the reciprocal compensation for the transport and termination of telecommunications traffic. Unless otherwise provided in this Agreement, and except where not technically feasible in a given area, NEVADA will perform all of its obligations hereunder throughout its entire service area; provided, however, that NEVADA is not required to provide new Unbundled Network Elements, except at CLEC’s request pursuant to Section 1.6 of Attachment 6, or to install new-or improved facilities in areas where they do not currently exist, except as required by law or regulation or as mutually agreed to in writing by the Parties.


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 1.3. Subject to this Agreement and its Attachments, the Network Elements, Ancillary Functions, Combinations, Local Services, or other services provided pursuant to this Agreement may be connected to other Network Elements, Ancillary Functions, Combinations, Local Services, or other services provided by NEVADA or to any Network Elements, Ancillary Functions, Combinations, Local Services or other services provided by CLEC itself or by any other vendor. Subject to the requirements of this Agreement and its Attachments, CLEC may, at any time add, delete, relocate or modify the Network Elements, Ancillary Functions, Local Services, Combinations or other services purchased hereunder.

 1.4. NEVADA will not discontinue any unbundled Network Element, Ancillary Service or Combination thereof during the term of this Agreement without CLEC’s consent, except (i) to the extent required by network changes or upgrades, in which event NEVADA will comply with the network disclosure requirements stated in the Act and FCC regulations thereunder; or (ii) if required by a final order of a court, the FCC or the Commission as a result of remand or appeal of the FCC’s First Interconnection Order. In the event such a final order allows but does not require discontinuance, NEVADA 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 or appropriate to reflect the results of such action. In the event that such new terms are not renegotiated within ninety (90) days after such notice, or if the Parties are unable to agree, either Party may submit the matter to the Alternative Dispute Resolution Process described in Attachment 3.

 1.5. NEVADA will not withdraw any Local Service without providing sixty (60) days advance notice, from the date of notice to the date of withdrawal of the service, to CLEC of NEVADA’s intent to withdraw the service, inclusive of the time to make any required filing with the Commission and to receive any required approval from the Commission. If NEVADA discontinues a Local Service or Combination of Local Services, NEVADA shall either (a) limit the discontinuance to new customers and grandfather the service for all CLEC resale customers who subscribe to the service as of the date of discontinuance; or (b) offer to CLEC for resale an alternative service, having substantially similar capabilities and terms and conditions.

2. TERM OF AGREEMENT; TRANSITIONAL SUPPORT

 2.1. 

This Agreement shall expire on August 6, 2001, and thereafter the Agreement shall continue in force and effect unless and until a new agreement, addressing all of the terms of this Agreement, becomes effective between the Parties. The Parties agree to commence negotiations on a new agreement no less than six (6) months before August 6, 2001. In the event that such new terms are not renegotiated


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within such six (6) month period, either Party may submit the matter to the Alternative Dispute Resolution Process described in Attachment 3. NEVADA recognizes that the Network Elements, Ancillary Functions, Combinations, Local Services and other services provided hereunder are vital to CLEC and must be continued without interruption, and that CLEC may itself provide or retain another vendor to provide such comparable Network Elements, Ancillary Functions, Combinations, Local Services or other services. NEVADA and CLEC agree to cooperate in an orderly and efficient transition to CLEC or another vendor. NEVADA and CLEC further agree to cooperate in effecting the orderly transition to CLEC or another vendor such that the level and quality of the Network Elements, Ancillary Functions, Combinations, Local Services, and other services are not degraded and to exercise their best efforts to effect an orderly and efficient transition. CLEC shall be responsible for coordinating such transition.


3. GOOD FAITH PERFORMANCE

In the performance of their obligations under this Agreement, the Parties shall act in good faith and consistently with the intent of the Act. Where notice, approval or similar action by a Party is permitted or required by any provision of this Agreement (including, without limitation, the obligation of the Parties to further negotiate the resolution of new or open issues under this Agreement), such action shall not be unreasonably delayed, withheld or conditioned.


4. OPTION TO OBTAIN LOCAL SERVICES OR NETWORK ELEMENTS UNDER OTHER AGREEMENTS

At CLEC’s request and pursuant to Section 252 of the Act, regulations thereunder and relevant court decisions, NEVADA shall make available to CLEC, without unreasonable delay, any interconnection, service or network element contained in any agreement to which NEVADA is Party that has been filed and approved by the Commission.


5. RESPONSIBILITY OF EACH PARTY

Each Party is an independent contractor, and has and hereby retains the right to exercise full control of and supervision over its own performance of its obligations under this Agreement and retains full control over the employment, direction, compensation and discharge of all employees assisting in the performance of such obligations. Each Party will be solely responsible for all matters relating to payment of such employees, including compliance with social security taxes, withholding taxes and all other regulations governing such matters. Each Party will be solely responsible for proper handling, storage, transport and disposal at its own expense of all (i) substances or materials that it


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or its contractors or agents bring to, create or assume control over at Work Locations or, (ii) waste resulting therefrom or otherwise generated in connection with its or its contractors’ or agents’ activities at the Work Locations. Subject to the limitations on liability and except as otherwise provided in this Agreement, each Party shall be responsible for (i) its own acts and performance of all obligations imposed by Applicable Law in connection with its activities, legal status and property, real or personal and, (ii) the acts of its own affiliates, employees, agents and contractors during the performance of that Party’s obligations hereunder.


6. GOVERNMENTAL COMPLIANCE

CLEC and NEVADA each shall comply at its own expense with all Applicable Law that relates to (i) its obligations under or activities in connection with this Agreement; or (ii) its activities undertaken at, in connection with or relating to Work Locations. CLEC and NEVADA each agree to indemnify, defend (at the other Party’s request) and save harmless the other, each of its officers, directors and employees from and against any losses, damages, claims, demands, suits, liabilities, fines, penalties and expenses (including reasonable attorneys’ fees) that arise out of or result from (i) its failure or the failure of its contractors or agents to so comply or (ii) any activity, duty or status of it or its contractors or agents that triggers any legal obligation to investigate or remediate environmental contamination. NEVADA will be solely responsible for obtaining from Governmental Authorities, building owners, other carriers, and any other persons or entities, all rights and privileges (including, but not limited to, space and power), which are necessary for NEVADA to provide the Network Elements, Ancillary Functions, Combinations, Local Services and other services pursuant to this Agreement. To the extent necessary, CLEC will cooperate with NEVADA in obtaining such rights and privileges.


7. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION

 7.1. CLEC shall in no event be liable to NEVADA for any costs whatsoever resulting from the presence or release of any environmental hazard that CLEC did not introduce to the affected work location, provided that activities of CLEC or its agents did not cause or contribute to a release. NEVADA shall indemnify, defend (at CLEC’s request) and hold harmless CLEC, each of its officers, directors and employees from and against any losses, damages, claims, demands, suits, liabilities, fines, penalties and expenses (including reasonable attorneys’ fees) that arise out of or result from (i) any environmental hazard that NEVADA, its contractors or agents introduce to the Work Locations or (ii) the presence or release of any environmental hazard for which NEVADA is responsible under applicable law.


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 7.2. NEVADA shall in no event be liable to CLEC for any costs whatsoever resulting from the presence or release of any environmental hazard that NEVADA did not introduce to the affected Work Location, provided that actions of NEVADA or its agents did not cause or contribute to a release. CLEC shall indemnify, defend (at NEVADA’s request) and hold harmless NEVADA, each of its officers, directors and employees from and against any losses, damages, claims, demands, suits, liabilities, fines, penalties and expenses (including reasonable attorneys’ fees) that arise out of or result from (i) any environmental hazard that CLEC, its contractors or agents introduce to the Work Locations or (ii) the presence or release of any environmental hazard for which CLEC is responsible under applicable law.

8. REGULATORY MATTERS

 8.1. NEVADA shall be responsible for obtaining and keeping in effect all FCC, state regulatory commission, franchise authority and other regulatory approvals that may be required in connection with the performance of its obligations under this Agreement. CLEC shall be responsible for obtaining and keeping in effect all FCC, state regulatory commission, franchise authority and other regulatory approvals that may be required in connection with its obligations under this Agreement, and with its offering of services to CLEC Customers contemplated by this Agreement. CLEC shall reasonably cooperate with NEVADA in obtaining and maintaining any required approvals for which NEVADA is responsible, and NEVADA shall reasonably cooperate with CLEC in obtaining and maintaining any required approvals for which CLEC is responsible.

 8.2. To the extent that NEVADA is required by any Governmental Authority to file a tariff or make another similar filing in connection with the performance of any action that would otherwise be governed by this Agreement, the terms of this Agreement shall control, unless this Agreement links a term, condition or price in this Agreement to a specific tariff, in which case the terms of the tariff as modified from time to time will apply. If, subsequent to the effective date of any tariff incorporated by reference into this Agreement, NEVADA is ordered not to file tariffs with the state regulatory commission or the FCC, or is permitted not to file tariffs (and elects not to do so), either generally or for specific Network Elements, Ancillary Functions, Combinations, Local Services or other services provided hereunder, the terms and conditions of such tariffs as of the date on which the requirement to file such tariffs was lifted shall, to the degree not inconsistent with this Agreement, be deemed incorporated in this Agreement by reference.

 8.3. 

In the event that any final and nonappealable legislative, regulatory, judicial or other legal action renders this Agreement or any Attachment


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hereto inoperable, materially affects any material terms of this Agreement, or materially affects the ability of CLEC or NEVADA to perform any material terms of this Agreement, CLEC or NEVADA may, on thirty (30) days written notice (delivered not later than thirty (30) days following the date on which such action has become legally binding and has otherwise become final and nonappealable) 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 Alternative Dispute Resolution procedures set forth in Section 16 and Attachment 3.


9. LIABILITY AND INDEMNITY

 9.1. Liabilities of CLEC - CLEC’s liability to NEVADA during any Contract Year resulting from any and all causes, other than as specified in Sections 6, 7, 9.3 and 9.4, shall not exceed the total of any amounts due and owing by CLEC to NEVADA under this Agreement during the Contract Year during which such cause accrues or arises.

 9.2. Liabilities of NEVADA - NEVADA’s liability to CLEC during any Contract Year resulting from any and all causes, other than as specified in Sections 6, 7, 9.3 and 9.4, shall not exceed two million five hundred thousand Dollars ($2,500,000).

 9.3. 

No Consequential Damages - NEITHER CLEC NOR NEVADA SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES SUFFERED BY SUCH OTHER PARTY (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS, OR LOST PROFITS SUFFERED BY SUCH OTHER PARTY), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE, AND REGARDLESS OF WHETHER THE PARTIES KNEW OF THE POSSIBILITY THAT SUCH DAMAGES COULD RESULT. EACH PARTY HEREBY RELEASES THE OTHER PARTY (AND SUCH OTHER PARTY’S SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) FROM ANY SUCH CLAIM. NOTHING CONTAINED IN THIS SECTION 9 SHALL LIMIT NEVADA’S OR CLEC’S LIABILITY TO THE OTHER FOR (i) WILLFUL OR INTENTIONAL MISCONDUCT (INCLUDING GROSS NEGLIGENCE); (ii) BODILY INJURY, DEATH OR DAMAGE TO TANGIBLE REAL OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY NEVADA’S OR CLEC’S NEGLIGENT ACT OR OMISSION OR THAT OF THEIR RESPECTIVE AGENTS,


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SUBCONTRACTORS OR EMPLOYEES, NOR SHALL ANYTHING CONTAINED IN THIS SECTION 9 LIMIT THE PARTIES’ INDEMNIFICATION OBLIGATIONS, AS SPECIFIED BELOW.


 9.4. Obligation to Indemnify - Each Party shall, and hereby agrees to, defend at the other’s request, indemnify and hold harmless the other Party and each of its officers, directors, employees and agents (each, an “Indemnitee”) against and in respect of any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliquidated, including without limitation all reasonable costs and expenses incurred (legal, accounting or otherwise) (collectively, “Damages”) arising out of, resulting from or based upon any pending or threatened claim, action, proceeding or suit by any third party (a “Claim”) (i) alleging any breach of any representation, warranty or covenant made by such indemnifying Party (the “Indemnifying Party”) in this Agreement, (ii) based upon injuries or damage to any person or property or the environment arising out of or in connection with this Agreement that are the result of the Indemnifying Party’s actions, breach of Applicable Law, or status or the actions, breach of Applicable Law, or status of its employees, agents and subcontractors, or (iii) for actual or alleged infringement of any patent, copyright, trademark, service mark, trade name, trade dress, trade secret or any other intellectual property right, now known or later developed (referred to as “Intellectual Property Rights”) to the extent that such claim or action arises from the Indemnifying Party’s or the Indemnifying Party’s customer’s use of the Network Elements, Ancillary Functions, Combinations, Local Services or other services provided under this Agreement.

 9.5. 

Obligation to Defend; Notice; Co-operation - Whenever a Claim shall arise for indemnification under Section 9.4, the relevant Indemnitee, as appropriate, shall promptly notify the Indemnifying Party and request the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability that the Indemnifying Party might have, except to the extent that such failure prejudices the Indemnifying Party’s ability to defend such Claim. The Indemnifying Party shall have the right to defend against such liability or assertion in which event the Indemnifying Party shall give written notice to the Indemnitee of acceptance of the defense of such Claim and the identify of counsel selected by the Indemnifying Party. Except as set forth below, such notice to the relevant Indemnitee shall give the Indemnifying Party full authority to defend, adjust, compromise or settle such Claim with respect to which such notice shall have been given, except to the extent that any compromise or settlement shall prejudice the Intellectual Property Rights of the relevant Indemnitees. The Indemnifying Party shall consult with the relevant Indemnitee prior to any compromise or settlement that would affect the Intellectual Property Rights or other rights of any


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Indemnitee, and the relevant Indemnitee shall have the right to refuse such compromise or settlement and, at the refusing Party’s or refusing Parties’ cost, to take over such defense, provided that in such event the Indemnifying Party shall not be responsible for, nor shall it be obligated to indemnify the relevant Indemnitee against, any cost or liability in excess of such refused compromise or settlement. With respect to any defense accepted by the Indemnifying Party, the relevant Indemnitee shall be entitled to participate with the Indemnifying Party in such defense if the Claim requests equitable relief or other relief that could affect the rights of the Indemnitee and also shall be entitled to employ separate counsel for such defense at such Indemnitee’s expense. In the event the Indemnifying Party does not accept the defense of any indemnified Claim as provided above, the relevant Indemnitee shall have the right to employ counsel for such defense at the expense of the Indemnifying Party. Each Party agrees to cooperate and to cause its employees and agents to cooperate with the other Party in the defense of any such Claim and the relevant records of each Party shall be available to the other Party with respect to any such defense.


10. AUDITS AND INSPECTIONS

 10.1. Subject to NEVADA’s reasonable security requirements and except as may be otherwise specifically provided in this Agreement, CLEC may audit NEVADA’s books, records, and other documents once in each Contract Year, for the immediately proceeding twelve (12) month period, for the purpose of evaluating the accuracy of NEVADA’s billing and invoicing for services provided by NEVADA to CLEC hereunder; provided, however, that CLEC may not request such an audit less than ninety (90) days after another audit request under this Section 10.1. CLEC may employ other persons or firms for this purpose. Such audit shall take place at a time and place agreed on by the Parties no later than thirty (30) days after notice thereof to NEVADA.

 10.2. Subject to CLEC’s reasonable security requirements and except as may be otherwise specifically provided in this Agreement, NEVADA may audit CLEC’s books, records, and other documents once in each Contract Year, for the immediately proceeding twelve (12) month period, for the purpose of evaluating the accuracy of CLEC’s billing and invoicing for services provided by CLEC to NEVADA hereunder; provided, however, that NEVADA may not request such an audit less than ninety (90) days after another audit request under this Section 10.2. NEVADA may employ other persons or firms for this purpose. Such audit shall take place at a time and place agreed on by the Parties no later than thirty (30) days after notice thereof to CLEC.


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 10.3. Each Party shall promptly correct any billing or invoicing errors that are revealed in an audit, including making refund of any overpayment in the form of a credit, or payment of any under payment in the form of a debit, on the invoice for the first full billing cycle after the Parties have agreed upon the accuracy of the audit results. Any disputes concerning audit results shall be resolved pursuant to the Alternate Dispute Resolution procedures described in Attachment 3.

 10.4. Each Party shall cooperate fully in any such audit, providing reasonable access to any and all appropriate employees and books, records and other documents reasonably necessary to assess the accuracy of each Party’s billing and invoicing.

 10.5. Either Party may audit the other Party’s books, records and documents more than once during any Contract Year if the previous audit found previously uncorrected net variances or errors in invoices in the other Party’s favor with an aggregate value of at least three percent (3%) of the amounts payable by the Party being audited under this Agreement during the period covered by the audit.

 10.6. Audits shall be at the requesting Party’s expense, subject to reimbursement by the audited Party in the event that an audit finds an adjustment in the charges or in any invoice paid or payable by the requesting Party hereunder by an amount that is, on an annualized basis, greater than two percent (2%) of the aggregate charges to the requesting Party under this Agreement during the period covered by the audit.

 10.7. Upon (i) the discovery by a Party of overcharges not previously reimbursed to the other Party or (ii) the resolution of disputed audits, the audited Party shall promptly reimburse the requesting Party the amount of any overpayment, plus interest at the prime rate compounded daily for the number of days from the date of overpayment to and including the date that payment is actually made. In no event, however, shall interest be assessed on any previously assessed or accrued late payment charges.

 10.8. Upon (i) the discovery by either Party of underpayments not previously paid to the other Party, or (ii) the resolution of disputed audits, the audited Party shall promptly pay the other Party the amount of any underpayment, plus interest at the prime rate compounded daily from the date of underpayment to and including the date that payment is actually made.

 10.9. 

Subject to NEVADA’s reasonable security requirements, CLEC shall have the audit rights specified in this subsection 10.9 in addition to the financial audit rights provided above. CLEC may inspect once, in each Contract Year, NEVADA’s books, records, and other documents relevant to (a) any one or more of the Network Elements, Ancillary Functions, Combinations, Local Services, or other services provided to CLEC for the purpose of


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evaluating NEVADA’s compliance with the terms and conditions of this Agreement; (b) NEVADA’s compliance with Attachment 17 and (c) NEVADA’s compliance with Attachment 18. Should any such audit show that NEVADA is materially out of compliance with its obligations under this Agreement, CLEC may conduct additional audits in each Contract Year, provided that CLEC may not audit NEVADA under this Section 10.9 more than one time in any ninety (90) day period. CLEC employees may conduct audits pursuant to this Section 10.9, unless NEVADA reasonably maintains that the books, records and other documents relating to CLEC are impossible or impractical to segregate from documents containing proprietary information of other parties, in which case, the audit shall be conducted by a mutually designated third Party auditor, with the expense shared equally by the Parties, provided, however, that (a) if the auditor finds that NEVADA has complied with the Act or this Agreement, CLEC shall pay for the audit; and (b) if the auditor finds that NEVADA has not complied with the Act or this Agreement, NEVADA shall pay for the audit.


11. PERFORMANCE STANDARDS AND REMEDIES

 11.1 The Parties agree that customer satisfaction is a goal that can only be achieved through cooperation of the Parties. NEVADA agrees to measure performance, as outlined in Attachment 17. The measurements contained in Attachment 17 may change from time to time by mutual agreement of the Parties. NEVADA agrees to provide to CLEC a level of service that is at parity with the service NEVADA provides to itself, its affiliates or other, at the same terms and conditions.

 11.2 Within ninety (90) days of the effective date of this Agreement, the Parties will meet to develop and mutually agree to performance and business process improvement procedures.

 11.3 The Parties may amend, modify, delete or add business process improvement procedures by mutual agreement and modification of Attachment 17.

12. UNCOLLECTIBLE OR UNBILLABLE REVENUES

 12.1. Uncollectible or unbillable revenues resulting from, but not confined to, provisioning, maintenance, or signal network routing errors shall be the responsibility of the Party causing such error.

13. CUSTOMER CREDIT HISTORY

CLEC and NEVADA agree to work together to jointly propose to the Commission a method to permit the Parties to make available to each other on a timely basis customer payment history components for each person or entity that applies for


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local or intraLATA toll Telecommunications Service(s) from either carrier, and for each unpaid closed account.


14. FORCE MAJEURE

 14.1. Except as otherwise specifically provided in this Agreement, neither Party shall be liable for any delay or failure in performance of any part of this Agreement caused by a Force Majeure condition, including acts of the United States of America or any state, territory or political subdivision thereof, acts of God or a public enemy, fires, floods, labor disputes, freight embargoes, earthquakes, volcanic actions, wars, civil disturbances, or other causes beyond the reasonable control of the Party claiming excusable delay or other failure to perform. Provided, Force Majeure shall not include acts of any Governmental Authority relating to environmental, health or safety conditions at Work Locations. If any Force Majeure condition occurs, the Party whose performance fails or is delayed because of such Force Majeure condition shall give prompt notice to the other Party, and upon cessation of such Force Majeure condition, shall give like notice and commence performance hereunder as promptly as reasonably practicable.

 14.2. Notwithstanding subsection 14.1, preceding, no delay or other failure to perform shall be excused pursuant to this Section: (i) by the acts or omissions of a Party’s subcontractors, material men, suppliers or other third persons providing products or services to such Party unless such acts or omissions are themselves the product of a Force Majeure condition, (ii) if the delay or failure relates to environmental, health or safety conditions at Work Locations and, (iii) unless such delay or failure and the consequences thereof are beyond the control and without the fault or negligence of the Party claiming excusable delay or other failure to perform.

15. CERTAIN STATE AND LOCAL TAXES

Any state or local excise, sales, or use taxes (excluding any taxes levied on income) resulting from the performance of this Agreement shall be borne by the Party upon which the obligation for payment is imposed under applicable law, even if the obligation to collect and remit such taxes is placed upon the other Party by mutual written agreement of the Parties, provided, however, that the other Party has not acted in a manner that has materially impaired the ability of the liable Party to contest the tax or the amount of the tax (and interest and penalties, etc) regardless of whether the impairment was foreseeable. If the other Party has materially impaired the ability of the liable Party to contest the tax or the amount of the tax, the Party causing the impairment shall be liable for the tax (interest and penalties, etc.) caused by the Party’s impairment. Any such taxes shall be shown as separate items on applicable billing documents between


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the Parties. The Party so obligated to pay any such taxes may contest the same in good faith, at its own expense, and shall be entitled to the benefit of any refund or recovery, provided that such Party shall not permit any lien to exist on any asset of the other Party by reason of the contest. The Party obligated to collect and remit shall cooperate in any such contest by the other Party.


16. ALTERNATIVE DISPUTE RESOLUTION

All disputes, claims or disagreements (collectively “Disputes”) arising under or related to this Agreement or the breach hereof, except those arising pursuant to Attachment 13, Connectivity Billing and Recording, shall be resolved according to the procedures set forth in Attachment 3. Disputes involving matters subject to the Connectivity Billing and Recording provisions contained in Attachment 13, shall be resolved in accordance with the Billing Disputes section of Attachment 13. In no event shall the Parties permit the pendency of a Dispute to disrupt service to any CLEC or NEVADA Customer contemplated by this Agreement. The foregoing notwithstanding, neither this Section 16 nor Attachment 3 shall be construed to prevent either Party from (a) invoking a remedy required by the Act, FCC, or Commission regulations thereunder or (b) seeking and obtaining temporary equitable remedies, including temporary restraining orders. A request by a Party to a court or a regulatory authority for interim measures or equitable relief shall not be deemed a waiver of the obligation to comply with Attachment 3.


17. NOTICES

Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in hard-copy writing (unless otherwise specifically provided herein) and shall be sufficiently given if delivered personally or delivered by prepaid overnight express service to the following (unless otherwise specifically required by this Agreement to be delivered to another representative or point of contact):


If to CLEC:


David S. Trandal, Manager

Liberty Telecom LLC

316 California Street, Suite 149

Reno, NV 89509


If to NEVADA:


Account Manager

Pacific Bell

370 3rd Street, Room 716

San Francisco, CA 94107


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John W. Bogy

General Counsel

Nevada Bell

645 E. Plumb Ln., Room 132

Reno, NV 89502


Either Party may unilaterally change its designated representative and/or address for the receipt of notices by giving seven (7) days prior written notice to the other Party in compliance with this Section. Any notice or other communication shall be deemed given when received.


18. CONFIDENTIALITY AND PROPRIETARY INFORMATION

 18.1. For the purposes of this Agreement, “Confidential Information” means confidential or proprietary technical or business Information given by the Discloser to the Recipient. All information which is disclosed by one Party to the other in connection with this Agreement shall automatically be deemed proprietary to the Discloser and subject to this Agreement, unless otherwise confirmed in writing by the Discloser. In addition, by way of example and not limitation, all orders for Network Elements, Ancillary Functions, Combinations, Local Services or other services placed by CLEC pursuant to this Agreement, and information that would constitute Customer Proprietary Network Information of CLEC Customers pursuant to the Act and the rules and regulations of the FCC, and Recorded Usage Data as described in Attachment 14, whether disclosed by CLEC to NEVADA or otherwise acquired by NEVADA in the course of the performance of this Agreement, shall be deemed Confidential Information of CLEC for all purposes under this Agreement.

 18.2. For a period of five (5) years from the receipt of Confidential Information from the Discloser, except as otherwise specified in this Agreement, the Recipient agrees (a) to use it only for the purpose of performing under this Agreement; (b) to hold it in confidence and disclose it to no one other than its employees having a need to know for the purpose of performing under this Agreement; and (c) to safeguard it from unauthorized use or disclosure with at least the same degree of care with which the Recipient safeguards its own Confidential Information. If the Recipient wishes to disclose the Discloser’s Confidential information to a third party agent or consultant, such disclosure must be mutually agreed to in writing by the Parties to this Agreement, and the agent or consultant must have executed a written agreement of non-disclosure and non-use comparable in scope to the terms of this Section.

 18.3. 

The Recipient may make copies of Confidential Information only as reasonably necessary to perform its obligations under this Agreement. All


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such copies shall bear the same copyright and proprietary rights notices as are contained on the original.


 18.4. The Recipient agrees to return all Confidential Information in tangible form received from the Discloser, including any copies made by the Recipient, within thirty (30) days after a written request is delivered to the Recipient, or to destroy all such Confidential Information, except for Confidential Information that the Recipient reasonably requires to perform its obligations under this Agreement. If either Party loses or makes an unauthorized disclosure of the other Party’s Confidential Information, it shall notify such other Party immediately and use reasonable efforts to retrieve the lost or wrongfully disclosed information.

 18.5. The Recipient shall have no obligation to safeguard Confidential Information: (a) which was in the possession of the Recipient free of restriction prior to its receipt from the Discloser; (b) after it becomes publicly known or available through no breach of this Agreement by the Recipient; (c) after it is rightfully acquired by the Recipient free of restrictions on its disclosure; or (d) after it is independently developed by personnel of the Recipient to whom the Discloser’s Confidential Information had not been previously disclosed. In addition, either Party shall have the right to disclose Confidential Information to any mediator, arbitrator, state or federal regulatory body, the Department of Justice or any court in the conduct of any mediation, arbitration or approval of this Agreement or in any proceedings concerning the provision of interLATA services by NEVADA. Additionally, the Recipient may disclose Confidential Information if so required by law, a court, or governmental agency, so long as the Discloser has been notified of the requirement promptly after the Recipient becomes aware of the intended disclosure, and so long as the Recipient undertakes all lawful measures to avoid disclosing such information until Discloser has had reasonable time to seek a protective order that covers the Confidential Information to be disclosed.

 18.6. Each Party’s obligations to safeguard Confidential Information disclosed prior to expiration or termination of this Agreement shall survive such expiration or termination.

 18.7. Except as otherwise expressly provided elsewhere in this Agreement, no license is hereby granted under any patent, trademark, or copyright, nor is any such license implied, solely by virtue of the disclosure of any Confidential Information.

 18.8. 

Each Party agrees that the Discloser would be irreparably injured by a breach of this Agreement by the Recipient or its representatives and that the Discloser shall be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the


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provisions of this Agreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or in equity.


 18.9. Nothing in this Section 18 shall prevent NEVADA from using Recorded Usage Data for the limited purpose of network planning and management.

19. BRANDING

Services offered by CLEC that incorporate Network Elements, Ancillary Functions or Combinations made available to CLEC pursuant to this Agreement, and Local Services that CLEC offers for resale shall be branded as stated in the Attachments to this Agreement. In no event shall NEVADA personnel installing or repairing CLEC Local Service, Network Elements, or Combinations initiate a conversation with the end user customer to market NEVADA product or services. NEVADA personnel shall respond to any inquires from end users or consumers concerning NEVADA’S products or services by providing a telephone number to call for information.


20. MISCELLANEOUS

 20.1. Delegation or Assignment - Neither Party shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party which will not be unreasonably withheld. Any prohibited assignment or delegations shall be null and void.

 20.2. Subcontracting - If any obligation under this Agreement is performed through a subcontractor, the original Party shall remain fully responsible for the performance of this Agreement in accordance with its terms, including any obligations it performs through subcontractors, and shall be solely responsible for payments due its subcontractors. No contract, subcontract or other Agreement entered into by either Party with any third Party in connection with the provision of Local Services or Network Elements hereunder shall provide for any indemnity, guarantee or assumption of liability by, or other obligation of, the other Party to this Agreement with respect to such arrangement, except as consented to in writing by the other Party. No subcontractor shall be deemed a third party beneficiary for any purposes under this Agreement.

 20.3. Nonexclusive Remedies - Except as otherwise expressly provided in this Agreement, each of the remedies provided under this Agreement is cumulative and is in addition to any remedies that may be available at law or in equity.

 20.4. 

No Third-Party Beneficiaries - Except as may be specifically set forth in this Agreement, this Agreement does not provide and shall not be


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construed to provide third parties with any remedy, claim, liability, reimbursement, cause of action, or other privilege.


 20.5. Referenced Documents - Whenever any provision of this Agreement refers to a technical reference, technical publication, CLEC Practice, Pacific Bell/Nevada Bell Practice, any publication of telecommunications industry administrative or technical standards, or any other document specifically incorporated into this Agreement, it will be deemed to be a reference to the most recent version or edition (including any amendments, supplements, addenda, or successors) of such document that is in effect, and will include the most recent version or edition (including any amendments, supplements, addenda, or successors) of each document incorporated by reference in such a technical reference, technical publication, CLEC Practice, Pacific Bell/Nevada Bell Practice, or publication of industry standards . Should there be an inconsistency between or among publications or standards, the Parties shall mutually agree which requirement shall apply.

 20.6. Governing Law - The validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the Parties shall be governed by the laws of the State of Nevada other than as to conflicts of laws, except insofar as federal law may control any aspect of this Agreement, in which case federal law shall govern such aspect. The Parties submit to personal jurisdiction in Reno, Nevada and waive any and all objections to Nevada venue.

 20.7. Publicity and Advertising - Neither Party shall publish or use any advertising, sales promotions or other publicity materials that use the other Party’s logo, trademarks or service marks without the prior written approval of the other Party.

 20.8. Amendments or Waivers - Except as otherwise provided in this Agreement, no amendment or waiver of any provision of this Agreement, and no consent to any default under this Agreement, shall be effective unless the same is in writing and signed either by an officer of the Party against whom such amendment, waiver or consent is claimed or by the designated representative of such an officer. In addition, no course of dealing or failure of a Party strictly to enforce any term, right or condition of this Agreement shall be construed as a waiver of such term, right or condition. By entering into this Agreement neither Party waives any right granted to it pursuant to the Act.

 20.9. 

Severability - If any term, condition or provision of this Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not invalidate the entire Agreement, unless such construction would be unreasonable. The Agreement shall be construed


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as if it did not contain the invalid or unenforceable provision or provisions, and the rights and obligations of each Party shall be construed and enforced accordingly; provided, however, that in the event such invalid or unenforceable provision or provisions are essential elements of this Agreement and substantially impair the rights or obligations of either Party, the Parties shall promptly negotiate a replacement provision or provisions.


 20.10. Entire Agreement - This Agreement, which shall include the Attachments, Appendices and other documents referenced herein, constitutes the entire Agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein,

 20.11. Definitions: The definitions contained in Attachment 1 are meant to accurately describe the meaning accorded the term as required by the Act and as used in this Agreement. In the event of any disagreement between a definition of the term in the Act, in Attachment 1 or any other part of this Agreement (including the Attachments), the definition in the Act shall supersede any definition in the Agreement or Attachments and any specific definition in an Attachment other than Attachment 1 shall supersede the definition in Attachment 1.

 20.12. Survival of Obligations - Any liabilities or obligations of a Party for acts or omissions prior to the cancellation or termination of this Agreement, any obligation of a Party under the provisions regarding indemnification, Confidential Information, limitations on liability, and any other provisions of this Agreement which, by their terms, are contemplated to survive (or to be performed after) termination of this Agreement, shall survive cancellation or termination thereof.

 20.13. Executed in Counterparts - This Agreement may be executed in any number of counterparts, each of which shall be deemed an original; but such counterparts shall together constitute one and the same instrument.

 20.14. 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.


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In witness whereof, the Parties have executed this Agreement through their authorized representatives.


*NEVADA BELL

BY SBC TELECOMMUNICATIONS, INC.,

ITS AUTHORIZED AGENT

   **LIBERTY TELECOM LLC
By: 

/s/ Sandy Kinney

   By: 

/s/ David S. Trandal

  

Sandy Kinney

President-Industry Markets

May 24, 1999

     

David S. Trandal

President-Liberty Telecom LLC

May 14, 1999


AECN/OCN # 4547


* On January 25, 1999, the United States Supreme Court issued its opinion in AT&T Corp. v. Iowa Utilities Bd., 1999 WL 24568 (U.S.). By executing this MFN Agreement, and providing certain UNEs and UNE combinations (to the extent provided for under such Agreement), Nevada Bell does not waive any of its rights, remedies or arguments with respect to such decision, including its right to seek a modification to the underlying Agreement and this Agreement under the intervening law clause or other provisions of this Agreement to reflect the fact that Nevada Bell’s obligation to provision UNEs identified in this Agreement is subject to the provisions of the federal Act, including but not limited to, Section 251(d), including any legally binding interpretation of those requirements that may be rendered by the FCC, state regulatory agency or court of competent jurisdiction. Nevada Bell further reserves the right to dispute whether any UNEs identified in the Agreement must be provided under Section 251(c)(3) and Section 251(d) of the Act, and under this Agreement.

* This Agreement, entered into pursuant to Section 252(i) of the Telecommunications Act, is based on an approved contract previously entered into by Nevada Bell and AT&T Communications of Nevada, Inc. There was no meeting of the minds of those original parties that Internet traffic would be subject to reciprocal compensation as Local Traffic under that contract. The FCC has repeatedly asserted its interstate jurisdiction over Internet traffic, including as recently as in its Declaratory Ruling in CC Docket 96-98, released February 26, 1999, in which the FCC expressly confirmed that Internet bound traffic is non-local interstate traffic. For this reason, Nevada Bell does not believe this Agreement provides local reciprocal compensation for Internet traffic and fully reserves its rights on this issue, including the right to invoke the dispute resolution or other lawful procedures to challenge any contention by any other party to the contrary.

* 

WHEREAS, by executing this MFN Agreement providing certain rates, terms and conditions, Nevada Bell reserves all appellate rights with respect to such rates, terms and conditions and does not waive any legal arguments by executing this Agreement. It is Nevada Bell’s intent and understanding of state and federal law, that any negotiations, appeal, stay, injunction or similar proceeding which impacts the applicability of such rates, terms or conditions to the underlying Agreement will similarly and simultaneously impact the applicability of such rates, terms and conditions to CLEC. In the event that any of the rates, terms and/or conditions herein, or any of the laws or regulations that were the basis for a provision of the Agreement, are invalidated, modified or stayed by any action of any state or federal regulatory bodies or courts of competent jurisdiction, including but not limited to any decision by the Eighth Circuit relating to any of the costing/pricing rules adopted by the FCC in its First Report and Order, In re: Implementation of the Local Competition Provisions of the Local Competition Provisions in the Telecommunications Act of 1996, 11 FCC Rcd 15499 (1996), (e.g., Section 51.501, et seq.), upon review


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Supreme Court, in AT&T Corp. v. Iowa Utilities Bd., 1999 WL 24568 (U.S.), (“such Actions”), Nevada Bell believes the Parties should immediately incorporate changes from the underlying Agreement, made as a result of such Actions into this Agreement. Where revised language is not immediately available, Nevada Bell believes the Parties should expend diligent efforts to incorporate the results of such Actions into this Agreement on an interim basis, but should conform this Agreement to the underlying Agreement, once such changes are filed with the Commission.


** Liberty Telecom LLC does not join in any of the footnotes to Nevada Bell’s signature. Pursuant to Section 252(i) of the Communications Act of 1934, as amended, it is Liberty Telecom’s position that it is entitled to the benefits of each of the rates, terms and conditions of the interconnection agreement entered into between Nevada Bell and AT&T Communications of Nevada, Inc., (including but not limited to those that apply to reciprocal compensation) to the same extent as AT&T Communications of Nevada, Inc.

Source: OneCLE Business Contracts.