AGREEMENT FOR PURCHASE AND SALE
OF SERVICES AND EQUIPMENT
This AGREEMENT FOR PURCHASE AND SALE OF SERVICES AND EQUIPMENT
(this "Agreement") is made this __28th_ day of _April____,
1999, by and between Xxxxxxxx Communications Inc., a Delaware
corporation, ("WCI"), Xxxxxxxx Communications Solutions, LLC, a
Delaware limited liability company, ("WCS"), and GTC Telecom, a
Nevada corporation ("GTC").
WHEREAS, WCI, WCS and GTC intend for WCI and WCS to design,
install and maintain a network for GTC based on capacity with
Xxxxxxxx Network, a division of WCI, and Ascend technology
("Designed Network");
WHEREAS, GTC has agreed to purchase from WCI, and WCI has
agreed to sell to GTC, certain Services (as defined below), and
GTC has agreed to purchase from WCS, and WCS has agreed to sell
to GTC Equipment(as defined below) pursuant to the terms and
conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual
promises set forth herein, the sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Certain Definitions.
"Agreement" shall mean this agreement and the agreements set
forth in Attachments A, B, and C.
"Affiliate" shall mean any entity which (a) is at least 50%
owned by WCI or WCS, or (b) owns at least
50% of WCI or WCS.
"Dispute" shall mean any controversy, dispute or claim
arising out of or related to the Agreements or the breach,
termination, enforceability or validity thereof.
"Equipment" shall mean the telecommunications equipment, and
installation, maintenance and other incidental services
relating thereto, set forth in Attachment C attached hereto
and incorporated herein by this reference.
"Services" shall mean the telecommunications transmission
services and other services set forth in Attachment A attached
hereto and incorporated herein by this reference, and
consulting services set forth in Attachment C
attached hereto and incorporated herein by this reference.
2. Purchase and Sale of Carrier Services. GTC shall
purchase carrier services from WCI, and WCI shall, subject to
availability, sell carrier services to GTC, pursuant and
subject to the terms and conditions of (a) this Agreement,
and (b) the Carrier Services Agreement (Attachment A) attached
hereto and incorporated herein by this reference. In the event
of any conflict, the order of precedence shall be Attachment A
and then this Agreement.
3. Purchase and Sale of Consulting Services. GTC shall
purchase consulting services from WCI, and WCI shall sell
consulting services to GTC, pursuant and subject to the terms
and conditions of (a) this Agreement, and (b) the Master
Agreement for Consultant Services attached hereto and
incorporated herein by reference (Attachment B). In the
event of any conflict, the order of precedence shall be
Attachment B and then this Agreement.
4. Purchase and Sale of Equipment. GTC shall purchase
Equipment from WCS and WCS shall sell Equipment to GTC,
pursuant and subject to the terms and conditions of (a) this
Agreement, and (b) the Data-Master Purchase Agreement
(Attachment C) attached hereto and incorporated herein by
this reference. In the event of any conflict, the order of
precedence shall be Attachment C and then this Agreement.
5. Buy Back. The parties agree that WCI shall have the
opportunity to purchase up to the lesser of fifty million
(50,000,000) minutes or ten percent (10%) of GTC's capacity at
any given time, on the Designed Network, the terms and
conditions of such purchase to be commercially reasonable, and
if the parties cannot agree, such
terms and conditions may be submitted by either party to
binding arbitration pursuant to the rules then in effect for
commercial arbitration by the American Arbitration
Association. The arbitrator shall be a mutually
acceptable industry consultant.
6. Confidential Information. The parties agree that the
exchange of proprietary or confidential information shall be
governed by the Confidentiality and Nondisclosure Agreement
between WCI, WCS and GTC dated April 28, 1999.
7. Resolution of Disagreements Among Parties. No
party to this Agreement shall be entitled to take legal action with
respect to any Dispute relating to this Agreement until it has
complied in good faith with the following alternative dispute
resolution procedures. If a Dispute, claim or controversy
arises with respect to or relates to any Section of this Agreement,
then the following Dispute resolution procedures shall govern
the parties' conduct:
(a) The parties shall attempt promptly and in good faith to
resolve any Dispute arising out of or relating to the
Agreements through negotiations between representatives who
have authority to settle the controversy. Any party may give the
other party written notice of any such dispute not resolved
in the normal course of business. Negotiations extending
ten (10) days after the disputing party's notice shall be deemed
at an impasse, unless otherwise agreed by the parties. If a
negotiator intends to be accompanied at a meeting by an
attorney, the other negotiator(s) shall be given at least two (2)
working days notice of such intention and may also be
accompanied by an attorney. All negotiations pursuant
to this clause are confidential and shall be treated as
compromise and settlement negotiations for purposes of the
Federal and state Rules of Evidence.
(b) If a Dispute is at an impasse (i.e., it has not been resolved
within ten (10) days of the disputing party's notice), the
parties may then pursue any other means of redress, including
without limitation, litigation.
(c) The obligation herein to negotiate to settle a Dispute shall not be
binding upon any party with respect to requests for preliminary
injunctions, temporary restraining orders, specific performance
or other procedures in a court of competent jurisdiction to obtain
interim relief when deemed necessary to preserve the status
quo or prevent irreparable injury pending resolution by
negotiation of the Dispute.
(d) Notice of any Dispute shall be sent to:
GTC:
GTC Telecom
0000 Xxxxxx Xxxxx, Xxxxx X-0
Xxxxx Xxxx, Xxxxxxxxxx 00000
WCI:
The Xxxxxxxx Companies
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Mail Drop 41-3
Attn: General Counsel, Xxxxxxxx Communications, Inc.
WCS:
The Xxxxxxxx Companies
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Mail Drop 41-3
Attn: General Counsel, Xxxxxxxx Communications
Solutions, LLC
8. As Documented Warranty. The parties recognize and
acknowledge that GTC has entered into the Agreement in
reliance upon the representations made by WCI and WCS
regarding the services and products recommended by WCI and
WCS with respect to the subject matter of the Agreement
WCI's and WCS's representations include the attachments,
exhibits and addenda to the Agreement, the written requests for
proposals and written quotations and written responses thereto,
and written correspondence between the parties (the Documents).
In light of the foregoing, Xxxxxxxx further represents warrants and
covenants to GTC (a) that the products and services which are
the subject of this Agreement shall operate in all material
respects in accordance with the Documents, and (b) that
WCI and WCS shall use best commercial efforts so that all
equipment, carrier services, consulting services and other
services provided for in the Agreement shall work together to
provide the functionalities represented by Xxxxxxxx in the
Documents.
9. Duties upon Termination. Upon termination of any of
the Agreements not resulting from GTC's default, WCI
and WCS and each of their affiliates shall cooperate with the
transfer of all goods owned by GTC to GTC and to entities
designated by GTC, and reasonably assist with the change
of provision of services and activities covered by the
Agreement from WCI and WCS to GTC and to entities
designated by GTC. Without limiting WCI's and WCS's
obligations, as necessary for transfer of goods or services,
WCI and WCS shall grant access to GTC and its designees to
all equipment used by or for GTC operated by or at facilities
owned, leased, operated or otherwise used by WCI or WCS;
disassemble, package and prepare for delivery all equipment in
WCI's or WCS's possession (or that of its affiliates, designees,
bailees or agents) which is owned or leased by GTC;
transfer any and all software licenses, permits and rights
allowed by law which are necessary or convenient for the
fulfillment of the objectives of the Agreement which are
not held in GTC's name to GTC; transfer any and all
records required or reasonably requested by GTC to GTC
in such form, whether paper, electronic or otherwise, as may be
reasonably requested by GTC; and take all other actions as
may be necessary, appropriate or reasonably requested by
GTC to effect an orderly transition of business from WCI and
WCS to any designee of GTC, to minimize any potential
disruption of services provided by GTC, to protect the trade
secrets and confidential information of GTC, and to minimize
the cost incurred by GTC in the course of any transition
to a new or substitute provider of goods or services. The
provisions of this section shall survive the termination of the
Agreement or any part thereof.
10. Limitation of Liability. IN NO EVENT SHALL WCI, WCS,
OR THEIR SUPPLIERS OR SUBCONTRACTORS, BE LIABLE
FOR (I) ANY SPECIAL, INCIDENTAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF
BUSINESS OR PROFITS), OR (II) ANY DAMAGES OF ANY
KIND RESULTING FROM UNAUTHORIZED USE OF THE
SYSTEM OR LOSS OF DATA. THIS PROVISION
APPLIES TO ALL CLAIMS WHETHER BASED UPON BREACH
OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE,
STRICT LIABILITY IN TORT OR ANY OTHER LEGAL
THEORY, EVEN IF WCI, WCS OR THEIR SUPPLIERS HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
.
11. Default. A default under one of the agreements set forth
in Attachments A, B, or C shall not constitute a default,
nor will it permit either party to declare a default, under this
agreement or either of the other agreements set forth in the
Attachments.
12. Miscellaneous.
(a) Neither party may assign or otherwise transfer (other than a transfer
due to a Change of Control which results in an Acceptable
Transfer) its rights or obligations under the Agreements or any
portion of them without the express
written consent of the other, which consent shall not be
unreasonably withheld; provided, however, WCI
and WCS may assign, without obtaining the consent of
GTC, any or all of its rights or obligations hereunder
to any parent, affiliate or subsidiary of WCI or
WCS; provided, that no such assignment shall
in any way reduce or impact the primary liability of the
assignor, which shall, at GTC's request, execute an
affirmation, guarantee or other evidence acceptable to GTC
that the assignor remains liable under the applicable Agreement.
A Change in Control shall be deemed to be an assignment, merger,
sale of a controlling interest or other transfer of a
controlling ownership interest. An Acceptable Transfer
shall be when the entity that remains after a Change of
Control is at least as creditworthy as GTC was prior to the
Change in Control. WCS reserves the right to subcontract any and
all of the work to be performed by it under Attachment C and WCI
reserves the right to subcontract any and all of the work to be
performed by it under Attachment B without receiving prior
consent of GTC; provided, that such action shall not reduce or
impact the primary liability of the WCS and WCI, as
the case may be, and that WCS and WCI shall, at GTC's
request, execute an affirmation, guarantee or other evidence
acceptable to GTC that the assignor remains primarily liable
under the applicable Agreement.
(b) The waiver by either party of any breach, default or
remedy hereunder will not operate as a waiver of any
subsequent breach, default or remedy.
(c) The Agreements supersede all prior or contemporaneous
proposals, communications and negotiations, both
oral and written, and constitute the entire agreement between
WCI, WCS, and GTC with respect to (but only with respect
to) the subject matter hereof.
(d) Except as otherwise provided herein, any amendments
or modifications to this Agreement must be in writing and
executed by an authorized representative of each party.
(e) This Agreement is deemed made and GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK except for
its rules regarding the conflict of laws.
(f) Nothing contained in this Agreement will be
interpreted or construed as to characterize the
relationship between GTC and WCI and WCS as
a joint venture, partnership or franchise for any
purpose. Neither party has the authority to, and
neither party shall, make any representation,
prepare documents or statements on behalf
of, or in the name of the other party, give
any warranties, accept any orders, enter into
a contract on behalf of the other party, or
obligate the other party in any manner,
unless expressly authorized to do so by
this Agreement or in writing by the other
party.
(g) All notices to be sent to a party pursuant to this
Agreement shall be in writing and deemed to
be effective upon (i) personal delivery,
(ii) three days after mailing
certified mail return receipt requested, (iii) on
the day when the notice has been sent by facsimile if during
business hours and followed by express mail priority next-day
delivery, or (iv) in the case of invoices, upon the Due Date. In
each case, the notice shall be sent to the person identified in
this Section at the Full Business Addresses of the parties as
they appear herein. The effective date for any notice
under this Agreement shall be the date of delivery of such
notice, not the date of mailing.
The Full Business Address for purposes of notice under this
Section as well as telephone voice and facsimile numbers
shall be:
(i) To GTC:
GTC Telecom
0000 Xxxxxx Xxx., Xxxxx X-0
Xxxxx Xxxx, XX 00000
Attn:
(ii) To WCI:
Xxxxxxxx Communications, Inc.
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attn: Contract Administration
(iii) To WCS:
Xxxxxxxx Communications Solutions, LLC
0000 Xxxx Xxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such place or places as any of the
parties shall designate by written notice to the others.
(h) No rule of construction requiring interpretation against
the draftsman hereof shall apply in the interpretation of this
Agreement
(i) The provisions of the Agreements are for the
benefit only of the parties hereto, and no third party may seek
to enforce or benefit from these provisions
(j) If a proceeding is brought for the enforcement of
this Agreement or because of any alleged or actual Dispute,
breach, default or misrepresentation in connection with
any of the provisions of this Agreement, the
prevailing party shall be entitled to recover
reasonable attorneys' fees and other
reasonable costs and expenses incurred in
such action or proceeding in addition
to any other relief to which such party may
be entitled.
(k) In the event any provision of this Agreement conflicts with
any statute, rule or order of any governmental unit or regulatory
body, or tariff then, if required by law, such statute, rule,
order or tariff shall control. If any term or provision of this
Agreement shall, to any extent, be determined to be
invalid or unenforceable by a court or body of
competent jurisdiction, the remainder of this
Agreement shall not be affected thereby, and
each term and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
THIS AGREEMENT is executed by the parties as of the
date first set forth above, but is effective for all purposes
only as set forth herein.
GTC TELECOM XXXXXXXX COMMUNICATIONS, INC.
By: /s/Xxxx Xxxxxx By: /s/Xxxxxx Xxxxxx
Name: Xxxx Xxxxxx Name: Xxxxxx Xxxxxx
Title: __________________ Title: ______________________________
XXXXXXXX COMMUNICATIONS SOLUTIONS, LLC
By: /s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title:________________________
Attachment A
CARRIER SERVICES AGREEMENT
Agreement No. ______________
This Attachment shall amend and shall constitute a part, together
with any quotations, schedules, exhibits or annexes attached hereto,
of that Agreement for Purchase and Sale of Services and Equipment
made as of April 28, 1999, between GTC Telecom and Xxxxxxxx
Communications, Inc. Except for provisions pertaining to exchange
of confidential or proprietary information between the parties, in
the event of any conflict between the terms of this Attachment and
the terms of the Agreement for Purchase and Sale of Services and
Equipment, the terms of this Attachment shall govern.
This Carrier Services Agreement (this "Carrier Agreement") is made
this 28th day of April, 1999, by and between Xxxxxxxx
Network, a division of Xxxxxxxx Communications, Inc., a Delaware
corporation ("Seller"), with its principal place of business at Xxx
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxx, Xxxxxxxx 00000, and GTC
Telecom, a Nevada corporation ("Customer"), with its principal place
of business at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxx, XX 00000, for the
provision of telecommunications services, subject to this Carrier
Agreement and as set forth in this Carrier Agreement.
1.0 Exhibits
Exhibit I - Xxxxxxxx Network Pricing Schedule
Exhibit II - Xxxxxxxx Network Technical Specifications
Exhibit III - Xxxxxxxx Network Collocation Service Terms and
Conditions
2.0 Description of Services and Pricing
Customer may order from Seller telecommunications transmission
services ("Services"), the terms and conditions of which are set
forth in this Carrier Agreement. The current Xxxxxxxx Network
Pricing Schedule is attached to this Carrier Agreement and
incorporated herein by reference. All Network Services, Local
Access Services and Ancillary Services, as defined in Section 6.0,
are subject to availability. "Network Services" are provided on the
Xxxxxxxx Network, unless otherwise specifically agreed. References
to "Network Services" are to such on-net services unless expressly
provided otherwise.
2.1 Description of Private Line Service: Xxxxxxxx Network
Private Line Service (the "Private Line Service") provides
domestic XX-0, XX-0 and optical SONET (OC-N) circuits which are
specifically dedicated to Customer's use between two (2) points
specified by the parties in a Service Order and meeting the
technical requirements as defined in the "Xxxxxxxx Network
Technical Specifications for Private Line Service" attached
hereto as Exhibit II.
2.2 Description of ATM Service: Xxxxxxxx Network Asynchronous
Transfer Mode Service (the "ATM Service") is technology that
provides integration of disparate networks onto a single
communications infrastructure. ATM technology takes voice,
data and video packets and divides them into equally sized,
53-byte cells and transmits them over Seller's ATM network.
Seller's ATM Service is designed for two (2) primary
applications. These applications include ATM transport and
backbone connectivity. ATM transport provides multimedia and
video transmission. Multimedia transmission is suited for
transporting voice, data and video while video transmission is
best designed for point-to-point video services. Backbone
connectivity provides for the interconnection of local area
networks ("LAN(s)") as well as interconnection of existing
network access points ("NAP(s)") or private peering backbones.
2.3 Description of Frame Relay Service: Xxxxxxxx Frame Relay
Service is a technology that allows commercial end-users to use
a network of shared private lines to send and receive data from
geographically distant locations. Frame Relay can be defined
as packet-switched, multiplexed data networking technology
supporting connectivity between user equipment, such as
routers, and a carrier's frame relay network equipment.
2.4 Description of Collocate Service: In the event the
Customer should desire to place Customer owned equipment in a
facility owned (or leased) and operated by Seller for the
purpose of interconnecting the Customer owned equipment with
Seller's network ("Collocation Service"), the Customer shall
complete a Collocate Request Form. Upon agreement between
Customer and Seller of the Collocation Services to be provided,
the parties shall complete a Collocation Service Order. The
terms and conditions relating to Collocation Service and the
forms required from Customer are attached hereto as Exhibit III
and are a part of this Carrier Agreement and incorporated
herein by reference.
3.0 Effective Date and Term
This Carrier Agreement shall become effective on the date on which
Seller signs the Carrier Agreement ("Effective Date") and shall
continue for a term of five (5) years (the "Term"). Each Service
Order placed under this Carrier Agreement shall have its own term,
as indicated on such Service Order. This Carrier Agreement shall
automatically renew for successive one-year periods (the "Renewal
Term(s)") unless canceled by either party by giving written notice
of such cancellation not less than sixty (60) days before the end of
the current Term, or any Renewal Term. Unless Customer is in
default, any Service being provided at the time of termination shall
continue until the natural end of such Service as specified in the
applicable Service Order upon the terms and conditions of this
Carrier Agreement; provided, however, that Customer may not order
any new Service until Customer and Seller have entered into a new
agreement or mutually agreed in writing to extend this Carrier
Agreement. The charges for any Network Services, Local Access
Services or Ancillary Services during any such extension shall be
the then current Seller charges.
4.0 Service Orders and Provisioning of Circuits
4.1 Services requested by Customer hereunder shall be
requested on Seller's Service Order forms in effect from time
to time or on Customer's forms accepted in writing by Seller
("Service Order(s)"). Each Service Order shall reference this
Carrier Agreement and its respective Carrier Agreement number.
Seller reserves the right not to accept a Service Order under
this Carrier Agreement at any time.
4.2 When a Service Order is placed, the Customer will
indicate a requested start date (the "Requested Start Date")
for the Service, the desired term of the Service, the specific
city pairs, the applicable bandwidth and any other information
necessary for Seller to provide the Service. Seller will make
reasonable efforts to meet Customer's Requested Start Date. In
the event that a Requested Start Date is altered, Customer's
Requested Start Date will be changed to reflect the number of
days of delay or advance, as appropriate (the "Actual Start
Date").
4.3 This Carrier Agreement shall apply to all Network
Services, Local Access Services and Ancillary Services provided
by Seller to the Customer whether pursuant to a Service Order
or otherwise.
4.4 Seller's standard service implementation interval for
Network Services provided on Seller's owned and operated
network is forty-five (45) days from acceptance of a Service
Order by Seller's Customer Care department. Such acceptance
shall be indicated by the signature of a representative of such
department on the Service Order. The standard service
implementation interval for Network Services provided by a
third party and either partially or wholly off of Seller's
owned and operated network shall be determined on an individual
case basis. Seller shall make reasonable efforts to provide
Network Services within its standard service implementation
interval or on Customer's Requested Start Date. Failure of
Seller to deliver by such date shall not constitute a default
under this Carrier Agreement and Seller shall not be liable to
pay to Customer any penalties or damages for Seller's failure
to meet such standard service implementation intervals.
4.5 Network Services shall begin on the date Seller
issues notice that Service is available (the "Start of Service
Notice" or "SOSN"), indicating that the Service has been tested
by Seller in accordance with the Technical Specifications set
forth in Exhibit II attached hereto and that the Service meets
or exceeds those Technical Specifications (the "Actual Start
Date"). If Customer fails to give written notice that the
Service is in material non-compliance with the applicable
Technical Specifications within three (3) business days after
Seller issues the SOSN, Customer shall be deemed to have
accepted such Service and Seller shall begin billing for the
Service as of the Actual Start Date.
4.6 Customer may request a delay in the Actual Start Date
of an Order provided that (i) it provides the Seller a written
delay request no later than five (5) business days prior to the
Requested Start Date or the delayed Requested Start Date, as
the case may be, and (ii) the aggregate number of the days
requested by such delay request or requests do not exceed
thirty (30) calendar days from the Service Order's original
Requested Start Date. At the expiration of such thirty (30)
day period the Customer may no longer delay the Actual Start
Date of such Order and Seller may begin billing as of such date.
4.7 Any conflicting, different or additional terms and
conditions contained in Customer's acknowledgement or Service
Order or elsewhere are objected to by Seller and shall not
constitute part of this Carrier Agreement. No action by Seller
(including, without limitation, provision of Network Services,
Local Access Services or Ancillary Services to Customer
pursuant to such Service Order) shall be construed as binding
or estopping Seller with respect to such term or condition.
4.8 Once the Actual Start Date has passed and Customer
has accepted the Network Services, Local Access Services or
Ancillary Services, Customer must pay for the Network Services,
Local Access Services or Ancillary Services as indicated on the
Service Order, regardless of whether Customer is actually using
the Network Services, through the Term indicated on the Service
Order.
5.0 Local Access Services
5.1 Unless the parties otherwise agree pursuant to
Section 5.3 below, Seller shall obtain "Local Access Services"
for Customer, which are defined as the telecommunications
facilities connecting a Customer-designated termination point
to a Seller Point of Presence ("POP"). Customer shall execute
a Letter of Agency, on such form as provided by Seller,
authorizing Seller to interact directly with the Local Access
provider(s) to obtain the Local Access Services. Customer
shall request all Local Access Services in writing to Seller.
Customer shall be responsible for all charges, including
without limitation, monthly charges, usage charges,
installation charges, non-recurring charges, or applicable
termination/cancellation liabilities, of the Local Access
provider(s).
5.2 In obtaining Local Access Services, Seller shall be
responsible for provisioning and the initial testing of an
interconnection between the interexchange Service set forth in
a Service Order and the Local Access Services. Seller will
coordinate the installation of the Local Access Services with
the interexchange Service being provided by Seller. Charges to
Customer for Local Access Service administered by Seller on
behalf of Customer shall be billed to Customer at the tariff
rate of the Local Access service provider. If the tariff rate
for Local Access Services is changed by the Local Access
service provider, such changes will be passed through to Customer.
5.3 Customer may, upon Seller's prior written approval,
order its own Local Access Services. In such event, Customer
shall be billed directly by the provider of such services and
Seller shall not be responsible for billing any such charges.
If Customer orders its own Local Access Services, Customer
shall be responsible for ensuring that such services are turned
up at the same time as the Network Services being provided by
Seller. In the event the Customer-ordered Local Access
Services are not ready at such time as the Network Services
being provided by Seller, Seller shall nevertheless have the
right to begin billing for such Network Services as of the
Actual Start Date and Customer shall be liable for payment for
such Network Services as of such date.
6.0 Ancillary Services and Charges
6.1 Seller may provide extraordinary service to Customer
for reasons including but not limited to: (a) Customer's
request to expedite Service availability to a date earlier than
Seller's published installation interval or a previously
accepted start date; (b) Service redesign or other activity
occasioned by receipt of inaccurate information from Customer;
(c) reinstallation charges following any suspension of the
Service for cause by Seller; (d) Customer's request for use of
routes or facilities other than those selected by Seller for
provision of the Service; and (e) other circumstances in which
extraordinary costs and expenses are generated by Customer and
reasonably incurred by Seller (services under this subsection
are collectively referred to herein as "Ancillary Services").
Customer shall be liable for all charges for any Ancillary
Services provided by Seller.
6.2 If Customer desires to change the date on which
Customer has requested that Service be available, other than a
request to expedite Service as set forth above, Customer may be
charged a Change of Service Date Charge. Such charge will not
apply to Customer's first change request, as long as such
request is made more than fifteen (15) business days prior to
the original Requested Start Date. If Customer makes a second
change, or such change is requested less than fifteen (15) days
prior to the original Requested Service Date, Customer will be
charged Seller's then applicable Change of Service Date Charge.
Customer will also be charged for any charges incurred by
Seller from third party providers as a result of Customer's
request for Change of Service Date.
6.3 If Customer requests a modification to the
information contained in a Service Order (other than a Change
of Service Date) prior to completion of installation of the
Service, Customer may incur a Change of Service Order Charge.
No charge will be incurred if the change is administrative in
nature (i.e. billing address, contact information, etc.). A
charge will be incurred if the administrative change relates to
Local Access for which Seller is acting as agent.
6.4 If Customer requests a change to Network Services after
such Network Services have been installed, Customer may incur a
Change of Service Charge. If such Change of Service is
administrative in nature, Customer will not incur a charge,
unless such administrative change applies to Local Access
Services which have been ordered by Seller as agent for
Customer. In addition to the Change of Service Charge,
Customer will be responsible for any charges due to
re-engineering which is required as a result of Customer's
request for Change of Service.
6.5 If Customer desires to cancel a Service Order prior
to installation and acceptance of the Service, Customer will
incur a Cancellation Charge.
6.6 All charges referred to in this Section 6.0 shall be
established as of Seller's acceptance of the Service Order to
which they apply unless they are otherwise specifically set
forth in the Xxxxxxxx Network Pricing Schedule as non-recurring
charges. Such non-recurring charges will be set forth for each
type of Service available under this Carrier Agreement.
7.0 Payment Terms
7.1 Due Date and Invoice. All amounts stated on each monthly
invoice are due and payable upon Customer's receipt of the
invoice ("Due Date"). Customer agrees to remit payment to
Seller at the remittance address. In the event Customer fails
to make full payment to the proper address within thirty (30)
days of the date of the invoice, Customer shall also pay a late
fee in the amount of the lesser of one and one-half percent (1
1/2%) of the unpaid balance per month or the maximum lawful
rate under applicable state law which shall accrue from the Due
Date. Customer acknowledges and understands that all charges
are computed exclusive of any applicable federal, state or
local use, excise, valued added, gross receipts, sales and
privilege taxes, duties, fees or similar liabilities (other
than general income or property taxes imposed on Seller),
whether charged to or against Seller, its suppliers or
affiliates or Customer associated with the Service, Local
Access Service or Ancillary Service provided to Customer
("Additional Charges"). Such Additional Charges shall be paid
by Customer in addition to all other charges provided for
herein.
7.2 All prorated monthly recurring charges (charges for
monthly Service or Ancillary Service provided for less than a
calendar month), installation and other non-recurring charges
shall be billed following the receipt of any such Service,
Local Access Service or Ancillary Service. Payment for all
monthly recurring charges for full months during which Service,
Local Access Service or Ancillary Service are to be provided
shall be due in advance.
7.3 If Customer in good faith disputes any portion of an
invoice it must pay the undisputed amount of the invoice and
provide written notice to Seller of the billing dispute within
thirty (30) days of the Due Date. Such notice must include
documentation substantiating the dispute. Customer's failure
to notify Seller of a dispute shall be deemed to be Customer's
acceptance of such charges. The parties will make a good faith
effort to resolve billing disputes as expeditiously as
possible. If a dispute is resolved in favor of Customer,
Customer shall receive an adjustment on its next xxxx.
7.4 Suspension of Service.
(a) In the event payment of undisputed amounts is not received
from Customer on or before sixty (60) days following the date
of the invoice, Seller shall have the right to suspend all or
any portion of the Network Services, Local Access Services or
Ancillary Services to Customer. Seller shall exercise this
suspension right by providing Customer with a minimum of ten
(10) days' written notice specifying the past due amount and
the Network Services and/or Ancillary Services to be suspended.
If Seller receives the entire specified past due amount within
the ten (10) day notice period, then Customer's Service shall
not be suspended.
(b) If only a portion of the Network Services, Local Access
Services or Ancillary Services is initially suspended pursuant
to Seller's written notice, and Customer fails to pay the
specified past due amount within an additional ten (10) days
after the partial suspension of
Service, then after the
additional ten (10) day period, Seller may suspend all or any
additional portion of the Network Services, Local Access
Services or Ancillary Services to Customer with no additional
written notice. Further, after the additional ten (10) day
period, Seller may continue suspension until such time as
Customer has paid in full all charges then due, including any
late fees as specified herein. Following such payment, Seller
shall reinstate Customer's Network Services, Local Access
Services or Ancillary Services, subject to Seller's Right to
Assurance as provided in Paragraph 7.5 below.
(c) Suspension of Network Services, Local Access Services or
Ancillary Services as set forth in this Paragraph shall not
affect Customer's obligation to pay for the Network Services,
Local Access Services or Ancillary Services.
7.5 Seller's Right to Assurance.
(a) If at any time there is a material adverse change in
Customer's creditworthiness or a material change in Customer's
financial position, then in addition to any other remedies
available to Seller, Seller may elect, in its sole discretion,
to demand reasonable assurance of payment from Customer. An
adverse material change in Customer's creditworthiness shall
include, but not be limited to: (a) Customer's default of its
obligations to Seller under this or any other agreement with
Seller; (b) failure of Customer to make full payment of charges
due hereunder on or before the Due Date on three (3) or more
occasions during any period of twelve (12) or fewer months or
Customer's failure to make such payment on or before the Due
Date in any two (2) consecutive months; (c) acquisition of
Customer (whether in whole or by majority or controlling
interest) by an entity which is insolvent, which is subject to
bankruptcy or insolvency proceedings, which owes past due
amounts to Seller or any entity affiliated with Seller or which
is a materially greater credit risk than Customer; or (d)
Customer's being subject to or having filed for bankruptcy or
insolvency proceedings or the legal insolvency of Customer. An
adverse material change in Customer's financial position shall
include, but not be limited to, negative net worth or working
capital. If Customer's financial statements are not public
information, upon Seller's demand for reasonable assurance of
payment, Customer shall be required to provide financial
statements. After receipt of Customer's financial information,
Seller may require a deposit or other similar means to
establish reasonable assurance of payment.
(b) If Customer has not provided Seller with its financial
information and with reassurance satisfactory to Seller within
thirty (30) days of Seller's notice of demand for reassurance,
then, in addition to any other remedies available to Seller,
Seller shall have the option, in its sole discretion, to
exercise one or more of the following remedies: (i) cause the
start of the Service, Local Access Service or Ancillary Service
described in a previously executed Service Order to be delayed
pending satisfactory reassurance; or (ii) decline to accept a
Service Order or other requests from Customer to provide
Service, Local Access Service or Ancillary Service.
7.6 Taxes. If any sales taxes, valued added taxes or similar
charges or impositions are asserted against Seller after, or as
a result of, Customer's use of Network Services, Local Access
Services or Ancillary Service by any local, state, national,
international, public or
quasi-public governmental entity or
foreign government or its political subdivision, including
without limitation, any tax or charge levied to support the
federal Universal Service Fund contemplated by the
Telecommunications Act of 1996, or any state equivalent,
Customer shall be solely responsible for such taxes, charges or
impositions. Customer agrees to pay any such taxes, charges or
impositions and hold Seller harmless from any liability or
expense associated with such taxes, charges or impositions.
7.7 Adjustments. Seller may make billing adjustments for a
period of two (2) years after the Due Date of an invoice, or
two (2) years after the date a service is rendered, whichever
is later.
8.0 General Agreement
8.1 Outage Credits. (a) Customer acknowledges the
possibility of an unscheduled, continuous and/or interrupted
period of time when a Network Service or Network Services are
"unavailable" (as defined in the Technical Specifications
attached hereto as Exhibit II) for a continuous period of two
(2) hours (hereafter an "Outage"). An Outage shall begin upon
the earlier of Seller's actual knowledge of the Outage or
Seller's receipt of notice from the Customer of the Outage. In
the event of an Outage, Customer shall be entitled to a credit
(the "Outage Credit") upon Seller's receipt of Customer's
written request for such Outage Credit, (i) for ATM or Frame
Relay Service in the amount of ten percent (10%) of the monthly
Port, PVC and/or usage charges (as stated on the applicable
Service Order) regardless of the length of such Outage, or (ii)
for Private Line Service in the amount of 1/720 of the monthly
recurring charge for the interexchange portion of the Service
for each hour in excess of the first two (2) consecutive hours
that the affected Service fails to conform to the Technical
Specifications.
(b) In the event that Customer experiences one or more Outages
on the same circuit or Service each month for a period of three
consecutive months or three outages on the same circuit or
Service in a given month (the "Excessive Outage"), Customer
shall be entitled, in addition to the applicable Outage Credit,
if any, to terminate such circuits as are affected by the
Excessive Outage without liability for early termination
charges stated in Section 6.1.
(c) Customer shall not receive an Outage Credit if the
interruptions are (i) of a duration of less than two (2)
consecutive hours, (ii) caused by Customer or others authorized
by Customer to use the Network Services under this Carrier
Agreement, (iii) due to the failure of power, facilities,
equipment, systems or connections not provided by Seller, (iv)
caused by the failure of Local Access to Seller's fiber optic
network, (v) the result of scheduled maintenance where Customer
has been notified of scheduled maintenance in advance, (vi) due
to a Force Majeure event as defined in Section 8.7 of this
Carrier Agreement.
(d) All Outage Credits shall be credited on Customer's next
monthly invoice for the affected Service.
(e) Under no circumstances shall an Outage or an Excessive
Outage be deemed a default under this Carrier Agreement.
8.2 Warranty and Disclaimer of Warranty. Seller warrants that
Network Services or Ancillary Services shall be provided to
Customer in accordance with the applicable Technical
Specifications set forth in Exhibit II. Seller shall use
commercially reasonable efforts under the circumstances to
remedy any delays, interruptions, omissions, mistakes,
accidents or errors in the Network Services or Ancillary
Services and restore such Network Services or Ancillary
Services to comply with the terms hereof. THE FOREGOING
WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY AND IS PROVIDED IN
LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.3 Limitation of Liability. Seller shall indemnify and
defend Customer from and against any loss incurred by Customer
with respect to any deficiency in any of the Services or
Ancillary Services provided by Seller hereunder and any breach
by Seller of its obligations under this Carrier Agreement;
provided, that Seller's liability for any defect or deficiency
in any services provided hereunder shall not exceed the sum of
all amounts paid to Seller or any of its affiliates by Customer
pursuant to this Carrier Agreement during the preceding three
(3) months for the circuit or Service which was defective or
deficient. IN THE EVENT OF ANY BREACH OF THIS CARRIER AGREEMENT
OR ANY FAILURE OF THE NETWORK SERVICES OR THE ANCILLARY
SERVICES, WHATSOEVER, NO PROVIDER (AS DEFINED IN SECTION 8.5)
SHALL BE LIABLE FOR ANY (i) ANY SPECIAL, INCIDENTAL, EXEMPLARY,
OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF BUSINESS OR
PROFITS), OR (ii) ANY DAMAGES OF ANY KIND RESULTING FROM
UNAUTHORIZED USE OF THE SYSTEM OR LOSS OF DATA. THIS PROVISION
APPLIES TO ALL CLAIMS WHETHER BASED UPON BREACH OF WARRANTY,
BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY
OTHER LEGAL THEORY, EVEN IF THE PROVIDER BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
8.4 Year 2000 Compliance Readiness Disclosure. Seller has
initiated an enterprise-wide project to address the year 2000
compliance issue for all technology hardware and software,
external interfaces with customers and suppliers, operations
process control, automation and instrumentation systems and
facilities items. Seller's goal is to have all business
critical processes tested and certified as year 2000 compliant.
"Year 2000 Compliant" means that any function of such hardware
and software containing or calling on a calendar function,
including, without limitation, any function indexed to the CPU
clock, and any function providing specific days, or calculating
spans of dates or days, shall record, store, process, provide
and where appropriate, insert, true and accurate dates and
calculations for dates and spans prior to, including and
following January 1, 2000, and shall correctly recognize and
process the date of February 29, and any related data, during
leap years. Any occurrence of error or interruption of Service
caused by non-compliance with this paragraph shall entitle
Customer to the Outage Credits remedy stated in Section 3.0 of
Schedule A of this Carrier Agreement. This shall be Customer's
sole remedy in the event of any such error or interruption of
Service caused by non-compliance with this paragraph.
8.5 Customer Content and Indemnity. Customer shall make
all arrangements with copyright holders, music licensing
organizations, performers' representatives or other parties for
necessary authorizations, clearances or consents with respect
to transmission contents ("Contents"). Customer shall
indemnify and hold harmless Providers (as defined below)
against and from any court, administrative or agency action,
suit or similar proceeding, whether civil or criminal, private
or public, brought against Providers arising out of or related
to the contents transmitted hereunder (over Seller's network or
otherwise) including, but not limited to, claims, actual or
alleged, relating to any violation of copyright law, export
control laws, failure to procure Consents, failure to meet
governmental or other technical broadcast standards, or that
such transmission contents are libelous, slanderous, an
invasion of privacy, pornographic, or otherwise unauthorized or
illegal. Providers shall be defined to include Seller, any
third party or affiliated provider, operator or
maintenance/repair contractor of facilities employed in
connection with the provision of Network Services, Local Access
Services or Ancillary Services under this Carrier Agreement.
Seller may terminate or restrict any transmissions over the
network if, in its judgment, (a) such actions are reasonably
appropriate to avoid violation of applicable law; or (b) there
is a reasonable risk that criminal, civil or administrative
proceedings or investigations based upon the transmission
contents shall be instituted against Providers. Customer
agrees not to use Network Services, Local Access Services or
Ancillary Services for any unlawful purpose, including without
limitation any use which constitutes or may constitute a
violation of any local, state or federal obscenity law.
8.6 General Indemnity.
a) Customer and Seller shall defend, indemnify and hold
harmless the other against and from any and all claims for
physical property damage, physical personal injury or wrongful
death to the extent that such arises out of the negligence or
willful misconduct of the respective indemnifying party, its
employees, agents, or contractors in connection with the
provision or use of Network Services, Local Access Services,
Ancillary Services or other performance.
b) With respect to third parties that use Network Services,
Local Access Services or Ancillary Services through Customer,
Customer shall defend, indemnify and hold harmless Providers
against any claims by such third parties for damages arising or
resulting from any defect in or failure to provide Network
Services, Local Access Services or Ancillary Services.
c) The indemnifying party agrees to defend the other against
the claims as set forth above and to pay all reasonable
litigation costs, attorneys' fees, court costs, settlement
payments, and any damages awarded or resulting from any such
claims. The indemnified party shall promptly notify the
indemnifying party in writing of any such claims.
8.7 Force Majeure. If either party's performance of this
Carrier Agreement or any obligation (other than the obligation
to make payments) hereunder is prevented, restricted or
interfered with by causes beyond its reasonable control
including, but not limited to, acts of God, fire, explosion,
vandalism, cable cut, power outage, storm or other similar
occurrence including rain fade or other atmospheric conditions,
any law, order, regulation, direction, action or request of the
United States Government or national, state or local
governments, or of any department, agency, commission, court,
bureau, corporation or other instrumentality of any one or more
of said governments, or of any civil or military authority, or
by national emergencies, insurrections, riots, wars, acts of
terrorism, strikes, lockouts or work stoppages or other labor
difficulties, supplier failures, shortages, breaches or delays,
then the affected party shall be excused from such performance
on a day-to-day basis to the extent of such prevention,
restriction or interference. The affected party shall use
commercially reasonable efforts under the circumstances to
avoid and remove such causes of non-performance and shall
proceed to perform with reasonable dispatch whenever such
causes cease.
8.8 Events of Default. Either party may terminate this
Carrier Agreement if the other is in default of any material
obligation contained herein, which default has not been cured
within thirty (30) days following the receipt of notice of such
default setting forth the specifics of such default.
Termination and receipt of any applicable refund are Customer's
sole remedies in the event of any such Seller's default.
Notwithstanding the foregoing, the failure of any particular
Network Service or Network Services to comply with the
Technical Specifications (as set forth in Exhibit II) shall not
be deemed a default by Seller, but may obligate Seller to
provide Customer with Outage Credits, as provided in Section
8.1 hereof.
8.9 Use of Services. Seller's obligation to provide Network
Services, Local Access Services or Ancillary Services to
Customer is subject to the following conditions: (a) Network
Services, Local Access Services or Ancillary Services shall not
be used for any unlawful purpose, (b) at least ten percent
(10%) of the transmissions shall be interstate transmissions.
Customer represents that this Carrier Agreement, to the extent
it is subject to FCC regulation, is an inter-carrier agreement
not subject to the filing requirements of Section 211(a) of the
Communications Act of 1934, as amended. The parties hereto
acknowledge that from time to time a portion or portions of the
Customer's use of Network Services may be intended for
transmission upon a portion of the Seller's network with
respect to which Seller is contractually limited to use for
multimedia transmissions (i.e. internet traffic, video and
radio transmission services and/or related applications,
including, graphic, visual, imaging, interactive and multimedia
transmissions)(the "Restricted Fiber"). Upon request from the
Seller, Customer agrees within one (1) business day to identify
the nature of its proposed use of the Service so as to permit
Seller to determine whether the Service may be carried over the
Restricted Fiber. The fact that Seller may not utilize the
Restricted Fiber for such transmissions shall not affect
Seller's obligation to provide Network Services or Ancillary
Services, unless otherwise specifically set forth in this
Carrier Agreement.
8.10 Proprietary Information. Customer understands and agrees
that the terms and conditions of this Carrier Agreement and all
documents referenced herein (including invoices to Customer for
Network Services, Local Access Services or Ancillary Services
provided hereunder) are confidential as between Customer,
Seller and its affiliates and shall
not be disclosed by
Customer to any party other than the directors, officers, and
employees or agents of Customer who have specifically agreed to
nondisclosure of the terms and conditions hereof. Violation by
Customer or its agents of the foregoing provision shall entitle
Seller, at its option, to discontinue Network Services, Local
Access Services or Ancillary Services to Customer without
further obligation or liability to Customer. Customer further
agrees that any Customer generated press release, advertisement
or publication regarding this Carrier Agreement, Network
Services, Local Access Services or Ancillary Services provided
hereunder or in which Seller, or its affiliates are to be
mentioned, will be submitted to Seller for its written approval
prior to publication. Customer understands and agrees that
Seller may disclose such information as may be required under
applicable law including, without limitation, filing of
tariffs.
8.11 Intrastate Interexchange Services. Customer may use any
interexchange Service provided under this Carrier Agreement
only if such interexchange Service is used for carrying
interstate telecommunications (i.e., telecommunications subject
to the jurisdiction of the Federal Communications Commission).
Seller and its affiliates shall not be obligated to make
available interexchange Service on a circuit with end points
within a single state or service on a circuit which
originates/terminates at points both of which are situated
within a single state unless Customer represents in writing
that such interexchange Service or circuits shall be used to
carry at least 10% interstate telecommunications. If it is
determined at any time that such interexchange Service or
circuit is subject to state regulation, the interexchange
Service or circuit may be provided by Seller or its affiliates
pursuant to applicable state laws, regulations and applicable
tariffs, or Seller and its affiliates may discontinue provision
of the affected interexchange Service or circuit.
8.12 Tariff. Based on Customer's representation to Seller
that Customer is a telecommunications carrier, to the best of
Seller's knowledge, this Carrier Agreement is not subject to
and does not require the filling of a tariff with the Federal
Communications Commission (the "FCC"), because this Carrier
Agreement is subject to the inter-carrier exemption provided in
47 U.S.C. Sec. 211(a), or is otherwise provided on a private
carriage basis. In the event that due to a court or agency
ruling, or change in applicable law or regulation, this Carrier
Agreement becomes subject to a requirement of an FCC tariff,
then Seller will file a contract tariff with the FCC
incorporating all of the material terms and conditions of this
Carrier Agreement, including pricing, and the parties agree to
abide by that contract tariff.
8.13 Customer Responsibilities. Customer has sole
responsibility for installation, testing and operation of
facilities, services and equipment ("Customer Facilities")
other than those specifically provided by Seller as part of the
Network Services, Local Access Services or Ancillary Services
as described in a Service Order. In no event will the untimely
installation or non-operation of Customer Facilities relieve
Customer of its obligation to pay charges for the Network
Services, Local Access Services or Ancillary Services after the
Actual Start Date.
9.0. Miscellaneous Provisions
9.1 Title to Equipment. This Carrier Agreement shall not, and
shall not be deemed to, convey to Customer title of any kind to
any of the transmission facilities, digital encoder/decoders,
telephone lines, microwave facilities or other facilities
utilized in connection with the Network Services or Ancillary
Services. Any equipment provided by Customer must be itemized
on a schedule listing all such Customer-provided equipment and
appended to the Service Order to which use of that equipment
relates ("Customer Equipment Inventory"). Seller shall not be
obligated to provide any Network Services, Local Access
Services or Ancillary Services for Customer if Customer will be
providing any of its own equipment unless and until such
equipment is itemized on the applicable Customer Equipment
Inventory.
9.2 Conflict of Law. In addition to the nonpayment of any sum
due hereunder, Seller may immediately suspend Network Services,
Local Access Services or Ancillary Services in whole or part if
Seller determines that such Network Services, Local Access
Services or Ancillary Services violate the Communications Act
of 1934, as amended (including the Telecommunications Act of
1996), or that the imposition of any state or federal statute,
or promulgation of any rule, regulation, or order of the
Federal Communications Commission ("FCC") or other governing
body makes Seller's performance commercially impracticable.
9.3 Effect of Change in Law. Upon thirty (30) day's prior
written notice to the other party, either Customer or Seller
shall have the right, without disconnection charge or other
liability to the other party, to cancel the affected portion of
any Service, Local Access Service or Ancillary Service, if
Seller is prohibited by governmental authority from furnishing
or Customer is prohibited from using such portion, or if any
material rate or term contained herein and relevant to the
affected portion of any Service, Local Access Service or
Ancillary Service is substantially changed by order of the
highest court of competent jurisdiction to adjudicate the
matter, the Federal Communications Commission, or other local,
state or federal government authority.
CUSTOMER XXXXXXXX NETWORK, A DIVISION OF
XXXXXXXX COMMUNICATIONS, INC.
By: /s/Xxxx Xxxxxx By: /s/Xxxxx Xxxxxx
Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: Title:
Date: Date:
Exhibit I
Xxxxxxxx Network Pricing Schedule
This Pricing Schedule is made as of this _____ day of
________________, 1999, and is subject to that Carrier Services
Agreement No. __________________ (the "CSA") by and between Xxxxxxxx
Network, a division of Xxxxxxxx Communications, Inc., a Delaware
corporation ("Seller"), and GTC Telecom, a Nevada corporation
("Customer").
A. ATM SERVICES
1. Recurring Rates & Charges: Xxxxxxxx Network ATM service has
three basic rate elements; Local Access, Port Connections, and
Bandwidth.
a. Local Access. Pricing for Local Access is determined in
accordance with the Terms and Conditions set forth in Section 5.0 of
this Carrier Agreement.
b. UNI Port Connections. Pricing for User Network Interface (UNI)
Port Connections is determined on the port speed connections
selected by Customer. UNI is Port Connections are currently
available at DS3, OC3 and OC12 speeds. Monthly recurring charges
for Port Connections are set forth in Table A.1 below.
Table A.1 Monthly Recurring Port Charges
Monthly Recurring Port ChargesPort Speed Monthly Recurring Port
Charge CoS
DS3 $4,500 VBRnrt or CBR
OC3 $11,000 VBRnrt or CBR
OC12 $37,000 VBRnrt or CBR
c. Bandwidth.
(i) There are two types of Bandwidth which can be selected,
the Virtual Channel Connection (VCC) or the Virtual Path Connection
(VPC). The type of bandwidth selected by the Customer does not
determine the price.
(ii) Pricing for Bandwidth is determined based on the Class of
Service (CoS). Two Classes of Service are offered by Xxxxxxxx
Network: Constant Bit Rate (CBR) and Variable Bit Ratenon real time
(VBRnrt). CoS charges are stated in Committed Information Rates
(CIR) which are stated in Megabit per second (Mbps) increments for
one-way (Simplex) VCCs or VPCs. CIR increments are available in
1Mbps increments up to 40Mbps for DS3 ports, 5 Mbps increments up to
150 Mpbs for OC3 ports and 25 Mbps
increments up to 600 Mbps for
OC12 ports. Monthly recurring charges for Bandwidth are set forth
in Table A.2 below.
Table A.2 Monthly Recurring Bandwidth Charges
Monthly Recurring Bandwidth Charges
Port Speed CoS CIR (Mbps) Price Per Mbps
DS3 VBRnrt 1-9 $151
VBRnrt 10-19 $147
VBRnrt 20-29 $144
VBRnrt 30-40 $140
OC3 VBRnrt 5-20 $147
VBRnrt 25-35 $144
VBRnrt 40-55 $140
VBRnrt 60-75 $137
VBRnrt 80-95 $133
VBRnrt 100-120 $130
VBRnrt 125-150 $126
OC12 VBRnrt 25-75 $133
VBRnrt 100-175 $130
VBRnrt 200-275 $126
VBRnrt 300-350 $123
VBRnrt 375-475 $119
VBRnrt 500-600 $116
DS3 CBR 1-9 $323
CBR 10-19 $315
CBR 20-29 $308
CBR 30-40 $300
OC3 CBR 5-20 $315
CBR 25-35 $308
CBR 40-55 $300
CBR 60-75 $293
CBR 80-95 $285
CBR 100-120 $278
CBR 125-150 $270
OC12 CBR 25-75 $285
CBR 100-175 $278
CBR 200-275 $270
CBR 300-350 $263
CBR 375-475 $255
CBR 500-600 $248
2. Non-Recurring Charges:
Non-recurring charges include installation, configuration changes,
order cancellations and order changes that may be incurred for the
Port, VCC or VPC. Such non-recurring charges are set forth in Table
A.3 below.
Table A.3
Non Recurring Charges
Description of Charge Charges
Installation:
DS3 Port $1,500
OC3 Port $4,000
OC12 Port $15,000
per PVC or VP $40
Expedite Charge $300
Change of Service Order Charges:
Configuration Change Charge $50
Order Cancellation Charge $250
Port Order Change Charge $100
Change of Service Charge:
Configuration Change Charge $50
Port Order Change Charge $100
Configuration change charges are applied when the bandwidth size of
a VCC or VPC are changed.
Order Cancellation Charges apply when a PVC, VP or Port has been
ordered and needs to be canceled prior to the Service having been
installed and accepted.
Port Order Change Charges apply when Customer requests to
change the port size ordered. If the Port has been installed and
accepted, Customer will be charged for a new port installation.
3. ATM Discount Structure
Xxxxxxxx Network offers the following discounts on ATM Service
charges. Discounts are based on the monthly recurring Port
Connection and Bandwidth (CIR) charges only for ATM Services, as
well as the applicable monthly revenue as defined for Private Line
Service, Frame Relay Service and Collocate Service. Any credits to
which Customer may be entitled, late payment penalties, taxes or
other government surcharges, any one-time non-recurring fees and
charges or any charges related to Local Access Services are not
considered when determining the monthly revenue for purposes of the
ATM discount. The discount structure is based on the monthly
revenue achieved by Customer and the stated length of the Service
Order. The discount Customer will receive on any Service Order will
be determined by the level of revenue achieved by Customer at the
time the Service Order is placed and will include the anticipated
revenue for the Service Order being placed. The discount is
determined at the time the Service Order is placed and Customer
shall receive the determined discount for the remainder of the term
of the Service Order. Customer will receive the stated discount off
of Seller's standard rates as such rates may exist from time to
time.
Table A.4
Discount StructureMonthly Revenue 1 Year 2 Year 3 Year 4
Year 5 Year
Less than $25,000 0% 0% 0% 0% 0%
$25,000 12% 14% 18% 22% 27%
$50,000 14% 16% 20% 24% 29%
$100,000 16% 18% 22% 26% 31%
$150,000 18% 20% 24% 28% 33%
$200,000 (+) 20% 22% 26% 30% 35%
B. Private Line Services
1. Xxxxxxxx Network Private Line Service has three basic rate
elements; Interexchange charges, Local Access Charges and
non-recurring charges.
a. Interexchange rates are determined in accordance with Table B.3
below. Pricing for any Service not listed in such Table is
determined on an individual case basis and will be set forth on
Customer's Service Order.
The minimum monthly charge for any Interexchange circuit ordered by
Customer shall be as follows:
Table B.1
Minimum Monthly ChargesDS-3 $2,000
OC-3 $5,000
OC-12 $20,000
OC-48 $80,000
b. Non-Recurring Charges:
Table B.2
Non-Recurring Charges DS-1 DS-3 OC-3 OC-12 OC-48
New Order Installation $400 $2,000 $6,000 $12,000 $24,000
Order Change (1st change free) $25 $50 $2,000 $3,000 $4,000
Order Cancellation
Pre-Engineering $150 $250 $500 $750 $1,000
Post-Engineering $300 $500 $2,000 $3,000 $4,000
ASR (new or disconnect) Special Access $250 $250 $250 $250 $250
ASR Supplement $150 $150 $150 $150 $150
Order Expedite $300 $300 $300 $300 $300
Reconfiguration $200 $1,000 $3,000 $6,000 $12,000
Additional Installation/Maintenance/Engineering $100.00/hr
$100.00/hr $100.00/hr $100.00/hr $100.00/hr
Additional Installation/Maintenance/Engineering (After Hours)
$125.00/hr $125.00/hr $125.00/hr $125.00/hr $125.00/hr
Cross-Connect Charge Monthly Recurring
Non-Recurring
DS-1 $150 $300
DS-3 $250 $500
OC-3 $600 $1,000
OC-12 $1,200 $10,000
OC-48 $3,500 $25,000
Installation charges shall apply to the normal installation of
equipment necessary to provide the requested service to the point of
demarcation at the Customer's premises. Additional installation
charges shall apply when Seller is required to install equipment
other than that normally required to provide the service or when
Customer requests special equipment.
Non-recurring charges not described above will be considered special
requests and will be handled on an individual case basis. All of
the charges stated above are subject to change with thirty (30) days
notice.
c. Private Line Discount Structure
Xxxxxxxx Network offers the following discounts on Private Line
Service charges. Discounts are based on the monthly recurring
interexchange charges only for Private Line Services, as well as the
applicable monthly revenue as defined for ATM Service, Frame Relay
Service and Collocate Service. Any credits to which Customer may be
entitled, late payment penalties, taxes or other government
surcharges, any one-time non-recurring fees and charges or any
charges related to Local Access Services are not considered when
determining the monthly revenue for purposes of the Private Line
discount. The discount structure is based on the monthly revenue
achieved by Customer and the stated length of the Service Order.
The discount Customer will receive on any Service Order will be
determined by the level of revenue achieved by Customer at the time
the Service Order is placed and will include the anticipated revenue
for the Service Order being placed. The discount is determined at
the time the Service Order is placed and Customer shall receive the
determined discount for the remainder of the term of the Service
Order. Customer will receive the stated discount off of Seller's
standard rates as such rates may exist from time to time. The rates
stated in the discount tables below are per VGE V&H mile per month.
Table B.3
Month to
Month Rate
$ 0.04
DS3 RATE TABLE 1 year Circuit 2 year Circuit 3 year Circuit 4 year
Circuit 5 year Circuit$ Volume Rate Disc. Rate Disc.
Rate Disc. Rate Disc. Rate Disc.
Less than $50,000 .0348 13% .0344 14% .0340 15%
.0336 16% .0332 17%
$ 50,000 .0344 14% .0340 15% .0336
16% .0332 17% .0328 18%
$ 100,000 .0340 15% .0336 16% .0332 17%
.0328 18% .0324 19%
$ 250,000 .0336 16% .0332 17% .0328 18%
.0324 19% .0320 20%
$ 500,000 .0332 17% .0328 18% .0324 19%
.0320 20% .0316 21%
$ 750,000 .0328 18% .0324 19% .0320 20%
.0316 21% .0312 22%
$ 1,000,000 .0324 19% .0320 20% .0316 21%
.0312 22% .0308 23%
$ 1,500,000 .0320 20% .0316 21% .0312 22%
.0308 23% .0304 24%
$ 2,000,000 .0316 21% .0312 22% .0308 23%
.0304 24% .0300 25%
Month to
Month Rate
$ 0.0375 OC-3 / OC-3(c) RATE TABLE 1 year Circuit 2
year Circuit 3 year Circuit 4 year Circuit 5 year Circuit$ Volume
Rate Disc. Rate Disc. Rate Disc. Rate Disc.
Rate Disc.
Less than $50,000 .0326 13% .0323 14% .0319 15%
.0315 16% .0311 17%
$ 50,000 .0323 14% .0319 15% .0315 16%
.0311 17% .0308 18%
$ 100,000 .0319 15% .0315 16% .0311 17%
.0308 18% .0304 19%
$ 250,000 .0315 16% .0311 17% .0308 18%
.0304 19% .0300 20%
$ 500,000 .0311 17% .0308 18% .0304 19%
.0300 20% .0296 21%
$ 750,000 .0308 18% .0304 19% .0300 20%
.0296 21% .0293 22%
$ 1,000,000 .0304 19% .0300 20% .0296 21%
.0293 22% .0289 23%
$ 1,500,000 .0300 20% .0296 21% .0293 22%
.0289 23% .0285 24%
$ 2,000,000 .0296 21% .0293 22% .0289 23%
.0285 24% .0281 25%
Month to
Month Rate
$ 0.0335 OC-12 / OC-12(c) RATE TABLE 1 year Circuit 2
year Circuit 3 year Circuit 4 year Circuit 5 year Circuit$ Volume
Rate Disc. Rate Disc. Rate Disc. Rate Disc.
Rate Disc.
Less than $250,000 .0291 13% .0288 14% .0285 15%
.0281 16% .0278 17%
$ 250,000 .0288 14% .0285 15% .0281 16%
.0278 17% .0275 18%
$ 500,000 .0285 15% .0281 16% .0278 17%
.0275 18% .0271 19%
$ 750,000 .0281 16% .0278 17% .0275 18%
.0271 19% .0268 20%
$ 1,000,000 .0278 17% .0275 18% .0271 19%
.0268 20% .0265 21%
$ 1,500,000 .0275 18% .0271 19% .0268 20%
.0265 21% .0261 22%
$ 2,000,000 .0271 19% .0268 20% .0265 21%
.0261 22% .0258 23%
$ 3,000,000 .0268 20% .0265 21% .0261 22%
.0258 23% .0255 24%
$ 4,000,000 .0265 21% .0261 22% .0258 23%
.0255 24% .0251 25%
Month to
Month Rate
$ 0.0320 OC-48 RATE TABLE 1 year Circuit 2 year
Circuit 3 year Circuit 4 year Circuit 5 year Circuit$ Volume
Rate Disc. Rate Disc. Rate Disc. Rate Disc. Rate Disc.
Less than $250,000 .0278 13% .0275 14% .0272 15%
.0269 16% .0266 17%
$ 250,000 .0275 14% .0272 15% .0269 16%
.0266 17% .0262 18%
$ 500,000 .0272 15% .0269 16% .0266 17%
.0262 18% .0259 19%
$ 1,000,000 .0269 16% .0266 17% .0262 18%
.0259 19% .0256 20%
$ 2,000,000 .0266 17% .0262 18% .0259 19%
.0256 20% .0253 21%
$ 3,000,000 .0262 18% .0259 19% .0256 20%
.0253 21% .0250 22%
$ 4,000,000 .0259 19% .0256 20% .0253 21%
.0250 22% .0246 23%
$ 5,000,000 .0256 20% .0253 21% .0250 22%
.0246 23% .0243 24%
$ 6,000,000 .0253 21% .0250 22% .0246 23%
.0243 24% .0240 25%
C. Frame Relay Services
1. Rates & Charges: Xxxxxxxx Network Frame Relay Service has four
principal rate elements: Local Access, Port Connections, Permanent
Virtual Circuits (PVCs), and Trunking charges.
Port Connections and PVCs can be categorized as being either a
User-to-Network Interface (UNI) type or Network-to-Network Interface
(NNI) type. An NNI port is defined as one end of a connection
between Seller's frame relay network and another carrier's network.
The connecting carrier could be either a customer or off-net service
provider. Similarly, an NNI PVC is defined as one which has each
end of the PVC residing in two different carrier's frame relay
networks, rather than the originating and terminating points being
in the same carrier's network.
2. Conventional Frame Relay Services:
a. Local Access: Pricing for Local Access is determined in
accordance with the Terms and Conditions set forth in Section 5.0 of
this Carrier Agreement.
b. Port Connections: Both UNI and NNI port charges are based
solely on the speed of the port selected by the Customer. Available
port speeds range from 64 Kilobits per second (Kbps) to 1.536
Megabits per second (Mbps). Available speeds are set forth in Table
C.1 below. Monthly recurring charges and installation charges for
frame relay ports are set forth in Table C.1 below. Other
non-recurring charges are set forth in Table C.3 below.
c. Permanent Virtual Circuit (PVC) bandwidth charges: UNI and NNI
PVC charges are both based solely on the bandwidth selected by
Customer. Bandwidth charges are stated in Committed Information
Rates (CIR) which are stated in Kbps increments for one-way
(Simplex) PVCs. Available PVC-CIR speeds range from 4 Kbps to 1.024
Mbps. Available speeds are set forth in Table C.1 below. Monthly
recurring charges and installation charges for Frame Relay PVCs are
set forth in Table C.1 below. Other non-recurring charges are set
forth in Table C.3 below.
d. Trunking Charges: The trunking charge is for the communication
line between the Xxxxxxxx Network switch and Customer's switch. The
trunking charge is added to the rates set forth in Table C.1 below.
Table C.1 Monthly Recurring Charges (MRC) and Installation Charges
Frame Relay Service
Components Speed/CIR
(Kbps) MRC Install
NNI Port (Private NNI) 64 $ 201 $ 250
128 $ 376 $ 250
(Add: 'NNI Trunking Charge') 192 $ 410 $ 250
256 $ 443 $ 250
320 $ 549 $ 250
384 $ 655 $ 250
448 $ 741 $ 250
512 $ 828 $ 250
576 $ 886 $ 250
640 $ 944 $ 250
704 $ 1,002 $ 250
768 $ 1,061 $ 250
1024 $ 1,324 $ 250
1536 $ 1,670 $ 000
XXX PVC 4 $ 7 $ 25
(Simplex Pricing) 8 $ 9 $ 25
16 $ 11 $ 25
32 $ 18 $ 25
48 $ 27 $ 25
64 $ 36 $ 25
128 $ 72 $ 25
192 $ 107 $ 25
256 $ 143 $ 25
320 $ 179 $ 25
384 $ 215 $ 25
448 $ 250 $ 25
512 $ 286 $ 25
576 $ 322 $ 25
640 $ 358 $ 25
704 $ 394 $ 25
768 $ 429 $ 25
832 $ 465 $ 25
896 $ 501 $ 25
960 $ 537 $ 25
1024 $ 572 $ 25
UNI Ports 64 $ 201 $ 250
128 $ 376 $ 250
192 $ 410 $ 250
256 $ 443 $ 250
320 $ 549 $ 250
384 $ 655 $ 250
448 $ 741 $ 250
512 $ 828 $ 250
576 $ 886 $ 250
640 $ 944 $ 250
704 $ 1,002 $ 250
768 $ 1,061 $ 250
1024 $ 1,324 $ 250
1536 $ 1,670 $ 250
UNI PVCs 4 $ 7 $ 25
(Simplex Pricing) 8 $ 9 $ 25
16 $ 11 $ 25
32 $ 18 $ 25
48 $ 27 $ 25
64 $ 36 $ 25
128 $ 72 $ 25
192 $ 107 $ 25
256 $ 143 $ 25
320 $ 179 $ 25
384 $ 215 $ 25
448 $ 250 $ 25
512 $ 286 $ 25
576 $ 322 $ 25
640 $ 358 $ 25
704 $ 394 $ 25
768 $ 429 $ 25
832 $ 465 $ 25
896 $ 501 $ 25
960 $ 537 $ 25
1024 $ 572 $ 25
Local Access DS-0/DDS
ICB
ICB
ICB
FT-1 ICB
ICB
ICB
DS-1 ICB
ICB
NNI Trunking Charge DS-0/DDS
ICB
ICB
ICB
FT-1 ICB
ICB
ICB
DS-1 ICB
ICB
3. Enhanced Frame Relay Services:
a. Frame Relay/ATM Service Interworking:
Frame Relay/ATM Service Interworking gives Customer the ability to
communicate seamlessly between ATM and Frame Relay locations. There
is no additional charge for locations requiring ATM beyond the
standard ATM charges set forth in Section A of this Pricing
Schedule.
b. Flex-CIR Services: Seller's Flex-CIR Service is designed
to help end-users in two ways:
1. Customer can reserve the exact amount of bandwidth needed by the
end-user during the hours it is most critical.
2. Customer can minimize network costs by 'turning off' excess
bandwidth during the hours when it is least required.
Specifically, Customer will be able to plan adjustments to PVC
speeds (or CIR) at quarter-hour increments (e.g. 8:00, 8:15, 8:30,
8:45, etc.). Once Customer has made a speed change, Customer will
not be able to make another change for at least two (2) hours.
Customer shall have the option of establishing different speed
schedules for the same PVC depending on the day of the week (e.g.
turning a Flex-CIR PVC down from its 'weekday speed' of 000 Xxxx XXX
to 64 Kbps CIR on the weekend). The configuration charges for this
enhanced service are provided in Table C.2 below.
Table C.2
Time-of-Day/Day-of-Week Flex-CIR
PVC ChargesDescription NRC (Per PVC) MRC (Per PVC)
Basic PVC Charge
(Based on weighted average of CIRs) (Standard NRC charge for
average CIR level) (Standard MRC charge for average CIR level)
XXX Configuration Charge (2 CIR adjustments per day) $40 $60
DOW Configuration Charge (2 CIR adjustments per wk.) $40
$60
Each additional CIR adjustment per period (Per day or per week) $20
$30
Example:
Pricing Step 1: Customer establishes the necessary CIR and times
for the XXX Flex-CIR Service as follows:
8 a.m. to 5 p.m.:1.024Mbps
5 p.m. to 8 a.m.: 64 Kbps
Once the times and CIR are known, Seller and Customer may then
prorate the charges, based on the percent of time each CIR speed is
scheduled for use. In this example, assuming the standard Monthly
Recurring Charges are $600 for a 1.024Mbps CIR and $40 for a 64Kbps
CIR, the prorated charge would be calculated as follows:
Business Hours: 9/24 hours * $600 (0.000Xxxx XXX) = $225
Nonbusiness Hours: 15/24 hours * $40 (00Xxxx XXX) = $25
Total Prorated Flex-CIR Charge: = $250.00
per month
Pricing Step 2: Next, Seller adds the speed change
configuration charges. There is a $30 fee every time the CIR is
changed during a Time-of-Day (XXX) schedule. In this example, the
CIR speed changes two times each day (i.e. 8 a.m. to 5 p.m. and 5
p.m. to 8 a.m.). The XXX configuration charges would be calculated
as follows:
XXX Configuration Charge = $30/daily speed change * 2
Changes = $60 per month
Pricing Step 3: In order to determine the total monthly
Flex-CIR cost for this PVC, the Seller adds the "Prorated Charge"
calculated in Step 1 with the "XXX Configuration Charge" calculated
in Step 2.
Monthly Recurring Flex-CIR PVC Cost: $250 + $60 = $310
per month
Pricing Step 4: In order to determine the non-recurring
charges for this example, you first determine the installation
charges. The Installation charges for PVC's are $25 (you would add
to this the installation charge for the ports chosen by Customer as
well. Since ports were not part of
this example, the Port
installation charges and MRC have not been included). Since there
are 2 PVC's (64 & 1.024 Mbps) the total installation charge for the
PVC's is $50. In addition, Customer would pay a one time
non-recurring charge of $40 for the XXX configuration. Therefore,
in this example, Customer's non-recurring charges for the PVC's only
would be $90.
4. Additional Non-recurring Charges: In addition to the
non-recurring installation charges set forth in Tables C.1 & C.2
above, Customer may incur additional non-recurring charges as set
forth in Table C.3 below.
Table C.3
Additional Non-Recurring ChargesDescription of Charge Charge
Configuration Changes $50
Order Cancellation Charge $250
PVC Order Change Charge $50
Port Order Change Charge $100
Configuration charges are applied when the CIR of PVCs for Basic
Frame Relay Service are changed or when Customer desires a change to
the CIR of PVCs in an already established Flex CIR Schedule (i.e.
Customer will not be charged the $50 fee for changes to the CIR when
establishing its initial Flex-CIR schedule).
Order Cancellation Charges apply when a Customer cancels an order
prior to its installation.
PVC Order Change Charges apply when Customer makes a change to the
PVC size ordered. If the PVC has been installed and accepted,
Customer will be charged for a new PVC installation.
Port Order Change Charges apply when Customer requests to change the
port size ordered. If the Port has been installed and accepted,
Customer will be charged for a new port installation.
5. Frame Relay Discount Schedule
Xxxxxxxx Network offers the following discounts on Frame Relay
Service charges. Discounts are based on monthly recurring charges
only for Frame Relay Services, as well as the applicable monthly
revenue as defined for Private Line Service, ATM Service and
Collocate Service. Any credits to which Customer may be entitled,
late payment penalties, taxes or other government surcharges, any
one-time non-recurring fees and charges or any charges related to
Local Access Services are not considered when determining the
monthly revenue for purposes of the Frame Relay discount. The
discount structure is based on the monthly revenue achieved by
Customer and the stated length of the Service Order. The discount
Customer will receive on any Service Order will be determined by the
level of revenue achieved by Customer at the time the Service Order
is placed and will include the anticipated revenue for the Service
Order being placed. The discount is determined at the time the
Service Order is placed and Customer shall receive the determined
discount for the remainder of the term of the Service Order.
Customer will receive the stated discount off of Seller's standard
rates as such rates may exist from time to time.
Table C.4
Monthly Revenue Commitment 1 Year 2 Year 3 Year 4 Year
5 Year
$0 0% 0% 0% 0% 0%
$20,000 37.0% 39.0% 41.0% 43.0% 45.0%
$30,000 38.0% 40.0% 42.0% 44.0% 46.0%
$40,000 39.0% 41.0% 43.0% 45.0% 47.0%
$50,000 40.0% 42.0% 44.0% 46.0% 48.0%
$75,000 41.0% 43.0% 45.0% 47.0% 49.0%
$100,000 42.0% 44.0% 46.0% 48.0% 50.0%
$150,000 43.0% 45.0% 47.0% 49.0% 51.0%
$250,000 43.5% 45.5% 47.5% 49.5% 51.5%
$350,000 44.0% 46.0% 48.0% 50.0% 52.0%
$500,000 44.5% 46.5% 48.5% 50.5% 52.5%
$750,000 45.0% 47.0% 49.0% 51.0% 53.0%
$1,000,000 45.5% 47.5% 49.5% 51.5% 53.5%
IV. Pricing General Conditions
1. All pricing set forth in Sections I, II and III above is
Seller's current pricing. Such pricing is subject to change upon
thirty (30) days written notice by Seller to Customer. Price
changes shall only be effective on a going-forward basis and shall
not apply to Service Orders previously placed by Customer and
accepted by Seller.
IN WITNESS WHEREOF, the parties hereto have executed this Xxxxxxxx
Network Pricing Schedule as of the day and year first above written.
CUSTOMER: XXXXXXXX NETWORK, A DIVISION OF
XXXXXXXX COMMUNICATIONS, INC.
/s/Xxxx Xxxxxx /s/Xxxxx Xxxxxx
Signature of Authorized Representative Signature of Authorized Representative
Xxxx Xxxxxx
Printed Name Printed Name
Title Title
Exhibit II
Xxxxxxxx Network Technical Specifications
I. TECHNICAL SPECIFICATIONS FOR ATM AND FRAME RELAY SERVICES
X. Xxxxxxxx Network
Technical Specifications are
stated as an objective that the
ATM and Frame Relay Services will
perform in accordance with
prevailing telecommunications
industry standards. All Service
provided under Xxxxxxxx ATM and
Frame Relay Services are measured
using two variables: Network
Availability and
Mean-time-to-restore.
Mean-time-to-restore is discussed
in the General Provisions of this
Schedule.
B. Availability.
1. Availability on Xxxxxxxx Network. Availability is a
measurement of the percent of total time that service is
operative when measured over a 365 consecutive day (8760
hour) period. For ATM and Frame Relay Services on the
Xxxxxxxx network, availability shall be 99.95% from
point-of-presence ("POP") to POP measured over a one year
period.
2. Availability for Services not on Xxxxxxxx Network. For
Services not on the Xxxxxxxx network, the off-net provider
will establish availability. The Local Access availability
standards for ATM and Frame Relay Services are established
by the Local Access Provider.
3. See General Provisions for other factors affecting
availability.
II. TECHNICAL SPECIFICATIONS FOR PRIVATE LINE SERVICE
A. Interconnection Specifications
1. DS-3. DS-3 service is provided in accordance with
ANSI Standard T1.102 (formerly AT&T Compatibility Bulletin
119) and Technical Reference 54014 '4. DS-3 Service
operates at 44.736 Mbps.
2. Optical SONET Services (OC-N). Optical SONET Services
are provided in accordance with ANSI Standard T1.105. OC-3
Service operates at 155.520 Mbps and is configured with 3
separate STS-1 signaling paths. OC-3C Service operates at
155.520 Mbps and is configured with 1 STS-3C signaling path
(or 3 concatenated STS-1 signaling paths). OC-12 Service
operates at 622.080 Mbps with 12 separate STS-1 signaling
paths. OC-12C Service operates at 622.080 Mbps with 1
STS-12C signaling path (or 4 separate STS-3C signaling
paths). OC-48 Service operates at 2488.320 Mbps and is
configured with 48 separate STS-1 signaling paths.
B. Availability.
1. Availability on Xxxxxxxx Network. Availability is a
measurement of the percent of total time that service is
operative when measured over a 365 consecutive day (8760
hour) period. DS-3 and Optical SONET Service is considered
inoperative when there has been a loss of signal or when
two consecutive 15 second loop-back tests confirm the
observation of a bit error rate equal to or worse than 1 x
10-6. For Services on the Xxxxxxxx network, availability
shall be 99.95% from POP to POP measured over a one year
period.
2. Availability for Services not on Xxxxxxxx Network.
For Services not on the Xxxxxxxx network, the off-net
provider will establish availability. The Local Access
availability standards for DS-3 and Optical SONET Services
are established by the Local Access Provider.
3. See General Provisions for other factors affecting
availability.
C. Performance (% Error Free Seconds, while Available).
1. Error Free Seconds on Xxxxxxxx Network. Performance
is noted in Error Free Seconds which are a measure of the
percentage of total seconds that do not contain bit errors
when measured over a consecutive 24 hour period.
Performance shall be measured on a one-way basis using a
Pseudo Random Bit Sequence test pattern as defined in
CCITT Recommendation 0.151. For Services on the Xxxxxxxx
network, Error Free Seconds shall be 99.5% from POP to POP
measured over a monthly period.
2. Error Free Seconds for Services Not on Xxxxxxxx
Network. The Error Free Seconds standards for the Local
Access for DS-3 and Optical SONET Service is established
by the Local Access Provider. For Services not on the
Xxxxxxxx network, the off-net provider will establish
Error Free Seconds. For multi-media services, Error Free
Seconds will be as defined by WorldCom, Inc.
III. GENERAL PROVISIONS RELATING TO TECHNICAL SPECIFICATIONS
A. Quality Standards.
1. Standards apply on a one-way basis between Xxxxxxxx
Point(s) of Presence (POP) only.
2. All standards exclude nonperformance due to force
majeure or planned interruptions for necessary maintenance
purposes.
3. All standards exclude nonperformance due to acts or
omissions of Customer or due to any failure of
Customer-provided equipment.
B. Maintenance
1. Xxxxxxxx will undertake repair efforts on equipment
or fiber when Xxxxxxxx first becomes aware of it, or when
notified by Customer and Customer has released all or part
of the Service for testing. The maintenance standards in
this Section III B only apply for Network Equipment or
Fiber on Xxxxxxxx' owned and operated network and from
Xxxxxxxx' POP to Xxxxxxxx' POP.
2. Mean Time to Restore (MTTR) is the average time
required to restore service and resume availability and is
stated in terms of equipment and cable outages. The time
is measured from the moment the outage is reported until
the service is available.
3. MTTR Objective: 2 Hours (Network Equipment)
6 Hours (First Fibers on Cable)
C. Calculation. Xxxxxxxx Network calculates network
availability upon written request from customers. Customer
must notify the Xxxxxxxx Network Customer Care department and
initiate an action request to determine if the standards stated
above were met.
Exhibit III
Xxxxxxxx Network Collocation Services
SERVICES & TERMS
This Collocation Service Schedule ("Schedule") is made as of this
______day of ___________, 199_, and is subject to that Carrier
Services Agreement No. _________________ the ("CSA") by and between
Xxxxxxxx Network, a division of Xxxxxxxx Communications, Inc., a
Delaware corporation ("Seller"), and GTC Telecom, a Nevada
corporation ("Customer").
1. COLLOCATION SERVICE:
1.1 COLLOCATION SERVICE DESCRIPTION ("COLLOCATION
SERVICE").
Seller grants the Customer a license to occupy, access and
locate therein certain telecommunications transmission
equipment and cabling ("Equipment") for the purpose of
interconnecting the Equipment with Seller's
telecommunications transmission network within a portion of
certain premises ("Premises") which are currently owned or
leased by Seller. Customer shall initiate request for
Collocation Service by completion of the form included as
Attachment I to this Schedule. Collocation Service is
granted only by mutual execution of relevant Collocation
Service Order(s), identified as Attachment II to this
Schedule. The portion of collocation space ("Space")
allocated is accepted "as-is" by Customer and Seller makes
no representation as to the fitness of the space for the
Customer's intended purpose. Customer shall abide by the
standard specifications as set forth in the Technical
Specifications as attached hereto. No work related to
Collocation Service shall commence until the CSA,
Collocation Schedule, the Collocation Service Request, and
the relevant Collocation Service Order(s) are mutually
executed.
Only upon the express written consent of Seller may Customer
interconnect the Equipment with transmission service
provided to Customer by third parties. If Customer should
interconnect the Equipment with equipment or services of any
entity other than Seller without obtaining the written
consent of Seller, Customer shall be in breach of the
Carrier Agreement and Seller may pursue any legal or
equitable remedy, including but not limited to the immediate
termination of the license granted in this Schedule.
All cross-connections relevant to interconnecting the
Equipment with Seller or any other party for which Seller
gives explicit written permission shall be established under
the control and direction of Seller.
1.2 MINIMUM SERVICE COMMITMENT.
Collocation Service shall be granted with a minimum network
service commitment as further described herein. Customer
will be required to purchase a minimum of $25,000 of ATM,
Private Line or Frame Relay Service per month per collocate
rack. ATM, Private Line and Frame Relay Service charges
applied to this commitment level include monthly recurring
fees only. The Customer's monthly transmission billing will
be reviewed against the quantity of Collocation Service and
the Customer shall be liable for any deficiency. Charges
for deficiency will be assessed one month in arrears.
2. EFFECTIVE DATE: The Effective Date is defined as the date
identified on the relevant Collocation Service Order as the
date of Collocation Service delivery, or the date upon which
Seller delivers Collocation Service, whichever is later.
3. TERM: The Collocation Service Term shall commence upon the
Effective Date and shall continue for the duration specified
within the relevant Collocation Service Order. Once the
Effective Date has passed, Customer must pay for the
Collocation Services through the end of the Collocation Service
Term specified on the Collocation Service Order, regardless of
whether Customer is actually using the Services.
4. RATES & CHARGES: Customer shall pay Seller for the
Collocation Services rendered pursuant to this Schedule the
charges set forth in each Collocation Service Order. Charges
shall be payable in advance commencing on the Effective Date of
the Collocation Service Term and on the first day of each
calendar month thereafter during the Collocation Service Term.
Charges for partial months shall be prorated.
4.1 SERVICE FEE.
The Service Fee is the amount to be invoiced Customer on a
monthly basis for Collocation Service rendered including,
but not limited to, space and power use. Service Fees are
identified on the relevant Collocation Service Order.
4.2 INSTALLATION FEE.
The Installation Fee is the amount to be invoiced Customer
as a one time fee for Collocation Service consisting of
charges associated with the initial installation of the
Collocation Service. Installation Fees are identified on
the relevant Collocation Service Order.
4.3 BUILD-OUT FEE.
Build-Out Fees are those one-time charges applicable to
Collocation Services rendered that are outside the standard
Collocation offering. Build-Out fees are individually
quoted based on Service Order. Build-out fees are payable
in full to Seller upon execution of a Collocation Service
Order and no work will be performed by Seller or Customer to
Build-Out space prior to Seller's receipt of said payment.
4.4 ANCILLARY.
Ancillary charges related to changes of Collocation Service
delivery are set ofth below. These Ancillary Services are
more fully described in Section 9 of this Collocation
Schedule.
Charge Per Occurrence
Change of Effective Date (pre-install) $100.00
Change of Collocation Service Order (pre-Effective Date) $100.00
Change of Collocation Service (post-Effective Date) $250.00
Order Cancellation (>/=30 days from Effective Date) $250.00
Order Cancellation (<30 days from Effective Date) $500.00
AC power addition (post Effective Date) $750.00
4.5 DISPATCH LABOR CHARGES.
Dispatch labor charges are assessed for Customer requested
site labor. Dispatch requires a minimum 10 days advance
written notice to Seller.
Charge Per Hour
M-F Business Hours $100.00
M-F Off Business Hours $125.00
Saturday & Sunday $150.00
Holidays $150.00
5. COLLOCATION SERVICE DELIVERY: Upon mutual acceptance of a
Collocation Service Order, Seller shall confirm Effective Date,
or inform Customer of the estimated date for the delivery of
such Collocation Service. Seller shall use reasonable efforts
to install each Collocation Service on or before the Effective
Date, but the inability of Seller to deliver Collocation
Services by such date shall not be a default under this Schedule.
In the event Seller fails to tender possession of the Space to
Customer by the Effective Date, Customer shall not be obligated
to pay the Service Fee or Installation Fee until such time as
Seller tenders possession of the Space to the Customer.
If Seller fails to make Collocation Services available within
ninety (90) days after the Effective Date (due to any reason
other than the acts or omissions of Customer), Customer's sole
remedy shall be to cancel the Collocation Service Order which
pertains to such Collocation Service by written notice to
Seller. Seller shall not be liable to Customer in any way as a
result of such delay or failure to tender possession.
6. CONTRACT EXPIRATION: Following the expiration of the
Collocation Service Term or failure of the parties to enter
into any renewal periods, Customer's license shall continue in
effect on a month-to month basis upon the same terms and
conditions specified within this Schedule and relevant
Collocation Service Order, unless terminated by either Customer
or Seller upon thirty (30) days' prior written notice.
Customer's option to renew its license to occupy the Space
shall be contingent on the election by Seller to continue to
own or lease the premises in which the Space is located for the
duration of the renewal period(s), such election to be
exercised at the sole discretion of Seller.
7. INSURANCE: The Customer will carry or cause to be
carried and maintained in force throughout the entire Term of
this Collocation Service Order insurance coverages as described
in paragraphs (A) through (C) below with insurance companies
reasonably acceptable to Seller. The limits set forth below
are minimum limits and will not be construed to limit
Customer's liability. All costs and deductible amounts will be
for the sole account of the Customer.
(A) Worker's Compensation insurance complying with the laws of
the State or States having jurisdiction over each employee,
whether or not Customer is required by such laws to maintain
such insurance, and Employer's Liability with limits of
$500,000 each accident, $500,000 disease each employee, and
$500,000 disease policy limit. If work is to be performed in
Nevada, North Dakota, Ohio, Washington, Wyoming or West
Virginia, Customer will participate in the appropriate state
fund(s) to cover all eligible employees and provide a stop gap
endorsement.
(B) Commercial or Comprehensive General Liability insurance on
an occurrence form with a combined single limit of $1,000,000
each occurrence, and annual aggregates of $1,000,000, for
bodily injury and property damage, including coverage for
blanket contractual liability, broad form property damage,
personal injury liability, independent contractors,
products/completed operations, and when applicable the
explosion, collapse and underground exclusion will be deleted.
(C) Automobile Liability insurance with a combined single
limit of $1,000,000 each occurrence for bodily injury and
property damage to include coverage for all owned, non-owned,
and hired vehicles.
In each of the above described policies, Customer agrees to
waive and will require its insurers to waive any rights of
subrogation or recovery they may have against Seller its
parent, subsidiary, or affiliated companies.
Under the policies described in (B) and (C) above, Seller its
parent, subsidiary and affiliated companies will be named as
additional insureds as respects Customer's operations and as
respects this contract. Any costs associated with naming these
additional insureds will be the responsibility of Customer.
The policies described in (B) and (C) above will include the
following "other insurance" amendment: "This insurance is
primary insurance with respect to Xxxxxxxx Communications,
Inc., its parent, subsidiary and affiliated companies, and any
other insurance maintained by Xxxxxxxx Communications, Inc.,
its parent, subsidiary or affiliated companies is excess and
not contributory with this insurance."
Non-renewal or cancellation of policies described above will be
effective only after written notice is received by Seller from
the insurance company thirty (30) days in advance of any such
non-renewal or cancellation. Prior to the commencement of the
Collocation Service hereunder, Customer will deliver to Seller
certificates of insurance on an XXXXX 25 or 25S form evidencing
the existence of the insurance coverages required above. In
the event of a loss or claim arising out of or in connection
with the work performed under this contract, Customer agrees,
upon request of Seller, to submit the original or a certified
copy of its insurance policies for inspection by Seller.
Seller will not insure nor be responsible for any loss or
damage, regardless of cause, to property of any kind, including
loss of use thereof, owned, leased or borrowed by the Customer,
or its employees, servants or agents.
If Customer utilizes contractor(s) per this Schedule, then
Customer shall require such contractor(s) to comply with these
insurance requirements and supply certificates of insurance
before any work commences.
It is hereby agreed that the insurance requirements of this
Paragraph 8 shall be the insurance requirements under this
Schedule unless more stringent requirements are made by the
Landlord pursuant to the lease relevant to the premises in
question, in which event Customer hereby agrees to comply with
the Landlord's requirements under the lease, as the lease may
be modified from time to time.
8. CHANGE OF COLLOCATION SERVICES:
8.1 CHANGE OF EFFECTIVE DATE (PRE-INSTALL). Customer will
be assessed a Change of Effective Date Charge by Seller for
any changes of Effective Date requested within thirty (30)
days prior to original Effective Date. Customer will also
be charged for any charges incurred by Seller from third
party providers as a result of a request by Customer for a
Change of Effective Date, regardless of date of Customer
notification.
8.2 CHANGE OF COLLOCATION SERVICE ORDER (PRE-EFFECTIVE
DATE). All modifications to the information contained in an
executed Collocation Service Order will be reviewed on an
individual case basis and the Collocation Service Order
shall be amended accordingly upon Seller's acceptance of the
Collocation Service modifications. Any modifications will
permit Seller to likewise amend Rates and Charges and
Effective Date from original Collocation Service Order.
Customer will be assessed a one time fee for changes to a
Collocation Service Order. Customer will also be charged
for any charges incurred by Seller from third party
providers as a result of a request by Customer for a Change
of Collocation Service Order, regardless of date of Customer
notification.
8.3 CHANGE OF COLLOCATION SERVICE (POST-EFFECTIVE DATE).
If Customer requests a change to Collocation Services after
such Collocation Services have been installed, the request
will be reviewed by Seller on an individual case basis with
no guarantees granted by Seller as to the ability to provide
such changed Collocation Service. All Change of Collocation
Service requests shall be authorized by Seller via a change
Collocation Service Order. Customer may incur an additional
Collocation Service and/or Installation Fee(s) for the
changed Collocation Service. Customer will be assessed a
one time fee for Collocation Service changes. Customer will
also be charged for any charges incurred by Seller from
third party providers as a result of a request by Customer
for a Change of Collocation Service, regardless of date of
Customer notification.
8.4 ORDER CANCELLATION (>/=30 DAYS FROM EFFECTIVE DATE).
Customer may cancel a Collocation Service Order by written
notice to Seller. Customer will incur a one time
cancellation fee for Collocation Services cancelled where
notice is received at least 30 days prior to Effective Date.
8.5 ORDER CANCELLATION (<30 DAYS FROM EFFECTIVE DATE).
Customer may cancel a Collocation Service Order by written
notice to Seller. Customer will incur a one time
cancellation fee for Collocation Services cancelled where
notice is received less than 30 days prior to Effective Date.
9. IMPROVEMENTS TO SPACE: In the event Customer desires to
make improvements to the Space which improvements are deemed
material and substantial as reasonably determined by Seller
("Material Improvements"), Customer shall submit all plans and
specifications for such work to be performed in the Space to
Seller for Seller's prior written approval, which approval
shall not be unreasonably withheld or delayed. No construction
may commence until Seller has given its written approval.
Customer agrees that its use or construction of the Space shall
not interfere with Seller's use of its Premises or other
tenants' use of their premises in the building in which the
Premises are located.
Customer shall not employ any contractor to perform Material
Improvements unless previously approved in writing by Seller
which approval shall not be unreasonably withheld (and approved
in writing by the Landlord if required by the lease). Customer
and each contractor and subcontractor participating in
performing Material Improvements shall warrant that such work
shall be free from
all mechanic's and/or materialman's liens
and free from any and all defects in workmanship and materials
for the period of time which customarily applies in good
contracting practice, but in no event for less than one (1)
year after the acceptance of the work by Customer and Seller.
The aforesaid warranties of each such contractor and
subcontractor and Customer shall include the obligation to
repair or replace in a thoroughly first-class and workmanlike
manner all defects in workmanship and materials without any
additional charge. All the Material Improvements shall be
contained in the contracts and subcontracts for performance of
Customer's work and shall be written so that they shall inure
to the benefit of Seller and Customer as their respective
interests may appear. Such warranties shall be so written that
they can be directly enforced by either Customer or Seller, and
Customer shall give to Seller any assignment or other assurance
to effectuate the same.
It shall be the Customer's responsibility to cause each of
Customer's contractors and subcontractors to maintain
continuous protection of the premises adjacent to the Space in
such manner as to prevent any damage to such adjacent property
by reason of the performance of Customer's work.
All of Customer's work shall be coordinated with all work being
performed or to be performed by Seller and other tenants of the
building in which the Premises are located. The contractor or
subcontractor shall not at any time damage, injure, interfere
with or delay the completion of any other construction within
the building; and they and each of them shall comply with all
procedures and regulations prescribed by Seller and the
Landlord of the Premises for integration of Customer's work
with the work to be performed in connection with the
construction of the building, and all other construction
within the building which comprises or contains the Premises.
All fixtures, alterations, additions, repairs, improvements
and/or appurtenances attached to or built into, on or about the
Space prior to or during the Term of the license relevant
thereto, whether by Seller at its expense or at the expense of
Customer, or by Customer at its expense or by previous
occupants of the Space, shall be and remain part of the Space
and shall not be removed by Customer at the end of the
Collocation Service Term. Upon termination or expiration of
the Collocation Service Term, Seller shall allow Customer
thirty (30) days from the date of such termination or
expiration, at Customer's sole cost and expense, to remove all
trade fixtures (including, but not limited to,
rectifiers/chargers, batteries, AC power conditioning
equipment, telecommunication switching equipment, channel
banks, etc.) installed by Customer provided that the Space is
restored by Customer to its condition before the installation
of such items and that all such work (including restoration) is
performed in accordance with the other provisions of this
Schedule. If Customer shall fail to complete such removal and
restoration within the aforesaid thirty (30) day time period,
all such trade fixtures remaining within the Space or at the
Premises may, at Seller's option, become the sole property of
Seller, and Seller may dispose of such trade fixtures as it
deems appropriate. Customer shall continue to pay the Service
Fee specified in the relevant Collocation Service Order until
the earlier of: (i) Customer's removal of such trade fixtures
and completion of such restoral or (ii) Seller's taking
possession of such trade fixtures as set forth above.
All work affecting the Space shall be in compliance with all
laws, ordinances, rules, regulations, orders and directives of
governmental and quasi-governmental bodies and authorities
having jurisdiction over the Premises and the Space from time
to time and Customer shall obtain and keep in effect all
licenses, permits and other authorizations required with
respect to the business conducted by Customer within the Space.
10. SOLE USE OF SPACE BY CUSTOMER: Customer acknowledges that
it has been granted only a license to occupy the Space and
that it has not been granted any real property interests in
the Space. Customer further agrees that neither this Schedule
nor any interest created herein shall be assigned, mortgaged,
subleased, encumbered or otherwise transferred, and that
neither the Space nor any part thereof shal
be encumbered in
any manner by reason of any act or omission on the part of
Customer. Customer further agrees that the Space or any part
thereof shall not be used or occupied, nor permitted to be used
or occupied, by anyone other than Customer. Any attempt to
allow the use or occupation of the Space by anyone other than
Customer, or to assign, mortgage, sublease or encumber any
rights under this Schedule by Customer shall, unless otherwise
agreed to in writing by Seller, be void. In such event, Seller
shall have the right to terminate this Schedule as to any or
all Space occupied by Customer. Seller's agreement to any of
these arrangements shall be in the sole discretion of Seller.
11. EMINENT DOMAIN: In the event of a taking by eminent
domain (or a conveyance by any Landlord of all or any portion
of the Premises to an entity having the power of eminent domain
after receipt of actual notice of the threat of such taking) of
all or any portion of the Premises so as to prevent, in
Seller's sole discretion, the utilization by Customer of the
Space in the Premises, relevant Collocation Service Order(s)
shall terminate as of the date of such taking or conveyance
with respect to the Space which is affected by such taking or
conveyance and the Service Fee paid or to be paid by Customer
shall be reduced accordingly. Except as set forth below,
Customer shall have no claim against Seller for the value of
the unexpired Term of the license affected thereby (or any
portion thereof) or any claim or right to any portion of the
amount that might be awarded to the Landlord of the Premises or
Seller as a result of any such payment for condemnation or
damages. Nothing contained in this Schedule should prohibit
Customer from seeking any relief or remedy against the
condemning authority in the event of an Eminent Domain
proceeding or condemnation which affects the Space.
12. DAMAGE TO PREMISES: If the building in which the Premises
are located is damaged by fire or other casualty, Seller shall
give notice to Customer of such damage as quickly as
practicable under the circumstances. If a Landlord or Seller
exercises an option to terminate a particular Lease due to
damage or destruction of the Premises subject to such Lease, or
if Seller decides not to rebuild such building or portion
thereof in which the Space is located, relevant Collocation
Service Order(s) shall terminate as of the date of such
exercise or decision as to the affected Space and the Service
Fee paid by Customer shall be modified accordingly. If
neither the Landlord of the affected Premises nor Seller
exercises the right to terminate, Seller shall repair the
particular Space to substantially the same condition it was in
prior to the damage, completing the same with reasonable speed.
In the event that Seller shall fail to complete the repair
within a reasonable time period, Customer shall thereupon have
the option to terminate relevant Collocation Service Order(s)
with respect to the affected Space, which option shall be the
sole remedy available to Customer against Seller under this
Schedule relating to such failure. If the Space or any
portion thereof shall be rendered unusable by reason of such
damage, the Service Fee for such Space shall proportionately
xxxxx, based on the amount of square footage which is rendered
unusable, for the period from the date of such damage to the
date when such damage shall have been repaired for the portion
of the Space rendered unusable.
13. CONDUCT IN SPACE & PREMISES: Customer shall abide by
Seller's and applicable Landlord's rules with regard to conduct
in the Premises. Such rules include, but are not limited to,
a prohibition against smoking in the Space or the Premises by
Customer's employees, agents, representatives,
contractors, subcontractors, invitees or licensees. Further,
Customer shall maintain the Space in a safe condition,
including but not limited to the preclusion of storing
combustible materials in the Space.
IN WITNESS WHEREOF, the parties hereto have executed this
Collocation Service Schedule as of the day and year first above
written.
CUSTOMER: XXXXXXXX COMMUNICATIONS, INC:
Signature of Authorized Signature of Authorized
Representative Representative
Printed Name Printed Name
Title Title
TECHNICAL SPECIFICATION FOR COLLOCATION SERVICE
XXXXXXXX NETWORK STANDARDS, DESCRIPTIONS & TASKS
1.0 DC POWER
1.1 Backup electrical power, including batteries and
shared use of an emergency generator to the extent such
generator exists and is maintained to support the Premises.
1.2 DC power adequate for Customer's consumption equated
to power specified in applicable Collocation Service
Order. A low-voltage and high-voltage battery alarm will
be monitored by Seller.
1.3 Nominal 50 +/- 6V DC battery and charger supply with
a minimum four (4) hour reserve will be provided by Seller.
1.4 Redundant chargers of adequate size will be provided
by Seller, so that in the event of a charger failure the
full load will be supplied to Customer's equipment. A
charger failure alarm will be monitored by Seller.
2.0 AC POWER
2.1 A 20-amp four-plex AC receptacle will be available
within reach of the Customer's Equipment. AC power and
outlets for use with test equipment only and is not
provided to operate the Equipment. This AC power is not
provided over an Uninterruptable Power Source (UPS).
2.2 AC power supply to Customer equipment is backed by
generator where available, but is not UPS. This excludes
utility outlets described in the immediately preceding
subsection 2.1.
3.0 ENVIRONMENTALS
3.1 Pre-reaction sprinkler protection, where available.
Smoke and fire alarms monitored by Seller.
3.2 Lighting.
3.3 Ground Bus and cable interconnect.
3.4 Grounding conductor will be supplied by Seller
between the bus bar and the Customer's Equipment.
3.5 Overhead cable ladder
3.6 Interconnect signal and power cabling between Seller
and Customer.
3.7 Concrete floors will be covered with vinyl tile.
3.8 Ambient temperature will be maintained by Seller
between 60-90 F with an objective of 20-65% humidity.
3.9 General and administrative services directly relating
to the provision of the above listed Collocation Services.
CUSTOMER STANDARDS, DESCRIPTIONS & TASKS
1.0 EQUIPMENT SPECIFICATIONS
1.1 The Equipment should be designed to operate
satisfactorily between 60-90 F with 20-65%
(non-condensing) humidity. Low 60 and high 90
temperature alarms will be monitored by Seller.
1.2 Customer will ensure that the Equipment and
surrounding area do not pose safety hazards to personnel.
This includes exposed AC electrical hazards, trip and slip
hazards, hazardous material storage deficiencies,
improperly secured or overloaded equipment racks or
ladders, inadequate ingress and egress space. OSHA and
local codes will apply.
1.3 Customer will notify Seller of any significant
Equipment additions or deletions (i.e. shelf or rack).
Installation and removals will be coordinated with local
Seller management.
2.0 SPACE SPECIFICATIONS
2.1 Customer will not jeopardize Collocation Service or
damage property of other collocated customers, Seller, or
Landlord in any manner.
2.2 Customer will take precautions to protect Seller's
and Landlord's common facility and nearby equipment
belonging to other customers. This includes floor, wall,
and telecommunication equipment protection while moving
Equipment and notifying Seller of any major rearrangements
of Equipment, drilling, power work, and similar
potentially disruptive work.
2.3 Customer will follow good cleanliness practices. All
trash must be disposed of daily at Customer's expense.
Any trash or empty boxes not disposed of by Customer is
subject to removal by Seller with any associated charges
borne by Customer.
2.4 Nothing may be stored outside of the assigned rack
space. A minimum of 2.5' of aisle space must be
maintained at front and rear of Equipment.
2.5 No metal ladders, stools, or chairs may be used.
2.6 Combustible or hazardous material may not be stored
in the area.
2.7 All Equipment must be installed within the assigned
rack footprint (i.e. UPS units, spare equipment).
2.8 All cabling will be terminated on DSX panels in the
Seller common area. Fiber will be terminated on an
appropriate Fiber Distribution Panel ("FDP"). Any panels
for Customer end will be supplied at Customer's expense.
2.9 Customer is responsible for the termination of the A
& B DC power and signal cabling in its Equipment.
2.10 Maximum DC power provided to Customer as A & B power
shall be rated for the rating of a single feed. Customer
is liable for an outage caused by the DC power exceeding
the single feed rating. Customer will be responsible for
payment of consumed power exceeding the single feed rating
specified in the Collocation Service Order.
2.11 Customer will follow normal telecommunications
industry standards with regards to equipment installation
and removal in a central office environment. Seller
standards are to be followed for connection of cables that
interface with Seller. All installations are subject to
approval by Seller.
2.12 Permanent use of extension cords is not allowed.
2.13 Customer will not jeopardize Seller's ability to
conduct business in any manner.
2.14 All local, state, and federal laws will be obeyed.
Local requirements for union labor, especially for AC
electrical work, will be observed. Building management
guidelines will be followed.
2.15 Customer will follow Seller sign-in procedures at all
times. Subject to the requirements of this Schedule,
Customer shall have access to its Equipment 24 hours a
day, 265 days a year. Customer must coordinate its first
visit to a particular Xxxxxxxx' site with Xxxxxxxx'
operations department, giving at least five (5) days
notice of such visit. For all subsequent entries,
Customer will follow the procedure outlined below:
(a) At locations where Customer's Equipment is located in
caged space which is separate from Seller's equipment,
before entry Customer will notify Seller's Network Control
Center at (000) 000-0000 and follow Seller's sign-in
procedures.
(b) At locations where Customer's Equipment is not
located in caged space which is separate from Seller's
equipment, Customer must be escorted by a Xxxxxxxx
technician. Customer may gain such escort by notifying
Seller's Network Control Center at (000) 000-0000 at least
forty-eight hours prior to Customer's desired entry. In
the case of an emergency, Customer shall give as much
notice as is reasonably possible by contacting Seller's
Network Control Center at the number listed above.
Seller's Network Control Center shall work with Customer
to allow Customer to gain access as soon as reasonably
possible.
2.16 If Seller notifies Customer in writing of a violation
of the above rules, or any other unsafe or unacceptable
situation or practice, the Customer must correct the
problem within seven days or provide a written plan for
correction to Seller's satisfaction and proposed
completion date. If the problem is not resolved in seven
days or within a longer time frame agreed upon by Seller,
Seller will have the option of either (i) correcting the
problem at Customer's expense, or (ii) terminating the
Collocation Service Order and disconnecting power and
signal connections from Customer's Equipment.
Extreme safety violations are subject to immediate
correction by Seller without prior notice to Customer.
Corrections made by Seller are at the Customer's expense
and will be billed to the Customer on a time and material
basis.
Exhibit III Attachment I
Reference Number _____________________________________
new disc
sup cancel
change
XXXXXXXX COLLOCATION SERVICE REQUEST
Customer Information
Customer Name
Customer Address street
city state zip
Customer Technical Contact
Phone:
Premises Information
Premises requested
Requested Effective Date
Term 1 Yr 3 Yr 5 Yr
Floor Space Requirements
Cabinets or Racks Quantity Rack Size Wx Dx H
Xxxxxxxx provided Racks Y N
Special Rack Spacing (std @ 5")
Caged Space Y N
Power Requirements
DC Amp Total (per Rack Y N) AC Amp Total (per Rack Y
N)
# feeds (A&B=1)
Equipment Listing
Circuit Requirements
Type of Connection: ABAM/ Coax/ Fiber Quantity
Future Quantity
Coax qty pr. (# DS3 connects from collocate into network)
ABAM/Coax/Fiber Termination Location(s) (DSX or similar port
assignments)
Xxxxxxxx Network Revenue $ Term
(Commitment per Month)
Preferred Local Access Vendor Bandwidth
Comments
Sales Authorizing Signature Customer Authorizing
Signature
Print Name Print Name
Title Title
Company Company
Date Date
Network Services comments
Exhibit III Attachment II
XXXXXXXX COLLOCATION SERVICE ORDER
order number
new add
change cancel
Customer
Collocation
Premises
Effective Date
Term 1Yr 3Yr 5 Yr
# Racks Rack Size W x D x X
Xxxxxxxx provided Racks Y N
DC Amp Total (per Rack Y__ N__) AC Amp Total (per Rack
Y__ N__)
# feeds (A&B=1)
Coax qty pr. (# DS3 connects from collocate into network)
Coax/Fiber Termination Location(s) (DSX or similar port assignments)
Preferred Local Access Vendor Bandwidth
Comments
Sales Representative
24 Hour Technical Assistance 0-000-000-0000
POP Technician (name)
POP Technician (phone)
Customer Contact (name)
Customer Contact (phone)
PRICING
Service Fee (MRC) $
Installation (NRC) $
Build Out (NRC) $
Ancillary $
TERMS AND CONDITIONS OF THIS ORDER
PRICING IS VALID FOR 30 DAYS FROM ISSUE DATE.
THIS ORDER WILL NOT BE FULLY EXECUTED UNTIL THE CUSTOMER'S CREDIT
HAS BEEN APPROVED.
ALL SERVICE IS PROVIDED IN ACCORDANCE WITH CUSTOMER'S CARRIER
SERVICES AGREEMENT, OR IF NO AGREEMENT EXISTS
BETWEEN XXXXXXXX AND CUSTOMER, THEN XXXXXXXX' STANDARD TERMS AND
CONDITIONS, AND ANY APPLICABLE XXXXXXXX TARIFF.
SERVICES PROVIDED CONTINGENT UPON NETWORK MINIMUMS STATED IN
CUSTOMER'S CARRIER SERVICES AGREEMENT.
Engineering Authorizing Signature Marketing Authorizing
Signature Customer Authorizing Signature
Print Name Print Name Print Name
Title Title Title
Date Date Date
ATTACHMENT B
MASTER AGREEMENT FOR CONSULTANT SERVICES
No. _____
This Attachment shall amend and shall constitute a part, together with any
quotations, schedules, exhibits or annexes attached hereto, of that
Agreement for Purchase and Sale of Services and Equipment made as of
April 28, 1999, between GTC Telecom and Xxxxxxxx Communications, Inc.
Except for provisions pertaining to exchange of confidential or proprietary
information between the parties, in the event of any conflict between the
terms of this Attachment and the terms of the Agreement for Purchase and
Sale of Services and Equipment, the terms of this Attachment shall govern.
This Consulting Agreement is entered into this ___28th__ day of __April,
1999 (the "Effective Date"), by and between GTC Telecom, a Nevada
corporation, (hereinafter referred to as "Company") and Xxxxxxxx Technology
Solutions, a Division of Xxxxxxxx Communications, Inc., a Delaware
corporation (hereinafter referred to as "Consultant").
WHEREAS, Consultant is especially skilled in providing the type of support
that Company desires:
WHEREAS, Company desires to engage the professional services (the
"Consulting Services" as hereinafter defined) of Consultant in certain matters.
NOW, THEREFORE, Company and Consultant agree as follows:
1. TERM OF CONSULTING AGREEMENT.
The term of this Master Agreement for Consultant Services shall commence on
the date set forth above and shall continue in effect for a period of five
(5) years unless earlier terminated by either party upon six (6) months
prior written notice.
2. CONSULTANT SERVICES. Consultant will prepare a separate summary
of Services To Be Performed ("Exhibit "A") for each Customer order for
Consulting Services. Each Exhibit A shall be signed by both parties
and a part of this Consulting Agreement and incorporated herein. All
Exhibit A's shall be sequentially numbered for ease of identification,
e.g., Exhibit A.1, A.2, A.3 and so forth and shall be executed by
authorized individuals of both parties.
Consultant shall provide consulting services (the "Consulting Services")
as described in Exhibit "A" attached hereto. Each Exhibit "A" shall have a
term associated with a start and end date for the Consulting Services
described. From time to time, changes may be made in the Consulting
Services in the nature of additions, deletions or modifications, which
changes will be reflected in an Amendment to Exhibit "A." Consultant shall
provide Consulting Services as stated in Exhibit A.
3. COMPENSATION AND EXPENSES.
a. For the Term of this Consulting Agreement, Consultant shall receive
from Company a sum for the performance of the Consulting Services to be
rendered to Company pursuant to the terms of
this Consulting Agreement at
the rate(s) specified in Exhibit "A," plus actual and reasonable expenses
including, but not limited to, travel time, travel expenses, office
supplies, postage, telephone, and expenses directly related to Consulting
Services requested by Company and performed by Consultant.
b. Any reimbursable expenses not specifically allowed in subparagraph a
above shall be limited to those expenses which are approved by an authorized
representative of Company.
c. Payment for Consulting Services shall be made within thirty (30) days
of Company's receipt of Consultant's invoice. Consultant shall invoice
Company on a monthly basis in arrears. Each invoice will reflect the rates
agreed upon in each Schedule. Late payment of any amounts still owing shall
result in the assessment of one and a half ( 1.5%) percent charge , 18%
annually, or such percentage allowable by law, if the percentage allowed by
law is lower.
4. WORK PRODUCT. Any invention, work of authorship, trade secret,
processes, know-how, technologies or ideas, including patents, copyrights
and other intellectual property (collectively, Property), shall remain the
property of the originating Party. In the event that Consultant or any
employee, agent, or subcontractor of Consultant develops or creates any
Property, that Property shall be and remain the exclusive property of
Consultant and shall not be considered a work for hire and Consultant shall
grant Company a non-exclusive license to the Property at no charge for
Company's internal use. Company shall have
no right to sell, lease, license or otherwise transfer, with or without
consideration, any Property to any third party or permit any third party to
reproduce or copy or otherwise use or see the Property
in any form and shall use all reasonable efforts to ensure that no improper
or unauthorized use of the Property is made. In addition, Company agrees
that it will not reverse engineer or de-compile any Property. Company will
promptly, upon termination of this Consulting Agreement or upon the request
of Consultant, deliver to Consultant all such Property without retaining any
copy or duplicate thereof unless Company has requested a license.
5. INDEPENDENT CONTRACTOR. The relationship between Company and
Consultant shall be only that of an "Independent Contractor." The detailed
manner and method of performing the work are under the sole control of
Consultant. Nothing in this Consulting Agreement shall constitute
Consultant as an employee, licensee, partner or agent of Company, and
Consultant shall not hold himself/herself out as such. Consultant
specifically agrees and understands that Consultant shall not be entitled to
any of the benefits which are available to Company employees.
6. COMPLIANCE WITH EMPLOYMENT LAWS. Consultant shall comply, at its
expense, with all applicable statutes with respect to Worker's Compensation,
Employer's Liability, Social Security, Unemployment Compensation and/or
Retirement Benefits and other applicable laws relating to or affecting the
employment of labor.
7. INDEMNIFICATION. Each party ("Indemnitor") shall protect, defend,
indemnify, and hold the other party ("Indemnitee") harmless from and against
any and all suits, actions, legal or administrative proceedings, claims
demands, damages, punitive damages, liabilities, fines, penalties, losses,
costs, and expenses, including without limitation, costs of a reasonable
defense and reasonable attorneys' fees (each, a "Claim" and, collectively,
the "Claims") arising out of or resulting from the negligence or willful
misconduct of the Indemnitor in any way related to its performance under
this Consulting Agreement, including without limitation acts or omissions
resulting in personal injury, death,
or damage or loss to tangible property.
8. TAXES. The Consultant shall pay or otherwise discharge all Federal,
State and local taxes assessed against Consultant arising out of, occurring
in, or in connection with, Consulting Services performed or things furnished
by Consultant. All amounts paid by Company to Consultant pursuant to
Section 3 of this Consulting Agreement will be reported as non-employee
compensation by Company to the I.R.S. at the end of each calendar year.
Consultant agrees to complete and execute any and all I.R.S. documentation
necessary upon the execution of this Consulting Agreement.
9. COMPANY POLICY. In the event services are to be performed on Company's
premises, Consultant agrees to comply with all Company policies, including
but not limited to the alcohol and drug abuse policy, the no-smoking policy,
and the workplace violence risk reduction and response policy which written
policies shall be provided to Consultant prior to Consultant's entry upon
the premises.
10. DELIVERY AND INSTALLATION. For non-Xxxxxxxx Communications,
Inc. sites, Customer agrees to permit and arrange full access to the sites
necessary for the delivery and installation of equipment during the normal
working hours of 8:00 a.m.-5:00 p.m., Monday through Friday, excluding
Consultant holidays. Any delay or downtime resulting from Customer act or
omission shall be the responsibility of Customer and technician time shall
be billed at Consultant's prevailing rate. Customer represents and warrants
that conditions to be encountered by Consultant at non-Xxxxxxxx
Communications, Inc. sites in areas where work is to be performed shall:
(i) be in compliance with all applicable federal, state and local laws,
rules and regulations: (ii) be safe and non-hazardous: and (iii) not
contain, present, or expose Consultant representatives to hazardous
materials or hazardous substances. In the event of breach of the foregoing,
in addition to all other remedies, Consultant may immediately suspend work
until Customer has promptly corrected such condition(s) at Customer's
expense. In the event Customer cannot or does not correct such condition,
it will be at Consultant's option as to whether to recommence performance or
terminate this Consulting Agreement or the applicable Service to be
Performed. Any termination by Consultant because of its opinion that an
unsafe environmental condition exists will not be deemed a breach of this
Consulting Agreement or a default under it and no liability for such
decision will attach.
11. LETTER OF AGENCY. If required, upon the execution of this
Consulting Agreement, Company shall give Consultant the limited authority to
directly notify the appropriate vendor for the purpose as specifically
identified in a letter substantially in the form of Exhibit B hereto.
Company may terminate this authorization at any time upon notice to
Consultant. As soon as commercially practicable, Company shall also provide
its vendors with a letter (with a copy to Consultant) acknowledging
Consultant's role as Company's agent solely as it relates to the purpose as
specifically identified in a letter substantially in the form of Exhibit B
hereto. As soon as commercially practicable, Company agrees to provide
Consultant with a copy of any contractual commitments which Consultant must
know or comply with in order to dispatch such vendor accordingly.
12. SURVIVAL OF PROVISIONS. The terms and conditions contained in sections
7, 14, 15, 18 and 23 of this Consulting Agreement, respectively,
Confidentiality, Indemnification, Warranty, Limitation of Liability, and
Copyright Warranty, are intended to survive the completion of performance,
cancellation or termination of this Consulting Agreement.
13. WARRANTY. Consultant represents and warrants that all goods,
services and products
provided pursuant to this Consulting Agreement shall
be of professional quality, conform to industry standards and practices, and
fulfill all of Consultant's obligations under each Exhibit A and the Scope
of Work attached hereto. Customer understands that Consultant will perform
best efforts in meeting mutually agreeable timeframes but many factors
outside of the control of Consultant exist. These factors are the
availability of Local Access Facilities, Collocation facilities completions
as planned, equipment delivery issues and other unforeseen obstacles unknown
to Consultant. These timeframes will be established and updated as the
project unfolds. Timeframes provided in Schedule 2 to Exhibit A.1 are
estimates only.
CONSULTANT MAKES NO OTHER WARRANTIES ABOUT THE SERVICES PROVIDED
HEREUNDER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. CONSULTANT
DISCLAIMS ANY WARRANTY TO PREVENT UNAUTHORIZED USE OF THE SYSTEM.
14. LIMITATION OF LIABILITY. Consultant shall indemnify and
defend Customer from and against any loss incurred by Customer with respect
to any deficiency in any of the services, including assembling, testing and
implementation of Ascend equipment, goods or products provided by Consultant
hereunder and any breach by Consultant of its obligations under this
Consulting Agreement; provided, that Consultant's liability for any defect
or deficiency in any services, goods or products provided hereunder shall
not exceed the sum of all amounts paid to Consultant or any of its
affiliates by Customer pursuant to this Consulting Agreement during the
preceding three (3) months. IN NO EVENT SHALL WCI, WCS, OR THEIR SUPPLIERS
OR SUBCONTRACTORS, BE LIABLE FOR (I) ANY SPECIAL, INCIDENTAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF BUSINESS OR PROFITS), OR (II) ANY
DAMAGES OF ANY KIND RESULTING FROM UNAUTHORIZED USE OF THE SYSTEM, OR LOSS
OF DATA. THIS PROVISION APPLIES TO ALL CLAIMS WHETHER BASED UPON BREACH OF
WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY
OTHER LEGAL THEORY, EVEN IF WCI,WCS OR THEIR SUPPLIERS HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
15. FORCE MAJEURE. If Consultant's performance of this Consulting
Agreement or any obligation hereunder is prevented, restricted or interfered
with by causes beyond its reasonable control including, but not limited to,
acts of God, fire, explosion, vandalism, storm or other similar occurrence,
any law, order, regulation, direction, action or request of the United
States Government or state or local governments, or of any department,
agency, commission, court, bureau, corporation or other instrumentality of
any one or more said governments, or of any civil or military authority, or
by national emergencies, insurrections, riots, wars, strikes, lock-outs or
work stoppages, or other labor difficulties, supplier failures, shortages,
breaches or delays, then Consultant shall be excused from such performance
on a day to day basis to the extent of such prevention, restriction or
interference. Consultant shall use reasonable efforts under the
circumstances to avoid and remove such causes of non-performance and shall
proceed to perform with reasonable dispatch whenever such causes cease.
Company's obligations to pay for Consulting Services already provided
hereunder shall not be subject to Force Majeure.
16. PUBLICITY. Both parties agree to cooperate in joint publicity efforts.
Neither party will use in any advertising or sales promotion, press release
or other publicity matters any endorsements, direct or indirect quotes,
pictures, name and/or marks of the other party without prior written
consent, which consent shall not be unreasonably withheld.
17. IMPROPER PAYMENTS. Consultant will not use any funds received under
this Consulting Agreement for illegal or otherwise improper purposes related
to the Agreement. Consultant will not pay any commissions, fees, or rebates
to any employee of Company nor favor any employee of Company with gifts or
entertainment of significant cost or value.
18. COPYRIGHT WARRANTY. Company hereby warrants that any products,
Information or services provided to Consultant for use under this Consulting
Agreement shall not violate any applicable copyrights, patents, trademarks,
trade secrets, software licenses, or federal or state laws. Company hereby
agrees to defend, indemnify and hold harmless Consultant and pay all
damages, expenses, and fees (including reasonable attorney's fees) should
such claims arise.
19. DEFAULT. If Company (i) fails to pay the amounts due under the
Consulting Agreement or any other agreement with Consultant, or (ii)
breaches this Consulting Agreement, Consultant may, in addition to all other
remedies available to it at law or in equity, suspend its Consulting
Services obligations, terminate this Consulting Agreement, and/or furnish
service on a time and materials basis, C.O.D. In the event of Consultant's
material non-performance of this Consulting Agreement, Company may cancel
this Consulting Agreement and receive a refund for the unused portion of the
Service Fee, which shall be Company's exclusive remedy for Consultant's
non-performance.
20. RECORDS AND AUDITS. Both parties shall maintain detailed,
complete and accurate records of all expenses related to the Consulting
Services performed hereunder for a period of at least two (2) years
following the completion of the relevant Consulting Services.
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement as
of the date first above written:
GTC TELECOM XXXXXXXX TECHNOLOGY SOLUTIONS,
A DIVISION OF XXXXXXXX
COMMUNICATIONS, INC.
By: /s/Xxxx Xxxxxx By: /s/Xxxxx Xxxxxx
Title:________________________ Title: _____________________
EXHIBIT A.
SERVICES TO BE PERFORMED
BY
CONSULTANT
(Sample format)
I. INTRODUCTION
II. SCOPE OF WORK
III. TRAINING
IV. WORK HOURS
V. TERM OF CONSULTING SERVICES (COMMENCEMENT DATE AND
COMPLETION DATE)
VI. PRICING
(COMPANY) XXXXXXXX TECHNOLOGY
SOLUTIONS,A DIVISION OF
XXXXXXXX COMMUNICATIONS, INC.
BY: SAMPLE BY: SAMPLE
TITLE: ____________ TITLE:
DATE: ______________ DATE: ___________________
EXHIBIT B.
SAMPLE LETTERS OF AGENCY
(Consultant (Xxxxxxxx Technology Solutions)is granted Company's
permission to act as Company's agent for certain purposes)
Date__________
Xxxxxxxx Technology Solutions a Division of
Xxxxxxxx Communications, Inc.
000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
RE: Agency appointment
Gentlemen:
By this letter, _________ authorizes you to act as its agent for the purpose(s)
of _____________ as required by the __________ Agreement dated ___________.
The attached letter addressed to the [vendor/lec] expressly sets forth our
appointment of you as an agent and should be delivered by you to the
appropriate [vendor/lec].
The billing for the ___________ services should be directed to:
_______________________
_______________________
_______________________
If you have any questions or comments with respect to this authorization, please
do not hesitate to call.
Sincerely,
(Company to complete for Consultant to send/give to Company's
vendors/LEC's)
Date: _______________
Attention: _______________
We have on this date entered into a contractual agreement with Xxxxxxxx
Technology Solutions a Division of Xxxxxxxx Communications, Inc.
(Xxxxxxxx Technology Solutions) to act as our agent and
representative through April 28th, 2004.
Under the terms of this letter, we do hereby authorize
Xxxxxxxx Technology Solutions to act as our agent for the
purpose of handling all negotiations and executing any
resulting agreement(s) for service thereby binding us to
any such agreement(s). This includes the issuance of orders
for data services at:
Customer Name:
Street and No.:
City and State:
Telephone Number:
By exercising its authority, Xxxxxxxx Technology Solutions is creating a
contractual obligation between our company and you, the service
provider, only. Xxxxxxxx Technology Solutions is not responsible for the
obligations of our company to you. Your company shall xxxx us
for the services at the address listed above.
The authorization granted by this letter does not, however
prevent our company from acting on its own behalf when it is
necessary.
Your contact at Xxxxxxxx Technology Solutions will be: Xxxxxxx Xxxxxx
(000) 000-0000
Customer Signature:
Title:
Date:
__________________ acknowledges on this ___ day of _______ 199__, the
appointment of Xxxxxxxx Technology Solutions as ___________'s agent for the
purpose stated above and agrees not to hold Xxxxxxxx Technology Solutions liable
or responsible for any breach by _________ of its contractual obligations.
Xxxxxxxx Technology Solutions's point of contact shall be: _______________.
EXHIBIT A.1
SERVICES TO BE PERFORMED
BY
CONSULTANT
I. INTRODUCTION
See "Overview" section in Scope of Work document which is
attached hereto as Schedule 1 and incorporated herein by
reference.
II. SCOPE OF WORK
See "Scope of Work, Project Management, Network Design and
Analysis, Implementation Services, Staging, Installation
Documentation, Continuing Engineering Services, Network
Administration, Network Operations and Network Reporting"
sections in Scope of Work document which is attached hereto
as Schedule 1 and incorporated herein by reference.
III. TRAINING
Any training necessary is set forth in the Scope of Work
document which is attached hereto as Schedule 1 and
incorporated herein by reference.
IV. WORK HOURS
Work hours are set forth in the Scope of Work document
which is attached hereto as Schedule 1 and incorporated
herein by reference.
V. TERM OF CONSULTING SERVICES (COMMENCEMENT DATE AND
COMPLETION DATE)
The Term of the Consulting Services covered by the Scope of
Work attached hereto shall commence upon the signature of
this document by both parties and shall be completed five
(5) years thereafter, with the exception of the POP
installation/implementation which is expected to be
completed within twelve (12) months from the date of
signature by both parties. Termination by either party
will require six (6) months written notice.
VI. PRICING
Pricing for the Consulting Services is set forth in the
"Pricing and Assumptions, Network Engineering Installation
Team Pricing, Network Engineering Team, Network Operations
Pricing, Network Operations Personnel (Systems), and
Engineering Budget" sections of the Scope of Work document
which is attached hereto and incorporated herein by reference.
SIGNATURE PAGE TO FOLLOW
GTC TELECOM XXXXXXXX TECHNOLOGY SOLUTIONS A
DIVISION OF XXXXXXXX
COMMUNICATIONS, INC.
BY:/s/Xxxx Xxxxxx BY: /s/Xxxxx Xxxxxx
TITLE:_________________ TITLE:_________________
Date: ____________________ Date: _________________
EXHIBIT A.1 - SCHEDULE 1
SCOPE OF WORK
Overview
Xxxxxxxx Technology Solutions (Xxxxxxxx) is providing this scope
of work to assist in identifying our abilities to provide GTC
Telecom a fully managed network including network
administration, network operations, installation services,
staging services, and circuit provisioning. Xxxxxxxx will
assist GTC in installing and implementing ninety (90) POP sites.
Once such POP sites are installed, Xxxxxxxx will provide staff
to GTC in order to perform engineering services, network control
center services and software support services which are detailed
herein. Xxxxxxxx will subcontract portions of the managed
network services to third parties and other Xxxxxxxx
subsidiaries in order to provide a single point of service to
its customer. In support of this strategy, Xxxxxxxx will
provide GTC TELECOM with the following services:
O PROJECT MANAGEMENT
O IMPLEMENTATION SERVICES
O SUSTAINED ENGINEERING SERVICES
O NETWORK ADMINISTRATION
O NETWORK OPERATIONS
This scope of work provides an overview of those services and
related pricing.
Scope of Work
Xxxxxxxx Technology Solutions will provide GTC Telecom Managed
Network Services consisting of Project Management,
Implementation Services, Sustained Engineering Services, Network
Administration and Network Operations. This scope provides the
detailed Xxxxxxxx Technology Solutions approach to this project,
discussion of the responsibilities to be taken on by Xxxxxxxx,
and pricing. Xxxxxxxx offers GTC Telecom the knowledge and
experience of the entire Xxxxxxxx Communications Group, as we
will use other organizations in the Xxxxxxxx suite of service
providers in the execution of our duties. GTC TELECOM should
view its interface with Xxxxxxxx Technology Solutions as its
Single Point of Contact (SPOC) for all services contracted from
Xxxxxxxx within this Scope of Work.
The Consulting Services to be provided by Xxxxxxxx are detailed
separately within this Scope of Work but are generally as follows:
O PROJECT MANAGEMENT
- Installation coordination
- Circuit Provisioning
- Certification coordination
- Post project review
O IMPLEMENTATION SERVICES
- Staging and configuration
- Installation
O SUSTAINED ENGINEERING SERVICES
O NETWORK ADMINISTRATION
- Configuration management
- Process administration
O NETWORK OPERATIONS
- 24x7x365 network monitoring
- Problem resolution
- Dispatch
- Escalation
- Reporting
Project Management
The Network Project Manager will serve to bring all
components of the project together, starting with a
proper, forward-thinking network design. The Network
Project Manager will procure the network hardware and
software, ensure timely delivery, develop an
implementation plan, coordinate installations in a
timely and efficient manner, and develop and execute a
test plan. The key components of the project management
function are as follows:
O NETWORK DESIGN: The project manager will work with GTC
and Ascend Communications Engineer to ensure a functional
network design to support the proposed network.
O PROCUREMENT: The project manager will confirm timely
provisioning of the network equipment. This individual
will assure that the facilities have the physical capacity
( e.g., space, power, etc.), to handle the new equipment;
including site survey coordination, and verification of
equipment shipments and delivery.
O INSTALLATION COORDINATION: The installation process
will include the coordination of configuration and staging
of the network equipment, developing a plan for site
installations, resolving and escalating site installation
issues, and the actual coordination of the site installation.
O CERTIFICATION COORDINATION: This involves developing
a test plan and coordinating the execution of this plan to
validate each installation for functional correctness. The
general plan for the staging, certification and acceptance
of the equipment and the network is as follows: WTS will
accept the equipment when it arrives. WTS will uncrate the
equipment and inspect it for obvious damage. If the
equipment is damaged in shipping WTS will report this
occurrence back to Ascend for replacement.
After the uncrating and acceptance of the
equipment, WTS will the stage the equipment in St.
Louis Staging Site. WTS performs several tests to
ensure the equipment is working properly which will
include power up, installing of the
configuration
and adequate "burn-in" time for the equipment.
During this burn-in time WTS will place simulated
traffic on the equipment to test the configuration
and ensure that everything is working correctly
before actually installing the equipment in the POP's.
After the staging function is completed, WTS will
begin installing the equipment in the POP's. After
WTS installs the equipment, WTS will then issue a
letter of acceptance for the individual site for
GTC's approval. GTC will then inspect the
installation and accept the equipment as installed.
After approval, WTS will hand off the monitoring
and "care and feeding" of the equipment to the
Network Operations Center in St. Louis.
WTS plans to have the sites up and running by
December 15, 1999. After it has been determined
that the network is ready WTS will then burn in the
network and equipment for a couple of weeks. In
this timeframe WTS plans to actually place portions
of the network with "live" customer traffic to
ensure that the equipment and the network is ready
for live customers.
O POST PROJECT REVIEW: After a POP is completed, GTC
and the project team will review the work efforts,
scorecard the project and perform this Post Project Review
as the certification and acceptance step of a POP by GTC.
After GTC approves and accepts the POP site, the site will
be placed in service and managed by the Network Operations
Center.
Network Design and Analysis
The keys to a successful network deployment are a well
designed network, thorough implementation plan, and
consistent network operations. Xxxxxxxx is highly skilled
and well qualified to deliver on all of these services. It
is important that Xxxxxxxx technical personnel are
thoroughly versed on the network design and objectives in
order to best meet the needs of GTC TELECOM. Understanding
the hardware requirements, applications interfaces, and
transport protocols will improve Xxxxxxxx' ability to
deliver on Project Management, Provisioning and Network
Administration.
Implementation Services
Xxxxxxxx will provide GTC TELECOM with network engineering
services including the following:
o Documentation of site surveys
o Hardware staging
o Site documentation (creation, storage, and
maintenance), to include installation procedures
o Hardware installation
o Site test and certification coordination with the
Network Operations Center
o Hardware maintenance calls
STAGING
Xxxxxxxx will:
o Accept delivery of equipment.
o Track the incoming and outgoing status of equipment
shipped from Xxxxxxxx and delivered to the locations.
o Provide inventory information to GTC TELECOM as required.
o Provide the resources to install equipment in GTC
TELECOM regions as directed.
Installation Documentation
Installation documentation will consist of:
o Installation Tracking Sheet
o Site Installation Procedures
o Site Survey Form
o Site Floor Plan
o Site Design Diagram.
Continuing Engineering Services
The service-driven nature of Xxxxxxxx Technology Solutions
allows us to offer GTC TELECOM a wide range of
implementation services. Using our own in-house expertise
and appropriate skills from the Xxxxxxxx team, Xxxxxxxx
will provide the following services to GTC TELECOM:
o Circuit provisioning -- designing and ordering
circuits from inter-exchange and local exchange carriers.
o Hardware and software acquisition.
o Staging, configuring, and installation of network
hardware.
o Maintenance -- repair and replenishment; test and
certification of new software releases.
o Capacity planning -- determining and planning areas of
change on the network in terms of capacity, performance,
and utilization.
o Design engineering -- integrating new sites, circuits,
and technology onto the network.
Xxxxxxxx has considerable experience in managing the
implementation process. Xxxxxxxx will put that experience to
work for GTC TELECOM as it expands its customer base and
provides new customers with value-added service offerings.
Network Administration
Xxxxxxxx will provide a network engineer to perform the tasks of
network administration. This engineer will be responsible for:
o Security administration -- password change support;
monthly and quarterly changes; management security reports;
notification processes.
o Configuration management -- archival of change dates;
twelve month archival of router configurations;
configuration notification procedures.
o Report review -- reviewing trouble tickets, network
performance, and utilization reports for trends and problems.
o Management of service providers -- distributing
information to all necessary parties; monitoring activities
of service providers and taking corrective actions;
supporting GTC TELECOM for network additions/changes/deletes.
o Process management -- providing liaison support to the
customer and GTC TELECOM; ensuring escalation processes and
procedures are adhered to.
Network Operations
Xxxxxxxx will provide GTC TELECOM with Network
Operations solution from a dedicated network operations
center (NOC) in St. Louis. All sites will receive the
following basic services:
o Remote fault (alarm) SNMP monitoring of designated
routers and hubs. Monitoring covers the WAN as well as the
site LANs up to and including the SNMP-manageable hubs,
where present. Monitoring occurs on a 24x7x365 basis and
includes identification of fault domain.
o Trouble ticket initiation within the NOC trouble
ticket system.
o Customer notification (using GTC TELECOM escalation
list and procedures) of critical faults for monitored
equipment and circuits.
o Second-level problem resolution.
o Dispatch of on-site service technician.
o Archiving of equipment inventory information.
o Delivery of trouble ticket reports on a monthly basis.
Reports are available daily via Web-based access.
In summary, all customers will receive support services with
resolution procedures defined by GTC TELECOM. The NOC provides
activities such as soft router boots and interface manipulation,
but will follow whatever reasonable procedures GTC TELECOM
wishes to implement. This flexibility is the key to the group's
success.
Network Reporting
Reporting functionality is addressed in the chart below. The
customer has access to daily, monthly, and historical reports
via the web. Specific reports can be customized to meet the
customer's requirements
The key to successfully implementing and managing a network is
the non-interruption of the service. The following table
details services that Xxxxxxxx will provide.
SERVICE PROVIDED
Create customer profile in problem management system X
Monitor network for problems: 24 x7x365 basis X
Equipment management X
Isolate problems X
Create and manage trouble tickets for problems X
Notify client of problems and actions taken to resolve X
Dispatch Ascend's on site support resources X
Coordinate resources to resolve problems X
Capacity planning X
Second level help desk X
System downtime reports (incl. trouble ticket information) X
Creating and maintaining configuration database X
Physical and logical network maps X
Configuration change reports Quarterly
Meetings to discuss problems worked and trouble tickets X
Collection of network statistics X
Reporting of network statistics X
Network statistics trend analysis X
Technical, functional, financial analysis of the network
Quarterly
Performance statistics database X
Meetings to discuss performance statistics and findings
Quarterly
Password management X
Out-of-band equipment testing X
Web-based report access X
Circuit provisioning X
Work with Ascend on Testing and certifications of new software
releases X
Dedicated network administrator X
Pricing and Assumptions
Xxxxxxxx has based this Scope of Work and all pricing herein
upon a number of key assumptions about the project and the
relationship between Xxxxxxxx and GTC TELECOM that would result
from this Scope of Work. These assumptions are as follows:
q GTC TELECOM will provide all first level support to its
end-users for non-network problems.
q Monthly recurring and non-recurring circuit costs for
connecting Xxxxxxxx to the GTC TELECOM network will be borne
by GTC TELECOM.
q GTC TELECOM staff will be reasonably accessible to Xxxxxxxx
staff to answer questions and provide information. Xxxxxxxx
will make its best effort to avoid impacting operational
efficiency when gathering information.
q The network deployment for the POP sites will be
accomplished in twelve months from acceptance of agreement.
q Actual equipment configurations and costs may change based
on a final design review and analysis.
q Xxxxxxxx will provide an Installation Team, Sustained
Engineering Team, Network Systems, and Network Operations
Team in parallel to meet the established timeframe.
q GTC TELECOM and Xxxxxxxx Technology Solutions will mutually
agree to additional staff as the needs of the business
dictates throughout the five-year agreement.
q All direct travel and administrative expenses will be
billed to GTC TELECOM at cost plus 10%.
q GTC TELECOM will purchase a third-party billing package
requiring no development effort for the Network Systems and
Network Engineering Teams.
q Xxxxxxxx Technology Solutions personnel will support a
third party billing system selected by GTC Telecom by
initially providing three resources to maintain the billing
software. Xxxxxxxx Technology Solutions will receive factory
certification from the manufacturer of the billing system.
As GTC Telecom's business expands and a need arises for
additional resources for the maintenance of this billing
system additional resources will be provided to GTC Telecom
at the agreed upon billing rate for the additional resources.
q Xxxxxxxx will require a 45 60 days lead time to secure
the personnel required to implement and maintain the proposed
network.
q GTC TELECOM will pay for night differential of 10% for
second and third shift technicians in the NCC.
q GTC TELECOM will pay time and one half for any overtime
required. GTC TELECOM will pay an additional 5% increase
each year on engineering rates representing salary increases.
NETWORK ENGINEERING INSTALLATION TEAM PRICING:
This section describes a forecasted initial engineering team
to provide the contracted services required to install 90
POPs for GTC Telecom consisting of Ascend TNTs and CBX 500s.
The Network Engineers will act as Network Project Managers to
ensure the smooth implementation of the sites for GTC
Telecom. The estimated timeframe to install these POPs is
twelve months (12) months.
PER HOUR
PRICING
(1) Network Project Manager = $ 80
(1) Network Administration = $ 40
(2) Staging Engineers, each = $ 60
(2) Circuit Provisioners, each
= $ 50
(2) Installation Engineers, each = $ 60
(2) Contracted Ascend Engineer, six months
= $175
NETWORK ENGINEERING TEAM:
Xxxxxxxx will provide the personnel to sustain the network after
installation. The following engineering team will support GTC
TELECOM with customer installs, upgrades, and all the necessary
day-to-day activities required to sustain the network.
PER HOUR
PRICING
(2) Network Engineers, each = $ 80
(1) Network Administrator = $ 40
(1) Documentation Specialist = $ 45
(2) Circuit Provisioners, each
= $ 50
NETWORK OPERATIONS PRICING:
The following represents the forecasted initial project teams to
provide the contracted services defined in the agreement. It is
expected that the core team of 9 analysts will be expanded, as
the needs of the business require additional resources. The
following represents the initial resources required for the
Network Operations Center:
PER HOUR
PRICING
Network Operations - Personnel (Operations):
(1) Manager - Network Operations * = $ 80
(1) Supervisor, Network Operations = $ 65
(4) Network Analyst, (first shift, each)
= $ 50
(4) Network Analyst (second shift, each)
= $ 55
(4) Network Analyst (third shift, each)
= $ 55
(2) Network Engineers (third level, each) = $ 80
(2) Network Administrators = $ 40
(2) Documentation Specialist, each = $ 45
* Manager Operations is projected at 30% of yearly time will
be charged to GTC Telecom.
Network Operations - Personnel (Systems):
PER HOUR
PRICING
(1) Manager - Systems = $ 70
(2) System Administration Managers, each = $ 50
(1) Data Base Administrator = $ 65
GTC will pay to Xxxxxxxx, in addition to the hourly fees set
forth in above, a start up fees in the amount of $270,000 which
will include (1) Remedy Ticketing Software Package, Ascend NMS
NavisCore Software, and (2) Sunsparc 250s for both the main and
redundant Network Control Centers.
Engineering Budget
The following represents the costs GTC can expect to incur
during the first year of operations. Xxxxxxxx has prepared this
budget as a guideline and it is an estimate only.
Budget
Function (first year)
Network Engineering Installation $
1,597,533
Network Engineering (Sustaining) $ 477,133
Network Operations $ 2,178,360
Network Systems
$ 436,800
Total $ 4,689,827
(see attached spreadsheet for details)
EXHIBIT A.2
SERVICES TO BE PERFORMED
BY
CONSULTANT
I. INTRODUCTION
Xxxxxxxx Technology Solutions ("WTS") is providing to GTC
Telecom Project Management, Network Design and Analysis,
Implementation Services, Staging, Installation Documentation,
Continuing Engineering Services, Network Administration, Network
Operations and Network Reporting under the Scope of Work
identified in Exhibit A.1. In addition to the services
identified in such Exhibit A.1, GTC Telecom desires that WTS
provide maintenance services on specific equipment located at
the points of presence ("POP(s)") being installed and
implemented by Xxxxxxxx under Exhibit A.1.
II. SCOPE OF WORK
WTS will provide to GTC Telecom maintenance services which shall
include coordination of on-call trouble resolution, software
upgrades, spare parts and an assigned network services engineer
from Ascend for Ascend CBX500 & MAX TNT equipment in 90
locations. These locations will be the locations in the
domestic United States which are determined, installed and
implemented under Exhibit A.1 of this Consulting Agreement. WTS
is under contract with Ascend for Ascend to provide Advantage
Plus Services to WTS. WTS will use this contract to provide
maintenance services to GTC.
III. TRAINING
N/A
IV. WORK HOURS
Xxxxxxxx will provide maintenance services on a 7x24x365 basis
with a two hour response time on the 106 pieces of equipment (8
CBX 500's and 98 MAX TNT's) which are located in the 90
locations established under Exhibit A.1 to this Consulting
Agreement.
V. TERM OF CONSULTING SERVICES (COMMENCEMENT DATE AND
COMPLETION DATE)
The Term of the Consulting Services covered by this Exhibit
shall commence on December 15, 1999 and shall be completed five
(5) years thereafter. Termination by either party will require
six (6) months written notice.
VI. PRICING
GTC will make five annual payments to Xxxxxxxx in the amount
below. Payments will be made in advance each year beginning
December 15, 1999 and will be due every December 15 thereafter.
The pricing set forth in this section includes the 106 pieces of
equipment identified above for the 90 sites. In the event all
106 pieces of equipment at the 90 sites are not ready for
maintenance by December 15, 1999, WTS will work with GTC to
determine if the maintenance can be pro-rated. If additional
equipment or sites are added to the network, additional charges
may apply. In such event, this Exhibit will be modified in a
writing signed by both parties in order to cover such additional
charges. The annual maintenance pricing will be as follows:
ITEM
ORDERING MODEL
NUMBERS
PROPOSED HARDWARE SUPPORT OPTION
NETWORK NODES/UNITS COVERED
ANNUAL
CHARGE
1 CS-ADVP-GRD On Guard Annual Program 106 $1,039,450
2 CS-ADVP-OPT4 2 Hour On-site Option 106 $1,559,175
Annual Amount
$2,598,625
Total Maintenance
For 5 years
$13,008,105
GTC TELECOM XXXXXXXX TECHNOLOGY SOLUTIONS, A
DIVISION OF XXXXXXXX
COMMUNICATIONS, INC.
BY:/s/Xxxx Xxxxxx BY:/s/Xxxxx Xxxxxx
TITLE:___________________ TITLE: ________________
DATE: __________________ DATE:___________________
ATTACHMENT C
DATA - MASTER PURCHASE AGREEMENT
This Attachment shall amend and shall constitute a part, together
with any quotations, schedules, exhibits or annexes attached hereto,
of that Agreement for Purchase and Sale of Services and Equipment
made as of __April 28, 1999, between GTC Telecom and Xxxxxxxx
Communications, Inc. Except for provisions pertaining to exchange
of confidential or proprietary information between the parties, in
the event of any conflict between the terms of this Attachment and
the terms of the Agreement for Purchase and Sale of Services and
Equipment, the terms of this Attachment shall govern.
This Master Purchase Agreement ("Purchase Agreement") is made as of
_____April 28,__ 1999, between XXXXXXXX COMMUNICATIONS SOLUTIONS,
LLC, 0000 Xxxx Xxx Xxxxxxxxx, Xxxxxxx, Xxxxx 00000, a Delaware
limited liability company, ("WCS") and GTC Telcom, a corporation
formed in the State of Nevada ("Customer") as a master agreement
whereby Customer may place multiple orders for the purchase of data
communications and internetworking equipment manufactured by Ascend
Communications, Inc. and whereby WCS may accept such orders and
deliver the equipment:
1. AGREEMENT. As ordered by Customer, WCS will sell and
deliver the data communications and internetworking equipment
("Equipment") manufactured by Ascend Communications, Inc. and
sublicense the associated software (together, the "System") as
listed on individual quotations generated by WCS and executed
by Customer (the "Quotation"). Customer will purchase the
Equipment and pay the applicable software license fees. Each
properly executed Quotation and its attachment shall reference
this Purchase Agreement and become a part of this Purchase
Agreement and incorporated herein as if attached hereto.
2. AGREEMENT TERM. The term of this Purchase Agreement (the
"Purchase Agreement Term") shall be three (3) years from the
date first written above. With respect to the sale and
installation of any System described on a Quotation, for which
WCS' obligations will exceed the term of this Purchase
Agreement, both WCS' and Customer's obligations and rights
regarding such System shall continue and survive the expiration
of this Purchase Agreement, provided that the general terms and
conditions of this Purchase Agreement shall continue to define
the rights and obligations of the parties with respect to such
System.
3. PRICE AND PAYMENT TERMS. The price of the System
including price of Equipment, and software licensing fee but
excluding any applicable installation fees, maintenance or
taxes, (the "Cash Price") shall be set forth on the applicable
Quotation. Unless stated otherwise on the Quotation, Customer
will be invoiced and will pay the amount due in accordance with
the following schedule: 25% of the Cash Price upon execution
of the applicable Quotation, 75% of the Cash Price upon the
Delivery Date as those terms are defined in Section 8 of this
Purchase Agreement. All invoices shall be due upon receipt.
All payments will be subject to a late payment service charge
of one and one half percent (1 1/2 %) per month (or as limited
by applicable law) on payments in arrears for more than thirty
(30) days after invoice date. CUSTOMER WILL PROVIDE EVIDENCE OF
ITS TAX-EXEMPT STATUS IF IT CLAIMS SUCH STATUS.
4. ORDERING PROCEDURES. The parties acknowledge that this
Purchase Agreement is for the purchase of products manufactured
by Ascend Communications only. The purchase and sale of any
System shall be subject to the following ordering procedures:
(A) Whenever Customer desires to purchase a System from WCS,
Customer shall notify WCS specifying the following: (i) the
delivery sites; (ii) specific items of Equipment and quantity,
(iii) the software features and services, (iv) any ancillary
hardware and services; and (v) the desired date that the System
will be delivered. (B) Upon receipt of the information
described above, WCS shall submit to Customer the price and
completed Quotation for the desired System as confirmation of
the order placed. (C) Within thirty (30) days of Customer's
receipt of the Quotation, Customer shall notify WCS that
Customer accepts WCS' offer to sell Customer the applicable
System by signing the Quotation and returning it to WCS. If
not signed and returned within thirty (30) days of its receipt
by Customer, WCS' offer automatically expires. (D) If, for
reasons of convenience, Customer uses its own purchase order or
similar document to place an order under this Purchase
Agreement, WCS may, at its option, accept the order on the
nonconforming form provided the purchase order references this
Purchase Agreement and\or the applicable Quotation. IT IS
EXPRESSLY AGREED, HOWEVER, THAT ANY TERMS AND CONDITIONS ON
SUCH A FORM WHICH ARE CONTRARY TO THE TERMS OF THIS PURCHASE
AGREEMENT, OR WHICH ADD TERMS OR CONDITIONS BEYOND THOSE
CONTEMPLATED IN THIS PURCHASE AGREEMENT OR ITS ATTACHMENTS,
WILL BE NULL, VOID, AND OF NO EFFECT. THE RIGHTS AND
OBLIGATIONS OF THE PARTIES AS SET FORTH HEREIN MAY ONLY BE
ALTERED BY WRITTEN AMENDMENT OR MODIFICATION EXECUTED BY BOTH
PARTIES.
5. LIMITATION OF LIABILITY. Each party shall indemnify the
other only with respect to any third party claim alleging
bodily injury, including death, or damage to tangible property
to the extent such injury or damage is caused by the negligence
of the indemnifying party, provided that such claim is reported
promptly in writing to the indemnifying party. IN NO EVENT
SHALL WCS AND ITS SUPPLIERS OR SUBCONTRACTORS, BE LIABLE FOR
(I) ANY SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL
DAMAGES, (II) COMMERCIAL LOSS OF ANY KIND (INCLUDING LOSS OF
BUSINESS OR PROFITS), OR (III) ANY DAMAGES OF ANY KIND
RESULTING FROM UNAUTHORIZED USE OF THE SYSTEM, INTERRUPTION OF
SERVICE OR LOSS OF DATA. THIS PROVISION APPLIES TO ALL CLAIMS
WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT,
NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY,
AND WHETHER WCS OR ITS SUPPLIERS OR ITS SUBCONTRACTORS HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
6. SOFTWARE LICENSE. WCS shall cause all licenses, including
software licenses, necessary for the operation and use of the
Equipment as contemplated by this Purchase Agreement and the
agreements related hereto to be entered into directly between
the licensor or owner of such software or other rights and
Customer. In conjunction with the execution of this Purchase
Agreement, Customer agrees to execute the licensor's End User
License and to abide by the terms and conditions of said
license. WCS represents and warrants that the licenses being
granted to Customer are sufficient to operate and use the
Equipment as contemplated by Customer and shall use its best
efforts to maintain the functionality of the software in the
event of any failure of a licensor of the software to maintain
the software.
7. RISK OF LOSS, TITLE AND SECURITY INTEREST. Customer assumes
the risk of loss to the System from the date of its delivery to
Customer and Customer shall assume all risks of loss and
responsibility for obtaining and paying for insurance in the
event of loss or damage. Title in the System will pass on full
payment of the Cash Price plus all taxes. WCS reserves and
Customer grants WCS a security interest in the System in the
amount of the purchase price. At WCS' option, Customer will
execute appropriate financing statements to fully protect WCS'
interest hereunder in accordance with the Uniform Commercial Code.
8. DELIVERY AND ACCESS
(A) Delivery Date occurs when WCS delivers the networking
Equipment to the delivery site designated on the
Quotation. Customer shall, at its own expense, provide and
be responsible for installation of the System by
manufacturer certified technicians. Customer acknowledges
that failure to use manufacturer certified technicians
may, at the manufacturer's option, result in denial of
software and technical support services.
(B) For sites not owned by WCS or Xxxxxxxx
Communications, Inc. ("Non-Xxxxxxxx Premises"), Customer
agrees to permit and arrange full access to the Premises
necessary for the delivery of the System during the normal
working hours of 8:00 a.m.-5:00 p.m., Monday through
Friday, excluding WCS holidays. Any delay or downtime
resulting from Customer act or omission shall be the
responsibility of Customer and technician time shall be
billed at WCS' then prevailing rate. Customer represents
and warrants that conditions to be encountered by WCS at
Non-Xxxxxxxx Premises in areas where work is to be
performed shall: (i) be in compliance with all applicable
federal, state and local laws, rules and regulations: (ii)
be safe and non-hazardous: and (iii) not contain, present,
or expose WCS representatives to hazardous materials or
hazardous substances. In the event of breach of the
foregoing, in addition to all other remedies, WCS may
immediately suspend work until Customer has promptly
corrected such condition(s) at Customer's expense. In the
event Customer cannot or does not correct such condition,
it will be at WCS' option as to whether to recommence
performance or terminate due to Customer's breach this
Purchase Agreement or the applicable Quotation for
delivery at that site. Any termination by WCS because of
its opinion that an unsafe environmental condition exists
will not be deemed a breach of this Purchase Agreement by
WCS or a default under it and no liability to WCS for such
decision will attach.
(C) Any addition\deletion or change to the System shall
be made by mutual agreement through a written change order
or quotation which is executed by an authorized
representative of Customer and the terms of this Purchase
Agreement will apply to the Equipment purchased
thereunder. The Cash Price of the System, Delivery Date
and Installation Date shall be subject to adjustment for
any mutually agreeable change order.
(D) No claims with regard to shortages, discrepancies, or
damage to components of the System will be accepted by WCS
unless Customer notifies WCS in writing within ten (10)
working days of the Delivery Date. WCS shall have no
liability in respect of damage or shortages caused by the
acts or omissions of the Customer or of others. If a
claim is validly made under this Section which may entitle
the Customer to
return a System component, WCS shall not
be bound to accept such return or exchange component
unless the Customer complies strictly with the following
return procedures, which may be modified by WCS from time
to time on written notice: (i) a Return Merchandise
Authorization number must first be obtained from WCS and
must appear on all shipping labels of components to be
returned and (ii) components must be returned in the same
condition as originally delivered, ordinary wear and tear
excepted, and in original box/carton.
9. LIMITED WARRANTY.
(a) FOR THE PERIOD COMMENCING ON INSTALLATION DATE AND
EXPIRING ON DECEMBER 15, 1999 (THE "WARRANTY PERIOD"), WCS
WARRANTS THAT THE SYSTEM WILL BE FREE FROM DEFECTS IN
MATERIALS AND WORKMANSHIP AND WILL OPERATE IN ACCORDANCE
WITH MANUFACTURER'S SPECIFICATIONS AND CUSTOMER'S WRITTEN
SPECIFICATIONS WHICH HAVE BEEN PROVIDED TO WCS. During the
Warranty Period, if warranty work is necessary on the
System, WCS will, at its option: (i) repair the System in
place or (ii) accept return of components for repair or
replacement. Such repair or repair or replacement,
including both parts and labor, will be at WCS' expense.
Repair and replacement parts may be refurbished or contain
refurbished materials. Customer's SOLE AND EXCLUSIVE
REMEDY for breach of warranty is limited to WCS'
performance as set forth herein and performance of
warranty service during the Warranty Period will not
extend or restart the Warranty Period.
(b) In addition to the warranty set forth above, for the
period beginning on the Installation Date and ending on
March 31, 2000 (the "Year 2000 Warranty Period"), WCS will
provide the following warranty for CBX 500, MAXTNT ("TNT")
and NavisCore software (collectively, the "Product")
which the manufacturer has determined the Year 2000
Compliant status and has affirmatively designated that the
Product, as indicated on the manufacturer's Year 2000 web
site, is Year 2000 Compliant. Year 2000 Compliant shall
be defined pursuant to the manufacturer's criteria set
forth on the relevant web site. If, during the Year 2000
Warranty Period the Product fails to perform in the manner
set forth in the manufacturer's web site, CUSTOMER'S SOLE
REMEDY AND WCS' SOLE OBLIGATION under this warranty is for
WCS to correct such failure through, at WCS' expense and
in its sole discretion, repair, replacement or
modification of the Product using commercially reasonable
efforts.
(c) Warranty service provided herein excludes: (i) the
failure of the System due to the reliability of compliance
of other software interfaces residing in the computer
system or Customer's hardware and date interfaces; (ii)
repair of damage resulting from accident, transportation,
neglect or misuse, operation of the System outside the
manufacturer's environmental specifications, failure of
electrical power, air conditioning or humidity control;
(iii) service required because of system operation failure
due to other manufacturer's equipment not provided and
installed by WCS and/or other vendor malfunctions; (iv)
damage caused or required by or resulting from the fault,
misuse, or negligence of the Customer.
(D) THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER EXPRESS
WARRANTIES. THIS AGREEMENT EXCLUDES ALL IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
WCS DISCLAIMS ANY WARRANTY TO PREVENT UNAUTHORIZED USE OF
THE SYSTEM.
(e) The limitations on warranties provided in this
Section 9 do not limit warranties provided under the
Carrier Services Agreement or the Master Agreement for
Consultant Services.
10. DEFAULT. If, prior to Delivery, Customer cancels an
Equipment order placed pursuant to this Purchase Agreement or
rejects, without cause, Equipment already delivered, WCS, in
addition to the remedies set forth below, shall be entitled to
retain all monies paid by Customer and recover additional
monies, if necessary, to cover actual and verifiable costs
incurred by WCS in preparation for and any actual performance
under this Purchase Agreement; in the event the amount exceeds
WCS' actual costs, WCS shall promptly refund the difference to
Customer. If any material breach of this Purchase Agreement,
or any other agreement between the parties, continues
uncorrected for more than twenty (20) days after written notice
from the aggrieved party describing the breach, the aggrieved
party shall be entitled to declare a default under this
Purchase Agreement and pursue any and all remedies available at
law or equity except as specifically limited elsewhere in this
Purchase Agreement. In addition, if Customer is the aggrieved
party, Customer may suspend its payment obligation relating to
the breach until WCS' breach is corrected, and if WCS is the
aggrieved party, WCS may suspend performance of its obligations
until Customer's breach is corrected.
11. FORCE MAJEURE. WCS' performance shall be adjusted or
suspended by WCS to the extent performance is beyond WCS'
reasonable control for reasons including, without limitation,
the following: strikes, work stoppages, fire, water,
governmental action, acts of God (including, without
limitation, earthquakes, rains, floods or lightning), or public
enemy, delays of suppliers, subcontractors, power company,
local exchange company, or other carrier.
12. MISCELLANEOUS. (A) If WCS delivers additional Equipment
or Software, or provides time and materials maintenance or
other incidental services relating to the System the terms of
this Purchase Agreement will govern, subject to WCS' price
quotes, unless there is a separate written agreement between
the parties covering those items. (B) WCS' obligation is
contingent upon a credit report satisfactory to WCS. (C) Except
for indemnification and payment obligations, no action,
regardless of form, arising out of this Purchase Agreement may
be brought by either party more than one (1) year after the
cause of action has accrued. (D) Customer's signature on a
facsimile transmission of an Quotation or any amendment or
attachment thereto, when sent from Customer's office to WCS,
may be relied upon by WCS in lieu of an inked signature and
shall be binding on Customer and satisfy any applicable Statute
of Frauds. WCS' copy of such facsimile transmission shall
serve as the original of any such document. (E) This Purchase
Agreement may be executed contemporaneously in one or more
counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
(F) Customer agrees that neither it nor any of its affiliates
will solicit any of the WCS employees providing services
pursuant to this Purchase Agreement with offers of employment
during the term of this Purchase Agreement.
SIGNATURE PAGE TO FOLLOW
XXXXXXXX COMMUNICATIONS SOLUTIONS , LLC
BY: /s/Xxx X. Xxxxxx
CUSTOMER: /s/Xxxx Xxxxxx
