Customer Name: Telepak Networks, Inc. Attachment 2 - PreOrdering, Ordering and Maintenance and Repair

Transcription

1 BELLSOUTH Telepak Networks, Inc.-MBR 3Q06 General Ters and Conditions Table of Contents Signature Page Attachent 1 - Services Attachent1-ExhibitA / CLEC Agreeent Attachent 2 - PreOrdering, Ordering and Maintenance and Repair Attachent 3-Billing Custoer Nae: Telepak Networks, Inc Note: This page is not part of the actual signed contract/aendent, but is present for record keeping purposes only.

2 By and Between BellSouth Telecounications, Inc. And Telepak Networks, Inc. CCCS 2 of 310

3 1. AGREEMENT Market Agreeent General Ters and Conditions Page 1 GENERAL TERMS AND CONDITIONS THIS (SERVICES) AGREEMENT is ade by and between BellSouth Telecounications, Inc., (BellSouth), a Georgia corporation, and Telepak Networks, Inc. (CUSTOMER), a Mississippi corporation, and shall be effective on the Effective Date, as defined herein. This Agreeent ay refer to either BellSouth or CUSTOMER or both as a Party or Parties. W I T N E S S E T H WHEREAS, BellSouth is a local exchange telecounications copany authorized to provide Telecounications Services in the states of Alabaa, Florida, Georgia, Kentucky, Louisiana, Mississippi, and Tennessee; and WHEREAS, CUSTOMER is a Copetitive Local Exchange Carrier (CLEC) authorized to provide Telecounications Services in the state(s) of Alabaa, Florida, Louisiana, Mississippi, and Tennessee; and WHEREAS, BellSouth desires to provide and CUSTOMER desires to purchase certain Services not required pursuant to Section 251 of the Telecounications Act of 1996 (Act); NOW, THEREFORE, in consideration of the utual agreeents contained herein, BellSouth and CUSTOMER agree as follows: Definitions Affiliate is defined as a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under coon ownership or control with, another person. For purposes of this paragraph, the ter own eans to own an equity interest (or equivalent thereof) of ore than ten percent (10%). Coission is defined as the appropriate regulatory agency in each state of BellSouth s nine-state region (Alabaa, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee). Copetitive Local Exchange Carrier (CLEC) eans a telephone copany certificated by the Coission to provide local exchange service within BellSouth's franchised area. Version: 3Q06 MBR 07/18/06 CCCS 3 of 310

4 Market Agreeent General Ters and Conditions Page 2 Effective Date is defined as the date that the Agreeent is effective for purposes of rates, ters and conditions and shall be Septeber 11, Future aendents for rate changes will be effective thirty (30) days after the date of the last signature executing the aendent. End User eans the ultiate user of the Telecounications Service. FCC eans the Federal Counications Coission. Telecounications eans the transission, between or aong points specified by the user, of inforation of the user s choosing, without change in the for or content of the inforation as sent and received. Telecounications Service eans the offering of telecounications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. Telecounications Act of 1996 (Act) eans Public Law of the United States Congress effective February 8, The Act aended the Counications Act of 1934 (47 U.S.C. Section 1 et. seq.). 1. Scope of this Agreeent 1.1 This Agreeent sets forth the obligations of each Party with respect to BellSouth s provision of certain services, set forth herein, to CUSTOMER (Service(s)). BellSouth will ake available to CUSTOMER the Services and CUSTOMER agrees to purchase BellSouth s Services as set forth herein. 1.2 Notwithstanding Section 18 below, the Parties acknowledge that this Agreeent is intended to be governed by the provisions of 47 U.S.C. 201, 202 and to the extent applicable, 271. Moreover, the Parties agree that this Agreeent is not subject to Section 251 or 252 of the Act. 2. CLEC Certification 2.1 Prior to execution of this Agreeent, CUSTOMER agrees to provide BellSouth in writing CUSTOMER s CLEC certification for all states covered by this Agreeent except Kentucky. Should CUSTOMER s certification in any state be rescinded or otherwise terinated, BellSouth ay, at its election, terinate this Agreeent iediately and all onies owed on all outstanding invoices shall becoe due, or BellSouth ay refuse to provide Services hereunder in that state until certification is reinstated in that state. CUSTOMER shall provide proof of authority to do business, issued by the Secretary of State, or equivalent authority, in each state covered by this Agreeent. Version: 3Q06 MBR 07/18/06 CCCS 4 of 310

5 Version: 3Q06 MBR 07/18/06 Market Agreeent General Ters and Conditions Page To the extent CUSTOMER is not certified as a CLEC, or has not provided proof of authority to do business in any state covered by this Agreeent as of the execution hereof, CUSTOMER ay not purchase Services under this Agreeent in that state. CUSTOMER will notify BellSouth in writing and provide CLEC certification when it becoes certified to operate in any other state covered by this Agreeent and, upon receipt thereof, CUSTOMER ay thereafter purchase Services pursuant to this Agreeent in that state. 3. Ter of the Agreeent 3.1 The ter of this Agreeent shall coence on the Effective Date and shall apply to the BellSouth territory in the state(s) of Alabaa, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina and Tennessee. It shall continue in effect until Deceber 31, 2007, (Initial Ter) except as otherwise provided herein. After the Initial Ter, this Agreeent shall renew autoatically in consecutive six (6) onth increents (Renewal Ters) unless either Party notifies the other in writing no ore than sixty (60) days and no less than thirty (30) days before the expiration date of the then current Ter that it intends not to renew. This Agreeent shall continue in effect as specified herein unless: a) Either Party terinates, without cause, at any tie upon at least thirty (30) days prior written notice to the other Party provided no Services are being purchased pursuant to this Agreeent; or b) Either Party terinates pursuant to the ters hereof upon the other s breach. 3.2 Except as set forth in Attachent 3, if either Party breaches or defaults on any of the ters, conditions, or covenants of this Agreeent, the other Party shall give the breaching Party written notice of such breach or default. If such breach or default continues for ten (10) days after such written notice, then all onies owed on all outstanding invoices shall becoe due, and in addition to all other rights and reedies of law or equity or otherwise, the non-breaching Party ay terinate this Agreeent without any charge, obligation, or liability whatsoever for such breach, except for payent for Services already received and accepted. 3.3 To the extent CUSTOMER is in breach or default of its obligations under any other agreeent or tariff to which BellSouth and CUSTOMER are parties, such breach or default shall be deeed a breach or default under this Agreeent, and BellSouth ay exercise any right of disconnection, suspension or terination of services, or any other rights upon default or breach as described in this Agreeent, to the sae extent such rights ay be exercised for a default or breach under this Agreeent. 3.4 In addition to as otherwise set forth in this Agreeent, BellSouth reserves the right to suspend or terinate Service in the event of prohibited, unlawful or iproper use of BellSouth facilities or service, or abuse of BellSouth facilities. CCCS 5 of 310

6 Version: 3Q06 MBR 07/18/06 Market Agreeent General Ters and Conditions Page Upon terination of this Agreeent, the rates, ters and conditions of this Agreeent shall continue to apply for all Services until the date such Services are actually transitioned fro this Agreeent, or the date that BellSouth specifies for the copletion of the transition, whichever is earlier, (Transition Period). In no event will the Transition Period be less than thirty (30) days. CUSTOMER shall not be entitled to place any orders for the purchase of Services or ake any changes to the Services other than transitioning the Services fro this Agreeent during the Transition Period. 4. Rates 4.1 CUSTOMER shall pay the charges set forth in this Agreeent. In the event that BellSouth is unable to bill the applicable rate or no rate is established or included in this Agreeent for any Services provided pursuant to this Agreeent, BellSouth reserves the right to back bill CUSTOMER for such rate or for the difference between the rate actually billed and the rate that should have been billed pursuant to this Agreeent. To the extent a rate eleent is oitted or no rate is established, BellSouth has the right not to provision such Service until the Agreeent is aended to include such rate. 4.2 To the extent CUSTOMER requests Services not included in this Agreeent, such Services shall be provisioned pursuant to the rates, ters and conditions set forth in the applicable tariffs or a separately negotiated Agreeent. 4.3 In the event that this Agreeent or an aendent to this Agreeent effects a rate change, BellSouth will ake a change to such rates. The change shall reflect billing at the new rates fro the Effective Date of the Agreeent or aendent. 5. Court Ordered Requests for Call Detail ords and Other Subscriber Inforation 5.1 Subpoenas Directed to BellSouth. Where BellSouth provides the Services for CUSTOMER, BellSouth shall respond to subpoenas and court ordered requests delivered directly to BellSouth for the purpose of providing call detail records when the targeted telephone nubers belong to CUSTOMER s End Users. Billing for such requests will be generated by BellSouth and directed to the law enforceent agency initiating the request. BellSouth shall aintain such inforation for CUSTOMER s End Users for the sae length of tie it aintains such inforation for its own End Users. 5.2 Subpoenas Directed to CUSTOMER. Where BellSouth is providing to CUSTOMER Services, then CUSTOMER agrees that in those cases where CUSTOMER receives subpoenas or court ordered requests regarding targeted telephone nubers belonging to CUSTOMER s End Users, and where CUSTOMER does not have the requested inforation, CUSTOMER will advise CCCS 6 of 310

7 Market Agreeent General Ters and Conditions Page 5 the law enforceent agency initiating the request to redirect the subpoena or court ordered request to BellSouth for handling in accordance with Section 5.1 above. 5.3 In all other instances, where either Party receives a request for inforation involving the other Party s End User, the Party receiving the request will advise the law enforceent agency initiating the request to redirect such request to the other Party. 6. Liability and Indenification 6.1 CUSTOMER Liability. In the event that CUSTOMER consists of two (2) or ore separate entities as set forth in this Agreeent and/or any Aendents hereto, or any third party requests Services under this Agreeent using CUSTOMER s codes, all such entities shall be jointly and severally liable for the obligations of CUSTOMER under this Agreeent. 6.2 Liability for Acts or Oissions of Third Parties. BellSouth shall not be liable to CUSTOMER for any act or oission of another entity providing services to CUSTOMER. 6.3 Liitation of Liability. Except for any indenification obligations of the Parties hereunder, BellSouth s liability to CUSTOMER for any loss, cost, clai, injury, liability or expense, including reasonable attorneys fees relating to or arising out of any cause whatsoever, whether based in contract, negligence or other tort, strict liability or otherwise, relating to the perforance of this Agreeent, shall not exceed a credit for the actual cost of the Services not perfored or iproperly perfored CUSTOMER ay, in its sole discretion, provide in its tariffs and contracts with its End Users and third parties that relate to any Service provided or conteplated under this Agreeent, that, to the axiu extent peritted by applicable law, CUSTOMER shall not be liable to the End User or third party for (i) any loss relating to or arising out of this Agreeent, whether in contract, tort or otherwise, that exceeds the aount CUSTOMER would have charged that applicable person for the Service that gave rise to such loss and (ii) indirect, incidental or consequential daages. To the extent that CUSTOMER elects not to place in its tariffs or contracts such liitations of liability, and BellSouth incurs a loss as a result thereof, CUSTOMER shall indenify and reiburse BellSouth for that portion of the loss that would have been liited had CUSTOMER included in its tariffs and contracts the liitations of liability that BellSouth included in its own tariffs at the tie of such loss, except to the extent caused by BellSouth s gross negligence or willful isconduct BellSouth shall not be liable for daages to CUSTOMER s terinal location, equipent or End User preises resulting fro the furnishing of a Service, including, but not liited to, the installation and reoval of equipent or Version: 3Q06 MBR 07/18/06 CCCS 7 of 310

8 Version: 3Q06 MBR 07/18/06 Market Agreeent General Ters and Conditions Page 6 associated wiring, except to the extent caused by BellSouth s negligence or willful isconduct Under no circustance shall BellSouth be responsible or liable for indirect, incidental, or consequential daages, including, but not liited to, econoic loss or lost business or profits, daages arising fro the use or perforance of equipent or software, or the loss of use of software or equipent, or accessories attached thereto, delay, error, or loss of data. In connection with this liitation of liability, CUSTOMER recognizes that BellSouth ay, fro tie to tie, provide advice, ake recoendations, or supply other analyses related to the Services described in this Agreeent, and, while BellSouth shall use diligent efforts in this regard, CUSTOMER acknowledges and agrees that this liitation of liability shall apply to provision of such advice, recoendations, and analyses To the extent any specific provision of this Agreeent purports to ipose liability, or liitation of liability, on BellSouth different fro or in conflict with the liability or liitation of liability set forth in this Section, then with respect to any facts or circustances covered by such specific provisions, the liability or liitation of liability contained in such specific provision shall apply. 6.4 Indenification for Certain Clais. Except to the extent caused by BellSouth s gross negligence or willful isconduct, BellSouth, its Affiliates, parent copany and their eployees and agents shall be indenified, defended and held harless by CUSTOMER against any clai, loss or daage arising fro CUSTOMER s use of the Services provided under this Agreeent pertaining to (1) clais for libel, slander or invasion of privacy arising fro the content of CUSTOMER s own counications, or (2) any clai, loss or daage claied by the End User of CUSTOMER arising fro such End User s use or reliance on BellSouth s Services, actions, duties, or obligations arising out of this Agreeent. 6.5 Disclaier. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY IN THIS AGREEMENT, BELLSOUTH MAKES NO REPRESENTATIONS OR WARRANTIES TO CUSTOMER CONCERNING THE SPECIFIC QUALITY OF ANY SERVICES, OR FACILITIES PROVIDED UNDER THIS AGREEMENT. THE PARTIES DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OR GUARANTEE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM USAGES OF TRADE. 7. Intellectual Property Rights and Indenification 7.1 No License. No patent, copyright, tradeark or other proprietary right is licensed, granted or otherwise transferred by this Agreeent. The Parties are strictly prohibited fro any use, including but not liited to, in the selling, arketing, prooting or advertising of Telecounications Services, of any nae, service CCCS 8 of 310

9 Version: 3Q06 MBR 07/18/06 Market Agreeent General Ters and Conditions Page 7 ark, logo or tradeark (collectively, the Marks ) of the other Party. The Marks include those Marks owned directly by a Party or its Affiliate(s) and those Marks that a Party has a legal and valid license to use. The Parties acknowledge that they are separate and distinct and that each provides a separate and distinct service and agree that neither Party ay, expressly or ipliedly, state, advertise or arket that it is or offers the sae service as the other Party or engage in any other activity that ay result in a likelihood of confusion between its own service and the service of the other Party. 7.2 Ownership of Intellectual Property. Any intellectual property that originates fro or is developed by a Party shall reain the exclusive property of that Party. Except for a liited, non assignable, non exclusive, non transferable license to use patents or copyrights to the extent necessary for the Parties to use any facilities or equipent (including software) or to receive any Service solely as provided under this Agreeent, no license in patent, copyright, tradeark or trade secret, or other proprietary or intellectual property right, now or hereafter owned, controlled or licensable by a Party, is granted to the other Party. Neither shall it be iplied nor arise by estoppel. Any tradeark, copyright or other proprietary notices appearing in association with the use of any facilities or equipent (including software) shall reain on the docuentation, aterial, product, service, equipent or software. It is the responsibility of each Party to ensure at no additional cost to the other Party that it has obtained any necessary licenses in relation to intellectual property of third parties used in its network that ay be required to enable the other Party to use any facilities or equipent (including software), to receive any service, or to perfor its respective obligations under this Agreeent. 7.3 Intellectual Property Reedies Indenification. The Party providing a Service pursuant to this Agreeent will defend the Party receiving such Service or data provided as a result of such Service against clais of infringeent arising solely fro the use by the receiving Party of such Service in the anner conteplated under this Agreeent and will indenify the receiving Party for any daages awarded based solely on such clais in accordance with Section 6 above Clai of Infringeent. In the event that use of any facilities or equipent (including software), becoes, or in the reasonable judgent of BellSouth is likely to becoe, the subject of a third party clai, action, suit, or proceeding based on intellectual property infringeent, then BellSouth shall have the right to terinate, upon reasonable notice, this Agreeent with respect to use of, or Services provided through use of, the affected facilities or equipent (including software), but solely to the extent required to avoid the infringeent clai Exception to Obligations. Neither Party's obligations under this Section shall apply to the extent the infringeent is caused by: (i) odification of the facilities or CCCS 9 of 310

10 Market Agreeent General Ters and Conditions Page 8 equipent (including software) by the indenitee; (ii) use by the indenitee of the facilities or equipent (including software) in cobination with equipent or facilities (including software) not provided or authorized by the indenitor, provided the facilities or equipent (including software) would not be infringing if used alone; (iii) conforance to specifications of the indenitee which would necessarily result in infringeent; or (iv) continued use by the indenitee of the affected facilities or equipent (including software) after being placed on notice to discontinue use as set forth herein Exclusive Reedy. The foregoing shall constitute the Parties' sole and exclusive reedies and obligations with respect to a third party clai of intellectual property infringeent arising out of the conduct of business under this Agreeent. 8. Proprietary and Confidential Inforation 8.1 Proprietary and Confidential Inforation. It ay be necessary for BellSouth and CUSTOMER, each as the Discloser, to provide to the other Party, as ipient, certain proprietary and confidential inforation (including trade secret inforation) including but not liited to technical, financial, arketing, staffing and business plans and inforation, strategic inforation, proposals, request for proposals, specifications, drawings, aps, prices, costs, costing ethodologies, procedures, processes, business systes, software progras, techniques, custoer account data, call detail records and like inforation (collectively the Inforation ). All such Inforation conveyed in writing or other tangible for shall be clearly arked with a confidential or proprietary legend. Inforation conveyed orally by the Discloser to ipient shall be designated as proprietary and confidential at the tie of such oral conveyance, shall be reduced to writing by the Discloser within forty-five (45) days thereafter, and shall be clearly arked with a confidential or proprietary legend. 8.2 Use and Protection of Inforation. ipient agrees to protect such Inforation of the Discloser provided to ipient fro whatever source fro distribution, disclosure or disseination to anyone except eployees of ipient with a need to know such Inforation solely in conjunction with ipient s analysis of the Inforation and for no other purpose except as authorized herein or as otherwise authorized in writing by the Discloser. ipient will not ake any copies of the Inforation inspected by it. 8.3 Exceptions ipient will not have an obligation to protect any portion of the Inforation which: (a) is ade publicly available by the Discloser or lawfully by a non-party to this Agreeent; (b) is lawfully obtained by ipient fro any source other than Discloser; (c) is previously known to ipient without an obligation to keep it Version: 3Q06 MBR 07/18/06 CCCS 10 of 310

11 Version: 3Q06 MBR 07/18/06 Market Agreeent General Ters and Conditions Page 9 confidential; or (d) is released fro the ters of this Agreeent by Discloser upon written notice to ipient. 8.4 ipient agrees not to publish or use the Inforation for any advertising, sales or arketing prootions, press releases, or publicity atters that refer either directly or indirectly to the Inforation or to the Discloser or any of its affiliated copanies. 8.5 The disclosure of Inforation neither grants nor iplies any license to the ipient under any tradeark, patent, copyright, application or other intellectual property right that is now or ay hereafter be owned by the Discloser. 8.6 Survival of Confidentiality Obligations. The Parties rights and obligations under this Section 8 shall survive and continue in effect until two (2) years after the expiration or terination date of this Agreeent with regard to all Inforation exchanged during the ter of this Agreeent. Thereafter, the Parties rights and obligations hereunder survive and continue in effect with respect to any Inforation that is a trade secret under applicable law. 9. Disclosure Notwithstanding anything in this Agreeent, upon execution hereof, BellSouth ay use CUSTOMER s nae in connection with a press release relating to the execution of this Agreeent. In addition, BellSouth shall post this Agreeent or file it with the FCC, as appropriate, to the extent such posting or filing ay be required in BellSouth s reasonable discretion. Except as expressly set forth in this Agreeent, neither Party will disclose any ters of this Agreeent to any third party unless required by law, by court order, or by order of a regulatory body having jurisdiction over the Party fro who disclosure is sought. 10. Resolution of Disputes 11. Taxes In the event the Parties are unable to resolve any disputes that arise under this Agreeent, the aggrieved Party shall pursue resolution of such dispute(s) with the appropriate federal or state court of copetent jurisdiction.. Except as otherwise provided in this Agreeent, nothing herein shall be deeed a waiver of any right of a Party to pursue any reedy at law or in equity Definition. For purposes of this Section, the ters taxes and fees shall include but not be liited to federal, state or local sales, use, excise, gross receipts or other taxes or tax-like fees of whatever nature and however designated (including tariff surcharges and any fees, charges or other payents, contractual or otherwise, for the use of public streets or rights of way, whether designated as franchise fees or otherwise) iposed, or sought to be iposed, on or with respect CCCS 11 of 310

12 Market Agreeent General Ters and Conditions Page 10 to the Services furnished hereunder or easured by the charges or payents therefore, excluding any taxes levied on incoe Taxes and Fees Iposed Directly On Either Providing Party or Purchasing Party Taxes and fees iposed on the providing Party, which are not peritted or required to be passed on by the providing Party to its custoer, shall be borne and paid by the providing Party Taxes and fees iposed on the purchasing Party, which are not required to be collected and/or reitted by the providing Party, shall be borne and paid by the purchasing Party Taxes and Fees Iposed on Purchasing Party But Collected And Reitted By Providing Party Taxes and fees iposed on the purchasing Party shall be borne by the purchasing Party, even if the obligation to collect and/or reit such taxes or fees is placed on the providing Party To the extent peritted by applicable law, any such taxes and/or fees shall be shown on applicable billing docuents between the Parties. The purchasing Party shall reain liable for any such taxes and fees regardless of whether they are actually billed by the providing Party at the tie that the respective Service is billed If the purchasing Party deterines that in its opinion any such taxes or fees are not payable, the providing Party shall not bill such taxes or fees to the purchasing Party if the purchasing Party provides written certification, reasonably satisfactory to the providing Party, stating that it is exept or otherwise not subject to the tax or fee, setting forth the basis therefor, and satisfying any other requireents under applicable law. If any authority seeks to collect any such tax or fee that the purchasing Party has deterined and certified not to be payable, or any such tax or fee that was not billed by the providing Party, the purchasing Party ay contest the sae in good faith, at its own expense. In any such contest, the purchasing Party shall proptly furnish the providing Party with copies of all filings in any proceeding, protest, or legal challenge, all rulings issued in connection therewith, and all correspondence between the purchasing Party and the taxing authority In the event that all or any portion of an aount sought to be collected ust be paid in order to contest the iposition of any such tax or fee, or to avoid the existence of a lien on the assets of the providing Party during the pendency of such contest, the purchasing Party shall be responsible for such payent and shall be entitled to the benefit of any refund or recovery. Version: 3Q06 MBR 07/18/06 CCCS 12 of 310

13 Market Agreeent General Ters and Conditions Page If it is ultiately deterined that any additional aount of such a tax or fee is due to the iposing authority, the purchasing Party shall pay such additional aount, including any interest and penalties thereon Notwithstanding any provision to the contrary, the purchasing Party shall protect, indenify and hold harless (and defend at the purchasing Party s expense) the providing Party fro and against any such tax or fee, interest or penalties thereon, or other charges or payable expenses (including reasonable attorney fees) with respect thereto, which are incurred by the providing Party in connection with any clai for or contest of any such tax or fee Each Party shall notify the other Party in writing of any assessent, proposed assessent or other clai for any additional aount of such a tax or fee by a taxing authority; such notice to be provided, if possible, at least ten (10) days prior to the date by which a response, protest or other appeal ust be filed, but in no event later than thirty (30) days after receipt of such assessent, proposed assessent or clai Taxes and Fees Iposed on Providing Party But Passed On To Purchasing Party Taxes and fees iposed on the providing Party, which are peritted or required to be passed on by the providing Party to its custoer, shall be borne by the purchasing Party To the extent peritted by applicable law, any such taxes and/or fees shall be shown on applicable billing docuents between the Parties. The purchasing Party shall reain liable for any such taxes and fees regardless of whether they are actually billed by the providing Party at the tie that the respective Service is billed If the purchasing Party disagrees with the providing Party s deterination as to the application or basis for any such tax or fee, the Parties shall consult with respect to the iposition and billing of such tax or fee. Notwithstanding the foregoing, the providing Party shall retain ultiate responsibility for deterining whether and to what extent any such taxes or fees are applicable, and the purchasing Party shall abide by such deterination and pay such taxes or fees to the providing Party. The providing Party shall further retain ultiate responsibility for deterining whether and how to contest the iposition of such taxes and fees; provided, however, that any such contest undertaken at the request of the purchasing Party shall be at the purchasing Party s expense In the event that all or any portion of an aount sought to be collected ust be paid in order to contest the iposition of any such tax or fee, or to avoid the existence of a lien on the assets of the providing Party during the pendency of such contest, the purchasing Party shall be responsible for such payent and shall be entitled to the benefit of any refund or recovery. Version: 3Q06 MBR 07/18/06 CCCS 13 of 310

14 Market Agreeent General Ters and Conditions Page If it is ultiately deterined that any additional aount of such a tax or fee is due to the iposing authority, the purchasing Party shall pay such additional aount, including any interest and penalties thereon Notwithstanding any provision to the contrary, the purchasing Party shall protect, indenify and hold harless (and defend at the purchasing Party s expense) the providing Party fro and against any such tax or fee, interest or penalties thereon, or other reasonable charges or payable expenses (including reasonable attorneys fees) with respect thereto, which are incurred by the providing Party in connection with any clai for or contest of any such tax or fee Each Party shall notify the other Party in writing of any assessent, proposed assessent or other clai for any additional aount of such a tax or fee by a taxing authority; such notice to be provided, if possible, at least ten (10) days prior to the date by which a response, protest or other appeal ust be filed, but in no event later than thirty (30) days after receipt of such assessent, proposed assessent or clai Mutual Cooperation. In any contest of a tax or fee by one (1) Party, the other Party shall cooperate fully by providing records, testiony and such additional inforation or assistance as ay reasonably be necessary to pursue the contest. Further, the other Party shall be reibursed for any reasonable and necessary out-of-pocket copying and travel expenses incurred in assisting in such contest. 12. Force Majeure In the event perforance of this Agreeent, or any obligation hereunder, is either directly or indirectly prevented, restricted, or interfered with by reason of fire, flood, earthquake, hurricane or like acts of God, wars, revolution, civil cootion, explosion, acts of public eney, ebargo, acts of the governent in its sovereign capacity, labor difficulties, including without liitation, strikes, slowdowns, picketing, or boycotts, unavailability of equipent fro vendor, changes requested by CUSTOMER, or any other circustances beyond the reasonable control and without the fault or negligence of the Party affected, the Party affected, upon giving propt notice to the other Party, shall be excused fro such perforance on a day-to-day basis to the extent of such prevention, restriction, or interference (and the other Party shall likewise be excused fro perforance of its obligations on a day-to-day basis until the delay, restriction or interference has ceased); provided, however, that the Party so affected shall use diligent efforts to avoid or reove such causes of non perforance and both Parties shall proceed whenever such causes are reoved or cease. 13. Modification of Agreeent 13.1 Subject to the provisions of Section 19 below, if CUSTOMER changes its nae or akes changes to its copany structure or identity due to a erger, acquisition, Version: 3Q06 MBR 07/18/06 CCCS 14 of 310

15 Market Agreeent General Ters and Conditions Page 13 transfer or any other reason, it is the responsibility of CUSTOMER to notify BellSouth of said change and request that an aendent to this Agreeent, if necessary, be executed to reflect said change, and notify the appropriate state coission of such odification of copany structure in accordance with the state rules governing such odification in copany structure, if applicable. Additionally, CUSTOMER shall provide BellSouth with any necessary supporting docuentation No odification, aendent, suppleent to, or waiver of the Agreeent or any of its provisions shall be effective and binding upon the Parties unless it is ade in writing and duly signed by the Parties. 14. Non-waiver of Legal Rights 14.1 Execution of this Agreeent by either Party does not confir or iply that the executing Party agrees with any decision(s) issued pursuant to the Telecounications Act of 1996 and the consequences of those decisions on specific language in this Agreeent. Neither Party waives its rights to appeal or otherwise challenge any such decision(s) and each Party reserves all of its rights to pursue any and all legal and/or equitable reedies, including appeals of any such decision(s); provided, however, that any odification of any law, rule or order issued pursuant to the Act shall not ipact or odify the Parties rights and obligations pursuant to this Agreeent. 15. Indivisibility The Parties intend that this Agreeent be indivisible and nonseverable, and each of the Parties acknowledges that it has assented to all of the covenants and proises in this Agreeent as a single whole and that all of such covenants and proises, taken as a whole, constitute the essence of the contract. The Parties further acknowledge that this Agreeent is intended to constitute a single transaction, that the obligations of the Parties under this Agreeent are interdependent, and that payent obligations under this Agreeent are intended to be recouped against other payent obligations under this Agreeent. 16. Severability If any provision of this Agreeent, or part thereof, shall be held invalid or unenforceable in any respect, the reainder of the Agreeent or provision shall not be affected thereby, provided that the Parties shall negotiate in good faith to reforulate such invalid provision, or part thereof, or related provision, to as closely reflect the original intent of the Parties as possible, consistent with applicable law, and to effectuate such portions thereof as ay be valid without defeating the intent of such provision. 17. Waivers Version: 3Q06 MBR 07/18/06 CCCS 15 of 310

16 Market Agreeent General Ters and Conditions Page 14 A failure or delay of either Party to enforce any of the provisions hereof, to exercise any option which is herein provided, or to require perforance of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or options, and each Party, notwithstanding such failure, shall have the right thereafter to insist upon the perforance of any and all of the provisions of this Agreeent. 18. Governing Law This Agreeent shall be governed by and construed and enforced in accordance with the laws of the State of Georgia without regard to its conflict of laws principles. 19. Assignents and Transfers 19.1 CUSTOMER shall not assign to any entity any right, obligation or duty, or any other interest hereunder, in whole or in part, without the prior written consent of BellSouth. No transfer or assignent of this Agreeent or of any right, obligation or duty, or any other interest hereunder to any entity by contract, erger, operation of law or otherwise, shall be effective without the prior written consent of BellSouth and any such assignent or transfer shall be null and void. BellSouth ay withhold its consent in its sole discretion. The assignee ust provide evidence of a Coission approved certification to provide Telecounications Service in each state that CUSTOMER is providing service. After BellSouth s consent, the Parties shall aend this Agreeent to reflect such assignents and shall work cooperatively to ipleent any changes required due to such assignent. Any such assignent shall be subject to applicable charges negotiated between the Parties. All obligations and duties of any Party under this Agreeent shall be binding on all successors in interest and assigns of such Party. No assignent or delegation hereof shall relieve the assignor of its obligations under this Agreeent in the event that the assignee fails to perfor such obligations. Notwithstanding anything to the contrary in this Section, CUSTOMER shall not assign this Agreeent to any Affiliate or non affiliated entity unless either (1) CUSTOMER pays all bills, past due and current, under this Agreeent, or (2) CUSTOMER s assignee expressly assues liability for payent of such bills In the event that CUSTOMER desires to transfer any Services hereunder to another provider of Telecounications Service, or CUSTOMER desires to assue hereunder any services provisioned by BellSouth to another provider of Telecounications Service, the Parties shall negotiate the applicable rates, ters and conditions for such a transfer and CUSTOMER shall follow BellSouth s established process for copleting such a transfer. 20. Notices Version: 3Q06 MBR 07/18/06 CCCS 16 of 310

17 Market Agreeent General Ters and Conditions Page With the exception of billing notices, governed by Attachent 3, every notice, consent or approval of a legal nature, required or peritted by this Agreeent shall be in writing and shall be delivered either by hand, by overnight courier or by US ail postage prepaid, or eail if an eail address is listed below, addressed to: BellSouth Telecounications, Inc. BellSouth Local Contract Manager 600 North 19 th Street, 10 th floor Biringha, AL and ICS Attorney Suite West Peachtree Street Atlanta, GA Telepak Networks, Inc. Version: 3Q06 MBR 07/18/ S. Congress Suite 1100 Jackson, MS Attn: Wesley Goings and Brunini, Grantha, Grower & Hewes, PLLC 248 E. Capitol, Suite 1400 Jackson, MS Attn: W. Ken Rogers, Esq. or at such other address as the intended recipient previously shall have designated by written notice to the other Party Unless otherwise provided in this Agreeent, notice by ail shall be effective on the date it is officially recorded as delivered by return receipt or equivalent, and in the absence of such record of delivery, it shall be presued to have been delivered the fifth day, or next business day after the fifth day, after it was deposited in the ails. CCCS 17 of 310

18 Version: 3Q06 MBR 07/18/06 Market Agreeent General Ters and Conditions Page Notwithstanding the foregoing, BellSouth shall post to the BellSouth Web site changes to business processes and policies and shall post to the BellSouth Web site or subit through applicable electronic systes, other business related notices not requiring an aendent to this Agreeent. 21. Rule of Construction No rule of construction requiring interpretation against the drafting Party hereof shall apply in the interpretation of this Agreeent. 22. Headings of No Force or Effect The headings of Articles and Sections of this Agreeent are for convenience of reference only, and shall in no way define, odify or restrict the eaning or interpretation of the ters or provisions of this Agreeent. 23. Multiple Counterparts This Agreeent ay be executed in ultiple counterparts, each of which shall be deeed an original, but all of which shall together constitute but one and the sae docuent. 24. Good Faith Perforance 25. Survival Each Party shall act in good faith in its perforance under this Agreeent and, in each case in which a Party s consent or agreeent is required or requested hereunder, such Party shall not unreasonably withhold or delay such consent or agreeent. The Parties obligations under this Agreeent which by their nature are intended to continue beyond the terination or expiration of this Agreeent shall survive the terination or expiration of this Agreeent. 26. Entire Agreeent 26.1 This Agreeent eans the General Ters and Conditions, the Attachents identified in Section 26.2 below, and all incorporated docuents, all of which, when taken together, are intended to constitute one indivisible agreeent. This Agreeent sets forth the entire understanding and supersedes prior agreeents between the Parties as they relate to the Services provided under this Agreeent and erges all prior discussions between the. Any orders placed under a prior coercial agreeent between the Parties for the sae like services subsequently provided pursuant to this Agreeent shall be governed by the ters of this Agreeent and CUSTOMER acknowledges and agrees that any and all aounts CCCS 18 of 310

19 Market Agreeent General Ters and Conditions Page 17 and obligations owed for services provisioned or orders placed under prior coercial agreeents between the Parties, related to the subject atter hereof, shall, as of the Effective Date, be due and owing under this Agreeent and be governed by the ters and conditions of this Agreeent as if such services or orders were provisioned or placed under this Agreeent; provided, however, that the rates of such prior coercial agreeent shall apply to such services until the effective date hereof. Neither Party shall be bound by any definition, condition, provision, representation, warranty, covenant or proise other than as expressly stated in this Agreeent or as is conteporaneously or subsequently set forth in writing and executed by a duly authorized officer or representative of the Party to be bound thereby This Agreeent includes Attachents and Exhibits, incorporated herein by reference with provisions for the following: Services Pre-Ordering, Ordering, Provisioning, Maintenance and Repair Billing 26.3 Any reference throughout this Agreeent to a tariff, industry guideline, BellSouth s technical guideline or reference, BellSouth business rule, guide or other such docuent containing processes or specifications applicable to the Services provided pursuant to this Agreeent, shall be construed to refer to only those provisions thereof that are applicable to these Services, and shall include any successor or replaceent versions thereof, all as they are aended fro tie to tie and all of which are incorporated herein by reference and ay be found at BellSouth s Interconnection Web site at: References to state tariffs throughout this Agreeent shall be to the tariff for the state in which the Services were provisioned. 27. Service Levels Notwithstanding any provision of any docuent referenced herein, BellSouth shall not be subject to any intervals, perforance easureents or penalty payents associated with the perforance of this Agreeent. Version: 3Q06 MBR 07/18/06 CCCS 19 of 310

20 TABLE OF CONTENTS General Ters and Conditions Definitions 1. Scope of this Agreeent 2. CLEC Certification 3. Ter of the Agreeent 4. Rates. 5. Court Ordered Requests for Call Detail ords and Other Subscriber Inforation 6. Liability and Indenification 7. Intellectual Property Rights and Indenification 8. Proprietary and Confidential Inforation 9. Resolution of Disputes 10. Taxes 11. Force Majeure 12. Modification of Agreeent 13. Non-waiver of Legal Rights 14. Indivisibility 15. Severability 16. Waivers 17. Governing Law 18. Assignents and Transfers 19. Notices 20. Rule of Construction 21. Headings of No Force or Effect 22. Multiple Counterparts 23. Good Faith Perforance 24. Survival 25. Entire Agreeent 26. Service Levels Version 3Q06 MBR 07/18/06 CCCS 20 of 310

21 TABLE OF CONTENTS (cont d) Attachent 1 - Services Attachent 2 Pre-Ordering, Ordering, Provisioning and Maintenance and Repair Attachent 3 Billing Version 3Q06 MBR 07/18/06 CCCS 21 of 310

22 General Ters and Conditions Market Agreeent Signature Page IN WITNESS WHEREOF, the Parties have executed this Agreeent the day and year written below. BellSouth Telecounications, Inc. Telepak Networks, Inc. By: Nae: Kristen E. Shore By: Nae: Title: Director Title: Date: Date: Version: 3Q06 MBR 07/18/06 CCCS 22 of 310

23 Market Agreeent Attachent 1 Page 1 Attachent 1 Services Version: 3Q06 MBR 07/18/06 CCCS 23 of 310

24 Market Agreeent Attachent 1 Page 2 TABLE OF CONTENTS 1. Introduction Wholesale Switch Port Services Wholesale Local Platfor Services Wholesale Switch Port Services and Wholesale Local Platfor Services Rates Call Related Databases Local Nuber Portability (LNP) Access To Nubers Wholesale Operator Call Processing Services Wholesale Directory Assistance Service Branding for Wholesale OCP and DA Wholesale Selective Call Routing Using Line Class Codes (SCR-LCC) Optional Daily Usage File (ODUF) Access Daily Usage File (ADUF) Centralized Message Distribution Syste (CMDS) Utilizing Revenue Accounting Office (RAO) Hosting Rates...35 Rates Exhibit A Version: 3Q06 MBR 07/18/06 CCCS 24 of 310

25 Market Agreeent Attachent 1 Page 3 Services 1. Introduction 1.1 Upon request of CUSTOMER, BellSouth shall provide Wholesale Switch Port Services and Wholesale Local Platfor Services as set forth in this Attachent, at the rates set forth in Exhibit A, and pursuant to the ters and conditions of this Agreeent. The ters and conditions set forth in this Attachent apply only when the Services are purchased pursuant to this Agreeent. The network coponents and associated services and functions that coprise Wholesale Switch Port Services and Wholesale Local Platfor Services or that ay be purchased in conjunction with Wholesale Switch Port Services and Wholesale Local Platfor Services under this Agreeent are available pursuant to this Agreeent only in conjunction with CUSTOMER s purchase of Wholesale Switch Port Services and Wholesale Local Platfor Services and are not available for individual purchase. These Services are provided to CUSTOMER solely for the purpose of providing Telecounications Services to CUSTOMER s End Users and CUSTOMER agrees not to use such Services for any other purpose. 1.2 The network coponents provided as part of the Services offered hereunder ay be subject to odification, retireent, upgrades or other changes. BellSouth shall provide notice of such changes in accordance with the applicable provisions of the FCC s network disclosure requireents and any other applicable laws or regulations. In the event a network coponent is retired, such network coponent is no longer available. 1.3 Unless otherwise specified, the ters and conditions in this Attachent related to Wholesale Switch Port Services apply to both DS0 and DS1 Wholesale Switch Port Services, and the ters and conditions in this Attachent related to Wholesale Local Platfor Services apply to both DS0 and DS1 Wholesale Local Platfor Services. 2. Wholesale Switch Port Services 2.1 Wholesale Switch Port Services provide the features, functions and capabilities of the local circuit switch, including dial tone, the ability to originate and terinate calls, and all vertical features that the local circuit switch is capable of providing and that are available When ordering Wholesale Switch Port Services, network coponents that allow for the transport and terination of originated calls and the receipt of calls destined for the switch port are included. These network coponents, which each have their own pricing eleents, include End Office Switching, Tande Switching and Coon Transport. CUSTOMER ay also order for an additional charge Version: 3Q06 MBR 07/18/06 CCCS 25 of 310

26 Market Agreeent Attachent 1 Page 4 switch based vertical features that the switch is capable of providing and that are available. BellSouth ay ake available certain ancillary services that ay be ordered with the Wholesale Switch Port Services. If available, such ancillary services will be ordered pursuant to BellSouth s tariff or pursuant to a BellSouth resale agreeent When ordering Wholesale Switch Port Services as a stand-alone eleent, CUSTOMER is responsible for obtaining other required eleents or coponents that ay be needed to provide its desired voice grade services. These eleents or coponent ay include but are not liited to: loops; collocation arrangeents; and collocation cross-connects between the Wholesale Switch Port Services and CUSTOMER s collocation arrangeent Wholesale Switch Port Services shall be provided at DS0 and DS1 levels. The following Wholesale Switch Ports are available for ordering. For services not currently available, CUSTOMER ay contact their Local Contract Manager and will follow the appropriate BellSouth processes DS0 Wholesale Switch Ports listed below shall be provisioned with a 2-wire voice grade port: DS0 Wholesale Switch Port - Residential Service; DS0 Wholesale Switch Port - Business Service; DS0 Wholesale Switch Port - Residential Service with Reote Call Forwarding; DS0 Wholesale Switch Port - Business Service with Reote Call Forwarding; or DS0 Wholesale Switch Port Coin DS1 Wholesale Switch Ports for Integrated Services Digital Network/Priary Rate ISDN (ISDN/PRI) and ISDN/PRI with Detailed E911 Locator Capability shall be provisioned with a 4-wire ISDN port End Office Switching. End Office Switching provides the switching function of connecting lines to lines, lines to trunks, trunks to lines, and trunks to trunks. End Office Switching includes the pricing eleents of End Office Switching Function and End Office Trunk Ports, as set forth in Exhibit A Tande Switching Tande Switching provides the following: (i) trunk connect facilities, which include, but are not liited to, the connection between trunk terination at a cross connect panel and switch trunk card; (ii) the basic switch trunk function of connecting trunks to trunks; and (iii) the functions that are centralized in the Version: 3Q06 MBR 07/18/06 CCCS 26 of 310