20110124Amendment.pdf

Qwest
1600 7th Avenue, Room 1506
Seattle, Washington 98191
[phone]
Facsimile [phone]
çL...
lDt l JAN 24 AM 9= :3 ,
Maura E. Peterson
Paralegal
Regulatory Law Qwest~
Spirit of Service~
Via Overnight delivery
January 21,2011
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
Re: Case No. QWE-T-ll-01
Application for Approval of Amendment to the Interconnection Agreement
Dear Ms. Jewell:
Enclosed for filing with this Commission on behalf of Qwest Corporation is an original and
three (3) copies of the Application for Approval of Amendment to the Interconnection
Agreement. Qwest respectfully requests that this matter be placed on the Commission
Decision Meeting Agenda for expedited approvaL.
Please contact me if u have any questions concerning the enclosed. Thank you for your
tter.
mep
Enclosure
cc: Service list
Adam L. Sherr (WSBA# 25291)
Qwest
1600 7th Ave, Room 1506
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
Adam.sherr(g qwest.com
ioii JAN 24 At; 9= 31
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
APPLICATION OF QWEST
CORPORATION FOR APPROVAL OF
AN INTERCONNCTION AGREEMENT
PURSUANT TO 47 U.S.C. §252(e)
CASE NO.: QWE-T-ll-01
APPLICATION FOR APPROVAL OF
AMENDMENT TO THE
INTERCONNCTION AGREEMENT
Qwest Corporation ("Qwest") hereby files this Application for Approval of Amendment
to the Interconnection Agreement ("Amendment"), which was fied with the Idaho Public
Utilities Commission on January 21, 2011 (the "Agreement"). The Amendment with Adams
Technology Group, Corp, ("Adams") is submitted herewith.
This Amendment 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 amendment
reached through voluntary negotiations only if the Commssion finds that: the amendment (or
portiones) thereof) discriminates against a telecommunications carer not a pary to this
agreement; or the implementation of such an amendment (or portion) is not consistent with the
public interest, convenience and necessity.
Qwest respectfully submits this Amendment provides no basis for either of these
findings, and, therefore requests that the Commission approve this Amendment expeditiously.
This Amendment is consistent with the public interest as identified in the pro-competitive
policies of the State of Idaho, the Commission, the United States Congress, and the Federal
Communications Commssion. Expeditious approval of this Amendment wil enable Adams to
APPLICATION FOR APPRO V AL OF AMNDMENT TO THE INTERCONNECTION AGREEMENT - Page 1
ADAMS TECHNOLOGY GROUP, CORP.
QLSP AMENDMENT
interconnect with Qwest facilities and to provide customers with increased choices among local
telecommunications services.
Qwest further requests that the Commssion approve this Amendment without a hearng.
Because this Amendment was reached through voluntary negotiations, it does not raise issues
requiring a hearing and does not concern other parties not a party to the negotiations.
Expeditious approval would further the public interest.
Respectfully submitted this 21st day of January, 2011.
Cr'.
Adam L. Sh
Attorney for Qwest
APPLICATION FOR APPROVAL OF AMNDMENT TO THE INTERCONNCTION AGREEMENT - Page 2
ADAMS TECHNOLOGY GROUP, CORP.
QLSP AMNDMENT
CERTIFICATE OF SERVICE
I hereby certify that on this 21st day of January, 2011, I served the foregoing
APPLICATION FOR APPROVAL OF AMENDMENT TO THE INTERCONNECTION
AGREEMENT upon all paries of record in this matter as follows:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
jjewell (g puc. state.id.us
Hand Delivery
U. S. Mail
-- Overnight Delivery
Facsimile
Email
Chris Adams, President
Adams Technology Group
P.O. Box 190085
Boise, Idaho 83719
Hand Deli very
X U. S. Mail
Overnight Delivery
Facsimile
Maura Peterson
Paralegal, Qwest Corporation
APPLICATION FOR APPROVAL OF AMNDMENT TO THE INTERCONNCTION AGREEMENT - Page 3
ADAMS TECHNOLOGY GROUP, CORP.
QLSP AMENDMENT
DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A498-C6A4086DBB79
REGE!
e QWEST BROADBAND FOR RESALE 2011 SERVICE AGREEMENT
This Qwest Broadband for Resale 2011 Master Services Agreement, together with the Attachme~lI~e~¿~~~rp~r~tj: 31
herein by reference ("Agreement') is between Qwest Corporation ("Qwest"), a Colorado corpora,~')Clnd ~ct.,~~
~~~~~u~~o~~c~~o::¿w:~~ r~~:~:~I~~t~~p:~at~;~~ a ~~~;a~~oC¿Ii~~~~:I~d:;:~:~P:~i~~!l.°~~: ~:Íé~ii~~H~~S 011
read and agree to the terms and conditions set forth in this Agreement.
Name: L. T. Christensen
Title: Director - Wholesale Contracts
Date: 12/21/2010
Adams Technology Group, Corp.:
~C01EA4714418...1
By: ~::B~'wm
Name: Chris Adams
Title: President
Date: 12/21/2010
Qwest corporation~: 05E9FC8BD545"::=il.r~_
By: DocuSìaned Bv L T Christ"ns"n
NOTICE INFORMATION: All written notices required under the Agreement shall be sent to the following:
Qwest Corporation:
Director - Interconnection Agreements
930 15th Street, 6th Floor
Denver, CO 80202
Phone: [phone]
Email: intagreelëgwest.com
With copy to:
Qwest Law Department
Wholesale Interconnection
1801 California Street, 10th Floor
Denver, CO 80202
Phone: [phone]
Email: Legal.nterconnectionlëgwest.com
RESELLER
Chris Adams, President
eATGCOrp.PO Box 190085
Boise, ID 83719
Phone 1: 208-906-8318
Phone2: 877-474-4284
Fax: [phone]
Email: chrislëatg-ware.com
ww.atg-ware.com
APPLICABLE STATES:
Qwest agrees to offer and RESELLER intends to purchase
Service in the states indicated below by RESELLER's signatory
initialing (or an "X") on the applicable blanks:
Arizona
Colorado
-l Idaho
Iowa
Minnesota
Idaho
Nebraska
New Mexico
North Dakota
Oregon
South Dakota
Utah
Washington
Wyominge
December 15, 2010/mms/ATG Corp.lID/CDS-101214-0002
Owest Broadband for Resale 2011 MSA - (v10-15-10)Page 1 of11
DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A498-C6A4086DBB79
RESELLER and Qwst hereby mutually agree as follow:
1. Definitions. Capitalized terms used herein are defined in
Attchment 1.
2. Effctive Date. This Agreement is effective upon the
date that it is fully executed by all of the Parties ("Effective Date").
3. Term. The term of this Agreement begins on the
Effective Date and wil continue through December 31,2012 and on a
month-to-month basis thereafter, unless terminated by either Part on
ninety (90) Days prior wrtten notice.
4. Scope of Agreement; Servce Provisioning; Controllng
Documents; Change of Law; Eligibilty for Services under this
Agreement; Non-Applicabilty of Change Management Process.
4.1 The Services ("Services") described in this Agreement will
only be provided in Qwests incumbent Local Exchange Carrer (LEC)
service territory in the states of Arizona, Colorado, Idaho, Iowa,
Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon,
South Dakota, Utah, Washington, and Wyoming.
4.2 In the event of a conflict in any term of any documents that
govem the provision of Services hereunder, the following order of
precedence wil apply in descending order of control: an Attchment,
this Agreement, and any effective Order Form hereunder. The Parties
agree that the Services offered and purchased under this Agrement
are subject to compliance with Applicable Law; and obtaining any
domestic or foreign approvals and authorizations required or advisable.
4.3 The provisions in this Agreement are intended to be in
compliance with and based on the existing state of Applicable Law,
including but not limited to Federal rules, reulations, and laws, as of
the Effective Date ("Existing Rules"). Nothing in this Agreement shall
be deemed an admission by Owest or RESELLER conceming the
interpretation or effect of the Existing Rules or an admission by Qwest
or RES ELLER that the Existing Rules should not be changed, vacated,
dismissed, stayed or modified. Nothing in this Agreement shall
preclude or estop Qwest or RES ELLER from taking any position in any
forum conceming the proper interpretation or effect of the Existing
Rules or concerning whether the Existing Rules should be changed,
vacated, dismissed, stayed or modified.
4.4 If any change in Applicable Law materially impairs a Part's
abilty to perform or obtain a benefit under this Agreement, both Parties
agree to negotiate in good faith such changes as may be necessary to
address such material impairment.
4.5 To receive services under this Agreement, RESELLER must
be a certified RESELLER under Applicable Law. RESELLER may not
purchase or utilze Services covered under this Agreement for its own
administrative use or for the use by an Affliate.
4.6 The Parties agree that Services provided under this
Agreement are not subject to the Qwest Wholesale Change
Management Process ("CMP"), Qwests Performance Indicators
("PID"), Performance Assurance Plan ("PAP"), or any other wholesaleservice quality standards, or liquidated damages and remedies.
RESELLER hereby waives any rights it may have under the PID, PAP
and all other wholesale service quality standards to liquidated
damages, and remedies with respect to Services provided pursuant to
this Agreement. Any RES ELLER-proposed changes to the attributes
of any Service or process enhancements will be communicated
through the standard accunt interface. Change requests common to
shared systems and processes subject to CMP wil continue to be
addressed via the CMP procedures.
December 15, 2010/mms/ATG Corp.lID/CDS-101214-0002
Qwest Broadband for Resale 2011 MSA - (v10-15-10)
.
5. RESELLER Information. RES ELLER agrees to work with
Qwest in good faith to promptly complete or update, as applicable,
Qwests 'New Customer Questionnaire" to the extent that RESELLER
has not already done so, and RESELLER shall hold Owest harmless
for any damages to or claims from RESELLER caused by
RESELLER's failure to promptly complete or update the questionnaire.
6. Financial Terms.
6.1 Raes and Terms. Attchment 2 hereto specifies the
description, terms, and conditions specific to the Service. Applicable
rates are incorprated into this Agreement by reference. The Parties
agree that the reference rates are just and reasonable.
6.2 Taxes. Fees. and other Governmental Impositions.
All charges for Services provided herein are exclusive of any federal,
state, or local sales, use, excise, gross receipts, transaction or similar
taes, fees or surcharges ("Tax or "Taxes"). Taxes resulting from the
performance of this Agreement shall be bome by the Part upon which
the obligation for payment is imposed under Applicable Law, even if
the obligation to collect and remit such Taxes is placed upon the other
Part. However, where the sellng Part is specifically permitted by
Applicable Law to collect such Taxes from the purchasing Party, such
Taxes shall be borne by the Part purchasing the services. Taxes
shall be biled as a separate item on the invoice in accordance with
Applicable Law. The Part biling such Taxes shall, at the wrtten
request of the Part being biled, provide the biled Party with detailed
information regarding biled Taxes, including the applicable Tax
jurisdiction, rate, and base upon which the Tax is applied. If either
Part (the Contesting Part) contests the application of any Tax
collected by the other Part (the Collecting Party), the Collecting Part
shall reasonably cooperate in goo faith with the Contesting Party's .
challenge, provided that the Contesting Party pays all reasonable costs
incurred by the Collecting Part. The Contesting Part is entitled to the
benefit of any refund or recovery resulting from the contest, providedthat the Contesting Part has paid the Tax contested. If the
purchasing Part provides the sellng Part with a resale or other
exemption certificate, the sellng Part shall exempt the purchasing
Part if the sellng Part accpts the certficate in good faith. If a Part
becomes aware that any Tax is incorrectly or erroneously collected by
that Part from the other Part or paid by the other Part to that Part,
the Part that received such Tax shall refund the incorrectly or
erroneously collected Tax or paid Tax to the other Part.
6.3 Each Part is solely responsible for any tax on its corporate
existence, status or income and each Part shall be solely responsible
for all taxes on its own business, the measure of which is its own net
income or net worth and shall be responsible for any related tax filings,
payment, protest, audit and litigation. Each Part shall be solelyresponsible for the billng, collection and proper remittnce of all
applicable Taxes relating to its own services provided to its own
Customers.
7. Intellectual Propert.
7.1 Except for a license to use any facilities or equipment
(including softare) solely for the purposes of this Agreement or toreceive Service solely as provided in this Agreement or as specifcally
required by the then-applicable federal rules and regulations relating to
Services provided under this Agreement, nothing contained in this
Agreement shall be construed as the grant of a license, either express
or implied, with respect to any patent, copyright, trade name,
trademark, service mark, trade secret, or other proprietary interest or
intellectual property, now or hereafter owned, controlled or licensable
by either Part. Neither Party may use any patent, copyrght, trade
name, trademark, service mark, trade secret, nor other proprietary .
interest or intellectual propert, now or hereafter owned, controlled or
Page20f11
DocùSign Envelope ID: 3F6AFC95-2B91-4F49-A498-C6A4086DBB79
. licensable by either Part wihout execution of a separate written
agreement betwen the Parties.
7.2 Subject to the general Indemnity provisions of this
Agreement, each Part (an Indemnifying Part) shall indemnif and
hold the other Party (an Indemnified Part) harmless from and against
any loss, cost, expense or liabilty arising out of a claim that the
services provided by the Indemnifying Part provided or used pursuant
to the terms of this Agreement misappropriate or otherwse violate the
intellectual propert rights of any third party. The obligation for
indemnifcation recited in this paragraph shaH not extend to
infringement which results from:
A. any combination of the facilties or services of the
Indemnifyng Part with facilities or services of any other Person
(including the Indemnified Part but excluding the Indemnifying
Part and any of it Affliates), which combination is not made by
or at the direction of the Indemnifying Part or is not reasonably
necessary to RESELLER's use of the Services offered by Qwest
under this Agreement; or
B. any modifcation made to the facilties or services of the
Indemnifying Part by, on behalf of, or at the request of the
Indemnified Part and not required by the Indemnifng Part.
7.3 In the event of any claim, the Indemnifyng Part may, at its
sole option, obtain the right for the Indemnified Part to continue to use
any infrnging facility or service or replace or modify any infringing
facility or service to make such facility or service non-infrnging.
7.4 If the Indemnifing Party is not reasonably able to obtain the
right for continued use or to replace or modify the facilty or servce as
provided above and either the facility or service is held to be infringing
. by a court of competent jurisdiction or the Indemnifing Part
reasonably believes that the facilty or service wil be held to infringe,
the Indemnifying Part wil notify the Indemnified Part and the Parties
will negotiate in good faith regarding reasonable modifications to this
Agreement necssary to mitigate damage or comply wih an injunction
which may result from such infringement or allow cessation of further
infrngement.
7.5 The Indemnifying Part may request that the Indemnified
Part take steps to mitigate damages resulting from the infringement or
alleged infringement including, but not limited to, accpting
modifications to the facilities or services, and such request shall not be
unreasonably denied.
7.6 To the extent required under Applicable Law, Qwest shall
use commercially reasonable effort to obtain, from its vendors who
have licensed intellectual propert rights to Qwest in connection with
Services provided hereunder, licenses under such intellectual propert
rights as necessary for RESELLER to use such Services as
contemplated hereunder and at least in the same manner used by
Qwest for the Services provided hereunder. Qwest shall notify
RESELLER immediately in the event that Qwest believes it has used
its commercially reasonable efforts to obtain such rights, but has been
unsuccssful in obtaining such rights. Nothing in this subsection shall
be construed in any way to condition, limit, or alter a Part's
indemnification obligations under Section 7.2, preceding.
.
7.7. Neither Part shall without the express wrtten permission of the
other Part, state or imply that it is connected, or in any way affliated
with the other or its Affilates; it is part of a joint business association or
any similar arrangement with the other or its Affliates; the other Part
and its Affliates are in any way sponsoring, endorsing or certifying it
and its goods and services; or with respect to its marketing, advertising
or promotional activities or materials, state or imply that the services
are in any way associated with or originated from the other Part or
December 15, 2010/mms/ATG Corp.lID/CDS-101214-D002
Qwest Broadband for Resale 2011 MSA - (v10-15-10)
any of its Affliates. In addition, RESELLER, including its employees,
representatives and agents, will not state or otherwse indicate, directly
or indirectly, to its end-users or prospective end-users: (a) that they will
be Qwest customers or that they may obtain Qwest service frm
RESELLER or (b) that RESELLER has or the end-user will have any
relationship with Qwest. Without limiting the foregoing, RESELLER
must not use a name, trademark, service mark, copyright or any other
intellectual propert owned by Qwest or its Affliates, except that
RESELLER may communicate that Qwest is one of the underlying
carrers from which RESELLER purchases service if RESELLER has
obtained the prior written consent of the Qwest Law Department. This
is a non-exclusive agreement. Nothing in this Agreement prevents
Qwest from offering to sell or sellng any services to other parties.
7.8 Nothing in this Section prevents either Part frm truhfully
describing the Servces it uses to provide service to its End User
Customers, provided it does not represent the Services as originating
frm the other Part or it Affliates or otherwse attempt to sell its End
User Customers using the name of the other Party or its Affliates.
Qwests name and the names of its Affliates are proprietary and
nothing in this Agreement constitutes a license authorizing their use,
and in no event wil RESELLER, including its employees,
repreentatives and agents, attempt to sell any Services to its end-
users using the name, brand or identity of Qwest or Qwests Affdiates
in anyway.
7.9 Because a breach ofthe material provisions of this Section 7
may cause irreparable harm for which monetary damages may be
inadequate, in addition to other available remedies, the non-breaching
Part may seek injunctive relief.
8. Financial Responsibilty Payment and Security.
8.1 Payment Obligation. Amounts payable under this
Agreement are due and payable within thirt (30) Days after the date of
invoice ("Payment Due Date"). If the Payment Due Date falls on a
Sunday or on a holiday which is observed on a Monday, the payment
date will be the first non-holiday day following such Sunday or holiday.
If such a payment date falls on a Saturday or on a holiday which is
observed on Tuesday, Wednesday, Thursday or Friday, the payment
date shall be the last non-holiday day preceding such Saturday or
holiday. For invoices distributed electronically, the date of the invoice
is the same as if the invoice were billed on paper, not the date the
electronic delivery occurs. If RESELLER fails to make payment on or
before the Payment Due Date, Qwest may invoke all available rights
and remedies.
8.2 Cessation of Order Processing. Qwest may discontinue
processing orders for Services for any breach by RESELLER of this
Agreement, including without limitation, the failure of RESELLER to
make full payment for Services, less any good faith disputed amount
as provided for in this Agreement, within thirt (30) Days following the
Payment Due Date provided that Qwest has first notified RESELLER in
writing at least ten (10) business days prior to discontinuing the
processing of orders for Servces. If Qwest does not refuse to accept
additional orders for Services on the date specifed in the ten (10)
business days notice, and RESELLER's non-compliance continues,
nothing contained herein shall preclude Qwests right to refuse to
accept additional orders for Services from RESELLER without furter
notice. For order processing to resume, RESELLER will be required to
cure any breach and make full payment of all past-due charges for
Services not disputed in good faith under this Agreement, and Qwest
may require a deposit (or recalculate the deposit) pursuant to Section
8.5. In addition to other remedies that may be available at law or
equity, Qwest reserves the right to seek equitable relief including
injunctive relief and specifc performance.
8.3 Disconnection. Qwest may disconnect any Services
provided under this Agreement for any breach by RESELLER of this
Page30f11
DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A498-e6A4086DBB79
Agreement that is not cured by RESELLERin accordance with Section
11 herein, including without limitation, failure by RESELLER to make
full payment for such Services, less any good faith disputed amount as
provided for in this Agreement, within thirt (30) Days followng the
Payment Due Date provided that Qwest has first notifed RESELLER in
writing at least ten (10) business days prior to disconnecting Servce.
RESELLER will pay the applicable charge set forth under this
Agreement required to reconnect Servce for each End User
Customer disconnected pursuant to this Section 8.3. In case of such
disconnection, all applicable undisputed charges, including terminatin
charges, will become due and payable. If Qwest does not disconnect
RESELLER's Service on the date specified in the ten (10) business
days notice, and RESELLER's noncompliance continues, nothing
contained herein shall preclude Qwests right to disconnect any or all
Services. For reconnection of the Service to occur, RESELLER wil be
required to make full payment of all past and current undisputed
charges under this Agreement for Services and Qwest may require a
deposit (or recalculate the deposit) pursuant to Section 8.5. In addition
to other remedies that may be available at law or equity, Qwest
reserves the right to seek equitable relief, including injunctive relief and
specific performance. Notwithstanding the foregoing, Qwest wil not
effect a disconnection pursuant to this Section 8.3 in such manner that
RESELLER may not reasonably. comply with Applicable Law
conceming End User Customer disconnecton and notification,
provided that, the foregoing is subject to RESELLER's reasonable
dilgence in effecting such compliance.
8.4 Biling Disputes. Should RESELLER dispute, in good faith,
and withhold payment on any portion of the charges under this
Agreement, RESELLER wil notify Qwest in wrting within fifteen (15)
Days following the Payment Due Date identifying the amount, reason
and rationale of such dispute. At a minimum, RESELLER wil pay all
undisputed amounts due to Qwest. Both RESELLER and Qwest agree
to expedite the investigation of any disputed amounts, promptly
provide reasonably requested documentation regarding the amount
disputed, and work in good faith in an effort to resolve and settle the
dispute through informal means prior to invoking any other rights or
remedies.
A. If RESELLER disputes charges and does not pay such
charges by the Payment Due Date, such charges may be subject
to late payment charges. If the disputed charges have been
withheld and the dispute is resolved in favor of Qwest,
RESELLER wil pay the disputed amount and applicable late
payment charges no later than the next Bil Date following the
resolution. RESELLER may not continue to withhold the disputed
amount following the initial resolution while pursuing further
dispute resolution. If the disputed charges have been withheld
and the dispute is resolved in favor of RESELLER, Qwest wil
credit RESELLER's bil for the amount of the disputed charges
and any late payment charges that have been assessed no later
than the second Bil Date after the resolution of the dispute.
B. If RESELLER pays the disputed charges and the dispute is
resolved in favor of Qwest, no further action is required. If
RESELLER pays the charges disputed at the time of payment or
at any time therefter, and the dispute is resolved in favor of
RESELLER, Qwest wil adjust the Billng, usually within two Billng
cycles after the resolution of the dispute, as follows: Owest will
credit RESELLER's bil for the disputed amount and any
associated interest; or if the disputed amount is greater than the
bil to be credited, pay the remaining amount to RESELLER.
C. The interest calculated on the disputed amounts will be the
same rate as late payment charges. In no event, however, wil
any late payment charges be assessed on any previously
assessed late payment charges.
December 15, 2010/mmslATG Corp.lID/CDS-101214-0002
Qwest Broadband for Resale 2011 MSA - (v10-15-1 0)
D. If RESELLER fails to dispute a rate or charge within sixt .
(60) Days following the invoice date on which the rate or chargeappeared, adjustment wil be made on a going-forward basis only,
beginning with the date of the dispute.
8.5 Security Deposits. In the event of a material adverse
change in RESELLER's financial condition subsequent to the Effective
Date of this Agreement, Qwest may request a security deposit. A
"material adverse change in financial condition" means RESELLER is
a new RESELLER with no established credit history, or is a
RESELLER that has not established satisfactory credit with Owest, or
the Part is Repeatedly Delinquent in making its payments, or is being
reconnected after a disconnection of Service or discontinuance of the
processing of orders by Qwest due to a previous failure to pay
undisputed charges in a timely manner or due to the failure by
RESELLER to cure a breach of this Agreement in a timely manner.
Qwest may require a deposit to be held as security for the payment of
charges before the orders from RESELLER will be provisioned and
completed or before reconnection of Service. "Repeatedly Delinquent"
means any payment of a material amount of total monthly Biling under
this Agreement received after the Payment Due Date, three (3) or
more times during the last twelve (12) month period. The deposit may
not exced the estimated total monthly charges for a tw (2) month
period based upon recent Biling. The deposit may be an irrevocable
bank letter of credit, a letter of credit with terms and conditions
acceptable to Qwest, or some other form of mutually accptable
securi such as a cash deposit. The deposit may be adjusted by
RESELLER's actual monthly average charges, payment history under
this Agreement, or other relevant factors, but in no event will the
security deposit exceed five millon dollars ($5,000,000.00). Required
deposits are due and payable within thirt (30) Days after demand and
non-payment is subject to the terms and provisions of Section 8.2 and
Section 8.3 of this Agreement.
8.6 Interest on Deposits. Any interest earned on cash deposits.
will be creited to RESELLER in the amount actually eamed or at the
rate set fort in Section 8.7 below, whichever is lower, except as
otherwse required by law, provided that, for elimination of doubt, the
Parties agree that such deposits are not subject to state laws or
regulations relating to consumer or End User Customer cash deposits.
Cash deposits and accrued interest, if applicable, wil be credited to
RESELLER's accunt or refunded, as appropriate, upon the earlier of
the expiration of the term of this Agreement or the establishment of
satisfactory credit with Qwest, which wil generally be one full year of
consecutive timely payments of undisputed amounts in full by
RESELLER. Upon a material change in financial standing,
RESELLER may request, and Owest wil consider, a recalculation of
the deposit. The fact that a deposit has been made does not relieve
RESELLER from any requirements of this Agreement.
8.7 Late Payment Charge. If any portion of the payment is
received by Qwest after the Payment Due Date, or if any portion of the
payment is received by Qwest in funds that are not immediately
available, then a late payment charge will be due to Qwest. The late
payment charge is the portion of the payment not received by thePayment Due Date multiplied by a late factor. The late factor is the
lesser of (i) the highest interest rate (in decimal value) which may be
levied by law for commercial transactions, compounded daily for the
number of Days from the Payment Due Date to and including the date
that RESELLER actually makes the payment to Owest; or (ii) 0.000407
per Day, compounded daily for the number of Days from the Payment
Due Date to and including the date that RESELLER actually makes the
payment to Qwest.
8.8 RESELLER must not remit payment for the Services with
funds obtained through the American Recovery and Reinvestment Act
(or ARRA) or other similar stimulus grants or loans that would obligate
Owest to provide. certain information or perform certain functions .
Page40f11
DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A498.C6A4086DBB79
. unless those functions and obligations are specically agreed to by the
parties in this Agreement or in an amendment to this Agreement.
9. Conversions. If RESELLER is obtaining service frm
Qwest under an arrngement or agreement that includes the
application of tennination liabilty assessment (TLA) or minimum period
charges, and if RESELLER wishes to convert such service to a
Service under this Agreement, the conversion of such services wil not
be delayed due to the applicabilty of TLA or minimum period charges.
The applicabilty of such charges is govemed by the tenns of the
original agreement, Tariff or arrngement. Nothing herein wil be
construed as expanding the rights otherwse granted by this
Agreement or by law to elect to make such conversions.
10. Customer Contacts. RESELLER, or RESELLER's
authorized agent, is the single point of contact for its End User
Customers' servce needs, including without limittion, sales, service
design, order taking, Provisioning, change orders, training,
maintenance, truble reports, repair, post-sale servicing, Biling,
collection and inquiry. RES ELLER wil infonn its End User Customers
that they are End User Customers of RESELLER. RESELLER's End
User Customers contacting Qwest wil be instructed to contact
RESELLER, and Qwests End User Customers contacting RESELLER
will be instructed to contact Qwest. In responding to calls, neither
Part will make disparaging remarks about the other Party. To the
extent the corrct provider can be detennined, misdirected calls
received by either Part wil be referred to the proper provider;
however, nothing in this Agreement shall be deemed to prohibit Qwest
or RESELLER from discussing its product and services with
RESELLER's or Qwests End User Customers who call the other Part.
10.1 In the event Qwest tenninates Service to RESELLER for any
reason, RESELLER wil provide any and all necessary notice to its End
User Customers of the tennination. In no case wil Qwest be
. responsible for providing such notice to RESELLER's End User
Customers.
11. Default and Breach. If either Part defaults in the payment
of any amount due hereunder, or if either Part violates any other
material provision of this Agreement and such default or violation
continues for thirt (30) Days after written notice thereof, the other
Part may tenninate this Agreement and seek relief in accrdance with
any remedy available under this Agreement, including without
limitation, the Dispute Resolution provisions of Secion 25 herein and,
in addition to the foregoing, Qwest may cease to accept orders frm
RES ELLER for Services in accordance with Section 8.2 above. The
remedies available to each Part pursuant to this Agreement are not to
be considered exclusive of one another and wil be cumulative.
12. Limitation of Liabilty.
12.1 RESELLER's exclusive remedies for claims under this
Agreement are limited to RESELLER's proven direc damages unless
RESELLER's damages are otherwise limited by this Agreement to
outage credits or other service credits, in which case Qwests total
liabilty will not exced the aggregate amount of any applicable credits
due.
12.2 Except for indemnification obligations under this Agreement,
neither Part shall be liable to the other for indirect, incidental,
consequential, exemplary, punitive, or special damages, including,
without limitation, damages for lost profits, lost revenues, lost savings
suffered by the other Part regardless of the form of action, whether in
contract, warranty, strict liabilty, tort, including, without limitation,
negligence of any kind and regardless of whether the Parties know the
possibility that such damages could result..12.3 Nothing contained in this Section will limit either Part's
liabilty to the other for willful misconduct, provided that, a Part's
December 15, 2010/mmslATG Corp.lID/CDS-101214-0002
Qwest Broadband for Resale 2011 MSA - (v10-15-10)
liabilty to the other Party pursuant to the foreoing exclusion, other
than direct damages, will be limited to a total cap equal to one hundred
per cent (100%) of the annualized run rate of total amounts charged by
Qwest to RESELLER under this Agreement.
12.4 Qwest wil incur no liabilty to RESELLER for any withdrawal
of, interference with, or degradation to Service provided to
RESELLER's End User Customers caused by Qwests deployment of
Remote-Based DSL.
13. Indemnity.
13. 1 The Parties agree that unless otherwise specifically set forth
in this Agreement, the following constitute the sole indemnification
obligations between and among the Parties:
A. Each Part (the Indemnifying Part) agrees to release,
indemnify, defend and hold hannless the other Part and each of
its offcers, directors, employees and agents (each, an
Indemnitee) from and against and in respect of any loss, debt,
liabilty, damage, obligation, claim, demand, judgment or
settlement of any nature or kind, known or unknown, liquidated or
unliquidated including, but not limited to, reasonable costs and
expenses (including attomeys' fees), whether suffered, made,
institted, or asserted by any Person or entity, for invasion of
privacy, bodily injury or death of any Person or Persons, or for
loss, damage to, or destruction of tangible propert, whether or
not owned by others, resulting from the Indemnifying Party's
breach of or failure to perfonn under this Agreement, regardless
of the fonn of action, whether in contract, warrnty, strict liabilit,
or tort including (without limitation) negligence of any kind.
B. In the case of claims or losses alleged or incurred by an End
User Customer of either Part arising out of or in connection with
Services provided to the End User Customer by the Part, the
Part whose End User Customer alleged or incurred such claims
or loss (the Indemnifyng Part) shall defend and indemnify the
other Part and each of its offcers, directors, employees and
agents (each, an Indemnifed Part) against any and all such
claims or loss by the Indemnifing Party's End User Customers
regardless of whether the underlying Service was provided or was
provisioned by the Indemnified Part, unless the loss was caused
by the gros negligence or willful misconduct of the Indemnified
Part. The obligation to indemnify with respect to claims of the
Indemnifying Part's End User Customers shall not extend to any
claims for physical bodily injury or death of any Person or
persons, or for loss, damage to, or destruction of tangible
propert, whether or not owned by others, alleged to have
resulted directly from the negligence or intentional conduct of the
employees, contractors, agents, or other representatives of the
Indemnified Part.
13.2 The indemnification provided herein is conditioned upon the
following:
A. The Indemnified Part will promptly notify the Indemnifying
Part of any acton taken against the Indemnified Part relating to
the indemnifcation. Failure to so notify the Indemnifying Party will
not relieve the Indemnifying Part of any liabilty that the
Indemnifying Part might have, except to the extent that such
failure prejudices the Indemnifying Part's abilit to defend such
claim.
B. If the Indemnifying Part wishes to defend against such
acton, it will give wrtten notice to the Indemnified Part of
acceptance of the defense of such action. In such event, the
Indemnifying Part has sole authority to defend any such action,
including the selection of legal counsel, and the Indemnifed Part
Page50f11
DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A498-C6A4086DBB79
may engage separate legal counsel only at its sole cost and
expense. In the event that the Indemnifying Part does not
accept the defense of the action, the Indemnified Part has the
right to employ counsel for such defense at the expnse of the
Indemnifying Part. Each Part agrees to cooperate with the
other Part in the defense of any such action and the relevant
records of each Part will be available to the other Part with
respect to any such defense.
C. In no event will the Indemnifing Part settle or consnt to
any judgment for relief other than monetary damages pertining
to any such action without the prior wrtten cosent of the
Indemnified Part. In the event that the Indemnif Part
withholds consent, the Indemnified Part may, at its cot, take
over such defense; provided that, in such event, the Indemnifng
Part shall not be responsible for, nor shall it be obligated to
indemnify the relevant Indemnified Part against, any cost or
liabilty in excess of such refused compromise or settement.
14. Limited Warranties.
14.1 Each Part will provide suitably qualified personnel to perform its
obligations under this Agreement and provide all Services hereunder in
a good and workmanlike manner and in material conformance with all
Applicable Laws and regulations.
14.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
OWEST SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVIDED
HEREUNDER. OWEST SPECIFICALLY DISCLAIMS ANY AND ALL
IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF
THIRD PARTY RIGHTS.
15. Relationship. Except to the limited extent expressly
provided in this Agreement, neither Part has the authority to bind the
other by contract or otherwse or make any representations or
guarantees on behalf of the other or otherwise act on the other's
behalf. The relationship arising from this Agreement does not
constitute an agency, joint venture, partnership, employee relationship
or franchise. Owest is acting as an independent contractor and wil
have exclusive control of the manner and means of performing its
obligations. Notwithstanding anything herein to the contrary, Qwest
reserves the right, in its sole discretion, to modify or change the name
of the Services.
16. Assignment.
16.1 Either Part may assign this Agreement without the other
Parts prior written consent: (a) in connection with the sale of all or
substantially all of its assets; (b) to the surviving entity in any merger or
consolidation; (c) to an entity that it controls, is controlled by, or it
commonly controls; or (d) to satisfy a regulatory requirement imposed
upon a part by a governmental body with appropriate authority;
provided such Part gives the other Part thirt (30) Days prior written
notice of such assignment and that the assignee acknowledge in
writing its assumption of the obligations of the assignor hereunder.
Any assignee of RESELLER must have a financial standing and
creditworthiness equal to or better than RESELLER's, as reasonably
determined by Owest, through a generally accepted, third part credit
rating index (e.g., D&B, S&P, etc.). Any other assignment will require
the prior written consent of the other Part, which will not be
unreasonably withheld.
16.2 In the event that Qwest transfers to any unaffliated part
exchanges, including End User Customers that RESELLER serves in
whole or in part through Services provided by Owest under this
Agreement, Qwest will ensure that the transferee serves as a
December 15, 2010/mmslATG Corp.lID/CDS-101214-0002
Qwest Broadband for Resale 2011 MSA - (v10-15-10)
succr to and fully performs all of Qwest's responsibilities and .
obligations under this Agrement for a period of ninety (90) Days from
the effecive date of such transfer or until such later time as the FCC
may direct pursuant to the FCC's then applicable statutory authority to
impose such responsibilties either as a condition of the transfer or
under such other state statutory authority as may give it such power.
In the event of such a proposed transfer, Qwest wil use its best efforts
to faciltate discussions hetween RESELLER and the transferee with
respect to the transferee's assumption of Qwests obligations after the
transition period set forth above in accordance with the terms and
provisions of this Agreement.
17. Reporing Reguirements. If reporting obligations or
reuirements are imposed upon either Part by any third part or
reulatory agency in connecton with this Agreement or the Services,
including use of the Services by RESELLER or it End Users, the other
Part agrees to assist that Part in complying with such obligations and
requirements, as reasonably required by that Part.
18. SurvivaL. The expiration or termination of this Agreement
does not relieve either Part of those obligations that by their nature
are intended to survive.
19. Confidentiality Nondisclosure.
19.1 Neither Part will, without the prior wrtten consent of the
other Part (a) issue any public announcement regarding, or make any
other disclosure of the terms of, this Agreement or use the name or
mai1s of the other Part or its Affliates; or (b) disclose or use (except
as expressly permitted by, or required to achieve the purposes of, this
Agreement) the Confidential Information of the other Part. Consent
may only be given on behalf of a Part by its Legal Department.
However, a Part may disclose Confidential Information if required to
do so by a govemmental agency, by operation of law, or if necessary
in any proding to establish rights or obligations under thiS.
Agreement, provided that the disclosing Part gives the non-disclosing
Part reasonable prior written notice and the receiving Part wil
cooperate with the disclosing Part to seek or take appropriate
protective measures and wil make such disclosure in a manner to best
protect the Confidential Information from further disclosure.
Notwthstanding the foregoing, if reporting or filing obligations or
requirements are imposed upon Owest by any third part or regulatory
agency in connection with this Agreement, RESELLER agrees to
assist Owest in complying with such obligations and requirements, as
reasonably required by Owest and to hold Owest harmless for any
failure by RESELLER in this regard. Owests compliance with any
regulatory filing obligation wil not constitute a violation of this section.Each Part will use reasonable effort to protect the othets
Confidential Information, and will use at least the same effort to
protect such Confidential Information as the Party would use to protect
its own.
19.2 All Confidential Information will remain the propert of the
disclosing Part. A Party who receives Confidential Information via an
oral communication may request written confirmation that the material
is Confidential Information. A Party who delivers Confidential
Information via an oral communication may request written
confirmation that the Part receiving the information understands that
the material is Confidential Information. Each Part has the right to
correct an inadvertent failure to identify information as Confidential
Information by giving written notification within thirt (30) Days after the
information is disclosed. The receiving Part will from that time
forward, treat such information as Confidential Information.
19.3 Upon request by the disclosing Part, the receiving Party wil
retum all tangible copies of Confidential Information, whether written,
graphic or otherwise, except that the receiving Part may retain one
copy for archival purposes..
Page60f11
DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A498-C6A4086DBB79
.19.4 Each Part wil keep all of the other Parts Confidenial
Infonnation confidential and wil disclose it on a need to know basis
only. Each Part will use the other Parts Confidential Infonnation
only in connecion with this Agreement and in accrdance with
Applicable Law. Neither Part wil use the other Part's Confidential
Infonnation for any other purpose except upon such tenns and
conditions as may be agreed upon between the Parties in writing. If
either Part loses, or makes an unauthorized disclosure of, the other
Part's Confidential Infonnation, it wil notify such other Part
immediately and use reasonable effort to retrieve the infonnation.
19.5 Effecive Date of this Section. Notwthstanding any other
provision of this Agreement, the Confidential Infonnation provisions of
this Agreement apply to all infonnation fumished by either Party to the
other in furtherance of the purpse of this Agreement, even if fumished
before the Effective Date.
19.6 Each Party agrees that the disclosing Part could be
irreparably injured by a breach of the confidentiality obligations of this
Agreement by the receiving Part or its representatives and that the
disclosing Party is entitled to seek equitable relief, including injunctive
relief and specifc perfonnance in the event of any breach of the
confidentiality provisions of this Agreement. Such remedies are not
the exclusive remedies for a breach of the confidentiality provisions of
this Agreement, but are in addition to all other remedies available at
law or in equity.
19.7 Nothing herein should be construed as limiting either Part's
rights with respect to its own Confidentiallnfonnation or its obligations
with respect to the other Parts Confidential Infonnation under Section
222 of the Act..20. Waiver. Except as otherwse provided herein, neither
Part's failure to enforce any right or remedy available to it under this
Agreement will be construed as a waiver of such right or a waiver of
any other provision hereunder.
21. Reaulatory ApDròval. Each Part reserves its rights with
respect to whether this Agreement is subject to Sections 251 and 252
of the Act. In the event the FCC, a state commission or any other
govemmental authority or agency rejects or modifes any material
provision in this Agreement, whether by direct action or by virtue of
generic procedings, including without limitation, any pricing terms,
either Part may immediately upon wrtten notice to the other Part
tenninate this Agrement in whole or in part, including without
limitation, with respect to Service in any state. In the event a Part
exercises its right to tenninate pursuant to this Section 21, the other
Part agrees to consent to any regulatory approvals necessary to
disconnect any circuits provided pursuant to this Agreement and
further agrees to provide any required notice to affected customers
within five (5) business days of such notice. If a Part is required by a
lawful, binding order to file this Agreement or a provision thereof with
the FCC or state regulatory authorities for approval or regulatory
review, the filing Part shall provide written notice to the other Part of
the existence of such lawfl, binding order so that the other Party may
seek an injunction or other relief from such order. In addition, the filing
Part agrees to reasonably cooperate to amend and make
modifcations to this Agreement to allow the filing of this Agreement or
the specific part of this Agreement affected by the order to the extent
reasonably necessary.
.
22. Notices. Any notice required by or conceming this
Agreement wil be in wrting and wil be suffciently given if delivered
personally, delivered by prepaid ovemight express service, sent by
facsimile with electronic confirmation, or sent by certified mail, retum
receipt requested, or by email where specified in this Agreement to
Qwest and RESELLER at the addresses shown on the cover sheet of
this Agreement. Notwthstanding anything herein to the contrary,
Qwest may provide notice via email or by posting to Qwests website
without duplicate wrtten notification for: (v) marketing notice; (w)
December 15, 2010/mms/ATG Corp./ID/CDS-101214-0002
Qwest Broadband for Resale 2011 MSA - (v1 0-15-1 0)
notice provided under Secion 8; (x) rate change notices; or (y)
notices regarding changes in maintenance windows.
23. Force Majeure. Neither Party shall be liable for any delay
or failure in performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence including, without
limitation, act of nature, acts of civil or miltary authority, govemment
regulations, embargoes, epidemics, terrorist acts, riots, insurrctions,
fires, explosions, earthquakes, nuclear accidents, floods, work
stoppages, power blackouts, volcanic action, other major
environmental disturbances, or unusually severe weather conditions
(each, a Forc Majeure Event). Inabilty to secure products or servicesof other Persons or transportation facilties or act or omissions of
trnsporttion carrers shall be considered Force Majeure Events to
the extent any delay or failure in perfonnance caused by these
circumstances is beyond the Parts control and without that Parts
fault or negligence. The Part affcted by a Force Majeure Event shall
give prompt notice to the other Part, shall be excused from
perfonnance of its obligations hereunder on a day to day basis to the
extent those obligations are prevented by the Force Majeure Event,
and shall use reasonable effort to remove or mitigate the Forc
Majeure Event. In the event of a labor dispute or strike the Parties
agree to provide Servce to each other at a level equivalent to the level
they provide themselves.
24. Governing Law. Colorado state law, without regard to
choice-of-Iaw principles, governs all matters arising out of, or relating
to, this Agreement.
25. Dispute Resolution.
25.1 The Parties will attempt in good faith to resolve through
negotiation any dispute, claim or controversy arising out of, or relating
to, this Agreement. Either Part may give wrtten notice to the other
Part of any dispute not resolved in the nonnal course of business.
Each Part will, within seven (7) Days after delivery of the wrtten
notice of dispute, designate a vice-president level employee or a
representative with authority to make commitments to review, meet,
and negotiate, in good faith, to resolve the dispute. The Parties intend
that these negotiations be conducted by non-lawyer, business
representatives, and the locations, fonnat, frequency, duration, and
conclusions of these discussions wil be at the discrtion of the
representatives. By mutual agreement, the representatives may use
other procedures to assist in these negotiations. The discussions and
correspondence among the representatives for the purposes of these
negotiations will be treated as Confidential Infonnation developed for
purpses of settlement, and will be exempt from discovery and
prduction, and are not admissible in any subsequent proceedings
without the concurrence of both Parties.
25.2 If the designated representatives have not reached a
resolution of the dispute within fiften (15) Days after the written notice
(or such longer period as agreed to in wrting by the Parties), then
either Part may commence a civil action. Any action will be brought in
the United States District Court for the District of Colorado if it has
subject matter jurisdiction over the action, and shall otherwse be
brought in the Denver District Court for the State of Colorado. The
Parties agree that such court have personal jurisdiction over them.
25.3 Waiver of Jurv Trial and Class Action. Each Part, to the
extent pennitted by law, knowingly, voluntarily, and intentionally waives
its right to a trial by jury and any right to pursue any claim or action
arising out of or relating to this Agreement on a class or consolidated
basis or in a representative capacit.
25.4 No cause of action regardless of the fonn of action, arising
out of, or relating to this Agreement, may be brought by either Part
more than two (2) years after the cause of action arises.
Page70f11
DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A49S-e6A40S6DBB79
26. Headinas. The headings used in this Agreement are for
convenience only and do not in any way limit or otherwse affct the
meaning of any terms of this Agreement.
27. Authorization. Each Part represets and warrants that:
A. the full legal name of the legal entity intended to provide and
receive the benefits and Services under this Agreement is
accurately set forth herein;
B. the person signing this Agreement has been duly authorized
. to execute this Agreement on that Part's behalf;
C. the execution hereof is not in conflict with law, the terms of
any charter, bylaw, articles of association, or any agrement to
which such Part is bound or affected; and
D. each Part may act in reliance upon any instruction,
instrument, or signature reasonably believed by it to be authorized
and genuine.
28. Third Part Beneficiaries. The terms, representations,
warranties and agreements of the Partes set forth in this Agreement
are not intended for, nor will they be for the benefi of or enforceable
by, any third part (including, without limitation, RESELLER's Affliates
and End Users).
29. Insurance. Each Part shall at all times during the term of
this Agreement, at its own cost and expense, carr and maintain the
insurance coverage listed below with insurers having a "Best's" raing
of B+XII with respect to liability arising from its operations for which
that Part has assumed legal responsibility in this Agreement. If a
Part or its parent company has assets equal to or exceeding
$10,000,000,000, that Part may utilze an Affliate captive insurance
company in lieu of a "Best's" rated insurer. To the extent that the
parent company of a Party is relied upon to meet the $10,000,000,000
asset threshold, such parent shall be responsible for the insurance
obligations contained in this Section, to the extent its affliated Part
fails to meet such obligations.
29.1 Workers' Compensation with statuory limits as required in
the state of operation and Employers' Liabilty insurance with limits of
not less than $100,000 each accident.
29.2 Commercial General Liabilty insurance covering claims for
bodily injury, death, personal injury or proert damage, including
coverage for independent contractor's protecton (required if any wo
wil be subcontracted), products and/or completed operations and
contractual liabilty with respect to the liabilty assumed by each Part
hereunder. The limits of insurance shall not be less than $1,000,000
each occurrence and $2,000,000 general aggregate limit.
29.3 "All Risk" Propert coverage on a full replacement cost basis
insuring all of such Part's personal propert situated on or within the
Premises.
29.4 Each Part may be asked by the other to provide
certificate(s) of insurance evidencing coverage, and thereafter shall
provide such certifcate(s) upon request. Such certificates shall:
A. name the other Part as an additional insured under
commercial general liabilty coverage;
B. indicate that coverage is primary and not excess of, or
contributory with, any other valid and collectible insurance
purchased by such Part; and
C. acknowledge severabilty of interest/cross liabilty coverage.
December 15, 2010/mms/ATG Corp.lID/CDS-101214-0002
Qwest Broadband for Resale 2011 MSA - (v10-15-10)
30. Communications Assistance Law Enforcement Act of .
1994. Each Part represents and warrnts that any equipment or
Servces provided to the other Part under this Agreement comply withthe CALEA. Each Part will indemnif and hold the other Part
harmless from any and all penalties imposed upon the other Party for
such noncompliance and wil at the non-compliant Part's sole cot
and expense, modify or replace any equipment, facilties or Service
provided to the other Part under this Agreement to ensure that such
equipment, facilities and Services fully comply with CALEA.
31. Entire Agreement. This Agreement (including all
Attchments and other documents referred to herein) constitutes the
full and entire understanding and agreement between the Parties with
reard to the subject of this Agreement and supersdes any prior
understandings, agreement, or representations by or between the
Parties, wrtten or oral, including but not limited to, any term sheet or
memndum of understanding entered into by the Parties, to the
extent they relate in any way to the subjects of this Agreement.
Notwthstanding the foregoing, certin elements used in combination
with the Service provided under this Agreement are provided by Qwest
to RESELLER under the terms and conditions of its interconnection
agreement, and nothing contained herein is intended by the Parties to
amend, alter, or otherwise modify those terms and conditions.
32. Proof of Authorization.
32.1 Each Part shall be responsible for obtaining and
maintaining Proof of Authorzation (POA), as required by applicable
federl and stte law, as amended from time to time.
32.2 Each Part wil make POAs available to the other Part upon
reuest. In the event of an allegation of an unauthorized change or
unauthorized servce in accrdance with all Applicable Law, the Party .
charged with the alleged infraction shall be responsible for resolving
such claim, and it shall indemnify and hold harmless the other Part for
any losses, damages, penalties, or other claims in connection with the
alleged unauthorized change or service.
33. General Terms.
33.1 Qwest wil provide general repair and maintenance services
on its facilities, including those facilties supporting Services purchased
by RESELLER under this Agreement, at a level that is consistent with
other coparable services provided by Qwest.
33.2 In order to maintain and modemize the network properly,
Qwest may make necessary modifications and changes to its network
on an as needed basis. Such changes may result in minor changes to
transmission parameters. Netwrk maintenance and modemization
activities wil result in transmission parameters that are within
transmission limit of the Servce ordered by RESELLER.
33.3 Network Security.
A. Protecion of Service and Propert. Each Part wil exercise
the same degree of care to prevent harm or damage to the other
Part and any third parties, its employees, agents or End User
Customers, or their propert as it employs to protect its own
employees, agents, End User Customers and propert, , but in no
case less than a commercially reasonable degree of care.
B. Each Part is responsible to provide security and privacy of
communicaions. This entails protecting the confidential nature of
Telecomunications transmissions between End User Customers
during technician work operations and at all times. Specifically,
no employee, agent or representative shall monitor any circitS.
PageSof11
DocuSign Envelope 10: 3F6AFC95-2B91-4F49-A498-C6A4086DBB79
.
.
.
except as required to repair or provide Service of any End User
Customer at any time. Nor shall an employee, agent or
representative disclose the nature of overheard converstions, or
who participated in such communications or even that such
communication has taken place. Violation of such security may
entail state and federal crminal penalties, as well as civil
penalties. RESELLER is responsible for covering its employeeson such securit requirements and penalties.
C. The Parties' netwrks are part of the natinal security
netwrk, and as such, are protected by federal law. Deliberate
sabotage or disablement of any portion of the underlying
equipment used to provide the netwrk is a violation of federal
statutes with severe penalties, especially in times of national
emerency or state of war. The Partes are responsible for their
employees with respect to such security requirements and
penalties.
D. Qwest shall not be liable for any losses, damages or other
claims, including, but not limited to, uncollecible or unbilable
revenues, resulting from accidental, errneous, malicious,
fraudulent or otherwise unauthorized use of Service or facilties
('Unauthorized Use"), whether or not such Unauthorized Use
could have been reasonably prevented by Qwest, except to the
extent Qwest has been notified in advance by RESELLER of the
existence of such Unauthorized Use, and fails to take
comercially reasonable steps to assist in stopping or preventing
such activity.
33.4.Responsibilty For Environmental Contamination.
A. Neither Part shall be liable to the other for any costs
whatsoever resulting fro the presence or release of any
Environmental Hazard that either Part did not introuce to the
affected work location. Each Part shall defend and hold
harmless the other Part and its respective offcers, directors and
employees from and against any losses, damages, claims,
demands, suits, liabilties, fines, penalties and expenses
(including reasonable attorneys' fes) that arise out of or result
from:
1. any Environmental Hazrd that the Indemnifying Part,
its contractors or agents introuce to the work locations; or
2. the presence or release of any Environmental Hazard
for which the Indemnifing Party is responsible under
Applicable Law.
B. In the event any suspect materials within Qwest-oed,
operated or leased facilties are identified to RESELLER by Qwest
to be asbestos containing, RESELLER will ensure that to the
extent any activities which it undertkes in the facilty disturb such
suspect materials, such RESELLER activities will be in
accrdance with Applicable Law, including without limitation,
local, state and federal environmental and health and safety
statues and regulations. Except for abatement activities
undertken by RESELLER or equipment placement activities that
result in the generation of asbestos-cntaining material,
RESELLER does not have any responsibilty for managing, nor is
it the owner of, nor does it have any liabilty for, or in connection
with, any asbestos-cntaining materiaL. Qwest agrees to
immediately notify RESELLER if Qwest undertakes any asbestos
control or asbestos abatement activities that potentially could
affect RESELLER personnel, equipment or operations, including,
but not limited to, contamination of equipment.
December 15, 2010/mmslATG Corp.lID/CDS-101214-0002
Qwest Broadband for Resle 2011 MSA - (v1Q-15-10)Page 9 of 11
DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A498-C6A4086DBB79
QWEST COMMERCIAL BROADBAND SERVICE AGREEMENT
ATTACHMENT 1- DEFINITONS
"Act" means the Communications Act of 1934 (47 U.S.C. 151 et. seq.), as
amended.
"Affliate" means a Person that (directly or indirectly) owns or controls, is
owned or controlled by, or is under common ownership or control with,
another person. For purposes of this paragraph, the term 'own' means to
own an equity interest (or the equivalent thereof) of more than 10 percnt.
"Applicable Law" means all laws, statutes, common law including, but not
limited to, the Act, the regulations, rules, and final orders of the FCC, a
state regulatory authority, and any final orders and decisions of a court of
competent jurisdiction reviewing the regulations, rules, or orders of the
FCC or a state regulatory authority.
"Asymmetric Digital Subscrber Line" (ADSL) is one form of the Digital
Subscriber Line technology, a data communications technology that
enables faster data transmission over copper telephone lines than a
conventional voice band modem can provide. It does this by utilzing
frequencies that are not used by a voice telephone cali.
"Asynchronous Transfer Mode" (ATM) is a cell-based switching technique
that uses asynchronous time division multiplexing. It encodes data into
small fixed-sized cells (cell relay) and provides data link layer services that
run over OSI Layer physical links. This difers frm other technologies
based on packet-switched networks (such as the Intemet Procol or
Ethernet), in which variable sized packets (known as frames when
referencing Layer 2) are used. ATM uses a Connection-oriented model
and establishes a virtual circuit between two endpoints before the actual
data exchange beins.
"Bill Date" means the date on which a Billng period ends, as identified on
the bil.
"Billng" involves the provision of appropriate usage data by one
Telecommunications Carrer to another to faciltate Customer Billng with
attendant acknowledgments and status report. It also involves the
exchange of information between Telecommunications Carriers to process
claims and adjustments.
"Carrer" or "Common Carrier" See Telecommunications Carrer.
"Communications Asistance for Law Enforcement Act' or "CALEA" refers
to the duties and obligations of Carrers under Section 229 of the Act.
"Confidential Information" means any information that is not generally
available to the public, whether of a technical, business, or other nature
and that: (a) the receiving Part knows or has reason to know is
confidential, proprietary, or trade secret information of the disclosing Party;
and/or (b) is of such a nature that the receiving Part should reasonably
understand that the disclosing Part desires to protect such information
against unrestricted disclosure. Confidential Information wil not include
information that is in the public domain through no breach of this
Agreement by the receiving Part or is already known or is independently
developed by the receiving Part.
"Customer" means the Person purchasing a Telecommunicaions Service
or an information service or both from a Carrier.
"Day" means calendar days unless otherwise specified.
"Due Date" means the specifc date on which the requested Service is to
be available to RESELLER or to RESELLER's End User Customer, as
applicable.
"End User Customet' means a third party retail Customer that subscribes
to a Telecommunications Service or information service provided by either
of the Parties or by another Carrier or by two (2) or more Carriers.
December 15, 2010/mmslATG Corp.lID/CDS-101214-0002
Qwest Broadband for Resale 2011 MSA - (v1Q-15-10)
"Environmental Hazard" means any substance the presence, u.
transport, abandonment or disposal of which (i) requires investigati
remediation, compensation, fine or penalty under any Applicable Law
(including, without limittion, the Comprehensive Environmental Response
Compensation and Liabilty Act, Superfnd Amendment and
Reauthorization Act, Resource Conservation Recovery Act, the
Occupational Safety and Health Act and provisions with similar purposes in
applicable foreign, state and local jurisdictions) or (ii) poses risks to human
health, safety or the environment (including, without limitation, indoor,
outdoor or orbital space environments) and is regulated under any
Applicable Law.
"Ethemet" is a family of frame-based computer networking technologies for
local area netwrks. The name came from the physical concept of the
ether. It defines a number of wiring and signaling standards for the
Physical Layer of the OSI networking model as well as a common
addressing format and Media Accss Control at the Data Link Layer.
"FCC" means the Federal Communications Commission.
Fiber to the x "(FTTx) is a generic term for any broadband network
architecture that uses optical fiber to replace all or part of the usual metal
local loop used for last mile telecommunications. The generic term
originated as a generalization of several configurations of fiber deployment,
including without limitaion, FTTN, FTTC, FTTB and FTTH, all starting by
FTT but diferentiated by the last letter, which is substituted by an x in the
generalization.
"Local Exchange Carrer" or "LEC" means any Carrier that is engaged in
the provision of Telephone Exchange Service or Exchange Accss. Such
term does not include a Carrer insofar as such Carrer is engaged in the
provision of Commercial Mobile Radio Service under Section 332(c) of the
Act, except to the extent that the FCC finds that such service should be
included in the definition of such term. .
"Miscellaneous Charges" mean charges that Qwest may assess in addit
to recurrng and nonrecurring rates under this Agreement, for activities
RESELLER requests Qwest to perform, activities RESELLER authorizes,
or charges that are a result of RESELLER's actions, such as cancellation
charges, additional labor and maintenance. Miscellaneous Charges are
not already included in Qwests recurrng or nonrecurrng rates under this
Agreement. Miscellaneous Charges shall be contained in or referenced
under this Agreement.
"Operational Support Systems" or "OSS" mean pre-ordering, Provisioning,
maintenance, repair and billng systems.
"Order Form" means service order request forms issued by Qwest, as
amended from time to time.
"Person" is a general term meaning an individual or association,
corporation, firm, joint-stock company, organization, partnership, trust or
any other form or kind of entity.
"Premises" refers to Qwests Central Ofce and Serving Wire Centers; all
buildings or similar structures owned, leased, or otherwse controlled by
Qwest that house its network facilities; all structures that house Qwest
facilties on public right-of-way, including but not limited to vaults
containing Loop concentrators or similar structures; and all land owned,
leased, or otherwise controlled by Qwest that is adjacent to these Central
Ofces, Wire Centers, buildings and structures.
"Proof of Authorization" or "POA" shall consist of verification of the End
User Customets selection and authorization adequate to document the
End User Customets selection of its local service provider and may take
the form of a third part verification format.
"Provisioning" involves the exchange of information between
Telecommunications carrers where one executes a request for a set of
products and services from the other with attendant acknowledgments andstatus reports. .
"Remote-Based DSL" refers to a network architecture where the DS .
serving End User Customers is not located in the Serving Wire Center.
Page 100f11
"
,DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A498-C6A4086DBB79
QWEST COMMERCIAL BROADBAND SERVICE AGREEMENT
ATTACHMENT 1- DEFINITIONS
. DSLAM is generally located in a cabinet outside of the Serving Wire
nter.
"Tariff as used throughout this Agreement refers to Qwest interstate
Tariff and stte Tariffs, price lists, and price schedules.
"Telecommunications Carrer" means any provider of Telecmunications
Servce, except that such term does not include aggregators of
Telecommunications Services (as defined in Section 226 of the Act). A
Telecommunications Carrer shall be treated as a Common Carrier under
the Act only to the extent that it is engaged in providing
Telecommunications Services, except that the FCC shall determine
whether the provision of fixed and mobile satellte service shall be trated
as comon carrage.
"Telecommunications Services" means the offering of telecommunications
for a fee directly to the public, or to such classes of user as to be
effectively available directly to the public, regardless of the facilties used.
"Very-high-bit rate Digital Subscriber Line" (VDSL) is a DSL technology
providing faster data transmission (up to 52 Mbitls downstream and 16
Mbitls upstream) over a single flat untwisted or twsted pair of copper
wires. These fast speeds mean that VDSL is capable of supporting high
bandwidth applications such as HDTV, as well as telephone services
(voice over IP) and general Intemet acc, over a single connection.VDSL is deployed over existing wiring used for POTS and lower-speed
DSL connectons.
Terms not otherwse defined here but defined in the Act and the orders and
the rules implementing the Act or elsewhere in this Agreement, shall have
the meaning defined there. The definition of terms that are included here
and are also defined in the Act, or its implementing orders or rules, are
intended to include the definition as set forth in the Act and the rules
implementing the Act..
.
December 15, 2010/mmslATG Corp.lID/CDS-101214-0002
Qwest Broadband for Resale 2011 MSA - (v10-15-10)Page 11 of11
DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A498-C6A4086DBB79
.1.0
.
.
ATTACHMENT 2- QWEST BROADBAND FOR RESALE 2011 SERVICE
Owest will provide wholesale Owest Broadband for Resale
rQBR") 2011 Service ("Service"), previously known as
Owest Digital Subscriber Linel rOwest DSL QÐ), Owest High
Speed Interne~, and Owest Cornmercial Broadband
Service, in conjunction with compatible and available Local
Exchange Resale and Owest Local Services Platfnnl8
(OLSpl!) services, accrding to the terms and conditions setforth in the OBR Agreement betwen the Parties (the
"Agreement) and in this Attchment 2 to the Agreement,
which is incorporated into and made a part of the Agreement
(this "Attchment). Except as otherwse set forth in thisAttchment, capitalized tenns used but not otherwse
defined herein have the definitions assigned to them in the
Agreement.
1.0.1 Many specific Service tenns and conditions,
including but not limited to availabilty, available products
and speeds, additional tenns and conditions, rates,
implementation, and process infonnation is contained in the
Owest Wholesale Product Catalogue (PCAT) which is
incorporated herein by reference.
1.1 Service Description
1.1.1 The Service utilzes a number of data transport
solutions, including without limittion, Rate Adaptive Digital
Subscriber Line (RADSL) and Asynchronous Transfer Mode
(ATM) technologies, Asymmetric Digital Subscriber Line
(ADSL2+) and Very-high-bit rate Digital Subscriber Line
(VDSL2) Ethernet technologies to allow transmission of
voice and data over a single local loop and provides End
User Customers continuous, dedicated accss to an Internet
Service Provider (ISP). For any Service utilizing Ethernet
technologies, Owest must be the ISP.
1.1.2 The Service is available with compatible and
available Resale and OLSP products which are purchased
separately under applicable service agreements and/or
Interconnection Agreements.
1.1.3 Stand Alone Service is strictly a data service and
does not include analog voice transmission capabilties or
911 services. Stand Alone Service is available only under
the Resale process.
1.2 Scope of Agreement
As of the Effective date, the tenns and conditions, if any,
under which RES ELLER may have previously purchased a
functonally similar Owest wholesale high speed internet
service with Resale or OLSP services, are tenninated and
Owet wil provide Service only pursuant to the tenns and
conditions of the Agreement and this Attchment.
2.0 Terms and Conditions
2.1 Qwest provides this Service at rates and term and
conditions that Customer agrees are just and reasonable.
2.2 Service is dependent upon OLSP and Resale product
compatibilty and end offce availabilty as defined in the
online Owet Wholesale PCAT.
2.3 RESELLER may order new Servce where qualified.
RES ELLER may also convert existing Owest retail End User
Customers with Owest retail high speed internet service as
provided herein and in the Owest Wholesale PCAT.
December 15, 2010/mmslATG Corp.lID/CDS-101214-0002
Attachment 2 - OBR 2011 Service - (v10-15-10)
2.4 Owest retail high speed intemet service markting, sales,
and/or pricing promotions are not available under the
Agrement.
Intentionally Left Blank.
RESELLER is responsible for all work activities at the End
User Customer premises. All negotiations with the premises
End User Customer and or premises owner are solely the
responsibilty of RESELLER.
Customer Provided Equipment (CPE) and Minimum
Service Requirements The end-user customer must be
equipped with certain CPE including computers, softare,
and modems that meet minimum system requirements.
2.5
2.6
2.7
2.7.1 RESELLER will be solely responsible for Tier 1
Technical Support and for providing its end-users with CPE
(including, without limitation, computers, softare, modems,filters and installation instructions). RESELLER may,
however, purchase certin modems, filters and installation
instructions from Owest pursuant to the tenns of the
Agreement and this Attachment.
2.7.2 RESELLER wil be responsible for providing
accurate address infonnation for modem fulfillment.
2.7.3 Installng or using the Service with CPE that does
not meet minimum system requirements limits functionality,
availabilty, and support and may damage CPE, softre,
peripherals or data.
2.7.4 Following conversion of existing retail Owest high
speed internet service to Owest Commercial high speed
intemet service, existing and installed CPE wil not be
maintained or changed by Owest.
2.8
2.7.5 Further infonnation on Service-copatible CPE,including qualified modems and minimum system
requirements is provided in the Owest PCAT.
Service Conditions RES ELLER and RESELLER's end
user(s) are subject to the Owest high speed internet
Subscriber Agreement, Accptable Use Policy (AUP), and
Excessive Use Policy (EUP) provided in the Owst PCAT.
The Subscriber Agreement, AUP, and EUP are subject to
change without notice.
Broadband Service Technology In certain areas, Owest is
changing its netwrk to support newer high speed intemet
functionality. These changes may include, among other
things, deployment of Remote-Based DSL, which may
interfere with or degrade existing Service or may limit
availabilty of new ATM-based Service.
2.9
2.10 Service Intenerence Netwrk changes, including without
limitation, deployment of Remote-Based DSL may interfere
with or degrade RESELLER's End User Customets existing
ATM-based Service. Upon receipt of a trouble report
involving interference with or degradation of Service to any
of RESELLER's End User Customers, Owest wil attempt to
correct the reported trouble by moving the Service to a new
binder group, if available. If moving the Service to a new
binder grop does not correct the reported trouble, Owest
may detennine that the existing ATM-based Service is no
longer compatible with Remote-Based DSL and Owest may
immediately, and at its sole and absolute discretion,
withdraw the Service on an individual circuit basis. Owest
wil incur no liabilty to RESELLER for degradation or
withdrawal of Service .caused by netwrk changes, including
Page 1 of2
DocuSign Envelope ID: 3F6AFC95-2B91-4F49-A498-C6A4086DBB79
ATTACHMENT 2- QWEST BROADBAND FOR RESALE 2011 SERVICE
without limitation, as a result of deployment of Remote-
Based DSL.
2.11 awest reserves the right at any time to modify or change the
name(s) of the Service.
Nothing in the Agreement or in this Attchment precludes
awest from withdrawing or discontinuing the availabilty of
any high speed intemet service and/or any related
technology from its retail end user customers. In the event
of any such withdrawal and/or discontinuation of high speed
intemet service and/or any related technology, it is expressly
agreed and understood that Qwst may also, in its sole and
absolute discretion, withdraw the availabilit of any
equivalent Servce and/or any equivalent supporting
technology under the Agreement.
Changes to Service Availabilty and Rates
2.12
3.0
3.0.1 At any time, effecive upon posting to the Owest
Wholesale PCAT or notification, awest may introduce new
Services, modify existing Services, and/or any of the tenns
and conditions contained in the Owest Wholesale PCAT
and/or reduce monthly recurrng charges (MRCs) and/or
non-recurrng charges (NRCs).
3.0.2 Upon thirt (30) Days notice, Owest may increase
MRCs and/or NRCs for Existing Services. Owest may
reduce the foregoing notice period if such increase is based
upon Regulatory Activity.
4.0
4.1
3.0.3 Upon ninety (90) Days notice, the availabilty of
Service(s) may be withdrawn if awest has also withdrawn
the availabilty of similar high speed intemet service from its
retail end user customers. Owest may reduce the foregoing
notice period if such withdrawal is based upon Regulatory
Activity.
Rates and Charges
Rates for the Service, except as identified below, are set
forth in Rates Cards published at ww.qwest.comllegal.
Rates are subject to change.
4.2 Under the Agreement, RESELLERs wil receive thediscounts published by awest at
http://ww.gwest.com/wholesale/clecslcommercialagreemen
ts.html (or as may be published by other means upon notice
given in accordance with the terms set forth in the
Agreement); provided that in no event will such discounts be
less than a 20% discount off of the Business and Residential
Rate MRCs, a 50% discount off of the standard Activation
Charge, and a 25% discount off of the modem charge, in
each case based on rates provided in the Rate Cards.
These discounts wil not apply to any other rates provided in
the Rate Cards or to Services published in the Owest
Wholesale PCAT that are offered to RESELLERs at
wholesale rates. Owest and RES ELLER agree that (i)
awest may immediately increase the discounts published
pursuant to this Section 4.2, at its sole and absolute
discretion, upon notice given in accordance with the tenns
set forth in the Agreement, and (ii) awest may subsequently
decrease such published discounts at any time, at its sole
and absolute discretion, upon thirt (30) Days notice given in
accrdance with the tenns set forth in the Agreement;
provided, however, that the discounts may not, unless
otherwise agreed to in writing by awest and RESELLER, be
decreased to a percentage lower than the percentages set
forth above in this Section 4.2.
December 15, 2010/mms/ATG Corp./ID/CDS-101214-0002
Attachment 2 - aBR 2011 Service - (v10-15-10)
4.3 RESELLER is responsible for Biling its End User Customers .
all Service Miscellaneous Charges and surcharges required
of RES ELLER by statute, regulation or otherwise required.
4.4 Servce has a one month minimum service period at the line
level. This one month minimum service period and all
attendant charges apply even if RESELLER does not retain
Servce for the entire month. Services are biled month to
month and shall, after the one month minimum service
period is satisfied, be pro-rated for partial months based onthe number of days servce was provided.
5.0 Systems and Interfces
awest and RESELLER shall continue to support the use of
existing Operational Support Systems (OSS) interfaces and
current OSS business rules for the Service as the same may
evolve over time.
5.1
5.2 The Service is ordered via a Local Servce Request (LSR) as
described in the awest Wholesale PCAT.
5.3 Prior to placing an order on behalf of each End User
Customer, RESELLER shall be reponsible for obtaining and
shall have in its posession a Proof of Authorization.
5.4 When Owest or another provider of choice, at the End User
Customets request, orders the disconnection of the End
User Customets existing Service with RESELLER, Owest
will render its closing bil to RESELLER effective with the
disconnecon. Owest will notify RESELLER by FAX, OSS
interface, or other agreed upon processes when an End
User Customer moves to Owest or another service provider.
awest shall not provide RESELLER or Owest retail.
personnel with the name of the other service provider
selected by the End User Customer.
6.0 Maintenance and Repair
6.1 awest will maintain its facilities and equipment that comprise
the Service provided to RESELLER. RESELLER or its End
User Customers may not rearrnge, move, disconnect or
attempt to repair awest facilities or equipment, other than by
connecton or discnnection to any interface between awest
and the End User Customer, without the written consent of
awest.
awest shall provide general repair and maintenance
services on its facilties. Without limiting the generality of the
foregoing, awest shall repair and restore any equipment or
any other maintainable component that may adversely
impact RESELLER's use of the Service, except that awest
may not be able to restore Service in the event of
interference or degradation caused by deployment of
Remote-Based DSL or due to the withdrawal and/or
discontinuation of retail high spee internet service and/or
any related technology. Owest and RESELLER shall
cooperate with each other to implement procedures and
processes for handling service-affecting events. There shall
be no charge for the services provided under this section
except as set forth in the Owest Wholesale PCAT.
6.2
.
Page 2 of2