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Qwest Long Distance
Section 272 Affiliate Transactions
Services Agreement
AMENDMENT 3
This is Amendment Three to the Services Agreement, Agreement Number AP96102 ("Agreement"), between U S WEST Communications, Inc. ("USW"), and U S WEST Long Distance, Inc. ("USWLD"), formerly U S WEST Communications Systems Corporation, dated April 1, 1996.
RECITALS
USW and USWLD entered into that certain Agreement for Services Number AP96102 dated April 1, 1996 as amended by Amendment Number 1 dated July 1, 1996, as amended by Amendment Number 2 dated February 12, 1998, and USW and USWLD wish to Amend the Agreement under the terms and conditions contained herein.
The following Agreement shall replace the previous Agreement in its entirety. All existing task orders shall be incorporated under this Agreement.
SERVICES AGREEMENT
U S WEST LONG DISTANCE, INC.
and
U S WEST COMMUNICATIONS, INC.
THIS AGREEMENT is made as of the first day of April 1996, by and
| BETWEEN: | U S WEST Long Distance, Inc., a Colorado corporation
(hereafter "USWLD) |
| AND: | U S WEST Communications, Inc., a Colorado corporation
(hereinafter "USW"). |
Exhibit A TASK ORDER
Exhibit B RESERVED
Exhibit C NETWORK OPERATIONS SERVICES
Exhibit D RESERVED
Exhibit E PRODUCT AND PROJECT MANAGEMENT SERVICES
Exhibit F MARKETING COMMUNICATIONS SERVICES
The parties agree as follows:
Article 1 - TERM OF AGREEMENT
This Agreement shall become effective as of April 1, 1996 and will remain in full force and effect until either party provides sixty (60) calendar days written notice of termination to the other party. The parties agree to undertake a review of the contract every twenty-four months. If this Agreement is terminated prior to the completion of any Services, USW shall pay for all charges billed and owing to USWLD for Services performed up to and including the date of termination, provided Services performed are in accordance with the terms and conditions of this Agreement. USWLD shall complete any such work in progress prior to the termination of the Agreement, and USWLD shall perform such services in accordance with the terms and conditions of this Agreement.
Article 2 - SERVICES
A. USWLD shall provide services ("Services") to USW as set forth in the attached Exhibits (incorporated herein by this reference). The Exhibits describe Services that USWLD may provide to USW upon request by USW. Such requests for Services shall be specified and documented on a Task Order (incorporated herein as Exhibit A) and include, at a minimum, the following information:
- Description/Location of Service/s Requested
- Dates of Commencement and Completion of Service/s Requested
- Deliverables, Performance Standards, Special Conditions
- Units and Price per Unit for Requested Service/s
- Costing Methodology
USWLD may require additional information as it deems necessary for the provision, tracking, and billing of Services.
B. The parties shall comply with the U S WEST Technology Fair Compensation Policy when Services requested include technical information, software, inventions, functional specifications, and other researched or developed products or Services.
C. In the event of any conflict between the general terms and conditions of this Agreement and the special terms and conditions contained in a Task Order, Appendices or Attachments, the special terms and conditions shall prevail.
Article 3 - COMPENSATION
Services provided by USWLD shall be priced consistent with FCC accounting safeguards pursuant to docket 96-150 concerning transactions between USW and its affiliates. Where USWLD reasonably deems it necessary in order to comply with such rules and regulations, USWLD reserves the right to revise prices, provided that revisions occur no more than semi-annually. If applicable, USWLD and USW agree to any necessary true-up compensation (bill or credit) which may result from such necessary price revisions. Upon request by USW, USWLD agrees to provide supporting information to substantiate any such price revisions, the reasons therefore and any resulting true-up.
Article 4 - BILLING
A. USWLD shall submit invoices to USWC for Services provided in accordance with the terms and conditions of this Agreement on a monthly basis unless otherwise specified in the Task Order. USWC shall notify USWLD of the address to which invoices are to be sent.
B. Invoices shall include the following billing information as a minimum:
1) Invoice number
2) Payment due date
3) Date of Service
4) Description of charges
5) Applicable taxes
6) Total charge
C. The bill recipient is responsible for recording the obligation upon receipt of the invoice WITHOUT REGARD TO ACCEPTANCE unless the billing has been billed to the wrong entity. Once the payable has been recorded, the bill recipient may withhold cash payment of the invoice for disputed items only. Formal disputes must be initiated with the billing company contact no later than sixty (60) days from receipt of the invoice. Any amount billed and uncontested as of the 60th day from receipt of the invoice shall be construed to be a proper charge to the bill recipient.
Interest should not be accrued on cash payments withheld by the bill recipient for disputed amounts during the period of the dispute. However, in order to discourage withholding of payments without due cause, if any portion of the disputed amount is resolved in favor of the billing company, interest shall be accrued from thirty (30) days after payment was due until the amount owed is paid. If the dispute is resolved in favor of the bill recipient, the billing company shall issue a credit to the bill recipient for the full amount. Payment of invoiced amounts that are undisputed or uncontested shall be remitted in full within thirty (30) calendar days after receipt of the invoice. Payment shall be sent to the address indicated on the invoice. Invoiced amounts not paid by the effective payment due date may be assessed interest on any outstanding balance until the amount is paid in full. Interest shall be accrued at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. Such interest shall be reflected on the invoice issued the month after the payment is deemed to be past due.
D. The billing company shall have sixty (60) days from formal notification of the dispute to respond to the dispute.
E. It is the responsibility of each affiliate to effectively communicate and resolve these disputes. If necessary, the issue in dispute should be escalated to the highest level required in order to achieve resolution within the allotted time frame. If all of this fails, refer the matter to the Directors of Technical Accounting at U S WEST, Inc. and at USWC, or their respective designees, for a ruling. Should such efforts prove ineffective, U S WEST, Inc. will, if asked, mediate the issue after a review of the related substantiating documentation. The matter may also be referred for mediation by an external party if both companies have agreed in writing to this type of mediation. (See Article 10 Dispute Resolution.)
F. The billing company may not render a bill for services more than ninety (90) days after those services have been provided unless both companies have agreed in advance to a longer billing period.
Article 5 - RECORDS AND AUDITS
USW or its authorized representative shall have the right to audit USWLD's books and records which relate to performance obligations under this Agreement and the charges billed for Services rendered hereunder, including, but not limited to, wage rates, details of expenses incurred and time records, provided such audits are conducted during normal business hours and USWLD is given thirty (30) calendar days written notice. Such books and records shall be kept in a timely and accurate manner and in accordance with Generally Accepted Accounting Principles (GAAP).
Article 6 - PROPRIETARY INFORMATION
A. Both parties are hereby granted a non-exclusive nontransferable license to use information provided by the other for the purpose of carrying out the terms of this Agreement. Neither party shall publish, circulate or otherwise distribute or disclose any such information that is marked proprietary or confidential to any third party not affiliated with USWLD or USW, unless and until (1) the party whose confidential information is requested gives written authorization and such third party executes a confidentiality agreement containing terms substantially similar to the ones contained in this Agreement and all attachments thereto; (2) such information has come into the public domain through no fault of USWLD or USW; (3) such information is otherwise in the possession of USWLD or USW free of any obligation of confidentiality, or (4) such party is required to do so by regulatory mandate.
B. Any third party information provided by USWLD or USW to the other party shall be deemed USWLD or USW information according to its source, and shall be treated accordingly. If such information is subject to a separate agreement with the third party, the party receiving information agrees to hold and use the information in strict accordance with the separate agreement, provided it has knowledge of the separate agreement, unless otherwise instructed in writing by the party providing the information.
Article 7 - INDEPENDENT CONTRACTOR
USWLD hereby declares and agrees that it is engaged in an independent business and will perform its obligations under this Agreement as an independent contractor and not as the agent or employee of USW; that USWLD does not have the authority to act for USW or to bind USW in any respect whatsoever, or to incur any debts or liabilities in the name of or on behalf of USW; that any persons provided by USWLD shall be solely the employees or agents of USWLD under its sole and exclusive direction and control. USWLD and its employees or agents are not entitled to USW's unemployment insurance benefits as a result of performing under this Agreement. USWLD shall be solely responsible for all matters relating to payment of its employees and agents, including compliance with worker's compensation, unemployment, disability insurance, social security withholding, and all other federal, state and local, rules and regulations. USWLD shall indemnify and hold USW harmless from any causes of action arising out of USWLD's liability to its employees or agents.
Article 8 - WARRANTY
Services shall be performed in a professional manner, consistent with industry standards, and meet the satisfaction of USW. USW reserves the right to inspect Services at any time prior to acceptance. USWLD warrants that the Services will be provided free from defects in performance, will conform to all specifications described in Exhibit A, and will be fit and sufficient for the purposes expressed in, or reasonably inferred from this Agreement.
Article 9 - LIMITATION OF LIABILITY
Neither party is liable to the other for consequential, incidental, indirect, punitive or special damages, including commercial loss and loss profits, however caused and regardless of legal theory or foreseeability, directly or indirectly arising under this Agreement. Notwithstanding the foregoing, the parties are liable in accordance with the provisions of this Agreement and this limitation of liability shall not apply to the indemnification obligations under this Agreement.
Article 10 - DISPUTE RESOLUTION
Any claim, controversy or dispute which arises between the parties, their agents, employees, officers, directors or affiliates ("Dispute") which the parties are unable to settle through consultation and negotiation may be mediated under the Commercial Mediation Rules of the American Arbitration Association ("AAA") by a mutually acceptable mediator. Any Dispute which cannot be resolved through negotiation or mediation shall be resolved by binding arbitration as provided in this Article. The arbitrability of claims shall be determined under the Federal Arbitration Act, 9 USC Secs. 1-16. Notwithstanding the foregoing, the parties may cancel or terminate this Agreement in accordance with its terms and conditions without being required to follow the procedures set forth in this Article.
A single arbitrator engaged in the practice of law, who is knowledgeable about the subject matter of this Agreement and the matter in Dispute, shall conduct the arbitration under the rules of the AAA then in effect, except as otherwise provided herein. The arbitrator shall be selected in accordance with AAA procedures from a list of qualified people maintained by the AAA. The arbitration shall be conducted in Denver, Colorado, and all expedited procedures prescribed by the AAA rules shall apply. The laws of Colorado shall govern the construction and interpretation of this Agreement. The arbitrator's decision and award shall be final, conclusive and binding, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
Either party may request from the arbitrator injunctive relief to maintain the status quo until such time as the arbitration award is rendered or the Dispute is otherwise resolved. The arbitrator shall not have authority to award punitive damages. Each party shall bear its own costs and attorneys' fees, and the parties shall share equally the fees and expenses of the mediator and arbitrator.
If any party files a judicial or administrative action asserting claims subject to arbitration, as prescribed herein, and another party successfully stays such action and/or compels arbitration of said claims, the party filing said action shall pay the other party's costs and expenses incurred in seeking such stay and/or compelling arbitration, including reasonable attorneys' fees.
USWLD agrees that in the event of any Dispute between the parties, it will continue to provide Services without interruption.
Article 11 - HEADINGS NOT CONTROLLING
The headings of sections and clauses are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.
Article 12 - NOTICES
Any notice, instruction, direction or demand under the terms of this Agreement must be in writing. Notification will be deemed to have taken place upon delivery, if delivery is by hand, or five (5) days after posting if sent by certified mail, return receipt requested. The representatives of the parties to whom notices shall be sent are:
USWLD
U S WEST Long Distance, Inc.
Room 2800
1801 California Street
Denver, CO 80202 Attn: Contract Manager
USW
U S WEST Communications, Inc.
Contract Development & Services
188 Inverness Drive West, Suite 600
Englewood, CO 80112 Attn: Contract Representative
Article 13 - CONSTRUCTION
This Agreement shall be interpreted and construed in accordance with the laws of the state of Colorado.
Article 14 - ASSIGNMENT
This Agreement shall be binding upon the parties' respective successors and permitted assigns. Neither party may assign or delegate this Agreement and/or any of its rights and obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. Any such attempted assignment shall be void. However, either party may assign this Agreement and delegate any of its rights and/or obligations hereunder to its parents, subsidiaries, subsidiaries of its parents, or other affiliates, without the consent of the other party. Any assignment of amounts payable is void to the extent that it attempts to impose on USW obligations to the assignee, or to preclude USW from dealing solely and directly with USWLD in all matters under this Agreement.
Article 15 - FORCE MAJEURE
With the exception of payment of charges due under this Agreement, a party shall be excused from performance if its performance is prevented by acts or events beyond the party's reasonable control including but not limited to: severe weather and storms; earthquakes or other natural occurrences; strikes or other labor unrest; power failures; computer failures not the result of error of either party; nuclear or other civil or military emergencies; or acts of legislative, judicial, executive, or administrative authorities.
Article 16 - RIGHTS UPON ORDERLY TERMINATION
Upon termination of this Agreement by expiration or otherwise, or any portion of the Services hereunder, each party shall, upon request, forthwith return to the other party all papers, material and properties of the other party held by such party and required to be returned by this Agreement. In addition, each of the parties will assist the other party in the orderly termination of this Agreement or any portion of the Services hereunder.
Article 17 - REGULATORY SUPPORT
A. USW and USWLD agree that to the extent USW is under the regulation of federal or state agencies, USWLD will provide full cooperation and support for USW's responses to relevant regulatory inquiries or discovery requests concerning this Agreement or relationships derived from this Agreement.
B. Should a regulatory agency request information, including but not limited to proprietary, trade secret, or confidential information, the disclosure of which, in the opinion of USWLD or USW, might be detrimental to the operation of USWLD, USW agrees to request an appropriate order to preserve the confidentiality of the information. USWLD agrees to provide support in the request of said order.
Article 18 - THIRD-PARTY BENEFICIARY
Nothing in this Agreement is intended to create any rights in a third-party beneficiary.
Article 19 - AMENDMENT
This Agreement and its attached Exhibit(s) may be amended from time to time, in whole or in part, upon written agreement between the parties.
Article 20 - INDEMNITY
USWLD shall indemnify and hold harmless USW, its owners, parents, subsidiaries, affiliates, agents, directors and employees against all Liabilities to the extent they arise from or in connection with: (1) the fault or negligence of USWLD, its officers, employees, agents, subcontractors and/or representatives; and/or (2) the furnishing, performance or use of any Services under this Agreement or any product liability claims relating to any Services; and/or (3) failure by USWLD, its officers, employees, agents, subcontractors and/or representatives to comply with the Article entitled "Compliance with Laws;" and/or (4) assertions under workers' compensation or similar employee benefit acts by USWLD or its employees, agents, subcontractors, or subcontractors' employees or agents.
USW shall indemnify and hold harmless USWLD, its owners, parents, subsidiaries, affiliates, agents, directors and employees against all Liabilities to the extent they arise from or in connection with: (1) the fault or negligence of USW its officers, employees, agents, subcontractors and/or representatives; and/or (2) the furnishing, performance or use of any Services under this Agreement or any product liability claims relating to any Services; and/or (3) failure by USW, its officers, employees, agents, subcontractors and/or representatives to comply with the Article entitled "Compliance with Laws," and/or (4) assertions under workers' compensation or similar employee benefit acts by USW or its employees, agents, subcontractors, or subcontractors' employees or agents.
Article 21 - AFFILIATE
For purposes of this Agreement, ("Affiliate") means any entity which directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with one of the parties hereto. For the purpose of this Agreement, "control" means (i) in the case of corporate entities, direct or indirect ownership of more than ten percent, and (ii) in the case of non-corporate entities, direct or indirect ownership of more than ten percent.
Article 22 - WAIVER
The failure of either party to exercise any right shall not be construed to be a waiver unless agreed upon in writing. A waiver in any one instance will not constitute an amendment to this Agreement or indicate any continued waiver of such right on any other occasion.
Article 23 - COMPLIANCE WITH LAWS
The parties shall obtain and maintain at its own expense all permits and licenses and pay all fees required by law with respect to any Services and/or performance of this Agreement. The parties shall, in connection with performance of and Services under this Agreement, comply with all applicable federal, state, and local laws, ordinances, rules, regulations, court orders, and governmental or regulatory agency orders ("Laws"), including, without limitation:
- The Telecommunications Act of 1996 and all rules, regulations and orders issued in connection with that Act and this Agreement shall, to the greatest extent possible, be construed to be consistent with the same.
- Laws relating to non-discrimination in employment, fair employment practices, equal employment opportunity, employment opportunities for veterans, non-segregated facilities, and/or employment of the disabled, except to the extent a party is exempt therefrom; and the Laws and contract clauses required by those Laws to be made a part of this Agreement are incorporated herein by this reference.
- The Laws referred to in the Article entitled "Independent Contractor".
USWLD acknowledges that Purchase(s) and/or Confidential Information ("Exports") may be subject to U.S. and applicable foreign export laws or regulations. USWLD shall perform its obligations under this Agreement in a manner consistent with the requirements of all applicable U.S. and all applicable foreign laws and regulations, including the U.S. export laws and regulations, the Foreign Corrupt Practices Act, and anti-boycott laws, and U.S. export laws and regulations prohibiting the unauthorized export or re-export of certain items to residents of countries listed in U.S. Export Administration Regulations.
The requirements of this Article shall survive the expiration, termination or cancellation of this Agreement. All provisions of this Article shall also apply to all subcontractors, and similar terms shall be included in all USWLD's contracts with subcontractors.
Article 24 - SEVERABILITY
Any term or provision of this Agreement which is held to be invalid, void, unenforceable or illegal will in no way affect, impair or invalidate the remaining terms or provisions, which will remain in full force and effect, consistent with the original intent of the parties. However, if such provision is an essential element of the Agreement, the parties shall promptly attempt to negotiate a substitute therefore.
Article 25 - DEFAULT OR BREACH
In the event of a material breach of any of the terms of this Agreement, the aggrieved party shall give the other party written notice of such breach and request cure within thirty (30) calendar days from notice receipt as provided herein. If the described breach is not cured within the thirty (30) calendar day period, then this Agreement may, upon written notice, be terminated immediately without charge or liability, except for work performed by USWLD and costs incurred by USW under this Agreement up until the date of termination.
Article 26 - CANCELLATION FOR DEFAULT
Either party may cancel this Agreement and/or any Order(s), in whole or part, without liability, by giving written notice of breach or default if the other (1) becomes insolvent, unable to pay debts when due, or the subject of bankruptcy proceedings not terminated within thirty (30) days of any filing; or makes a general assignment for the benefit of creditors; or if a receiver is appointed for substantially all of its property; or (2) materially breaches or defaults on its obligations under this Agreement and, if the breach or default can be cured, fails to cure the breach or default within thirty (30) days after receipt of written notice to cure; or (3) commits breaches on obligations other than payment, repetitively, or at least three separate significant times within any four-month period. Customer may cancel any Order(s) in whole or in part, without liability, if USWLD fails to Deliver conforming Services under that Order on time.
If Services are being provided, USW shall have the right to take over and complete the Services at USWLD's expense.
If USW cancels this Agreement and/or any Order(s) for USWLD's default or breach, it shall be entitled to recover from USWLD all losses, damages and expenses incurred as a result of USWLD's default or breach. USWLD shall refund to USW amounts previously paid for Services which, due to such cancellation, cannot reasonably be used by USW, and shall bear all expenses for their removal and return. USWLD shall, at USW's option, promptly remove Services or bear the cost of removal. USWLD shall restore or bear the expenses of restoration of USW's property to its original condition at the direction of USW and refund to USW all monies previously paid for such Services.
If USWLD cancels this Agreement and/or any Order(s) for USW's default or breach, it may recover from USW reasonable expenses incurred as a direct result of USW's default or breach, which shall not exceed the amounts which USW has not yet paid under the terms hereof. USW shall not be liable for incidental, consequential or indirect damages, including but not limited to lost profits or unallocated overhead.
Article 27 - SEVERAL LIABILITY AND JOINT DISCOUNTS
The term USW as used herein may be applicable to one or more parties and the singular shall include the plural. If more than one party is referred to as USW herein, then their obligations and liabilities shall be several, not joint. Notwithstanding the foregoing, all Services under this Agreement and/or related agreements shall be cumulative for purposes of determining: (1) whether USW has met any minimum purchase requirements; (2) credits which may be applicable; (3) USW's forecasts; (4) the level of discount, if any, which shall apply to any Services.
Article 28 - INSURANCE
Both parties shall obtain and maintain insurance with coverage or limits consistent with U S WEST, Inc. practices and policies. Such insurance shall be commensurate with the type and/or amount of Service performed under this Agreement and the cost for such insurance shall be borne by the party performing the Service.
Either party may provide some or all of the insurance coverage required above through self-insurance in a manner consistent with U S WEST, Inc. practices and policies.
Each party shall also require its subcontractors, if any, to maintain appropriate levels of insurance and agrees to furnish the other party with certificates or adequate proof of such insurance, if requested. Either party may consult with U S WEST, Inc. - Risk Management for an evaluation of the appropriate insurance for subcontractors.
Article 29 - CONTRACT ADMINISTRATION
A. Each party shall appoint a Contract Manager who shall be responsible for the management of the relationship between the parties. Interpretations, amendments, negotiations, modifications, requests for audits and/or examinations relating to this Agreement shall be initiated and managed by the Contract Managers.
B. USWLD shall appoint a Contract Manager with overall responsibilities for the Services offered in this Agreement. The Contract Manager shall be responsible to oversee that the Services are provided as specified in the Exhibit, initiate billing and monitor payment and provide further information regarding the Service and/or billing if USW requests. The Contract Manager shall resolve such inquiries within thirty (30) days.
C. If the Contract Manager is unable to provide sufficient information to USW regarding the Services delivered and/or the amounts invoiced, Dispute Resolution procedures will be initiated.
Article 30 - SUBCONTRACTORS
Each party will be responsible for the proper performance of any subcontractor it hires which may be used to assist in the performance of Services; however, neither party will subcontract any work without the other party's prior written consent, which shall not be unreasonably withheld.
Article 31 - NONEXCLUSIVE AGREEMENT
It is expressly understood and agreed that this Agreement does not grant to USWLD any exclusive privileges or rights and USW may contract with other suppliers for the procurement of comparable Services. Except as specifically identified in a Task Order, USW makes no guarantee or commitment for any minimum or maximum amount of Services hereunder.
Article 32 - SURVIVAL
All obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive and remain in effect beyond any expiration or termination.
Article 33 - ENTIRE AGREEMENT
This Agreement including its Exhibit(s) constitutes the entire Agreement between the parties, and supersedes all prior agreements, representations, negotiations, statements, or proposals related to the subject hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized representatives.
| U S WEST Long Distance, Inc. | | U S WEST Communications, Inc. |
Kathy Stephens
Signature | | Kristine Ringsdorf
Signature |
Kathy Stephens
Name Printed or Typed | | Kristine Ringsdorf
Name Printed or Typed |
Vice President, Financial Accounting
Title | | Executive Director
Title |
8-4-98
Date | | 10-5-98
Date |
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