Common use of Port Commitment Clause in Contracts

Port Commitment. Section 1.1(a) of the Agreement hereby amended to read as follows: a. Customer hereby commits that, for each month after the “Ramp Period” (as defined below), Customer shall have installed and be responsible for payment of the charges set forth in Section 2 for the number of ports of Managed Modem Service within each rate center Tier as set forth below. The “Ramp Period” commences on the date of execution of this Amendment and ends on December 31, 2002 Tier A Port Commitment: [****] Tier B/C (Cumulative) Port Commitment: [****] Total Port Commitment (Tiers A, B and C) as of 12/31/02: [****] (the “Port Commitment”). In addition, on or before December 31, 2003, the total Port Commitment (Tiers A, B and C) shall be increased to [****] ports. Customer may COLLECTED satisfy the Tier B/C Port Commitment with purchase of additional ports in Tier A rate centers (but not vice versa). Customer’s compliance with the Port Commitment shall be contingent upon the deployment of ports by Level 3 in substantial compliance with the terms of this Agreement. Subject to the limitations on Level 3’s obligations to install ports as set forth in Section 1.2(c) below, Level 3 agrees that Managed Modem Service will be available to satisfy Customer’s Port Commitment by the end of the Ramp Period. The period of time commencing upon October 12, 1999 and ending six (6) years thereafter shall be the “Term”. In any period where Customer fails to meet the Port Commitment, Customer will be billed for and will pay the Port Charges that would have otherwise been payable had Customer satisfied the Port Commitment (the “Shortfall Fee”). The Shortfall Fee (if any is ever due) for the Tier B and C Port Commitment that must be satisfied by December 31, 2002 shall be calculated using a dispersion of ports between Tiers that is equal to Customer’s port dispersion for installed ports. The Shortfall Fee (if any is ever due) for the Port Commitment that must be satisfied by December 31, 2003 shall be calculated based on the Port Charge for Tier A ports. The foregoing remedy will be Level 3’s sole and exclusive remedy for a failure of Customer to satisfy the requirements of this Section. Notwithstanding the foregoing, Customer shall not be liable for payment of the Shortfall Fee to the extent that Customer’s failure to satisfy the Port Commitment is the direct result of Level 3’s failure or inability to deliver Managed Modem Services ordered by Customer in compliance with Section 1.2 hereof.

Port Commitment. Section 1.1(a) of the Agreement hereby amended to read as follows: a. Customer hereby commits that, for each month after the “Ramp Period” (as defined below), Customer shall have installed and be responsible for payment of the charges set forth in Section 2 for the number a minimum of ports of Managed Modem Service within each rate center Tier as set forth below. The “Ramp Period” commences on the date of execution of this Amendment and ends on December 31, 2002 Tier A Port Commitment: [****] Tier B/C ports of Managed Modem Service. During each month of the “Ramp Period” (Cumulative) Port Commitmentwhich commences on the Effective Date and ends on June 30, 2001), Customer shall have installed and be responsible for payment of such charges for the following total minimum number of Managed Modem Service ports: March ‘00 [****] Total Port Commitment (Tiers A, B and C) as of 12/31/02: April ‘00 [****] May ‘00 [****] June ‘00 [****] July ‘00 [****] August ‘00 [****] September ‘00 [****] October ‘00 [****] November ‘00 [****] December ‘00 [****] January ‘01 [****] February ‘01 [****] March ‘01 [****] April ‘01 [****] May ‘01 [****] June ‘01 [****] (the “Port Commitment”). In addition, on or before December 31, 2003, Customer’s compliance with the total Port Commitment (Tiers A, B and C) for the Ramp Period shall be increased to measured on the last day of the each month listed above (so that, by the end of March 2000, Customer must meet the Port Commitment of [****] ports. Customer may COLLECTED satisfy ports of Managed Modem Service, and by the Tier B/C Port Commitment with purchase end of April 2000, an additional [****] ports in Tier A rate centers (but not vice versamust be installed, etc.). Customer’s compliance with the Port Commitment shall be contingent upon the deployment of ports by Level 3 in substantial compliance with the terms of this Agreement. Subject to the limitations on Level 3’s obligations to install ports as set forth in Section 1.2(c) below, Level 3 agrees that Managed Modem Service will be available to satisfy Customer’s Port Commitment by the end of during the Ramp Period. The period of time commencing upon October 12, 1999 and ending six (6) years thereafter shall be the “Term”. In any period month where Customer fails to meet the Port Commitment, Customer will be billed for and will pay the Port Charges that would have otherwise been payable had Customer satisfied the Port Commitment (the “Shortfall Fee”). The Shortfall Fee (if any is ever due) for the Tier B and C Port Commitment that must be satisfied by December 31, 2002 shall be calculated using a dispersion of ports between Tiers that is equal to Customer’s port dispersion for installed ports. The Shortfall Fee (if any is ever due) for the Port Commitment that must be satisfied by December 31, 2003 shall be calculated based on the Port Charge for Tier A ports. The foregoing remedy will be Level 3’s sole and exclusive remedy for a failure of Customer to satisfy the requirements of this Section. Notwithstanding the foregoing, Customer shall not be liable for payment of the Shortfall Fee to the extent that Customer’s failure to satisfy the Port Commitment is the direct result of Level 3’s failure or inability to deliver Managed Modem Services ordered by Customer in compliance with Section 1.2 hereof. b. At any time following January 1, 2003, Customer may decommission any port installed under this Agreement [****], provided, however, that the following conditions are satisfied: (i) such decommissioning may occur only if Customer is reducing its consumption and use of dial-up access services (whether provided by Level 3, Customer or others); (ii) such decommissioning must be reasonably proportional to Customer’s actual decommissioning of AOLnet as a percentage of the total number of all ports (whether provided by Level 3, other vendors or Customer) comprising AOLnet prior to such decommissioning (e.g., in the event Customer is in the process of decommissioning a total of twenty percent (20%) of all AOLnet ports, then Customer, as part of such decommissioning process, may decommission up to twenty percent (20%) of the ports installed under this Agreement); and (iii) no port installed under this Agreement may be decommissioned pursuant to this Section 1.1(b) unless and until Customer has paid Level 3 a minimum of [****] of Port Charge for such port. Upon the later of (i) the date of decommission requested by Customer in the written notice delivered hereunder, or (ii) the end of the [****] following delivery of the notice, Customer shall no longer be liable for the Port Charge (or any Shortfall Fee or termination charge) with respect to such port; provided, however, that in the event Level 3 elects to decommission a port earlier than the date set forth in either subsection (i) or (ii) above, Customer shall no longer be liable for any charges relating to such port as of the actual decommissioning date for such port. Level 3 reserves the right to audit Customer’s relevant books and records to verify compliance with Subsections (i) through (iii) above pursuant to the audit conditions set forth in Section 2.2(e) (except that Level 3 may perform a separate audit each time Customer notifies Level 3 that it is decommissioning a portion of AOLnet).