CUSTOMER Name (Full Legal Name): AT&T Sales Representative:
AT&T WIRELESS SERVICES, INC. AT&T Corp., RICK MILLER
("CUSTOMER") a New York corporation ("AT&T")
CUSTOMER Name (and Title) for Notice: AT&T Name (and Title) for Notice: AT&T Contact Telephone Number:
KURT MAAS, VICE PRESIDENT BARB PEDA, SENIOR VICE 206-545-8102
PRESIDENT - SERVICE PROVIDER
MARKETS
CUSTOMER Address: AT&T Address: Initial Deposit Amount Required:
16331 NE 72ND WAY 300 ATRIUM DRIVE NONE
ROOM 3E083
City State Zip Code City State Zip Code
REDMOND WA 98052 SOMERSET NJ 07023
CUSTOMER Fax number for Notice: AT&T Fax number for Notice:
425-580-8609 732-805-6212
This Master Carrier Agreement shall be legally binding when signed by both
parties and shall continue in effect until the end of the longest term specified
in the Attachment(s), or until otherwise terminated as provided in accordance
with this Agreement. The rates and commitments provided in the Attachments shall
be effective as provided in each Attachment.
This Master Carrier Agreement consists of this Cover Sheet, the attached General
Terms and Conditions, and the Attachment(s) listed below (these documents
together are collectively referred to as the "Agreement"). In the event of any
inconsistency between these documents, precedence will be given to the documents
in the following order: (1) this Cover Sheet; (2) Attachment(s); (3) the General
Terms and Conditions. In the event of any inconsistency between the terms of
this Agreement and the terms of an applicable Tariff, the terms of the Agreement
shall prevail.
2
AT&T MASTER CARRIER AGREEMENT - COVER SHEET PAGE 2 OF 2
TITLE DOC. ID DATE/TIME STAMP
----- ------- ---------------
GENERAL TERMS AND CONDITIONS MCA 000626A.doc 06/26/00 10:53 AM
SUPPLEMENTAL TERMS AND CONDITIONS AWS STC001120.doc 11/20/00 10:47PM
FORMER AFFILIATE WHOLESALE SERVICE TERMS AND AWS FAWSTP010502.doc 05/02/01 7:41 PM
PRICING
FORMER AFFILIATE WHOLESALE SERVICE DESCRIPTION FAWS SDA 001120.doc 11/20/00 9:06 PM
AT&T LOCAL SERVICES - DEDICATED TRANSPORT SERVICES AWS DTSSTP010517.doc 05/17/01 5:08 PM
TERMS AND PRICING
AT&T PRIVATE LINE AND SATELLITE SERVICES TERMS AND AWS DSTP010517.doc 05/17/01 3:00 PM
PRICING
AT&T ATM SERVICE DESCRIPTION AWS ATMSDA010214.doc 02/27/2001 3:49PM
AT&T ATM AND FRAME RELAY SERVICE TERMS AND PRICING AWS ATM- 05/17/01 3:02PM
FRSTP010517.doc
AT&T SDN AND 800 TERMS AND PRICING AWS 06/05/01 9:27 PM
SDN800STP010605.doc
TERM AND COMMITMENT ATTACHMENT AWS TCA010605.doc 06/05/01 3:26 PM
AT&T LOCAL SERVICES - PRIME INTERCONNECT SERVICE AWS 8YYSTP010501.doc 05/17/01 6:05 PM
TERMS AND PRICING ATTACHMENT
AT&T TELECONFERENCE WEB MEETINIG SERVICES SERVICE AWS TELCON-WEBMEET 6/5/01 12:40 PM
ORDER ATTACHMENT SOA 010605
AT&T MANAGED INTERNET SERVICES TERMS AND PRICING AWS MIS MCA STP010606 6/6/01 6:50 PM
ATTACHMENT
AT&T MANAGED INTERNET SERVICES ADDENDUM PRICING MIS-AWS-010606 6/6/01 7:49 PM
SCHEDULE - APPENDIX A
--------------------------------------------------------------------------------
CUSTOMER'S SIGNATURE BELOW ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTANDS AND
AGREES TO EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT THE
INDIVIDUAL SIGNING THIS AGREEMENT IS DULY AUTHORIZED TO DO SO.
--------------------------------------------------------------------------------
AT&T WIRELESS SERVICES, INC. AT&T CORP.
By: /s/ Gregory L. Slemons By: /s/ Barbara P. Peda
-------------------------------- --------------------------------
(Authorized Customer Signature) (Authorized AT&T Signature)
Gregory L. Slemons, Sr. VP Barbara P. Peda, Sr. Vice Pres.
------------------------------------ -----------------------------------
(Typed or Printed Name and Title) (Typed or Printed Name and Title)
Date: 6-6-01 Date: 6-6-01
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GENERAL TERMS AND CONDITIONS
1. PROVISION OF SERVICES. CUSTOMER hereby orders and AT&T hereby agrees to
provide the AT&T services described in the Attachment(s) to this Agreement (the
"Services"). AT&T is not responsible for the quality of transmission or
signaling on CUSTOMER's side of the network interface between AT&T and CUSTOMER.
Service is furnished subject to the availability of the service components
required, and subject to operational and systems constraints.
2. BILLING AND PAYMENT FOR THE SERVICES. Except as may be provided in an
Attachment, AT&T will send a single monthly bill for each of the Services to one
location designated by CUSTOMER. CUSTOMER is liable for all amounts due to AT&T
under this Agreement. Payment in U.S. currency is due within thirty days after
the bill date, except as otherwise provided below with respect to Billing
Disputes.
3. NON-PAYMENT. AT&T may add interest charges to any past due amounts at the
lower of 12.0% per year or the maximum rate allowed by law. CUSTOMER shall
reimburse AT&T for reasonable attorney's fees and any other costs associated
with collecting delinquent or dishonored payments. Restrictive endorsements or
other statements on checks accepted by AT&T will not apply.
4. BILLING DISPUTES. To dispute a charge on a bill, CUSTOMER must identify the
specific charge in dispute and provide a full written explanation of the basis
for the dispute using a standard AT&T billing dispute form within 90 days after
the bill date. CUSTOMER may withhold payment of a charge subject to a good faith
dispute provided: (a) CUSTOMER submits the billing dispute, using a standard
AT&T billing dispute form, within thirty days after the bill date; (b) CUSTOMER
pays the undisputed portion of all charges; and (c) CUSTOMER cooperates
reasonably with AT&T's efforts to investigate and resolve the dispute. If AT&T
determines a disputed charge was billed in error, AT&T shall issue a credit to
reverse the amount incorrectly billed. If AT&T determines a disputed charge was
billed correctly, payment shall be due from CUSTOMER within five days after AT&T
advises CUSTOMER in writing that the dispute is denied.
5. DEPOSITS. Using its Deposit standards, AT&T has assessed and CUSTOMER shall
pay the Initial Deposit amount specified on the Cover Sheet before Services are
provided. AT&T may require CUSTOMER, during the term of this Agreement, to
tender a deposit in an amount to be determined by AT&T in its reasonable
discretion. AT&T will rely upon commercially reasonable factors to determine the
need for and amount of any deposit. These factors may include, but are not
limited to, payment history, number of years in business, history of service
with AT&T, bankruptcy history, current account treatment status, financial
statement analysis, and commercial credit bureau rating, as well as commitment
levels and anticipated monthly charges. Any deposit will be held by AT&T as a
guarantee for the payment of charges. A deposit does not relieve CUSTOMER of the
responsibility for the prompt payment of bills. Interest (at the rate of 6% per
year or such other rate as is applicable by law) will be paid to CUSTOMER for
any period that a cash deposit is held by AT&T.
6. OBLIGATIONS REGARDING TAXES. CUSTOMER shall pay any applicable local, state
and federal taxes, levied upon the sale, installation, use or provision of the
Services, except to the extent customer provides a valid tax exemption
certificate to AT&T prior to the delivery of Services. CUSTOMER shall not be
required to pay any taxes assessed on AT&T's income. Gross Receipts Taxes will
be charged to CUSTOMER in the same manner as that provided in AT&T Tariff F.C.C.
No. 1, Section 2.5.14, as amended from time to time.
7. CUSTOMER IS A CARRIER. CUSTOMER certifies it is a "common carrier" as defined
in the Communications Act of 1934 (see Sections 153(10) and 211), with all
required state and federal operating authority.
8. RESPONSIBILITIES OF CUSTOMER. CUSTOMER is responsible for interfacing and
communicating with its End Users, for placing any orders, and for assuring that
it and any Intermediate Providers comply with the provisions of this Agreement
and with all applicable federal and state laws and regulatory requirements with
respect to the Services. CUSTOMER is responsible for arranging premises access
at any reasonable time so that AT&T personnel may install, repair, maintain,
inspect or remove service components.
9. SOFTWARE. AT&T grants CUSTOMER a personal, non-transferable and non-exclusive
license (without the right to sublicense) to use, in object code form, all
software and associated written and electronic documentation and data furnished
pursuant to this Agreement (collectively, "Software"), solely in connection with
the Services and solely in accordance with applicable written and electronic
documentation. CUSTOMER will refrain from taking any steps to reverse assemble,
reverse compile or otherwise derive a source code version of the Software. The
Software shall at all times remain the sole and exclusive property of AT&T or
its suppliers. "Third-Party Software" means Software that bears a copyright
notice of a third party. "AT&T Software" means all Software other than
Third-Party Software. CUSTOMER shall not copy or download the Software, except
to the extent expressly provided otherwise in the applicable documentation for
the Service or in a writing signed by AT&T. Any copy must contain the same
copyright notices and proprietary markings as the original Software. CUSTOMER
agrees
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GENERAL TERMS AND CONDITIONS
to comply with any additional restrictions that are provided with any
Third-Party Software. The term of the license granted with respect to any
Software shall be coterminous with the Attachment which covers the Software.
CUSTOMER shall assure that its Users comply with the terms and conditions of
this Section.
10. WARRANTY WITH RESPECT TO SOFTWARE. AT&T warrants that all AT&T Software will
perform substantially in accordance with its applicable published specifications
during a warranty period of ninety (90) days beginning on the date of delivery
of the AT&T Software to CUSTOMER. If CUSTOMER returns to AT&T, within the ninety
(90) day warranty period, any AT&T Software that does not comply with this
warranty, then AT&T, at its option, will either repair or replace the portion of
the AT&T Software that does not comply or refund the amount paid by CUSTOMER for
such failed or defective AT&T Software. This warranty will apply only if the
AT&T Software is used in accordance with the terms of this Agreement and is not
altered, modified or tampered with by CUSTOMER or Users.
11. ABUSE OF SERVICE. The abuse of Service is prohibited. Using Service or
permitting Service to be used in the following ways constitutes abuse:(a)
interfering unreasonably with the use of AT&T service by others or the operation
of the AT&T network; (b) carrying calls that originate on the network of a
facilities-based interexchange carrier other than AT&T and terminate
disproportionately to domestic locations for which AT&T's cost of terminating
switched access (based on the published access rates of the incumbent local
exchange companies) is above AT&T's price for the call under this Agreement
(after application of discounts); (c) subjecting AT&T personnel or non-AT&T
personnel to hazardous conditions; (d) attempting to avoid the payment, in whole
or in part, of any charges by any means or device (non-payment of billed charges
will not be considered abuse of service for purposes of this Section); or (e)
using the Services or displaying or transmitting Content in a manner that
violates any applicable law or regulation. In any instance in which AT&T
believes in good faith that there is abuse of Service as set forth above, AT&T
may immediately restrict, suspend or discontinue providing Service or prevent
the display or transmission of Content, without liability on the part of AT&T,
and then notify CUSTOMER of the action that AT&T has taken and the reason for
such action. To the extent doing so does not interfere with its ability to
prevent abuse of Service (to be determined in AT&T's reasonable judgment), AT&T
will attempt to notify CUSTOMER before taking such action, and will attempt to
limit any restriction, suspension or discontinuance under this Section to the
locations, Content, or Services with respect to which the abuse is taking place.
12. DEFAULT. If a party breaches any material term of this Agreement and the
breach continues unremedied for 60 days after written notice of default, the
other party may terminate for cause any Attachment materially affected by the
breach. If CUSTOMER is in breach of its payment obligations (including failure
to pay a required deposit), and fails to make payment in full within 5 days
after receipt of written notice of default, AT&T may, at its option, terminate
the Agreement, terminate affected Attachments, suspend Service under the
affected Attachments, and/or require a deposit, advanced payment, or other
satisfactory assurances in connection with any or all Attachments as a condition
of continuing to provide Services; except that AT&T will not take any such
action as a result of CUSTOMER's non-payment of a charge subject to a timely
billing dispute, unless AT&T has reviewed the dispute and determined that the
charge is correct. An Attachment may be terminated by either party immediately
upon written notice if the other party has become insolvent or involved in a
liquidation or termination of its business, or adjudicated bankrupt, or been
involved in an assignment for the benefit of its creditors. CUSTOMER shall be
liable to AT&T for Termination Charges, as specified in a terminated Attachment,
in the event that AT&T terminates an Attachment as a result of a breach by
CUSTOMER. Termination by either party of an Attachment does not waive any other
rights or remedies it may have under this Agreement.
13. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AT&T
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT AND SPECIFICALLY
DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF
DEALING OR COURSE OF PERFORMANCE. AT&T DOES NOT WARRANT THAT THE SERVICES WILL
BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES WILL MEET CUSTOMER'S
REQUIREMENTS OR THAT THE SERVICES WILL PREVENT UNAUTHORIZED ACCESS BY THIRD
PARTIES. AT&T DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS
BEHALF AND CUSTOMER SHOULD NOT RELY ON ANYONE MAKING SUCH STATEMENTS.
14. LIMITATION OF LIABILITY. EITHER PARTY'S ENTIRE LIABILITY, AND THE OTHER
PARTY'S EXCLUSIVE REMEDIES, FOR ANY DAMAGES CAUSED BY ANY SERVICE DEFECT OR
FAILURE, OR FOR OTHER CLAIMS ARISING IN CONNECTION WITH ANY
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GENERAL TERMS AND CONDITIONS
SERVICE OR PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS UNDER THIS AGREEMENT
SHALL BE:
(a) FOR BODILY INJURY OR DEATH TO ANY PERSON, OR REAL OR TANGIBLE PROPERTY
DAMAGE, NEGLIGENTLY CAUSED BY A PARTY, OR DAMAGES ARISING FROM THE WILLFUL
MISCONDUCT OF A PARTY OR A BREACH OF THE PROVISIONS OF SECTION 17 (USE OF
MARKS), THE OTHER PARTY'S RIGHT TO PROVEN DIRECT DAMAGES;
(b) FOR DEFECTS OR FAILURES OF SOFTWARE, THE REMEDIES SET FORTH ABOVE UNDER THE
HEADING WARRANTY WITH RESPECT TO SOFTWARE;
(c) FOR INDEMNITY, THE REMEDIES SET FORTH BELOW UNDER THE HEADING
INDEMNIFICATION;
(d) FOR DAMAGES OTHER THAN THOSE SET FORTH ABOVE AND NOT EXCLUDED UNDER THIS
AGREEMENT, EACH PARTY'S LIABILITY SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT
TO EXCEED PER CLAIM (OR IN THE AGGREGATE DURING ANY 12-MONTH PERIOD) AN AMOUNT
EQUAL TO THE TOTAL NET PAYMENTS PAYABLE BY CUSTOMER FOR THE APPLICABLE SERVICE
UNDER THE APPLICABLE ATTACHMENT DURING THE 3 MONTHS PRECEDING THE MONTH IN WHICH
THE DAMAGE OCCURRED.
EXCEPT TO THE EXTENT PROVIDED UNDER THIS AGREEMENT WITH RESPECT TO
INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES,
INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR
REVENUES OF ANY KIND, OR INCREASED COST OF OPERATIONS, WHETHER OR NOT SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AT&T BE
LIABLE FOR ANY CLAIM OR DAMAGES CAUSED BY OR ARISING OUT OF:
(i) ANY ACT OR OMISSION (INCLUDING WITHOUT LIMITATION UNAUTHORIZED USE, THEFT,
ALTERATION, LOSS OR DESTRUCTION OF SERVICE OR THE APPLICATIONS, CONTENT, DATA,
PROGRAMS, INFORMATION, NETWORK OR SYSTEMS OF CUSTOMER, AN END USER OR ANY THIRD
PARTY) OF CUSTOMER, AN INTERMEDIATE PROVIDER, AN END USER, OR ANOTHER THIRD
PARTY,
(ii) EXCEPT AS OTHERWISE PROVIDED IN AN ATTACHMENT, SERVICE INTERRUPTIONS OR
LOST OR ALTERED MESSAGES OR TRANSMISSIONS, OR
(iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH
APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY CUSTOMER OR
THIRD PARTIES.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL SURVIVE FAILURE
OF AN EXCLUSIVE REMEDY, AND SHALL APPLY REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE (INCLUDING
WITHOUT LIMITATION ACTIVE AND PASSIVE NEGLIGENCE). NOTHING IN THIS SECTION
LIMITS CUSTOMER'S RESPONSIBILITY FOR THE PAYMENT OF CHARGES DUE AS PROVIDED IN
THIS AGREEMENT.
15. FORCE MAJEURE. Neither party nor its Affiliates or subcontractors shall be
liable to the other party for any delay, failure in performance, loss or damage
due to force majeure conditions such as fire, explosion, power blackout,
earthquake, volcanic action, flood, hurricane, the elements, strike, embargo,
labor disputes, civil or military authority, war, acts of God, acts or omissions
of other carriers (except, for CUSTOMER, the acts of omissions of its
Intermediate Providers), acts of regulatory or governmental agencies, or other
causes beyond their reasonable control, except that CUSTOMER's obligation to pay
for services provided shall not be excused. Changes in economic, business or
competitive conditions are not force majeure conditions. If CUSTOMER is unable
to meet its commitments as a direct result of a force majeure condition,
CUSTOMER may suspend its commitments for one full billing month (or longer, with
AT&T's written consent, which shall not be unreasonably withheld). The effect of
such a suspension of commitment will be to exclude the affected month(s) from
all calculations affecting the CUSTOMER's commitments and to extend the term of
this Agreement by the same number of months. CUSTOMER must provide notice to
AT&T of the force majeure condition giving rise to the right to suspend
commitments within 30 days after its occurrence.
16. INDEMNIFICATION. CUSTOMER shall indemnify, defend, and hold harmless AT&T
and its Affiliates, directors, officers, employees, agents, successors and
assigns from any and all claims, damages and expenses whatsoever (including
reasonable attorneys' fees) arising on account of or in connection with
CUSTOMER's use, resale or sharing of the Services, including but not limited to:
(a) claims for libel, slander, invasion of privacy; (b) claims for infringement
of copyright arising from any communication using the Services; (c) claims
arising from any failure, breakdown, interruption or
6
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GENERAL TERMS AND CONDITIONS
deterioration of service provided by AT&T to CUSTOMER or by CUSTOMER to End
Users or Intermediate Providers; (d) claims arising from CUSTOMER's marketing
efforts; and (e) claims of patent infringement arising from combining or using
services or equipment furnished by AT&T in connection with services or equipment
furnished by others. AT&T shall indemnify, defend, and hold harmless CUSTOMER
and its Affiliates, directors, officers, employees, agents, successors and
assigns from all claims of patent infringement arising solely from the use of
the Services. CUSTOMER's indemnification obligations do not apply to claims for
damages to real or tangible personal property or for bodily injury or death
negligently caused by AT&T.
17. USE OF MARKS. Nothing in this Agreement creates in a party any rights in the
other party's trade names, trademarks, service marks or any other intellectual
property. Either party may use the other party's trade names, trademarks, or
service marks only to the extent such use is not prohibited by this Agreement
and is otherwise permitted by law (including but not limited to the Lanham Act).
In no event shall either party use or display, in advertising or otherwise, any
of the other party's logos, trade dress, trade devices or other indicia of
origin, or any confusingly similar logos, trade dress, trade devices or indicia
of origin. CUSTOMER will not conduct business under any AT&T corporate or trade
name, trademark, service mark, logo, trade dress, trade device, indicia of
origin or other symbol that serves to identify and distinguish AT&T from its
competitors, or under any confusingly similar corporate or trade name,
trademark, service mark, logo, trade dress, trade device, indicia of origin or
other symbol. CUSTOMER will not indicate or imply to any other party that
CUSTOMER is affiliated with AT&T, that CUSTOMER is authorized by AT&T to sell or
provide service to them, that CUSTOMER is providing (or will provide) service to
such party jointly or in collaboration or partnership with AT&T, or as the agent
of AT&T, or that service provided by CUSTOMER or another carrier is provided by
AT&T. Except to the limited extent (if any) as may be required under law,
neither CUSTOMER nor an Intermediate Provider shall indicate or imply to any
existing or potential End User (or Intermediate Provider) that any portion of
the service provided to the End User (or Intermediate Provider) by CUSTOMER or
the Intermediate Provider is provided by AT&T or is carried over the AT&T
network or AT&T facilities.
18. RELATIONSHIP OF THE PARTIES. The relationship between the parties shall be
that of independent contractors and not of principal and agent, employer and
employee, franchiser and franchisee, partners or joint venturers. This Agreement
does not establish CUSTOMER as a dealer, distributor or franchisee of AT&T, and
no fee is being paid to AT&T to enter into this Agreement.
19. CONFIDENTIAL INFORMATION DEFINED. "Confidential Information" consists of the
following: all information disclosed by one party or its agent or representative
(the "Disclosing Party") to the other party or its agent or representative (the
"Receiving Party") in connection with this Agreement regarding the
telecommunications needs of CUSTOMER and/or the telecommunications offerings of
AT&T, to the extent that (a) for information disclosed in written, graphic or
other tangible form, it is designated by appropriate markings to be confidential
or proprietary or (b) for information disclosed orally, it is both identified as
proprietary or confidential at the time of disclosure and summarized in a
writing so marked within 15 business days following the oral disclosure.
Notwithstanding the foregoing, all written or oral pricing and contract
proposals exchanged between the parties shall be Confidential Information,
whether or not so designated. Confidential Information is the property of the
Disclosing Party and shall be returned to the Disclosing Party upon request.
This Agreement is Confidential Information as to which each party is both a
Disclosing Party and a Receiving Party. Information made known to the public by
the Disclosing Party or a third party, or previously known to the Receiving
Party free of any obligation to keep it confidential, or independently developed
by the Receiving Party, shall not be Confidential Information.
20. CONFIDENTIALITY OBLIGATIONS. A Receiving Party shall hold all Confidential
Information in confidence from the time of disclosure until at least 2 years
following the termination of this Agreement. During that period, the Receiving
Party: (a) shall use such Confidential Information only for the purposes of
performing this Agreement and using the Services; (b) shall reproduce such
Confidential Information only to the extent necessary for such purposes; (c)
shall restrict disclosure of such Confidential Information to employees that
have a need to know for such purposes; (d) shall advise those employees of the
obligations of this Agreement; (e) shall not disclose Confidential Information
to any third party without prior written approval of the Disclosing Party except
as expressly provided in this Agreement; and (f) shall use at least the same
degree of care (in no event less than reasonable care) as it uses with regard to
its own proprietary or confidential information to prevent the disclosure,
unauthorized use or publication of Confidential Information.
21. PUBLICITY. No public statements or announcements relating to this Agreement
shall be issued by either party without the prior written consent of the other
party.
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GENERAL TERMS AND CONDITIONS
22. ALTERNATIVE DISPUTE RESOLUTION. The parties will attempt to settle any claim
for non-payment of charges or recovery of overpayment of charges for the
Services (hereinafter a "Billing Dispute"), through good faith negotiations. The
parties may agree to submit a Billing Dispute to non-binding mediation. At any
time, the party seeking payment may submit a notice of arbitration of a Billing
Dispute for arbitration under the United States Arbitration Act pursuant to the
terms of this Section and the Non-Administered Arbitration Rules of the CPR
Institute for Dispute Resolution ("CPR"), to the extent such rules do not
conflict. The Arbitration will be held in New York, New York, or any other
location selected by mutual agreement of the parties. The arbitrator shall not
have the power to award any damages in excess of the limits set forth in or
excluded under the limitations of liability provided in this Agreement. The
arbitrator may not limit, expand or otherwise modify the terms of this
Agreement. The arbitrator shall strictly limit discovery to the production of
documents directly relevant to the facts alleged in the notices of arbitration
and defense. If depositions are required, the arbitrator shall permit each Party
to conduct an equal number of depositions (not to exceed five per side), with
equal limits on the number of deposition hours for each Party (not to exceed 7
per deposition). If an evidentiary hearing is held, each Party's presentation of
its case shall be limited to three (3) days. Requests for temporary injunctive
relief may be submitted to a court of competent jurisdiction if the arbitrator
has not yet been appointed, but the arbitrator shall have the authority to
modify any injunctive relief granted by such a court. The arbitration award
shall be made final within eight months of filing of the notice of arbitration
and judgment upon the award may be entered in any court having competent
jurisdiction. All participants and the arbitrator shall hold the existence,
content and results of mediation and arbitration in confidence, except as
necessary to enforce a final settlement agreement or to enforce an arbitration
award. Each party shall bear its own expenses and equally share expenses related
to the compensation of the arbitrator. The arbitrator's award shall be in
writing and shall state the reasons for the award.
23. TIME TO BRING CLAIMS. Any initial demand for arbitration pursuant to this
Agreement, and any legal action arising under this Agreement, must be initiated
within two years after the cause of action arises.
24. NOTICES. All notices under this Agreement shall be in writing and shall be
made: (a) by personal delivery; (b) by certified or registered mail, postage
prepaid return receipt requested, (c) by overnight delivery, or (d) by facsimile
transmission. Notice shall be sent to the individuals identified on the Cover
Sheet (at the address and/or fax number designated for notice), or to such other
individual, address or fax number as a party may designate by notice to the
other party.
25. EQUIPMENT. AT&T shall retain title to all of its equipment and facilities
used to provide service under this Agreement. CUSTOMER will pay reasonable
shipping charges for delivery to CUSTOMER's premises of AT&T equipment used to
provide Service under this Agreement. CUSTOMER is liable to AT&T for the
replacement cost of any AT&T-provided equipment installed at CUSTOMER's premises
in the event of loss of said equipment for any reason, including but not limited
to theft.
26. EXPORT REGULATIONS. The parties acknowledge that the Services may be subject
to U.S. export laws and regulations. If requested, CUSTOMER will sign assurances
and other export-related documents required for AT&T to comply with U.S. export
regulations.
27. QUALITY MONITORING. CUSTOMER authorizes AT&T to monitor and record calls to
AT&T concerning the Services for training and quality control purposes.
28. ASSIGNMENT. This Agreement may not be assigned by either party except that
either party may assign its rights or delegate its duties under this Agreement
to an Affiliate of that party.
29. NO THIRD PARTY BENEFICIARIES. This Agreement does not expressly or
implicitly provide any third party (including but not limited to End Users and
Intermediate Providers) with any remedy, claim, liability, reimbursement, cause
of action or other right or privilege.
30. NON-WAIVER. The failure of a party to enforce any right under this Agreement
at any particular point in time shall not constitute a continuing waiver of any
such right with respect to the remaining term of this Agreement, or the waiver
of any other right under this Agreement.
31. SEVERABILITY. If any portion of this Agreement is found to be invalid or
unenforceable, the remaining provisions shall remain in effect and the parties
shall immediately begin negotiations to replace any invalid or unenforceable
portions that are essential parts of this Agreement.
32. SURVIVAL OF TERMS. The rights and obligations of either party that by their
nature would continue beyond the termination or expiration of this Agreement
shall survive termination or expiration of this Agreement. For example, the
provisions of this Agreement regarding Confidentiality shall remain in effect
for 2 years following termination of this Agreement and the provisions of this
Agreement regarding arbitration, use of Marks, indemnification, and/or
limitation of liability shall survive termination of this Agreement as to any
cause of action arising under the Agreement.
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GENERAL TERMS AND CONDITIONS
33. CHOICE OF LAW. The domestic law of the State of New York, except its
conflict-of-laws rules, shall govern the construction, interpretation, and
performance of this Agreement, except to the extent superceded by federal law.
The United Nations Convention on Contracts for International Sale of Goods shall
not apply.
34. AMENDMENT. No amendment, supplement, modification or waiver of any provision
of this Agreement shall be effective unless in writing and signed by authorized
representatives of both parties.
35. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties with respect to the Services. This Agreement supersedes all prior
agreements, proposals, representations, statements or understandings, whether
written or oral, concerning the Services or the parties' rights or obligations
relating to the Services. Any prior representations, promises, inducements or
statements of intent regarding the Services that are not embodied in this
Agreement are of no effect.
36. DEFINITIONS. The following definitions apply in addition to the definitions
set forth elsewhere in this Agreement:
"Affiliate" - any entity that controls, is controlled by or is under common
control with a party.
"Content" - information made available, displayed or transmitted in connection
with a Service (including information made available by means of an HTML "hot
link", a third party posting or similar means) including all trademarks, service
marks and domain names contained therein as well as the contents of any bulletin
boards or chat forums, and, all updates, upgrades, modifications and other
versions of any of the foregoing.
"End User" or "User" - the entity that uses the service furnished under this
Agreement for its own use, and not for purposes of providing telecommunications
services to others.
"Intermediate Provider" - any provider or other intermediary (other than
CUSTOMER or its agents or employees) in the sales chain between CUSTOMER and an
End User.
"Tariff" - the AT&T Tariffs identified in the Attachments, and the successor
documents of general applicability that replace such tariffs in the event of
detariffing.
If not otherwise defined, capitalized terms shall be defined as provided in
AT&T's Tariffs.
End of Terms and Conditions
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SUPPLEMENTAL TERMS AND CONDITIONS Page 1 of 9
SUPPLEMENTAL TERMS AND CONDITIONS ATTACHMENT
CUSTOMER Name (Full Legal Name): AT&T Wireless Services, Inc.
Date of execution of Agreement: ___________________ (by CUSTOMER)
___________________ (by AT&T)
================================================================================
The General Terms and Conditions of the Agreement are hereby revised as follows:
1. Section 1 is deleted in its entirety and replaced with the following:
1S. PROVISION OF SERVICES. CUSTOMER hereby orders and AT&T hereby
agrees to provide the AT&T services described in the
Attachment(s) to this Agreement (the "Services"). AT&T is not
responsible for the quality of transmission or signaling on
CUSTOMER's side of the network interface between AT&T and
CUSTOMER. Service is furnished subject to the availability of the
service components required, and subject to operational and
systems constraints; provided that AT&T will comply with the
Service Level Agreements applicable to each Service.
2. Section 2 is deleted in its entirety and replaced with the following:
2S. BILLING AND PAYMENT FOR THE SERVICES. Except as may be provided
in an Attachment, AT&T will send a single monthly bill for each
of the Services to one location designated by CUSTOMER. At
CUSTOMER's request, AT&T will review the billing capabilities
applicable to the various Services with CUSTOMER (including the
level of billing detail available, type of billing media, and
bill delivery options). CUSTOMER is liable for all amounts due to
AT&T under this Agreement. Payment in U.S. currency is due within
thirty days after the bill date, except as otherwise provided
below with respect to Billing Disputes.
3. Section 3 is deleted in its entirety and replaced with the following:
3S. NON-PAYMENT. AT&T may add interest charges to any amounts not
paid within 45 days after the bill date at the lower of 12.0% per
year or the maximum rate allowed by law, except that no interest
will apply in connection with failure to pay charges for Services
for which CUSTOMER or its Affiliate is the End User within 90
days of the bill date, to the extent such charges are
specifically identified as being in dispute within such 90 day
period in accordance with Section 4S. CUSTOMER shall reimburse
AT&T for reasonable attorney's fees and any other costs
associated with collecting
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SUPPLEMENTAL TERMS AND CONDITIONS Page 2 of 9
delinquent or dishonored payments (this requirement does not
apply with respect to charges withheld in connection with a bona
fide dispute). Restrictive endorsements or other statements on
checks accepted by AT&T will not apply.
4. Section 4 is deleted in its entirety and replaced with the following:
4S. BILLING DISPUTES. To dispute a charge on a bill, CUSTOMER must
identify the specific charge in dispute and provide a written
explanation of the basis for the dispute. CUSTOMER may withhold
payment of a charge subject to a good faith dispute provided: (a)
CUSTOMER submits the billing dispute within thirty days after the
bill date; (b) CUSTOMER pays the undisputed portion of all
charges; and (c) CUSTOMER cooperates reasonably with AT&T's
efforts to investigate and resolve the dispute. If CUSTOMER pays
a billed charge for Services for which CUSTOMER or its Affiliate
is the End User within 45 days of the bill date, and thereafter
(but in all events within 90 days of the bill date) specifically
identifies that charge as being in dispute and provides a written
explanation of the basis for the dispute, CUSTOMER may set off
the amount of such disputed charge from other charges due to
AT&T. If AT&T determines a disputed charge was billed in error,
AT&T shall issue a credit to reverse the amount incorrectly
billed. If AT&T determines a disputed charge was billed
correctly, payment shall be due from CUSTOMER within five days
after AT&T advises CUSTOMER in writing that the dispute is
denied. Any such determination by AT&T or payment by CUSTOMER
will be without prejudice to CUSTOMER's right to invoke the
Alternative Dispute Resolution set forth in Section 22 with
respect to such dispute.
5. Section 5 is deleted in its entirety and replaced with the following:
5S. DEPOSITS. CUSTOMER shall not be required to pay any Initial
Deposit. AT&T may require CUSTOMER, during the term of this
Agreement, to tender a deposit in an amount to be determined by
AT&T in its reasonable discretion, but not to exceed three
months' worth of charges under this Agreement. AT&T will rely
upon commercially reasonable factors to determine the need for
and amount of any deposit. These factors may include, but are not
limited to, payment history, number of years in business, history
of service with AT&T, bankruptcy history, current account
treatment status, financial statement analysis, and commercial
credit bureau rating, as well as commitment levels and
anticipated monthly charges. Any deposit will be held by AT&T as
a guarantee for the payment of charges. A deposit does not
relieve CUSTOMER of the
11
SUPPLEMENTAL TERMS AND CONDITIONS Page 3 of 9
responsibility for the prompt payment of bills. Interest (at the
rate of 6% per year or such other rate as is applicable by law)
will be paid to CUSTOMER for any period that a cash deposit is
held by AT&T. In the event that CUSTOMER is required to post a
deposit, AT&T will revisit the need for a deposit every six
months and, using the same criteria for determining whether a
deposit is required in the first instance. In the event that a
deposit is no longer required, AT&T will return the deposit and
accumulated interest to CUSTOMER.
6. Section 8 is deleted in its entirety and replaced with the following:
8S. RESPONSIBILITIES OF CUSTOMER. CUSTOMER is responsible for
interfacing and communicating with its End Users, for placing any
orders, and for assuring that it and any Intermediate Providers
comply with the provisions of this Agreement and with all
applicable federal and state laws and regulatory requirements
with respect to the Services. CUSTOMER is responsible for
arranging premises access at any reasonable time upon reasonable
prior request, so that AT&T personnel may install, repair,
maintain, inspect or remove service components.
7. Section 11 is deleted in its entirety and replaced with the following:
11S. ABUSE OF SERVICE. The abuse of Service is prohibited. Using
Service or permitting Service to be used in the following ways
constitutes abuse: (a) interfering unreasonably with the use of
AT&T service by others or the operation of the AT&T network; (b)
with respect to voice services provided at aggregated rates
(i.e., combined rate for transport and access), carrying calls
that originate on the network of a facilities-based interexchange
carrier other than AT&T and terminate disproportionately to
domestic locations for which AT&T's cost of terminating switched
access (based on the published access rates of the incumbent
local exchange companies) is above AT&T's price for the call
under this Agreement (after application of discounts) (provided
that the parties do not intend this provision to be triggered as
a result of the actual calling patterns of End Users when such
calling patterns reasonably reflect the calling patterns across
CUSTOMER's entire network); (c) with respect to voice services
provided at aggregated rates (i.e., combined rate for transport
and access), segregating traffic to deliver higher cost interLATA
calls to AT&T under this Agreement and lower cost interLATA calls
to another carrier (or to AT&T under a different arrangement);
(d) subjecting AT&T personnel or non-AT&T personnel to hazardous
conditions;
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SUPPLEMENTAL TERMS AND CONDITIONS Page 4 of 9
(e) attempting to avoid the payment, in whole or in part, of any
charges by any means or device (non-payment of billed charges
will not be considered abuse of service for purposes of this
Section); or (f) using the Services or displaying or transmitting
Content in a manner that violates any applicable law or
regulation. In any instance in which AT&T believes in good faith
that there is abuse of Service as set forth in Section 11(a),
11(d) or 11(e) above, AT&T may immediately restrict, suspend or
discontinue providing Service, without liability on the part of
AT&T, and then notify CUSTOMER of the action that AT&T has taken
and the reason for such action. To the extent doing so does not
interfere with its ability to prevent abuse of Service (to be
determined in AT&T's reasonable judgment), AT&T will contact
CUSTOMER before taking such action. In any instance in which AT&T
believes in good faith that there is abuse of Service as set
forth in Section 11(b), 11(c) or 11(e), AT&T shall provide
written notice to Customer such abuse of Service. If such abuse
of Service continues unremedied for 10 days after such notice,
AT&T may immediately restrict, suspend or discontinue providing
Service or prevent the display or transmission of Content,
without liability on the part of AT&T, and then notify CUSTOMER
of the action that AT&T has taken and the reason for such action.
AT&T will attempt to limit any restriction, suspension or
discontinuance under this Section to the locations, Content, or
Services with respect to which the abuse is taking place, and
will promptly restore Service once the abuse issue has been
resolved.
8. Section 14 is deleted in its entirety and replaced with the following:
14S. LIMITATION OF LIABILITY. EITHER PARTY'S ENTIRE LIABILITY, AND THE
OTHER PARTY'S EXCLUSIVE REMEDIES, FOR ANY DAMAGES CAUSED BY ANY
SERVICE DEFECT OR FAILURE, OR FOR OTHER CLAIMS ARISING IN
CONNECTION WITH ANY SERVICE OR PERFORMANCE OR NON-PERFORMANCE OF
OBLIGATIONS UNDER THIS AGREEMENT SHALL BE:
(a) FOR BODILY INJURY OR DEATH TO ANY PERSON, OR REAL OR TANGIBLE
PROPERTY DAMAGE, NEGLIGENTLY CAUSED BY A PARTY, OR DAMAGES
ARISING FROM THE WILLFUL MISCONDUCT OF A PARTY OR A BREACH OF THE
PROVISIONS OF SECTION 17 (USE OF MARKS), THE OTHER PARTY'S RIGHT
TO PROVEN DIRECT DAMAGES;
(b) FOR DEFECTS OR FAILURES OF SOFTWARE, THE REMEDIES SET FORTH
ABOVE UNDER THE HEADING WARRANTY WITH RESPECT TO SOFTWARE;
13
SUPPLEMENTAL TERMS AND CONDITIONS Page 5 of 9
(c) FOR INDEMNITY, THE REMEDIES SET FORTH BELOW UNDER THE HEADING
INDEMNIFICATION;
(d) FOR DAMAGES OTHER THAN THOSE SET FORTH ABOVE AND NOT EXCLUDED
UNDER THIS AGREEMENT, EACH PARTY'S LIABILITY SHALL BE LIMITED TO
PROVEN DIRECT DAMAGES NOT TO EXCEED PER CLAIM (OR IN THE
AGGREGATE DURING ANY 12-MONTH PERIOD) AN AMOUNT EQUAL TO THE
TOTAL NET PAYMENTS PAYABLE BY CUSTOMER FOR THE APPLICABLE SERVICE
UNDER THE APPLICABLE ATTACHMENT DURING THE 3 MONTHS PRECEDING THE
MONTH IN WHICH THE DAMAGE OCCURRED.
EXCEPT TO THE EXTENT PROVIDED UNDER THIS AGREEMENT WITH RESPECT TO
INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR
ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL
DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS,
ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND, OR INCREASED COST OF
OPERATIONS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AT&T BE LIABLE FOR ANY
CLAIM OR DAMAGES CAUSED BY OR ARISING OUT OF:
(i) ANY ACT OR OMISSION (INCLUDING WITHOUT LIMITATION
UNAUTHORIZED USE, THEFT, ALTERATION, LOSS OR DESTRUCTION OF
SERVICE OR THE APPLICATIONS, CONTENT, DATA, PROGRAMS,
INFORMATION, NETWORK OR SYSTEMS OF CUSTOMER, AN END USER OR ANY
THIRD PARTY) OF CUSTOMER, AN INTERMEDIATE PROVIDER, AN END USER,
OR ANOTHER THIRD PARTY OUTSIDE OF AT&T'S CONTROL,
(ii) EXCEPT AS OTHERWISE PROVIDED IN AN ATTACHMENT, SERVICE
INTERRUPTIONS OR LOST OR ALTERED MESSAGES OR TRANSMISSIONS FOR
SERVICES PROVIDED UNDER THIS AGREEMENT, OR
(iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE
SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR
NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL SURVIVE
FAILURE OF AN EXCLUSIVE REMEDY, AND SHALL APPLY REGARDLESS OF THE FORM
OF ACTION, WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, OR
NEGLIGENCE (INCLUDING WITHOUT LIMITATION ACTIVE AND PASSIVE
NEGLIGENCE). NOTHING IN THIS SECTION LIMITS
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SUPPLEMENTAL TERMS AND CONDITIONS Page 6 of 9
CUSTOMER'S RESPONSIBILITY FOR THE PAYMENT OF CHARGES DUE AS PROVIDED
IN THIS AGREEMENT.
9. Section 16 is deleted in its entirety and replaced with the following:
16S. INDEMNIFICATION. CUSTOMER shall indemnify, defend, and hold
harmless AT&T and its Affiliates, directors, officers, employees,
agents, successors and assigns from any and all claims, damages
and expenses whatsoever (including reasonable attorneys' fees)
arising on account of or in connection with CUSTOMER's use,
resale or sharing of the Services, including but not limited to:
(a) claims for libel, slander, invasion of privacy; (b) claims
for infringement of copyright arising from any communication
using the Services; (c) claims arising from any failure,
breakdown, interruption or deterioration of service provided by
AT&T to CUSTOMER or by CUSTOMER to End Users or Intermediate
Providers ("Service Claims"), provided that CUSTOMER will have no
obligation to indemnify AT&T against Service Claims to the extent
each of the following conditions are met with respect to such
claims -- (i) such claims are for direct damages, (ii) such
claims arise from AT&T's gross negligence or willful misconduct
and (iii) CUSTOMER is not in breach of its obligation under
Section 37S (this provision does not affect CUSTOMER's obligation
to defend AT&T against all Service Claims); (d) claims to the
extent arising from CUSTOMER's marketing efforts; and (e) claims
of patent infringement or other claims of intellectual property
infringement to the extent such claims arise from combining or
using services or equipment furnished by AT&T in connection with
services or equipment furnished by others. CUSTOMER's
indemnification obligations do not apply to claims for damages to
real or tangible personal property or for bodily injury or death
negligently caused by AT&T.
AT&T shall indemnify, defend, and hold harmless CUSTOMER and its
Affiliates, directors, officers, employees, agents, successors
and assigns from all claims of patent infringement or other
claims of intellectual property infringement to the extent such
claims arise solely from the use of the Services (provided that
AT&T will have no obligation to indemnify against claims of
patent infringement or other claims of intellectual property
infringement to the extent such claims arise from combining or
using services or equipment furnished by AT&T in connection with
services or equipment furnished by others). AT&T shall indemnify
CUSTOMER and its Affiliates, directors, officers, employees,
agents, successors and assigns from all Service Claims to the
extent such claims (a) are for
15
SUPPLEMENTAL TERMS AND CONDITIONS Page 7 of 9
direct damages and (b) arise from AT&T's gross negligence or
willful misconduct, provided that AT&T will have no obligation to
indemnify CUSTOMER against Service Claims if CUSTOMER is in
breach of its obligation under Section 37S. AT&T shall have the
right to assume the responsibility for the defense of Service
Claims against CUSTOMER for which AT&T has an indemnification
obligation. The parties shall cooperate reasonably with each
other in connection with the defense of any actions brought
against both parties arising from Service Claims.
10. Section 25 is deleted in its entirety and replaced with the following:
25S. EQUIPMENT. AT&T shall retain title to all of its equipment and
facilities used to provide service under this Agreement. If
agreed by CUSTOMER prior to shipping, CUSTOMER will pay
reasonable shipping charges for delivery to CUSTOMER's premises
of AT&T equipment used to provide Service under this Agreement.
CUSTOMER is liable to AT&T for the replacement cost of any
AT&T-provided equipment installed at CUSTOMER's premises in the
event of loss of said equipment for any reason, including but not
limited to theft (except to the extent such loss is the result of
the negligence, recklessness or willful misconduct of AT&T).
11. The following definitions are added to Section 36:
"Concert" - Concert Communications Company and it Affiliates.
"Change of Control" - Change of Control as defined in the
Separation and Distribution Agreement.
"Distribution Date" - the Distribution Date as defined in the
Separation and Distribution Agreement.
"Concert Framework Agreement" - the Framework Agreement between
AT&T and British Telecommunications plc dated as of October 23,
1998.
"Separation and Distribution Agreement" - the Separation and
Distribution Agreement, dated as of June 4, 2001, by and
between AT&T and AT&T Wireless Services, Inc.
12. A new Section 37S is added, as follows:
37S. THIRD PARTY CLAIMS. CUSTOMER shall ensure that, to the extent
permitted by applicable law, its contracts with Intermediate
Providers and End Users limit the liability of AT&T to the
Intermediate Provider or End User to the same extent as such
contracts limit CUSTOMER's own liability.
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SUPPLEMENTAL TERMS AND CONDITIONS Page 8 of 9
13. A new section 38S is added, as follows:
38S. CHANGE OF CIRCUMSTANCES. If, due to a business downturn, a change
in business operations or End User behavior, a corporate
divestiture, or a network optimization using other AT&T services,
which significantly reduces the volume of network services
required by CUSTOMER under this Agreement, CUSTOMER will be
unable, notwithstanding its best reasonable efforts, to avoid
application of a Shortfall Charge or Non-Compliance Charge, AT&T
and CUSTOMER will cooperate in determining whether any
modifications to this Agreement are appropriate. Such mutually
agreeable modifications may include, without limitation, changes
to the revenue commitment, term commitment, rates and charges,
and/or other provisions. This provision shall not apply to a
change resulting from a decision by CUSTOMER to transfer portions
of its service or projected growth to carriers other than AT&T.
CUSTOMER must give AT&T written notice of an event it believes
will trigger the application of this provision within 120 days
after the event occurs.
14. A new Section 39S is added, as follows:
39S. JOINT STEWARDSHIP REVIEWS. Beginning no more than six months
after the Agreement takes effect, and at approximately six-month
intervals thereafter (or more often if the parties agree), the
parties will engage in joint stewardship reviews to review each
parties performance under this Agreement (including the status of
performance against Monitoring Conditions and any adjustments
thereto), developments in the telecommunications market
(including prices and service capabilities), and CUSTOMER's
expected telecommunications needs for the upcoming twelve months,
and will determine whether any mutually agreeable changes to the
charges or other terms and conditions of this Agreement are
appropriate. No such changes will be effective unless a written
amendment to this Agreement is executed by duly authorized
representatives of both parties.
15. A new Section 40S is added, as follows:
40S. QUALITY. AT&T must comply with quality metrics to be agreed by
the parties. The quality metrics will include overall network
quality, provisioning and installation times, individual feature
quality metrics, carrier (CARE) metrics, and a disaster recovery
plan.
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SUPPLEMENTAL TERMS AND CONDITIONS Page 9 of 9
16. A new Section 41S is added, as follows:
41S. COMPETITIVENESS. The Services must remain competitive in feature
availability. In the event that (1) CUSTOMER wishes to purchase a
material service feature that is not available from AT&T or (2) a
feature offered by AT&T is not materially competitive in nature
or quality to a feature offered by another service provider, then
CUSTOMER may purchase the feature from another service provider
and such purchase will adjust the calculation of CUSTOMER's