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EXHIBIT 10.15
CONFIDENTIAL TREATMENT REQUESTED
MASTER HIGH SPEED DATA SERVICES
AGREEMENT
This MASTER HIGH SPEED DATA SERVICES AGREEMENT (this "Agreement") is entered
into as of the 12 day of November 1998 ("Effective Date"), by and between I(3)S,
INC., a Texas corporation, with an address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("I(3)S"); and GTE MEDIA VENTURES INCORPORATED, a
Delaware corporation, with an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ ("GTE").
RECITALS
WHEREAS, GTE currently provides wireless and wireline, cable television
programming and other services to multiple dwelling units ("MDUs") and their
residents in several metropolitan markets throughout the United States;
WHEREAS, I(3)S provides broadband network services, including, without
limitation, high speed data services, as more specifically described in Exhibit
D attached hereto and incorporated herein by reference ("HSDS"), to multiple
system franchise cable operators ("MSOs"), private cable operators ("PCOs"),
apartment owners, and real estate investment trusts ("REITs"), nationwide; and
WHEREAS, GTE desires to enter into an agreement with I(3)S to provide HSDS to
MDUs selected by GTE in its business judgment, in accordance with the terms of
this Agreement (collectively, the "Properties" and individually, a "Property").
NOW, THEREFORE, the parties hereto hereby covenant and agree as follows:
ARTICLE 1
REPRESENTATIONS AND WARRANTIES
1.1 REPRESENTATIONS AND WARRANTIES OF GTE. In order to induce I(3)S to enter
into this Agreement, GTE represents and warrants (which representations
and warranties shall survive the delivery of this Agreement) as follows:
(a) ORGANIZATION AND QUALIFICATION. GTE is a corporation duly organized
and validly existing and in good standing under the laws of the
State of Delaware; has all requisite power and authority to own its
property and assets and to carry on its business as, and in the
places where, such property and assets are owned or such business
is now conducted; and is duly qualified to do business and is in
good standing in every other jurisdiction in which such
qualification is necessary or desirable.
(b) NO DEFAULTS. GTE is not in default under any instrument or
agreement existing as of the date hereof by which GTE is bound that
may adversely
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affect its ability to perform its obligations under this Agreement;
and no default hereunder has occurred and is continuing.
(c) TITLE. GTE has good, valid and indefeasible title to its property
that pertains in any way to the provision of HSDS on the
Properties, and all such property is free and clear of all adverse
claims, interests and liens, except as has been heretofore
disclosed in writing to I(3)S.
(d) ENFORCEABLE OBLIGATIONS; AUTHORIZATION. This Agreement is a legal,
valid and binding obligation of GTE, enforceable in accordance with
its terms; the making and performance by GTE of this Agreement have
been duly authorized by all necessary action; are within the power
and authority of GTE; will not contravene or violate any legal
requirement or charter of GTE; and will not result in the breach
of, or constitute a default under, any agreement, instrument,
judgement, license, order, franchise or permit to which GTE is a
party, or any of its property may be bound or affected.
(e) PERMITS, LICENSES, ETC. GTE possesses all material permits,
licenses, franchise rights, trademarks, trademark rights, trade
names, trade name rights and copyrights which are required to
conduct its business.
(f) MDU PROPERTY AND OPERATING AGREEMENTS. All MDU property or
operating agreements to which GTE is a party that pertain to the
Properties are in full force and effect, and no default has
occurred with regard to any such MDU property or operating
agreement that would adversely affect the provision of HSDS at any
of the Properties.
(g) INSURANCE. GTE carries insurance with reputable insurers covering
GTE's property pertaining to HSDS and to the business conducted
thereby, in such amounts and against such risks as are necessary
for the provision of services to the Properties.
(h) RIGHT OF ACCESS. GTE possesses the right under contract or will
obtain the contractual rights to allow an adequate contractual
access or entry for the provision of HSDS to all Properties where
HSDS is to be provided during the term of this Agreement in favor
of I(3)S.
(i) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by or on behalf of GTE shall survive the execution
and delivery of this Agreement, and any investigation at any time
made by or on behalf of I(3)S shall not diminish its rights to rely
thereon.
1.2 REPRESENTATIONS AND WARRANTIES OF I(3)S. In order to induce GTE to enter
into this Agreement, I(3)S represents and warrants (which representations
and warranties shall survive the delivery of this Agreement) as follows:
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(a) ORGANIZATION AND QUALIFICATION. I(3)S is a Texas corporation duly
organized and validly existing and in good standing under the laws
of the State of Texas; has all requisite power and authority to own
its property and assets and to carry on its business as, and in the
places where, such property and assets are owned or such business
is now conducted; and is duly qualified to do business and is in
good standing in the State of Texas and in every other jurisdiction
in which such qualification is necessary or desirable, including,
but not limited to, any jurisdictions contemplated by this
Agreement.
(b) NO DEFAULTS. I(3)S is not in default under any instrument or
agreement existing as of the date hereof by which I(3)S is bound
that may adversely affect its ability to perform its obligations
under this Agreement; and no default hereunder has occurred and is
continuing.
(c) TITLE. I(3)S has good, valid and indefeasible title to its property
that pertains in any way to HSDS, and all such property is free and
clear of all adverse claims, interests and liens, except as has
been heretofore disclosed in writing to GTE.
(d) ENFORCEABLE OBLIGATIONS; AUTHORIZATION. This Agreement is a legal,
valid and binding obligation of I(3)S, enforceable in accordance
with its terms; the making and performance by I(3)S of this
Agreement have been duly authorized by all necessary action; are
within the power and authority of I(3)S; will not contravene or
violate any legal requirement, shareholders agreement of I(3)S, or
articles of incorporation or bylaws of I(3)S; and will not result
in the breach of, or constitute a default under, any agreement,
instrument, judgement, license, order, franchise or permit to which
I(3)S is a party, or any of its property may be bound or affected.
(e) PERMITS, LICENSES, ETC. I(3)S possesses all material permits,
licenses, franchise rights, trademarks, trademark rights, trade
names, trade name rights, copyrights and all other applicable
intellectual property rights which are required to conduct the
business of HSDS and to perform I(3)S, obligations under this
Agreement.
(f) INSURANCE. I(3)S carries insurance with reputable insurers covering
I(3)S's property pertaining to HSDS and to the business conducted
thereby, in such amounts and against such risks as is necessary for
the provision of HSDS to the Properties, including (1) minimum
limits of $1,000,000 per occurrence for bodily injury or death, (2)
property damage liability with limits of at least $1,000,000 per
occurrence of personal injury, and (3) $1,000,000 General Policy
Aggregate (applicable to commercial general liability policies).
(g) I(3)S LICENSES. I(3)S possesses all requisite licenses and
applicable intellectual property rights from third parties
necessary to provide HSDS to the Properties and their residents.
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(h) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by or on behalf of I(3)S shall survive the
execution and delivery of this Agreement, and any investigation at
any time made by or on behalf of GTE shall not diminish its rights
to rely thereon.
ARTICLE 2
TERM
2.1 TERM. The term of this Agreement, including the financial provisions
pertaining thereto, shall be for five (5) years commencing on the
Effective Date; provided, however, that with respect to each Property
covered hereby, the term of this Agreement shall always be coterminous
with the term (including any extensions thereof) of the individual GTE
agreement with MDU property owners or management companies to provide
cable antennae television, direct broadcast satellite or
telecommunications services thereto.
ARTICLE 3
EXCLUSIVITY
3.1 EXCLUSIVITY. Although it is intended that GTE and I(3)S will offer and
provide HSDS, respectively, to the Properties, as mutually agreed between
the parties, in all metropolitan areas where GTE and I(3)S maintain
operations, neither GTE nor I(3)S shall be precluded from entering into
agreements with third parties to provide HSDS to such parties' customers
thereunder. Notwithstanding the foregoing, GTE shall not market, sell,
provide or promote, or cause to be marketed, sold, provided or promoted,
directly or indirectly, a service which is competitive with HSDS, in
whole or in part, to the Properties served by I(3)S under the terms and
provisions, and during the term, of this Agreement; accordingly, GTE
shall not proactively market any Internet access service that competes
with HSDS on the Properties during the term hereof; provided, however,
that for purposes of this Section 3.1, GTE's branded dial-up Internet
access service or GTE's branded DSL service shall not be considered a
competing service with HSDS.
ARTICLE 4
AFFIRMATIVE COVENANTS OF GTE
4.1 In consideration of the mutual agreements of the parties contained
herein, GTE unconditionally covenants and agrees to do and perform, or
cause to be done and performed, the following:
(a) GTE shall maintain, or cause to be maintained, in full force and
effect an adequate right of entry, which permits I(3)S hereunder to
provide HSDS to the Properties throughout the term of this
Agreement.
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(b) GTE shall maintain its corporate existence and remain in good
standing under the laws of and in every jurisdiction in which such
qualification to do business is necessary or desirable for purposes
of this Agreement.
(c) GTE shall not knowingly become in default and remain in default
under any instrument or agreement which GTE is bound that may
adversely affect its ability to perform its obligations under this
Agreement.
(d) GTE shall possess and maintain good, valid, indefeasible and
marketable title to its property that pertains in any way to its
performance under this Agreement, and all such property shall
remain free and clear of any adverse claims, interests and liens,
except as has been heretofore disclosed in writing to I(3)S, or
except for rights of subordination granted to lenders of MDU
owners.
(e) GTE shall maintain in full force and effect all material permits,
licenses, franchise rights, trademarks, trademark rights, trade
names, trade name rights and copyrights which are required to
conduct its business.
(f) GTE shall maintain in full force and effect all MDU property or
operating agreements pertaining to the provision of HSDS to the
Properties, but shall have the right, in its sole discretion, to
terminate any such agreement as long as I(3)S has not yet placed
equipment on the affected Property.
(g) GTE shall maintain in full force and effect adequate insurance with
reputable insurers covering GTE's property pertaining to HSDS, in
such amounts and against such risks as is necessary for the
provision of services to the Properties.
(h) GTE shall use all commercially reasonable efforts to assist I(3)S
in providing HSDS on Properties mutually selected by GTE and I(3)S
on terms and conditions mutually acceptable to I(3)S and GTE; which
Properties shall be added as Riders to Exhibit A attached hereto
and incorporated herein by reference for all purposes; provided,
however, that subject to I(3)S' right of first refusal set forth in
Section 8.2 hereof, GTE shall identify the Properties to be
submitted to I(3)S for the provision of HSDS under this Agreement,
and is not required to submit all of its MDU properties for the
provision of HSDS under this Agreement.
(i) As more specifically described in Exhibit B attached hereto and
incorporated herein by reference, for Properties covered by this
Agreement, GTE shall assume the obligations and timely pay all
operating and capital costs and expenses, if any, associated with
any and all:
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(1) Monthly recurring on-site headend, cabling and wiring
maintenance for equipment and facilities owned by GTE
(2) Leasing agent sales commissions and property owner revenue
sharing, if any, required under agreements between property
owners or managers and GTE
(3) Insurance on GTE-owned capital equipment related to HSDS
(4) GTE-specific training for HSDS
(5) MDU property CATV or other cabling and wiring upgrades
(6) Adequate on-site MDU space for the installation and
maintenance of I(3)S equipment
(7) Reasonable access to residents' apartments for the
installation and maintenance of customer premise equipment
(8) Customer service representatives (non-I(3)S personnel)
(9) Periodic access to the rent roll pertaining to the
Properties if permitted by GTE's agreements pertaining to
the Properties
ARTICLE 5
AFFIRMATIVE COVENANTS OF I(3)S
5.1 In consideration of the mutual agreements of the parties contained
herein, I(3)S covenants and agrees to do and perform, or cause to be done
and performed, the following:
(a) I(3)S shall maintain its corporate existence and remain in good
standing under the laws of the State of Texas and in every other
jurisdiction in which such qualification to do business is
necessary or desirable for its performance under this Agreement.
(b) I(3)S shall not become in default under any instrument or agreement
by which I(3)S is bound that may adversely affect its ability to
perform its obligations under this Agreement.
(c) I(3)S shall possess and maintain good, valid, indefeasible and
marketable title to its property that pertains in any way to HSDS,
and all such property shall remain free and clear of any adverse
claims, interests and liens, except as has been heretofore
disclosed in writing to GTE.
(d) I(3)S shall maintain in full force and effect all material permits,
licenses, franchise rights, trademarks, trademark rights, trade
names, trade name rights, copyrights, and all other applicable
intellectual property rights which are required to conduct the
business of HSDS and to perform I(3)S' obligations under this
Agreement.
(e) I(3)S shall maintain in full force and effect adequate insurance
with reputable insurers covering I(3)S's property pertaining to
HSDS and to the conduct of the
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business pertaining thereto, in such amounts and against such risks
as are necessary for the provision of HSDS to the Properties,
including (1) minimum limits of $1,000,000 per occurrence for
bodily injury or death, (2) property damage liability with limits
of at least $1,000,000 per occurrence of personal injury, and (3)
$1,000,000 General Policy Aggregate (applicable to commercial
general liability policies).
(f) As more specifically described in Exhibit C attached hereto and
incorporated herein by reference, I(3)S shall assume and pay all
operating and capital costs and expenses associated with any and
all:
(1) Monthly recurring private Internet exchange points
(2) Monthly recurring switch maintenance
(3) Monthly recurring POP transport
(4) Monthly recurring Dallas network operations center costs
(including installation costs)
(5) Customer support IP technicians and engineers (NOC, Help Desk
and field personnel)
(6) I(3)S-specific training
(7) Insurance on I(3)S capital equipment
(8) Switch site equipment (including installation costs)
(9) Peering point routers
(10) Private Internet exchange point hardware (including
installation costs)
(11) I(3)S network infrastructure equipment
(12) Transport facilities
(13) Backbone transport facilities
(14) Peering interconnection facilities
(15) Recurring property maintenance (Lce, Router, DSU/CSU)
(16) Recurring IP headend maintenance
(17) CSR platform and services (non-GTE)
(18) Internet browser platform user license
(19) MDU property IP equipment (Lce, Router, DSU/CSU)
(20) IP master headend equipment
(21) Local loop transport costs
(22) Customer billing and collections
(23) HSDS marketing and promotion
(24) Any other costs associated with providing HSDS
(25) All activities referenced in Exhibit C to this Agreement
ARTICLE 6
HIGH SPEED DATA SERVICES PROVIDED BY I(3)S
6.1 DESCRIPTION OF HSDS. During the term of this Agreement, I(3)S shall
provide, or cause to be provided; the high speed data services, in whole
or in part, more particularly described and set forth in Exhibit D.
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6.2 HSDS SUBSCRIBER TERMS AND CONDITIONS. I(3)S and GTE shall jointly
develop, in good faith, an HSDS Subscriber Agreement to govern the
provision of HSDS on the Properties.
ARTICLE 7
HSDS SERVICE LEVEL STANDARDS
7.1 DEFINITION OF HSDS SERVICE LEVEL STANDARDS. Subject to the conditions,
qualifications and limitations set forth herein, including, without
limitation, those set forth in Exhibit E attached hereto and incorporated
herein by reference, during the term of this Agreement, I(3)S warrants
and represents that it shall offer, or cause to be offered, and shall
provide, or cause to be provided, HSDS at or exceeding the service level
standards pertaining to various aspects of HSDS, as more particularly
described and set forth in Exhibit E.
ARTICLE 8
REVENUE ALLOCATION; CUSTOMER ACCESS PRICING; BRANDING;
OTHER GTE SERVICES
8.1 REVENUE ALLOCATION. All monthly HSDS revenue generated by customers under
the Agreement will be billed and collected by I(3)S throughout the term
of the Agreement; provided, however, that, by the fifteenth (15th) day of
each month I(3)S shall pay GTE a revenue sharing fee ("GTE Revenue
Sharing Fee") calculated on the basis of customer access revenue
(exclusive of, without limitation, customer premise equipment
installation charges, customer service charges, customer equipment sales
or leases, sums "passed through" on a no-▇▇▇▇ up basis collected by or on
behalf of I(3)S, and comparable or similar charges) actually collected by
or on behalf of GTE and I(3)S for the immediately preceding month in
accordance with the following table:
Penetration on Property GTE Revenue Sharing Fee
(Sum of the total number of paying customers (Percentage of Gross Connectivity
per day, per month Revenue)
divided by the total units on property)
0% to 10% *
Greater than 10% to 15% *
Greater than 15% to 20% *
Greater than 20% to 30% *
Greater than 30% to 40% *
Greater than 40% *
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8.2 MODIFICATION OF REVENUE SHARING FEES; RIGHT OF FIRST REFUSAL BY I(3)S;
MOST FAVORED PARTNER PROVISION. GTE acknowledges and agrees that the
Revenue Sharing Fees set forth above are predicated upon I(3)S providing
HSDS to substantially all of the Properties mutually agreed between I(3)S
and GTE. With respect to I(3)S' provision of HSDS to GTE MDU properties,
I(3)S shall have the right of first refusal to provide HSDS to all MDU
properties served or to be served by GTE where GTE provides or will
provide satellite master antennae television, wireline CATV, or direct
broadcast satellite services and has elected, in its business judgment,
to offer HSDS to residents thereof. In the event that GTE presents an
MDU property to I(3)S for the provision of HSDS, I(3)S shall either
approve or refuse such MDU property within fifteen (15) business days
from the date GTE first presents the MDU property to I(3)S for approval.
In the event that I(3)S fails to respond within said fifteen (15) day
period; it will be deemed to have refused the right to provide HSDS to
said MDU property, unless the parties agree to extend said fifteen (15)
day approval period. During the term of this Agreement, I(3)S shall offer
GTE the most favored terms that I(3)S has then contracted for with other
non-affiliated third party partners pertaining to HSDS in the MDU market
for the same terms and conditions that GTE and I(3)S have entered into
under this Agreement for all future Properties that become subject to
this Agreement thereafter, unless said terms and conditions are less
favorable than the terms and conditions hereof in which case GTE may
elect to continue to adopt the terms and conditions of this Agreement.
8.3 CUSTOMER ACCESS PRICING; MARKET PLANS. With the intent to increase HSDS
penetration at each of the Properties served under this Agreement, I(3)S
shall upon consultation with GTE establish the price and rates at which
access to the HSDS is made available to customers and end-users, the
initial rates for which are set forth in Exhibit F attached hereto;
provided, however, that in the event that I(3)S is generally providing
access to the HSDS in the same Standard Metropolitan Statistical Area
(SMSA) at subscriber rates which are substantially lower than the rates
and prices I(3)S is then charging customers and end-users for the same
access services hereunder, then upon written request by GTE, I(3)S shall
lower the rates and prices hereunder to be competitive with the lower
rates generally being charged by I(3)S for said access services in the
same SMSA. Further, I(3)S shall remain competitive with the prices then
being charged by other comparable high speed, broadband Internet access
services generally being offered by commercial HSDS providers in the same
SMSA. Marketing plans pertaining to HSDS on the Properties shall be
established by I(3)S with significant input and advice from GTE, and
subject to GTE's approval, which approval shall not be unreasonably
withheld, delayed or conditioned.
8.4 BRANDING. With respect to HSDS, and the promotion thereof, upon
consultation with GTE, I(3)S shall establish the brand names, logos,
labels, trademarks, service marks and other such identifying promotional
characteristics pertaining to the same throughout the term of this
Agreement. It is intended by the parties that the HSDS will be branded
BroadbandNOW!(TM), and I(3)S hereby grants to GTE a royalty-free,
nonexclusive, nontransferable license during the term of this Agreement
to use the
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BroadbandNOW(TM) name, service ▇▇▇▇, trademark and logo in GTE's printed
material and advertising of any kind pertaining to the offering of HSDS
to MDU properties. Except as specifically set forth in this Agreement,
nothing in this Agreement shall grant, suggest or imply any authority for
one party to use the name, trademarks, service marks or trade names of
the other for any purpose whatsoever. Without the prior written consent
of GTE, which consent shall not be unreasonably withheld, delayed or
conditioned, I(3)S shall not acquire any right to use, and shall not use,
the name "GTE", the GTE logo, or any other GTE trademark or service ▇▇▇▇
known to I(3)S.
8.5 OTHER GTE SERVICES. With respect to other GTE services then being offered
by GTE and its affiliates throughout the term of the Agreement that may
be contracted for by I(3)S in connection with the provision of the HSDS
hereunder and pursuant to other agreements or relationships with third
parties, I(3)S and GTE shall negotiate in good faith to allow GTE or its
affiliates the opportunity to provide such services to I(3)S on terms and
conditions acceptable to I(3)S and at prices and rates which are
competitive with other similar or comparable providers of such services
in markets then being served by GTE, or as tariffed.
ARTICLE 9
SPECIFIC HSDS SOFTWARE WARRANTIES
9.1 OWNERSHIP; AUTHORITY. I(3)S represents and warrants that the software
utilized hereunder for the provision of HSDS (collectively, the
"Products") are free and clear of all liens and encumbrances, and that it
has full power and authority to utilize the rights granted to it with
respect to such Products without the consent of any other person or that
such consent has been obtained, and that to the knowledge of I(3)S the
Products utilized hereunder will not infringe or violate any copyright,
trade secret, trademark, patent or other intellectual property rights of
any third party
ARTICLE 10
INDEMNIFICATION
10.1 INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION. I(3)S shall defend,
indemnify and hold harmless GTE, its parent, subsidiaries, affiliates,
directors, officers, shareholders, employees and agents and its
successors and assigns, from and against any and all claims, demands,
actions, liabilities, losses, damages and expenses, including, without
limitation, settlement costs and reasonable attorneys' fees, arising out
of or relating to any actual or alleged infringement of any third party's
trade secrets, trademark, service ▇▇▇▇, copyright, patent or other
intellectual property rights (the "Intellectual Property Rights") in
connection with the use of said Intellectual Property Rights hereunder.
I(3)S's obligation pursuant to the immediately preceding sentence is
subject to the following conditions: (i) GTE shall give I(3)S prompt
written notice of all actions, claims or threats against GTE of
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infringement or violation of Intellectual Property Rights; (ii) GTE shall
permit I(3)S to elect to assume complete control of such claims at its
sole discretion and expense; provided, however, that GTE may elect, in
such case, to retain its own counsel, at GTE's expense, to represent
GTE's interest; and further, provided, however, that I(3)S will fully
cooperate with GTE and keep it fully informed and refrain from entering
into any settlement or agreed judgment without GTE's prior written
consent, which consent shall not be unreasonably withheld, delayed or
conditioned; and (iii) GTE shall cooperate fully with I(3)S in defending
against claims, including making known or available to the indemnifying
party, upon reimbursement of all costs associated with provision or
reproduction of, all records and document pertaining to claims.
10.2 CROSS INDEMNIFICATION FOR OBLIGATIONS UNDER THIS AGREEMENT. Each party
hereby agrees to indemnify, defend and hold harmless the other party from
any and all damages, liabilities, costs and expenses, including, without
limitation, reasonable attorneys' fees and expenses, arising out of,
under or in connection with the indemnitor party's duties, obligations,
actions or performance under this Agreement, or the indemnitor party's
gross negligence or willful misconduct.
10.3 LIMITATION OF LIABILITY. It is expressly understood that GTE makes no
projection, representation or warranty regarding the amount of revenue
that may be earned by I(3)S under this Agreement. Neither party shall be
liable to the other party for any indirect, incidental, special, or
consequential damages of any kind whatsoever; provided, however, that
this limitation of liability shall not apply to either party's
indemnification obligations under this Agreement.
ARTICLE 11
PROTECTION OF PROPRIETARY RIGHTS
11.1 DEFINITION. During the term of this Agreement, I(3)S and GTE will provide
to each other or will come into possession information relating to each
other's business which is considered confidential or proprietary (the
"Confidential Information"). Confidential Information shall include,
without limitation, the HSDS software and documentation, all of I(3)S's
and GTE's trade secrets and all know-how, design, invention, plan or
process and information relating to I(3)S's and GTE's respective business
operations, services, products, research and development and all other
information that is marked "confidential" or "proprietary" prior to or
upon disclosure, or which, if disclosed orally, is identified by the
disclosing party as being Confidential Information in writing within
thirty (30) days after its initial disclosure.
11.2 RESTRICTIONS; NON-DISCLOSURE; NON-USE. Each party shall use its best
efforts to maintain the confidentiality of such Confidential Information
and not show or otherwise disclose such Confidential Information to any
third parties, including, but
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not limited to, independent contractors and consultants, without the
prior written consent of the disclosing party. Each party shall use the
Confidential Information solely for purpose of performing its obligations
under this Agreement. Further, neither party shall use or exploit,
directly or indirectly, the Confidential Information of the other party.
There shall be no implied license granted to the receiving party by the
disclosing party to use Confidential Information by virtue of the
disclosure of such Confidential Information hereunder. Each party shall
indemnify and hold harmless the other party from any loss or damage the
other party may sustain as a result of the wrongful use or disclosure by
such party (or any employee, agent, licensee, contractor, assignee or
delegatee of the other party) of its Confidential Information.
11.3 AUTHORIZED DISCLOSURES. Notwithstanding the obligations described in
Section 9.2 above, neither party shall have any obligation to maintain
the confidentiality of any Confidential Information which: (i) is or
becomes publicly available by other than unauthorized disclosure, by the
receiving party; (ii) is independently developed by the receiving party
without reference to Confidential Information of the disclosing party as
established by documentary evidence in the receiving party's files; or
(iii) is received from a third party who has lawfully obtained such
Confidential Information without a confidentiality restriction. If
required by any court of competent jurisdiction or other governmental
authority, the receiving party may disclose to such authority, data,
information or material involving or pertaining to Confidential
Information to the extent required by such order, provided that the
receiving party shall first have used its best efforts to obtain a
protective order reasonably satisfactory to the disclosing party
sufficient to maintain the confidentiality of such data, information or
materials.
11.4 LIMITED ACCESS. Each party shall limit the use and access of Confidential
Information to such party's bonafide employees or agents who have a need
to know such information for purposes of conducting the receiving party's
business. Each party shall notify all employees and agents who have
access to Confidential Information or to whom disclosure is made that the
Confidential Information is the confidential, proprietary property of the
disclosing party and shall instruct such employees and agents to maintain
the Confidential Information in confidence.
11.5 CONTINUING OBLIGATIONS. Each party's obligations under this Article 9
shall survive the termination of this Agreement for three (3) years
thereafter.
ARTICLE 12
DEFAULT; EARLY TERMINATION; EXPIRATION
12.1 DEFAULT. Upon the occurrence of any of the following events, a party
shall be deemed to be in default under this Agreement:
(a) Material breach of any warranty or representation by the defaulting
party;
12
GTE HSDS Agreement
13
(b) Material failure to perform the defaulting party's obligations
hereunder, including with respect to I(3)S its failure to (i)
maintain the service standards set forth in Section 7.1 hereof, and
(ii) make the payments to GTE set forth in Section 8.1 hereof.
(c) The defaulting party's ceasing to conduct business in the normal
course, insolvency, the making of a general assignment for the
benefit of its creditors, suffering or permitting the appointment
of a receiver or similar officer for its business or assets or
availing itself of, or becoming subject to, any proceeding under
the United States Federal Bankruptcy Laws or any federal or state
statute relating to solvency or the protection of the rights of
creditors; or
(d) Making of any warranty, representation, statement or response in
connection with this Agreement which was untrue in any material
respect on the date it was made by the defaulting party.
12.2 REMEDIES. In the event the defaulting party fails to cure any default set
forth hereunder for a period of thirty (30) days after written notice of
such default by the non-defaulting party, the non-defaulting party may
terminate this Agreement without further obligation on the part of the
non-defaulting party, and pursue any claims at law or in equity against
the defaulting party.
12.3 FAILURE TO EXERCISE REMEDY. The remedies set forth above are cumulative,
but the non-defaulting party is under no obligation to exercise any such
remedy. The exercise of, or failure to exercise, any such remedies shall
not prevent any future exercise of the same or any other remedies or
release the defaulting party from its obligations under this Agreement.
12.4 EFFECT OF TERMINATION. Early termination or expiration of this Agreement
shall not impair either party's then accrued rights, obligations,
liabilities or remedies hereunder.
12.5 EXAMINATION; AUDIT RIGHTS. I(3)S agrees that GTE has the right to audit
or otherwise examine, or have audited or otherwise examined, on an annual
basis all applicable books, records, documents, and other data of I(3)S,
including computations and projections, specifically and only relating to
the GTE Revenue Sharing Fee under this Agreement, and I(3)S' billing and
collection of revenues from HSDS subscribers. If GTE's audit reveals that
GTE has been underpaid its GTE Revenue Sharing Fee by a percentage in
excess of five percent (5%) over the period of the audit, I(3)S shall pay
GTE's reasonable costs of the audit, in addition to paying all past due
amounts owed to GTE. I(3)S shall make available at its principal place of
business at all reasonable times during normal business hours the
materials described in the first sentence of this Section 12.5 for
examination, audit, or reproduction. In the event that this Agreement is
completely or partially terminated, the records relating to the GTE
Revenue Sharing Fee shall be made
13
GTE HSDS Agreement
14
available for two (2) years after any termination of this Agreement.
Records pertaining to appeals or to litigation or the settlement of
claims arising under or relating to either party's performance under this
Agreement shall be made available until disposition of such appeals,
litigation or claims.
ARTICLE 13
NOTICE; PUBLIC DISCLOSURES
13.1 NOTICE. Any notice, demand or other communication required or permitted
by any provision of this Agreement shall be deemed to have been
sufficiently given or served for all purposes when delivered in person or
sent by registered or certified mail, return receipt requested, all
postage and other charges prepaid, to the respective addresses of the
parties first noted above, or at such other address as may be designated
by notice from such party to the other party pursuant to their terms of
this section. In addition, a copy of all notices given to GTE under this
Agreement shall be sent to: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Law Department, GTE
Communications Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇; ▇▇▇-▇▇▇-▇▇▇▇ (Fax).
13.2 PUBLIC DISCLOSURES. All media releases, public announcements, and public
disclosures by either party of its employees, agents or representatives
relating to this Agreement or the subject matter hereof, excluding any
announcement beyond the control of this disclosing party, will be
approved by the non-disclosing party in writing prior to release.
ARTICLE 14
MISCELLANEOUS
14.1 ENTIRE AGREEMENT. This Agreement, together with the schedules,
attachments and exhibits attached hereto or referred to herein,
constitutes the entire Agreement and understanding among the parties
hereto and is the final expression of their Agreement and no evidence of
oral or other written promises shall be binding. All other prior
agreements or understandings related to the subject hereof among the
parties, whether written or oral, shall be null and void and of no
further force and effect upon the execution of this Agreement. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
14.2 INCORPORATION BY REFERENCE. The schedules, exhibits and attachments
referred to herein or attached hereto are hereby incorporated in and to
this Agreement and made a part hereof by this reference.
14.3 AMENDMENT; MODIFICATION. This Agreement may not be supplemented, amended,
14
GTE HSDS Agreement
15
modified or otherwise altered except by written instrument executed by
all the parties hereto and no course of dealing or trade usage among or
between the parties shall be effective to supplement, amend, modify or
alter this Agreement.
14.4 WAIVER. The failure to enforce or to require the performance at any time
of any of the provisions of this Agreement herein shall in no way be
construed to be a waiver of such provisions, and shall not affect either
the validity of this Agreement, any part hereof or the right of any party
thereafter to enforce each and every provision in accordance with the
terms of this Agreement.
14.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS
CONFLICTS OR CHOICE OF LAWS. VENUE FOR ANY ACTION BROUGHT UNDER THIS
AGREEMENT SHALL BE IN DALLAS, DALLAS COUNTY, TEXAS.
14.6 SEVERABILITY. If any severable provision of this Agreement is deemed
invalid or unenforceable by any judgment of a court of competent
jurisdiction, the remainder of this Agreement shall not be affected by
such judgment, and this Agreement shall be carried out as nearly as
possible according to its original terms and intent, unless to do so
would substantially impair the underlying purposes of this Agreement.
14.7 CAPTIONS. The captions appearing in this Agreement are included solely
for convenience of reference and shall not be construed or interpreted to
affect the meaning or interpretation of this Agreement.
14.8 FORCE MAJEURE. Neither party shall be responsible for any failure to
comply with or for any delay in performance of the terms of this
Agreement, including, but not limited to, delays in delivery, where such
failure or delay is directly or indirectly caused by or results from
events of force majeure beyond the control of either party. These events
shall include, but not be limited to, fire, flood, earthquake, accident,
civil disturbance, war, acts of God, or acts or government.
14.9 HIRING PROHIBITED. Unless otherwise mutually agreed between the parties,
during the term of this Agreement and for a period of one (1) year
thereafter, neither party shall solicit for hire or hire any employee of
the other party who has performed services under this Agreement.
14.10 PERFORMANCE REVIEW. In the event of any dispute or controversy between
the parties of any kind or nature, upon the written request of either
party, each of the parties will appoint a designated officer whose task
it will be to meet for the purpose of resolving such dispute or
controversy or to negotiate for an adjustment to any provision of this
Agreement needed to resolve such dispute or controversy. Such officers
will discuss the dispute or controversy and negotiate in good faith in an
effort to resolve the dispute or controversy or renegotiate the
applicable section
15
GTE HSDS Agreement
16
or provision of this Agreement without the necessity of any formal
proceeding relating thereto. No formal proceedings for the judicial or
arbitrational resolution of such dispute or controversy may be commenced
until either or both of the designated officers conclude in good faith
that an amicable resolution through continued negotiation of the matter
at issue is not likely to occur, or until thirty (30) days have elapsed
from the date of the written request, whichever is sooner.
14.11 BINDING NATURE; ASSIGNABILITY. This Agreement will be binding on the
parties hereto, and their respective successors and assigns. Upon prior
written notice to the other party, either party may assign its rights and
delegate its duties under this Agreement; provided however, that the
assignee party must unconditionally assume in writing, and agree to be
bound by, the right, duties and obligations of the assignor party under
this Agreement. Notwithstanding this section, no consent is required for
an assignment of this Agreement by GTE to a parent, subsidiary or
affiliate.
14.12 RELATIONSHIP OF THE PARTIES. Notwithstanding anything to the contrary in
this Agreement, under no circumstances will either party be deemed to be
in any relationship with the other party carrying with it fiduciary or
trust responsibilities. The parties do not intend for this Agreement or
the relationship established thereby to be considered the formation of a
joint venture or partnership between the parties for any purpose. The
persons provided by each party for the performance of its obligations
hereunder shall be solely that party's employees and shall be under the
exclusive direction and control of that party. They shall not be
considered employees of the other party for any purpose. Each party shall
be responsible for compliance with all laws, rules and regulations
involving, but not limited to, employment of labor, hours of labor,
health and payment of taxes, including federal, state and municipal
taxes, chargeable or assessed with respect to its employees, such as
Social Security, unemployment, workers' compensation, disability
insurance, and federal and state withholding. Each party shall indemnify
the other party for any loss, damage, liability, claim, demand, or
penalty that may be sustained by reason of its failure to comply with
this provision.
14.13 COMPLIANCE WITH APPLICABLE LAWS. Each party represents and warrants that
the services performed by such party pursuant to this Agreement shall be
in compliance with all applicable federal and state laws, rules and
regulations.
16
GTE HSDS Agreement
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
I(3)S, INC. GTE MEDIA VENTURES INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------- ---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: President
Vice President, Business Development --------------
& Corporate Affairs Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------
Date: 11/4/98 Date: 11/12/98
------------------ -------------------------
[STAMP]
APPROVED AS TO FORM
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 11-10-98
-------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
GTE LEGAL DEPT.
17
GTE HSDS Agreement
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EXHIBIT A
MDU PROPERTY RIDERS
FORM OF MDU PROPERTY RIDER
(Type of Information Required)
1. MDU Property Owner/Agent: ________
2. Term of Property Agreement: ________
3. Acknowledgement by Owner of Right of HSDS Access to Property.
4. Location of MDU Property: ________
5. Contact Person/Leasing Agent: ________
6. CATV/MATV Site Survey Information:
7. Number of Units: ________
8. Number of Buildings: ________
9. Current Occupancy: ________
lO. Existing Property (including age) or New Build: ________
11. PC Ownership Survey: ________
12. Existing/Proposed Local Loop Trunking:
18
GTE HSDS Agreement
19
EXHIBIT B
PROPERTY NETWORK AND
LOCAL LOOP CHARACTERISTICS
GTE'S RESPONSIBILITIES:
o Build or obtain exclusive access to and maintain CATV infrastructure to
comply with FCC requirements.
o Build or obtain exclusive access to and maintain property CATV
infrastructure to provide bi-directional cable delivery to all subscribers.
o Maintain the upgraded bi-directional CATV infrastructure to exceed the
minimal operational requirements of the I(3)S cable modem system, which
are:
Minimum Cable Television Network Requirements Value
for ▇▇▇.▇▇▇ HSDS
Amplitude variations inband
Forward channel 5 dB total
Return channel 5 dB total
Group delay variation inband
Forward channel 60 nsec/MHz, 240 nsec total
Return channel 200 nsec/MHz, 800 nsec total
Maximum tap to tap variation 27 dB
Dynamic range on receiver -15 dBmV to +15 dBmV
Maximum return/upstream loss 49 dB
Minimum carrier to noise 22 dB
Minimum carrier to interference 25 dB
Provide, or cause to be provided, two (2) six MHz video channels within the CATV
infrastructure bandwidth on Internet served properties; one (1) in the spectrum
from 54 MHz to 750 MHz and one (1) in the 5MHz to 50 MHz spectrum; and reserve
another two (2) additional video channels, in the same spectrums for future
expansion as Subscriber penetration on the property increases.
Provide, or cause to be provided, proper space, security and power for data
communication equipment necessary to provide Internet delivery and other data
services on the property.
Provide, or cause to be provided, coaxial connection (coax drop) to each
Subscriber's unit. Designate an engineering point of contact for I(3)S Network
Operations Center (NOC) to report problems or failures twenty-four hours per
day, seven days per week (24x7).
I(3)S / GTE Media Ventures Exhibits Confidential
20
EXHIBIT C
POINT OF PRESENCE
FEATURES AND ESTABLISHMENT REQUIREMENTS
I(3)S RESPONSIBILITIES:
Install, maintain and operate data delivery equipment for each property
offering HSDS. Installation and maintenance will meet or exceed
manufacturer's specifications. Through itself or its agents, GTE will
assist I(3)S with pre-installation engineering planning and site survey
questionnaires, installation, testing and preparation of maintenance
schedules.
Integrate all data delivery equipment for each property into the I(3)S
Element Management System portion of its Network Management Platform using
SNMP and RMON. I(3)S will monitor all data delivery equipment twenty-four
hours per day, seven day per week (24x7).
Assume the cost of the acquisition of I(3)S-specified data communication
equipment conforming to the I(3)S design for HSDS and necessary to provide
termination and delivery of HSCS between the Subscriber and the I(3)S POP
in each Market.
Order, provision, install and maintain local loop pathways between each
property and I(3)S POP in each Market with a bandwidth of not less than
1.544 mb/s (T1). In addition, as the number of Subscribers on each property
increases, scale the local loop bandwidth so that each simultaneously
active user averages approximately 1 mb/s ninety eight percent (98%) of the
time. Both parties acknowledge that the end-to-end performance of HSDS is
probabilistic and subject to anomalous short-lived usage patterns by
Subscribers which will affect both the utilization of the local-loop
circuits and the ▇▇▇.▇▇▇ national backbone from time to time.
Configure and operate all data delivery equipment to efficiently integrate
with the rest of the ▇▇▇.▇▇▇ network.
Acquire, install and maintain data communication equipment at each POP for
the termination and transmission of HSDS from properties to the ▇▇▇.▇▇▇
national network backbone.
I(3)S will determine the location of its main presence in each Market to be
consistent with its own operational practices (which currently include
co-locating within its carrier's central offices in each Market).
Acquire, install, maintain and operate Internet peering relationships at
public and private Internet Exchange Points (EP) with other Tier 1 Internet
backbone networks throughout the United States.
Acquire, install, maintain and operate computers and software to provide
Network Management and provide Internet services for Subscribers. To
provide these functions, I(3)S will employ a combination of
locally-distributed-to-the-POP servers as well as globally centralized
servers consistent with its overall network design and operational
practices.
Order, provision, install, maintain and operate data transport/carriage
pathways from each POP, EP and/or NOC with a bandwidth not less than 45
mb/s (DS-3) interconnection. In addition, as the number of Subscribers on
Market increases, scale the bandwidth so that each simultaneously active
user averages approximately 1 mb/s ninety eight percent (98%) of the time.
Both parties acknowledge that the end-to-end performance of HSDS is
probabilistic and subject to anomalous short-lived usage patterns by
Subscribers which will affect both the utilization of the local-loop
circuits and the ▇▇▇.▇▇▇ national backbone from time to time.
I(3)S / GTE Media Ventures Exhibits Confidential
21
EXHIBIT C (CONTINUED)
CUSTOMER HELP LINE
SERVICE AND REQUIRED FEATURES
I(3)S RESPONSIBILITIES
Provide toll free numbers for:
Inquires about the HSDS product
Ordering and scheduling installation of HSDS products
Billing inquiries
Initial technical support inquires
Operate 24x7 customer service call center operation.
Maintain sufficient customer service staff and call center capacity to
connect to Subscribers within 5 minutes of call entering processing
operation.
Resolve billing issues within 24 hours 95% of time.
Resolve property network issues within 24 hours 95% of time.
Develop and publish escalation procedure for Help Desk and attendants
related to network issues.
Provide toll free number for:
Technical support for all HSDS issues
Technical support for Subscriber CPU hardware and software
issues related to HSDS Technical support for cable modem
issues
Answer toll free line consistent with the GTE/I(3)S service co-brand
Operate 24x7 customer service call center operation.
Maintain sufficient customer service staff and call center capacity to
connect to Subscribers within 5 minutes of call entering processing
operation.
Resolve technical issues within 24 hours if a phone call is required
95% of time.
Resolve technical issues within 48 hours if a truck roll is required
95% of time.
Develop and publish escalation procedure for Help Desk and attendants
related to network issues.
Develop and publish escalation procedures for GTE to contact regarding
technical issues related to the network.
Provide training support for GTE's customer service representatives
(train-the-trainer support).
I(3)S / GTE Media Ventures Exhibits Confidential
22
EXHIBIT C (CONTINUED)
SUBSCRIBERS' HARDWARE AND SOFTWARE INSTALLATION
SPECIFICATIONS AND INSTALLATION REQUIREMENTS
I(3)S SHALL:
Verify that potential Subscribers' personal computers meet the
I(3)S-established minimum requirements for the supplied software and
the HSDS service.
Make an appointment with each new Subscriber to meet the I(3)S
installation personnel for the installation of the HSDS in the
Subscriber's unit.
Supply I(3)S with Subscribers' information required to install,
provision and complete the set up of Subscribers' HSDS service. GTE
and I(3)S will jointly develop an appropriate paper-form-based system
or automated system to facilitate this process.
Provide, or cause to be provided, coaxial connection to the
Subscriber's specified location.
Verify, or cause to be verified, that the coaxial connection completed
to the Subscriber's specified location exceeds the minimum operational
requirements for the I(3)S/supplied cable modem and the I(3)S HSDS
service.
Verify, or cause to be verified, that all CATV services function
properly after I(3)S completes installation.
Maintain a sufficient inventory of cable modems for each Market and
develop procedures to restock cable modems as used in Subscriber
installations.
Issue and install the required number of cable modems for the service
requested by the Subscriber.
Meet the Subscriber at the Subscribers location at the scheduled time
within the tolerances and limits as defined in the I(3)S Service Level
Agreement.
Install the required cable modems(s) in the Subscriber's unit.
Install any required network interface cards (NICs), TCP/IP protocols
and Internet software suite in the Subscriber's personal computer.
Offer the Subscriber a brief introduction to the HSCS to be performed
at the time of installation. This introduction will include how to
launch the service, how to find the training material on the ▇▇▇.▇▇▇
Web site, how to find the Subscriber Support Section on the ▇▇▇.▇▇▇
Web site and how to call for technical assistance or support.
Obtain signatures required to verify that installation was executed
properly and to the satisfaction of the Subscriber.
Provide GTE with a copy of the installation transaction documentation
verifying that the completed installation is ready for billing. This
documentation will include the cable modem delivery receipt, the ISP
contract and the completed work order.
I(3)S / GTE Media Ventures Exhibits Confidential
23
EXHIBIT C (CONTINUED)
PROCEDURES FOR DETECTION AND NOTICE
OF GTE PROPERTY NETWORK OR LOCAL LOOP FAILURES
I(3)S SHALL:
Use the cable modem system, and certain network management features
that it provides, to monitor the availability and quality of GTE's
property network (its CATV plant).
Report to GTE's designated engineering point of contact any problems
observed by the I(3)S NOC in the course of operating the cable modem
system network management features.
Report to GTE's designated engineering point of contact any problems
determined by Subscriber contact in the course of operating the
Subscriber Help Desk.
Offer to GTE a read-only direct computer interface into the I(3)S
cable modem system's network management platform for the purposes of
direct observation of the information produced by the management
platform and possible enhancement of GTE's Property network
operations. If GTE elects to implement a read-only direct-computer
interface, GTE will be responsible for all of the costs associated
with such an interface.
I(3)S / GTE Media Ventures Exhibits Confidential
24
EXHIBIT D
DEFINITION OF HIGH-SPEED DATA SERVICES (HSDS)
FEATURES AND REQUIREMENTS
The I(3)S HSDS includes:
o Data Network services that provide transport and peering functions to
the global Internet, including, without limitation:
o A broadband access network on MDU properties composed of one
or more headend reference nodes, a coaxial or hybrid fiber
coaxial (HFC) cable television distribution system and one
or more cable data modems (CDM);
o A local loop network that connects the headend reference
node on each MDU property to the I(3)S regional
point-of-presence (POP) in each metropolitan area served by
I(3)S;
o A regional point-of-presence network that connects the POP
to the ▇▇▇.▇▇▇ national Internet backbone;
o A national Internet backbone consisting of broadband
communication facilities for the transport of data among
I(3)S POPs and public and private Exchange Points where data
and Internet routing information will be exchanged with
other networks peered with ▇▇▇.▇▇▇;
o A national Network Operations Center (NOC).
o Certain computer services that include.
o Membership system for user authentication and authorities;
o Personalization services for customizing content to user
preferences;
o Internet mail (SMTP and POP3);
o Internet newsgroups (NNTP) composed of approximately 25,000
newsgroups;
o Internet World Wide Web (HTTP) services;
o Internet chat (IRC and MIRC);
o White-pages-style directory services;
o Internet locator services;
o Conferencing and collaboration bridges;
o Streaming multimedia services such as Microsoft's NetShow
and Progressive Network's RealMedia;
o Electronic commerce services.
o A branded suite of client software that include:
o Web browser;
o Mail reader;
o News reader;
o Chat client;
o Conferencing and collaboration client;
o Appropriate plug-ins and ActiveX controls.
o Certain customer service functions that include:
I(3)S / GTE Media Ventures Exhibits Confidential
25
o A National Customer Care Center;
o A telephone and network-based customer help desk;
o A Trouble Reporting facility;
o A customer billing system.
o Certain multimedia-rich content that showcases the capabilities of
HSDS that includes:
o Original content created by I(3)S;
o Aggregated content created by others but licensed by I(3)S
and improved for uses in a HSDS system;
o Aggregated content created by others but licensed by I(3)S
and used unimproved.
I(3)S / GTE Media Ventures Exhibits Confidential
26
EXHIBIT E
INTRODUCTION
This Exhibit entitled "Service Level Agreement" ("SLA") sets out
operation specifications and requirements for HSDS provided by
I(3)S for the residents or customers of GTE Media Ventures
Incorporated (herein sometimes called "Teaming Associate"). The
SLA shall encompass data services originating and terminating
within the I(3)S internetwork ("▇▇▇.▇▇▇").
The HSDS provided by I(3)S shall meet the operations specification
and requirements stated herein, which are generally stated in
terms of events or outcomes, rather than terms of specific
hardware, software or procedural requirements. For the purposes of
the SLA, ▇▇▇.▇▇▇ shall relate to that portion of the global
Internet operated by I(3)S, originating within end users' customer
premises and terminating within I(3)S computers or transported and
peered at a public or private Internet Exchange Point.
For the purposes of the SLA, a "Trouble" or "Trouble Report" shall
relate to ▇▇▇.▇▇▇ or I(3)S provided services (or resold services),
but shall exclude customer error, defects in "customer premises
equipment" ("CPE"), defects in customers' computers, defects in
distribution coaxial cable, defects in distribution fiber optics
defects in cable television systems and network problems
experienced by destination networks at or beyond Internet Exchange
Points.
PERFORMANCE REQUIREMENTS
PERCENT CUSTOMER SERVICE ORDER BEGINNING COMMITMENT DATES TIMELY
MET
This parameter is generally indicative of the timely
beginning of work on orders from customers for new
service or orders to make changes in their existing
service.
The timely beginning parameter is calculated by dividing
the total Customer Service Orders begun on or before the
date and clock hour promised to the customer that the
service order would be started by the total number of
service orders initiated in each calendar month and
multiplying by 100.
I(3)S shall exhibit greater than 90% Customer Service
Order Beginning Commitment Dates Timely Met per month.
PERCENT CUSTOMER SERVICE ORDER COMPLETION COMMITMENT DATES TIMELY
MET
This parameter is generally indicative of the timely
completion of work on orders from customers for new
service or orders to make changes in their existing
service and the timely completion of those service
orders.
The timely completion parameter is calculated by dividing
the total Customer Service Orders completed on or before
the date and clock hour promised to the customer that the
service order would be completed by the total number of
service orders initiated in each calendar month and
multiplying by 100.
I(3)S shall exhibit greater than 90% Customer Service
Order Completion Commitment Dates Timely Met per month.
Service Level Agreement
Page 1 of 4
27
PERCENT OF NETWORK AVAILABILITY
This parameter is generally indicative of the
availability of the network to transport and peer
customer data at an Internet Exchange Point, or, in the
event that the customer data is to be fulfilled by
computers within ▇▇▇.▇▇▇, generally indicative of the
availability of to transport data to the I(3)S servers
and the availability of the servers.
This parameter is calculated by dividing the number of
seconds that the network is available for each customer
by the total number of customer-seconds in each calendar
month and multiplying by 100.
Specifically excluded from the Network Availability
calculation shall be regularly scheduled maintenance
windows or ad hoc maintenance windows scheduled and
announced 24 hours in advance in the ▇▇▇.▇▇▇ Customer
Support Web Site.
Specifically excluded from the Network Availability
calculation shall be periods of time where the cable
television distribution plant (operated by the Teaming
Associate or its designated third party operator) exceed
the follow table of acceptable values:
Amplitude Variation Inband Upstream 1 dB/MHz., 5 dB total
---------------------------------------------------------------------------
Amplitude Variation Inband Downstream 1 dB/MHz., 5 dB total
---------------------------------------------------------------------------
Group Delay Variation Inband Upstream 200 nsec./MHz., 800 nsec. total
---------------------------------------------------------------------------
Group Delay Variation Inband Downstream 60 nsec./MHz., 240 nsec. total
---------------------------------------------------------------------------
Tap to Tap Level Variation <27 dB
---------------------------------------------------------------------------
I(3)S shall exhibit greater than 98% Network Availability
per month.
PERCENT CUSTOMER CALLS ANSWERED within 45 Seconds by I(3)S
PERSONNEL
This parameter is based upon the number of customers
calls answered within 15 seconds by a human operator or
by an ACD queue greeting during the hours of operation of
the I(3)S National Customer Care Center and thereafter to
be answered by a customer representative with 30 seconds.
At a minimum, the I(3)S National Customer Care Center
shall operate from 8:00 a.m. to 5:00 p.m. Central Time,
Monday through Friday exclusive of holidays.
This parameter is calculated by dividing the number of
calls answered with 45 seconds by the total number of
calls answered seconds in each calendar month and
multiplying by 100.
I(3)S shall exhibit greater than 90% of Customer Calls
Answered within 45 Seconds per month.
PERCENT OF TROUBLE REPORTS RESOLVED TIMELY
This parameter is related to the number of Trouble
Reports resolved within the following windows:
o For Trouble Reports received by I(3)S at the I(3)S
National Customer Care Center prior to 2:00 p.m.
Central Time, Monday through Friday, excepting
holidays, will be cleared by the end of the next
business day.
Service Level Agreement
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o For Trouble Reports received by I(3)S at the I(3)S
National Customer Care Center after 2:00 p.m.
Central Time, Monday through Friday, excepting
holidays, will be cleared by noon of the second
business day thereafter.
This parameter is calculated by dividing the total
trouble reports cleared on or before the date and clock
hour promised to the customer the total number of Trouble
Tickets cleared in each calendar month and multiplying by
100.
I(3)S shall exhibit greater than 90% Trouble Reports
Cleared Timely per month, according to the terms of this
section for trouble that can be resolved by I(3)S alone.
PERCENT CUSTOMER REPAIR VISIT APPOINTMENTS MET
This parameter is related to the customer commitments
made by the I(3)S National Customer Care Center for
repairs that require a repair visit to customers' sites
or premises.
This parameter is calculated by dividing the total
Customer Repair Visits Appointments met on or before the
date and clock hour promised to the customer by the total
number of Customer Repair Visit Appointments initiated in
each calendar and multiplying by 100.
I(3)S shall exhibit greater than 90% Customer Repair
Commitment Met per month.
PERCENT OF CUSTOMER BILLS PREPARED TIMELY
This parameter is related to the generation of Customer
Bills for delivery to customers by mail, electronic mail
or credit card billing.
This parameter is calculated by dividing the number of
Customer Bills generated and sent to customers within
twenty (20) business days of the end of the billing cycle
by the total number Customer Bills generated in each
calendar month and multiplying by 100.
I(3)S shall exhibit greater than 95% Customer Bills
Prepared Timely per month.
PERCENT OF CUSTOMER BILLS PREPARED ACCURATELY
This parameter is related to the accuracy of Customer
Bills for delivery to customers by mail, electronic mail
or credit card billing.
This parameter is calculated by dividing the number of
Customer Bills generated that do not require an
adjustment due to a billing error caused I(3)S by the
total number Customer Bills generated in each calendar
month and multiplying by 100.
I(3)S shall exhibit greater than 95% Customer Bills
Prepared Accurately per month.
REPORTS
I(3)S shall undertake commercially reasonable efforts to provide
to Teaming Associates reports within twenty (20) business days of
the end of each calendar month, the reports listed below in this
section, each of which may be provided separately or provided on a
consolidated basis:
Service Level Agreement
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A report depicting total subscribers, gross new customers
and gross customers terminated separated by product tier
and property.
New service orders, Trouble Reports opened and closed or
cleared as appropriate separated by date and property.
Aggregate I(3)S National Customer Care Center data
depicting the distribution of call waiting time in
general and the percent calls answered and calls
abandoned respectively.
Billing summaries describing the date(s) bills were sent
to customers, and the billed revenue disaggregating major
categories of service.
HOLIDAYS
New Years Day
Memorial Day
Independence Day
Labor Day
Thanksgiving
Day after Thanksgiving
Christmas
And any other holiday recognized by I(3)S
Service Level Agreement
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EXHIBIT F
HSDS INITIAL SUBSCRIBER RATES, SERVICE LEVELS
AND INSTALLATION AND EQUIPMENT CHARGES
Initial Subscriber charges shall be:
64 kb/s contention-based non-burstable $29.95 per month
1.00 mb/s contention-based burstable $39.95 per month
1.54 mb/s contention-based with reserved bandwidth $79.95 per month
Small office, home office (SOHO) $500.00 per month
Vanity DNS hosting $100.00 per month
Installation fee $99.00 non-recurring
Network interface card (NIC) market price (assumed to be $60)
LanCity LCp cable modem purchase $395.00 non-recurring
Monthly rental of LCp initially $10.00 per month
I(3)S / GTE Media Ventures Exhibits Confidential
