20120302Application.pdf

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CENTURYLINK
1600 7th Avenue, Room 1506
Seattle, Washington 98191
[phone]
Facsimile [phone]
RECEIVED S~ C t L- k~4~ en ury in ™2012 MAR -2 AM 9: 5'
Maura E. Peterson
Paralegal
Regulatory Law
Via Overnight delivery
March 1, 2012
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
Re: Case No. C E. t- - \ - I') - 0': / tc,:J -T - \'J -D""
Application for Approval of Interconnection Agreement
QuantumShift Communications, Inc.
Dear Ms. Jewell:
Enclosed for filing is an original and three copies of the Application for Approval of an
Interconnection Agreement between Centurylink and QuantumShift Communications, Inc.
CenturyLink respectfully requests that this matter be placed on the Commssion Decision
Meeting Agenda for expedited approval.
Please contact me if you have any questions concerning the enclosed. Thank you for your
assistance in this matter
MEP:ldj
cc: Service list
ww.centurylink.com
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Lisa A Anderl (WSBA# 13236)
CenturyLink
1600 7th Ave, Room 1506
Seatte, WA 98191
Telephone: [phone]
Facsimile: [phone]
Lisa.anderl (gcenturylink.com
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
APPLICATION OF CENTURYLINKFOR CASE NO.: LGN -ï-l2-0-i/tC?S-T -1")-0'2
APPROVAL OF THE
INTERCONNECTION AGREEMENT APPLICATION FOR APPROVAL OF
FOR THE STATE OF IDAHO PURSUANT INTERCONNCTION
TO 47 U.S.C. §252(e)
CenturyTel of Idaho, Inc., CenturyTel of the Gem State, Inc. d//a.CenturyLink
("CenturyLink") hereby files this Application for Approval of Interconnection Agreement
("Agreement"). The Agreement with QuantumShift Communications, Inc. ("QuantumShift") is
submitted herewith.
This Agreement was reached through voluntary negotiations without resort to mediation
or arbitration and is submitted for approval pursuant to Section 252(e) of the Communications
Act of 1934, as amended by the Telecommunications Act of 1996 (the "Act").
Section 252(e)(2) of the Act directs that a state Commssion may reject an agreement
reached through voluntary negotiations only if the Commission finds that: the agreement (or
portiones) thereof) discriminates against a telecommunications carer not a pary to this
agreement; or the implementation of such an agreement (or portion) is not consistent with the
public interest, convenience and necessity.
CenturyLink respectfully submits that this Agreement provides no basis for either of
these findings, and, therefore requests that the Commission approve this Agreement
expeditiously. This Agreement is consistent with the public interest as. identified in the pro-
competitive policies of the State of Idaho, the Commssion, the United States Congress, and the
APPLICATION FOR APPROVAL OF INTERCONNECTION AGREEMENT-
QUANTUM SHIFT COMMUNICATIONS, INC.
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Federal Communications Commission. Expeditious approval of this Agreement wil enable
Quantumshift to interconnect with CenturyLink facilties and to provide customers with
increased choices among local telecommunications services.
CenturyLink further requests that the Commission approve this Agreement without a
hearng. Because this Agreement was reached through voluntary negotiations, it does not raise
issues requiring a hearng and does not concern other paries not a pary to the negotiations.
Expeditious approval would further the public interest.
Respectfully submitted this l* day of March, 20
C~~~UR
~Vl(UI~
Lisa A. Ande 1
Attorney for CenturyLink
APPLICATION FOR APPROVAL OF INTERCONNECTION AGREEMENT -
QUANTUMSHIFT COMMUNICATIONS, INC.
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CERTIFICATE OF SERVICE
I hereby certify that on this ~ day of March, 2012, I served the foregoing
APPLICATION FOR APPROVAL OF INTERCONNCTION AGREEMENT upon all
paries of record in this matter as follows:
Jean Jewell, Secretary
Idaho Public Utilities Commssion
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
¡¡ewell (gpuc.statejd.us
Hand Delivery
U. S. Mail
_X_ Overnight Delivery
Facsimile
Email
Karen A Weller
QuantumShift Communications, Inc.
12657 Alcosta Boulevard, Suite 418
San Ramon, CA 94583
Hand Deli very
X U. S. Mail
Overnight Delivery
Facsimile
Email
Leslie Johnson
APPLICATION FOR APPROVAL OF INTERCONNECTION AGREEMENT-
QUANTUM SHIFT COMMUNICATIONS, INC.
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RESALE AGREEMENT
By and between
CENTURYTEL OF IDAHO, INC DBA CENTURYLINK;
CENTURYTEL OF THE GEM STATE, INC DBA CENTURYLINK
AN
.QUANTUMSHIFT COMMUNICATIONS, INC.
FOR THE STATE OF IDAHO
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TABLE OF CONTENTS
PREFACE & RECITALS.........................................................................................................................................1
ARTICLE I: PURPOSE, INTENT AND SCOPE OF AGREEMENT ..................................................................2
1.0 PURPOSE OF THE AGREEMENT ..............................................................................................2
2.0 INTENT OF THE AGREEMENT .................................................................................................2
3.0 SCOPE OF THE AGREEMENT ...................................................................................................2
ARTICLE II: DEFINITIONS ...................................................................................................................................3
1.0 GENERAL RULES.........................................................................................................................3
2.0 DEFINITIONS ................................................................................................................................3
ARTICLE III: GENERAL TERMS & CONDITIONS .......................................................................................15
I. GENERA TERMS AND CONDITIONS REGARDING APPLICATION, EFFECTIVE DATE, TERM
AND GOVERNING LAW .........................................................................................................................15
1.0 APPLICATION OF THESE GENERAL TERMS & CONDITIONS ......................................15
2.0 EFFECTIVE DATE, TERM & TERMINATION ......................................................................15
3.0 APPLICABLE LAW............................................ .........................................................................18
II. OTHER GENERAL TERMS & CONDITIONS .............................................................................................19
4.0 AMENDMENTS ...........................................................................................................................19
5.0 ASSIGNMENT ..............................................................................................................................20
6.0 ASSURANCE OF PAYMENT .....................................................................................................20
7.0 AUDITS .........................................................................................................................................22
8.0 AUTHORIZATION AN AUTHORITY ...................................................................................24
9.0 BILLING & PAYMENTSIDISPUTED AMOUNTS ..................................................................25
10.0 INTENTIONALLY LEFT BLANK ...........................................................................................28
11.0 INTENTIONALLY LEFT BLANK ............................................................................................29
12.0 CHANGES IN LAW .....................................................................................................................29
13.0 CLEC PROFILE ...........................................................................................................................30
14.0 CONFIDENTIAL INFORMATION ...........................................................................................30
15.0 CONSENT .....................................................................................................................................32
16.0 CONTACTS BETWEEN THE PARTIES ............................................................................;.....32
17.0 CONTACTS WITH CUSTOMERS ............................................................................................32
18.0 COUNTERPARTS........................................................................................................................33
19.0 DISCONTINUANCE OF SERVICE BY QUANTUM ("SNAP-BACK PROVISION") .............33
20.0 DISPUTE RESOLUTION ............................................................................................................33
21.0 ENTIRE AGREEMENT ..............................................................................................................35
22.0 EXPENSES ................... ............ ...................... ...... ................ ...... ...... ..... ............ ..... ...... ...... ...........35
23.0 FORCE MAJEURE ......................................................................................................................35
24.0 FRAUD .......... ................. ................................ ...................... ...... ...... ..... ............ ........... ........... .... ..36
25.0 GOOD FAITH PERFORMANCE ...............................................................................................36
26.0 HEADINGS ...................................................................................................................................37
27.0 INTELLECTUAL PROPERTY ..................................................................................................37
28.0 LAW ENFORCEMENT ...............................................................................................................39
29.0 LETTER OF AUTHORIZA TION (LOA)...................................................................................39
30.0 LIABILITY AND INDEMNIFICATION ...................................................................................40
31.0 NETWORK MANAGEMENT ....................................................................................................45
32.0 NON-EXCLUSIVE REMEDIES .................................................................................................45
33.0 INTENTIONALLY LEFT BLANK ............................................................................................46
34.0 NOTICES.......................................................................................................................................46
35.0 ORDERING AND MAINTENANCE ..........................................................................................47
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36.0 POINTS OF CONTACT FOR QUANTUM CUSTOMERS .........................................................48
37.0 PUBLICITY AND USE OF TRADEMARKS.............................................................................48
38.0 REFERENCES..............................................................................................................................48
39.0 RELATIONSHIP OF THE PARTIES ........................................................................................49
40.0 RESERVATION OF RIGHTS.....................................................................................................50
41.0 STANDARD PRACTICES...........................................................................................................50
42.0 SUBCONTRACTORS..................................................................................................................50
43.0 SUCCESSORS AND ASSIGNS - BINDING EFFECT ..............................................................50
44.0 SURVIVAL....................................................................................................................................51
45.0 TAXES ...........................................................................................................................................51
46.0 TBD PRICES ...............................................................;.................................................................52
47.0 TECHNOLOGY UPGRADES.....................................................................................................53
48.0 TERRITORY ................................................................................................................................53
49.0 THIRD-PARTY BENEFICIARIES ............................................................................................53
50.0 UNAUTHORIZED CHANGES ...................................................................................................53
51.0 USE OF SERVICE ......................................... ...... .........................................................................54
52.0 WAIVER................................... ........... ...... ................ ........... ............................. ..... ............ ...........54
53.0 WITHDRAWAL OF SERVICES ................................................................................................54
ARTICLE IV: RESALE .........................................................................................................................................55
1.0 TELECOMMUNICATIONS SERVICES PROVIDED FOR RESALE...................................55
2.0 GENERAL TERMS AND CONDITIONS FOR RESALE ........................................................56
3.0 PRICING .....................................................................................:.................................................57
4.0 LIMITATIONS AN RESTRICTIONS ON RESALE .............................................................58
6.0 REQUIREMENTS FOR CERTAIN SPECIFIC SERVICES....................................................60
7.0 PRE-ORDERING AND ORDERING .........................................................................................62
8.0 OTHER OPERATIONAL MATTERS .......................................................................................63
9.0 ORDER DUE DATE .....................................................................................................................64
10.0 REPAIR AND MAINTENANCE REQUIREMENTS .............................,.................................64
11.0 DESIGNED AND/OR COMPLEX NEW CIRCUIT TESTING ...............................................64
12.0 ACCESS CHARGES ....................................................................................................................65
13.0 RESALE OF QUANTUM'S TELECOMMUNICATIONS SERVICES......................................65
ARTICLE V: MAINTENANCE .............................................................................................................................66
1.0 GENERAL MAINTENANCE & REPAIR REQUIREMENTS ...............................................66
2.0 MAINTENANCE & REPAIR PROCEDURES .........................................................................66
3.0 ESCALATION PROCEDURES ..................................................................................................67
4.0 EMERGENCY RESTORATION ................................................................................................67
5.0 MISDIRECTED REPAIR CALLS .............................................................................................68
6.0 PREMISES VISIT PROCEDURES ............................................................................................68
8.0 PRICING .......................................................................................................................................69
ARTICLE VI: ACCESS TO OPERATIONS SUPPORT SYSTEMS ("OSS") ..................................................70
1.0 INTENTION OF THE PARTIES ................................................................................................ 70
2.0 DEFINITIONS ..............................................................................................................................70
3.0 SERVICE PARITY AND STANARDS ....................................................................................71
4.0 FUTURE ENHANCEMENTS TO CENTURYUNK OSS FACILITIES .................................. 71
5.0 NOTICES.......................................................................................................................................71
6.0 CENTURYLINK OSS SERVICES................................................................................................ 72
7.0 ACCESS TO AND USE OF CENTURYUNK OSS FACILITIES .............................................72
8.0 CENTURYUNK OSS INFORMATION ......................................................................................73
9.0 QUANUM USAGE INFORMATION .......................................................................................... 76
10.0 QUANTUM BILLING INFORMATION................................... ....................................................76
11.0 LIABILITIES AND REMEDIES.................................................... ................. ...................... ......77
12.0 RELATION TO APPLICABLE LAW........................................................................................77
13.0 COOPERATION ..........................................................................................................................77.
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14.0 CENTURYUNK ACCESS TO INFORMATION RELATED TO QUANUM .
CUSTOMERS ............................................................................................................................... 78
15.0 CENTURYUNK PRE-OSS SERVICES ......................................................................................78
16.0 CANCELLATIONS......................................................................................................................79
ARTICLE VII DIRECTORY SERVICES....................................................................................80
ARTICLE VIII: PRICING......................................................................................................................................88
SIGNATURE PAGE .................................................................................................................................................92
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AGREEMENT
PREFACE & RECITALS
This Resale Agreement (the "Agreement"), is by and between CentuTel of Idaho,Inc., dba
CentuLink; CengutyTel of the Gem State, Inc., dba CentuLin, with its address for puroses
of this Agreement at 100 CentuLink Drive, Monroe, Louisiana 71203 ("CentuLink"), and
Quantushift Communications, Inc." in its capacity as a certfied provider of local wireline
Telecommunications Service ("QuantuShift"), with its address for this Agreement at 12657
Alcosta Boulevard, suite 418, San Ramon, CA 94583. CentuLink and QuantuShift are
herein referred to collectively as the "Partes" and each individually as a "Par" provided
however, that even though this Agreement refers to the Incumbent Local Exchange Carrers
doing business as "CentuLink" by a single name, the terms and provisions of this Agreement
shall apply separately and independently with respect to each of such separate, legal, entities, not
as a collective group, and the exercise, assertion, application, waiver or enforcement of each and
any of the terms, obligations, duties, liabilities, rights, privileges or other interests embodied in
this Agreement by or against any of such Incumbent Local Exchange Carrers shall pertin, in
each instance, only with respect to a single, individual Incumbent Local Exchange Carrer, and
shall not be deemed to apply in an aggregate fashion to any of the other Incumbent Local
Exchange Carrers who are signatory parties to this Agreement, unless mutually agreed upon in a
separate wrtten instruent executed by each affected entity. Thus, for example, separate orders,
arrangements and facilities must be made by QuantuShift with respect to interconnection with
and use of the network, facilties, propert, and services of each separate Local Exchange Carer
entity that is a part to this agreement, and none of the Local Exchange Carrers shall be deemed
to represent (by constrctive receipt or otherwse) any of the other Local Exchange Carrers or
their networks, facilities, propert or services. This Agreement establishes the rates, terms and
conditions for local Interconnection, collocation, local resale, and purchase of unbundled
Network Elements (individually referred to as "service" or collectively as the "services). This
Agreement covers services in the State ofIdaho only (the "State").
WHEREAS, Section 251 of the Telecommunications Act of 1996 (the "Act") imposes specific
obligations on LECs with respect to the resale of their Telecommunications Services,
NOW, THEREFORE, in consideration of the mutual provisions contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
and without waiving any reservation of rights set forth herein, CentuLink and QuatumShift
hereby covenant and agree as follows:
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Article I: Purpose, Intent and Scope of Agreement
CentuLink QutuShift
Resale/ Idao
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ARTICLE I: PUROSE, INTENT AN SCOPE OF AGREEMENT
1.0 PURSE OF TI AGREEMENT
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This Agreement governs the purchase by QuantuShift of certain Telecommunications
Services provided by CentuLink in its franchised areas in the State pursuant to the
obligations of Local Exchange Carrers under the Telecommunications Act of 1996, and
as amended from time to time and codified at 47 US.C. §§ 151, et seq. This Agreement
wil be submitted to the State Public Service or Public Utilities Commission, as
applicable (the "Commission") for approvaL. The Paries agree that their entr into this
Agreement is without prejudice to and does not waive any positions they may have taken
previously, or may take in the futue, in any legislative, regulatory, judicial or other
public foru addressing any matters, including matters related to the same tyes of
arrangements and/or matters related to CentuLink's rates and cost recovery that may be
covered in this Agreement. QuantuShift agrees to accept these terms and conditions
with CentuLink based on this Agreement as reciprocal where applicable.
2.0 INTENT OF THE AGREEMENT
Whereas Sections 251 and 252 of the Telecommunications Act of 1996, as amended from
time to time, impose specific obligations on the Parties to interconnect with each other's .
networks and access to certin services and facilties, the terms and conditions contained
in this Agreement are intended to set forth the specific arrgements and services by
which the Paries wil discharge their respective obligations under Applicable Law.
Furhermore, to the extent they apply to CentuLink's provision of services and/or
facilities to QuantuShift, such terms are intended to apply only to the extent required by
Applicable Law.
3.0 SCOPE OF THE AGREEMENT
The following constitute pars ofthis Agreement:
Agreement: Preface & Recitals
Article I: Purose, Intent and Scope of Agreement
Aricle II: Definitions
Aricle III: General Terms & Conditions
Aricle IV: Resale
Aricle V: Maintenance
Article VI: Access to Operations Support Systems (OSS)
Article VII: Pricing
Signature Page
The terms and conditions set forth in the Agreement, together with those set forth in.its
given Articles, are integrally and legitimately related, and shall govern the provision of
services and/or facilities by CenturyLin to QuantuShift..
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.Article II: Definitions
CentuLink QuantuShift
Resaielldaho
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ARTICLE II: DEFINITIONS
1.0 GENERA RULES
1.1 Unless the context clearly indicates otherwise, the definitions set fort in Section
2 of this Article II shall apply to all Aricles and Appendices contained in this
Agreement. A defined term intended to convey the meaning stated in this Arcle
II is capitalized when used.
1.2 Additional definitions that are specific to the matters covered in a paricular
Aricle, Appendix or provision may appear in that Aricle, Appendix or provision.
To the extent that there is any conflict between a defmition set fort in this Article
II and any definition in a specific Aricle, Appendix or provision, the definition
set forth in the specific Article, Appendix or provision shall control with respect
to that Aricle, Appendix or provision.
1.3 Capitalized terms that are not otherwise defined in this Aricle II or Agreement
but are defined in the Telecommunications Act of 1996 ("Act") and/or the orders
and rules implementing the Act shall have the meaning set forth in the Act or in
such orders and rules..1.4 Terms used in a Tariff shall have the meanings stated in the Tariff or State Price
List in states where detariffing regulation has been implemented.
1.5 Unless the context clearly indicates otherwse, any term defined in this Aricle II
which is defined or used in the singular shall include the plural, and any term
defined in this Aricle II which is defined or used in the plural shall include the
singular.
1.6 The words "shall" and "wil" are used interchangeably throughout the Agreement
and the use of either indicates a mandatory requirement. The use of one or the
other shall not confer a different degree of right or obligation for either Part.
2.0 DEFINITIONS
2.1 "Act" or "the Act"
The Communications Act of 1934, as amended by the Telecommunications Act of
1996, and as amended from time to time and codified at 47 U.S.c. §§ 151, et seq.
2.2 Advanced Servces
"Advanced Services" means intrastate or interstate wireline Telecommunications
Services (including, but not limited to, ADSL, IDSL, xDSL, Frame Relay and
Cell Relay) that rely on packetized or Packet Switched technology thgit enable.
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Article II: Definitions
CentuLink QuantumShift
ResaleJIdao
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users to originate and receive high-quality voice, data, graphics and/or video
telecommunications using any technology.
2.3 Jlff"diate
"Affliate" shall have the meaning set fort in § 153(1) of the Act.
2.4 Answer Supervision
An off-hook supervisory signaL.
2.5 Applicable Law
All effective laws, statutes, common law, governental regulations, ordinances,
codes, rules, guidelines, orders, permits and approvals of any governmental
authority (including, without limitation, the Commission and the FCC) that apply
to the subject matter of this Agreement.
2.6 As-Is Transfer (AIT)
The transfer of all Telecommunications Services and features available for resale
that are curently being provided for a specific account, without the requirements
of a specific enumeration of the services and featues on the Local Service
Request (LSR), with all such services being provided "as is.".
2.7 Automated Message Accounting (AMA)
The strcture inherent in switch technology that initially records
telecommunication message information. AMA format is contained in the
Automated Message Accounting document, published by Telcordia Technologies
as GR-1100-CORE, which defines the industr standard for message recording.
2.8 Bil Date
The effective date for which a CentuLink service is biled and/or invoiced to a
customer. The Bil Date shall be the date one day past the biling cycle close date.
The Bil Date is the same date each month for recurng bils and is included on
any such bil or invoice.
2.9 Bil Due Date
Refers to the date that a bil or invoice is due and payable. The Bil Due Date
shall be the date thirty (30) days from the Bil Date.
2.10 Business Day .
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.Artcle II: Definitions
CentuLink QuantuShift
Resale/ldaho
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Monday through Friday, 8 am to 5 pm Central Stadard or Daylight Savings time,
except for (1) holidays observed by the United States governent; (2) days on
which the non-priority U.S. mail is not delivered; and (3) company holidays on
which CentuLink is offcially closed for business and except as otherwse
specifically stated or provided for in other documentation incorporated into this
agreement.
2.11 Carrier Identification Code (CIC)
Four-digit numbers used by End User Customers to reach the services of
Interexchange Carriers (IXCs).
2.12 Central Office (CO)
A telephone company building where customer lines are joined to a switch or
switches for connection to the PSTN.
2.13 Central Offce Switch
.A switch used to provide Telecommunications Services including (1) End Offce
Switches which are Class 5 switches from which end-user Telephone Exchange
Services are directly connected and offered, and (2) Tandem Offce Switches
which are Class 4 switches used to connect and switch tr circuits between and
among Central Offce Switches. Central Offce Switches may be employed as
combination End Offce/Tandem Offce Switches (combination Class 5/Class 4).
2.14 CenturvLink Operating Company (CTOC) or CenturyLink
The single CentuLink Operating Company in the State that is a Part to this
Agreement.
2.15 Intentionally left blank
2.16 CenturyLink Standard Practices
CentuLink Stadard Practices are procedures for service ordering,
provisioning, biling, maintenance, trouble reporting and repair for wholesale
services. CentuLink Standard Practices which may be amended from time to
time.
2.17 Certifcate of Operating Authority
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A certfication by the State Commission that QuatuShift has been authorized to
operate within the State as a provider of local Telephone Exchange Services
within CentuLin's local service area; in many states this certfication is known
as a Certificate of Public Convenience and Necessity.
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2.18 CLASS
An acronym for Custom Local Area Signaling Services. CLASS is based on the
availabilty of Common Chanel Signaling (CCS). CLASS consists of number-
translation services such as call-forwarding and caller identification, available
within a local exchange. CLASS is a service mark of Bellcore, now Telcordia.
2.19 CLEC Pre-ordering Forms
Forms required to be completed and submitted to CentuLink by any
Telecommunications Carer requesting the ability to initiate any order
submission to CentuLink. Among other things, a Telecommunication Carrer is
required to provide CentuLink, , the following: its Operating Company
Number (OCN), Company Code (CC), and Customer Carer Name Abbreviation
(CCNA).
2.20 Commission
The State Public Service or Public Utility Commission, as applicable.
2.21 Competitive Local Exchange Carrier (CLECl
A "Local Exchange Carrer," as defined in § 153(26) of the Act, authorized to .
provide Telephone Exchange Services or Exchange Access services in
competition with an ILEC.
2.22 Contract Year
A twelve (12) month period durg the term of the Agreement commencing on the
Effective Date and each aniversary thereof.
2.23 Conversation Time
The time that both Parties' equipment is used for a completed call, measured from
the receipt of Answer Supervision to the receipt of Disconnect Supervision.
2.24 Customer Proprietary Network Information (CPNI)
"Customer Proprietary Network Information" or "CPNI" shall have the meaning
set forth in 47 U.S.c. § 222.
2.25 Customer Service Record (CSRl
A record detailng the services to which an End User Customer subscribes from
its telecommunications provider( s).
2.26 Customer Servce Record Search .
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.Artcle II: Definitions
CentuLink QuantuShift
Resale/Idaho
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A process requested by CLEC for basic account information, listing/directory
information, service and equipment listing, and billng information for a
customer. The CLEC must have obtained a LOA from the End User Customer
prior to requesting a Customer Service Record Search. A Customer Service
Record Search wil be obtained by means of a LSR where such request is
permitted by the provisions of this Agreement.
2.27 Disconnect Supervsion
An on-hook supervisory signal end at the completion ofa call.
2.28 Disputed Amounts
An amount or any. portion of bil or invoice sent to a Par that the biled Part
contends, in good faith, is not due and payable. For an amount to qualify as a
Disputed Amount, the biled Part must provide wrtten notice to the biling Par
of the natue and amount of the disputed charge(s) using the process and time
period established by the biling Par.
2.29 E-911 Service.An emergency telephone system which includes network switching, database and
CPE elements capable of providing selective routing, selective transfer, fixed
transfer, caller routing and location information, and/or ALI and is used to route
911 calls to a PSAP that uses a customer location database to determine the
location to which a call should be routed.
2.30 Effective Date
The date on which the last Par to this Agreement executes the Agreement,
unless prior Commission approval is required in order to make the Agreement
effective between the Paries except that the initiation of a new QuantuShift
account, any new provision of service or obligation or any revision to curently
existing services or obligations shall not take effect for 60 days to accommodate
required initial processes. If such Commission approval is required, the Effective
Date shall be either the date on which the Commission deems the Agreement
approved or, the date on which the Commission deems the Agreement effective,
whichever the case may be.
2.31 Electronic File Transfer (EFT)
A system or process that utilzes an electronic format and protocol to send/receive
data files.
2.32 "End User" or "End User Customer".
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Article II: Definitions
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Any individual, business, association, corporation, governent agency or entity
other than an Interexchange Carer (IXC), Competitive Access Provider (CAP)
or Commercial Mobile Radio Service (CMRS) provider (also known as a
Wireless Carer) that subscribes to Telecommunications Services provided by
either of the Paries and does not resell it to others. As used herein, this term
does not include any of the Paries to this Agreement with respect to any item or
service obtained under this Agreement.
2.33 Exchange Access
Exchange Access shall have the meaning set fort in § 153(16) the Act.
2.34 Exchange Message Interface (EMI)
An Exchange Message Interface is the stadard used for the exchange of
telecommunications message information among Telecommunications Carrers
for bilable, non-bilable, sample, settlement, and study data. An Exchange
Message Interface (EMI) was formerly known as an Exchange Message Record
(EMR).
2.35 Intentionally left blank.
2.36 Facilty .
All buildings, equipment, strctues and other items located on a single site or
contiguous or adjacent sites owned or operated by the same persons or person as
used in Aricle III.
2.37 FCC
The Federal Communications Commission.
2.38 Federal Universal Service Charge (FUSC)
An end-user charge that allows a Telecommunications Carer to recover the costs
of its universal service contrbutions from its customers.
2.39 Federal Universal Servce Fund (FUSF)
A fud administered by the National Exchange Carers Association (NECA) into
which Telecommunications Carrers pay their universal service contrbutions.
2.40 Foreign Exchange (FX)
Service offerings of local exchange carrers that are purchased by customers and
which allow such customers to obtain Telephone Exchange Service from a
mandatory local callng area other than the mandatory local calling area in which .
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the customer is physically located. Examples of this tye of service include, but
are not limited to, Foreign Exchange Service, CENTREX with Foreign Exchange
Telephone Service Option, and ISDN-PRI Out-of-Callng Scope (both Two-Way
and Terminating Only).
2.41 Incumbent Local Exchange Carrier aLEC)
An "Incumbent Local Exchange Carer" or "ILEC" shall have the meaning set
forth in 47 U.S.c. § 251(h).
2.42 Intentionally left blank
2.43 Inside Wire or Inside Wirig
Inside Wire or Inside Wirig is wiring within the customer premise that is owned
or controlled by CenturyLink that extends to the point of demarcation of
CentuLink's outside plant. The point of demarcation shall have the meaning set
fort in 47 C.F.R. § 68.105..
2.44 Intellectual Property.For puroses of this Agreement, "Intellectual Propert" means (a) inventions
(whether patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, patents, patent applications and patent disclosures, and all
reissuances, continuations, revisions, extensions and re-examinations thereof, (b)
trademarks, service marks, trade dress, logos, trade names, domain names and
corporate names, and translations, adaptions, derivations and combinations
thereof and goodwil associated therewith, and all applications, registrations and
renewals in connection therewith, (c) copyrghtable works, copyrghts and
applications, registrations and renewals relating thereto, (d). mask works and
applications, registrations and renewals relating thereto, (e) trade secrets and
confidential business information (including ideas, research and development,
know-how, formulae, compositions, manufactung and production processes and
techniques, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and marketing plans and
proposals), (f) computer softare (including data and related documentation), (g)
other proprietar rights, and (h) copies and tangible embodiments thereof (in
whatever form or medium).
2.45 Intellectual Propert Claim
For purposes of this Agreement, "Intellectual Propert Claim" means any actual
or threatened claim, action or proceeding relating to Intellectul Propert..
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2.46 Interexchange Carrier (lXCl
A carer that provides, directly or indirectly, InterLATA or IntraLATA
Telephone Toll Service.
2.4 7 Local Callng Area (LCAl
Local Calling Area (LeA) traffc is trffc originates and terminates in the local
exchange area, and any mandatory Extended Area Service (EAS) exchanges, as
defined in CentuLink's local exchange tariffs.
2.48 Local Exchange Carrier (LECl
"Local Exchange Carrer" or "LEC" shall have the meaning set forth in § 153(26)
of the Act.
2.49 Local Servce Request (LSRl
The Ordering and Biling Forum document designated by CentuLink to be used
by the Parties to establish, add, change or disconnect local Telecommunications
Services for the purose of providing competitive local Telecommunications
Services. Sometimes referred to as a Service Order..
2.50 National Security Emergency Procedures (NSEPl
Federal procedures that apply to Telecommunications Carers that are used to
maintain a state of readiness or to respond to and manage any event or crisis that
causes or could cause injur or harm to the population, . damage to or loss of
property, or degrade or threaten the national security or emergency preparedness
of the United States.
2.51 911 Service
An emergency reportng system to faciltate the reporting of emergencies
requiring response by a public safety agency whereby a caller can dial a common
number (911) for emergency services. Basic 911 is an emergency telephone
system which automatically connects 911 callers to a designated answering point.
Call routing is determined by originating Central Offce only. Basic 911 mayor
may not support ANI and/or ALL
2.52 Numbering Plan Area (NPAl
Also sometimes referred to as an "area code," an NPA is the three-digit indicator,
which is defined by the "A", "B", and "C" digits of each 10-digit telephone
number within the NANP. Each NPA contains 800 possible NXX Codes. There .
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are two general categories of NPA: "Geographic NP As" and ''Non-Geographic
NP As". A Geographic NP A is associated with a defined geographic area, and all
telephone numbers bearing such NP A are associated with services provided
within that geographic area. A Non-Geographic NPA, also known as a "Service
Access Code" or "SAC Code" is tyically associated with a specialized
Telecommunications Service that may be provided across multiple geographic
NPA areas. 800,900,700, and 888 are examples of Non-Geographic NPAs.
2.53 NXX. NXX Code. Central Offce Code or CO Code
The three,;digit switch entity indicator that is defined by the "D", "E", and "F"
digits of a lO-digit telephone number within the NANP. Each NX Code
contains 10,000 station numbers.
2.54 Operations Support Systems (OSS)
The pre-orderig, orderig, provisioning, maintenance and reair, and biling
fuctions supported by CentuLink's databases and information.
2.55 Optional EAS Traffc.Optional EAS Traffic is local callng scope traffc that, under an optional rate
package chosen by the End User Customer, terminates at a physical location
outside of that End User Customer's Local Callng Area or mandatory Extended
Area Service (EAS).
2.56 Party or Parties
"Par" shall mean CentuLink or QuantuShift depending on the context.
"Parties" refers collectively to both CentuLink and QuantuShift.
2.57 Public Safety Answering Point æSAP)
A facility that has been designated to receive 911 calls and route them to
emergency services personneL. A PSAP may be designated as Primary or
Secondary. Primary PSAPs are facilities to which 911 calls are routed directly
from the 911 control offce; Secondary PSAPs are facilities to which 911 calls are
transferred from a Primary PSAP.
2.58 "Repeatedly delinquent"
As used in Aricle LLI, "repeatedly delinquent" shall refer to the failure to remit or
pay a bil under this Agreement within thirt (30) calendar days after the bil due
date, three (3) or more times durng a twelve (12) month period...2.59 Routine Network Modifcations
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A Routine Network Modification is an activity that CentuLink regularly
undertes for its own customers.
Routine Network Modifications do not include: the constrction of a new loop or
new transport; installation of new aerial or bured cable; splicing cable at any
location other than an existing splice point or at any location where a splice
enclosure is not already present; securng permits, rights-of-way, or building
access arangements; constrcting and/or placing new manholes, handholes,
poles, ducts or conduits; installng new terminals or terminal enclosure (e.g.,
controlled environmental vaults, huts, or cabinets); or providing new space or
power for requesting carrers; or removing or reconfigung packetized
transmission facility. CentuLink is not obligated to perform these and other
similar activities for QuantuShift.
2.60 Selective Router (SR)
A device that routes E91 i calls to the appropriate PSAP based on the caller's
location.
2.61 Service Affecting
A "Service Affecting" issue or dispute shall mean that such issue or dispute,
unless resolved, places a Part's End User Customer in immediate or imminent .
risk of not being able to use the service to which that End User Customer
subscribes.
2.62 Servce Order
See "LSR."
2.63 State
As used in this Agreement, "State" shall refer to the state in which services are to
be provided under this Agreement. For puroses of this Agreement, "State" shall
mean the State ofIdaho..
2.64 Subsidiary
A corporation or other legal entity that is majority owned by a Par.
2.65 Switched Access Services
The offering of transmission and/or switching services to Telecommunications
Carrers for the purose of the origination or termination of Telephone Toll
Services. Any traffic that does not meet. the definition of Local Traffc wil be
considered Switched Access Traffc. Switched Access Services include: Featue .
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Group A, Featue Group B, Featue Group C, Featue Group D, 500, 700, 800
access and 900 access services. The term "Switched Access Service" is
interchangeable with "Switched Exchange Access Service."
2.66 Tariff or Price List
Any applicable Federal or state tariff or Price List of a Par, as amended from
time-to-time.
2.67 Telecommunications
"Telecommunications" shall have the meaning set forth in § 153(43) ofthe Act.
2.68 Telecommunications Carrier
"Telecommunications Carrer" shall have the meaning set fort in § 153(44) of
the Act. This definition includes CMRS providers, IXCs and, to the extent they
are acting as Telecommunications Carrers, companies that provide both
Telecommunications and Information Services. Private mobile radio service
providers are Telecommunications Carers to the extent they provide domestic or
international telecommunications for a fee directly to the public..2.69 Telecommunications Service
"Telecommunications Service" shall have the meaning set forth in § 153(46) of
the Act.
2.70 Telecommunications Service Priority (TSP)
Aprocedure established by the National Communications System Offce (NCSO)
used by a Telecommunications Carer to establish priorities in deciding which
lines and trus to restore subsequent to an outage. Generally, the highest priority
goes to federal law enforcement and miltary usage, with local emergency
services (including 911 Service) and medical facilities following..
2.71 Telephone Exchange Service
"Telephone Exchange Service" shall have the meaning set fort in § 153(47) of
the Act.
2.72 "Telephone Toll" or "Telephone Toll Service"
.
"Telephone Toll" or "Telephone Toll Service" is telephone service between
stations in different exchange areas. Telephone Toll traffic can be either
"IntraLATA Toll Traffic" or "InterLATA Toll Traffic" depending on whether the
originating and terminating points are within the same LATA.
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2.73 Time and Material Charges
Time and Materials Charges are charges for non-standard or individual-case-basis
work requested by QuantumShift. "Time" charges are for the cost of labor which
includes, but is not limited to, work preparation and actual work. This labor time
is multiplied by an applicable labor rate. "Material" charges are for the cost of
items required to fulfill the job requirements.
2.74 Vertical Features (including CLASS Features)
Featues, fuctions and capabilties provided though operation of hardware and
software comprising a switch.
2.75 Website
As used in this agreement, Website shall mean:
ww.CentuLink.com/wholesaleservices
.
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ARTICLE III: GENERAL TERMS & CONDITIONS
I.
GENERAL TERMS & CONDITIONS
REGARDING APPLICATION, EFFECTIVE DATE, TERM AND GOVERNING LAW
1.0 APPLICATION OF THESE GENERA TERMS & CONDITIONS
Except as may otherwise be set forth in a particular Article or Appendix of this
Agreement, in which case the provisions of such Article or Appendix shall control, these
General Terms & Conditions apply to all Artcles and Appendices of this Agreement.
2.0 EFFECTIVE DATE, TERM & TERMINATION
2.1 Effective Date. This Agreement wil be effective only upon execution by both
Parties unless prior Commission approval is required, in which case this
Agreement shall be effective upon Commission approval; except that the
initiation of a new QuantumShift account, any new provision of service or
obligation or any revision to curently existing services or obligations shall not
take effect for 60 days to accommodate required initial processes. The "Effective
Date" of this Agreement for all puroses wil be the latest date reflected by the
signing Parties.
2.2 Term. This Agreement shall be effective as of the Effective Date and, unless
cancelled or terminated earlier in accordance with the terms hereof, shall continue
in effect until two years after the effective date (the "Initial Term"). If neither
Part elects to terminate this Agreement as of the date of termination of the Initial
Term, this Agreement shall continue in force and effect on a month-to-month
basis (each one-month period constituting a "Follow-on Term") unless and until
cancelled or terminated as provided in this Agreement.
2.2.1 Notwithstanding the above, CentuLink at its discretion may
terminate this Agreement after twelve consecutive months of inactivity
on the part of QuantuShift. Inactivity is defined as QuantuShift's
failure to initiate the required pre-orderig activities, QuantuShift's
failure to submit any orders pursuant to this Agreement's terms or
QuatumShift's failure to originate or terminate any Local Traffic
pursuant to this Agreement's terms.
2.3 Notice of Termination. Either QuatuShift or CentuLink may terminate this
Agreement effective upon the expiration of the Initial Term by providing wrtten
notice of termination ("Notice of Termination") at least ninety (90) calendar days
in advance of the applicable date of termination. Either QuantuShift or
CentuLink may terminate this Agreement effective upon the expiration of a
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Follow-on Term by providing a wrtten Notice of Termination at least thirt (30)
calendar days in advance of the applicable date of termination.
2.4 Effect on Termination of Negotiating Successor Agreement. If either
QuantumShift or CentuLink provides notice of termination pursuant to Section
2.3 and, on or before the noticed date of termination, either QuantumShift or
CentuLink has requested negotiation of a new resale agreement, this Agreement
shall remain in effect until the earlier of: (a) the effective date of a new resale
agreement between QuantumShift and CentuLink; or, (b) the date 180 calendar
days after the date of termination identified in the Notice of Termination. If a
new interconnection agreement has not been approved by 180 days after the date
of termination identified in the Notice of Termination, then CentuLink and
QuantuShift may mutually agree to continue to operate on a month to month
basis under the terms set forth herein until (a) a new agreement has been approved
or (b) until QuantumShift ceases providing service in CentuLin's exchanges.
Should the Paries not agree to continue to operate under the terms set forth herein
after 180 days, then the provisions of Section 2.5 shall be required. The foregoing
shall not apply to the extent that this Agreement is otherwise cancelled or
terminated in accordance with Section 2.6 (Termination Upon Default) or Section
2.7 (Termination Upon Sale).
Termination and Post-Termination Continuation of Services. If either
QuantuShift or CentuLink provides notice of termination pursuant to Section
2.3 and,by 11 :59 p.m. Central Time on the proposed date of termination, neither
QuantuShift nor CentuLink has requested negotiation of a new resale
agreement, (a) this Agreement wil terminate at 11:59 p.m. Central Time on the
termination date identified in the Notice of Termination, and (b) the services and
functions being provided by CentuLink under this Agreement at the time of
termination, including the exchange of local traffc, wil be terminated unless the
Parties jointly agree to other continuing arrangements. QuantuShift may
request that such services or fuctions continue to be provided pursuant to (i) an
applicable Tarff(s) if the service is included in the same; (ii) other terms and
conditions made generally available by the Commission to local
Telecommunications Service providers, if any; or (iii) terms and conditions
available under Section 252(i) of the Act, if elected by QuantuShift. If
QuantumShift elects to have such services or functions continue pursuant to terms
and conditions available under Section 252(i) of the Act, the continuation of such
services and fuctions shall be governed by the terms and conditions adopted by
QuantuShift under Section 252(i). Should QuantumShift fail to follow the
terms of this Section 2.5, **CMRS agrees that its termination notice shall be
invalidated and considered withdrawn and it shall continue to be accountable and
liable for all its obligations under the terms of this Agreement.
.
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2.6 Suspension or Termination Upon Default. Either Par may suspend or terminate
this Agreement, in whole or in part, in the event of a Default (defined below) by
the other Pary; provided, however, that the non-defaulting Party notifies the
defaulting Par in writing of the Default and the defaulting Par does not cure
the Default within thirt (30) calendar days of receipt of written notice thereof.
Following CentuLink's notice to QuantuShift of its Default, CenturyLink
shall not be required to process new service orders until the Default is timely
cured.
"Default" is defined to Înclude:
(a) A Part's insolvency or the initiation of banptcy or receivership
proceedings by or against the Part; or
(b) The revocation by the Commission of a Part's Certificate of Operating
Authority, or
(c) A Part's violation of any material term or condition of the Agreement; or
(d)A Par's refusal or failure in any material respect properly to perform its
obligations under this Agreement, including but not limited to its refusal
or failure to pay undisputed charges (pursuant to Section 9) within thirt
(30) calendar days after the bil date..
2.7 Termination Upon Sale. Notwithstanding anything to the contrary contained
herein, a Part may terminate this Agreement as to a specific operating area or
portion thereof if such Par sells or otherwise transfers the area or portion
thereof to a non-affiiate. The selling or transferrng Part shall provide the other
Part with at least sixty (60) calendar days' prior wrtten notice of such
termination, which shall be effective on the date specified in the notice.
Notwithstanding termination of this Agreement as to a specific operating area,
this Agreement shall remain in full force and effect in the remaining operating
areas.
2.8 Liabilty Upon Termination. Termination of this Agreement, or any par hereof,
for any cause shall not release either Part from any liabilty (i) which, at the time
of termination, had already accrued to the other Part, (ii) which thereafter
accrues in any respect through any act or omission occurng prior to the
termination, or (iii) which accrues from an obligation that is expressly stated in
this Agreement to surive termination.
2.9 Predecessor Agreements.
2.9.1 Except as stated in Section 2.9.2 or as otherwise agreed in wrting by the
Parties:.
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2.9.1.1 any prior resale agreement between the Paries for the State of
Idaho puruant to Section 252 of the Act and in effect
immediately prior to the Effective Date is hereby terminated; and
2.9.1.2 any services that were purchased by one Part from the other
Par under a prior resale agreement between the Parties for the
State of Idao puruat to Section 252 of the Act and in effect
immediately prior to the Effective Date, shall as of the Effective
Date be subject to the prices, terms and conditions of under this
Agreement.
2.9.2 Except as otherwise agreed in wnting by the Parties, if a service
purchased by a Par under a prior resale agreement between the Paries
pursuant to Section 252 of the Act was subject to a contractul
commitment that it would be purchased for a period of longer than one
month, and such period had not yet expired as of the Effective Date and
the service had not been terminated prior to the Effective. Date, to the
extent not inconsistent with this Agreement, such commitment shall
remain in effect and the service wil be the prices, terms and conditions of
this Agreement; provided, that if this Agreement would materially alter
the terms of the commitment, either Pary make elect to cancel the
commitment..
2.9.3 If either Part elects to cancel the commitment pursuant to the proviso in
Section 2.9.2, the purchasing Part shall not be liable for any termination
charge that would otherwise have applied. However, if the commitment
was cancelled by the purchasing Part, the purchasing Par shall pay the
difference between the price of the service that was actually paid by the
purchasing Part under the commitment and the price of the service that
would have applied if the commitment had been to purchase the service
only until the time that the commitment was cancelled.
3.0 APPLICABLE LAW
3.1 Applicable Law. The term Applicable Law, as used in this Agreement, shall
mean all effective laws, statutes, common law, governental regulations,
ordinances, codes, rules, guidelines, orders, permits and approvals of any
governental authority (including, without limitation, the Commission and the
FCC) that apply to the subject matter of this Agreement.
3.2 Rule of Constrction. The Parties acknowledge that, except for provisions
incorporated herein as the result of an arbitrated decision, if any, the terms and
conditions of this Agreement have been mutually negotiated, and each Part has
relied solely on the advice of its own legal counsel in accepting such negotiated
terms and conditions. This Agreement shall be fairly interpreted in accordance .
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with its terms. No rule of constrction requiring interpretation against the
drafting Par hereof shall apply in the interpretation of this Agreement.
3.3 Choice of Law and Venue. This Agreement shall be governed by and constred
in accordance with the Act, applicable federal and (to the extent not inconsistent
therewith) domestic laws of the State where the services are being provided, and
shall be subject to the exclusive jursdiction of the State or of the federal cours of
Monroe, Louisiana. In all cases, choice of law shall be determined without
regard to a local State's conflcts oflaw provisions.
3.4 Parties' Agreement to Comply with Applicable Law. Each Par shall remain in
compliance with Applicable Law in the course of performing this Agreement.
3.4.1 Neither Par shall be liable for any delay or failure in performance
resulting from any requirements of Applicable Law, or acts or failures to
act of any governental entity or offciaL.
3.4.2 Each Pary shall promptly notify the other Part in wrting of any
governental action that limits, suspends, cancels, withdraws, or
otherwise materially affects, the notifyng Part's ability to perform its
obligations under this Agreement..3.4.3 Each Part shall be responsible for obtaining and keeping in effect all
FCC, Commission, franchise authority and other regulatory approvals that
may be required in connection with the performance of its obligations
under this Agreement.
3.5 Severabilty. If any provision of this Agreement is held by a court or regulatory
agency of competent jursdiction to be unenforceable or invalid under Applicable
Law, such unenforceability or invalidity shall not render unenforceable or invalid
any other provision of this Agreement, and this Agreement shall be constred as
if it did not contain such unenforceable or invalid provision; provided, that if the
unenforceable or invalid provision is a material provision of this Agreement, or
the unenforceabilty or invalidity materially affects the rights or obligations of a
Par hereunder or the abilty of a Pary to perform any material provision of this
Agreement, the Paries shall promptly renegotiate in good faith and amend in
writing this Agreement in order to make such mutually acceptable revisions to
this Agreement as may be required in order to conform the Agreement to
Applicable Law. If such amended terms canot be agreed upon within a
reasonable period, either Par may, upon written notice to the other Par,
terminate this Agreement without penalty or liability for such termination.
II. OTHER GENERAL TERMS & CONDITIONS
4.0 AMENDMENTS.
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Any amendment, modification, deletion or supplement to this Agreement must be in
wrting and signed by an authorized representative of each Part. The term "Agreement"
shall include any such futue amendments, modifications, deletions and supplements.
If a change in Applicable Law requires CenturyLink, pursuant to Section 12.2, to offer a
new service under this Agreement, QuantuShift may submit a wrtten request to
CentuLink to amend this Agreement to add terms and conditions for the provision of
the new service using either of the followig options:
4.1 Option 1: CentuLink wil provide QuatumShift with a form
"Attchment" that wil amend the Agreement. This Attachment wil
identify the specific terms and conditions of the Agreement affected by
the change in Applicable Law and wil set forth the specific terms and
conditions to be amended that are applicable to the new service.
CentuLink also shall submit the executed form Attachment to the
Commission for approval as required by 47 U.S.C. § 252(e).
QuantumShift may begin ordering the new service pursuant to the terms
of the Attachment as soon as it executes the amended Attachment.
4.2 Option 2: If QutuShift desires to negotiate an amendment to the
Agreement with terms and conditions for the new service that are
different than those contained in CentuLink's form Attchment,
QuantuShift must send CentuLink a request to negotiate. The Parties
agree to negotiate in good faith the terms and conditions for the new
service. Whether the Paries agree to acceptable terms and conditions
through negotiations or resolve such terms and conditions through
arbitration, the terms and conditions for the new service arrved at
through this Option 2 shall not become effective until they are approved
by the Commission pursuant to 47 U.S.C. § 252(e).
.
5.0 ASSIGNMENT
Any assignent, in whole or in part, by either Par of any right, obligation, duty or
interest arising under the Agreement without the wrtten consent of the other Part shall
be null and void, except that either Par may assign, to the extent consistent with
Applicable Law, all of its rights, and delegate its obligations, liabilities and duties under
this Agreement, either in whole or in part, to any entity that is, or that was immediately
preceding such assignent, a subsidiary or Affliate of that Par without consent, upon
ninety (90) calendar days' wrtten notification. The effectiveness of an assignment shall
be conditioned upon the assignee's wrtten assumption of the rights, obligations, and
duties of the assigning Par, and the other Part being reasonably satisfied that the
assignee is able to fulfill the assignor's obligations hereunder. Any attempt to make an
assignment or delegation in violation of this section shall constitute a default of this
Agreement.
6.0 ASSURCE OF PAYMENT .
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Upon request by CentuLink, QuantumShift shall provide to CentuLink a deposit for
or an adequate assurance of payment of amounts due (or to become due) to CentuLin
hereunder. QuantumShift's failure to provide such deposit or assurce of payment to
CentuLink within thirt (30) calendar days of CentuLin's request for same shall
constitute a default under this Agreement.
6.1 When a Deposit! Assurance of Payment Is Required. Such deposit or assurance of
payment of charges may be requested by CentuLink if QuantuShift (a) in
CentuLink's reasonable judgment, at the Effective Date or at any time
thereafter, does not have established credit with CentuLink, (b) in
CentuLink's reasonable judgment, at the Effective Date or at any time
thereafter, is unable to demonstrate that it is creditworthy, (c) fails to timely pay a
bil rendered to QuantumShift by CenturyLink, or (d) admits its inability to pay
its debts as such debts become due, has commenced a voluntary case (or has had
a case commenced against it) under the U.S. Bankptcy Code or any other law
relating to banptcy, insolvency, reorganization, winding-up, composition or
adjustment of debts or the like, has made an assignent for the benefit of
creditors or is subject to a receivership or similar proceeding.
6.2 Calculating the Amount of Deposit! Assurance of Payment. Unless otherwse
agreed by the Parties, such deposit wil be calculated based on the greater of (1)
CenturyLink's estimated two-month charges to QuantuShift (including, but not
limited to, both recurng and non-recuring charges) using QuantumShift's
forecast of resale lines and any other facilities or services to be ordered from
CentuLink, or (2) $5,000. If QuantuShift does not provide a forecast of its
facility or service demand under this Agreement, QuantumShift shall provide,
upon CentuLink's request, a deposit or assurance of payment of charges in an
amount of $5000.
.
6.3 Modifying the Amount of Deposit! Assurance of Payment. CentuLink reserves
the right, in its sole discretion, to modify the amount of the deposit or assurance
of payment required of QuantuShift if QuantuShift is repeatedly delinquent in
making its payments, or QuantumShift is being reconnected after a disconnection
of service or discontinuance of the processing of orders by CentuLink due to
QuantumShift's previous non-payment, or when conditions otherwise justify
such action based on actul biling history and/or the credit rating of
QuantumShift. "Repeatedly delinquent" means any payment received thirt (30)
calendar days or more after the bil due date, three (3) or more times durng a
twelve (12) month period. CentuLink also may require an additional amount of
deposit or assurance of payment at any time after the submission of the original
deposit or assurance of payment if QuantumShift's average monthly biling
exceeds the estimated two-months billng based on QuantuShift's forecasts
referenced in Section 6.2 above or .if QuantuShift has failed to make timely
payments in accordance with Section 9.2..
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6.4 Form of Deposit/Assurnce of Payment. Unless otherwise agreed by the Parties,
the deposit or assurance of payment shall, at CentuLin's option, consist of (a)
a cash securty deposit in U.S. dollars held by CentuLink, or (b) an
unconditional, irevocable stadby letter of credit naming CentuLink as the
beneficiary thereof and otherwise in form and substance satisfactory to
CentuLink from a financial institution acceptable to CentuLink.
6.5 Intentionally left blan.
6.6 Interest on Cash Deposit. CentuLink shall pay interest on any such cash
deposit in accordance with state requirements for End User deposits if such exist
6.7 Drawing on Deposit/Assurance of Payment. CentuLink may (but is not
obligated to) draw on the letter of credit or cash deposit, as applicable, upon
notice to QuantuShift in respect of any amounts to be paid by QuantumShift
hereunder that are not paid within thirt (30) calendar days of the date that
payment of such amounts is required by this Agreement.
6.8
6.9
7.0 AUDITS
7.1
QuantuShift's Replenishment of Deposit/Assurance of Payment. If
CentuLink draws on the letter of credit or cash deposit, upon request by
CentuLink, QuantumShift shall provide a replacement or supplemental letter of
credit or cash deposit conforming to the requirements of Section 6.2.
Effect on Other Obligations. Notwthstading anyting else set fort in this
Agreement, if CentuLink makes a request for a deposit or assurance of
payment in accordance with the terms of this Section 6, then CentuLink shall
have no obligation thereafter to perform under this Agreement until such time as
QuantuShift has provided CenturyLink with such deposit or assurance of
payment. The fact that a deposit or a letter of credit is requested by CenturyLink
hereunder shall in no way relieve QuantumShift from compliance with the
requirements of this Agreement (including, but not limited to, any applicable
Tarffs) as to advance payments and timely payment for facilities or services, nor
constitute a waiver or modification of the terms herein pertaining to the
discontinuace of services for nonpayment of any amounts, payment of which is
required by this Agreement.
Biling Audits. Except as may be otherwise specifically provided in this
Agreement, either Party ("Auditing Par") may audit the other Part's ("Audited
Part") books, records, documents, facilities and systems for the purose of
evaluating the accuracy of the Audited Par's bils and invoicing. Such audits
may be performed once in each Contract Year; provided, however, that audits
may be conducted more frequently (but no more frequently than once in each
contract quarter) if the immediately preceding audit found previously uncorrected
net inaccuracies in biling in favor of the Auditing Par having an aggregate
.
.
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value of at least $50,000. For puroses of this Section 7.1, "Contract Year"
means a twelve (12) month period durng the term of the Agreement
commencing on the Effective Date and each aniversar thereof.
7.1.1 Scope of Audit. The scope of the audit shall be limited to the services
provided and/or purchased by the Parties and the associated charges,
books, records, data and other documents relating thereto for the period
which is the shorter of (i) the period subsequent to the last day of the
period covered by the audit which was last performed (or if no audit has
been performed, the Effective Date) and (ii) the twelve (12) month period
immediately preceding the date the Audited Par received notice of such
requested audit.
.
7.1.2 Auditors and Commencement of Audit. The audit shall be performed by
independent certified public accountants selected and paid by the
Auditing Part. The accountants shall be reasonable competent in
telecommunications and be reasonably acceptable to the Audited Part.
Prior to commencing the audit, the accountants shall execute an
agreement with the Audited Part in a form reasonably acceptable to the
Audited Par that protects the confidentiality of the information
disclosed by the Audited Part to the accountants. The audit shall take
place at a time and place agreed upon by the Parties; provided, that the
Auditing Par may require that the audit commence no later than sixty
(60) calendar days after the Auditing Part has given notice of the audit to
the Audited Par; except that the Audited Par has the right to extend
the 60 days for specific resource availabilty conflict reasons such as the
financial Year End close of books, information or billng system
conversions in progress or schedules to sta during the audit or proper
commitment of resources to other audits or rate cases. In such a case, the
Audited Par must provide wrtten certfication of the conflct and the
expected resource availability date. The audit shall be completed within
fort-five (45) calendar days after its commencement.
7.1.3 Cooperation of the Parties. Each Par shall cooperate fully in any such
audit, providing reasonable access to any and all employees, books,
records, documents, facilties and systems, reasonably necessar to assess
the accuracy of the Audited Par's bils. Each audit shall be conducted
on the premises of the Audited Par where the Audited Par's records
reside, wil take place during normal business hours and shall comply the
Audited Part's normal securty procedures.
.
7.1.4 Audit Expenses. Audits shall be performed at the Auditing Par's
expense, unless the audit found biling errors or inaccuracies in favor of
the Auditing Part, in which case the Audited Par shall reimburse the
Auditing Part for its expense in performing said audit. There shall be no
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charge for reasonable access to the Audited Part's employees, books,
records, documents, facilties and systems necessary to assess the
accuracy of the Audited Par's bils.
7.1.5 Audit Summar. Neither Par shall have access to the data of the other
Par, but shall rely upon summar results provided by the auditor. The
Audited Par may redact from the books, records and other documents
provided to the auditor any confidential information of the Audited Par
that reveals the identity of other customers of the Audited Par. Each
Par shall maintain reports, records and data relevant to the biling of any
services that are the subject matter of this Agreement for a period of not
less than twenty-four (24) months after creation thereof, unless a longer
period is required by Applicable Law.
7.1.6 Adjustments. Adjustments to the Audited Par's charges shall be made
to correct errors or omissions disclosed by an audit. The performance of
adjustments shall be subject to examination. The Audited Part wil
provide a formal wrtten response to any findings in an audit within thirt
(30) calendar days of receipt of any such findings. The Auditing Par in
tu wil respond to the Audited Par's response within fort-five (45)
calendar days of receipt of the Audited Par's response.
7.1.7 Overcharges or Undercharges. If any audit confirms any overcharge, then .
the biling Part (or the Par that biled for services at more than the
appropriate charge) shall promptly correct any biling error, including
refuding any overpayment by the other Part in the form of a credit on
the invoice for the first full billng cycle after the Paries have agreed
upon the accurcy of the audit results. If any audit confirms any
undercharge, then the biled Part (or the Par that was provided services
at less than the appropriate charge) shall immediately compensate the
biling Part for such undercharge. In each case of overcharge or
undercharge, such rectifYing credits and/or payments wil be subject to
interest at the lesser of one and one-half (1 1!%) percent per month or the
highest rate of interest that may be charged under Applicable Law,
compounded daily, for the number of days from the date on which such
undercharge or overcharge originated until the date on which such credit
is issued or payment is made and available, as the case may be.
7.1.8 Disputes. Any disputes concerning audit results shall be referred to the
Parties' designated representative(s) who have authority to settle the
dispute. If these individuals cannot resolve the dispute within thirt (30)
calendar days of the referral, the matter shall be resolved in accordance
with the procedures set forth in Section 19 regarding dispute resolution.
8.0 AUTHORIZATION AND AUTHORITY .
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8.1
8.2
8.3
8.4
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Each person whose signatue appears on this Agreement represents and warants
that he or she has authority to bind the Par on whose behalf he or she has
executed this Agreement. Each Par represents he or she has had the
opportity to consult with legal counsel of his, her or its choosing, and
QuatumShift has not relied on CentuLin's counselor on representations by
CentuLink's personnel not specifically contained in this Agreement, in entering
into this Agreement.
CenturyLink represents and warrants that it is a corporation duly organized,
validly existing and in good standing under the laws of the State of Idaho and has
full power and authority to execute and deliver this Agreement and to perform its
obligations under this Agreement.
QuantumShift represents and warrts that it is a corporation duly organized,
validly existing and in good standing under the laws of the State of California
and has full power and authority to execute and deliver this Agreement and to
perform its obligations under this Agreement.
OuantumShift Certification. Notwithstanding any other provision of this
Agreement, CentuLink shall have no obHgation to perform under this
Agreement until such time as QuatuShift has obtained such FCC and
Commission authorization(s) as may be required by Applicable Law for
conducting business in the State as a QuantuShift. QuatumShift must
represent and warrant to CenturyLink that it is a certified local provider of
Telephone Exchange Service in the State. QuantumShift wil provide a copy of
its Certificate of Operating Authority or other evidence of its status to
CenturyLink upon request. QuantumShift shall not place any orders under this
Agreement until it has obtained such authorization. QuantuShift shall provide
proof of such authorization to CentuLink upon request.
9.0 BILLING & PAYMENTSIDISPUTED AMOUNTS
Except as provided elsewhere in this Agreement, QuantumShift and CentuLink agree to
exchange all information to accurately, reliably, and properly order and bil for featues,
fuctions and services provided under this Agreement.
9.1 Back Billng. The Parties wil bil each other in a timely manner. Neither Par
wil initiate credit claims or bil the other Part for previously unbiled, under-
biled or over-biled charges for services that were provided more than one (1)
year prior to the applicable bil date. Each Par wil provide prompt notice of
any intent to claim credits or bil for charges incured more thai one hundred
twenty(120).calendar days prior.
9.2.Payment. Except as otherwise provided in this Agreement, payment of amounts
biled for services provided under this Agreement, whether biled on a monthly
basis or as otherwise provided in this Agreement, shall be due,. in immediately
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available U.S. fuds, within thir (30) calendar days of the Bil Date ("Bil Due
Date"). Ifthe Bil Due Date is a Satuday, Sunday, or has been designated a ban
holiday, payment wil be made the next Business Day. Payments may be
transmitted by electronic fuds transfer. Late payment charges, if any, wil be
payable in accordance with the provisions of this Agreement.
9.3 Late Payment Charges. If any undisputed amount due on a biling statement is
Ilot received by the biling Part by the Bil Due Date, the biling Part shall
calculate and assess, and the biled Par agrees to pay, a late payment charge on
the past due balance equal to one and one-half (1 Yi%) percent per month or the
highest rate of interest that may be charged under Applicable Law, compounded
daily, for the number of days from the Bil Date until the date on which such
payment is made. Such late payment charges shall be included on the biling
Part's next statement to the biled Par.
9.4 Disputed Amounts. If any portion of an amount biled by a Par under this
Agreement is subject to a good faith dispute between the Parties, the biled Pary
shall give wrtten notice to the biling Part of the amounts it disputes ("Disputed
Amounts") and shall include in such notice the specific details and reasons for
disputing each item. Such wrttn notice shall be submitted in accordance with
the guidelines for submitting biling dispute claims set forth in CentuLink's
CLEC Service Guide. Disputed biling claims shall be submitted no later than
the Bil Due Date. Failure by the biled Par to file any such claim before the
Bil Due Date means that the total charges biled are due and payable to the
biling Part on the due date. The biled Par may not withold payment of
amounts past the due date pending a later fiing of a dispute, but must pay all
amounts due for which it has not provided a written notice of dispute on or prior
to the Bil Due Date. If the biled Par disputes charges after the Bil Due Date
and has not paid such charges, such charges shall be subject to late payment
charges. Both QuantuShift and CentuLin agree to expedite the investigation
of any Disputed Amounts, promptly provide all documentation regarding the
amount disputed that is reasonably requested by the other Par, and work in
good faith in an effort to resolve and settle the dispute though informal means
prior to initiating formal dispute resolution.
.
9.4.1 If the biled Party disputes any charges and any portion of the dispute is
resolved in favor of the biled Part, the Parties shall cooperate to ensure
that (a) the biling Par shall credit the invoice of the biled Part for that
portion of the Disputed Amount resolved in favor of the biled Part,
together with any late payment charges assessed with respect thereto no
later than the second Bil Due Date after the resolution of the biling
dispute.
9.5 Effect of Non-Payment. .
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9.5.1
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If the biled Par does not remit payment of all undisputed charges on a
bil by the Bil Due Date, the biling Par may discontinue processing
orders for relevant or like services provided under this Agreement on or
after the tenth (10th) calendar day following the Bil Due Date. The
biling Part wil notify the other Party in wrting, via email or certified
mail, at least five (5) Calendar Days prior to discontinuing the processing
of orders for the relevant services. If the biling Part does not refuse to
accept additional orders for service(s) on the date specified in such notice,
and the biled Part's non-compliance continues, nothing contained herein
shall preclude the biling Part from refusing to accept any or all
additional orders for service(s) from the non-complying Par without
fuher notice or from biling and collecting the appropriate charges from
the biled Par. For order processing to resume, the biled Par will be
required to make full payment of all past and curent undisputed charges
under this Agreement for the relevant services. Additionally, the billng
Par may require a deposit or assurance of payment (or additional
deposit or assurance of payment) from the biled Pary, pursuat to
Section 6. In addition to other remedies that may be available at law or
equity, the biled Par reserves the right to seek equitable relief,
including injunctive relief and specific performance.
9.5.2 Notwithstanding 9.5.1 above, if the biled Part does not remit payment
of all undisputed charges on a bil by the Bil Due Date, the biling Pary
may at its option disconnect any and all relevant or related services
provided under this Agreement following written notification to the biled
Par at least seven (7) Business Days prior to disconnection of the
unpaid service(s). Such notification may be included in a notification to
refuse to accept additional orders so long as the appropriate dates for each
consequence are listed therein. If the biled Par subsequently pays all of
such undisputed charges and desires to reconnect any such disconnected
services, the biled Part shall pay the applicable charge set forth in this
Agreement or in the applicable Tariff for reconnecting each service
disconnected pursuant to this paragraph. In case of such disconnection,
all applicable undisputed charges, including termination charges, shall
become due and payable. If the billng Part does not disconnect the
biled Part's service(s) on the date specified in such notice, and the biled
Part's non-compliance continues, nothing contained herein shall
preclude the biling Part from disconnecting all service(s) of the non-
complying Part without fuher notice or from biling and collecting the
appropriate charges from the biled Pary. For reconnection of the non-
paid service to occur, the biled Par will be required to make full
payment of all past and curent undisputed charges under this Agreement
for the relevant services. Additionally, the biling Part may require a
deposit or assurance of payment (or additional deposit or assurance of
payment) from the biled Par, pursuant to Section 6. In addition to other
.
.
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remedies that may be available at law or equity, the biling Part reserves
the right to seek equitable relief, including injunctive relief and specific
performance.
9.5.3 Notwithstanding 9.5.1 and 9.5.2 above, if the biling Part is forced to
underte collection efforts for undisputed, defaulted or post-termination
amounts outstading, the biled Part is liable for reimbursement to the
biling Par any and all costs associated with the collection of such a debt
including but not limited to collection agency fees and legal fees.
9.6 Universal Service Fund. In order to collect the costs of CentuLink's
contrbution to the Federal Universal Service Fund (FUSF) in an equitable
manner, CentuLin's End User Customers are being charged a Federal
Universal Service Charge (FUSC). The only customers who are exempt from
paying the FUSC to CentuLin are those reseller customers who themselves
contrbute to the FUSF, or who otherwise qualify for an exemption under the
FCC's universal service rules. In order to obtain an exemption from paying the
FUSC to CentuLink, QuantuShift must provide CentuLink a signed
statement certifying that it is resellng the services provided by CentuLink. in
the form of telecommunications, and wil, in fact, contrbute directly to the
FUSF. If QuatuShift does not provide this statement, or otherwise certify that
it is exempt from remttg the FUSC, CentuLin must report the revenues
obtained from the provision of service to QuantumShift as End User revenues for
FUSF contrbution puroses and wil assess a FUSC on QuantuShift..
9.6.1 "Federal Universal Service Charge (FUSC)" means an End-User charge
that allows local exchange carers to recover the costs of their universal service
contrbutions from their customers.
9.6.2 To comply with FCC rules regarding the fuding of Universal Service,
QuantuShift is required to complete the form entitled "CERTIFICATION OF
FEDERAL UNIVERSAL SERVICE FUND CONTRIUTION STATUS,"
provided by CentuLink in order to obtain an exemption from paying the FUSC
to CentuLink. In addition, QuantumShift agrees to provide CentuLink with
an updated annual certification, no later than February 1 of each calendar year, so
that CentuLink may ensure that it continues to accurately report its revenues for
FUSF contribution puroses.
9.6.3 It is expressly understood and agreed by the Parties that QuantuShift's
provision to CentuLink of evidence concerning its making adequate
payments into the FUSF, and QuantumShift's representations to
CentuLink in connection therewith, are subject to the indemnification
provisions of Section 30, which, for puroses of this Section, serve to
indemnify CenturyLink.
10.0 INTENTIONALLY LEFT BLANK .
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11.0
12.0
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INTENTIONALLY LEFT BLANK
CHANGES IN LAW
Except as provided in Section 12.3 below, the terms and conditions of this Agreement
shall be subject to any and all changes in Applicable Law, including but not limited to
changes to rules and regulations that subsequently may be prescribed by any federal,
state or local governental authority having competent jursdiction.
12.1 Removal of Existing Obligations. Notwithstading anything in this Agreement
to the contrar, if, as a result of any legislative, judicial, regulatory or other
governmental decision, order, determination or action, or any change in
Applicable Law subsequent to the Effective Date, CentuLink is no. longer
required by Applicable Law to continue to provide any service, facilty, payment
or benefit otherwise required to be provided to QuantumShift under this
Agreement, then CentuLink may discontinue the provision of any such service,
facility, payment or benefit. CentuLink wil provide sixty (60) calendar days
prior written notice to QuantumShift of any such discontinuation of a service or
facilty, unless a different notice period or different conditions are specified by
Applicable Law for termination of such service, facility, payment or benefit, in
which event such specified period and/or conditions shall apply. The Paries may
amend this Agreement pursuant to Section 4 to reflect such change in Applicable
Law. If QuantuShift disputes CenturyLink's discontinuance of such servìce,
facilty, payment or benefit, the dispute resolution procedures of Section 20 shall
apply, and any consequent changes to the terms of this Agreement (includìng
biling terms) as a result of such change in Applicable Law shall be. retroactive to
the discontinuation date set forth in CentuLink's written notice to
QuantuShift or the date specified by Applicable Law, whichever applies.
12.2 Additions to Existing Obligations. Notwithstanding anyting in this Agreement
to the contrar, if, as a result of any legislative, judicial, regulatory or other
governmental decision, order, determination or action, or any change in
Applicable Law subsequent to the Effective Date, CentuLin is required by
such change in Applicable Law to provide a service not already provided to
QuantumShift under the terms of this Agreement, the Paries agree to add or
modìfy, in wrting, the affected term(s) and condition(s) ofthis Agreement to the
extent necessary to bring them into compliance with such change in Applicable
Law. The Partes shall inìtiate negotiations to add or modify such terms upon the
written request of a Par. The Partes agree to negotiate such additional or
modified terms and conditions wìthin thirt (30) calendar days of receipt of the
requesting Par's wrtten request. If the Partes canot agree to additional or
modified terms to amend the Agreement, the Parties shall submit the dispute to
dispute resolution pursuant to the procedures set forth in Section 20.
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12.3 Notwithstanding Sections 12.1 and 12.2, to the extent that the Paries have agreed
to any terms and conditions set forth in this Agreement that do not reflect or fully
reflect the extent of the Parties' respective rights and/or obligations under
Applicable Law for good and valuable consideration through the process of good
faith negotiations, a subsequent change in Applicable Law may not be given
effect in this Agreement, though the amendment process or otherwise, without
the mutul consent of both Pares. Any terms reached by the Partes constituting
a Volunta Agreement to which this Section 12.3 applies shall be identified as
being an agreement made "pursuant to Section 12.3" or by languge of similar
import.
13.0 CLEC PRE-ORDERIG FORMS
13.1 QuantuShift shall not place any orders under this Agreement until it has
completed and submitted to CentuLink Pre-ordering Forms provided by
CentuLink and, if required by CentuLink paid a deposit for assurance of
payment pursuant to Section 9. QuantuShift wil provide to CentuLink its
Operating Company Number (OCN), Company Code (CC), and Customer
Carrer Name Abbreviation (CCNA).
13.2 Certificate of Operating Authority. QuantumShift must represent and warrant to
CentuLin that it is a certfied provider oflocal Telephone Exchange Service in ..
the State. QuantuShift wil provide a copy of its Certificate of Operating
Authority or other evidence of its status to CentuLink upon request.
14.0 CONFIDENTIAL INFORMTION
14.1 Identification. Either Part may disclose to the other proprietary or confidential
customer, technical, or business information in wrtten, graphic, oral or other
tangible or intagible forms ("Confidential Information"). In order for
information to be considered Confidential Information under this Agreement, it
must be marked "Confidential" or "Proprietary," or bear a markig of similar
import. Orally or visually disclosed information shall be deemed Confidential
Information only if contemporaneously identified as such and reduced to writing
and delivered to the other Part with a statement or marking of confidentiality
within thirt (30) calendar days after oral or visual disclosure.
Notwithstanding the foregoing, pre-orders, and all orders for services placed by
QuantuShift pursuant to this Agreement, and information that would constitute
Customer Proprietary Network Information (CPNI) of QuantumShift End User
Customers pursuant to the Act and the rules and regulations of the FCC, as well
as recorded usage information with respect to QùantuShift End User
Customers, whether disclosed by QuantumShift to CentuLink or otherwse
acquired hy CenturyLink in the course of its performance under this Agreement,
is considered Confidential Information..
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14.2 Handling. In order to protect such Confidential Information from improper
disclosure, each Party agrees:
(a) That all Confidential Information shall be and shall remain the
exclusive propert of the source;
(b) To limit access to such Confidential Information to authorized
employees who have a need to know the Confidential Information for
performance of this Agreement;
(c) To keep such Confidential Information confidential and to use the
same level of care to prevent disclosure or unauthorized use of any
Confidential Information it receives as it exercises in protecting its own
Confidential Information of a similar natue;
(d) Not to copy, publish, or disclose such Confidential Information to
others or authorize anyone else to copy, publish, or disclose such
Confidential Information to others without the prior written approval of
the source;
.(e) To promptly retu any copies of such Confidential Information to
the source at its request;
(f) To use such Confidential Information only for puroses of
performing work or services described hereunder and for other puroses
only upon such terms as may be agreed upon between the Partes in
wrting; and
(g) Subject to the exceptions in Section 14.3 below, if the Part
receiving Confidential Information wishes to disclose the disclosing
Part's Confidential Information to a third-pary, such disclosure must be
agreed to in wrting by the disclosing Part, and the third-part must have
executed a wrtten agreement of nondisclosure and nonuse comparable in
scope to the terms of this Section.
14.3 Exceptions. These obligations shall not apply to any Confidential Information
that was legally in the recipient's possession prior to receipt from the source, was
received in good faith from a third part not subject to a confidential obligation to
the source, now is or later becomes publicly known through no breach of
confidential obligation by the recipient, was developed by the recipient without
the developing persons having access to any of the Confidential Information
received in confidence from the source, or that is required to be disclosed
pursuant to subpoena or other legal process issued by a cour or administrative
agency having appropriate jursdiction; provided, however, that, subject to
Sections 28.3 and 28.3.1, the recipient shall give prior notice to the source before.
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disclosing Confidential Information and shall reasonably cooperate if the source
deems it necessar to seek protective arangements.
14.4 SurivaL
The obligation of confidentiality and use with respect to Confidential Information
disclosed by one Par to the other shall surive any termination of this
Agreement for a period of thee (3) year from the date of the initial disclosure of
the Confidential Information.
15.0 CONSENT
Except as otherwise expressly stated in this Agreement (including, but not limited to,
where consent, approval, agreement or a similar action is stated to be within a Part's
sole discretion), where consent, approval, mutual agreement or a similar action is
required by any provision of this Agreement, such action shall not be uneasonably
withheld, conditioned or delayed.
16.0 CONTACTS BETWEEN THE PARTIES
Each Part shall update its own contact information and escalation list and shall provide
such information to the other Par for puroses of inquiries regarding the
implementation of this Agreement. Each Par shall accept all inquiries from the other .
Part and provide a timely response. CentuLin wil provide and maintain its contact
and escalation list in its CentuLink Service Guide ("Guide") as amended and updated
from time to time. The Guide is provided to QuantuShift on CentuLink's Website,
and any updates also wil be provided on the Website in the event such information
changes. Information contained in the Guide wil include a single contact telephone
number for CentuLink's CLEC Service Center (via an 800#) that QuantumShift may
call for all ordering and status inquiries and other day-to-day inquiries between 8 a.m.
and 5 p.m., Monday through Friday (except holidays). In addition, the Guide will
provide QuantumShift with contact information for the personnel and/or organizations
within CentuLink capable of assisting QuantumShift with inquiries regarding the
ordering, provisioning and biling of resale services. Included in this information wil be
the contact information for a person or persons to whom QuantuShift can escalate
issues dealing with the implementation of the Agreement and/or for assistance in
resolving disputes arising under the Agreement.
17.0 CONTACTS WITH CUSTOMERS
Except as otherwise provided in this Agreement, QuantumShift shall provide the
exclusive intedace with QuantuShift's End User Customers in connection with the
marketing or offering of QuantuShift services. Except as otherwise provided in this
Agreement, in those instances where CentuLink personnel are required pursuant to this
Agreement to interface directly with QuantumShift's End User Customers for the
purose of installation, repair and/or maintenance of services, such personnel shall not .
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identify themselves as representing CentuLink. Nothing in this section shall require
CentuLink to repaint trucks or other equipment, or to remove, hide or cover logos or
other identifying marks from any vehicles, equipment, uniforms or other items used or
owned by CentuLink or CentuLin personnel to effect service calls.
18.0 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the . same
instrment.
19.0 DISCONTINUANCE OF SERVICE BY QuantumShift ("SNAP-BACK
PROVISION")
19.1 If QuantumShift proposes to discontinue, or actually discontinues, its provision
of service to all or substatially all of its customers, whether voluntarly, as a
result of banptcy, or for any other reason, QuantuShift shall send wrtten
notice of such discontinuation to CentuLink, the Commission, and each of
QuantuShift's customers. QuantumShift shall provide notice in advance of
discontinuation of its service as required by Applicable Law. Unless the period
for advance notice of discontinuation of service required by Applicable Law is
more than thirt (30) calendar days, to the extent commercially feasible,
QuantumShift shall send such notice at least thirt (30) calendar days prior to its
discontinuation of service. Should QuantumShift fail to provide notice pursuant
to this provision, CenturyLink shall have the right to send such notice and to
discuss service discontinuance and election of a replacement carrer with
QuantuShift's customers.
19.2 Such notice must advise each QuantumShift customer that, unless action is taken
by the QuantumShift customer to switch to a different carer prior to
QuantuShift's proposed discontinuation of service, the QuantuShift customer
wil be without the service provided by QuantuShift to the QuatuShift
customer.
19.3 Should a QuantuShift customer. subsequently become a CentuLink customer,
QuantuShift shall provide CentuLink with all information necessary for
CentuLink to establish service for the QuantumShift customer, including, but
not limited to, the CLEC customer's biled name, listed name, service address,
and biling address, and the services being provided to the QuantumShift
customer.
19.4 Nothing in this Section 19 shall limit CenturyLink's right to cancel or terminate
this Agreement under Section 2 or to suspend provision of services under Section
9 of this Agreement.
20.0 DISPUTE RESOLUTION
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1. The followig provisions apply to dispute resolution under the Agreement, except
that the terms of Section 9 shall also apply to the resolution of any biling
disputes.
2. Alternative to Litigation. Except as provided under §252 of the Act with respect
to the approval of this Agreement by the Commission, the Parties desire to resolve
disputes arsing out of or relating to this Agreement without litigation.
Accordingly, except for an action seekig a temporar restraining order, an
injunction related to the puroses of this Agreement, or suit to compel compliance
with this dispute resolution process, the Parties agree that the following resolution
procedures shall be used. The dispute resolution provisions of this Section shall
not preclude the Pares from seeking relief available in any other forum.
(a) A Part may not submit a dispute to any court, commission or agency
of competent jursdiction for resolution unless at least sixty (60) Days have
elapsed after the Part asserting the dispute has given wrtten notice of such
dispute to the other Part. Such notice must explain in reasonable detail the
specific circumstances and grounds for each disputed item. If a Part gives notice
of a biling dispute more than thirt (30) Days after the biling date and has not
paid the disputed amounts by the payment due date, then the notice of such
dispute shall be deemed to have been given thirt (30) Days after the biling date
for puroses of calculating the time period before such dispute may be submitted
to any cour, commission or agency of competent jursdiction for resolution.
(b )The Paries shall meet or confer as often as they reasonably deem necessar in
order to discuss the dispute and negotiate in good faith in an effort to resolve such
dispute. The specific format for such discussions wil be left to the discretion of
the Parties, provided, however, that all reasonable requests for relevant, non-
privileged, information made by one Party to the other Par shall be honored, and
provided that the following terms and conditions shall apply:
(c )If the Parties are unable to resolve the dispute in the normal course of business
within thirt (30) Days after delivery of notice of the Dispute (or such longer
period as may be specifically provided for in other provisions of this Agreement),
then upon the request of either Party, the dispute shall be escalated to other
representatives of each Part that have more authority over the subject matter of
the dispute. Referral of a dispute by a Par to its legal counsel shall be
considered an escalation for puroses of this paragraph.
(d) If the Parties are unable to resolve the dispute within sixty (60) Days after
delivery of the initial notice of the dispute, then either Part may fie a petition or
complaint with any court, commission or agency of competent jursdiction
seeking resolution of the dispute. The petition or complaint shall include a
statement that both Paries have agreed to request an expedited resolution within
sixty (60) Days from the date on which the petition or complaint was fied, or
within such shorter time as may be appropriate for any Service Affecting dispute.
.
.
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( e) Each Part shall bear its own costs in connection with any dispute resolution
procedures, unless otherwise ordered by a cour, commission or agency of
competent jursdiction.
(£) Durng dispute resolution proceedings conducted by any cour, commission or
agency of competent jursdiction each Par shall continue to perform its
obligations under this Agreement provided, however, that neither Part shall be
required to act in any unlawful fashion.
(g) A dispute which has been resolved by a wrtten settlement agreement between
the Parties or puruant to a determination by any cour, commission or agency of
competent jursdiction may not be resubmitted under the dispute resolution
process.
21.0 ENTIRE AGREEMENT
.This Agreement constitutes the entire agreement of the Paries pertining to the subject
matter of this Agreement and supersedes all prior agreements, negotiations, proposals,
and representations, whether wrtten or oral, and all contemporaneous oral agreements,
negotiations, proposals, and representations concerning such subject matter. No
representations, understandings, agreements, or waranties, expressed or implied, have
been made or relied upon in the making of this Agreement other than those specifically
set forth herein.
22.0 EXPENSES
22.1 In performing under this Agreement, CentuLink may be required to make
expenditures or otherwise incur costs that are not otherwise reimbursed under this
Agreement. In such event, CentuLink is entitled to reimbursement from
QuatuShift for all such costs. For all such costs and expenses, CentuLink
shall receive through nonrecurng charges ("NRCs") the actual costs and
expenses incured, including labor costs and expenses, overhead and fixed
charges, and may include a reasonable contrbution to CentuLink's common
costs. If QuantuShift makes a request that involves expenditues or costs not
otherwise covered under this agreement, CentuLink wil provide a quote to
QuantumShift in a timely manner and QuantumShift must agree to accept the
quoted charges prior to CentuLink's initiation of work.
22.2 Except as specifically set out in this Agreement, each Par shall be solely
responsible for its own expenses involved in all activities related to the subject of
this Agreement..23.0 FORCE MAJEURE
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23.1 In the event performance of this Agreement, or any obligation hereunder, is either
directly or indirectly prevented, restrcted, or interfered with by reason of fire,
flood, earthquake or like acts of God, wars, terrorism, revolution, civil
commotion, explosion, acts of public enemy, embargo, acts of the government in
its sovereign capacity, labor difficulties, including without limitation, strkes,
slowdowns, picketing, or boycotts, unavailabilty of equipment from vendor,
changes requested by customer, or any other material change of circumstances
beyond the reasonable control and without the fault or negligence of the Part
affected ("Force Majeure Events"), the Part affected, upon giving prompt notice
to the other Par, shall be excused from such performance on a day-to-day basis
to the extent of such prevention, restrction, or interference (and the other Par
shall likewise be excused from performance of its obligations on a day-to-day
basis until the delay, restrction or interference has ceased); provided however,
that the Par so affected shall use commercially reasonable efforts to avoid or
remove such causes of nonperformance or Force Majeure Events, and both
Paries shall proceed whenever such causes or Force Majeure Events are removed
or cease.
23.2 It is expressly agreed that insolvency or fmancial distress of a Pary is not a Force
Majeure Event and is not otherwise subject to this Section 23. Notwithstanding
the provisions of Section 23.1 above, in no case shall a Force Majeure Event
excuse either Par from an obligation to pay money as required by this .
Agreement.
24.3 Nothing in this Agreement shall require the non-performing Part to settle any
labor dispute except as the non-performing Part, in its sole discretion,
determines appropriate.
24.0 FRAUD
QuantuShift assumes responsibility for all fraud associated with its End User
Customers and accounts. CentuLink wil cooperate in good faith but shall bear no
responsibility for, nor is it required to investigate or make adjustments to,
QuatumShift's account in cases of fraud.
25.0 GOOD FAITH PERFORMANCE
25.1 The Partes shall act in good faith in the performance of their obligations under
this Agreement.
25.2 Performance Issues. In the spirit of good faith and upon request by either Part,
the Paries agree to meet once a month durng the Term of this Agreement, at
mutually. agreed upon day and time, to discuss the performance of the Paries
under this Agreement. The requesting Pary should provide a proposed agenda in
advance of the meeting. At each such monthly session the Paries may discuss: (i)
the Paries' provisioning of the services and ancilary fuctions provided under .
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this Agreement; (ii) and any areas in which such performance may be improved;
(iii) any problems that were encountered durng the preceding month or
anticipated in the upcoming month; (iv) the reason underlyig any such problem
and the effect, if any, that such problem had, has or may have on the performance
of the Parties; and (v) the specific steps taken or proposed to be taen to remedy
such problem. In addition to the foregoing, the Parties may meet to discuss any
matters that relate to the performance of this Agreement, as may be requested
from time to time by either of the Parties.
26.0 HEADINGS
The headings in this Agreement are inserted for convenience and identification only and
shall not be considered in the interpretation of this Agreement.
27.0 INTELLECTUAL PROPERTY
27.1 QuantuShift acknowledges that its right under this Agreement may be subject to
or limited by Intellectual Propert rights (including, without limitation, patent,
copyrght, trade secret, trademark, service mark, trade name and trade dress
rights) and other rights of third paries..27.2 QuantuShift acknowledges that services and facilities to be provided by
CentuLink hereunder may use or incorporate products, services or information
proprietary to third part vendors and may be subject to or limited by Intellectual
Propert rights (including, without limitation, patent, copyrght, trade secret,
trademark, service mark, trade name and trade dress rights) and other rights of
third parties.
.
27.3 Upon wrtten request by QuantuShift, CentuLink wil use commercially
reasonable effort to procure rights or licenses to allow CentuLin to use
Intellectual Propert and other rights of third parties to provide services and
facilities to QuantuShift ("Additional Rights and Licenses"). QuantumShift
shall promptly reimburse CentuLink for all costs incured by CentuLin
and/or CenturyLink's Affliates in connection with the procurement of Additional
Rights and Licenses, including without limitation all softare license fees and/or
maintenance fees, or any increase thereof, incured by CentuLin or any
CentuLink Affliate. CentuLink shall have the right to obtain reasonable
assurances of such prompt reimbursement by QuantuShift prior to the execution
by CentuLin or any CentuLink Affiiate of any new agreement or extension
of any existing agreement relating to any Additional Rights and Licenses. In the
event QuantuShift fails to promptly reimburse CentuLink for any such cost,
then, in addition to other remedies available to CentuLin under this
Agreement, CenturyLink shall have no obligation to provide to QuantuShift
product, service or facility to which such Additional Rights and Licenses relate.
In the event any service to which the Additional Rights and Licenses relate is
provided to any careres) other than CenturyLink, CentuLink's Affiliates and
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QuantuShift, CentuLin shall reasonably apportion among QuantuShift and
such non-CentuLink carers, on a prospective basis only, the costs incured by
CentuLink and/or its Affliates in connection with the procurement and
continuation of such Additional Rights and Licenses; provided, however, that
such apportionment shall not apply to any previously incured costs and shall
apply only for the period of such provision to such carreres).
27.5 Both Paries agree to promptly inform the other of any pending or threatened
Intellectul Propert Claims of third paries that may arse in the performance of
this Agreement.
27.6 For the purposes ofthis Agreement, any Intellectual Property originating from or
developed by such Par shall remain in the exclusive ownership of that Part.
Notwithstanding the exclusive ownership of Intellectual Propert originated by a
Part, the Part that owns such Intellectual Propert wil not assess a separate fee
or charge to the other Part for the use of such Intellectul Propert to the extent
used in the provision of a product or service, available to either Pary under this
Agreement, that utilizes such Intellectual Propert to function properly.
27.7 Except as expressly stated in this Agreement, this Agreement shall not be
constred as granting a license with respect to any patent, copyrght, trade name,
trademark, service mark, trade secret or any other Intellectual Property, now or .
hereafter owned, controlled or licensable by either Par. Except as expressly
provided in this Agreement, neither Par may use any patent, copyrightable
materials, trademark, trade name, trade secret or other Intellectual Propert, of
the other Part except in accordance with the terms of a separate license
agreement between the Paries granting such rights.
27.8 Except as provided in Section 27.3 and/or Section 30.1, neither Par shall have
any obligation to defend, indemnify or hold harmless, or acquire any license or
right for the benefit of, or owe any other obligation or have any liability to,the
other Par or its Affliates or customers based on or arsing from any third par
claim alleging or asserting that the provision or use of any service, facilty,
arrangement, or softare by either Part, or the performance of any service or
method, either alone or in conjunction with the other Par, constitutes direct,
vicarous or contrbutory infrngement or inducement to infrnge, or misuse or
misappropriation of any patent, copyrght, trademark, trade secret, or any other
proprietar or intellectual property right of any Part or third person. Each Par,
however, shall offer to the other reasonable cooperation and assistance in the
defense of any such claim.
27.9 NOTWITHSTANDING AN OTHER PROVISION OF THIS AGREEMENT,
THE PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT
THERE DOES NOT EXIST, AN WARRNTY, EXPRESS OR IMPLIED,
THAT THE USE BY EACH PARTY OF THE OTHER'S SERVICES .
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PROVIED UNER THIS AGREEMENT SHALL NOT GIVE RISE TO A
CLAIM OF INFRIGEMENT, MISUSE, OR MISAPPROPRI nON OF ANY
INTELLECTUAL PROPERTY RIGHT.
28.0 LAW ENFORCEMENT
28.1 Except to the extent not available in connection with CentuLink's operation of
its own business, CentuLink shall provide seven days a week/twenty-four hours
a day assistace to law enforcement persons for emergency traps, assistance
involving emergency traces and emergency information retreval on customer
invoked CLASS services.
28.2 Except where prohibited by a subpoena, civil investigative demand, or other legal
process as set forth in Section 28.3.1, CentuLink agrees to work jointly with
QuantumShift in securty matters to support law enforcement agency
requirements for traps, traces, cour orders, etc. QuantumShift shall be
responsible for and shall be biled for any charges associated with providing such
services for QuantumShift's End User Customers.
.28.3 Where CentuLink receives a subpoena from law enforcement, and its database
search shows that the telephone number in question is not a CentuLink account,
CenturyLink shall send such information back to law enforcement, along with the
name of the company to which such account is connected, if available, for fuher
processing by law enforcement.
28.3.1 If a Part receives a subpoena, civil investigative demand, or other legal
process (hereinafter, "subpoena") issued by a cour or governental agency
having appropriate jursdiction, and such subpoena expressly prohibits the Par
receiving the subpoena ("receiving Pary") from disclosing the receipt of the
subpoena or the delivery of a response to the subpoena, such receiving Part shall
not be required to notify the other Part that it has received and/or responded to
such subpoena, even if the subpoena seeks or the receiving Par's response
thereto discloses Confidential Information of the other Part or its customers.
Under such circumstances, the receiving Par's disclosure to the other Par of
its receipt of or delivery of a response to such a subpoena shall be governed by
the requirements of the subpoena and/or the cour, governental agency or law
enforcement agency having appropriate jursdiction.
29.0 LETTER OF AUTHORIZATION (LOA)
To the extent the Parties have not previously done so, QuantuShift and CentuLink
shall each execute a blanket letter of authorization (LOA) with respect to customer
requests to change service providers or to permit either Part to viewCPNI prior to a
request to change service providers. Under the blanket LOA, a Party authorized by the
customer to view or use its CPNI need not provide proof of End User Customer
. authorization to the other Par before viewing or using the CPNI.
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29.1.1 Each Par's access to CPNI of another carer's customer wil be limited to
instances where the requesting Par has obtained appropriate authorization to
change service providers or release of CPNI from the customer.
29.1.2 The requesting Par must maintain records of all customer authorizations to
change service providers or release of CPNI in compliance with State and federal
law.
29.1.3 The requesting Par is solely responsible for determining whether proper
authorization has been obtained and holds the other Part harless from any loss
or liability on account of the requesting Part's failure to obtain proper CPNI
authorization from a customer.
29.1.4 When a blanket LOA has been executed and where such blanket LOA contains
the appropriate authorization to change service providers or release CPNI as
documented in the CentuLink Service Guide or otherwise approved in advance
by CentuLink, CentuLink wil not require QuantuShift to submit an
individual LOA prior to changing service providers or releasing CPNI, providing
Customer Service Records (CSRs), or processing orders. However, it shall be
considered a material breach of this Agreement if QuantuShift submits an order
to change service providers or release CPNI where QuantuShift has not yet
obtained appropriate authorization to change service providers or release CPNI .
from the customer. Until a blanet LOA has been executed, a Par wishing to
view or end user CPNI of the other Par must provide wrtten proof of End User
Customer authorization to the other Par before viewing or using the CPNI.
30.0 LIABILITY AND INDEMNIFICATION
30.1 Indemnification Against Third-Par Claims. Each Pary (the "Indemnifying
Par") agrees to indemnify, defend, and hold harmless the other Par (the
"Indemnified Part") and the other Part's Subsidiaries, predecessors, successors,
Affliates, and assigns, and all curent and former offcers, directors, members,
shareholders, agents, contractors and employees of all such persons and entities
(collectively, with Indemnified Part, the "Indemnitee Group"), from any and all
Claims. "Claim" means any action, cause of action, suit, proceeding, claim, or
demand of any third part (and all resulting judgments, bona fide settlements,
penalties, damages, losses, liabilities, costs, and expenses (including, but not
limited to, reasonable costs and attorneys' fees)), (a) based on allegations that, if
tre, would establish (i) the Indemnifying Par's breach of this Agreement; (ii)
the Indemnifyng Part's misrepresentation, fraud or other misconduct; (iii) the
Indemnifyng Part's negligence; (iv) infringement by the Indemnifying Part or
by any Indemnifying Par product or service of any patent, copyright,
trademark, service mark, trade name, right of publicity or privacy, trade secret, or
any other proprietary right of any third par; (v) the Indemnifying Part's
liability in relation to any material that is defamatory or wrongfully discloses .
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.
private or personal matters; or (vi) the Indemnifyng Par's wrongful use or
unauthorized disclosure of data; or (b) that arses out of (i) any act or omission of
the Indemnifyng Part or its subcontractors or agents relating to the
Indemnifyg Part's performance or obligations under this Agreement; (ii) any
act or omission of the Indemnifying Pary'scustomer(s) or End User(s); (iii) the
bodily injur or death of any person, or the loss or disappearance of or damage to
the tagible propert of any person, relating to the Indemnifying Part's
pedormance or obligations under this Agreement; (iv) the Indemnifyng Par's
design, testing, manufactug, marketing, promotion, advertisement,
distrbution, lease or sale of services and/or products to its customers, or such
customers' use, possession, or operation of those services and/or products; or (v)
personal injur to or any unemployment compensation claim by one or more of
the Indemnifying Par's employees, notwithstanding any protections the
Indemnifyng Pary might otherwise have under applicable workers'
compensation or unemployment insurance law, which protections the
Indemnifyng Par waives, as to the Indemnified Par and other persons and
entities to be indemnified under this Section 30.1 (other than applicable
employee claimant(s)), for puroses of this Section 30.1. "Reasonable costs and
attorneys' fees," as used in this Section 30.1, includes without limitation fees and
costs incured to interpret or enforce this Section 30.1. The Indemnified Par
wil provide the Indemnifyng Pary with reasonably prompt wrtten notice of any
Claim. At the Indemnifyng Part's expense, the Indemnified Par wil provide
reasonable cooperation to the Indemnifying Part in connection with the defense
or settlement of any Claim. The Indemnified Part may, at its expense, employ
separate counsel to monitor and paricipate in the defense of any Claim.
Notwithstanding anyting to the contrar in this Section 30.1, a Part may not
seek indemnification with respect to any Claim by that Part's customer(s) or
End User(s), but rather shall be the Indemnifyng Part with respect to all Claims
by its customer(s) and End User(s).
.
The Indemnifyng Part agrees to release, indemnify, defend, and hold harmless
the Indemnitee Group and any third-part provider or operator of facilties
involved in the provision of products,. services or facilties under this Agreement
from all losses, claims, demands, damages, expenses, suits, or other actions, or
any liability whatsoever, including, but not limited to, costs and attorneys' fees,
suffered, made, instituted, or asserted by the Indemnifying Part's End User
Customer(s) arising from or relating to any products, services or facilties
provided by or through the Indemnified Pary or such third-part provider or
operator. The Indemnifyng Party fuer agrees to release, indemnify, defend,
and hold harmless the Indemnitee Group from all losses, claims, demands,
damages, expenses, suits, or other actions, or any liabilty whatsoever, including,
but not limited to, costs and attorneys' fees, suffered, made, instituted, or asserted
by any third part agaiiist an Indemnified Par arising from or in any way
related to actul or alleged defamation, libel, slander, intederence with or
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misappropriation of proprieta or creative right, or any other injur to any
person or propert arising out of content transmitted by the Indemnifyng Part's
End User Customer(s).
30.2 Disclaimer of Warranties. EXCEPT FOR THOSE WARRTIES
EXPRESSLY PROVIDED IN THIS AGREEMENT OR REQUIRD BY
STATUTE, EACH PARTY ON BEHALF OF ITSELF AND ITS AFFILIATES
AND SUPPLIERS DISCLAIMS ALL WARRNTIES AND DUTIES,
WHETHER EXPRESS OR IMPLIED, AS TO THE SERVICES, PRODUCTS
AND ANY OTHER INFORMATION OR MATERILS EXCHANGED BY
THE PARTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRNTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, REASONABLE CARE,
WORKANLIKE EFFORT, RESULTS, LACK OF NEGLIGENCE, OR
ACCURCY OR COMPLETENESS OF RESPONSES. EXCEPT FOR THOSE
WARRNTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR
REQUIRED BY STATUTE, THERE IS NO WARRNTY OF TITLE, QUIET
ENJOYMENT, QUIET POSSESSION, CORRSPONDENCE TO
DESCRITION, AUTHORIY, OR NON-INFRIGEMENT WITH RESPECT
TO THE SERVICES, PRODUCTS, AN ANY OTHER INFORMTION OR
MATERILS EXCHANGED BY THE PARTIES UNDER THIS
AGREEMENT..
30.3 Limitation of Liability; Disclaimer of Consequential Damages; Exceptions.
30.3.1 Except as provided in Section 30.3.3, each Party's liability to the other,
whether in contracti tort or otherwise, shall be limited to direct damages,
which shall not exceed the monthly charges, plus any related
costs/expenses the other Par may recover, including those under Section
22.1 above, and plus any costs/expenses for which the Paries specify
reimbursement in this Agreement for the services or facilities for which
the claim of liability arose. Except as provided in Section 30.3.3, each
Part's liability to the other durng any Contract Year resulting from any
and all causes wil not exceed the total of any amounts charged to
QuantumShift by CentuLink under this Agreement durg the Contract
Year in which such cause accrues or arses. For puroses of this Section
30.3.1, the first Contract Year commences on the first day this Agreement
becomes effective, and each subsequent Contract Year commences on the
day following the aniversary of that date.
30.3.2 EXCEPT AS PROVIDED IN SECTION 30.3.3, NEITHER PARTY
WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRCT,
INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL
DAMAGES SUFFERED'BY SUCH OTHER PARTY (INCLUDING
WITHOUT LIMITATION DAMGES FOR HARM TO BUSINESS,.
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LOST REVENUES, LOST SAVINGS, OR LOST PROFITS SUFFERED
BY SUCH OTHER PARTY), REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, WARNTY, STRICT
LIABILITY, OR TORT, INCLUDING WITHOUT LIMITATION,
NEGLIGENCE OF ANY KI WHETHER ACTIVE OR PASSIVE,
AND REGARDLESS OF WHETHER THE PARTIES KNEW OF THE
POSSIBILITY THAT SUCH DAMAGES COULD RESULT.
Should either Par provide advice, make recommendations, or supply
other analysis related to the services or facilities described in this
Agreement, this limitation of liability shall apply to the provision of such
advice, recommendations, and analysis.
30.3.3 Section 30.3.1 and Section 30.3.2 do not apply to the following:
Indemnification under Section 30.1;
Breach of any obligation of confidentiality referenced in
this Agreement;
Violation of securty procedures;
Any breach by QuantumShift of any provision relating to
QuantuShift's access to or use of Operations Support
Systems;
30.3.3.5 Failure to properly safegurd, or any misuse of, customer
data;
Statutory damages;
Liabilty for intentional or wilful misconduct;
Liability arising under any applicable CentuLin Tariff;
Liability arising under any indemnification provision
contained in this Agreement or any separate agreement or
tariff related to provisioning of911Æ911 services;
Each Pary's obligations under Section 27 of this Aricle
III;
Section 30.4.2 and/or Section 30.4.3 of this Aricle III;
Section 45 of this Aricle III, and/or
Liability arsing under any indemnification provision
contained in a separate agreement or tariff related to
provisioning of Directory Listing or Directory Assistance
Services.
30.3.3.1
30.3.3.2
30.3.3.3
30.3.3.4.
30.3.3.6
30.3.3.7
30.3.3.8
30.3.3.9
30.3.3.10
30.3.3.11
30.3.3.12
30.3.3.12
30.4 Liability of CentuLink.
In addition to the general limitation ofliability in this Section 32, the following
shall also limit CentuLin's liabilty under this Agreement..30.4.1 Inapplicability of Tarff Liabilty. CentuLin's general liability, as
described in its local exchange or other Tariffs, does not extend to
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QuantuShift, QuantuShift's End User Customer(s), suppliers, agents,
employees, or any other third paries. Liabilty of CentuLink to
QuantuShift resulting from any and all causes arising out of services,
facilties or any other items relating to this Agreement shall be governed
by the liabilty provisions contained in this Agreement and no other
liabilty whatsoever shall attch to CentuLink. CentuLink shall not
be liable for any loss, claims, liability or damages asserted by
QuantuShift, QuantuShift's End User Customer(s), suppliers, agents,
employees, or any other third parties where QuantuShift combines or
commingles such components with those components provided by
CentuLink to QuantuShift.
30.4.2 OuantuShift Tariffs or Contracts. QuantumShift shall, in its Tarffs or
other contracts for services provided 'to its End User Customers using
products, services or facilities obtained from CenturyLink, provide that in
no case shall CentuLink be liable for any indirect, incidental, reliance,
special, consequential or punitive damages, including, but not limited to,
economic loss or lost business or profits, whether foreseeable or not, and
regardless of notification by QuantumShift, QuantumShift's End User
Customer(s), suppliers, agents, employees, or any other third paries of
the possibilty of such damages, and QuantumShift shall indemnify,
defend and hold harmless CentuLink and CentuLink's Indemnitee
Group from any and all claims, demands, causes of action and liabilities
by or to, and based on any reason whatsoever, QuantumShift,
QuantumShift's End User Customer(s), suppliers, agents, employees, or
any other third paries. Nothing in this Agreement shall be deemed to
create a third-par beneficiar relationship between CentuLink and any
of QuantumShift's End User Customers, suppliers, agents, employees, or
any other third parties.
.
30.4.3 No Liability for Errors. CentuLin is not liable' for mistakes in
CentuLink's signaling networks (including but not limited to signaling
links and Signaling Transfer Points (STPs) and call-related databases
(including but not limited to the Line Information Database (LIDB), Toll
Free Callng database, Local Number Portbility database, Advanced
Intellgent Network databases, Calling Name database (CNAM) ,
911Æ911 databases, and OS/DA databases). QuantumShift shall
indemnify, defend and hold harless CentuLink and CentuLink's
Indemnitee Group from any and all claims, demands, causes of action and
liabilities whatsoever, including costs, expenses and reasonable attorneys'
fees incured on account thereof, by or to QuantumShift's End User
Customer( s), suppliers, agents, employees, or' any other third paries
based on any reason whatsoever. For puroses of this Section 30.4.3,
mistakes shall not include matters arising exclusively out of the wilful
misconduct of CentuLink or its employees or agents..
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31.0 NETWORK MANAGEMENT
33.1 Cooperation. The Parties wil work cooperatively in a commercially reasonable
manner to install and maintain a reliable network. QuantuShift and
CentuLink wil exchange appropriate information (e.g., network information,
maintenance contact numbers, escalation procedures, and information required to
comply with requirements of law enforcement and national securty agencies) to
achieve this desired reliability. In addition, the Partes wil work cooperatively in
a commercially reasonable maner to apply sound network management
principles to alleviate or to prevent traffic congestion and to minimize fraud
associated with third number biled calls, calling card calls, and other services
related to this Agreement.
31.2 Responsibility for . Following Standards. QuantuShift recognizes its
responsibilty to follow the standards that may be agreed to between the Parties
and to employ characteristics and methods of operation that wil not interfere with
or impair the service, network or facilities of CentuLink or any third parties
connected with or involved directly in the network or facilties of CentuLink.
.31.3 Interference or Impairment. The characteristics and methods of operation of any
circuits, facilities or equipment of QuantumShift connected to CentuLink's
network shall not interfere with or impair service over any circuits, facilties or
equipment of CentuLink, its affliated companies, or its connecting and
concurg carrers involved in its services, cause damage to its plant, violate any
applicable law or regulation regarding the invasion of privacy of any
communications carred over CentuLink's facilities or create hazards to the
employees of CentuLink or to the public (with the foregoing hereinafter being
collectively referred to as an "Impairment of Service").
If QuantumShift causes an Impairment in Service, CentuLin shall promptly
notify QuantumShift of the nature and location of the problem and that, unless
promptly rectified, a temporar discontinuance of the use of any circuit, facilty
or equipment may be required. The Parties agree to work together to attempt to
promptly resolve the Impairment of Service. If QuantuShift is unable to
promptly remedy the Impairment of Service, then CentuLink may, at its option,
temporarly discontinue the use of the affected circuit, facility or equipment until
the Impairment of Service is remedied.
31.4 Outage Repair Standad. In the event of an outage or trouble in any service being
provided by CentuLink hereunder, QuantumShift wil follow CentuLink's
standard procedures for isolating and clearing the outage or trouble.
32.0 NON-EXCLUSIVE 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 other remedies that may be
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available under this Agreement or at law or in equity.
33.0 INTENTIONALLY LEFT BLANK
34.0 NOTICES
34.1 Except as otherwise expressly provided in this Agreement, any notice given by
one Party to the other Part under this Agreement shall be in wrting and shall be
deemed to have been received as follows: (a) on the date of service if served
personally; (b) on the date three (3) Business Days after mailing if delivered by
First Class U.S. mail, postage prepaid; and (c) on the date stated on the receipt if
delivered by certified U.S. mail, registered U.S. mail, overnight courer .or
express delivery service with next Business Day delivery. Any notice shall be
delivered using one of the alternatives identified above and shall be directed to
the applicable street or post office box address indicated in Section 34.2 below or
such address as the Part to be notified has designated by giving notice in
compliance with this Section. Although E-mail wil not be used to provide
notice, the Partes shall provide their E-mail addresses below to facilitate
informal communications.
34.2 Notices conveyed pursuat to Section 34.1 above shall be delivered to the
following addresses of the Pares:
To Quantum Shift:
Attention: (Karen A Weller)
(12657 Alcosta Blvd)
(Suite 418)
San Ramon CA 94583
Telephone Number: 925-415-2126
Facsimile Number:925-415-2176
Internet Address: (E-mail)kweller(gvcomsolutions.cm
.
with a copy to: Jenna Brown, Same address above
To CentuLink:
CentuLink
Director Wholesale Contracts
930 15th Street 6th Floor Denver, CO 80202
Email: intagreeWlcenturylink.com
Phone: [phone]
.
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With copy to CentuLink at the address shown below:
CentuLink Law Deparent
Associate General Counsel, Interconnection
1801 California Street, 9th Floor
Denver, CO 80202
Email: Legal.Interconnectioncmcentulink.com
Phone: [phone]
or to such other address as either Part shall designate by proper notice.
35.0 ORDERING
35.1 Ordering and Electronic Interface.
A web-based interface is curently being used for QuantumShift to order resale
services. Unless otherwse provided in the Aricles of this Agreement,
QuantuShift shall use CentuLink's web-based interface to submit orders and
requests for maintenance and repair of services, and to engage in other pre-
ordering, ordering, provisioning and dispute transactions. Unless otherwise
provided in the Aricles of this Agreement, no manual, facsimile or email
intedaces may be used to submit any non-access order unless first confirmed
with and agreed upon by CentuLink's CLEC Service Group personneL. If
CentuLink later deploys any enhanced electronic capability for QuantuShift
to pedorm a pre-ordering, ordering, provisioning, maintenance or repair
transaction for a service offered by CentuLink, CentuLin wil notify
QuantuShift of such availability and QuantuShift shall use such processes as
CentuLink has made available for performing such transaction(s) to the extent
practicable and the use of any other interface or process wil be discontinued.
35.2 The Paries agree that orders for services under this Agreement wil not be
submitted or accepted until the latter of (a) the completion of all account set up
activities including but not limited to the submission of the CLEC Profie
required by Section 13, the submission of applicable forecasts, the completion of
joint planning meetings, and the creation of biling codes for QuantumShift; or
(b) sixty (60) Calendar Days after the Effective Date of this Agreement; unless
the Parties mutully agree upon a different date based on the specific
circumstaces of the Paries' relationship.
35.3 INTENTIONALLY LEFT BLANK
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36.0 POINTS OF CONTACT FOR QuantumShift CUSTOMERS
36.1 QuantuShift shall be the primar point of contact for QuantumShift customers.
QuantuShift shall establish telephone numbers and mailing addresses at which
QuantuShift's End User Customers may communicate with QuantumShift and
shall advise QuantuShift End User Customers of these telephone numbers and
mailing addresses.
36.2 Except as otherwise agreed to by CentuLink, CentuLink shall have no
obligation, and may decline, to accept a communication from a QuantuShift
customer, including, but not limited to, a QuantumShift customer request for
repair or maintenance of a CentuLink service provided to QuantuShift.
37.0 PUBLICITY AND USE OF TRADEMARK
37.1 Nothing in this Agreement shall grant, suggest, or imply any authority for one
Part to use the name, trademarks, service marks, or trade names of the other for
any purose whatsoever. A Par, its Affliates, and their respective contractors
and agents, shall not use the other Part's trademarks, service marks, logos or
other proprieta trade dress, in connection with the sale of products or services,
or in any advertising, press releases, publicity matters or other promotional .
materials, unless the other Part has given its express wrtten consent for such
use, which consent the other Pary may grant or withhold in its sole discretion.
37.2 Any news release, public anouncement, advertising, or any form of publicity
pertaining to this Agreement, provision of services or facilities pursuant to it, or
association of the Parties with respect to provision of the services described in
this Agreement shall be subject to prior wrtten approval of both CentuLink
and QuantuShift.
37.3 Any violation of this Section 37 shall be considered a Default of this Agreement
under Section 2.6.
38.0 REFERENCES
38.1 All references to Aricles, Sections, Appendices and Tables and the like shall be
deemed to be references to Aricles, Sections, Appendices and Tables of this
Agreement unless the context shall otherwise require.
38.2 Except as otherwise specified, references within an Aricle of this Agreement to a
Section, Appendix or Table refer to a Section, Appendix or Table within or a part
of that same Aricle..
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38.3 Unless the context shall otherwise require, any reference in this Agreement to a
statute, regulation, rule, Tarff, technical publication, guide (including
CenturyLink or third-part guides, practices or handbooks), or publication of
telecommunications industr administrative or technical standards is deemed to
be. a reference to the most recent version or edition (including any amendments,
supplements, addenda or successor) of that statute, regulation, rule, Tarff,
technical publication, guide or publication of the telecommunications industr
administrative or technical standards that is in effect.
39.0 RELATIONSHIP OF THE PARTIES
39.1 The relationship of the Paries under this Agreement shall be that of independent
contractors and nothing herein shall be constred as creating any other
relationship between the Partes.
39.2 Nothing contained in this Agreement shall make either Part the employee ofthe
other, create a parership, joint ventue, or other similar relationship between the
Paries, or grant to either Part a license, franchise, distrbutorship or similar
interest.
.39.3 Except for provisions herein expressly authorizing a Part to act for another
Par, nothing in this Agreement shall constitute a Pary as a legal representative
or Agent of the other Part, nor shall a Par have the right or authority to
assume, create or incur any liability or any obligation of any kind, express or
implied, against, in the name or on behalf of the other Par unless otherwise
expressly permitted by such other Par in writing, which permission may be
granted or withheld by the other Part in its sole discretion.
39.4 Each Par shall have sole authority and responsibility to hire, fire, compensate,
supervise, and otherwise control its employees, Agents and contractors. Each
Par shall be solely responsible for payment of any Social Securty or other
taxes that it is required by Applicable Law to pay in conjunction with its
employees, Agents and contrctors, and for withholding and remitting to the
applicable taxing authorities any taxes that it is required by Applicable Law to
collect from its employees, including but not limited to Social Securty,
unemployment, workers' compensation, disability insurance, and federal and
state withholding.
39.5 Except as provided by Section 42, the persons provided by each Pary to perform
its obligations hereunder shall be solely that Par's employees and shall be
under the sole and exclusive direction and control of that Part. They shall not
be considered employees of the other Par for any purose.
.39.6 Except as otherwise expressly provided in this Agreement, no Party undertakes to
perform any obligation of the other Par, whether regulatory or contractual, or to
assume any responsibility for the management of the other Part's business.
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39.7 The relationship of the Parties under this Agreement is a non-exclusive
relationship.
39.8 Each Par shall indemnify the other for any loss, damage, liabilty, claim,
demand, or penalty that may be sustained by reason of its failure to comply with
this provision.
40.0 RESERVATION OF RIGHTS
Notwithstading anything to the contrar in this Agreement, neither Part waives, and
each Party hereby expressly reserves, its rights: (a) to appeal or otherwise seek the
reversal of and changes in any arbitration decision associated with this Agreement; (b) to
challenge the lawfulness of this Agreement and any provision of this Agreement; (c) to
seek changes in this Agreement (including, but not limited to, changes in rates, charges
and the services that must be offered) through changes in Applicable Law; and, (d) to
challenge the lawfulness and propriety of, and to seek to change, any Applicable Law,
including, but not limited to any rule, regulation, order or decision of the Commission,
the FCC, or a cour of applicable jursdiction. Nothing in this Agreement shall be
deemed to limit or prejudice any position a Par has taken or may take before the
Commission, the FCC, any other state or federal regulatory or legislative bodies, courts
of applicable jursdiction, or industr fora. The provisions of this Section shall surive
the expiration, cancellation or termination of this Agreement..41.0 STANDAR PRACTICES
41.1 The Paries acknowledge that CentuLin shall be adopting some industry
standard practices and/or establishing its own standad practices with regard to
various requirements hereunder applicable for the QuantuShift industr which
may be added or incorporated by reference in the Standard Practices.
QuantumShift agrees that CentuLink may implement such practices to satisfy
any CenturyLink obligations under this Agreement.
41.2 All changes to CenturyLink Standad Practices wil be posted on the CentuLink
Website prior to implementation. Posting wil include CentuLink personnel
who may be contacted by QuantuShift to provide clarification of the scope of
the change and timeline for implementation.
42.0 SUBCONTRACTORS
A Pary may use a contractor of the Part (including, but not limited to, an Affiliate of the
Part) to perform the Part's obligations under this Agreement; provided, that a Part's
use of a contractor shall not release the Part from any duty or liability to fulfill the
Part's obligations under this Agreement.
43.0 SUCCESSORS AND ASSIGNS - BINDING EFFECT .
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This Agreement shall be binding on and inure to the benefit of the Paries and their
respective legal successors and permitted assigns.
44.0 SURVIVAL
The rights, liabilities and obligations of a Pary for acts or omissions occurng prior to
the expiration, cancellation or termination of this Agreement, the rights, liabilties and
obligations of a Par under any provision of this Agreement regarding confidential
information (including but not limited to, Section 14, limitation or exclusion of liability,
indemnification or defense (including, but not limited to, Section 30), and the rights,
liabilties and obligations of a Part under any provision of this Agreement which by its
terms or natue is intended to continue beyond or to be performed after the expiration,
cancellation or termination of this Agreement, shall surive the expiration, cancellation
or termination of this Agreement.
45.0 TAXS
.
Any State or local excise, sales, or use taxes (defined in Section 45.1 but excluding any
taxes levied on income) and fees/regulatory surcharges (defined in Section 45.2) resulting
from the performance of this Agreement shall be borne by the Par upon which the
obligation for payment is imposed under Applicable Law, even if the obligation to collect
and remit same is placed upon the other Part. The collecting Part shall charge and
collect from the obligated Par, and the obligated Part agrees to pay to the collecting
Par, all applicable taxes, or fees/regulatory surcharges, except to the extent that the
obligated Par notifies the collecting Part and provides to the collecting Party
appropriate documentation as the collecting Par reasonably requires that qualifies the
obligated Party for a full or partial exemption. Any such taxes shall be shown as separate
items on applicable biling documents between the Parties. The obligated Part may
contest the same in good faith, at its own expense, and shall be entitled to the benefit of
any refud or recovery, provided that such Part shall not permit any lien to exist on any
asset of the other Par by reason of the contest. The collecting Par shall cooperate in
any such contest by the other Par. The other Part wil indemnify the collecting Par
from any sales or use taxes that may be subsequently levied on payments by the other
Par to the collecting Part.
Notwithstanding anyting to the contrar contained herein, QuantuShift is responsible
for fuishing tax exempt status information to CentuLink at the time of the execution
of the AgreementQuantumShift is also responsible for fuishing any updates or changes
in its tax exempt status to CentuLink durng the Initial Term of this Agreement and any
Follow-on Terms and/or extensions thereof. In addition, QuantuShift is responsible for
submitting and/or fiing tax exempt status information to the appropriate regulatory,
municipality, local governing, and/or legislative body. It is expressly understood and
agreed that QuantuShift's representations to CentuLink concerning the status of
QuatuShift's claimed tax exempt status, if any, and its impact on this Section 45 are.
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subject to the indemnification provisions of Section 30, which, for purposes of this
Section, serve to indemnfy CentuLink.
45.1 Tax. A tax is defined as a charge which is statutorily imposed by the
federal, State or local jursdiction and is either (a) imposed on the seller
with the seller having the right or responsibility to pass the charge(s) on
to the purchaser and the seller is responsible for remitting the charge(s) to
the federal, State or local jursdiction or (b) imposed on the purchaser
with the seller having an obligation to collect the chargee s) from the
purchaser and remit the charge(s) to the federal, State or local
jursdiction.
Taxes shall include but not be limited to: federal excise tax, State/local
sales and use tax, State/local utility user tax, State/local
telecommunication excise tax, State/local gross receipts tax, and local
school taxes. Taxes shall not include income, income-like, gross receipts
on the revenue of a CentuLin, or propert taxes. Taxes shall not
include payroll withholding taxes unless specifically required by statute or
ordinance.
45.2 Fees/Regulatory Surcharges. A fee/regulatory surcharge is defined as a
charge imposed by a regulatory authority, other agency, or resulting from
a contractul obligation, in which the seller is responsible or required to 4I
collect the fee/surcharge from the purchaser and the seller is responsible
for remitting the charge to the regulatory authority, other agency, or
contracting part. Fees/regulatory surcharges shall include but not be
limited to E-911/911, other NIl, franchise fees, and Commission
surcharges.
46.0 TBD PRICES
46.1 Certin provisions in this Agreement and its Appendices and/or Attchments may
simply refer to pricing principles or identify a rate as "to be determined" or
"TBD." If a provision references a specific rate element in an Appendix or
Attchment and there are no corresponding prices or rates in such Appendix or
Attchment, such price shall be considered "To Be Determined" (TBD). With
respect to all TBD prices, prior to QuantuShift ordering any such TBD item,
the Parties shall meet and confer to establish a price.
46.2 In the event the Paries are unable to agree upon a price for a TBD item, the
tariffed rate for the most analogous tariffed product or service shall be used as the
interim price. Either Par may then invoke the dispute resolution process set
forth in Aricle in to resolve disputes regarding TBD pricing or the interim price,
provided that such dispute resolution process is invoked no later than one (1) year
after the applicable interim price is established. Any interim price wil be subject
to a tre-up, not to exceed one (1) year, once a permanent price is established..
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TECHNOLOGY UPGRAES
Notwithstanding any other provision of this Agreement, CentuLink shall have the right
to deploy, upgrade, migrate and maintain its network at its discretion. Nothing in this
Agreement shall limit CentuLink's abilty to modify its network through the
incorporation of new equipment or softare or otherwise. QuantuShift shall be solely
responsible for the cost and activities associated with accommodating such changes in its
own network.
48.0 TERRTORY
49.0
50.0
48.1 This Agreement applies to the terrtory in which CentuLink operates as an
Incumbent Local Exchange Carrer ("ILEC") in the State of Idaho. CentuLink
shall be obligated to provide services under this Agreement only within this
terrtory.
48.2 Notwithstanding any other provision of this Agreement, CentuLink may
terminate this Agreement as to a specific operating terrtory or portion thereof
pursuant to Section 2.7 of this Aricle.
THIRD-PARTY BENEFICIARIES
Except as expressly set forth in this Agreement, this Agreement is for the sole benefit of
the Parties and their permitted assigns, and nothing herein shall create or be constred to
provide any third-persons (including, but not limited to, customers or contractors of a
Par) with any rights (including, but not limited to, any third-par beneficiary rights)
hereunder. Except as expressly set forth in this Agreement, a Party shall have no liability
under this Agreement to the customers of the other Part or to any other third person.
UNAUTHORIZED CHANGES
50.1 Procedures. If QuantumShift submits an order for resold services under this
Agreement in order to provide service to an End User Customer that at the time
the order is submitted is obtaining its local services from CentuLink or another
LEC using CentuLink resold services and the End User Customer notifies
CenturyLink that the End User Customer did not authorize QuantumShift to
provide local Telephone Exchange Services to the End User Customer,
QuantumShift must provide CentuLin with wrtten documentation of
authorization from that End User Customer within thirt (30) calendar days of
notification by CentuLink. If QuantumShift canot provide wrtten
documentation of authorization within such time frame, QuantuShift must,
within three (3) Business Days thereafter:
(a) direct CentuLink to change the End User Customer back to the LEC
providing service to the End User Customer before the change to QuantumShift
was made;
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(b) provide any End User Customer information and biling records
QuantumShift has obtained relating to the End User Customer to the LEC
previously serving the End User Customer; and
(c) notify the End User Customer and CentuLink that the change back to the
previous LEC has been made.
50.2 CentuLink wil bil QuantuShift fift dollars ($50.00) per affected line in lieu
of any additional charge in order to compensate CentuLink for switching the
End User Customer back to the original LEC.
51.0 USE OF SERVICE
Each Par shall make commercially reasonable efforts to ensure that its End User
Customers comply with the provisions of this Agreement (including, but not limited to
the provisions of applicable Tarffs) applicable to the use of services purchased by it
under this Agreement.
52.0 WAIVER
A failure or delay of either Part to enforce any of the provisions of this Agreement, or
any right or remedy available under this Agreement or at law or in equity, or to require
performance of any of the provisions of this Agreement, or to exercise any option which .
is provided under this Agreement, shall in no way be constred to be a waiver of such
provisions, rights, remedies or options, and the same shall continue in full force and
effect.
53.0 WITHDRAWAL OF SERVICES
Notwithstanding anything contained in this Agreement, except as otherwise required by
Applicable Law, CentuLink may terminate its offering and/or provision of any
partcular service offering covered by this Agreement upon at least sixty (60) ) calendar
days prior written notice to QuatuShift unless otherwise ordered or provided for by aregulatory, judicial or legislative action.
.
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ARTICLE IV: RESALE
1.0 TELECOMMUNICATIONS SERVICES PROVIDED FOR RESALE
1.1 This Aricle describes services that CentuLink wil make available to
QuantumShift for resale. All services or offerings of CenturyLink, which are to
be offered for resale pursuant to the Act, are subject to the terms and conditions
herein, the applicable general terms and conditions in Aricles II & ILL, and
Applicable Law. CentuLink shall make available to QuantuShift for resale
any Telecommunications Services that CentuLink curently offers, or may offer
hereafter, on a retail basis to subscribers that are not Telecommunications
Carrers, including such services as are made available by CentuLink to its
retail End User Customers via its applicable retail tariff (hereinafter, "resold
services").
1.2 Resold services are available where facilties curently exist and are capable of
providing such services without constrction of additional facilities or
enhancement of existing facilities. However, if QuatuShift requests that
facilities be constrcted or enhanced to provide resold services, CentuLink wil
constrct facilities to the extent necessar to satisfy its obligations to provide
basic Telephone Exchange Service as set forth in CentuLin's retail Tarffs,
catalogs, price lists, or other retail Telecommunications Services offerings and
Commission rules. Under such circumstances, CentuLink wil develop and
provide to QuantuShift a price quote for the constrction. Constrction charges
associated with resold services wil be applied in the same maner that
constrction charges apply to CentuLink retail End User Customers. If the
quote is accepted by QuantuShift, QuantumShift wil be biled the quoted price
and constrction wil commence after receipt of payment.
.
1.3 Except as specifically provided otherwise in this Agreement, pre-ordering,
ordering and provisioning of resold services shall be governed by the
CentuLink Service Guide.
1.4 CentuLink and its suppliers shall retain all of their rights, title and interest in all
facilities, equipment, softare, information, and wirng, used to provide
QuantumShift with resold services under this Agreement.
1.5 CentuLink shall have access at all reasonable times to QuantumShift customer
locations for the purpose of installng, inspecting, maintaining, repairing, and
removing, facilities, equipment, softare, and wiring, used to provide resold
services under this Agreement. QuantuShift shall, at QuantuShift's expense,
obtain any rights and/or authorizations necessary for such access..
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1.6 Except as otherwse agreed to in wrting by CentuLin, CentuLink shall not
be responsible for the installation, inspection, repair, maintenance, or removal, of
facilties, equipment, softare, or wiring provided by QuantumShift or
QuantuShift's End User Customers for use with any resold services.
2.0 GENERAL TERMS AN CONDITIONS FOR RESALE
2.1 Primar Local Exchange Carer Selection. Both Paries shall apply the principles
set forth in FCC Rules, 47 C.F.R. §§ 64.1 100, et seq., to process End User
selection of primary local exchange carrers. Neither Par shall require a wrtten
Letter of Authorization (LOA) in order to process the required service orders to
effectuate the migration, but instead shall follow the Blanet LOA procedures set
fort in Article III, Section 31.
2.2 Customer-Initiated Change in Provider. The Paries shall comply with all
applicable Commission rules regarding switching End User Customers from one
telecommunications provider to another, including those rules governing initiating
a challenge to a change in an End User Customer's local service provider.
2.2.1 When an End User Customer changes or withdraws authorization, each
Par shall release customer-specific facilities in accordance with the End
User Customer's direction or the direction of the End User Customer's
authorized agent..
2.3 End User Customers with An Unpaid Balance. If an End User Customer has an
unpaid balance with CentuLink, CentuLink wil not process a QuatuShift
service order for the End User Customer until the balance is paid, unless
otherwise required by Applicable Law..
2.4 OuantumShift as Customer of Record. QuantumShift wil be the customer of
record for all services purchased from CentuLink. Except as specified herein,
CenturyLink wil take orders from, bil and expect payment from QuantuShift
for all services ordered.
2.5 Biling. CentuLink shall not be responsible for the manner in which
QuantumShift bils its End User Customers. All applicable rates and charges for
services provided to QuantuShift or to QuantumShift's End User Customers
under this Aricle wil be biled directly to QuantuShift and shall be the
responsibilty of QuantumShift regardless of QuantumShift's ability to collect;
including but not limited to toll and third-part charges unless QuantuShift has
taken appropriate actions to restrct QuantuShift's End User Customers' ability
to incur such charges.
.
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.
.
2.6
2.7
Artcle IV: Resale
CentuLink QuantumShift
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Page 57
Local Callng DetaiL. Except for those services and in those areas where
measured rate local service is available to End User Customers, monthly biling to
QuantuShift does not include local callng detaiL.
Originating Line Number Screening (OLNS). Upon request and when
CentuLink is technically able to provide and bil the service, CentuLink wil
update the database to provide OLNS, which indicates to an operator the
acceptable biling methods for calls originating from the callng number (e.g.,
penal institutions, COCOTS).
2.8 Timing of Messages. With respect to CentuLink resold measured rate local
service(s), where applicable, chargeable time begins when a connection is
established between the callng station and the called station. Chargeable time
ends when the callng station "hangs up," thereby releasing the network
connection. If the called station "hangs up" but the callng station does not,
chargeable time ends when the network connection is released by automatic
timing equipment in the network.
3.0 PRICING
3.1 Calculation of the Resale Discount and the Resulting Resale Rate. The prices
charged to QuantuShift for local services shall be calculated as follows:
3.1.1 A discount as shown in Pricing shall apply to the monthly retail rate of all
Telecommunications Services made available for resale in this Aricle,
except those services excluded from resale or from receiving the resale
discount as set forth in this Article or Applicable Law. The terms
"wholesale discount" and "resale discount," as used in this Aricle, are
interchangeable.
3.1.2 The discount dollar amount calculated under Sectîon 3.1.1 above wil be
deducted from the monthly retail rate of the Telecommuncations Service.
3.1.3 The resulting rate is the monthly resale rate of the Telecommunications
Service.
3.2 Promotions. CentuLink shall make available for resale those promotional
offerings that are greater than ninety (90) days in duration, and any special
promotional rate wil be subject to the applicable resale discount. CentuLink
shall make available for resale those promotional offerings that are .less than
ninety (90) days in duration; however, any special promotional rate wil not be
subject to and may not be used with the applicable resale discount. For
promotional offerings that are less than ninety (90) days in duration,
QuantuShift may choose either the promotion or the discount at its discretion. In
all cases, in order to obtain a promotional offering, QuantuShift must qualify for
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CentuLink QutuShift
Resale/ldao
Page 58 .
the promotional offering under the stated terms of the offering and must request
the offering at the time of order placement. QuantuShift shall not be eligible for
any post-provisioning retroactive applicabilty of a promotional offering.
3.3 Resale of "As Is" Services. When a CentuLink End User changes service
providers to QuantuShift resold service of the same tye without any additions
or changes, the only applicable non-recurng charge shall be the LSR service
order charge.
3.4 Resale with Changes in Services. If a QuantuShift End User Customer adds
featues or services when the End User Customer changes its resold local service
from CentuLin or another CLEC to QuantumShift, CentuLink wil charge
CLEC the normal LSR service order charges and/or non-recurg charges
associated with said additions.
3.5 Nonrecurng Charges. The resale discount, as shown in the Resale Appendix of
this Article, does not apply to non-recurng charges (NCs), whether such NRCs
are contained in this Agreement or in CentuLink's applicable retail tariffs.
4.0 LIMITATIONS AND RESTRICTIONS ON RESALE
4.1 To the extent consistent with Applicable Law, QuantuShift may resell local
services to provide Teleèommunications Services to its End User Customers. In
addition to the limitations and restrctions set forth in this Section 4, CenturyLin
may impose other reasonable and non-discriminatory conditions or limitations on
the resale of its Telecommunications Services to the extent permitted by
Applicable Law.
.
4.2 Cross-Class Selling. QuantuShift shall not resell to one class of customers a
service that is offered by CentuLink only to a particular class of customers to
classes of customers that are not eligible to subscribe to such services from
CentuLink (e.g., R-1 to B-1, disabled services or lifeline services to non-
qualifyng customers).
4.3. Telephone Assistance Programs. QuantumShift shall not resell lifeline services,
services for the disabled or other telephone assistance programs. Where
QuantuShift desires to provide lifeline services, services for the disabled or
similar telephone assistace programs to its customer, CentuLink wil resell the
customer's line as a residential line (with applicable wholesale discount) and
QuantumShift shall be responsible for re-certifyng the line pursuant to
Applicable Law and for participating in the lifeline, disabled services or telephone
assistance discount pool without the assistance of CentuLink. In no event shall
CentuLink be responsible for recovering or assisting in the recovery of lifeline,
disabled services or telephone assistace. program discounts on behalf of
QuantuShift. QuantumShift is exclusively responsible for all aspects of any .
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CentuLink QuantuShift
Resale/Idaho
Page 59
similar QuantumShift-offered program, including ensurng that any similar
QuantumShift-offered program(s) complies with all applicable federal and State
requirements, obtaining all necessar End User certifications and re-certifications,
submitting written designation that any of QuantumShift's End User Customers or
applicants are eligible to paricipate in such programs, submitting QuantuShift's
claims for reimbursement to any applicable governental authority and any other
activities required by any applicable governental authority.
4.4 Promotional Offerings Lasting Less Than 90 Days. The resale discount does not
apply to CenturyLink's promotional offerings where (i) such promotions involve
rates that wil be in effect for no more than ninety (90) days, and (ii) CentuLin
does not make such promotions available as sequential ninety (90)-day
promotions. However, QuantuShift may resell CentuLink promotional
offerings that last less than ninety (90) days subject to the terms of Section 3.2
above.
4.5 Advanced Telecommunications Services Sold to ISPs. Advanced
telecommunications services ("Advanced Services") sold to Internet Service
Providers (ISPs) as an input component to the ISPs' retail Internet service offering
shall not be available for resale by QuantuShift under the terms of this
Agreement..4.6 Customer-Specific Pricing Agreements. QuantuShift may purchase
CentuLink customer-specific service offerings for resale to any customer who
would have been eligible to take such offering directly from CenturyLink.
However, the resale discount does not apply to such offerings. Where
QuantuShift and CentuLink are competing at retail for the same customer,
CentuLink wil calculate the retail price without uneasonable delay.
4.7 OS/DA. The resale discount shall not apply to Operator Services (OS) or
Directory Assistance (DA) services provided to QuantuShift's End Users by
CentuLink's OS and DA vendors.
4.8 Special Access Services. QuantuShift may purchase for resale special access
services; however, no resale discount applies.
4.9 COCOT Coin or Coinless Lines. QuantumShift may purchase for resale COCOT
coin or coinless line services; however, no resale discount applies.
4.10 Grandfathered Services. Services identified in CentuLink tariffs as
grandfathered in any manner are available for resale only to End User Customers
that already have such grandfathered service. An existing End User Customer
may not move a grandfathered service to a new service location. If an End User's
grandfathered service is terminated for any reason, such grdfathered service.
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may not be reinstalled. Grandfathered services are subject to a resale discount, as
provided in Section 3.1.
4.11 Universal Emergency Number Service. Universal Emergency Number Service is
not available for resale. Universal Emergency Number Service (E911/911
service) is provided with each local Telephone Exchange Service line resold by
QuantuShift whenever E911/911 service would be provided on the same line if
provided by CentuLin to a CentuLin retail End User Customer.
4.12 Services provided for QuantuShift's Own Use. Telecommunications Services
provided directly to QuantuShift for its own use or for the use of its subsidiares
and affliates and not resold to QuantuShift's End User Customers must be
identified by QuantumShift as such, and QuantumShift wil pay CentuLink's
retail prices for such services.
4.13 QuantuShift shall not use resold local Telecommunications Services to provide
access or interconnection services to itself, its subsidiaries and affiiates,
Interexchange Carrers (IXCs), wireless carrers, competitive access providers
(CAPs), or any other telecommunications providers; provided, however, that
QuantuShift may permit its subscribers to use resold local exchange telephoneservice to access IXCs, wireless carers, CAPs, or other retailtelecommunications providers. .
4.14 QuantuShift may resell services that are provided at a volume and/or term
discount in accordance with the terms and conditions of the applicable Tarff.
QuantuShift shall not permit the sharing of a service by multiple End User
Customer(s) or the aggregation of traffic from multiple End User Customers'
lines or locations onto a single service for any purpose, including but not limited
to the purose of qualifyng for a volume and/or term discount. Likewise,
QuantuShift shall not aggregate the resold services to individual End Users at
multiple addresses to achieve any volume discount where such may be available
pursuant to tariff or special promotion. Any volume and/or term discount shall be
applied first to the retail price, and the resale discount shall be applied thereafter.
5.0 Intentionally left blank
6.0 REQUIREMENTS FOR CERTAIN SPECIFIC SERVICES
6.1 E911/9ll Services. CenturyLink shall provide to QuatuShift, for
QuantumShift End User Customers, E911/911 call routing to the appropriate
Public Safety Answering Point ("PSAP"). CentuLin shall use its standad
service order process to update and maintain the QuantuShift customer service
information in the Automatic Location Identificationlatabase Management
System (ALI/DMS) used to support 911 services on the same schedule that it uses
for its own retail End User Customers. CentuLink shall provide QuantuShift .
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End User Customer information to the PSAP. QuatuShift shall update its End
User's 911 information though the LSR process. CentuLink assumes no
liability for the accuracy of information provided by QuantumShift, and
CentuLink shall not be responsible for any failure of QuatumShift to provide
accurate End User Customer information for listings in any databases in which
CentuLink is required to retain and/or maintain such information.
6.1.1 QuantuShift shall be responsible for collecting from its End User
Customers and remitting all applicable 911 fees and surcharges, on a per
line basis, to he appropriate Public Safety Answering Point (PSAP) or
other governental authority responsible for collection of such fees and
surcharges subject to applicable law.
6.2 Suspension of Service. QuantuShift may offer to resell End User Customer-
Initiated Suspension and Restoral Service to its End User Customers if and to the
extent offered by CentuLink to its retail End Users.
.
6.2.1 QuantuShift may also provide CentuLink-Initiated Suspension service
for its own puroses, where available. CentuLink shall make these
services available at the retail rate less the resale discount on the monthly
recurng charge only. No discount shall apply to non-recurng charges.
QuatuShift shall be responsible for placing valid orders for the
suspension and the subsequent disconnection or restoral of service to each
of its End Users.
6.2.2. Should QuantuShift suspend service for one of its End User Customers
and fail to submit a subsequent disconnection order within the maximum
number of calendar days permitted for a company-initiated suspension
pursuant to the State-specific retail tariff, QuantumShift shall be charged
and shall be responsible for all appropriate monthly services charges for
the End User's service from the suspension date through the disconnection
date pursuant to the State-specific retail tariffsubject to the Commission-
approved wholesale discount.
J
6.2.3 Should QuantumShift restore its End User, restoral charges wil apply, and
QuantumShift wil be biled for the appropriate service from the time of
suspension.
6.3 End User Retention of Telephone Number. When End User Customers switch
from CentuLink to QuantuShift, or to QuantumShift from any other reseller,
and if they do not change their physical service address to an address served by a
different Rate Center, such End User Customers shall be permitted to retain their
curent telephone numbers if they so desire and if such number retention is not
prohibited by Applicable Law or regulations for number admnistration and
Number Portbility (NP). Telephone numbers may not be retained if the physical.
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service address is changed concurent with the switch to a new provider nor may
telephone numbers be retained after a switch to a new provider if the physical
service address of the End User subsequently changes to one served by a different
Rate Center.
7.0 PRE-ORDERING AND ORDERING
7.1 CentuLink wil provide pre-ordering and ordering services for resale services to
QuantumShift consistent with the CentuLink Standard Practices.
7.2 LSR Process. LSRs shall be electronically sent by QuantuShift to CentuLink
via CentuLink's Website..
7.2.1 Multiple Working Telephone Numbers (WTN) may be included in one
order provided the numbers are for the same customer at a specific
location.
7.2.2 Upon work completion, CentuLink wil provide QuatuShift a Service
Order Completion (SOC) notice via e-mail to QuantumShift's designated
email address.
7.2.3 As soon as identified, CentuLin will provide QuantuShift any reject
error notifications e-mail to QuantuShift's designated email address..
7.2.4 CentuLink wil provide QuantumShift with a Jeopardy Notice when
CentuLink's Committed Due Date is in jeopardy of not being met by
CentuLink on any resale service via e-mail to QuantuShift's
designated email address. On that Jeopardy Notice, CentuLink shall
provide the revised Committed Due Date.
7.3 Telephone Number Assignents. Where QuatumShift resells service to a new
(not curently existing) end user, CentuLink shall allow QuantumShift to place
service orders and receive phone number assignents.
7.4 Maintenance. CentuLin wil provide repair and maintenance services to
QuantuShift and its End User Customers for resold services in accordance with
the terms set forth in Aricle VIII (Maintenance) of this Agreement, which are the
same standards and charges used for such services provided to CentuLink End
User Customers. CentuLink wil not initiate a maintenance call or take action
in response to a trouble report from a QuantumShift End User Customer until
such time as trouble is reported to CentuLin by QuantuShift. QuantumShift
must provide to CentuLink all End User Customer information necessary for
the installation, repair and servicing of any facilties used for resold services
according to the CentuLink Standard Practices..
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7.5
7.6
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Article IV: Resale
CentuLink QuntumShift
Resale/Idaho
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Line Loss Notification. CentuLink wil provide QuantuShift with an
electronic line loss notification when a QutumShift resale customer changes its
local carrer.
OuantumShift as Single Point of Contact. CentuLink wil recognize
QuantuShift as the single and sole point of contact for all QuatuShift End
User Customers. QuantuShift wil provide CentuLink with the names of
authorized individuals that can remit or inquire about its LSRs.
7.7 Misdirected Calls. CentuLin shall refer all questions received directly from
QuantumShift End Users back to QuantuShift for handling.
7.8 Communications with Other Party's Customers or Prospective Customers. The
Paries wil ensure that all representatives who receive inquiries regarding the
other Part's services shall not in any way disparage or discriminate against the
other Par or that other Part's products and services. The Parties shall not
solicit each others' End User Customers durng such inquiries.
7.10 Ordering and Provisioning Hours. CentuLink wil provide ordering and
provisioning coordination for resale services Monday through Friday, durng the
business hours specified in the CentuLink Stadad practices. QuantuShift
may request expedited provisioning or provisioning outside of the normal work
day. However, QuantumShift agrees to pay any additional costs and/or non-
recurng charges associated with expediting any resale service request as set forth
in the attached Resale Appendix.
7.11 As-Is Transfers. CenturyLink wil accept orders for As-Is Transfer (AIT) of
services from CentuLink to QuantuShift where CentuLink is the End User
Customer's curent local exchange carrer.
7.12 Transfers Between OuantumShift and another Reseller of CentuLink Services.
When QuantumShift has obtained an End User Customer from another reseller of
CenturyLink services, QuantumShift wil inform CentuLink of the transfer by
submitting standard LSR forms to CentuLink via the LSR process.
8.0 OTHER OPERATIONAL MATTERS
.
8.1 CentuLink wil provide provisioning intervals and procedures for design and
complex services on a nondiscriminatory basis. Complex service orders charges
pursuant to tariff terms may apply.
8.2 Where technically feasible, CentuLink's ordering center wil coordinate support
for all designed and/or complex resale services provided to QuantumShift.
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8.3 CentuLink wil provide the fuctionality of blocking calls (e.g., 900, 976,
international calls, and third-par or collect calls) by line or tr on an
individual switching element basis, to the extent that CentuLin provides such
blocking capabilities to its End User Customers and to other CLECs, but only to
the extent required by Applicable Law.
8.4 When orderig a resale service via an LSR service order, QuantuShift may
order separate interLATA and intraLATA service providers (i.e., two PICs) on a
line or tr basis, and QuantumShift agrees to pay the applicable service order
and pic charges associated with such order. CenturyLink wil accept pic change
orders for intraLA TA toll and long distance services through the service
provisioning process.
8.5 CentuLink's retail sales and marketing personnel wil not have access to
information regarding QuantuShift's requests for resold services or other
competitively sensitive information.
9.0 ORDER DUE DATE
9.1 Order Due Date. When QuantumShift submits an LSR, QuantuShift wil
specify a desired Due Date (DDD) and CentuLink wil specify a due date (DD)
based on the available dates within the applicable intervaL. Standard due date
intervals shall be as set forth in the CentuLink Service Guide..
9.2 Requests to Expedite. If expedited service is requested, QuantumShift wil
populate the "Expedite" and "Expedite Reason" fields on the LSR. CenturyLin
wil use commercially reasonable efforts to accommodate the request, however,
CentuLink reserves the right to refuse an expedite request if resources are not
available. If an expedite request is granted, applicable expedite service order
charges, as set forth in the Resale Appendix, wil apply.
9.3 Escalation Procedures and Dispute Resolution. QuantuShift wil follow the
documented escalation process for resolving questions and disputes relating to
ordering and provisioning procedures or to the processing of individual orders,
subject ultimately to the dispute resolution provisions set forth in Aricle III of
this Agreement. The CentuLink Standard Practices documents the escalation
process.
10.0 REPAIR AND MAINTENANCE REQUIREMENTS
CentuLink wil provide repair and maintenance services for all resale services in
accordance with the terms and conditions of this Article and Article ViII (Maintenance).
11.0 DESIGNED AND/OR COMPLEX NEW CIRCUIT TESTING .
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11.1 CentuLink wil perform testing (including trouble shooting to isolate any
problems) of resale services purchased by QuantuShift in order to identify any
new circuit failure performance problems. Each Par wil utilze CentuLink's
routine maintenance procedures for isolating and reporting troubles.
11.2 Where available, CentuLink wil perform pre-testing in support of complex
resale services ordered by QuantuShift.
12.0 ACCESS CHARGES
CentuLink retains all revenue due from other carrers for access to CentuLink's
facilities, including both switched and special access charges. CentuLin retains all
switched access revenues when providing switched access services for QuantumShift's
retail End User Customers served via resale. When QuantuShift resells special access
to its end user customers, CentuLink is not entitled to any special access revenues from
QuantuShift's End User Customers.
13.0 RESALE OF QuantumShift'S TELECOMMUNICATIONS SERVICES
.While this Article addresses the provision of certin CentuLink services to
QuantumShift for resale by QuantumShift, the Parties also acknowledge that
QuantuShift is required pursuant to 47 U.S.C. § 251(b) to provide its
Telecommunications Services to CentuLink for resale by CentuLink. Uponrequest
by CentuLin QuantuShift and CentuLink shall negotiate an amendment to
provide for resale of QuantumShift' s Telecommunications Services under terms and
conditions that are no less favorable than those offered by CentuLink to QuatuShift
under this Agreement.
.
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ARTICLE V: MAINTENANCE
1.0 GENERAL MAINTENANCE & REPAIR REQUIREMENTS
CentuLin will provide maintenance and repair services for all resold services provided
by CentuLin under this Agreement. Such maintenance and repair services provided
to QuatumShift shall be equal in quality to that which CentuLink provides to itself,
any subsidiary, Affliate or third par. To the extent CentuLink provides maintenance
and/or repair services to QuntumShifts End User Customers, such services shall be
equal in quality to that which CentuLin provides to its own End User Customers.
CentuLink agrees to respond to QuantuShift trouble reports on a non-discriminatory
basis consistent with the manner in which it provides service to its own retail End User
Customers or to any other similarly initiated Telecommunications Carer.
Notwithstanding anything else in this Agreement, CentuLink shall be required to
provide maintenance and/or repair to QuantumShift and/or QuantumShift's End User
Customers only to the extent required by Applicable Law.
2.0 MAINTENANCE & REPAIR PROCEDURES
2.1 CentuLink shall not respond to maintenance and/or repair calls directly from
QuantuShift's End User Customers. QuantuShift shall initiate any and all
maintenance and/or repair calls to CentuLink on behalf of QuantuShift's End
User Customers..
2.2 CentuLink wil provide a single point of contact (SPOC) for all of
QuantumShift's maintenance and repair requirements under this Aricle (via a 1-
800 nurber(s)) that wil be answered twenty-four (24) hours per day, seven (7)
days per week. This SPOC shall be set fort in the CentuLink Standard
Practices.
2.3 On a reciprocal basis, QuatuShift wil provide CentuLink with an SPOC for
all maintenance and repair requirements under this Aricle (via a 1-800
nurber(s)) that wil be answered twenty-four (24) hours per day, seven (7) days
per week.
2.4 QuantumShift agrees to follow the process and procedures for reporting and
resolving circuit trouble or repairs set forth in the CentuLink Standard Practices.
Before contacting CentuLink's Trouble Maintenance Center (CTMC),
QuantuShift must first conduct trouble isolation to ensure that the trouble does
not originate from QuantumShift's own equipment or network or the equipment
of Quantum Shift's customer.
2.5 If (a) QuantuShift reports to CentuLink a customer trouble, (b) QuantumShift
requests a dispatch, (c) CentuLin dispatches a technician, and (d) such trouble
was not caused by CenturyLink's facilities or equipment in whole or in par, then .
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QuantuShift shall pay CentuLin a charge set forth in CentuLink's local
tariff or Price List for time associated with said dispatch. In addition, this charge
also applies when the customer contact as designated by QuatumShift is not
available at the appointed time. QuantumShift accepts responsibilty for initial
trouble isolation and providing CentuLink with appropriate dispatch
information based on its test results. If, as the result of QuantuShift
instrctions, CenturyLink is erroneously requested to dispatch to a site on
CentuLink's company premises ("dispatch in"), a charge set forth in
CentuLink's local tariff or Price List wil be assessed per occurence to
QuantuShift by CentuLink. If as the result of QuantumShift's instrctions,
CentuLink is erroneously requested to dispatch to a site outside of
CentuLink's company premises ("dispatch out"), a charge set forth in
CentuLink's local taff or Price List wil be assessed per occurence to
QuantuShift by CentuLink.
2.5.1 Should no charges applicable to Section 2.5 above be documented in
CentuLink's local tarff or Price List, then CentuLink shall determine
Time and Materials charges.
2.6 For puroses of this Aricle, services, facilities and equipment provided to
QuantumShift through resold service wil be considered restored, or a trouble
resolved, when the quality of the resold service is equal to that provided before
the outage or the trouble occured..
3.0 ESCALATION PROCEDURES
3.1 CentuLink wil provide QuantumShift with wrtten escalation procedures for
maintenance and repaîr resolution to be followed if any individual trouble ticket
or tickets are not resolved in an appropriate fashion. The escalation procedures to
be provided hereunder shall include names and telephone numbers of
CentuLink management personnel who are responsible for maintenance and/or
repair issues. These escalation procedures and contact information are set forth in
the CentuLink Standard Practices.
3.2 On a reciprocal basis, QuantuShift wil provide CentuLink with contact and
escalation information for coordination of all maintenance and repair issues.
4.0 EMERGENCY RESTORATION
4.1 QuantuShift may contact CentuLink in order to discuss activities involving
the Central Offce and inter-office network that may impact QuantumShift End
User Customers.
.4.1.1 CentuLink wil establish an SPOC to provîde QuantuShift with
information relating to the status of restoration efforts and problem
resolution durng any restoration process.
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4.1.2 CentuLink shall establish method and procedures for reprovisioning of
all resold services after initial restoration. CentuLin agrees that
Telecommunications Service Priority ("TSP") services for QuantuShift
carr equal priority with CentuLin TSP services for restoration.
CentuLink wil follow the guidelines established under the National
Securty Emergency Procedures (NSEP) plan and wil follow TSP
guidelines for restoration of emergency services in as expeditious a
manner as possible on a non-discriminatory basis to respond to and
recover from emergencies or disasters.
5.0 MISDIRECTED REPAIR CALLS
5.1 For misdirected repair calls, the Parties wil provide their respective repair bureau
contact number(s) to each other on a reciprocal basis and provide the End User
Customer the correct contact number.
5.2 In responding to misdirected calls, neither Par shall make disparaging remarks
about each other, nor shall they use these calls as a basis for internal referrals or to
solicit End User Customers or to market services.
6.0 PREMISES VISIT PROCEDURS
6.1 CentuLink Maintenance of Service Charges, when applicable, wil be biled by
CentuLink to QuatuShift, and not to QuantumShift's End User Customers..
6.2 Dispatching of Centu Link's technicians to QuantuShifts End User
Customers' premises shall be accomplished by CentuLink pursuant to a request
received from QuantumShift.
6.3 Except as otherwise provided in this Agreement, in those instances in which
CentuLink personnel are required pursuant to this Agreement to interface
directly with QuantumShift's End User Customers for the purose of installation,
repair and/or maintenance of services, such personnel shall inform the customer,
if asked, that he or she is there acting on behalf of the customer's local service
provider. In these situtions, any wrtten "leave behind" materials that
CentuLink technicians provide to QuantuShift's customer wil be non-
branded materials that does not identify the work being performed as being
performed by CentuLink. CentuLin wil not rebrand its vehicles and
personneL.
6.4 If a trouble canot be cleared without access to QuantuShift's local service
customer's premises and the customer is not at home, the CentuLink technician
wil leave at the customer's premises a non-branded "no access" card requesting
the customer to call QuantumShift for rescheduling of the repair.
7.0 INTENTIONALLY LEFT BLANK .
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8.0 PRICING
8.1 Rates and charges for the relevant services provided under this Arcle are
included in Article VIII.
.
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ARTICLE VI: ACCESS TO OPERATIONS SUPPORT SYSTEMS ("OSS")
1.0 INTENTION OF THE PARTIES
1.1 It is the Parties' intent that this Arcle shall be read to support and clarify, without
superseding or replacing, the varous agreements between CentuLink and
QuantuShift with regard to access to, use of services provided by, or
information obtained puruat to the CentuLink Operations Support Systems
that are described within the varous aricles of the Resale Agreement and/or the
CentuLink Stadad Practices.
1.2 This Article sets forth terms and conditions for access to Operations Support
Systems (OSS) fuctions to support the resale services
provided under this Agreement so that QuantumShift can obtain pre-ordering,
ordering, provisioning, maintenance/repair, and billng information and services
from CentuLink.
2.0 DEFIITIONS
2.1 CentuLink Operations Support Systems: CenturyLink systems for pre-ordering,
ordering, provisioning, maintenance and repair, and biling.
2.2 CentuLink OSS Services: Access to CentuLink Operations Support Systems
fuctions. The term "CentuLink OSS Services" includes, but is not limited to:
(a) CenturyLink's provision of QuantuShift Usage Information to QuantumShiftpursuant to Sections 2.8 and 9.0 below; (b) CentuLink's provision of
QuantuShift Biling Information to QuatumShift pursuant to Sections 2.9 and
10.0 below; and (c) "CentuLink OSS Information," as defined in Section 2.4
below.
CentuLink OSS Facilities: Any gateways, interfaces, databases, facilities,
equipment, softare, or systems, including manual systems, used by CenturyLink
to provide CentuLink OSS Services or CentuLink Pre-OSS Services to
QuantumShift.
CentuLink OSS Information: The term "CentuLink OSS Information"
includes, but is not limited to: (a) any Customer Information related to a
QuantuShift customer accessed by, or disclosed or provided to, QuantumShift
through or as a par of CentuLink OSS Services or CentuLink Pre-OSS
Services; (b) any QuantuShift Usage Information (as defined in Section 2.8
below); and (c) any QuantuShift Biling Information (as defined in Section 2.9
below) accessed by, or disclosed or provided to, QuantumShift.
CentuLink Pre-OSS Services:. Any services that allow the performance of an
activity that is comparable to an activity to be performed through a CentuLink
OSS Service and that CenturyLink offers to provide to QuantuShift prior to, or
in lieu of, CentuLink's provision of the CenturyLink OSS Service to
QuantuShift. The term "CentuLink Pre-OSS Services" includes, but is not
.
2.3
2.4
2.5
.
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limited to, the activity of placing orders for CentuLink Retail
Telecommunications Services or Access Service Requests through a telephone
facsimile, electronic mail, or Web graphical user interface ("Web GUI")
communication.
2.6 CentuLink Retail Telecommunications Service: Any Telecommunications
Service that CentuLink provides at retail to subscribers that are not
Telecommunications Carrers. The term "CentuLink Retail
Telecommunications Service" does not include any Exchange Access service (as
defined in Section 3(16) of the Act, 47 U.S.c. § 153(16)) provided by
CentuLink.
2.7 Customer Information: Customer Proprietary Network Information ("CPNI") of a
customer as defined in Section 222 of the Act, 47 U.S.C. §222, and any other non-
public, individually identifiable information about a customer or the purchase by a
customer of the services or products of a Part.
2.8 QuantuShift Usage Information: The usage information for a CenturyLink
Retail Telecommunications Service purchased by QuantuShift under this
Agreement that CentuLink would record if CentuLink was furnishing such
CentuLink Retail Telecommunications Service to a CenturyLink retail End
User Customer.
QuantuShift Biling Information: The billng information for a CenturyLink
Telecommunications Service (as defined in Section 3(46) of the Act, 47 U.S.C. §
153(46)) purchased by QuantuShift under this Agreement that CentuLink
would provide if CenturyLink was fuishing such services or facilities to a
CentuLink customer.
2.9
3.0 SERVICE PARITY AND STANDARS
Notwithstanding anything in this Agreement to the contrary, CentuLink.shall meet any
service standard imposed by the FCC or by the Commission for any local services
provided by CentuLink to QuantuShift for resale or use in the provision of
Telecommunications Services.
4.0 FUTURE ENHACEMENTS TO CENTURYLINK OSS FACILITIES
If CentuLink makes enhancements to the existing CentuLink ass Facilities or
implements real-time automated electronic interfaces at some futue date, the Paries
agree that: (a) to the extent practicable, QuantumShift wil use such interfaces to obtain
CentuLink ass Services; and (b) CentuLink may at its option discontinue any
CentuLink ass Facilties that the enhanced facilities have been designed to replace.
5.0 NOTICES
Unless otherwise specifically provided elsewhere in this Agreement, notices required
under this Aricle shall be provided puruant to Aricle III, Section 34.
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6.0 CENTURYLINK OSS SERVICES
6.1 Upon request by QuatumShift, CentuLin shall provide to QuantuShift,
pursuant to Section 251(c)(3) of the Act, 47 U.S.c. § 251(c)(3), access to
CentuLink Pre-aSS Services, or at CentuLin's option, access to
CentuLink OSS Services. CentuLink shall not be required to provide
QuantumShift access to CentuLin ass Services if such are not available and
CentuLinkprovides QuantuShift access to applicable CentuLink Pre-OSS
Services.
6.2 Subject to the requirements of Applicable Law, CenturyLink Operations Support
Systems, CentuLink Operations Support Systems fuctions, CentuLink OSS
Faciliies, CentuLink OSS Information, and the CentuLin OSS Services that
wil be offered by CenturyLink shall be as determined by CentuLink. Subject
to the requirements of Applicable Law, CentuLink shall have the right to
change CentuLink Operations Support Systems, CentuLink Operations
Support Systems fuctions, CentuLink OSS Facilities, CentuLink OSS
Information, and the CentuLink OSS Services, from time-to-time, without the
consent of QuantuShift.
6.3 Except as specifically provided otherwise in this Agreement, service ordering,
provisioning, biling and maintenance processes and procedures shall be governed
by CentuLink Stadad Practices. The stadad service order charges set forth
pursuant to this agreement shall apply to al orders placed via OSS or pre-OSS .
services.
7.0 ACCESS TO AN USE OF CENTURYLINK OSS FACILITIES
7.1 CentuLink OSS Facilties may be accessed and used by QuantumShift only for
QuantumShift's access to and use of CentuLink Pre-OSS Services or
CentuLink OSS Services pursuant to and in accordace with this Agreement.
7.2 CentuLink ass Facilities may be accessed and used by QuantuShift only to
provide Telecommunications Services to QuatuShift End User Customers in
the State.
7.3 QuantuShift shall restrct access to and use of CenturyLink OSS Facilities to
QuantuShift. QuantuShift shall not have any right or license to grant
sublicenses to other persons, or permission to other persons (except
QuantumShift's employees, agents, and contractors, in accordace with Section
7.7 below), to access or use CentuLink OSS Facilities.
7.4 QuantuShift shall not (a) alter, modify or damage the CentuLink ass
Facilities (including, but not limited to, CentuLink softare); (b) copy, remove,
derive, reverse engineer, modify, or decompile, softare from the CentuLink
OSS Facilities; (c) use CentuLink OSS Facilities in any maner contrar to
applicable agreements with third-part vendors and/or third-part Intellectual
Propert rights; (d) allow any use of or access toCenturyLink OSS Facilities by
any unauthorized person; or (e) obtain access through CenturyLink OSS Facilities .
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7.5
7.6
.
8.0
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7.7
to CentuLink databases, facilties, equipment, softare, or systems, which are
not authorized for QuantumShifts use under this Section 7.0.
QuantuShift shall comply with all practices and procedures established by
CentuLink for access to and use of CentuLink OSS Facilties (including, but
not limited to, CentuLink practices and procedures with regard to security and
use of access and user identification codes).
All practices and procedures for access to and use of CentuLink ass Facilities,
and all access and user identification codes for CentuLink OSS Facilities: (a)
shall remain the propert of CentuLink; (b) shall be used by QuantumShift only
in connection with QuantuShift's use of CentuLink OSS Facilities permitted
by this Section 7.0; (c) shall be treated by QuantuShift as Confidential
Information of CentuLink pursuant to Section 14.0, Aricle ILL of the
Agreement; and, (d) shall be destroyed or retued by QuantumShift to
CentuLink upon the earlier of a request by CentuLink or the expiration or
termination of the Agreement.
QuantuShift's employees, agents and contractors may access and use
CentuLink OSS Facilities only to the extent necessar for QuantumShift's
access to and use of the CentuLink ass Facilties permitted by this Agreement.
Any access to or use of CentuLink OSS Facilties by QuantuShift's
employees, agents, or contractors, shall be subject to the provisions of the
Agreement, including, but not limited to, Section 14.0, Aricle in of the
Agreement and Section 8.2.3 of this Article. QuantuShift shall ensure that its
employees, agents, and contractors comply with all provisions herein relating to
access to and use of CentuLin OSS Facilties.
CentuLink wil provide QuatumShift with access to the CentuLink Pre-OSS
Services and CentuLink ass Facilities durng the same hours of operation that
apply to CentuLink's own retail operations durng which its employees have
access to similar functions for its provision of retail services ("Retail Operations
Hours"). CentuLink shall provide support during Retail Operations Hours
suffcient to provide QuantuShift with service at the same level provided to
CenturyLink's own retail operations.
7.8
CENTURYLINK OSS INFORMTION
8.1 Subject to the provisions of this Agreement and Applicable Law, QuantuShift
shall have a limited, revocable, non-transferable, non-exclusive right to use
CentuLink OSS Information durng the term of this Agreement, for
QuantuShift's internal use for the provision of Telecommunications Services to
QuantumShift End User Customers in the State.
8.2 All CentuLink OSS Information shall at all times remain the propert of
CentuLink. Except as expressly stated in this Arcle,. QuantuShift shall
acquire no rights in or to any CentuLink OSS Information. CentuLink
reserves all rights not expressly granted herein.
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8.2.1 QuatuShift shall treat CentuLink OSS Information as Confidential
Information of CentuLink pursuant to Section 14.0, Aricle III of the
Agreement.
8.2.2 QuantumShift shall not have any right or license to grant sublicenses to
other persons, or grant permission to other persons (except
QuantuShift's employees, agents or contractors, in accordance with
Section 8.2.3 below), to access, use or disclose CentuLink OSS
Information, except as provided in Section 8.2.3 below.
8.2.3 QuatumShift's employees, agents and contractors may access, use and
disclose CentuLin ass Information only to the extent necessar for
QuatuShift's access to, and use and disclosure of, CentuLink ass
Information permitted by this Aricle. Any access to, or use or disclosure
of, CentuLink OSS Information by QuantumShift's employees, agents
or contractors, shall be subject to the provisions of this Agreement,
including, but not limited to, Section 14.0, Aricle III of the Agreement
and Sections 8.2.1 and 8.2.2 above. QuantumShift shall ensure that its
employees, agents, and contractors comply with all provisions herein
relating to access to and use of CentuLin OSS Information.
8.2.4 QuantuShift's right to use CentuLink ass Information shall expire
upon the earliest of: (a) termination of such right in accordance with this
Aricle; or (b) expiration or termination of the Agreement. .
8.2.5 All CentuLink ass Information received by QuantumShift shall be
destroyed or retued by QuantuShift to CentuLink, upon expiration,
suspension or termination of the right to use such CentuLink OSS
Information.
8.3 Unless sooner terminated or suspended in accordance with the Agreement or this
Aricle (including, but not limited to, Aricle III, Sections 2.0 and 9.0 of the
Agreement and Section 11.1 below), QuantumShift's access to CentuLink ass
Information through CentuLink ass Services shall terminate upon the
expiration or termination of the Agreement.
8.3.1 CentuLink shall have the right (but not the obligation) to audit
QuantumShift to ascertin whether QuantumShift is complying with the
requirements of Applicable Law and this Agreement with regard to
QuantumShift's access to, and use and disclosure of, CentuLink OSS
Information.
8.3.2 Without in any way limiting any other rights CentuLink may have under
the Agreement or Applicable Law, CentuLink shall have the right (but
not the obligation) to monitor QuantumShift's access to and use of
CentuLink ass Information which is made available by CentuLink to
QuantuShift pursuant to this Agreement, to ascertin whether
QuantumShift is complying with the requirements of Applicable Law and
this Agreement, with regard to QuantumShift s access to, and use and .
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8.4
disclosure of, such CentuLink ass Information. The foregoing right
shall include, but not be limited to, the right (but not the obligation) to
electronically monitor QuantuShift s access to and use of CentuLink
OSS Information which is made available by CentuLin to
QuantuShift though CentuLink ass Facilties.
8.3.4 Information obtained by CentuLink pursuant to this Section 8.0 shall be
treated by CentuLink as Confidential Information of QuantuShift
pursuant to Section 14.0, Article III of the Agreement; provided that,
CentuLink shall have the right (but not the obligation) to use and
disclose information obtained by CentuLink puruant to this Artcle to
enforce CentuLink's rights under the Agreement or Applicable Law.
Customer Proprietary Network Information (CPNI)
8.4.1 QuantuShift will not access CentuLink's pre-order functions to view
CPNI of another carer's customer unless QuantuShift has obtained an
authorization for release of CPNI from the customer. QuntumShift wil
not be required to provide CentuLink with individual wrtten Letter(s) of
Authorization prior to accessing CPNI information but wil be required to
provide and operate under a Blanet Letter of Authorization that includes
appropriate certifications and restrictions as to the abilty to access and use
CPNI consistent with applicable law.
8.4.2 QuatuShift must maintain records of individual End User Customers'
authorizations for change in local Telephone Exchange Service and/or
release ofCPNI, which adhere to all requirements of State and federal law.
8.4.3 QuantuShift is solely responsible for determining whether proper
authorization has been obtained. QuatuShift shall indemnify, defend,
and hold CentuLink and other applicable indemnified persons harless
pursuant to Aricle III, Section 30 from any Claim arsing out of or
relating to QuantuShift's failure to obtain proper CPNI consent from a
customer.
.
.
8.4.4 QuantuShift understand that any ass access to obtain CPNI that is
made without prior customer permission to access the information or for
QuantuShift to become the customer's service provider shall be both a
violation of Applicable Law and a material breach of this agreement.
QuantumShift agrees to provide proof of customer permission retained
pursuant to Section 8.4.2 if a CentuLink audit pursuant to Section 8.3
shows evidence of possible violation of Section 8.4.1 and Applicable Law.
8.5 Data Validation Files.
8.5.1 Upon request, CentuLink wil provide QuantumShift with any of the
following Data Validation Files via, at CentuLink's option, CD-ROM,
downloadable, email, or other electronic format:
8.5.1.1 SAG (Street Address Guide)
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8.5.1.2 Featue/Service Availability by Switch
8.5 .1.3 Directory Names
8.5.1.4 Class of Service Codes
8.5.1.5 Community Names
8.5.1.6 Yellow Page Headings
8.5.1.7 PIC/LPIC (InterLATA/traLATA)
8.5.2 QuantumShift may obtain a Data Validation File not more than once per
quarer.
8.6 Subject to Arcle III, Section 27, CentuLink wil provide QuantuShift with
documentation that set forth the methods and procedures QuantuShift must use
in order to utilize the CentuLink Pre-OSS Services or CenturyLink OSS
Facilities, including the existing CentuLink Pre-OSS Systems, and all
enhancements, improvements and changes implemented by CentuLink.
QuantuShift agrees that all documentation and manuals shall be used only for
internal use, for the purose of training employees to utilize the capabilities of
CentuLink Pre-OSS Services of CenturyLink OSS Facilities in accordance with
this Arcle and shall be deemed "Confidential Information" and subject to the
terms, conditions and limitations set forth in Article III of this Agreement..
9.0 QuantumShift USAGE INFORMTION
9.1 QuantumShift Usage Information wil be available to QuantuShift though the
following:
9.1.1 Daily Usage File
9.1.2 QuantuShift Usage Information wil be provided in a Bellcore Exchange
Message Records (EM!) format.
9.2 Daily Usage Files provided pursuant to Section 9.1.1 above wil be issued each
day, Monday through Friday, except holidays observed by CentuLink.
9.3 Except as stated in Section 9.2, subject to the requirements of Applicable Law, the
manner in which, and the frequency with which, QuantuShift Usage
Information wil be provided to QuantumShift shall be determined by
CentuLink.
10.0 QuantumShift BILLING INFORMTION
10.1 QuantuShift Biling Information may be available to QuatuShift through the
following means:
10.1.1 Monthly Web Gil Online through MyAccount;.
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10.1.2 Monthly EDI 811 File for Resale Services though Email or Secure FTP;
or
Monthly Bil Data Tape for Access Services through Secure FTP or
Connect:Direct in OBF Standard BOS format.
10.2 To the extent that QuatuShift Biling Information is not available by one of the
means set forth in Section 10.1, CenturyLink may provide it in paper or other
format.
10.1.3
11.0 LIABILITIES AN REMEDIES
11.1 If QuantuShift or an employee, agent or contractor of QuantuShift at any time
breaches a provision of Sections 7.0 or 8.0 above and such breach continues after
notice thereof from CentuLink, then, except as otherwise required by
Applicable Law, CentuLink shall have the right, upon notice to QuantuShift,
to suspend or terminate the right to use CentuLink OSS Information granted by
Section 8.1 above and/or the provision of CentuLin OSS Services, in whole or
in part.
11.2 QuantumShift agrees that CentuLin would be irreparably injured by a breach
of this Aricle by QuantuShift or the employees, agents or contractors of
QuantuShift, and that CentuLink shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in the event of any such
breach. Such remedies, and the remedies set forth in Section 11.1, shall not be
deemed to be the exclusive remedies for any such breach, but shall be in addition
to any other remedies available under this Agreement or at law or in equity.
11.3 Any breach of any provision of this Article by any employee, agent, or contractor
of QuatumShift shall be deemed a breach by QuantumShift.
12.0 RELATION TO APPLICABLE LAW
The provisions of this Arcle shall be in addition to and not in derogation of any
provisions of Applicable Law, including, but not limited to, 47 U.S.C. § 222, and are not
intended to constitute a waiver by CentuLink of any right with regard to protection of
the confidentiality of the information of CentuLink or CentuLink customers provided
by Applicable Law.
13.0 COOPERATION
QuantumShift, at QuantumShift's expense, shall reasonably cooperate with CentuLin
in using CentuLink ass Services or CentuLink Pre-OSS Services. Such cooperation
shall include, but not be limited to, the following:
13.1 Intentionally Left Blank
13.2 QuantuShift shall reasonably cooperate with CentuLink in submitting orders
for CentuLink Telecommunications Services and otherwise using the
CentuLink OSS Services or CentuLink Pre-OSS Services, in order to avoid
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exceeding the capacity or capabilties of such CentuLink ass Services or
CentuLink Pre-aSS Services.
13.3 Upon CentuLink's request, QuantuShift shall paricipate in reasonable
cooperative testing of CentuLink OSS Services or CentuLink Pre-aSS
Services and shall provide reasonable assistance to CentuLink in identifyng
and correcting mistaes, omissions, interrptions, delays, errors, defects, faults,
failures, or other deficiencies, in CentuLink OSS Services or CentuLink Pre-
OSS Services.
14.0 CENTURYLINK ACCESS TO INFORMTION RELATED TO QuantumShift
CUSTOMERS
14.1 CentuLink shall have the right to access, use and disclose information related to
QuantuShift End User Customers that is in CentuLink's possession
(including, but not limited to, in CentuLink OSS Facilities) to the extent such
access, use and/or disclosure is required by law or is necessary to enforce
CentuLink's rights, or is authorized by the QuntuShift customer in the
manner required by Applicable Law.
14.2 Upon request by CentuLink, QuatuShift shall negotiate in good faith and
enter into a contract with CentuLin, pursuat to which CenturyLink may
obtain access to QuantuShift's operations support systems (including, systems
for pre-ordering, ordering, provisioning, maintenance and repair, and biling) and
information contained in such systems, to permit CentuLink to obtain
information related to QuantuShift End User Customers (as authorized by the
applicable QuantuShift customer), to permit End User Customers to transfer
service from one Telecommunications Carrer to another, and for such other
puroses as may be permitted by Applicable Law.
.
15.0 CENTURYLINK PRE-OSS SERVICES
15.1 Subject to the requirements of Applicable Law, the CentuLink Pre-OSS
Services that wil be offered by CentuLink shall be as determined by
CentuLink, and CentuLink shall have the right to change CentuLink Pre-
OSS Services, from time-to~time, without the consent of QuantuShift.
15.1.1 QuantumShift shall use the CentuLink Web GUI for Customer Service
Records ("CSR") requests and Local Service Request ("LSR") orders or
other system as may be or become available.
15.1.2 QuantumShift shall place Access Service Requests ("ASRs") via
electronic means through CenturyLink provided ASR ordering systems.
15.1.3 QuantumShift shall use a CenturyLink-provided 1-800 number for. all
trouble ticket and maintenance issues.
15.2 This Section 15.2 shall apply except where Article III, Section 27, applies.
CentuLink is entitled to recover the costs of providing access to the
CentuLink Operations Support Systems via the CentuLin OSS Services,.
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15.4
CentuLink Pre-OSS Services, or CentuLink OSS Facilties, or other means.
CentuLink shall recover its costs of creating, implementing, or maintaining
access to the CentuLink Operations Support Systems via the CentuLink OSS
Services, CenturyLink Pre-OSS Services, or CentuLink OSS Facilities or other
means from QuantuShift and other users of such services or facilities in a
competitively neutral maner. CentuLink's prices for CenturyLink Pre-OSS
Services or other access to CentuLink Operations Support Systems, or other
methods of recovery of the cost of providing interim or permanent access to the
CentuLink Operations Support Systems via the CentuLink OSS Services,
CentuLink Pre-OSS Services, CentuLink OSS Facilties, or other means shall
be as determined by the Commission upon CentuLink's submission in
accordance with Applicable Law. 15.3 Any obligation imposed on
QuantuShift hereunder with respect to CentuLink OSS Services, including
without limitation restrctions on use and obligation of confidentiality, shall also
apply to CentuLink Pre-OSS Services.
QuantumShift acknowledges that the CentuLink OSS Information is subject to
change from time to time.
16.0 CANCELLATIONS.CentuLink may cancel orders for service that have had no activity within thirt-one
(31) consecutive calendar days after the original service date.
.
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ARTICLE VII
DIRECTORY SERVICES
1. SCOPE
CentuLink, either directly or through a third par, publishes and distrbutes alphabetical
(white pages) and/or classified (yellow pages) telephone directories (hereinafter the "Directory"
or "Directories" as the case may be) in certin CentuLink local exchange service areas (the
"CentuLin Local Areas").
This Article sets forth the rates, terms and conditions pursuant to which CentuLink agrees to
provide to QuantuShift basic services associated with the Directories such as publication of
listings and distrbution (the "Directory Services" or "Services") as more paricularly described
in of this Appendix. These terms are applicable only to hard copy directory books. CenturyLink
and QuantumShift may, from time to time, agree on the provision of additional services
("Additional Services"). No addendum for Additional Services shall be binding unless signed by
the Partes.
2.QuantumShift OBLIGATIONS AND RESPONSIBILITIES .
The following obligations shall be the responsibility of QuantumShift, which obligations, unless
otherwise expressly set forth herein, shall be performed within the time frames and in accordace
with the policies and procedures set fort in this Arcle
a. QuantumShift shall submit to CentuLink or, if so elected by QuantuShift to
submit an anual data fie as provided herein, its designated third par publisher
("Publisher") all Listing Information (as hereinafter defined) relating to its
subscribers ("Subscribers") who desire published listings within a CentuLin
Directory. For puroses ofthis Agreement, "Listing Information" shall consist of
the Subscriber's name, address, telephone number, desired yellow pages classified
heading (if any), and any other required listing information. Under no
circumstances shall QuantuShift provide Subscriber data as a part of Listing
Information for those Subscribers who do not desire published listings. Listing
Information shall be supplied by QuantumShift without charge to CentuLink.
Listing Information shall be supplied, to CenturyLin, in a Local Service Request
("LSR") or a standalone Directory Service Request ("DSR") or, if to the
Publisher, in a data fie format as provided herein. Listing Information shall be
submitted within the time frames as reasonably directed by CentuLink and in
accordance with established service guidelines in the CentuLink Service Guide,
which may be accessed at htt://business.CentuLink.com//business/Wholesale/..
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CentuLink QuatumShift
Resale/Idaho
Page 81
Listing Information provided to CentuLink via an LSR or DSR wil be used by
CentuLink for puroses related to publishing directory listings.
b. If providing Listing Information via an LSR or DSR, QuantuShift shall
separately provide to CentuLink Directory delivery address data for
Subscribers, if different from the Listing Information, and for those Subscribers
who do not desire published listings. Where QuantumShift elects to send an
anual data fie of Listing Information to the Publisher, QuantuShift shall
provide a separate distrbution fie to the Publisher.
c. If required for resolution of a Directory related inquiry, request or complaint
received by QuantumShift from its Subscribers, QuantuShift shall promptly
notify CentuLink, but in any event within ten (10) days, of receipt of such
inquiry, request, or complaint and shall reasonably cooperate with CentuLink
and Publisher to resolve such matters in a timely and expeditious manner. If the
Parties are unable to resolve such matters within thirt (30) days, either Part may
invoke the Dispute Resolution process in Aricle III, Section 20 of this
Agreement.
d.If providing Listing Information via an LSR or DSR, QuantuShift shall process
all Listing Information change requests received from its Subscribers within
commercially reasonable time frames..
e. If providing Listing Information via an LSR or DSR, QuantuShift shall transmit
to CentuLink all information arising from Subscriber transactions that should
result in an addition to, a change in or a deletion of any Listing Information
previously transmitted by QuatumShift to CentuLink and held in
CentuLink's database.
f. QuantumShift wil pay charges as set forth in the Directory Services Fee
Schedule, for Services. Such charges shall include, but are not limited to,
expenses associated with work performed by the Publisher, as identified in
Exhibit A. Where QuantumShift requests services or work that is outside the
scope of that set forth in this Aricle, CentuLink shall provide the proposed
charges, with explanation of the basis for the charges, and obtain prior wrtten
approval from QuantuShift to underte such work on QuantumShift's behalf.
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Arcle VII
CentuLink Quatuhift
Resale/Idao
Page 82 .
g.For Listing Information held in the CentuLink database, Galley Proofs (as
hereinafter defined) are provided at no charge by CentuLink 30 days prior to the
annual Business Offce Close ("BOC") for a Directory. QuantuShift shall
review the Galley Proofs and provide corrections to CentuLink no later than
five (5) business days prior to the BOC ("cut-off date"). Such cut-off date shall
be at parity with that required for CentuLink to enter corrections of its own
Listing Information. Notwithstanding the foregoing, should either Part identify
pervasive or systemic errors requiring corrections to more that 10 percent of
QuantuShift's listings, QuantuShift wil take commercially reasonable efforts
to initiate the process of submitting corrections no later that 15 days prior BOC.
QuantumShift expressly acknowledges that time is of the essence with respect to
the publishing cycle of any Directory and that changes are subject to a change
charge as listed for Galley Proof changes in Exhibit A; provided however, no
charge is applied if the error was made by CentuLink. In the event
QuantumShiftfails to provide CentuLink with wrtten notice of any necessar
corrections within the time frame set forth in this provision, such Galley Proofs
shall be deemed to be correct and QuatumShift shall indemnify CentuLink for
any claims by Subscribers related to errors in the Directory as published in
reliance on such Galley Proofs provided, however, that CentuLink provides the
Galley Proofs to QuantuShift with the time frames required herein and that such
Galley Proofs have not been modified after QuantuShift's review.
QuantuShift may request additional Galley Proofs with at least one (1) week's
advance notice to CentuLink and at charges as provided in Exhibit B.
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h. If QuantuShift elects to provide Listing Information via an anual data fie to
the CentuLink Publisher, QuantuShift wil: (i) provide the anual one time
data fie for each individual directory to the Publisher prior to the BOC, with
notice to CentuLink at least fort-five (45) days prior to file submission of
QuantumShift intent to provide a data fie of Listing Information; and (ii) provide
the data fie of Listing Information in a format as provided in Section 7 of this
Aricle..
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Arcle VII
CentuLink QuantuShift
Resale/ldaho
Page 83
3.CENTURYLINK OBLIGATIONS AND RESPONSIBILITIES
Durng the Term of this Agreement, the responsibilities of CentuLink and, as directed by
CentuLink, its Publisher, shall be the following:
a. CentuLink shall include one stadard listing ("QuatuShift Listing") for each
Subscriber, at no charge to QuantuShift or QuantumShift's subscribers, for
whom CenturyLink or its Publisher receives Listing Information in CentuLink's
Directories for a CentuLink Local Area in accordance with Exhibit A.
Standard QuantuShift Listings shall be interfiled alphabetically with listings of
other local exchange telephone company subscribers and treated in the same
manner as CentuLink Listings and pursuant to this Appendix.
b.Where QuantuShift submits Listing Information via the LSRlDSR process,
CentuLink shall make reasonable provisions to ensure that QuantumShift
Subscribers' Listing Information is properly entered into the CentuLink
database and transmitted to Publisher, as provided by QuantuShift. In the
event that CentuLink incorrectly publishes the Listing Information of a
QuantuShift subscriber(s), through no fault of QuantumShift, CentuLin shall
promptly, but in any event within ten (10) days of notice from QuantuShift, tae
actions to correct the Listing Information in the CentuLink database used for
publishing Directories, and wil reasonably cooperate. with QuantuShift to
investigate and resolve the cause of the errors in an expeditious maner. If the
Paries disagree as to their responsibilities pursuant to this Section 3 b, either
Par may invoke the Dispute Resolution terms of this Agreement.
c. CentuLink shall make available, at no charge to QuantumShift or its
Subscribers, one listing for each QuantuShift business customer under the
appropriate heading (if such heading is supplied by QuantuShift) in
CentuLink's applicable classified Directories, such headings and Directories to
be determined at CentuLink's discretion. CentuLink shall work cooperatively
with QuantuShift to ensure any such listings for governent agencies are also
included in the appropriate section and under the appropriate heading.
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CentuLink QutuShift
ResalelIdao
Page 84 4I
d. CentuLink shall include, at no additional charge, QuantuShift critical contact
information alphabetically (by local exchange carrer) in the information pages of
its alphabetical Directories (but only where such information pages are otherwise
included in a given Directory) for communities where QuantumShif offers Local
Service, in accordance with CentuLink's standards for inclusion in a given
Directory. For this purose, QuantumShift must: supply in a timely manner
critical contact information needed by CentuLink to produce information pages,
and ensure that critical contact information telephone numbers are working
numbers. Critical contact information includes QuantuShift's name and logo,
telephone numbers for telephone services, biling, and repair services.
e.Except as provided in Section 7.b. below for the anual one time submission of
Listing Information to the Publisher, CentuLink shall not be restrcted in
supplying to third par directory publishers QuantuShift Subscriber
Information pursuant to this Appendix and interfiled with Listing Information of
CentuLink and other QuatumShift subscribers as may be required to fulfill
regulatory and legal requirements for the sole purose of publishing directory
listings. Furher, the Paries agree that such Listing Information provided to third
par directory publishers shall not contain information or data that could be usedto distinguish QuantuShift Subscribers from CentuLink or other
QuantumShift Subscribers..
f. CentuLink shall distrbute alphabetical and classified Directories to local
Subscribers at the time the Directory is published, at no charge to QuantuShift
or Subscribers, in accordance with CentuLink's procedures, provided that
physical Directory delivery information has been provided by QuantumShift.
Thereafter, and for the life of the Directory, CentuLink shall undertke
distribution to all new QuantumShift Subscribers and those existing Subscribers
that need replacement or additional copies ("Secondary Distrbution") upon
CentuLink's receipt of necessary Subscriber information. Such Secondar
Distrbution shall be in accordance with CentuLink's standard procedures.
CentuLink shall make available in the published Directory to QuantumShift's
Subscribers an 800 number to use for any Secondary Distrbution requirements.
g. Except where QuatuShift . elects to submit Listing Information directly to .the
Publisher, CentuLink shall provide an extract of QuantumShift Subscribers'
alphabetical listings thirt (30) days prior to the Business Offce Close ("BOC")
date for a Directory publication (generally referred to as a "Galley Proof'). Said
review process shall be subject to the availability of QuantuShift Listings in
advance of publication and within the time/deadline constraints imposed by
CentuLink and/or its Publisher as set forth above in Section 2. QuatuShift
shall be responsible for any costs associated with the review process charged by .
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Article VII
CentuLink QuantuShift
Resale/Idao
Page 85
CentuLink and/or its Publisher; provided however, where such costs associated
with the review process are not set forth in this Agreement, CentuLink shall
provide in wrting costs to be incured and obtain the prior wrtten consent of
QuantuShift before engaging in any such work on behalf of QuantuShift.
h. Within ten (10) business days of a request by QuantuShift, CentuLink wil
provide QuantumShift with the appropriate contact information for the
CentuLink directory publisher.
i. CentuLink shall provide notice of Directory Service process or guideline
changes to QuantuShift as soon as such change is practicably known to
CentuLink.
4. DIRECTORY ADVERTISING
QuantumShift acknowledges and agrees that this Agreement does not cover the provision of
Directory advertising, and QuantumShift expressly acknowledges that any purchase of Directory
advertising shall_be handled in accordance with the terms and conditions of CenturyLink's
standard Contract for Directory Advertising Services, and at the prices which CentuLink may
have in effect from time to time.
5. COOPERATION
The Parties acknowledge and agree that cooperation between them wil be required to serve the
needs of each Pary's subscribers most effectively, and agree to exercise commercially
reasonable efforts to achieve the highest quality of service for such subscribers.
6. SALES AND PUBLISHING PROCEDURES
CentuLink shall maintain full authority over its Directory publishing schedules, procedures,
standards, and practices, and over the scope and schedules of its Directories. All QuantuShift
listings shall be subject to such publishing schedules, procedures, standads, and practices, and
scope and schedules of CentuLink's Directories. CentuLin shall periodically supply
QuantumShift with updates concerning publishing schedules and related matters. Nothing in this
Agreement shall be constred as limiting CentuLink from entering into an agreement with a
third par, in its sole discretion, to act as Publisher; provided however, in the event that
QuntuShift chooses to provide listings via an annual data fie, CentuLink wil notify
QuantumShift in wrting of a change of publishers, which notice wil be no more than ten (10)
days following the effective date of a decision to change in publishers. Such notice wil include
contact information of the new directory Publisher and any known changes that wil impact the
process by which the QuantuShift's listings are to be included in the directory publication and
distrbution.
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Article VII
CentuLink QuntuShift
Resalelldao
Page 86 .
7. SUBMISSION OF LISTINGS FOR PUBLICATION
QuantuShift may choose to send Subscriber Listing Information via the LSRlSR process or
an annual data fie. For all directory markets inclusive, QuantumShift must choose either the
LSRlDSR process or the anual data fie method. If at any time QuantuShift wishes to change
the methodology used previously, QuatuShift must notify CentuLink in wrting and the
appropriate process wil be instituted. Notification must be received at least one-hundred eighty
(180) days before the desired effective date for the change of methodology. The Parties wil
work cooperatively together to effect such change.
a. LSRlSR Option for submitting Directory Listings
1. QuantuShift wil submit directory listing requests for all listings, additions,
changes, deletions via the LSRlDSR Process.
2. Notwithstanding anything herein or in related documents or guidelines,
unless otherwise agreed by the Paries, CentuLink wil process all
QuatumShift orders within fort-eight (48) hours of being submitted by
QuantuShift..b. Anual File
1. QuantumShift may submit listings via an anual data fie on a per Directory
basis. Listing Information submitted via an annual data file wil not be
entered into CenturyLink's own system, or rekeyed. CentuLink shall direct
its Publisher to handle Listing Information submitted via an annual data file
and interfile QuantumShift Subscriber Listings alphabetically with
CenturyLink's Subscriber Listings in the local white pages, and where
applicable the Yellow Pages for business listings.
2. The File should be supplied in an Excel spreadsheet, or other format as the
Paries may mutually agree, with listing name, number and address
information. Any captions should have indent levels supplied and any
business listing should have a Yellow Page Header supplied as well. A
separate fie should be sent for each book and should include only those
numbers that are to be published.
3. It is QuantuShift's responsibility to ensure the annual data fie is provided to
CentuLink and or the Publisher (if so elected by QuantumShift) before the
corresponding close date each year; provided however, CentuLink must
provide notice of the close date each year at least one hundred twenty (120)
days prior to such close date .
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Article VII
CentuLink QuantumShift
Resale/ldao
Page 87
4. QuantuShift wil provide a separate distrbution fie (marked 'distrbution
only') containing all subscribers for the applicable Directory area.
5. QuatumShift is responsible for sellng its listings to third par requestors if
QuantuShift selects the anual data fie method.
6. There is no charge for the annual data fie to be supplied by QuantumShift.
8. Description of Services:
Preliminar Pages
o Critical customer contact numbers for biling, service, repair
o Listing of QuantuShift name and address in alpha order on page(s) titled "Other
Telephone Service Providers"
Directory Listings
o A white pages listing for each published QuantuShift subscriber
o A standad regular listing in classified section of directory for each business
- A complete list of classified headings and a directory production schedule, with
service order close and galley due dates, wil be provided
o Fulfillment of orders for directory listings to 3rd par directory publishers on behalf of
QuantuShift *
o A listing in the appropriate section ofthe directory for governent agencies.
White Pages Galleys *
o One white pages galley for each directory to proof prior to publication at no charge
o Additional galleys available upon request
o One white page galley wil be supplied only if the listings are maintained by CentuLink
Copies of Directories
o One copy of telephone directory to QuantuShift at time of publication
o Delivery of directories to QuantumShift subscribers, (quantity of 1 per residence and 2
per business unless otherwise specified for hand delivery. For mailed, all quantities
default to 1) durng initial distrbution
o For secondary distrbution 800# must be used.
Directory Service Request *
o Service order processing to update, establish or change a directory listing
* Applies only where the LSRlSR Process is used by QuantumShift
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Artcle VIII: Pricing
CentuLink Quamtu Shift
Resale Idao Page 88 .
ARTICLE VIII: PRICING
.
Manual Service Order NRC
Manual Service Order - Listin Onl
Manual Service Order - Chan e Onl
$15.68
$15.68
$15.68
$8.67
$8.67
$8.67 .
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Article VIII: Pricing
CentuLink Qumtu Shift
Resale Idao Page 89
2-Wire Loon Coooerative Testina $57.22
4-Wire Loop Cooperative Testing $70.29
Trouble Isolation Charae $73.32
LNP Coordinated Conversion - Lines 1 -10 $85.27
LNP Coordinated Conversion - Each additional line $6.33
LNP Conversion - 10 Oioit Trigger $0.00
Manual Service Order NRC
Manual Service Order - Listin Onl
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Artcle VIII: Pricing
CentuLin Qutu Shift
Resale Idaho Page 90 .
Manual Service Order - Chanae Onlv $15.68
Electronic Service Order ¡IRES)$8.67
Electronic Service Order - Listina Only $8.67
Electronic Service Order - Chanae On Iv $8.67
2-Wire Loop Cooperative Testing $57.22
4-Wire Loop Cooperative Testing $70.29
Trouble Isolation Charae $73.32
LNP Coordinated Conversion - Lines 1 -10 $85.27
LNP Coordinated Conversion - Each additional line $6.33
LNP Conversion - 10 Oiait Triaaer $0.00
Application ofNRCs
Pre-ordering: "CLEC Account Establishment" is a one-time charge
applied the first time that QuantuShift orders any service from a
CentuLink affiiate..
"Customer Record Search" applies when QuantumShift requests a
sumary of the services curently subscribed to by the End User
Customer.
"Service Order Charge" all for all LSRs wil be applicable when submitting a
Local Service Request (LSR) for any reason. The Service Order Charge covers
the administrative order processing costs and is not associated with the recovery
of any technical or materials costs that may be recovered through other charges.
CentuLink wil bil the service order charge for an LSR regardless if the LSR is
later supplemented, clarfied, or cancelled.
Custom Handling (These NRCs are in addition to any Pre-ordering or Ordering
and Provisioning NRCs):
"Service Order Expedite" applies if QuantuShift requests service prior to
the standad due date intervals.
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Article VIII: Pricing
CentuLink Quamtu Shift
Resale Idaho Page 91
DIRECTORY SERVICES FEE SCHEDULE: (T-083. T-148)
Item
Preliminary Pages
Description Fee
Listing of QuantuShift and contact numbers No Charge
Directory Listings Subscriber Listings No Charge
Additional Listing Per Tariff or
Price List
Other Directory Listing Services shall be provided at rates set fort in applicable taffs or Price
List.
White Pages Galleys First galley No Charge
Ad Hoc (Each Additional) Galley $150.00 ea.
Copies of Directories for Subscribers No Charge
Directory Service Request (DSR applies when Directory request is made in a separate stand
alone submission. If a Directory Request is made on a submission of an LSR , then the LSR
charge only applies)
DSR - Request to update or establish listing $5.61
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SIGNATUR PAGE
QuantumShift Communications, Inc.
r:DOCS¡grei bySignatue: L::6~~5~
Name: Karen A. Weller
Title:V.P.- Corporate Development
Date:2/2/2012
CenturyTel of Idaho, Inc., dba
CenturyLink; CenturyTel of the Gem
State, Inc., dba CenturyLink
12-caBw-i. i.r~~Signatue:~19ned By. L 'f ehrm~
Name: L. T. Chrstensen
Title: Director - Wholesale Contracts
Date: 2/3/2012
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