BellSouth Long Distance, Inc. Original Page 1 11.1 General The provisions stated herein apply to any service offered by the Company under this Pricing Guide, including services that the Company may, at its option, provide on a special contract basis to meet specialized requirements of the Customer not contemplated in this Pricing Guide, including but not limited to, services provided under an Integrated Service Package agreement under Section 8 or a Customized Pricing Arrangement under Section 12. To the extent the terms and conditions of any such contract vary from the terms and conditions set forth in this Pricing Guide, including those set forth in this Section 11, such special terms and conditions shall be mutually agreed upon, in writing, between the Customer and the Company and may include discounts off of rates contained herein, waiver of recurring or nonrecurring charges, charges for specially designed and constructed services not contained in the Company s general service offerings, or other customized features. The terms of any special contract may be based partially or completely on the term and volume commitment, type of originating or terminating access, mixture of services or other distinguishing features. Service shall be available to all similarly situated Customers for a fixed period of time following the initial offering to the first special contract Customer as specified in each individual special contract. 11.2 Dispute Resolution 11.2.1 Parties Once negotiation, mediation or arbitration has commenced, the Customer and the Company will be considered the Parties to the dispute resolution procedures described in this Section 11.2 of the Pricing Guide. These procedures apply to amounts in dispute only. 11.2.2 Mediation The Parties agree to use good faith efforts to resolve any dispute promptly and fairly. If following escalation of the dispute to the legal departments of both Parties, using the contact information set forth in Section 11.5, the Parties are unable to resolve a dispute by negotiation, both Parties agree to submit it to mediation conducted by a mutually selected mediator or, at the option of either Party, by the Center for Public Resources (CPR). The Parties, their representatives, other participants and the mediator shall hold the existence, content and result of the mediation in confidence. 11.2.3 Arbitration If a dispute submitted to mediation is not successfully resolved, it shall be subject to binding arbitration under the then-current rules and supervision of the CPR. The Federal Arbitration Act, 9 U.S.C. Section 1 to 16, not Georgia law, will govern the arbitration of all claims. A single arbitrator who is knowledgeable in business information, commercial matters or the telecommunications field, as applicable, will conduct the arbitration. The arbitrator s decision and award will be final and binding, and either Party may enter it in any court with jurisdiction. The arbitrator will not have authority to award punitive or other non-compensatory damages to either Party. The arbitration will be held in Atlanta, Georgia. Each Party will bear its own attorney s fees and related costs associated with the arbitration. The Parties will pay all other costs and expenses of the arbitration as the rules of the CPR provide. The Parties, their representatives, other participants and the arbitrator shall hold the existence, content and result of the arbitration in confidence except that the prevailing Party shall have the right to enter the arbitration award in a court of competent jurisdiction if such entry is necessary to enforce the terms of the award. Date Posted 09172010
BellSouth Long Distance, Inc. Original Page 2 11.2 Dispute Resolution (continued) 11.2.4 Court Proceeding 11.3 Payments Except as permitted in this section, neither Party may bring a case in court in connection with a dispute. If a Party disregards this restriction, files a court case and fails to dismiss it promptly upon being notified of this provision, that Party will pay the other Party s costs and expenses, including attorney s fees, incurred after the notice in defending the court case. Each Party retains the right to obtain an injunction in court to prevent the other Party s misuse of its intellectual property or Confidential Information. Nothing in Section 11.2 shall operate to prevent or in any way limit the Company from using all legal remedies available to it to obtain full payment of undisputed service charges. All amounts for Services billed under this Pricing Guide, including but not limited to the Customer s Integrated Service Package agreement in Section 8 or Customized Pricing Arrangement agreement in Section 12, and stated in each monthly invoice will be due and payable by the Customer in accordance with Section 2.7 of this Pricing Guide. The cost of Services is exclusive of certain taxes and fees, which shall be borne in accordance with Section 11.8. If the Customer fails to pay for Services in accordance with this section, the Customer will not receive any discounts, concessions, waivers or credits stated in the applicable agreement. In the event that a Customer, in good faith, disputes the Company's computation of amounts due and owing within all applicable legal periods of limitation, the Customer may withhold payment of disputed amounts. The Customer must pay all charges that are not in dispute in accordance with the payment terms set forth in this entire section. An amount will not be considered "in dispute" until the Customer has provided the Company with written documentation explaining the disputed amount. The Customer must cooperate with the Company to resolve any dispute expeditiously. Contract disputes shall be resolved in accordance with Section 11.2. All disputed amounts are payable immediately upon the Company's written denial of the dispute. Disputed amounts not paid by the Customer shall accrue interest and late payment charges in accordance with Section 2.7.5 if the Company is the prevailing party in the contract dispute. Conversely, if the Customer is the prevailing party in a billing dispute and the Company has received payments of disputed amounts, the Company will reimburse Customer such disputed amounts plus accrued interest calculated at the interest rate stated in Section 2.7.5. 11.4 Deposits, Advanced Payments and Right to Refuse Service The Company reserves the right to require new or additional deposits and/or advance payments, as described in Sections 2.8 and 2.9 of this Pricing Guide, respectively. This right extends beyond the date the agreement is executed by both parties if the Company has not determined the Customer s credit worthiness prior to such date, or to any time during the contract term if Customer s credit standing changes subsequent to the Company s initial credit investigation. Furthermore, the Company reserves the right to refuse new service or to make additions to existing service if the Company determines after contract execution that the Customer s credit worthiness is not acceptable to the Company and the Customer is unable to make the required deposits and/or advanced payments.
BellSouth Long Distance, Inc. Original Page 3 11.5 Notices Except as otherwise provided in this Pricing Guide or any related document signed by the Customer, all notices or demands will be given in writing sent by hand delivery, courier service, facsimile or U.S. mail, postage prepaid, to the Company at the addresses set forth below and, in the case of the Customer, to the Customer's billing address. All notices that are addressed as provided herein (a) if delivered personally or by courier service, will be deemed given upon delivery, (b) if delivered by facsimile, will be deemed given when confirmed, and (c) if delivered by mail in the manner described above, will be deemed given on the fifth (5 th ) business day after the day it is sent. Either the Customer or the Company may change its address or respective contact for notification purposes by giving 10 business days prior written notice to the other of the new address or designee. BellSouth Long Distance, Inc. Customer Resource Center Attention: Customer Care Manager 28 Perimeter Center East Atlanta, GA 30346 In addition to the address set forth above, when any dispute requires escalation to the legal departments of both Parties, copies of notices shall be sent to: 11.6 Severability BellSouth Long Distance, Inc. Legal Department 2180 Lake Boulevard NE, Suite/Floor 5C48 Atlanta, GA 30319-6004 Facsimile: (404) 829-6370 Attention: General Counsel In the event that one or more of the provisions contained in this Pricing Guide, or in any document signed by the Customer in connection with this Pricing Guide which forms any part of the agreement between the Customer and the Company, is invalid, illegal or unenforceable in any respect under any applicable statute, regulatory requirement or rule of law, then such provisions will be considered inoperative to the extent of such invalidity, illegality or unenforceability and the entire agreement between the Customer and the Company will be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the Customer and the Company will be construed and enforced accordingly. 11.7 Excused Delay/Performance The terms, covenants, representations and warranties of this Pricing Guide, including any document signed by the Customer in connection with this Pricing Guide which forms any part of the agreement between the Customer and the Company, may be waived only by a written instrument executed by the party waiving compliance. Neither the waiver by either of the parties hereto of a breach or a default under any provisions of this Pricing Guide, including any document signed by the Customer in connection with this Pricing Guide which forms any part of the agreement between the Customer and the Company, nor the failure of either of the parties, on one or more occasions, to enforce any of the provisions thereof or to exercise any right or privilege thereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any of such provisions, right, or privileges hereunder.
BellSouth Long Distance, Inc. Original Page 4 11.8 Taxes and Fees 11.8.1 For purposes of this Pricing Guide, the term "Customer Taxes" shall include but not be limited to federal, state, local or foreign sales, use, value added, excise, gross receipts, license, privilege, property, withholding or other taxes, levies, surcharges, duties or other tax-like fees of whatever nature and however designated (including tariff surcharges and any fees, charges or other payments, contractual or otherwise, for the use of public streets or rights of way, whether designated as franchise fees or otherwise) which are imposed, or sought to be imposed, directly or indirectly, on or with respect to the services furnished hereunder or measured by the charges or payments therefore, except for (i) taxes imposed upon the Company's net income, and (ii) such taxes or fees imposed on the Company which are neither permitted nor required to be passed on by the Company to the Customer. 11.8.2 Unless the obligation to pay a Customer Tax to the relevant tax authority is imposed directly on the Customer, such Customer Tax shall be paid by the Customer to the Company and remitted by the Company to the relevant taxing authority. To the extent permitted by applicable law, any Customer Taxes collected from the Customer and remitted by the Company shall be shown as separate items on applicable billing documents prepared by the Company and delivered to the Customer. Notwithstanding the foregoing, the Customer shall remain liable for any Customer Taxes regardless of whether they are actually billed by the Company at the time that the respective service is billed. In the event the Customer is required by law to deduct or withhold any Customer Taxes from amounts payable to the Company hereunder, such amounts shall be grossed up to the amount that, after making such deduction or withholding, shall be equal to the amount that the Company would have received had there been no requirement to deduct or withhold Customer Taxes. 11.8.3 If the Customer determines that in its opinion any Customer Taxes imposed on it and collectible by the Company are not payable, the Company shall not bill such Customer Taxes to the Customer if the Customer provides written certification, reasonably satisfactory to the Company, stating that it is exempt or otherwise not subject to the Customer Tax, setting forth the basis therefore, and satisfying any other requirements under applicable law. If the Customer disagrees with the Company's determination as to the application or basis of any Customer Taxes imposed on the Company and subject to reimbursement by the Customer, the Parties shall consult with respect to the imposition and billing of such Customer Taxes, but the Company shall retain ultimate responsibility for determining whether and to what extent any such Customer Taxes are applicable, and the Customer shall abide by such determination and pay such Customer Taxes to the Company promptly after receipt of notice thereof. 11.8.4 Each party shall notify the other party in writing of any assessment, proposed assessment or other claim for any additional amount of Customer Tax by a governmental authority received by it; such notice to be provided, if possible, at least ten (10) days prior to the date by which a response, protest or other appeal must be filed, but in no event later than thirty (30) days after receipt of such assessment, proposed assessment or claim.
BellSouth Long Distance, Inc. Original Page 5 11.8 Taxes and Fees 11.8.5 If any authority seeks to collect any Customer Tax imposed on the Customer but not collected by the Company (at the direction of the Customer or otherwise), the Customer shall have the right, at its own expense, to contest the same in good faith, in its own name or on the Company's behalf. In any such contest, the Customer shall promptly furnish the Company with copies of all filings in any proceeding, protest, or legal challenge, all rulings issued in connection therewith, and all correspondence between the Customer and the governmental authority. If any authority seeks to collect any Customer Tax imposed on the Company, the Parties shall consult with respect to whether to contest the imposition of such Customer Tax, but the Company shall retain ultimate responsibility for determining whether and how to contest the imposition of such Customer Tax; provided, however, that any such contest undertaken at the request of the Customer shall be at the Customer's expense. 11.8.6 In the event that all or any portion of an amount sought to be collected must be paid in order to contest the imposition of any Customer Tax, or to avoid the existence of a lien on the assets of the Company during the pendency of such contest, the Customer shall be responsible for such payment and shall be entitled to the benefit of any refund or recovery. 11.8.7 The Company shall cooperate by providing records, testimony and such additional information or assistance as may reasonably be necessary to pursue the contest of any Customer Tax, and the Company shall be reimbursed by the Customer for any reasonable and necessary out-of-pocket and travel expenses incurred in assisting in such contest. 11.8.8 If it is ultimately determined that any additional amount of a Customer Tax is due to the imposing authority, the Customer shall pay such additional amount, including any interest and penalties thereon. 11.8.9 Notwithstanding any provision to the contrary, the Customer shall protect, indemnify and hold harmless (and defend at the Customer's expense) the Company from and against any Customer Tax, interest or penalties thereon, or other charges or payable expenses (including reasonable attorney fees) with respect thereto, which are incurred by the Company in connection with any claim for or contest of any such Customer Tax. 11.8.10 The Customer shall have the right, at its own expense, to claim a refund or credit, in its own name or on the Company's behalf, of any Customer Tax that it determines to have paid in error, and the Customer shall be entitled to any recovery thereof.