1
Exhibit 10.27
[MCI WORLDCOM LOGO]
PRIVATE LINE SERVICE AGREEMENT
This Service Agreement (the "Agreement") for services described below is made
by and between MCI WORLDCOM Communications, Inc., formerly known as and doing
business as WorldCom Technologies, Inc. ("MCI WORLDCOM") and
Customer Name: TELOCITY, INC. (hereinafter "Customer"), with its principal
office at 00000 X. XxXxxx Xxxx.; Xxxxxxxxx, XX 00000.
SECTION I: SERVICE AGREEMENT
1. SERVICE: MCI WORLDCOM will provide the following service (the "Service")
pursuant to the applicable tariffs of MCI WORLDCOM and its affiliates and
subsidiaries (the "Tariffs") (choose one):
[ ] International Private Line [ ] Digital Private Line (DS0)
[ ] Managed International Private Line [ ] Digital Private Line (Fractional DS1)
[ ] Metro Private Line [X] DIGITAL PRIVATE LINE (DS1)
[ ] Voice Grade Private Line [ ] Digital Private Line (Fractional DS3)
[X] SONET (OC-3) [X] DIGITAL PRIVATE LINE (DS3)
The Tariffs provide terms and conditions of the Service which include, but
are not limited to, taxes, pricing, discounts, credit approval procedures,
Customer credits, termination liability, and limitations with respect to
the assignment of the Service. The Tariffs may be modified from time to
time by MCI WORLDCOM in accordance with law and thereby affect the Service
furnished to Customer. In the event of a conflict between the Tariffs and
this Agreement the terms and conditions of the Tariffs shall control.
2. EFFECTIVE DATE: For the purposes of this Agreement, (i) if Customer has an
existing service agreement with MCI WORLDCOM, the "Effective Date" will be
the next billing cycle following the date this Agreement has been executed
and Customer has received a satisfactory credit review and approval from
MCI WORLDCOM's Credit Department, and all security documentation, if any,
required by MCI WORLDCOM has been properly executed and delivered to MCI
WORLDCOM (collectively, the "Credit Review"); and (ii) if Customer does not
have an existing service agreement with MCI WORLDCOM, the "Effective Date"
will be the date this Agreement has been executed and the Credit Review has
been completed.
3. CIRCUITS AND CONNECTIONS: Customer shall receive the following pursuant to
this Agreement:
MCI WORLDCOM DOMESTIC PRIVATE LINE*
DS-1 [*]
DS-3 Linear [*]
DS-3 Restorable [*]
OC-3 Linear [*]
OC-3 Restorable [*]
* Rates will apply to Inter-exchange Carrier (IXC) charges only
* Rates will apply to Tier A cities only (all other are ICB)
* Local access is additional and non-discountable.
MCI WORLDCOM LOCAL ACCESS
SERVICE TYPE(1) MILE(2) PRICING
DS-3 1 0 mile [*]
DS-3 1 1 mile [*]
(1) Type I sites consist of sites which are provisioned entirely on MCI
WORLDCOM's local network.
(2) Each additional mile is [*] per mile.
4. REVENUE COMMITMENT: Customer agrees to the following minimum Monthly
Revenue Commitment ("MRC") of [*] for a forty-five (45)-month term with a
nine (9) month [ILLEGIBLE] receive the associated rates as set forth in
Section 3 above and in the applicable Tariffs [ILLEGIBLE].
5. MONTHLY UNDERUTILIZATION: If Customer's usage fails to meet the MRC,
Customer will pay [*] of the difference between Customer's usage during
each month and Customer's MRC. Monthly usage in excess of the MRC cannot be
carried forward to another month.
Page 1 of 2
Please mail originals to: MCI WorldCom Sales Contracts Administration,
000 Xxxxxxx Xxxxxx Xxxxx, Xxxx. 0; Xxxxxxx, XX 00000
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
CONFIDENTIAL - PROPRIETARY INFORMATION REV 6/8/99
2
[MCI WORLDCOM LOGO]
6. LETTER OF AGENCY ("LOA"): The undersigned hereby authorizes MCI WORLDCOM
and/or the Local Exchange Company ("LEC"), and/or Foreign
Telecommunications Provider ("FTP"), if requested by Customer, to provision
Customer's Local Access. This LOA supersedes all previous LOAs and shall
remain in effect until canceled by Customer in writing.
7. COMPLETE AGREEMENT: This Agreement, including the MCI WORLDCOM Application
for Credit, the Tariffs and any documents incorporated herein by reference,
constitutes the full understanding of the parties and supersedes any prior
agreements between the parties relating to the Service. Alterations to this
Agreement shall render this Agreement null and void. Customer acknowledges
that MCI WORLDCOM is under no duty, implied or otherwise, to activate the
Service and will not be subject to liability, if any, under the terms of
this Agreement until such Service is activated.
8. SIGNATURE AUTHORIZATION: The parties have duly executed and agreed to be
bound by this Agreement as evidenced by the signatures of their authorized
representatives below. Each party represents and warrants to the other that
the signatory identified beneath its name below has full authority to
execute this Agreement on its behalf.
ACCEPTED BY: ACCEPTED BY:
TELOCITY, INC. MCI WORLDCOM COMMUNICATIONS, INC.
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ XXXXX XXXXXX
----------------------------- ------------------------------
Name: Matt [ILLEGIBLE] Name: Xxxxx Xxxxxx,
--------------------------- ----------------------------
Title: VP Legal Title: V.P. Marketing
-------------------------- ---------------------------
Date: 10-10-99 Date: 10-18-99
--------------------------- ----------------------------
Page 2 of 2
Please mail originals to: MCI WorldCom Sales Contracts Administration,
000 Xxxxxxx Xxxxxx Xxxxx, Xxxx. 0; Xxxxxxx, XX 00000
CONFIDENTIAL - PROPRIETARY INFORMATION REV 6/8/99
3
[WORLDCOM LOGO] PRIVATE LINE SERVICE Log #
ORDER FORM -----------
SO #
-----------
Page 1 of 2
Today's Date: 7/13/99
Sales Office: San Francisco
SECTION I: SERVICE AGREEMENT
This Service Agreement (the "Agreement") for services described below is made
by and between WorldCom Technologies, Inc. ("WorldCom") and Customer Name:
Telocity, Inc. (hereinafter "Customer").
1. SERVICE: WorldCom will provide Private Line service ("Service") pursuant
to the applicable tariffs of WorldCom Network Services, Inc., a wholly owned
subsidiary of WorldCom (the "Tariffs"). The Tariffs provide terms and
conditions of the Service which include, but are not limited to, taxes, credit
approval procedures, Customer credits, termination liability and limitations
with respect to the assignment of the Service. The Tariffs may be modified from
time to time by WorldCom in accordance with law and thereby affect the Service
furnished to Customer.
2. TERMS AND CONDITIONS: For the convenience of the parties, Service will be
provided by WorldCom subject to the rules and regulations set forth in the
applicable Tariff, in addition to the terms and conditions set forth herein.
(Check the appropriate box.)
(a) Service Commitment Period ("Service Commitment Period"):
[ ] month to month [ ] 1 Year [ ] 2 Year [X] 3 Year [ ] 4 Year [ ] 5 Year
(b) Service Location*/Type
Loc. A NPA-NXX Loc. Z NPA-NXX Access Type Circuit Type
[*]
--------
* Additional customer service locations, if applicable, shown on attachment A
attached hereto and incorporated herein.
(c) Effective Date: For purposes of this Agreement, (i) if Customer has an
existing service agreement with WorldCom, the "Effective Date" will be the next
billing cycle following the date this Agreement has been executed and Customer
has received a satisfactory credit review and approval from WorldCom's Credit
Department, and all security documentation, if any, required by WorldCom has
been properly executed and delivered to WorldCom (collectively, the "Credit
Review"), and (ii) if Customer does not have an existing service agreement with
WorldCom, the "Effective Date" will be the date this Agreement has been
executed and the Credit Review has been completed.
3. CHARGES/DISCOUNTS: During the Service commitment period of this Agreement,
Customer shall receive rates and discounts for Service as set forth in the
Tariff.
4. LETTER OF AGENCY ("LOA"): The undersigned [duly authorized representative
of Customer] hereby authorizes WorldCom and/or the Local Exchange Company
("LEC"), if requested by Customer, to provision Customer's local access. This
LOA supersedes all previous LOAs and shall remain in effect until canceled by
Customer in writing.
This Agreement, including the WorldCom Application for Credit, the Tariffs and
any documents incorporated herein by reference, constitutes the full
understanding of the parties and supersedes any prior agreements between the
parties relating to private line telecommunications services. Alterations to
this Section I of the WORLDCOM PRIVATE LINE SERVICE AGREEMENT/SERVICE ORDER
shall render this Agreement null and void. Activation of Service shall indicate
WorldCom's acceptance of this Agreement.
ATTACHMENT: YES [X] NO [ ] (see "Private Line Service Agreement")
AS AUTHORIZED AGENT OF CUSTOMER, I AGREE TO THE ABOVE TERMS AND CONDITIONS:
NAME: * Xxxxx Xxxxx SIGNATURE: * /s/ XXXXX XXXXX
--------------------------- ------------------------
TITLE: * CTO COMPANY/ACCOUNT NAME: Telocity, Inc.
--------------------------- --------------
DATE: 9-13-99
----------------------------
NOTE 1: This order is for interconnection with Xxxx South.
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
4
WORLD COM Page 2 of 2
Today's Date 9/13/99
Customer Abbreviation TELOCITY
Service Location/Type
Loc. A NPA-NXX Loc. Z NPA-NXX Access Type Circuit Type
[*]
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
As authorized agent of customer, I agree to the above terms and conditions:
Name: Xxxxx Xxxxx Signature: /s/ XXXXX XXXXX
-------------------- ---------------------
Title: CTO Company/Account Name: Telocity, Inc.
-------------------- --------------
Date: 9-13-99
--------------------
696/02/98.1 This form valid 2/2/98 through 8/31/98.
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
5
[MCI LOGO]
PRIVATE LINE SERVICE AGREEMENT
This Service Agreement (the "Agreement") for services described below is made by
and between MCI WORLDCOM Communications, Inc., formerly known as and doing
business as WorldCom Technologies, Inc. ("MCI WORLDCOM") and
Customer Name: TELOCITY, INC. (hereinafter "Customer"), with its principal
office at 00000 X. XxXxxx Xxxx.; Xxxxxxxxx, XX 00000.
SECTION I: SERVICE AGREEMENT
1. SERVICE: MCI WORLDCOM will provide the following service (the "Service")
pursuant to the applicable tariffs of MCI WORLDCOM and its affiliates and
subsidiaries (the "Tariffs") (choose one):
[ ] International Private Line [ ] Digital Private Line (DS0)
[ ] Managed International Private Line [ ] Digital Private Line (Fractional DS1)
[ ] Metro Private Line [X] DIGITAL PRIVATE LINE (DS1)
[ ] Voice Grade Private Line [ ] Digital Private Line (Fractional DS3)
[X] SONET (OC-3) [X] DIGITAL PRIVATE LINE (DS3)
The Tariffs provide terms and conditions of the Service which include, but
are not limited to, taxes, pricing, discounts, credit approval procedures,
Customer credits, termination liability, and limitations with respect to the
assignment of the Service. The Tariffs may be modified from time to time by
MCI WORLDCOM in accordance with law and thereby affect the Service furnished
to Customer. In the event of a conflict between the Tariffs and this
Agreement the terms and conditions of the Tariffs shall control.
2. EFFECTIVE DATE: For the purposes of this Agreement, (i) if Customer has an
existing service agreement with MCI WORLDCOM, the "Effective Date" will be
the next billing cycle following the date this Agreement has been executed
and Customer has received a satisfactory credit review and approval from MCI
WORLDCOM's Credit Department, and all security documentation, if any,
required by MCI WORLDCOM has been properly executed and delivered to MCI
WORLDCOM (collectively, the "Credit Review"); and (ii) if Customer does not
have an existing service agreement with MCI WORLDCOM, the "Effective Date"
will be the date this Agreement has been executed and the Credit Review has
been completed.
3. CIRCUITS AND CONNECTIONS: Customer shall receive the following pursuant to
this Agreement:
MCI WORLDCOM DOMESTIC PRIVATE LINE*
DS-1 [*]
DS-3 Linear [*]
DS-3 Restorable [*]
OC-3 Linear [*]
OC-3 Restorable [*]
*Rates will apply to Inter-exchange Carrier (IXC) charges only
*Rates will apply to Tier A cities only (all other are ICB)
*Local access is additional and non-discountable.
MCI WORLDCOM LOCAL ACCESS
SERVICE TYPE(1) MILE(2) PRICING
DS-3 1 0 mile [*]
DS-3 1 1 mile [*]
(1) Type I sites consist of sites which are provisioned entirely on MCI
WORLDCOM's local network.
(2) Each additional mile is [*] per mile
4. REVENUE COMMITMENT: Customer agrees to the following minimum monthly revenue
commitment ("mrc") of [*] Forty-Five (45)-month term with a (9) month ramp
and shall receive the associated rates as set forth in Section 3 above, and
in the applicable tariffs.
5. MONTHLY-UNDERUTILIZATION: If Customer's usage fails to meet the MRC,
Customer will pay [*] of the difference between Customer's usage during each
month and Customer's MRC. Monthly usage in excess of the MRC cannot be carried
forward to another month.
Page 1 of 2
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
6
[MCI WORLDCOM LOGO]
6. LETTER OF AGENCY ("LOA"): The undersigned hereby authorizes MCI WORLDCOM
and/or the Local Exchange Company ("LEC"), and/or Foreign Telecommunications
Provider ("FTP"), if requested by Customer, to provision Customer's Local
Access. This LOA supersedes all previous LOAs and shall remain in effect
until canceled by Customer in writing.
7. COMPLETE AGREEMENT: This Agreement, including the MCI WORLDCOM Application
for Credit, the Tariffs and any documents incorporated herein by reference,
constitutes the full understanding of the parties and supersedes any prior
agreements between the parties relating to the Service. Alterations to this
Agreement shall render this Agreement null and void. Customer acknowledges
that MCI WORLDCOM is under no duty, implied or otherwise, to activate the
Service and will not be subject to liability, if any, under the terms of
this Agreement until such Service is activated.
8. SIGNATURE AUTHORIZATION: The parties have duly executed and agreed to be
bound by this Agreement as evidenced by the signatures of their authorized
representatives below. Each party represents and warrants to the other that
the signatory identified beneath its name below has full authority to
execute this Agreement on its behalf.
ACCEPTED BY: ACCEPTED BY:
TELOCITY, INC. MCI WORLDCOM COMMUNICATIONS, INC.
By: /s/ XXXXX XXXXX By:
--------------------------- ---------------------------------
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxxx
--------------------------- ---------------------------------
Title: CTO Title: V.P. Marketing
--------------------------- ---------------------------------
Date: 9/13/99 Date:
--------------------------- ---------------------------------
Page 2 of 2
7
[WORLDCOM LOGO] WORLDCOM MAE(R) ATM SERVICE AGREEMENT
This Service Agreement (the "Agreement") is made by and between WorldCom
Technologies, Inc. ("WorldCom"), located at 000 Xxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxx 00000-0000, and Telocity ("Customer"), with its principal office at
00000 X. Xxxxxx Xxxx., Xxxxxxxxx, XX 00000, for services described below.
1. SERVICE: WorldCom will provide Customer MAE ATM service consisting of: (i) a
port connection, i.e., access to the WorldCom MAE switching equipment and the
connection of the port to either the local access facilities or to the
Customer's equipment, the permanent virtual circuits or other virtual data
paths assigned to said port, if desired ("MAE Connections") and (ii)
maintenance of the equipment and services provided by WorldCom (collectively
"Service"). The Service is subject to the terms and conditions contained here
and the WorldCom Commercial Application for Credit.
2. TERM: The Term of this Agreement shall be [ ] 1 Year [ ] 2 Years [X] 3 Years
("Term"). Upon expiration of the Term, unless either party gives written notice
to the other party thirty (30) days prior to the end of the Term, the Term will
continue on a month-to-month basis until this Agreement is terminated by either
party on at least thirty (30) days prior written notice to the other party.
Customer shall be liable for all charges associated with actual usage of the
Services during the Term and any extension thereof.
3. EFFECTIVE DATE: For the purposes of this Agreement, (i) if Customer has an
existing service agreement with WorldCom, the "Effective Date" will be the next
billing cycle following the date this Agreement has been fully executed by both
parties and Customer has received a satisfactory credit review and approval
from WorldCom's Credit Department, and all security documentation, if any,
required by WorldCom has been properly executed and delivered to WorldCom
(collectively, the "Credit Review"), and (ii) if Customer does not have an
existing service agreement with WorldCom, the "Effective Date" will be the date
this Agreement has been fully executed by both parties and the Credit Review
has been completed.
4. SERVICE RATES: (Check desired port)
MONTHLY RECURRING START-UP
SERVICE CHARGE CHARGE
[ ] 45 Mbps ATM port [*] [*]
[X] 155 Mbps ATM port [*] [*]
[ ] 622 Mbps ATM port [*] [*]
ANCILLARY CHARGES
Permanent Virtual Circuit (PVC) moves, adds or changes $ [*]/PVC
(Charge does not apply to PVCs setup at time of initial
port installation)
Non-Administrative Order Charge/Port
Pre-engineering [*]
Post-engineering [*]
Customer purchasing CPE from WorldCom under separate agreement (check
applicable box): [ ] Yes [X] No
TERM AND VOLUME DISCOUNTS: The following discount schedule applies to the
Monthly Recurring Charge for MAE ATM ports only, as shown in Section 4.
TERM
------------------------------------
TOTAL MONTHLY SERVICE CHARGES* 1 YEAR 2 Year 3 Year
$0 [*] [*] [*]
$2,500 [*] [*] [*]
$5,000 [*] [*] [*]
$7,500 [*] [*] [*]
$10,000 [*] [*] [*]
$15,000 [*] [*] [*]
$20,000 [*] [*] [*]
$30,000 [*] [*] [*]
$40,000 [*] [*] [*]
$50,000 [*] [*] [*]
*Charges set forth in Section 4 of this Agreement excluding local access
monthly recurring and/or installation fees, collocation fees or additional
customer premises equipment costs. Customer shall be responsible for all such
charges associated with the service
258/08/98.3
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
8
5. PAYMENT BILLING:
A. Payment is due 30 days after date of invoice. Accounts are in
default if payment is not received within such 30-day period.
Accounts unpaid 60 days after date of invoice may have their service
disconnected without further notice to Customer.
Such disconnection does not relieve Customer from the obligation to
pay the monthly charge and any applicable cancellation charges. Only
a written request to terminate Customer's service relieves Customer
of Customer's obligation to pay the monthly account charge. Accounts
in default are subject to an interest charge of 1.5% per month on
the outstanding balance. If Customer's state law does not allow an
interest rate of 1.5% per month, the maximum allowable rate for
Customer's state will be charged. Customer agrees to pay WorldCom
its reasonable expenses, including attorney and collection agency
fees, incurred in enforcing its rights under this Agreement.
B. Billing for Service will commence when the connection from the MAE
facility is completed to Customer's site or collocation space and IP
packets can be passed. Service is invoiced monthly in advance.
6. CANCELLATION CHARGE:
A. After this Agreement is accepted by WorldCom, Customer may cancel
all or a portion of the Service if Customer provides written
notification thereof to WorldCom thirty (30) days in advance of the
effective date of cancellation. In such case, Customer shall pay to
WorldCom all charges for Service described herein provided through
the effective date of such cancellation plus a cancellation charge
determined as follows: (i) if the Term is one (1) year or less, then
the cancellation charge shall be an amount equal to the balance of
the monthly recurring charges (then in effect at the time of
cancellation) for such canceled Service that otherwise would have
become due for the unexpired balance of the Term (but in no event
less than zero); (ii) if the Term is longer than one (1) year and
such cancellation becomes effective prior to completion of the first
year of the Term, then the cancellation charge shall be an amount
equal to the balance of the monthly recurring charges (then in
effect at the time of cancellation) for such canceled Service that
otherwise would have become due for the unexpired portion of the
first year of the Term plus eighty-five percent (85%) of the balance
of such monthly recurring charges for the remainder of the Term
beyond the first year; and, (iii) if the Term for the canceled
Service is longer than one (1) year and such cancellation becomes
effective after completion of the first year of the Term, then the
cancellation charge shall be an amount equal to seventy-five percent
(75%) of the balance of the monthly recurring charges (then in
effect at the time of cancellation) for such canceled Service that
otherwise would have become due for the unexpired portion of the
Term. It is agreed that WorldCom's damages in the event Customer
cancels Service shall be difficult or impossible to ascertain. The
aforementioned provision for a cancellation charge is intended to
establish liquidated damages in the event of a cancellation and is
not intended as a penalty.
B. Service Credits: If Customer notifies WorldCom immediately upon
failure to access Service and WorldCom determines in its reasonable
commercial judgment that Service is unavailable to Customer, the
following will apply: (i) if WorldCom determines that Service is
unavailable for one (1) or more (but fewer than four) consecutive
hours during such calendar month, WorldCom, upon Customer's request,
will credit Customer's account for such month the pro-rated charges
equal to one (1) day's service, (ii) if WorldCom determines that
Service is unavailable for four (4) or more hours during such
calendar month, WorldCom, upon Customer's request, will credit
Customer's account for such month for the pro-rated charges equal to
one (1) week's service. This paragraph states WorldCom's sole
obligation and Customer's exclusive remedy for any unavailability of
Service. The remedies set forth in this paragraph shall not apply if
unavailability of Service is due to scheduled maintenance,
Customer's equipment, Customer access connections, network
unavailability outside of Service or events of force majeure.
Credits will not apply to charges for local access or any charges
for services other than the Service as described in paragraph (i)
above. Customers with multiple connections to a failed MAE ATM
facility will not receive credits pursuant to this paragraph if at
least one connection continues with Service available. Customer's
account shall not be credited more than once per month pursuant to
this paragraph.
7. CUSTOMER'S RESPONSIBILITIES:
A. Fraudulent Transactions: In the event WorldCom discovers fraudulent
use of Service (or reasonably believes such fraudulent use exists),
nothing contained herein shall prohibit WorldCom from taking
immediate action (without notice to Customer) that is reasonably
necessary to prevent such fraudulent use of Service from taking
place, including without limitation, denying or terminating Service
to and from specific locations.
B. Preparation: WorldCom is not responsible for the installation,
maintenance, compatibility or performance of any equipment or
software not provided by WorldCom, and Customer shall indemnify
WorldCom and its affiliates against any infringement claims arising
out of the use of such third party equipment or software in
connection with the Service. If such third party equipment or
software impairs Service, Customer shall remain liable for payment,
and if such third party equipment is likely to cause hazard or
service obstruction, Customer shall eliminate such likelihood at
WorldCom's request.
9
C. Use of Products and Services: Customer shall not, nor shall it permit or
assist others including Customer's end users and customers to: (i) use
the Service for any purpose other than that for which it is intended or
use the Service in violation of any applicable law or regulation or in
aid of any unlawful act including any use that is harassing, or which
infringes on another's intellectual property rights, copyrighted
material, material legally judged to be threatening or obscene, or
material protected by trade secret, or which otherwise constitutes
Service abuse, and Customer shall be responsible for any such misuse of
the Service, (ii) use Service so as to interfere with the use of the MAE
facility or any other network or the use of any Service by other
customers or authorized users, (iii) use the Service to access, alter,
destroy or attempt to access, alter or destroy any information of
another WorldCom customer, (iv) fail to maintain a suitable environment
specified by WorldCom, or (v) alter, tamper with, adjust or repair the
Service. Upon the occurrence of any of the above, WorldCom shall be
completely released from any liability or obligation to Customer
relative to the Service and this Agreement, and Customer shall be liable
to WorldCom for costs or damages incurred by WorldCom resulting
therefrom. Customer shall indemnify and hold WorldCom harmless against
any liabilities losses, demands, liabilities, suits or actions including
any claims resulting from Customer's use of Service, or use of the
Service by its customers or others throughout Customer's chain of
distribution, including end users, which damages WorldCom or a third
party. Customer shall be responsible for communicating with Customer's
own users of the Service, and for handling all complaints and trouble
reports made by such users. Customer must comply with reasonable
security procedures and standards with respect to Customer's own routers
or switch equipment that interface with Service. WorldCom may (but is
under no obligation to) communicate security issues to Customer from
time to time when abuse or misuse is observed or reported by others.
Customer shall be responsible for compliance with rules governing the
networks of other WorldCom MAE Service customers which may include
executing interconnection agreements with such other WorldCom MAE
Service customers. Customer shall indemnify, defend and hold WorldCom
harmless, from and against any and all losses, claims, demands,
liabilities, suits or actions by any WorldCom MAE Service customers to
the extent such claim, demand, liability, suit or action relates to
Customers obligations contained herein.
D. Customer equipment: Customer agrees to connect only WorldCom certified
equipment to the MAE ATM switch equipment. This applies whether the
Service is terminated at collocation space within WorldCom facilities or
the service is terminated at Customer's premises by use of WorldCom's or
any other carriers' local access circuits.
E. Maintenance: WorldCom reserves the right to perform scheduled and
emergency maintenance on the MAE facilities and any other equipment used
to provide the Service. In the case of scheduled maintenance, WorldCom
agrees to give Customer prior notice of the maintenance outage. In the
case of emergency maintenance, WorldCom agrees to use its best efforts
to notify Customer prior to such maintenance outage.
F. Peering: WorldCom does not undertake to secure a commercial agreement
and technical implementation between two Internet service providers to
exchange Internet traffic between their two networks ("Peering") for
the Customer. Connection to a MAE does not indicate that Customer will
be able to transmit traffic to or receive traffic from any other Service
customer connected to a MAE. WorldCom in no way guarantees Customer that
any other customer connected to a MAE will remain connected. Before
WorldCom will provide Customer with Service, Customer must provide
WorldCom with a copy of a bona fide Peering agreement between Customer
and a WorldCom MAE Customer.
8. MODIFICATION OF SERVICES: WorldCom reserves the right to eliminate Service
offerings and/or modify charges for Service offerings (which charge
modifications shall not exceed then current generally available WorldCom
charges for comparable services), upon not less than thirty (30) days prior
notice to Customer, which notice will state the effective date for the
charge modifications. In the event WorldCom notifies Customer of the
elimination of a Service offering and/or an increase in the charge,
Customer may terminate the affected Service without incurring a
cancellation charge. In order to cancel that offering, Customer must notify
WorldCom, in writing, at least fifteen (15) days prior to the effective
date of the increase in charges.
9. WARRANTY; DISCLAIMER OF WARRANTIES; LIMITED LIABILITY: CUSTOMER ASSUMES
TOTAL RESPONSIBILITY FOR CUSTOMER AND CUSTOMER USER'S USE OF THE SERVICES.
WORLDCOM MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR
ENDORSEMENTS REGARDING ANY MERCHANDISE, INFORMATION, PRODUCTS OR SERVICES
PROVIDED THROUGH THE INTERNET. THE SERVICE IS PROVIDED ON AN "AS IS" AND
"AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT OR
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NO ADVICE OR INFORMATION GIVEN BY WORLDCOM'S EMPLOYEES, AGENTS OR
CONTRACTORS SHALL CREATE A WARRANTY. UNDER NO CIRCUMSTANCES SHALL WORLDCOM
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES THAT RESULT FROM CUSTOMER OR CUSTOMER USERS' USE OF
OR INABILITY TO ACCESS ANY PART OF THE INTERNET OR CUSTOMER OR CUSTOMER
USERS' RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED
ON OR THROUGH THE SERVICE, OR THAT RESULT FROM
10
MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS,
DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE. If
Customer is dissatisfied with the Service, excluding the remedies set
forth in 8(B), Customer's sole exclusive remedy is to terminate this
Agreement.
10. INDEMNIFICATION: Customer agrees to indemnify, hold harmless, and defend
WoldCom, its respective directors, officers, agents, employees and/or
representatives from and against any and all claims, demands, causes of
action, losses, expenses or liabilities, including reasonable attorney's
fees, on account of injury or death of any person or loss of or damage to
any and all property arising, directly or indirectly, out of the acts or
omissions of Customer, any subcontractor, director, officer, agent,
employee and/or representative of each of them, in the performance of any
work under this Agreement, except to the extent such cause of action,
loss, expense or liability is caused solely by the gross negligence of
WorldCom.
11. NOTICES: Notices under this Agreement shall be in writing and delivered to
the person identified below at the offices of the parties as they appear
below, or as otherwise provided for, by proper notice hereunder. Notices
will be effective and deemed delivered (i) three (3) business days after
posting with the United States Postal Service ("U.S. Mail") when mailed by
certified mail, return receipt requested; (ii) one (1) business day after
pick-up by a courier service when sent by overnight courier; or (iii) one
(1) business day after the date of the sender's electronic confirmation of
receipt when sent by facsimile transmission. The party sending a notice by
U.S. Mail or overnight courier will bear the postage charges required for
the selected delivery method. Parties to receive notices are:
IF TO WORLDCOM: IF TO CUSTOMER:
Director of Marketing Director, Legal Affairs
------------------------------------- ----------------------------------------
(NAME - PARTY TO RECEIVE NOTICES) (NAME - PARTY TO RECEIVE NOTICES)
Address (not P.O. Box address): Address (not P.O. Box address):
515 East Amite 00000 X. Xx Xxxx Xxxx.
------------------------------------- ----------------------------------------
Fourth Floor
------------------------------------- ----------------------------------------
Xxxxxxx, XX 00000-0000
------------------------------------- ----------------------------------------
Phone No.: 000-000-0000 Phone No.: 000-000-0000
-------------------------- -----------------------------
Fax No.: 000-000-0000 Fax No.: 000-000-0000
---------------------------- -------------------------------
12. USE OF SERVICE: The provision of Service will not create a partnership or
joint venture between the parties or result in a joint communications
service offering to any third parties. Only upon express written consent
shall Customer be permitted to use WorldCom's name, trademarks, tradename,
service marks or any other intangible property owned by WorldCom for the
promotion of Customer's use of the Service.
13. GENERAL: Customer may not assign this Agreement. Customer may not
subcontract with other persons or entities to undertake any of Customer's
obligations that are set forth in this Agreement. Any legal action arising
out of this Agreement must be brought within one (1) year.
14. SURVIVAL OF TERMS: The terms and provisions contained in this Agreement
that by their sense and content are intended to survive the performance
thereof by the parties hereto shall so survive the completion of
performance and termination of this Agreement, including, without
limitation, provisions for indemnification and the making of any and all
payments due hereunder.
C. ENTIRE AGREEMENT: This Agreement, including any documents incorporated
herein by reference, and the WorldCom Commercial Application for
Credit, constitutes the full understanding of the parties and
supersedes any and all previous representations, understandings or
agreements between the parties and shall prevail notwithstanding any
variance with terms and conditions of any order submitted.
11
This Agreement is subject to the Credit Application forms executed in
connection with the services provided herein and sets forth the entire
Agreement and understanding of the parties relating to the subject matter
covered, and supersedes and cancels all prior agreements between Customer and
WorldCom relating to MAE services. Limitations may apply to combining the Term
discount with other special offers. Modifications to the standard terms and
conditions contained in this Agreement are not permitted and shall not be
valid. Activation of Service shall indicate WorldCom's acceptance of this
Agreement Customer acknowledges that WorldCom is under no duty, implied or
otherwise, to activate the Service and will not be subject to liability, if
any, under the terms of this Agreement until such Service is activated. As
authorized agent of Customer, I agree to the above terms and conditions of this
Agreement.
Name: XXXXX XXXXX
---------------------------------------------------------------
Company/Account Name: TELOCITY, INC.
-----------------------------------------------
Signature: /s/ XXXXX X. XXXXX
----------------------------------------------------------
Title: C.T.O.
--------------------------------------------------------------
Date: 8/23/99
------------------------
12
[WORLDCOM LOGO] CUSTOMER SERVICE ORDER FORM
ORDER
Billed Company Name: Telocity, Inc. Customer Desired Date: 10/30/1999
Service Type: SONET xx0 xxxxx-xx-xxxxx Related Order Id:
Quantity: 1 Contract Term: 01
Order Id: I11267 Contract Unit: year
Initiator: Xxxxxx Xxxxxxxx Billing Address: 00000 X Xx Xxxx Xxxx. 0xx Xx
Initiator Company Name: Telocity, Inc. Xxxxxxxxx, XX 00000-0000
Initiator Phone: (000) 000-0000
Initiator Fax: (000) 000-0000
LOCATION 1 LOCATION 2
Address: 00000 X Xx Xxxx Xxxx Address: 00 X Xxxxxx Xx
Xxxxxxxxx, XX 00000-0000 Xxx Xxxx, XX 00000-0000
Company: Telocity Company: Xxx Xxxx
Floor: 1st Room: telco Floor: 10 Room: colo 3
Customer Circuit: Customer Circuit:
Customer PO: Customer PO:
Technical Contract: Xxxxxx Xxxxxxxx Technical Contact: Xxx Xxxxxxx (7480)
Technical Contact Phone: (000) 000-0000 Technical Contact Phone: (000) 000-0000
DS-0
DS0 Service Type:
DS-1 DS-3 EQUIPMENT
Line Coding: Framed: Equipment Type:
Framing:
OTHER SERVICES
Description; optical
REMARKS
1. please note that location 1 will be added to the network, thus, we
2. will NOT need a type2 circuit.
3.
SERVICE CHARGES
MONTHLY RECURRING CHARGES NON-RECURRING CHARGES
Unit $ Total $ Unit $ Total $
Facility Charge: [*] [*] [*] [*]
Equipment Charge: [*] [*] [*] [*]
Total Charges: [*] [*]
Customer Approval /s/ XXXXX XXXXX
---------------------------------------------------------------
SIGNATURE TITLE DATE
Services which are under the jurisdiction of the Federal Communication (F.C.C.)
will be provided subject to the terms and conditions of applicable Worldcom,
Inc. tariffs on file with the F.C.C.. Services subject to state jurisdiction
will be rendered according to terms and conditions set forth in WorldCom, Inc.
tariffs filed with the applicable regulatory agency of the state in which the
service is provided. All relevant tariff provisions are incorporated by
reference in any customer service order. Tariffs are available for inspection
from the F.C.C. or the state regulatory agency, as appropriate or from
WorldCom, Inc.
FOR WORLDCOM INTERNAL USE ONLY
SIGNATURE TITLE DATE
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
13
[WORLDCOM LOGO] CUSTOMER SERVICE ORDER FORM
ORDER
Billed Company Name: Telocity, Inc. Customer Desired Date: 10/30/1999
Service Type: SONET xx0 xxxxx-xx-xxxxx Related Order Id:
Quantity: 1 Contract Term: 01
Order Id: I11267 Contract Unit: year
Initiator: Xxxxxx Xxxxxxxx Billing Address: 00000 X Xx Xxxx Xxxx 0xx Xx
Initiator Company Name: Telocity, Inc. Xxxxxxxxx, XX 00000-0000
Initiator Phone: (000) 000-0000
Initiator Fax: (000) 000-0000
LOCATION 1 LOCATION 2
Address: 00000 X Xx Xxxx Xxxx Address: 00 X Xxxxxx Xx
Xxxxxxxxx, XX 00000-0000 Xxx Xxxx, XX 00000-0000
Company: Telocity Company: Xxx Xxxx
Floor: 1st Room: telco Floor: 10 Room: colo 3
Customer Circuit: Customer Circuit:
Customer PO: Customer PO:
Technical Contact: xxxxxx xxxxxxxx Technical Contact: Xxx Xxxxxxx (7480)
Technical Contact Phone: (000) 000-0000 Technical Contact Phone: (000) 000-0000
DS-0
DS0 Service Type:
DS-1 DS-3 EQUIPMENT
Line Coding: Framed: Equipment Type:
Framing:
OTHER SERVICES
Description: optical
REMARKS:
1: please note that location 1 will be added to the network, thus, we
2: will NOT need a type2 circuit.
3:
SERVICE CHARGES
Monthly Recurring Charges Non-Recurring Charges
Unit $ Total $ Unit $ Total $
-------- -------- -------- --------
Facility Charge: [*] [*] [*] [*]
Equipment Charge: [*] [*] [*] [*]
Total Charges: [*] [*]
Customer Approval /s/ XXXXX XXXXX
--------------------------------------------------------------
SIGNATURE TITLE DATE
Services which are under the jurisdiction of the Federal Communication (F.C.C.)
will be provided subject to the terms and conditions of applicable WorldCom,
Inc. tariffs on file with the F.C.C. Services subject to state jurisdiction will
be rendered according to terms and conditions set forth in WorldCom, Inc.
tariffs filed with the applicable regulatory agency of the state in which the
service is provided. All relevant tariff provisions are incorporated by
reference in any customer service order. Tariffs are available for inspection
from the F.C.C. or the state regulatory agency, as appropriate or from
WorldCom, Inc.
FOR WORLDCOM INTERNAL USE ONLY
SIGNATURE TITLE DATE
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
14
[WORLDCOM LOGO] CUSTOMER SERVICE ORDER FORM
ORDER
Billed Company Name: Telocity, Inc. Customer Desired Date: 10/29/1999
Service Type: SONET xx0 xxxxx-xx-xxxxx Related Order Id:
Quantity: 1 Contract Term: 03
Order Id: I24283 Contract Unit: years
Initiator: Xxxxxx Xxxxxxxx Billing Address: 00000 X Xx Xxxx Xxxx 0xx Xx
Initiator Company Name: Telocity, Inc. Xxxxxxxxx, XX 00000-0000
Initiator Phone: (000) 000-0000
Initiator Fax: (000) 000-0000
LOCATION 1 LOCATION 2
Address: 0000 Xxxxxxx Xx. Address: 0000 Xxx Xxxxxx Xx
Xxxxxx, XX 00000-0000 XxXxxx, XX 00000-0000
Company: MFS MAE EAST Company: Xxxxx 0 Xxxxxxxxxxxxxx
Xxxxx: X0 Xxxx: colo Floor: 1 Room:
Customer Circuit: Customer Circuit:
Customer PO: Customer PO:
Technical Contact: Xxxx Xxxxx (2017) Technical Contact: Xxxxxxx Xxxxxx
Technical Contact Phone: (000) 000-0000 Technical Contact Phone: (000) 000-0000
DS-0
DS0 Service Type:
DS-1 DS-3 EQUIPMENT
Line Coding: Framed: Equipment Type:
Framing:
OTHER SERVICES
Description: optical
REMARKS:
1: this is a new oc-3c between the level3 collocation site at loc2 and
2: MAE East at loc1.
3:
SERVICE CHARGES
Monthly Recurring Charges Non-Recurring Charges
Unit $ Total $ Unit $ Total $
-------- -------- -------- --------
Facility Charge: [*] [*] [*] [*]
Equipment Charge: [*] [*] [*] [*]
Total Charges: [*] [*]
Customer Approval /s/ XXXXX XXXXX
--------------------------------------------------------------
SIGNATURE TITLE DATE
Services which are under the jurisdiction of the Federal Communication (F.C.C.)
will be provided subject to the terms and conditions of applicable WorldCom,
Inc. tariffs on file with the F.C.C. Services subject to state jurisdiction will
be rendered according to terms and conditions set forth in WorldCom, Inc.
tariffs filed with the applicable regulatory agency of the state in which the
service is provided. All relevant tariff provisions are incorporated by
reference in any customer service order. Tariffs are available for inspection
from the F.C.C. or the state regulatory agency, as appropriate or from
WorldCom, Inc.
FOR WORLDCOM INTERNAL USE ONLY
SIGNATURE TITLE DATE
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
15
[WORLDCOM LOGO] CUSTOMER SERVICE ORDER FORM
ORDER
Billed Company Name: Telocity, Inc. Customer Desired Date: 10/29/1999
Service Type: SONET xx0 xxxxx-xx-xxxxx Related Order Id:
Quantity: 1 Contract Term: 03
Order Id: I24283 Contract Unit: years
Initiator: Xxxxxx Xxxxxxxx Billing Address: 00000 X Xx Xxxx Xxxx 0xx Xx
Initiator Company Name: Telocity, Inc. Xxxxxxxxx, XX 00000-0000
Initiator Phone: (000) 000-0000
Initiator Fax: (000) 000-0000
LOCATION 1 LOCATION 2
Address: 0000 Xxxxxxx Xx. Address: 0000 Xxx Xxxxxx Xx
Xxxxxx, XX 00000-0000 XxXxxx, XX 00000-0000
Company: MFS MAE EAST Company: Xxxxx 0 Xxxxxxxxxxxxxx
Xxxxx: X0 Xxxx: colo Floor: 1 Room:
Customer Circuit: Customer Circuit:
Customer PO: Customer PO:
Technical Contact: Xxxx Xxxxx (2017) Technical Contact: Xxxxxxx Xxxxxx
Technical Contact Phone: (000) 000-0000 Technical Contact Phone: (000) 000-0000
DS-0
DS0 Service Type:
DS-1 DS-3 EQUIPMENT
Line Coding: Framed: Equipment Type:
Framing:
OTHER SERVICES
Description: optical
REMARKS:
1: this is a new oc-3c between the level3 collocation site at loc2 and
2: MAE East at loc1.
3:
SERVICE CHARGES
Monthly Recurring Charges Non-Recurring Charges
Unit $ Total $ Unit $ Total $
-------- -------- -------- --------
Facility Charge: [*] [*] [*] [*]
Equipment Charge: [*] [*] [*] [*]
Total Charges: [*] [*]
Customer Approval /s/ XXXXX XXXXX
--------------------------------------------------------------
SIGNATURE TITLE DATE
Services which are under the jurisdiction of the Federal Communication (F.C.C.)
will be provided subject to the terms and conditions of applicable Worldcom,
Inc. tariffs on file with the F.C.C. Services subject to state jurisdiction will
be rendered according to terms and conditions set forth in WorldCom, Inc.
tariffs filed with the applicable regulatory agency of the state in which the
service is provided. All relevant tariff provisions are incorporated by
reference in any customer service order. Tariffs are available for inspection
from the F.C.C. or the state regulatory agency, as appropriate or from
WorldCom, Inc.
FOR WORLDCOM USE ONLY
SIGNATURE TITLE DATE
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
16
DIRECTIONS: Fill in information with SHADED AREAS TELOCITY
LOGO
Vendor: MCI/Worldcom
Telcom Sales
000 Xxxxx Xxxxxx, 0xx Xxxxx, XX, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Purchase
Request Form
For purchasing department use only:
PO# CO# RLS# CDO: Y N
Acct Distribution:
--------------------------------------------------------------------------------
Date Confirmed Vendor Contact Required Delivery Date
--------------------------------------------------------------------------------
DATE OF REQUEST IN CURRENT YEAR'S PLAN? Requisition #
8/20/99 YES N/A
--------------------------------------------------------------------------------
REASON FOR PURCHASE (BUSINESS JUSTIFICATION):
MAE - East, MAE - West, Ports & Colo 3 Year Contract
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Ship Via F.O.B. Point Destination Terms Taxable
--------------------------------------------------------------------------------
In-Plant DEPARTMENT Project # Buyer
Destination Network N/A Xxxxx Xxxxxx
--------------------------------------------------------------------------------
Special Instructions (If any)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
QUANTITY Vendor Telocity
Item REQUESTED Part Number Part Number DESCRIPTION
--------------------------------------------------------------------------------
1 1 Mae East Port Install
--------------------------------------------------------------------------------
2 1 Mae East Port Monthly
--------------------------------------------------------------------------------
3 1 Mae East Colo
--------------------------------------------------------------------------------
4 1 Xxx Xxxx Port Install
--------------------------------------------------------------------------------
5 1 Xxx Xxxx Port Monthly
--------------------------------------------------------------------------------
6 1 Xxx Xxxx Colo
--------------------------------------------------------------------------------
7
--------------------------------------------------------------------------------
8
--------------------------------------------------------------------------------
9
--------------------------------------------------------------------------------
10
--------------------------------------------------------------------------------
11
--------------------------------------------------------------------------------
12
--------------------------------------------------------------------------------
--------------------------------------------------------
Suggested Unit Actual Unit
Price Price Extended Amount
--------------------------------------------------------
[*] [*] [*]
--------------------------------------------------------
[*] [*] [*]
--------------------------------------------------------
[*] [*]
--------------------------------------------------------
[*] [*] [*]
--------------------------------------------------------
[*] [*] [*]
--------------------------------------------------------
[*] [*]
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TOTAL VALUE OF PURCHASE REQUEST [*]
--------------------------------------------------------
Xxxxxx Xxxxxxxx
------------------------ ---------------------------
REQUESTER - PRINT OR TYPE APPROVAL #1 - PRINT OR TYPE
---------------------------
Approval #2 - Print or Type
SIGNATURES: /s/ Xxxxxx Xxxxxxxx
------------------------ ---------------------------
REQUESTER - SIGNATURE APPROVAL #1 - SIGNATURE
/s/ XXXXX XXXXX
---------------------------
Approval #2 (if necessary)
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
