IWS AGREEMENT
SBC Michigan and
Southwestern Bell Communications Services, Inc.
Page 1 of 17
INTRALATA WHOLESALE SERVICE (IWS)
AGREEMENT
INTRALATA WHOLESALE SERVICE (IWS) STAND-ALONE AGREEMENT
Between
MICHIGAN BELL TELEPHONE COMPANY D/B/A AMERITECH MICHIGAN,
And
SOUTHWESTERN BELL COMMUNICATIONS SERVICES, INC.
- INTRODUCTION...... 4
- DESCRIPTION...... 4
- DEFINITIONS...... 5
- ORDERING...... 6
- Pricing AND RATE APPLICATION ...... 6
- reservation of rights...... 6
- billing and payment of rates and charges...... 6
- termination of service ...... 7
- branding...... 8
- force majeure...... 8
- limitation of liability ...... 9
- dispute resolution...... 12
- publicity...... 13
- ASSIGNMENT...... 13
- NOTICES...... 13
- THIRD PARTY BENEFICIARIES...... 14
- TAXES...... 14
- TERM...... 14
- WAIVER...... 14
- DISCLAIMER OF WARRANTIES...... 14
- EFFECTIVE DATE...... 15
- RELATIONSHIP OF THE PARTIES ………………………………………………..15
- COMPLETE TERMS...... 15
APPENDIX I - PRICING ……………………………………………………………….17
INTRALATA WHOLESALE SERVICE STAND-ALONE AGREEMENT
This Agreement is between SOUTHWESTERN BELL COMMUNICATIONS SERVICES, INC. (herein after referred to as "CARRIER") and MICHIGAN BELL TELEPHONE COMPANY d/b/a AMERITECH MICHIGAN (collectively, "the Parties") enter into this _____day of _____ 2003.
WHEREAS, SBC Michiganoffers a service known as IntraLATA Wholesale Service (IWS) for the use of interexchange carriers to provide intraLATA local toll services over the SBC Michigan network and CARRIER wishes to purchase such services from SBC Michigan;
It is therefore agreed in consideration of the mutual promises contained herein as follows:
1.INTRODUCTION
1.1.This Agreement sets forth the terms and conditions for providing IntraLATA Wholesale Service (IWS) using the SBC Michigan network.
1.2.SBC Michigan refers to MICHIGAN BELL TELEPHONE COMPANY D/B/A AMERITECH MICHIGAN
1.3.The prices at which SBC Michiganagrees to provide CARRIER with IntraLATA Wholesale Service are contained in Appendix I of this agreement.
1.4.Disputes between the Parties concerning the interpretation of the actions required or the provisions affected shall be handled under the Dispute Resolution procedures set forth in this Agreement.
2.DESCRIPTION
2.1.IWS offers the customer the ability to transport intraLATA toll calls placed by the customer’s end users over the SBC Michigan network from SBC Michigan access lines provided to SBC Michigan end users. IWS provides an originating and terminating intraLATA intrastate toll service offering to the IWS customer. The network announcement heard by an end user will be that of SBC Michigan, not the IWS customer, as the IWS customer uses the infrastructure of SBC Michigan including the network announcement.
2.2.IWS allows customers with a valid Carrier Identification Code (CIC) to route all intraLATA intrastate toll traffic over the SBC Michigan existing Network, excluding casual dialed intraLATA intrastate toll calls (101XXXX+1).
2.3.0+ Collect calls and 0+ Billed to Third Party intraLATA calls will route over the SBC Michigan network and will be completed by SBC Michigan. The IWS customer will not be charged the MOU for these calls as set forth in Appendix I following. The applicable rates for these calls are those established by SBC Michigan in each applicable state tariff. The revenue for these calls will journal to SBC Michigan. The responsibility for notifying end users about this billing arrangement rests with the IWS customer.
2.4.Excluded from IWS are Foreign and Home Numbering Plan Area (F/HNPA) 555-1212 intraLATA, HNPA 555-1212 interLATA and Coin service. (1+ Coin Service will not function without Exchange Access Operator Services Signaling and coin control signaling provided by the subscriber's trunk group.)
2.5.SBC Michiganwill resolve trouble isolated to the SBC Michigan network as reported by the IWS customer, as well as the IWS customer's end users. Such trouble may be reported to the repair bureau of SBC Michigan by the IWS customer or the IWS customer's end users.
3.DEFINITIONS
3.1.Customer(s)
Denotes any individual, partnership, association, joint-stock company, Trust, corporation or government entity or any other entity which subscribes to the services offered under this Agreement.
3.2.End User
Denotes any customer of an intrastate telecommunications service that is not a carrier.
3.3.Exchange
Denotes a unit, generally smaller than a Local Access and Transport Area, established by the SBC MICHIGAN for the administration of communications service in a specified area which usually embraces a city, town or village and its environs. It consists of one of more central offices together with the associated facilities used in furnishing communications service within that area. One or more designated exchanges comprises a given Local Access and Transport Area.
3.4.Interexchange Carrier
Denotes any individual, partnership, association, joint-stock company, trust, governmental entity or corporation properly certified, engaged for hire in intrastate, interstate or foreign communication by wire or radio, between two or more exchanges.
3.5.IntraLATA Service
Applies to service between points which are in the same Local Access and
Transport Area (LATA).
3.6.Local Access and Transport Area (LATA)
Denotes a geographic area established for the provision and administration of communications service. It encompasses one or more designated exchanges, which are grouped to serve common social, economic and other purposes.
4.ORDERING
4.1.An IWS Order is an order to provide CARRIER with IWS services or to provide modifications to existing IWS services. IWS is ordered for the State of Michigan by submitting the “IWS Ordering Form” to the CARRIER’s SBC Michigan Account Manager. All SBC Michigan LATAs must be ordered for IWS.
5.PRICING AND RATE APPLICATION
5.1.The prices for the IWS described herein are set forth in Appendix I - Pricing. All pricing for the Minutes of Use (MOU) described herein are based upon statewide average pricing.
5.2.The IWS MOU rate is applied to all completed, originating minutes of use. It includes the use of the SBC Michigan network facilities, intraLATA toll terminating charges, and delivery of unrated toll records to the CARRIER.
5.3.The IWS Administrative Charge as specified in Appendix I will apply to each tandem in Michigan with SBC Michigan sub-tending end offices.
5.4.The IWS Network Charge as specified in Appendix I will apply to the initial IWS order. This charge covers establishment and removal of IWS functionality in all SBC Michigan end offices.
6.RESERVATION OF RIGHTS
6.1.The Parties acknowledge that the terms and conditions for IWS set forth above are specific to IWS described herein. Except where otherwise specified, such terms and conditions may not be applied to any other Agreement entered into by the Parties.
- BILLING AND PAYMENT OF RATES AND CHARGES.
7.1.SBC Michiganshall include all charges under this Agreement on the monthly consolidated bill rendered to CARRIER (hereinafter “invoice”).
7.2.CARRIER shall pay all charges under this Agreement within 30 days of bill date.
7.3.CARRIERbilling inquiries and/or claims of overbilling by SBC Michiganshall be referred to SBC Michiganfor investigation within three (3) months of the charge(s) appearance on the invoice to CARRIER. After three (3) months of such appearance on the invoice, all billed charges shall be deemed to be correct.
7.4.If the Parties determine that CARRIER was billed incorrectly for services rendered pursuant to this Agreement, a billing adjustment shall be calculated. If a refund is due, an adjustment shall be made for the overcharges. If an overcharge is adjusted within twelve billing cycles of the bill in error, interest will not be applicable. If the overcharge is not adjusted within twelve billing cycles, interest on the amount will be credited at the Commercial Paper Rate.
7.5.If CARRIER is found to be in violation of a provision of this Agreement, SBC Michiganshall notify CARRIER of the violation in writing of the specific provision being violated. At such time, CARRIER shall have ten (10) days to correct the violation and notify SBC Michiganin writing that the violation has been corrected. SBC Michigan shall then bill CARRIER for the charges which should have been collected by SBC Michigan. If CARRIER disputes the violation, SBC Michigan shall be notified of the dispute in writing within fourteen (14) days of receipt of notice from SBC Michigan.
8.TERMINATION OF SERVICE
8.1.Upon nonpayment of any charges due under this Agreement, or upon violation of any conditions governing the furnishing of these services under this Agreement, SBC Michigan may give notice, without incurring any liability, that SBC Michigan will discontinue furnishing service under this Agreement (“termination”). Proper notice shall be sent by certified mail, return receipt requested, at least 10 days prior to the stated date of termination; notice is complete upon mailing. At its option, SBC Michigan may net amounts owed by CARRIER against funds which otherwise might be due to CARRIER from SBC Michigan.
8.2.Termination hereunder shall not relieve CARRIER of its obligation to pay for any other services performed by SBC Michigan up to and including the date of termination.
9.BRANDING
9.1.CARRIER shall not, without SBC Michigan’s written authorization, offer the services covered by this Agreement using the trademarks, service marks, trade names, brand names, logos, insignia, symbols or decorative designs of SBC Michigan or its affiliates, nor shall CARRIER state or imply that there is any joint business association or similar arrangement with SBC Michigan in the provision of telecommunications services to its own end user.
10.FORCE MAJEURE
10.1.SBC Michiganshall not be responsible for delays or failures in performance resulting from acts or occurrences beyond reasonable control of SBC Michigan, regardless of whether such delays or failures in performance were foreseen or foreseeable as of the date of this Agreement, including, without limitation: fire, explosion, power failure, cable cuts, acts of God, war, revolution, civil commotion, or acts of public enemies; any law, order, regulation, ordinance or requirement of any government or legal body; or labor unrest, including, without limitation, strikes, slowdowns, picketing or boycotts; or delays caused by CARRIER or by other service or equipment vendors; or any other circumstances beyond reasonable control of SBC Michigan. In such event, SBC Michigan shall, upon giving prompt notice to CARRIER be excused from such performance on a day-to-day basis to the extent of such interference (and CARRIER shall likewise be excused from performance of its obligations on a day-for-day basis to the extent its obligations relate to the performance so interfered with). SBC Michigan shall use its best efforts to avoid or remove the cause of non-performance and both Parties shall proceed to perform with dispatch once the causes are removed or cease.
11.LIMITATION OF LIABILITY
11.1.With respect to any claim or suit for damages arising out of mistakes, omissions, defects in furnishing service under this Agreement, the liability of SBC Michigan, if any, shall not exceed an amount equivalent to the proportionate monthly price listed in Appendix I for the period of that particular service under this Agreement during which such mistake, omission, defect in transmission, interruption, failures, delay or error occurs and continues.
11.2.SBC Michigan shall not be responsible to CARRIER for any indirect, special, consequential or punitive damages, whether sounding in contract or tort.
11.3.SBC Michigan shall have no liability to the end users of CARRIER for claims arising from the provision of the IWS to CARRIER's end users, including but not limited to claims related to the marketing or sales of its services provided hereunder, delayed restoral or nonrestoral of service, quality of service or any resulting billing or any other type of dispute. CARRIER agrees to indemnify, defend, and hold SBC Michigan harmless from and against any and all claims, demands, costs, damages, liabilities, and expenses (including reasonable attorney fees) arising from any claim or action initiated by CARRIER’s end user for services rendered under this Agreement.
- DISPUTE RESOLUTION
12.1.Finality of Disputes
12.1.1.Except as otherwise specifically provided for in this Agreement, no claim may be brought for any dispute arising from this Agreement more than twelve (12) months from the date the occurrence which gives rise to the dispute is discovered or reasonably should have been discovered with the exercise of due care and attention.
12.1.2.Notwithstanding anything contained in this Agreement to the contrary, CARRIER shall be entitled to dispute only those charges for which the Bill Due Date occurred within the three (3) months immediately preceding the date on which the other Party received notice of such Disputed Amounts.
12.2.Alternative to Litigation
12.2.1.The Parties desire to resolve disputes arising out of this Agreement without litigation. Accordingly, the Parties agree to use the following Dispute Resolution procedures with respect to any controversy or claim arising out of or relating to this Agreement or its breach.
12.3.Commencing Dispute Resolution
12.3.1.Dispute Resolution shall commence upon one Party’s receipt of written notice of a controversy or claim arising out of or relating to this Agreement or its breach. No Party may pursue any claim unless such written notice has first been given to the other Party. There are three (3) separate Dispute Resolution methods:
12.3.1.1.Service Center Notification
12.3.1.2.Informal Dispute Resolution; and
12.3.1.3.Formal Dispute Resolution each of which is described below.
12.4.Service Center Notification
12.4.1.The following Dispute Resolution procedures will apply with respect to any billing dispute arising out of or relating to the Agreement:
12.4.2.If the written notice given discloses that a CARRIER dispute relates to billing, then the procedures set forth in Section 11 of this Agreement shall be used and the dispute shall first be referred to the SBC Michigan Service Center. In order to resolve a billing dispute, CARRIER shall furnish SBC Michigan written notice of (i) the date of the bill in question, (ii) CBA/ESBA/ASBS or BAN number of the bill in question, (iii) telephone number, circuit ID number or trunk number in question, (iv) any USOC information relating to the item questioned, (v) amount billed and (vi) amount in question and (vii) the reason that CARRIER disputes the billed amount. To be deemed a “dispute” under the terms outlined in this Section 11 of this Agreement, CARRIER must provide evidence that it has paid the disputed amount. Failure to provide the information and evidence required by this Agreement not later than twenty-nine (29) calendar days following the Bill Due Date shall constitute CARRIER’s irrevocable and full waiver of its right to dispute the subject charges.
12.5.The Parties shall attempt to resolve Disputed Amounts appearing on the SBC Michigan current billing statements thirty (30) to sixty (60) calendar days from the Bill Due Date (provided CARRIER furnishes all requisite information and evidence under the terms of this Agreement by the Bill Due Date). If not resolved within thirty (30) calendar days, upon request, SBC Michigan will notify CARRIER of the status of the dispute and the expected resolution date.
12.6.The Parties shall attempt to resolve Disputed Amounts appearing on statements prior to the current billing statement within thirty (30) to ninety (90) calendar days, but resolution may take longer depending on the complexity of the dispute. If not resolved within thirty (30) calendar days from the date notice of the Disputed Amounts was received (provided that CARRIER furnishes all requisite information and evidence under the terms of this Agreement), SBC Michigan will notify CARRIER of the status of the dispute and the expected resolution date.
12.7.Any notice of Disputed Amounts given by SBC Michigan to CARRIER pursuant to this Agreement shall furnish CARRIER written notice of: (i) the date of the bill in question, (ii) the account number or other identification of the bill in question, (iii) any telephone number, circuit ID number or trunk number in question, (iv) any USOC (or other descriptive information) questioned, (v) the amount billed, (vi) the amount in question, and (vii) the reason that SBC Michigan disputes the billed amount. The Parties shall attempt to resolve Disputed Amounts appearing on current billing statement(s) thirty (30) to sixty (60) calendar days from the Bill Due Date (provided SBC Michigan, furnishes all requisite information by the Bill Due Date) and Disputed Amounts appearing on statements prior to the current billing statement within thirty (30) to ninety (90) calendar days, but resolution may take longer depending on the complexity of the dispute. If not resolved within thirty (30) calendar days, CARRIER will notify SBC Michigan of the status of the dispute and the expected resolution date.
12.7.1.If Disputing Party is not satisfied by the resolution of the billing dispute under this Agreement, the Disputing Party may notify SBC Michigan in writing that it wishes to invoke the Informal Resolution of Disputes afforded pursuant to Section 11.8 of this Agreement.
12.8.Informal Resolution of Disputes
12.8.1.Upon receipt by one Party of notice of a dispute by the other Party pursuant to Section 11.3, each Party will appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve any dispute arising under this Agreement. The location, form, frequency, duration, and conclusion of these discussions will be left to the discretion of the representatives. Upon agreement, the representatives may utilize other alternative Dispute Resolution procedures such as mediation to assist in the negotiations. Discussions and the correspondence among the representatives for purposes of settlement are exempt from discovery and production and will not be admissible in the arbitration described below or in any lawsuit without the concurrence of both Parties. Documents identified in or provided with such communications that were not prepared for purposes of the negotiations are not soexempted, and, if otherwise admissible, may be admitted in evidence in the arbitration or lawsuit.
12.9.Formal Dispute Resolution
12.9.1.If the Parties are unable to resolve the dispute through the informal procedure described in Section 11.8, then either Party may invoke the Formal Dispute Resolution procedures described in this Section 11.9. Unless agreed among all Parties, Formal Dispute Resolution procedures, may be invoked not earlier than sixty (60) calendar days after receipt of the letter initiating Dispute Resolution under Section 11.4 of this Agreement.