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Marketing & Operating Agreement

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Sectors: Telecommunications
Governing Law: North Carolina, View North Carolina State Laws
Effective Date: October 06, 1994
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PORTIONS OF THIS EXHIBIT MARKED BY BRACKETS ("[_____]") OR OTHERWISE IDENTIFIED HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***



MARKETING AND OPERATING AGREEMENT







THIS AGREEMENT made and effective as of October 6, 1994 by and between DukeNet Communications, Inc. (DCI), a North Carolina corporation and Interstate FiberNet (IFN), a Georgia general partnership,



WHEREAS, DCI has or will obtain any and all necessary regulatory authority required to provide Carrier's carrier service in North Carolina and South Carolina and desires to market such service to Customers in North Carolina and South Carolina through direct sales;



WHEREAS, IFN desires to market Carrier's carrier service to Customers as an Agent of DCI and to provide certain operating services;



NOW THEREFORE, in consideration of the premises and of the mutual agreements and understanding herein contained, the parties agree as follows:



1. Definitions

-----------



Affiliate: Any person that directly or indirectly through one or more

---------

intermediaries controls, or is controlled by, or is under common control

with, such entity. The term "control" means the possession, directly or

indirectly, of the power to direct or cause the direction of any person,

whether through the ownership of securities, by contract, or otherwise.



Customer: The person who obtains Fiber Optic capacity from DCI.

--------



Marks: Trademarks, service marks, trade names, insignia, symbols,

-----

decorative designs, or the like, DCI or its Affiliates own or are

licensed or sublicensed to use in connection with Fiber Optic Facilities,

and which DCI, in its sole discretion, determines IFN is licensed to use.



Party or Parties: DCI or IFN or both, as the context shall require.

----------------



Person: The term "person" means an individual, partnership, joint

------

venture, cooperation, trust, unincorporated organization or government or

any department or agency thereof.



Representative: A person authorized to perform specific acts on behalf

--------------

of another Person.



2. Relationship of the Parties

---------------------------

2.1 Appointments: DCI hereby appoints IFN within North Carolina and

------------

South Carolina as its authorized non-exclusive Marketing Representative

for Carrier's carrier capacity and retains IFN to provide certain

operating services described herein subject to all of the terms and

conditions hereof.



2.2 Independent Contractors: The Parties hereto shall be construed to be

-----------------------

independent contractors. This Agreement shall not be considered to create

a joint venture, partnership or any other legal relationship







between the Parties where either Party shall share or be responsible

for the debts and liabilities of the other Party beyond the extent

expressly provided in and limited by this Agreement, or as giving the

right of one Party to legally bind the other in any manner or be able

to incur debts and liabilities on behalf of the other.



2.3 Common Carrier: Nothing in this Agreement shall be construed to make

--------------

IFN or DCI a Telephone Utility or Telephone Common Carrier or

obligate IFN or DCI to provide Telephone Utility or Telephone Common

Carrier services.



3. Contract Period

---------------



3.1 Term: The term of this Agreement shall be ten (10) years, commencing

----

on October 6, 1994, unless otherwise terminated pursuant to the

provisions hereinafter provided.



3.2 Default: In the event IFN fails to perform any of its obligations

-------

under this Agreement and such failure continues unremedied for a

period of thirty (30) days after written notice is given by DCI to

IFN, then DCI may thereupon elect to cancel and terminate this

Agreement, which termination shall be effective immediately upon the

expiration of said thirty-day period.



3.3 Termination: Either party may terminate this Agreement upon the

-----------

occurrence of any of the events described below by giving the other

party written notice of its desire to terminate at least thirty (30)

days prior to the intended date of termination:



3.3.1 Regulatory constraints make it impossible or financially

burdensome for DCI to provide service.



3.3.2 DCI or IFN makes an assignment for the benefit of creditors;



3.3.3 A trustee or receiver of any substantial part of DCI or IFN's

assets is appointed by any Court; and



3.3.4 DCI or IFN, (1) has made any material misrepresentation or

omission in its application to establish an agency relationship

with the other Party or is convicted of or pleads no contest to

a felony or other crime or offense that is likely to

adversely affect the reputation of the other Party or its

affiliated companies; (2) attempts to make an unauthorized

assignment of this Agreement; (3) receives a notice of

violation of the terms or conditions of any license or permit

required by either Party or its employees in the conduct of its

business and fails to correct such violation; (4) fails to

comply with any provision of this Agreement, and does not

correct such failure within thirty (30) days after written

notice of such failure to comply is delivered to the other

Party, or (5) fails in any (6) consecutive months to comply

with any material provisions of this Agreement whether or not

such failures to comply are corrected after notice thereof is

delivered to the other Party. No waiver of either Party of any

deficiencies in one or more instances shall constitute a waiver

of either parties right

to terminate this Agreement in subsequent instances.



4. IFN Responsibilities

--------------------



In consideration for being appointed as Marketing Representative of DCI,

IFN assumes the following responsibilities:



4.1 Marketing: IFN shall maintain a trained and capable sales

---------

organization to market and provide marketing support for Carrier's

carrier service on DCI Fiber Optic Network and to work with DCI to

assure customer satisfaction.



4.2 Customers: IFN shall solicit customer agreements and engage in such

---------

promotional activities in connection therewith as may be reasonable

and lawful, all subject to and in accordance with the terms and

conditions hereof.



4.3 Advertising: IFN at it's cost shall actively promote and market DCI's

-----------

service to a degree and in a manner determined by IFN and DCI to be

reasonable, subject to terms and conditions described in Section 6.



4.4 Sales Activity: IFN shall act as a marketing representative appointed

--------------

by DCI for DCI. IFN shall use its best efforts to promote the sale

and use of DCI's services and to solicit customers using such

reasonable administrative procedures established from time to time by

DCI and IFN.



4.5 Customer Agreement: IFN shall present to potential customers a

------------------

customer agreement in the form attached hereto as Exhibit A (Customer

Agreement) as amended by DCI from time to time, and assist such

customers to complete and sign the customer agreement. IFN shall

insure that its personnel are adequately informed and able to so

assist such customers. The rate, charges, and service to be set forth

in the customer agreement shall be those agreed to in writing by IFN

and DCI. IFN shall not represent or agree that customers will be

charged for service at any rate other than those so established.



4.6 Operating Services: With regard to all carriers's carrier services

------------------

marketed by IFN and services not marketed by IFN but those where DCI

has requested that IFN provide Operating Services (collectively

"Covered Services"), IFN shall provide the following Operating

Services:



4.6.1 Provision Circuits: IFN will design circuitry for and connect

------------------

to DCI's network all customers of Covered Services.



4.6.2 Collection: IFN shall bill and collect from customers of

----------

Covered Services all charges for services provided by DCI and

provide DCI with a monthly statement .



4.6.3 Monitoring: IFN will monitor all portions of DCI's network

----------

providing Covered Services.









4.6.4 Dispatching: IFN will dispatch DCI-approved repair technicians

-----------

to make repairs on DCI's network as required to provide Covered



4.6.5 Customer Service: IFN will receive and respond to all customer

----------------

calls or inquiries regarding Covered Services. IFN shall

provide prompt, courteous, and efficient service to the

customer, shall be governed in all dealing with customer by the

highest standards of honesty, integrity and fair dealings, and

shall do nothing which would tend to discredit, dishonor,

reflect adversely upon or in any manner injure the reputation

of DCI or IFN. IFN shall at all times faithfully, honestly and

diligently perform its obligations hereunder.



4.7 Provisions: IFN shall take no action inconsistent with the provisions

----------

of the agreement and shall reasonably support DCI's efforts in

providing service to customers.



4.6 Confidentiality: Neither Party shall without the other's specific

---------------

prior written consent, disclose to any third party, including but not

limited to customers, any information supplied to it by the other

which has b
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