Concierge Service – Nevada Bell

AGREEMENT FOR CONCIERGE SERVICE

This Agreement (“Agreement”) sets forth the terms and conditions under which Nevada Bell Telephone Company, d/b/a SBC Nevada (“SBC”), shall provide to CUSTOMER, SBC Long Distance, Inc. , service order advising and service order writing services (“ConciergeService”) pursuant to the terms of this Agreement pursuant to Section 5 below for the following CUSTOMER ACNAs: SBZ.

  1. SCOPE OF PRODUCT

SBC will provide Concierge Service to CUSTOMER. Concierge Service is ordered as either Standard or Special Project Concierge Service (the appropriate selection shall be checked by the customer at the execution of this Agreement):

Standard Concierge Service shall consist of:

1.) the partial or complete processing of an Access Service Request (ASR) pursuant to 2.2 below,via a web ordering tool, on behalf of CUSTOMER, for the following special access point-to-point or ring services to be purchased from SBC: voice grade, DS0, DS1, DS3, OC3, OC12, OC48 and OC192 and for switched access services to be purchased from SBC except for those special access and switched access services related to the following categories, including but not limited to, grooms, rolls and disconnects, which categories of services are excluded from Concierge Service;

2.) completing an ASR at the request of CUSTOMER for the services included in 1) above and;

3.) providing a help desk service to assist CUSTOMER in completing an ASR for the services included in 1) above.

X Special Project Concierge Service shall consist of :

1.) the partial or complete processing of a Access Service Request (ASR) pursuant to 2.2 below, via a web ordering tool, on behalf of CUSTOMER, for the following services to be purchased from SBC: [list the specific services] , except for those [listed services] related to the following categories, including but not limited to, grooms, rolls and disconnects, which categories of services are excluded from Concierge Service;

2.) completing an ASR at the request of CUSTOMER for the services included in 1) above and;

3.) providing a help desk service to assist CUSTOMER in completing an ASR for the services included in 1) above,

for the following Special Project (Special Project) only: The transfer of billing of 3 DS1 circuits to CUSTOMER from another access services customer.

  1. CUSTOMER’S OBLIGATIONS
  2. CUSTOMER agrees to purchase special access and/or switched access services in section 1 above from the appropriate federal or state tariffs that reference the services listed in section 1 above.
  3. CUSTOMER agrees to provide SBC with detailed information as requested by SBC to assist SBC in creating and processing a ASR service order via the SBC web ordering tool in conjunction with CUSTOMER should CUSTOMERrequest SBC toassist in writingor completing the ASRservice order on its behalf. Once the detailed information is input, CUSTOMER can view the ASR service order via the web tool. If there is any inaccurate information in the ASR service order, CUSTOMER agrees to contact and advise SBC immediately. SBC will complete the ASR service order with agreed upon due date intervals, treating the date SBC receives all correct and necessary ordering information as the application date. SBC shall not be responsible for any inaccuracies or errors in the ASR service order that are not corrected by CUSTOMER pursuant to the above procedures.
  4. CUSTOMER shall provide SBC with access to a USERID and password of the CUSTOMER for the web ordering tool referenced in 2.2 preceding so that SBC may access and complete CUSTOMER’s ASR service order information on behalf of CUSTOMER to the extent and when deemed necessary by SBC.
  5. CUSTOMER shall make all payments for the special and/or switched access servicesordered as per paragraph 2.1 above from SBC,as well as for Concierge Service,on or before the due dates of any billings and shall not withhold payment based on any disputes, and hereby waives any rights it may have pursuant to applicable law, to withhold payment based on any disputes .
  6. CUSTOMER agrees to provide SBC with one Billing Account Number (BAN) for the purposes of SBC to render billing to CUSTOMER for Concierge Service.
  1. SBC’S OBLIGATIONS
  2. The Parties understand and agree that SBC is not obligated to provide Concierge Service to CUSTOMER under the terms of this Agreement unless CUSTOMER purchases special and/or switched access services as per paragraph 2.1 above.
  3. SBC will provide support for Concierge Services Monday through Friday from 8:00 am to 5:00pm Central time excluding all recognized holidays.
  4. SBC will not design or be responsible for any part of CUSTOMER’s network as part of this Agreement.
  5. SBC may provide CUSTOMER with Help Desk ASR writing support related to the special and/or switched access services described in subsection 1) of Section 1. The Help Desk is available to answer non-technical questions about the completion of ASRs, such as how to fill out a ASR, ASR processing questions or others that do not require an account manager or technical sales support manager. If SBC determines CUSTOMER needs more technical assistance than can be provided by the Help Desk service representative, CUSTOMER may be directed to a more appropriate account team member available to CUSTOMER.
  1. PRICE
  2. For Standard Concierge Service CUSTOMER agrees to pay SBC N/Aper every ASR processed or completed by SBC or filed by CUSTOMER during the term of this Agreement whether Concierge Service is used in the processing of the ASR or not, except that ASRs for grooms, rolls and disconnects are not subject to Concierge Service and will not be assessed a Concierge Service charge
  3. For Special Project Concierge Service CUSTOMER agrees to pay SBC $75per every ASR processed or completed by SBC associated with Special Project.
  4. For both Standard Concierge Service and Special Project Concierge Service CUSTOMER agrees to pay any and all additional service order charges, expedite fees and administration charges associated with the services as per the tariffs in section 2.1 above.
  1. TERM
  2. For Standard Concierge Service this Agreement is effective from N/A to N/A unless either party elects to terminate the Agreement without cause effective upon thirty (30) days written notice to the other Party. However, SBC shall have the right to immediately terminate this Agreement effective upon five (5) days written notice to CUSTOMER if any of the following events occur:

(1)Any of the rates, terms and/or conditions herein, or any of the laws or regulations that were the basis or rationale for such rates, terms and/or conditions in the Agreement are invalidated, modified or stayed by any action of any state or federal regulatory or legislative bodies or courts of competent jurisdiction;

(2)CUSTOMER makes an assignment for the benefit of creditors;

(3)An Order for Relief under Title 11 of the United States Code is entered by any United States Court against CUSTOMER;

(4)A trustee or receiver of any substantial part of the CUSTOMER’s assets is appointed by any court;

(5)CUSTOMER sells all or substantially all of CUSTOMER’s inventory or assets other than any sale in the ordinary course of business;

(6)CUSTOMER attempts to make an unauthorized assignment of this Agreement;

(7)CUSTOMER fails to comply with any provision of this Agreement.

5.2.For Special Project Concierge Service this Agreement is effective from September 1, 2004 to the agreed upon completion of the Special Project or March 31, 2005 whichever occurs first unless either party elects to terminate the Agreement without cause effective upon ten (10) days written notice to the other Party. However, SBC shall have the right to immediately terminate this Agreement effective upon five (5) days written notice to CUSTOMER if any of the following events occur:

(1)Any of the rates, terms and/or conditions herein, or any of the laws or regulations that were the basis or rationale for such rates, terms and/or conditions in the Agreement are invalidated, modified or stayed by any action of any state or federal regulatory or legislative bodies or courts of competent jurisdiction;

(2)CUSTOMER makes an assignment for the benefit of creditors;

(3)An Order for Relief under Title 11 of the United States Code is entered by any United States Court against CUSTOMER;

(4)A trustee or receiver of any substantial part of the CUSTOMER’s assets is appointed by any court;

(5)CUSTOMER sells all or substantially all of CUSTOMER’s inventory or assets other than any sale in the ordinary course of business;

(6)CUSTOMER attempts to make an unauthorized assignment of this Agreement;

(7)CUSTOMER fails to comply with any provision of this Agreement.

  1. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY

SBC makes no warranty of any kind as to any services offered hereunder, either expressed or implied, including, but not limited to, all implied warranties of merchantability and fitness for a particular purpose.

SBC’s AGGREGATE LIABILITY TO CUSTOMER FOR ALL DAMAGES IS LIMITED TO AN AMOUNT NOT TO EXCEED THE CHARGES FOR THE PARTICULAR SERVICES GIVING RISE TO THE LIABILITY DURING THE CONTRACT TERM OR RENEWAL TERM IN WHICH THE LIABILITY AROSE. CUSTOMER RELEASES SBC FROM ANY LIABILITY IN EXCESS OF THIS AMOUNT. IN NO EVENT SHALL SBC BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES, PROFITS OR SAVINGS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER WAIVES ANY CLAIM AGAINST SBC FOR PUNITIVE OR EXEMPLARY DAMAGES. WITHOUT IN ANY WAY LIMITING THE APPLICATION OF THE PARAGRAPHS ABOVE, THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IN THIS SECTION IS CUSTOMER’S EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER CONTRACTUAL REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  1. NOTICE AND DEMANDS

Except as otherwise provided under this Agreement, all notices, demands, or requests which may be given by any party to the other party shall be in writing and shall be deemed to have been duly given on the date delivered in person or via express service or on the date deposited, postage prepaid, in the United States mail via Certified Mail, return receipt requested, to the respective parties and addressed as follows:

To: / SBC Long Distance / To: /

SBC Nevada

5850 W. Las Positas Blvd. / Howard Bell – Account Manager
Pleasanton, CA 94588 / 370 3rd Street room 401
San Francisco, CA 94107

If personal delivery is selected as the method of giving notice under this Section, a receipt of such delivery shall be obtained. The address to which such notices, demands, requests, elections or other communications is to be given by either party may be changed by written notice given by such party to the other party pursuant to this Agreement.

  1. TAXES

CUSTOMER shall be responsible for payment of all sales, use or other taxes of a similar nature imposed on

SBC’s performance of services under this Agreement, excluding any income tax payable by SBC on its

revenues from such services. SBC agrees to use reasonable efforts to invoice CUSTOMER for such taxes

at the time SBC invoices CUSTOMER for the underlying services performed; provided, however, that this

obligation shall not be deemed to prohibit SBC from invoicing for such taxes at a later date to correct

errors or omissions from the earlier invoice. If any federal, state or local jurisdiction notifies SBC that any

additional sales, use or other taxes (including interest, penalties and surcharges thereon) are due as a result

of SBC’s performance under this Agreement, CUSTOMER shall promptly reimburse SBC for such tax,

interest, penalty and surcharge upon notice thereof.

  1. MISCELLANEOUS

9.1 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the state of Texas.

9.2 Force Majeure The obligations of SBC are subject to force majeure and SBC shall not be in default under this Agreement if any failure or delay in performance is caused by work stoppage or other labor problems; accident; acts of God; fire; flood; adverse weather conditions; material or facility shortages or unavailability not due to any fault of SBC not resulting from its failure to timely place orders therefore; lack of transportation; condemnation or exercise of rights of eminent domain; or civil disorder; or any other cause beyond the reasonable control of SBC.

9.3 Assignment Any assignment, in whole or in part, by CUSTOMER of any right or obligation or of any interest hereunder without the written consent of SBC shall be void. All obligations and duties of any party under this Agreement shall be binding on all successors in interest of such party for the duration of this Agreement.

9.4 Entire Agreement This Agreement, including SBC’s specifications guidelines referred to in this Agreement and as modified from time to time, constitutes the entire and exclusive statement of the agreement between the parties with respect to its subject matter and there are no oral or written representations, understandings, or agreements relating to this Agreement which is not fully expressed herein. The parties agree that any other terms or conditions shall not be incorporated herein or be binding unless expressly agreed upon in writing by authorized representatives of the parties.

9.5 Survivability Notwithstanding expiration or termination of this Agreement, the provisions of the Agreement which by their nature or context are required or intended to survive shall survive and remain in full force and effect.

9.6 Compliance with Law Both parties agree that they will comply with the provisions of all applicable federal, state and local laws, ordinances, regulations and codes with which they are obligated to comply in their performance hereunder. The services provided pursuant to this Agreement are subject to any and all applicable tariffs, court orders, laws, and regulations. In the event of a conflict between the terms of this Agreement and any applicable tariff, court order, law or regulation, the applicable tariff, court order, law or regulation shall govern.

9.7 Publicity CUSTOMER shall not identify, either expressly or by implication, SBC or its corporate affiliates

or use any of their names, trademarks, trade names, service marks or other proprietary marks in any

advertising, press releases, publicity matters or other promotional materials without SBC’s prior written

consent.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date written below.

SBC By:

______

Printed Name: _David Browne______

Title: _Director – Industry Markets______

Date: 10/08/2004

CUSTOMER By:

______

Printed Name: __Joe Carrisalez______

Title: __Executive Director - Regulatory______

Date: __10/13/2004______

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