SBC Affiliate Oversight GroupContract Number: 3ST
General Agreement
SBC Local Exchange Companies and SBC IP Communications, Inc.
GENERAL AGREEMENT
BETWEEN
SBC LOCAL EXCHANGE COMPANIES:
NEVADA BELL TELEPHONE COMPANY(Modification 1),
PACIFIC BELL TELEPHONE COMPANY(Modification 1),
SOUTHWESTERN BELL TELEPHONE, L.P.(Modification 1),
THE SOUTHERN NEW ENGLAND TELEPHONE COMPANY,
ILLINOIS BELL TELEPHONE COMPANY,
INDIANA BELL TELEPHONE COMPANY, INCORPORATED,
MICHIGAN BELL TELEPHONE COMPANY,
THE OHIO BELL TELEPHONE COMPANY,
WISCONSIN BELL, INC.
(SELLERS)
AND
SBC IP COMMUNICATIONS, INC. (BUYER)
PREAMBLE
This agreement is entered into among Nevada Bell Telephone Company, Pacific Bell Telephone Company, Southwestern Bell Telephone, L.P., The Southern New England Telephone Company, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, The Ohio Bell Telephone Company, and Wisconsin Bell, Inc. (collectively the “SBC Local Exchange Companies”), and SBC IP Communications, Inc.
- SERVICES
Service transactions will be processed in accordance with applicable Section 272 Federal and State Affiliate Transaction Requirements.
“Services” can include, but are not limited to:
- Plant Specific Support
- Plant Nonspecific Support
- Customer Support
- Corporate Support
- Operational Support
- ASSETS
Asset transactions will be processed in accordance with applicable Section 272 Federal and State Affiliate Transaction Requirements.
- BILLING
a. The party providing the service (“Seller”) shall bill the receiving party (“Buyer”) on a routine basis (e.g., monthly, quarterly, or annually) in arrears. Invoices shall be due and payable in the month the invoice is received. Notwithstanding any other provision herein, all charges of any kind for Seller’s Services shall be in accordance with the affiliate transaction rules adopted by the Federal Communications Commission (‘FCC”) presently in 47 C.F.R 32.27, as the same may be amended from time to time, and any other applicable affiliate transaction rules which may apply.
b. Billing for expenses which can neither be directly assigned nor allocated on a cost-causative basis shall be determined in accordance with the standards and procedures for the apportionment of joint and
common costs contained currently in 47 C.F.R. Section 64.901, as the same may be amended from time to time.
- PERFORMANCE STANDARDS
a. Qualified personnel shall perform services provided hereunder promptly, with diligence and in a professional manner. Buyer shall promptly notify Seller of any instance where Services are considered to be unsatisfactorily performed. If Seller finds such claim to be accurate, it shall act to correct such unsatisfactory Services.
b. Seller warrants that the quality of Services provided hereunder shall either be equal to or exceed that of like services which Buyer provided to itself or obtained from third parties immediately prior to the effective date of this Agreement. Seller also agrees to provide the quality of services, which may be reasonably requested by Buyer, from time to time, during the term of this Agreement.
- RECORDS AND AUDIT
a. In order to enable Buyer to comply with the requirements of Parts 32 and 64 of the Rules of the FCC pertaining to affiliate transactions and any similar state or federal requirements, Seller shall maintain, and shall provide to Buyer upon request, complete and accurate support data or documentation and records related to all amounts billable to and payments made by Buyer hereunder in accordance with generally accepted accounting principles. Seller shall notify Buyer prior to destroying or otherwise permanently disposing of such records and, at Buyer’s option, shall transfer such records to Buyer.
b. Seller further agrees that Buyer shall have the right through its accredited representatives to inspect and audit, during normal business hours, the charges invoiced to Buyer under this Agreement. Should Buyer request an inspection or audit, Seller will make available the pertinent records and files. This right to inspect and audit shall not be limited to validating the accuracy of Seller’s resources utilized and associated charges to Buyer, but include without limitation, the right to inspect and audit (i) the method of determining cost data provided to Buyer; (ii) any cost or pricing data, records or other information pertaining to similar sales to nonaffiliated third party buyers; and (iii) Seller’s accounting polices or practices. Seller shall include any of the aforementioned information on its invoices and/or other billing documents, as Buyer shall reasonably require. All costs directly attributable to such inspection and/or audit shall be paid by Buyer.
- PROPRIETARY INFORMATION
a. The parties agree that in order to perform the services, functions and activities provided under this Agreement, it may be necessary for the parties to disclose or otherwise make available to each other information, by example, but not limited to, any specifications, drawings, sketches, models, samples, data, customer listings, computer programs or documentation or other technical or business information, which each party considers to be confidential, proprietary business information (hereinafter “Proprietary Information”). Proprietary Information of the Seller or the Buyer further means any nonpublic proprietary information or technology used in each other’s respective business and any material evidencing the same and in accordance with Section 272 FCC rulings.
b. Subject to exceptions noted hereinafter in this Section, all information which the parties disclose or otherwise make available to each other will be considered Propriety Information, will be protected in the same
manner as the Receiving Party protects its own Proprietary Information, and will be used only for the purposes of performing under this Agreement. Such protective efforts will be at least commercially reasonable.
c. The Seller and the Buyer agree not to disclose or to otherwise make available the other party’s Proprietary Information unless such information: (a) is or becomes generally available to the public; (b) is or becomes known to it without restrictions on its use by another party having the legal right to disclose such information’ (c) is independently developed by the Receiving Party; or (d) is subsequently released without restriction by the Disclosing Party.
d. It is understood that either party may be required to furnish Proprietary Information received (“Receiving Party”) from the other party (“Disclosing Party”) to judicial, regulatory or administrative bodies. In such event, the Receiving Party will promptly notify the Disclosing Party of such requirement and will cooperate with the Disclosing Party should the Disclosing Party desire to seek a protective schedule to prevent the public disclosure of its Proprietary Information.
e. Upon termination of this Agreement, either party may request, in writing, that all originals and copies of its Proprietary Information received under this Agreement, or the applicable Schedule, be returned promptly. Each party’s obligations with respect to Proprietary Information will survive the term of this Agreement for a period of two (2) years.
- ASSIGNMENT
Neither party may assign its obligations, rights and interest under this Agreement without first obtaining the written approval of the other party. All obligations and duties of any party under this Agreement shall be binding on all successors in interest and assigns of such party. The domestic laws of the State of Texas will govern the construction, interpretation and performance of this Agreement.
- INDEPENDENT CONTRACTORS
Seller hereby represents and warrants to Buyer that:
- Seller is engaged in an independent business and will perform all obligations under this Agreement as an independent contractor and not as the agent or employee of Buyer;
- Seller’s personnel performing Services shall be considered solely the employees of Seller and not employees or agents of Buyer;
- Seller has and retains the right to exercise full control of and supervision over the performance of the Services and full control over the employment, direction, assignment, compensation, and discharge of all personnel performing the Services;
- Seller is solely responsible for all matters relating to compensation and benefits for all of Seller’s personnel who perform Services. This responsibility includes, but is not limited to, (i) timely payment of compensation and benefits, including, but not limited to, overtime, medical, dental, and any other benefit, and (ii) all matters relating to compliance with all employer obligations to withhold employee taxes, pay employee and employer taxes, and file payroll tax returns and information returns under local, state and federal income tax laws, unemployment compensation insurance and state disability insurance tax laws, social security and Medicare tax laws, and all other payroll tax laws or similar laws with respect to all Seller personnel providing Services; and,
- Seller will indemnify, defend, and hold Buyer harmless from all Liabilities, costs, expenses and claims related to Seller’s failure to comply with the immediately preceding paragraph.
9.COMPLIANCE WITH LAWS
a. Both parties agree to comply with the provisions of the Fair Labor Standards Act of 1938, as amended, and all other applicable federal and state laws, rules, regulations and codes with which they are obligated to comply in the performance of this Agreement, including the procurement of permits and certificates where needed. Both parties further agree not to discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age or handicap, and to comply with all applicable federal and state laws, orders, rules and regulations on this subject during the performance of this Agreement.
b. This Agreement shall be subject to any and all applicable federal, state and local laws, regulations, and ordinances, as well as any applicable tariffs. To the extent necessary, the parties agree to amend this Agreement to conform to the requirements of any such laws, regulations, ordinances or tariffs.
c. Both Parties agree to comply with all laws and regulations regarding the export of information outside the United States. The parties shall not knowingly transmit, directly or indirectly, in whole or in part, any of the Proprietary Information or export, directly or indirectly, any product of the Proprietary Information in contravention of the laws of the United States or the laws of any other country governing the aforesaid activities. Without first obtaining a valid export license, neither party will transfer any Proprietary Information received hereunder, or any product made using the Proprietary Information, to any country prohibited from receiving such data or product by the U.S. Department of Commerce Export Administration Regulations, as amended
- SEVERABILITY
If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of Seller and Buyer shall be construed and enforced accordingly.
- TAXES
a. The prices applicable to products and services under this Agreement shall include all taxes except applicable state sales and use taxes, which taxes Buyer will pay provided they are added to the prices and stated as separate items on and at the time the applicable invoice is submitted by Seller. If Buyer determines that such taxes are not payable or payable at a lesser amount, Seller shall make payment in accordance with Buyer's determination and Buyer shall be responsible for any tax, penalties, and interest due as a result of Buyer's determination.
b. If Buyer claims exemption from any tax, Buyer shall furnish Seller with i) any required, valid Buyer exemption certificate issued by each taxing jurisdiction or entity where such a certificate is required and/or, iii) where an exemption is provided, but the law does not provide an exemption procedure, Buyer shall furnish a letter from a Director or higher level executive, describing the exemption and Identifying the applicable law that allows the exemption without an exemption certificate. Seller shall not invoice Buyer for any taxes, which are exempted based upon such documentation.
c. If any taxing authority advises Seller that it intends to audit Seller with respect to any taxes for which Buyer is obligated to reimburse Seller under this Agreement, Seller shall promptly notify Buyer, allow Buyer to participate on an equal basis in the with respect to those taxes, and inform Buyer on a regular basis as to the progress of such audit.
d. Seller agrees to pay, and to hold Buyer harmless from and against, any penalty, interest, additional tax, or other charge that may be levied or assessed as a result of the delay or failure of Seller, for any reason, to pay any tax or file any return or information required by law, rule or regulation or by this Agreement to be paid or filed by Seller
- LIMITATIONS OF LIABILITY
In no event shall either party be liable for incidental, consequential, special or indirect damages whether arising out of breach of warranty, breach of contract, negligence, strict tort liability or otherwise attributable to or resulting from its performance hereunder.
- SURVIVAL OF OBLIGATIONS
The party’s obligations hereunder which by their nature would continue beyond the termination or expiration hereof, including, by way of illustration only and not limitation, those in the clauses entitled LIMITATIONS OF LIABILITY, SEVERABILITY and PROPRIETARY INFORMATION, will survive the termination or expiration hereof.
- NOTICES
Any notice, demand, acknowledgment or other communication which, under the terms of this Agreement, must or may be given or made by either party, shall be addressed to:
For Southwestern Bell Telephone, L.P., Pacific Bell Telephone Company, and Nevada Bell Telephone Company:
Kay Poston
Associate Director – Affiliate Issues
Three SBC Plaza, Room 1513
Dallas, TX 75202
For The Southern New England Telephone Company:
Kristine Noli
Accounting Manager
310 Orange, Room 3L7
New Haven, CT 06510
For Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, The Ohio Bell Telephone Company, Wisconsin Bell, Inc.:
Peggy Dunn Bills
Associate Director-Affiliate Issues
2000 West SBC Center Dr. Z1, Room 2F67D
Hoffman Estates, IL 60196
SBC IP Communications, Inc.
President SBC-IP
1010 N. St. Mary’s, Room 13J
San Antonio, TX 78215
- TERM AND TERMINATION
This agreement shall be effective April 1, 2004 and shall continue in effect until terminated by either party as provided below. Either party may terminate this Agreement in whole or in part upon giving at least thirty (30) days advance written notice to the other party.
- ENTIRE AGREEMENT
The terms contained in this Agreement constitute the entire agreement between Buyer and Seller with regard to the items discussed herein and may not be modified except in writing signed by Buyer and Seller. The provisions of this Agreement superseded all prior oral and written quotations, communications, agreements and understandings of the parties with respect to the subject matter of the Agreement.
SELLERS:
NEVADA BELL TELEPHONE COMPANY
PACIFIC BELL TELEPHONE COMPANY
SOUTHWESTERN BELL TELEPHONE, L.P.
______
NAME: __Kay Poston______
TITLE: Associate Director-Affiliate Issues__
DATE: ___04/1/004______
THE SOUTHERN NEW ENGLAND TELEPHONE COMPANY
______
NAME: __Don McGregor______
TITLE: Vice President-Finance SNET______
DATE: ____03/30/04______
ILLINOIS BELL TELEPHONE COMPANY
INDIANA BELL TELEPHONE COMPANY, INCORPORATED
MICHIGAN BELL TELEPHONE COMPANY
THE OHIO BELL TELEPHONE COMPANY
WISCONSIN BELL, INC.
______
NAME: __Peggy Dunn Bills______
TITLE: Associate Director-Affiliate Issues___
DATE: ____03/31/03______
BUYER:
SBC IP COMMUNICATIONS, INC.
______
NAME: _Mimi Jennings______
TITLE: _President SBC-IP______
DATE: ___04/07/04______
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