Master Service Agreement
EXHIBIT 10.17
This Master Service Agreement (“Agreement”) is made this 10th day of
August, 2005 between LEVEL 3 COMMUNICATIONS, LLC (“Level 3”) and WEBSIDESTORY, INC.
(“Customer). This Agreement provides the general terms and conditions applicable to Customer’s
purchase of communications services (“Service”) from Level
3.
ARTICLE 1. ORDERS FOR AND DELIVERY OF SERVICE
1.1
Submission and Acceptance of Customer Order(s). Customer may submit requests for
Service in a form designated by
Xxxxx 0 (“Customer Order”). The Customer Order shall contain the duration for which Service is
ordered (“Service Term”) and pricing
for Service. Xxxxx 0 will notify Customer of acceptance (in writing or electronically) of the
Customer Order and the date by which Level
3 will install Service (the “Customer Commit Date”); renewal Customer Orders will be accepted by
Level 3’s continuation of Service. If
Customer submits Customer Orders electronically. Customer shall assure that any passwords or access
devices are available only to
those having authority to submit Customer Orders.
1.2 Credit Approval and Deposits. Customer will provide Level 3 with credit information as requested. Xxxxx 0 may require
Customer to make a deposit as a condition of Level 3’s acceptance of any Customer Order or
continuation of: a) any usage-based
Service; or b) any non-usage based Service where Customer fails to timely make any payment due
hereunder or Level 3 reasonably
determines that Customer has had an adverse change in financial condition. Deposits will not exceed
2 months’ estimated charges for
Service and will be due upon Level 3’s written request. When Service is discontinued, the deposit
will be credited to Customer’s
account and the balance refunded.
1.3
Customer Premises. If access to non-Level 3 facilities is required for the installation, maintenance or removal of Level 3
equipment, Customer shall, at its expense, secure such right of access and shall arrange for the
provision and maintenance of power
and HVAC as needed for the proper operation of such equipment.
1.4
Scheduled Maintenance. Scheduled maintenance will not normally result in Service
interruption. It scheduled maintenance
requires Service interruption, Level 3 will (i) provide Customer 7 days’ prior written notice, (ii)
work with Customer to try to minimize Service
interruptions and (iii) use commercially reasonable efforts to perform such maintenance between
midnight and 6:00 a.m. local time.
ARTICLE 2. BILLING AND PAYMENT
2.1
Commencement of Billing. Level 3 will deliver written or electronic notice (a
“Connection Notice”) to Customer upon
installation of Service. If Customer notifies Level 3 within 3 days after delivery of the
Connection Notice that Service is not functioning
properly, Level 3 shall correct any deficiencies and deliver a new
Connection Notice to Customer. The date of delivery of an
undisputed Connection Notice is the “Service Commencement Date”. Charges shall be invoiced and
commence on the Service
Commencement Date, regardless of whether Customer is prepared to accept delivery of Service.
2.2
Payment of Invoices and Disputes. Invoices are delivered monthly and due 30 days after the date of invoice. Fixed
charges are billed in advance and usage-based charges are billed in arrears. Billing for partial
months is prorated. Past due amounts
bear interest at 1.5% per month or the highest rate allowed by law (whichever is less). Customer is
responsible for all charges respecting
the Service, even if incurred as the result of unauthorized use. If Customer reasonably disputes
an invoice, Customer must pay the
undisputed amount and submit written notice of the disputed amount (with details of the nature of
the dispute and the Services and
invoice(s) disputed). Disputes must be submitted in writing within 90 days from the date of the
invoice. If the dispute is resolved
against Customer, Customer shall pay such amounts plus interest from the date originally due.
2.3
Taxes and Fees. Except for taxes based on Level
3’s net income. Customer will be
responsible for all taxes that arise in any
jurisdiction, including value added, consumption, sales, use, gross receipts, foreign withholding
(which will be grossed up), excise,
access, bypass, franchise or other taxes, fees, duties, charges or surcharges imposed on or
incident to the provision, sale or use of
Service (whether imposed on Level 3 or any affiliate of Level 3).
Charges for Service are
exclusive of taxes. Customer may present
Level 3 a valid exemption certificate and Level 3 will give effect
thereto prospectively.
2.4
Regulatory and Legal Changes. If any change in applicable law, regulation, rule or
order materially affects delivery of
Service, the parties will negotiate appropriate changes to this Agreement. If the parties are
unable to reach agreement within 30 days
after Level 3’s delivery of written notice requesting renegotiation: (a) Level 3 may pass any
increased costs relating to delivery of
Service through to Customer and (b) if Level 3 does so, Customer may terminate the affected
Service without termination liability by
delivering written notice to Level 3 within 30 days.
2.5
Cancellation and Termination Charges.
(A) Customer may cancel a Customer Order (or portion thereof) prior to delivery of the
Connection Notice upon written notice to Level 3 identifying the affected Customer Order and
Service. If Customer does so, Customer shall pay Level 3 a cancellation charge equal to the sum
of: (i) for “off-net” Service, third party termination charges for the cancelled Service; (ii) for
“on-net” Service, month’s monthly recurring charges
for the cancelled Service; (iii) the non-
recurring charges for the cancelled Service; and (iv) Level 3’s out of pocket costs (if any)
incurred in constructing facilities necessary for Service delivery.
Page 1
(B) Customer may terminate Service after delivery of the Connection Notice upon 30 days’ written
notice to Level 3 identifying the terminated Service. If Customer does so, or if Service is
terminated by Level 3 as the result of an uncured default by Customer, Customer shall pay Level 3
a termination charge equal to the sum of: (i) all unpaid amounts for Service provided through the
date of termination; (ii) 100% of the remaining monthly recurring charges for months 1-12 of the
Service Term; and (iii) 50% of the remaining monthly recurring charges for month 13 through the
end of the Service Term. The parties agree that the charges in this Section are a genuine estimate
of Level 3’s actual damages and are not a penalty.
ARTICLE 3. DEFAULT
If (A) Customer fails to make any payment when due and such failure continues for 5 business
days after written notice from Level 3, or (B) either party fails to observe or perform any other
material term of this Agreement and such failure continues for 30 days after written notice from
the other party, then the non-defaulting party may: (i) terminate this Agreement and/or any
Customer Order, in whole or in part, and/or (ii) subject to
Section 4.1, pursue any remedies it
may have at law or in equity.
ARTICLE
4. LIABILITIES AND SERVICE LEVELS
4.1
No Special Damages. Neither party shall be liable for any damages for lost
profits, lost revenues, loss of goodwill, loss of
anticipated savings, loss of data or cost of purchasing replacement services, or any indirect,
incidental, special, consequential,
exemplary or punitive damages arising out of the performance or failure to perform under this
Agreement or any Customer Order.
4.2
Disclaimer of Warranties. LEVEL 3 MAKES NO WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT
OR ANY APPLICABLE SERVICE SCHEDULE.
4.3
Service Levels. The “Service Level” commitments applicable to the Services are found in Level 3’s Service Schedules for
each Service. If Xxxxx 0 does not achieve a Service Level, a credit will be issued to Customer as
set forth in the applicable Service
Schedule upon Customer’s request. Level 3’s maintenance log and trouble ticketing systems will be
used for calculating any Service
Level events. To request a credit, Customer must contact Level 3 Customer Service (contact
information can be found at
xxx.xxxxx0.xxx) or deliver a written request (with sufficient detail necessary to identify the
affected Service) within 60 days after the
end of the month in which the credit was earned. In no event shall the total credits issued to
Customer per month exceed the non-recurring and monthly recurring charges for the affected Service for that month. Customer’s sole
remedies for any outages in Service are contained in the Service Levels applicable to the affected Service.
4.4
Right of Termination for Installation Delay. In lieu of any Service Level credits for
installation delays, if Level 3’s installation of Service is delayed for more than 30 business
days beyond the Customer Commit Date, Customer may terminate the affected Service upon written
notice to Level 3 and without payment of any applicable termination charge, provided such written
notice is delivered prior to Level 3 delivering a Connection Notice for the affected Service. This
Section shall not apply to any Service where Level 3 has agreed to construct network facilities in
or to a new location not previously served by Level 3.
ARTICLE
5. GENERAL TERMS
5.1
Force Majeure. Neither party shall be liable, nor shall any credit allowance or
other remedy be extended, for any failure of performance or equipment due to causes beyond such
party’s reasonable control (“force majeure event”). In the event Level 3 is unable to deliver
Service as a result of a force majeure event, Customer shall not be obligated to pay Level 3 for
the affected Service for so long as Level 3 is unable to deliver the affected Service. Force
majeure events along with scheduled maintenance under section 1.4 shall be considered “Excused
Outages.”
5.2
Assignment and Resale. Customer may not assign its rights or obligations under this
Agreement or any Customer Order without the prior written consent of Level 3, which will not be
unreasonably withheld. This Agreement shall apply to any permitted transferees or assignees.
Customer may resell the Service to third parties, provided that Customer shall indemnify, defend
and hold Level 3 harmless from any claims made against Level 3 or its affiliates by such third
parties or any other parties or entities obtaining service through such third parties. Nothing in
this Agreement, express or implied, is intended to or shall confer upon any thirty party any
right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
5.3
Affiliates. Service may be provided to Customer pursuant to this Agreement by an
affiliate of Xxxxx 0, but Level 3 shall remain responsible to Customer for the delivery and
performance of the Service. Customer’s affiliates may purchase Service pursuant to this
Agreement. Customer shall be jointly and severally liable for all
claims and liabilities related to Service ordered by any Customer affiliate, and any default under this Agreement by any
Customer affiliate shall also be a default by Customer.
5.4
Notices. All notices shall be in writing and sufficient and received if delivered in
person, or when sent via facsimile, pre-paid
overnight courier, electronic mail (if an e-mail address is provided
below) or sent by U.S. Postal
Service (or First Class International Post (as applicable)), addressed as follows:
Page 2
IF
TO LEVEL 3: IF TO CUSTOMER:
For billing inquiries/disputes,
requests for Service Level credits and/or requests
for disconnection of Service (other than for default):
requests for Service Level credits and/or requests
for disconnection of Service (other than for default):
Xxxxx 0 Communications, LLC
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Director, Billing
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxx0.xxx
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Director, Billing
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxx0.xxx
For
all other notices:
| Level 3 Communications, LLC | WEBSIDESTORY, INC. | |||
| 0000 Xxxxxxxx Xxxx. | 00000 Xxxxxxx Xxxxx, 0xx Xxxxx | |||
| Xxxxxxxxxx, Xxxxxxxx 00000 | Xxx Xxxxx, Xxxxxxxxxx 00000-0000 | |||
| Attn: General Counsel | Attn: Xxxxx Xxx | |||
| Facsimile: (000) 000-0000 | Facsimile: (000) 000-0000 | |||
| Email: xxxx@xxxxxxxxxxxx.xxx |
Either
party may change its notice address upon notice to the other party. All notices shall be
deemed to have been given on (i) the date delivered if delivered
personally, by facsimile or
e-mail (one business day after delivery if delivered on a weekend or legal holiday), (ii) the
business day after dispatch if sent by overnight courier, or (iii) the third business day after
posting if sent by U.S. Postal Service (or other applicable postal delivery service).
5.5
Acceptable Use Policy; Data Protection. Customer’s use of Service shall comply with
Level 3’s Acceptable Use Policy and
Privacy Policy, as communicated in writing to Customer from time to time and which are also
available through Level 3’s web site at
xxx.xxxxx0.xxx. Level 3 may transfer, process and store billing and utilization data and other data
necessary for Level 3’s operation of
its network and for the performance of its obligations under this Agreement to or from the United
States. Customer consents that Level
3 may (i) transfer, store and process such data in the United
States; and (ii) use such data for
its own internal purposes and as allowed
by law. This data will not be disclosed to third parties.
5.6
Marks and Publicity; Non-Disclosure. Neither party shall have the right to use the other party’s or its affiliates’ trademarks,
service marks or trade names without the prior written consent of the other party. Neither party
shall issue any press release or other
public statement relating to this Agreement, except as may be required by law or agreed between the
parties in writing. Any information
or documentation disclosed between the parties during the performance of this Agreement (including
this Agreement) shall be subject
to the terms and conditions of the applicable non-disclosure
agreement then in effect between the parties.
5.7
Governing Law; Amendment. This Agreement shall be governed and construed in accordance with the laws of the State of
Colorado, without regard to its choice of law rules. This Agreement, including any Service
Schedule(s) and Customer Order(s)
executed hereunder, constitutes the entire and final agreement and understanding between the
parties with respect to the Service and
supersedes all prior agreements relating to the Service. This Agreement may only be modified or
supplemented by an instrument
executed by an authorized representative of each party. No failure by either party to enforce any
right(s) hereunder shall constitute a
waiver of such right(s).
5.8
Relationship of the Parties. The relationship between Customer and Level 3 shall not
be that of partners, agents, or joint
venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a
partnership or agency agreement
between them for any purposes.
5.9
Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one
and the same instrument. Facsimile signatures shall be sufficient to
bind the parties to this Agreement.
| XXXXX 0 COMMUNICATIONS, LLC (“Level 3”) | WEBSIDESTORY, INC. (“Customer”) | |||||||
By
|
/s/ Xxxxxxx Xxxxxx | By | /s/ Xxxxx Xxx | |||||
Name
|
Name | |||||||
Title
|
Vice President | Title | Director of Network Operations | |||||
Page 3
SERVICE SCHEDULE
(3)LINK® PRIVATE LINE SERVICE
1. Applicability. This Service Schedule is applicable only where Customer orders (3) Link
® Private Line Service.
2.
Definitions. Any capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Agreement.
(A) “Protected” shall mean any Service that includes a protection scheme that allows traffic to be
re-routed in the event of a fiber
cut or equipment failure.
(B) “Submarine” shall mean any Service that transits any portion of Level 3’s trans-oceanic network.
(C) “Terrestrial” shall mean any Service that generally transits Level 3’s land-based network (with
limited water crossings,
including, without limitation, bay and channel crossings) and does not in any way transit Level 3’s
trans-oceanic network.
(D) “Unprotected” shall mean any Service that does not include a protection scheme that would allow
traffic to be re-routed in the
event of a fiber cut or equipment failure.
3. Service Description. (3)Link® Private Line Service is a dedicated, non-switched, point
to point circuit between two (2) specified
locations. At the end of any stated Service Term, the (3)Link® Private Line Service
will be provided to Customer on a month-to-month
basis at Customer’s existing prices or Level 3’s then-current prices (as elected by Level 3).
4. Services from Others. Where necessary for the interconnection of (3)Link® Private Line
Service with services provided by others,
Customer will provide Level 3 with circuit facility assignment information, firm order commitment
information and the design layout
records necessary to enable Level 3 to make the necessary cross-connection between the (3) Link®
Private Line Service and
Customer’s designated carrier. Any delay by Customer in providing such information to Xxxxx 0 may
delay Level 3’s provision of the
necessary cross-connection. Notwithstanding any such delay in the provision of the
cross-connection, billing for the (3)Link® Private
Line Service shall commence on the Service Commencement Date. Level 3 may charge Customer
non-recurring and monthly
recurring cross-connect fees to make such connection.
5. Connection to Customer Premises.
(A) Where (3)Link® Private Line Service is being terminated Off-Net at the Customer Premises
through an Off-Net Local Loop to
be provisioned by Level 3 on behalf of Customer, the charges set forth in the Customer Order for
such (3)Link® Private Line (Off-Net)
Service assumes that such (3)Link® Private Line (Off-Net) Service will be terminated at a
pre-established demarcation point or minimum
point of entry (MPOE) in the building within which the Customer Premises is located, as determined
by the local access provider.
Where the local access provider determines that it is necessary to extend the demarcation point or
MPOE through the provision of
additional infrastructure, cabling, electronics or other materials necessary to reach the Customer
Premises, (i) level 3 may charge
Customer additional non-recurring charges and/or monthly recurring charges not otherwise set forth
in the Customer Order for such
(3)Link® Private Line (Off-Net) Service, (ii) installation of Service may be delayed and (iii)
Section 7(A) of this Service Schedule shall not
apply. Level 3 will notify Customer of any additional non-recurring charges and/or monthly
recurring charges as soon as practicable
after Level 3 is notified by the local access provider of the amount of such charges.
(B) In addition, where (3)Link® Private Line Service is being terminated Off-Net at the Customer
Premises through an Off-Net
Local Loop to be provisioned by Level 3 on behalf of the Customer, the charges and the Service Term
set forth in the Customer Order
for such (3)Link® Private Line (Off-Net) Service assumes that such (3)Link® Private Line (Off-Net)
Service can be provisioned by Xxxxx
0 through the local access provider selected by Level 3 (and/or Customer) for the stated Service
Term. In the event Level 3 is unable
to provision such (3)Link® Private Line (Off-Net) Service through the selected local access
provider or the selected local access
provider requires a longer Service Term than that set forth in the Customer Order, Level 3 reserves
the right, regardless of whether
Level 3 has accepted the Customer Order, to suspend provisioning of such (3)Link® Private Line
(Off-Net) Service and notify Customer
in writing of any additional non-recurring charges, monthly recurring charges and/or Service Term
that may apply. Upon receipt of such
notice, Customer will have five (5) business days to accept or reject such changes. If Customer
does not respond to Level 3 within the
five (5) business day period, such changes will be deemed rejected by Customer. In the event
Customer rejects the changes (whether
affirmatively or through the expiration of the five (5) business day period), the affected (3) Link®
Private Line (Off-Net) Service will be
cancelled without cancellation or termination liability of either party.
(C) Level 3 does not guarantee that any (3)Link® Private Line (Off-Net) Service will be provided
by a specified local access
provider.
Page 4
6. (3)HubSM Private Line Service.
(A) (3)Link® Private Line Service is also available configured as (3)HubSM Private Line
Service (3)HubSM Private Line Service is
comprised of (i) a single (3)Link® Private Line Service between two (2) locations (such single
(3)Link® Private Line Service is sometimes
referred to as the (3)HubSM Private Line Facility); and (ii) one or more individual (3) Link®
Private Line Service(s) within the (3)HubSM
Private Line Facility (such individual (3)Link® Private Line Services are each sometimes referred
to as a (3)HubSM Private Line Circuit)
(3)HubSM Private Line Circuits will have equal or less capacity than the (3)HubSM Private Line
Facility. The (3)Link® Private Line
Service(s) comprising any (3)HubSM Private Line Service shall be configured as specified in the
applicable Customer Order.
(B) Notwithstanding any terms and conditions in the Agreement or this Service Schedule to the
contrary, Customer may not
terminate a (3)HubSM Private Line Facility regardless of cause without either (i)
terminating all (3)HubSM Private Line Circuit(s) within
such (3)HubSM Private Line Facility and paying all applicable termination charges related
thereto; and/or (ii) converting all (3)HubSM
Private Line Circuits comprising such (3)HubSM Private Line Facility into stand-alone (3) Link®
Private Line Service(s) (without changing
the end-point locations) at Level 3’s then standard charges for the remainder the applicable
Service Term.
7. Service Levels.
(A) Installation
Service Level. Level 3 will exercise commercially reasonable efforts
to install any (3)Link® Private Line Service on or before the Customer Commit Date
specified for the particular (3)Link® Private Line Service. This Installation Service Level shall
not apply to Customer Orders that contain incorrect information supplied by Customer or Customer
Orders that are altered at Customer’s request after submission and acceptance by Level 3. In the
event Xxxxx 0 does not meet this Installation Service Level for a particular (3)Link® Private
Line Service for reasons other than an Excused Outage, Customer will be entitled to a service
credit off of the nonrecurring charges (“NRC”) and/or monthly recurring charges (“MRC”) for the
affected (3)Link® Private Line Service as set forth in the following table:
For any (3)Link® Private Line (On-Net) Service:
| Installation Delay Beyond | ||
| Customer Commit Date | Service Level Credit | |
1 — 5 business days
|
Amount of NRC | |
6 — 20 business days
|
Amount of NRC plus charges for one (1) day of the MRC for each day of delay | |
21 business days or greater
|
Amount of NRC plus one (1) months’ MRC | |
For any (3)Link® Private Line (Off-Net) Service:
| Installation Delay Beyond | ||
| Customer Commit Date | Service Level Credit | |
1 — 15 business days
|
No Credit | |
16 — 30 business days
|
Amount of NRC | |
31 business days or greater
|
Amount of NRC plus one (1) months’ MRC | |
(B) Availability Service Level for Protected (3)Link® Private Line Service. The Availability Service Level for Protected (3)Link
® private Line Service is 99.99% for Protected Terrestrial (3)Link® Private Line (On-Net) Service, 99.9% for Protected submarine (3)Link
® Private Line (On-Net) Service, and 99.9% for Protected Terrestrial (3)Link® Private Line(Off-Net) Service. In the event that any
Protected(3)Link® Private Line Service becomes unavailable (as defined below) for reasons other than an Excused Outage. Customer
will be entitled to a service credit off the MRC for the affected Protected (3)Link® Private Line Service based on the
cumulative unavailability of the affected Protected (3)Link® Private Line Service in a given Calendar month as set forth in the
following table.
For any Protected (3)Link® Private Line (On-Net) Service:
| Cumulative Unavailability | ||||
| (in hrs. mins. secs.) | Service Level Credit | |||
00:00:01 — 00:05:00
|
No Credit | |||
00:05:01 — 00:45:00
|
5 | % | ||
00:45:01 — 04:00:00
|
10 | % | ||
04:00:01 — 08:00:00
|
20 | % | ||
08:00:01 — 12:00:00
|
30 | % | ||
12:00:01 — 16:00:00
|
40 | % | ||
16:00:01 — 24:00:00
|
50 | % | ||
24:00:01 or greater
|
100 | % | ||
Page 5
For any
Protected Terrestrial (3)Link® Private Line (Off-Net) Service:
| Cumulative Unavailability | ||||
| (in hrs. mins. secs.) | Service Level Credit | |||
00:00:01 — 00:45:00
|
No Credit | |||
00:45:01 — 04:00:00
|
5 | % | ||
04:00:01 — 08:00:00
|
10 | % | ||
08:00:01
—12:00:00
|
20 | % | ||
12:00:01 — 16:00:00
|
30 | % | ||
16:00:01 — 24:00:00
|
40 | % | ||
24:00:01 or greater
|
100 | % | ||
For purposes of this Section 7(B) and Section 7(C) below, “unavailable” or
“unavailability” means the duration of a break in transmission measured from the first of
ten (10) consecutive severely erred seconds (“SESs”)
on the affected (3)Link® Private Line
Service until the first of ten (10) consecutive non-SESs. An SES is a second with a bit
error ratio of greater than or equal to 1 in 1000.
(C) Availability
Service Level for Unprotected
(3)Link®
Private Line Service. In the event
that any Unprotected (3)Link® Private Line Service becomes unavailable (as defined in
Section 7(B) above) for reasons other than an Excused Outage, Customer will be entitled to a
service credit off of the MRC for the affected Unprotected
(3)Link® Private Line Service
based on the cumulative unavailability for the affected Unprotected (3)Link® Private Line
Service in a given calendar month as set forth in the following table:
For any Unprotected (3)Link® Private Line (On-Net) Service:
| Cumulative Unavailability | ||||
| (in hrs. mins. secs.) | Service Level Credit | |||
0:00:01 — 6:00:00
|
No Credit | |||
6:00:01 — 8:00:00 |
5 | % | ||
8:00:01 — 10:00:00
|
10 | % | ||
10:00:01 — 12:00:00
|
15 | % | ||
12:00:01 or greater
|
20 | % | ||
For any Unprotected Terrestrial (3)Link® Private Line (Off-Net) Service:
| Cumulative Unavailability | ||||
| (in hrs. mins. secs.) | Service Level Credit | |||
0:00:01 — 30:00:00
|
No Credit | |||
30:00:01 — 36:00:00
|
2.5 | % | ||
36:00:01 — 42:00:00
|
5 | % | ||
42:00:01 or greater
|
7.5 | % | ||
(D)
Off-Net Service Limitations. The Service Levels set forth in this Section 7
and the rights of termination pursuant to Section 4.4 of the Agreement respecting (3)®
Private Line (Off-Net) Service shall only apply to Terrestial (3)Link® Private Line
(Off-Net) Service with end point locations in the United States and/or the European Union.
For any other Off-Net Local Loop Service or (3)Link® Private Line (Off-Net) Service
provisioned by Level 3 through a third party carrier for the benefit of Customer and not
otherwise covered by this Xxxxxxx 0, Xxxxx 0 will pass-through to Customer any service
levels and associated credits (or other express remedies) (if applicable) provided to Level
3 by the applicable third party carrier.
8.
Chronic Outage. Customer may elect to terminate an affected On-Net (3)Link®
Private Line Service prior to the end of the Service Term without termination liability if,
for reasons other than an Excused Outage.
(1) For
Protected On-Net (3)Link® Private Line Service, such Protected On-Net (3)Link®
Private Line Service is unavailable (as defined in Section 7(B) above) for four (4) or more
separate occasions of more than two (2) hours each OR for more than twenty four (24) hours
in the aggregate in any calendar month; or
(2) For Unprotected On-Net (3)Link® Private Line Service, such Unprotected On-Net
(3)Link® Private Line Service is unavailable (as defined in Section 7(B) above) for three
(3) or more separate occasions of more than twelve (12) hours each OR for more than forty
two (42) hours in the aggregate in any calendar month.
Customer may only terminate such On-Net (3)Link® Private Line Service that is unavailable as
described above, and must exercise its right to terminate the
affected On-Net (3) Link®
Private Line Service under this Section, in writing, within thirty (30) days after the event
giving rise to a right of termination hereunder, which termination will be effective as set
forth by Customer in such notice of termination. Except for any credits that have accrued
pursuant to Section 7, this Section 8 sets forth the sole remedy of Customer for chronic
outages or interruptions of any (3)Link® Private Line Service
Page 6
SERVICE SCHEDULE
(3)CENTER(R) COLOCATION
(Version Issue Date 3/16/05)
(3)CENTER(R) COLOCATION
(Version Issue Date 3/16/05)
1. Applicability. This Service Schedule is applicable only where Customer orders
Colocation Space and associated services (i.e., power and (3)TechSM Service).
2.
Definitions. Any capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Agreement.
(A)
“Colocation Area” shall mean the location within a Gateway in which Colocation Space ordered by
Customer is located.
(B)
“Colocation Space” shall mean the location(s) within the Colocation Area where Customer
is permitted to colocate
communications and networking equipment pursuant to a Customer Order
accepted by Level 3.
(C) (3)TechSM Service” shall mean technician services, which may include, without
limitation, (i) basic on-site, on demand first-line
maintenance and support, including power cycling, and (ii) scheduled support, maintenance,
installation and removal of equipment,
cabling and other related support services, consistent with Level 3’s then current written
(3)TechSM Service Description, as amended
by Xxxxx 0 from time to time, a copy of which shall be made available to Customer upon request.
(D)
“Hot Aisle Cold Aisle” shall mean the arrangement of Customer equipment where the equipment air
intake is facing a common
aisle (“Cold Aisle”), and the air exhaust of the equipment faces the alternate common aisle (“Hot
Aisle”), as designated by Level 3.
(E)
“Colocation Environment” shall mean relative humidity in
the Colocation Area of 40%-60% and
temperature in the Colocation
Space at a maximum of 78 degrees Fahrenheit (26 degrees Celsius), as
measured 6'6" above the
finished floor, and 8" in front of
Customer equipment on the Cold Aisle.
3 Grant of License. Customer shall be granted the right to occupy the Colocation Space
Identified in an accepted Customer Order during the Service Term subject to the applicable rates
set forth in such Customer Order. At the end of any stated Service Term, the Colocation Space will
be provided to Customer on a month-to-month basis at Level 3’s then-current prices. Level 3
retains the right to access any Colocation Space for any legitimate business purpose at any time.
4.
Use of Colocation Space. Customer shall be permitted to use the Colocation Space only
for placement and maintenance of
communications equipment. Customer may access the Colocation Space twenty four (24) hours per
day, seven (7) days per week,
subject to any and all rules, regulations and access requirements imposed by Level 3 governing such
access.
5.
Xxxxx 0 Xxxxxxxxxxx. Xxxxx 0 shall perform janitorial services, environmental systems
maintenance, power plant maintenance and
other actions as are reasonably required to maintain the Colocation Area in a condition that is
suitable for the placement of
communications equipment. Level 3 shall maintain a Colocation Environment in the facility at all
times. Customer shall install
equipment in a Hot Aisle Cold Aisle configuration. Customer shall maintain the Colocation Space in
an orderly and safe condition, and
shall return the Colocation Space to Level 3 at the conclusion of the Service Term in the same
condition (reasonable wear and tear
excepted) as when such Colocation Space was delivered to Customer. EXCEPT AS EXPRESSLY STATED
HEREIN OR IN ANY
CUSTOMER ORDER, THE COLOCATION SPACE SHALL BE DELIVERED AND ACCEPTED “AS IS” BY CUSTOMER, AND NO
REPRESENTATION HAS BEEN MADE BY LEVEL 3 AS TO THE FITNESS OF THE COLOCATION SPACE FOR CUSTOMER’S
INTENDED PURPOSE.
6. Release of Landlord. If and to the extent that Level 3’s underlying leases so require
(but only if they so require) Customer hereby agrees to release Level 3’s landlord (and its
agents, subcontractors and employees) from all liability relating to Customer’s access to the
Gateway and the Colocation Area and Customer’s use and/or occupancy of the Colocation Space.
7.
Security. Level 3 will provide and maintain in working condition card readers,
scanners and/or other access devices as selected by Xxxxx 0 for access to the Colocation Area.
Customer shall under no circumstances “prop open” any door to, or otherwise bypass the Level 3
security measures for, the Colocation Area. Level 3 will provide a locking device for the
Colocation Space, and Customer shall be solely responsible for locking and/or activating such
device. In the event that unauthorized parties gain access to any
Level 3 facility through access
cards, keys or other access devices provided to Customer, Customer shall be responsible for any
damages caused by such parties. Customer shall be responsible for the cost of replacing any
security devices lost or stolen after delivery thereof to Customer.
8. Prohibited Activities. Customer shall abide by any posted or otherwise communicated
rules relating to use of, access to, or security measures respecting each Level 3 facility.
9.
Termination of Use. Level 3 shall have the right to terminate Customer’s use of the
Colocation Space or the Service delivered therein in the event that: (a) Level 3’s rights to use
the Gateway terminates or expires for any reason; (b) Customer is in default hereof; (c) Customer
makes any material alterations to the Colocation Space without first obtaining the written consent
of Level 3; (d) Customer allows personnel or contractors access to the Level 3 facilities who have
not been approved by Level 3 in advance; or (e) Customer or any of its agents or employees possess
any firearms, illegal drugs or alcohol in a facility or engage in any criminal activity in any
facility. With respect to items (b), (c) and (d), unless (in Level 3’s opinion) Customer’s actions
interfere or have the potential to interfere with other Xxxxx 0 xxxxxxxxx, Xxxxx 0 shall provide
Customer a written notice and a ten (10) day opportunity to cure before terminating Customer’s
rights to the Colocation Space.
Page 7
10.
Removal of Equipment. Within 2 days following the expiration or termination of
the Service Term for any Colocation Space, Customer shall remove all Customer equipment from the
Colocation Space. In the event Customer fails to remove the equipment within such 2-day period,
Level 3 may disconnect, remove and dispose of Customer’s equipment without prior notice. Customer
shall be responsible for any costs and expenses incurred by Xxxxx 0, or its agent, representative
or contractor, resulting from disconnection, removal, disposal and storage of Customer’s
equipment. Level 3 shall not be obligated to release equipment to Customer unless Customer has
paid all such costs and expenses and all other charges due and owing by Customer to Level 3 under
the Agreement Level 3 shall not be liable for any loss or damage incurred by Customer arising out
of Level 3’s disconnection, removal, storage or disposal of
Customer’s equipment.
11.
Subllcenses. Customer may sublicense the use of Colocation Space under the following
conditions: (a) all proposed sublicensees must be approved in writing by Xxxxx 0 in Level 3’s
sole discretion, except Customer may sublicense the use of the Colocation Space to an Affiliate
of Customer upon prior written notice to Level 3; (b) all proposed sublicensees shall abide by
the terms of the Agreement, this Service Schedule and the applicable Customer Order; (c) Customer
shall indemnify, defend and hold Level 3 harmless from all claims brought against Level 3 arising
from any act or omission of any sublicensee or its agents; and (d) any sublicensee shall be
considered Customer’s agent and all of such party’s acts and omissions shall be attributable to
Customer for the purposes of the Agreement and this Service Schedule. In the event Customer
sublicenses use of the Colocation Space without Level 3’s prior
written approval, Xxxxx 0 may
upon ten (10) days’ prior written notice reclaim the sublicensed portion of the Colocation Space.
Customer shall surrender such reclaimed Colocation Space and shall be subject to termination
charges associated with the reclaimed Colocation Space as provided in
Section 3.7 of the
Agreement. No refunds shall be made to Customer regarding reclaimed Colocation Space.
12.
Changes.
(A) Xxxxx 0 xxxxxxxx xxx xxxxx xx xxxxxx (xx Xxxxx 0’s cost) the location or configuration of the
Colocation Space licensed to
Customer; provided that Level 3 shall not arbitrarily require such changes. Level 3 and Customer
shall work in good faith to minimize
any disruption in Customer’s services that may be caused by such changes in location or
configuration of the Coloration Space.
(B) Notwithstanding anything in Section 3.1 of the Agreement to the contrary and unless otherwise
agreed in writing by the parties,
in the event any Customer Order for Colocation Space is altered (including, without limitation any
changes in the configuration or build-out of the Colocation Space) at Customer’s request after Customer’s submission and Level 3’s
acceptance of such Customer Order
that results in a delay of Level 3’s delivery of such Colocation Space to Customer, billing for
such Colocation Space shall commence no
later than the original Customer Commit Date.
13.
Insurance. Prior to occupancy by Customer of any Colocation Space and during the
Service Term, Customer shall procure and maintain the following minimum insurance coverage: (a)
Workers’ Compensation in compliance with all applicable statutes of appropriate jurisdiction
(including Employer’s Liability with limits of $500,000 each accident); (b) Commercial General
Liability with combined single limits of $1,000,000 each occurrence; and (c) “All Risk” Property
insurance covering all of Customer’s personal property located
in the Gateway. Customer
acknowledges that it retains the risk of loss for, loss of (including, without limitation, loss of
use), or damage to, Customer equipment and other personal property located in a Level 3 facility.
Customer further acknowledges that Level 3’s insurance policies do not provide coverage for
Customer’s personal property located in a Level 3 facility. Customer shall, at its option,
maintain a program of property insurance or self-insurance covering loss of or damage to its
equipment and other personal property. Customer’s Commercial General Liability policy shall be
endorsed to show Level 3 (and any underlying property owner, as requested by Level 3) as an
additional insured. Customer shall waive and/or cause its insurance carriers to waive all rights
of subrogation against Xxxxx 0, which will include, without limitation, an express waiver in all
insurance policies. Customer shall furnish Level 3 with certificates of insurance demonstrating
that Customer has obtained the required insurance coverage prior to use of any Level 3 facility.
Such certificates shall contain a statement that the insurance coverage shall not be materially
changed or cancelled without at least 30 days’ prior written notice to Level 3. Customer shall
require any contractor, customer or other third party entering the Gateway on Customer’s behalf to
procure and maintain the same types, amounts and coverage extensions as required of Customer
above.
14.
(3)TechSM
Service.
(A) Xxxxx 0 may provide (3)TechSM Service on Customer’s equipment within the Colocation
Space from time to time as mutually
agreed between the parties. Customer may order
(3)TechSM Service by contacting Level 3 Customer
Service or such other means as
Level 3 may make available from time to time. For (3)TechSM Service that is scheduled
support beyond the basic on-site, on demand
first-line maintenance and support, Xxxxx 0 shall not be obligated to
perform such
(3)TechSM
Service until a scope of such (3)TechSM
Service to be provided has been mutually agreed by the parties in writing. Upon Level 3’s
acceptance of such order (and the parties’
execution of a scope document, if required), Level 3 will perform the (3)TechSM Service
in accordance with Customer’s directions.
Unless otherwise agreed, pricing for
(3)TechSM Service shall be at Level 3’s then current rates.
(B) ANY (3)TECHSM SERVICE IS PROVIDED ON AN “AS-IS” BASIS AND LEVEL 3 MAKES
NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR
OTHERWISE,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
(C) Under no circumstances will Level 3 be responsible for performing any warranty-affecting work,
and Level 3 shall not be liable
to Customer or any third party to the extent any work performed violates and/or voids, in whole or
in part, any equipment, software
and/or manufacturer’s warranty. Subject to Section 18(C) below, Level 3’s cumulative liability
for damages arising out of or elated to
Level 3’s performance or failure to perform any (3)TechSM Service will be limited to
direct damages in an amount not to exceed the total
fees paid by Customer to Xxxxx 0 for the particular (3)TechSM Service giving rise to
the liability.
Page 8
15.
Storage of Customer Equipment. Xxxxx 0 may, at its option, agree to store equipment
that Customer intends to colocate in Customer’s Colocation Space for not more than 45 days prior
to the applicable Customer Commit Date. Storage of such equipment is purely incidental to the
Service ordered by Customer and Level 3 will not charge Customer a fee for such storage. No
document delivered as part of such storage shall be deemed a
warehouse receipt. Absent Level 3’s
gross negligence or intentional misconduct, Level 3 shall have no liability to Customer or any
third party arising from such storage. In the event Customer stores equipment for longer than 45
days, Level 3 may, but shall not be obligated to, return Customer’s equipment to Customer without
liability, at Customer’s sole cost and expense.
16. Promotional Signage. Customer may display a single promotional sign with Customer’s
name and/or logo on the outside of any Colocation Space; provided such signage does not exceed 8
inches by 11 inches. All other promotional signage is prohibited.
17. Power.
(A) The pricing for power shall be on a breakered amp load basis.
(B) The supportable power density in any Colocation Space is 125 xxxxx/square foot (1250
xxxxx/square meter) of primary breakered power. Any additional power required by Customer is
subject to prior written approval by Level 3.
(C) In
the event the power utility increases the price paid by Level 3 for power provided to any
Colocation Space, Level 3 may
pass-through to Customer such price increase upon prior written notice to Customer.
(D) Customer agrees not to place inverters for the purposes of conversion from DC power to AC power
in the Colocation Space.
18. Service Levels.
(A)
Installation Service Level. This Installation Service Level applies to cabinet and
private suite Colocation Space. Level 3 will
exercise commercially reasonable efforts to install any Colocation Space on or before the Customer
Commit Date specified for such
Colocation Space. This Installation Service Level shall not apply to Customer Orders that contain
incorrect information supplied by
Customer, Customer Orders that are altered at Customer’s request after submission and acceptance by
Xxxxx 0, or Customer Orders
that require Xxxxx 0 to configure Colocation Space to specifications other than Level 3’s standard
specifications for Colocation Space
(such standard specifications shall be made available to Customer upon request). In the event
Level 3 does not meet this Installation
Service Level for a particular Colocation Space for reasons other than an Excused Outage, Customer
will be entitled to a service credit
equal to the charges for one (1) day of the monthly recurring charges (“MRC”) for the affected
Colocation Space for each day of delay,
up to a monthly maximum credit of four (4) days.
(B)
Power Service Level. In the event of any outage of Level 3 provided power to the
Colocation Space for reasons other than an
Excused Outage, Customer will be entitled to a service credit off of the MRC for the affected
Colocation Space based on the cumulative
unavailability for the affected service in a given calendar month as set forth in the following
table):
| Cumulative Unavailability | ||||
| (in hrs mins secs) | Service Level Credit | |||
00:00:01 - 00:05:00 |
2.5 | % | ||
00:05:01 - 00:45:00 |
5 | % | ||
00:45:01 - 04:00:00 |
10 | % | ||
04:00:01 - 08:00:00 |
20 | % | ||
08:00:01 - 12:00:00 |
30 | % | ||
12:00:01 - 16:00:00 |
40 | % | ||
16:00:01 - 24:00:00 |
50 | % | ||
24:00:01 or greater |
100 | % | ||
Page 9
(C)
(3)TechSMService Response Time Service Level. The Response Time Service
Level for (3)Tech SM Service for basic on site, on-demand first-line maintenance and
support is as set forth below. This Response Time Service Level shall not apply to any (3)
Tech SM Service that is tor scheduled support, maintenance, installation or removal. This
Response Time Service Level is measured from the time Level 3 Customer Service receives and logs
Customer’s (3)Tech SM Service request with all of the necessary information requested by
Level 3 Customer Service, until a Level 3 technician is dispatched in response to the particular
request In the event Level 3 does not meet the following Response Time Service Level for reasons
other than an Excused Outage, Customer will be entitled to a service credit equal to $100 per hour
for each hour beyond the Response Time Service Level (capped at $400
00 per location per month).
Service Level
| Hours of | Response | |
| Operation | Time | |
Normal Level 3 business hours of operation (M-F) for the particular Gateway |
30 minutes | |
Off-hours, holidays & weekends |
2 hours |
Page 10
SERVICE SCHEDULE
(3)LINK® CROSS CONNECT SERVICE and MONDO CONDO FIBER LINK SERVICE
(version Issues Date 4/22/05)
(3)LINK® CROSS CONNECT SERVICE and MONDO CONDO FIBER LINK SERVICE
(version Issues Date 4/22/05)
1.
Applicability .This Service Schedule is applicable only where Customer orders
(3)Link® Cross Connect Service and/or Mondo
Condo Fiber Link Service.
2.
Definitions. Any capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Agreement.
3.
Service Description. (3)Link® Cross Connect Service is copper or fiber optic cabling
cross-connected between Level 3 provided
(3)Center® Colocation (cabinets and/or suites), other Level 3 provided Service or Facilities and/or
third party provided services or
facilities that terminate within the Level 3 Gateway. Customer Commit Dates may not be provided
for (3)Link® Cross Connect Service,
in which case service delivery shall constitute Level 3’s acceptance. Mondo Condo Fiber Link
Service is fiber optic cabling that
provides connectivity between the Level 3 Mondo Condo facility and the Level 3 Gateway in the same
metropolitan area. Mondo
Condo Fiber Link Service can provide connectivity between Level 3
provided (3)Center® Colocation
(cabinets and/or suites) within a
Level 3 Mondo Condo facility and the Xxxxx 0 Xxxxxxx. Xxxxx 0 provided dark fiber and/or third
party provided services or facilities that
terminate within a Level 3 Gateway.
4.
Interconnection. Unless otherwise agreed between the parties, any (3)Link® Cross
Connect Service or Mondo Condo Fiber Link Service will be interconnected to a Level 3 provided
panel within the Level 3 Gateway (and not directly to Customer provided equipment or facilities).
Upon request of Customer at the time of submission of the applicable Customer Order, Level 3 will
interconnect such (3)Link® Cross Connect Service or Mondo Condo Fiber Link Service directly to
Customer provided equipment or facilities within the Xxxxx 0 Xxxxxxx; provided, however, Level 3
shall not be liable to Customer or any third party for any loss or damage to such Customer provided
equipment or facilities arising out of such direct interconnection.
5. Service Xxxxx. Xxxxx 0 will exercise commercially reasonable efforts to install any
(3)Link® Cross Connect Service and any Mondo
Condo Fiber Link Service on or before the Customer Commit Date specified for the particular
(3)Link® Cross Connect Service or Mondo
Condo Fiber Link Service (as the case may be). This Installation Service Level shall not apply to
Customer Orders that contain
incorrect information supplied by Customer or Customer Orders that are altered at Customer’s
request after submission and
acceptance by Level 3. In the event Xxxxx 0 does not meet this Installation Service Level for a
particular (3)Link® Cross Connect
Service or Mondo Condo Fiber Link Service (as the case may be) for reasons other than an Excused
Outage, Customer will be entitled
to a service credit off of the non-recurring charges (“NRC”) and/or monthly recurring charges
(“MRC”) for the affected (3)Link® Cross
Connect Service or Mondo Condo Fiber Link Service (as the case may be) as set forth in the
following tables:
For (3)Link® Cross Connect Service:
| Installation Delay Beyond | ||
| Customer Commit Date | Service Level Credit | |
1–5 business days
|
Amount of NRC | |
6–20 business days
|
Amount of NRC plus charges for one (1) day of the MRC for each day of delay | |
21 + business days
|
Amount of NRC plus one (1) months’ MRC |
For Mondo Condo Fiber Link Service:
| Installation Delay Beyond | ||
| Costomer Commit Date | Service Level Credit | |
15 – 30 business days
|
Amount of NRC | |
31 + business days
|
Amount of NRC plus one (1) months’ MRC |
Page 11
SERVICE SCHEDULE
(3)CROSSROADS ® SERVICE
(Version Issue Date 5/3/05)
(3)CROSSROADS ® SERVICE
(Version Issue Date 5/3/05)
1. Applicability. This Service Schedule is applicable only where Customer orders
(3)Crossroads®
Service.
2. Definitions. Any capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Agreement.
(A) “Back-Up Port” shall mean any (3)CrossRoads® Service port other than the
Primary Port that is configured to send/receive traffic only in the event that the applicable
Primary Port becomes unavailable to send or receive traffic. The Back-Up Port must be identified
as such in the Customer Order and provisioned on a Level 3 router or switch (within the same Level
3 Facility) that is separate from the Primary Port.
(B) “Committed Data Rate” shall mean the minimum data rate committed by Customer and set forth in
the Customer Order (expressed in Megabits pet second (Mbps)).
(C) “IP Fiber Extension” shall mean a dark fiber local access solution for
(3)CrossRoads® Service between the Level 3 Gateway and the Customer Premises (or such
other point of interconnection) in which unprotected IP service is delivered using Level 3
Facilities and Customer facilities, as mutually agreed between the parties. Level 3 shall, in its
sole discretion, determine whether Customer may utilize an IP Fiber Extension under this Service
Schedule, or must obtain dark fiber pursuant to a separate dark fiber Service Schedule to be
executed by the parties.
(D) “Off-Net Send Traffic” shall mean Send Traffic that terminates to any location that is
not on the Level 3 network.
(E) “On Net Intracity Send Traffic” shall mean On-Net Send Traffic that does not transit
Level 3’s long haul transmission facilities.
(F) “On-Net Send Traffic” shall mean Send Traffic that terminates to a location that is
on the Level 3 network.
(G) “Primary Port” shall mean any (3)CrossRoads® Service port that is configured
to send/receive Customer’s (3)CrossRoads® Service traffic during normal network
operations, as identified in the applicable Customer Order.
(H) “Receive Traffic” shall mean traffic from any origination point that is received by
Customer from the level 3 network.
(I) “Send Traffic” shall mean traffic from any
origination point that is sent by Customer onto the Level 3 network.
3. Service Description. (3)CrossRoads® Service is an IP transit service
(including dedicated IP access port(s)) providing access to the Level 3 IP network and the global
Internet. (3)CrossRoads® Service is available through Serial/POS and Ethernet
interfaces. (3)CrossRoads® Service is available in a “Standard” configuration or a
“Protected” configuration. Standard (3)CrossRoads® Service is configured with a single
Primary Port and no Backup Port. Protected (3)CrossRoads® Service is configured with
both a Primary Port and a Backup Port.
4. Charges. Customer may elect to be billed based on a Committed Data Rate, through
Destination Sensitive Billing, or at a Fixed Rate. The manner of billing selected will be set forth
in each Customer Order.
(A) Committed Data Rate charges for (3)CrossRoads® Service consist of four (4)
components: (a) a non-recurring installation charge per port, (b) a monthly recurring port charge
(if applicable); (c) a monthly recurring charge based on me Committed Data Rate and (d) monthly
usage charges to the extent usage in a particular month exceeds the Committed Data Rate.
The Committed Data Rate shall apply to either a particular (3)CrossRoads®Service port or
in the aggregate to more than one (3)CrossRoads® Service ports provided hereunder, as
stated in the applicable Customer Order(s) for such ports. The “Aggregate CDR: billing option (as
defined below) is not available for all port interface speeds. The following shall apply (as
applicable):
(1) If the Committed Data Rate applies to a particular (3)CrossRoads® Service port,
Customer’s per port usage of (3)CrossRoads® Service (both Send Traffic and Receive
Traffic) across such port will be sampled every five (5) minutes for the previous five (5) minute
period. At the end of the month, the top five percent (5%) of Send Traffic and Receive Traffic
samples for such port shall be discarded. The higher of the resulting ninety-fifth
(95th) percentile value for Send Traffic or Receive Traffic for such port will be
compared to the Committed Data Rate applicable to the port. If the ninety-fifth (95th)
percentile of either Send Traffic or Receive Traffic is higher than the applicable Committed Data
Rate, Customer will, in addition to being billed for the Committed Data Rate, be billed at this
ninety-fifth (95th) percentile level for any usage in excess of such Committed Data Rate at the
contracted-for price per Megabit.
If Customer’s selected (3)CrossRoads® Service port is a dedicated DS-3 or E-3 port,
Customer may elect, subject to additional charges as mutually agreed between the parties, a rate
limiting option (a “CDR Cap”) in the applicable Customer Order. Upon such election, Level 3 will
configure the port such that the maximum bandwidth allowed to be sent to or received from the port
is capped at the CDR Cap. Level 3 will not accept Customer traffic in excess of the CDR Cap if such
option is elected. Any subsequent change to such CDR Cap will be subject to additional charges as
mutually agreed between the parties.
Page 12
(2) If the Committed Data Rate applies in the aggregate to more than one
(3)CrossRoads® Service ports (an “Aggregate CDR”) as set forth in the Customer Order for
such ports, Customer’s usage of (3)CrossRoads® Service (both Send Traffic and Receive
Traffic) will be sampled every five (5) minutes for the previous five (5) minute period for each
such port. (At the end of the month, the top five percent (5%) of Send Traffic and Receive Traffic
samples shall be discarded for each port. The higher of the resulting 95th percentile
value for Send Traffic or Receive Traffic for each such port will be added together to determine
Customer’s aggregate usage and such aggregate usage will be compared to the Aggregate CDR. If such
aggregate usage is higher than the Aggregate CDR, Customer will, in addition to being billed for
the Aggregate CDR, be billed for any aggregate usage in excess of the Aggregate CDR at the
contracted for price per Megabit. Unless otherwise agreed in writing by the parties, Aggregate CDRs
apply only to the ports listed in the Customer Order. If Customer orders additional ports in a
separate subsequent Customer Order(s), the Aggregate CDR stated in the new Customer Order shall be
as stated therein for the ports set forth in such Customer Order. Alternatively, if Customer seeks
to have the ports previously subject to an Aggregate CDR also contribute to the Aggregate CDR set
forth in the new Customer Order(s), the new Customer Order(s) may provide for an increase in the
Aggregate CDR for all such ports.
(B) Destination Sensitive Billing charges for (3)CrossRoads® Service consist of three
(3) components: (a) a non-recurring installation charge per port; (b) a monthly recurring port
charge; and (c) monthly usage charges. Customer’s usage of (3)CrossRoads® Service (both
Send Traffic and Receive Traffic) will be measured and recorded by Level 3 every five minutes. At
the end of the month, the top five percent (5%) of the Send Traffic and Receive Traffic samples
will be discarded. If the ninety-fifth (95th) percentile Receive Traffic sample shows
(3)CrossRoads® Service usage greater than the usage shown in the ninety-fifth
(95th) percentile Send Traffic sample, then Customer will be billed for the amount of
(3)CrossRoads® Service usage shown in the ninety-fifth (95th) percentile sample for the
Receive Traffic. If the ninety-fifth (95th) percentile sample for the Send Traffic shows
(3)CrossRoads® Service usage greater than the usage shown in the ninety-fifth (95th)
percentile Receive Traffic sample, then the total Send Traffic will be categorized as Off-Net Send
Traffic, On-Net Send Traffic and On-Net Intracity Send Traffic, and Customer will be billed for the
usage shown in the ninety-fifth (95th) percentile sample for each category.
(C) Fixed Rate charges for (3)CrossRoads® Service consist of two (2) components: (a) a
non-recurring installation charge per port; and (b) a monthly recurring port charge.
5. IP Addresses and Domain Names. In the event that Level 3 assigns to Customer an IP
address as part of the provision of Service, such IP address shall (upon Level 3’s request and to
the extent permitted by law) revert to Level 3 after termination of the applicable Customer Order
for any reason whatsoever, and Customer shall cease using such address. At any time after such
termination, Level 3 may re-assign such address to another user. In the event that Level 3 obtains
for Customer a domain name (which may be required in some European jurisdictions), Customer shall
be the sole owner of such domain name. Customer shall be solely responsible for:
(A) paying any fees (including renewal fees) relating thereto;
(B) complying with any legal, technical, administrative, billing or other requirements
imposed by the relevant domain name registration authority;
(C) modifying such domain name in the event Customer changes service providers; and
(D) all third party claims (including claims for intellectual property infringement)
relating thereto, and Customer shall indemnify and hold Level 3 harmless from all such claims and expenses (including
legal fees and court costs) related thereto.
6. IP Fiber Extensions.
(A) Pursuant to a Customer Order submitted by Customer and accepted by Xxxxx 0, the parties
may agree that level 3 will provide Customer with an IP Fiber Extension as part of the local access
solution for any (3)CrossRoads® Service provided hereunder Level 3 will invoice
Customer, and Customer agrees to pay Xxxxx 0, the charges associated with any such IP Fiber
Extension as set forth in the applicable Customer Order. Unavailability or degradation of
(3)CrossRoads® Service caused by or attributable to IP Fiber Extensions shall be
considered Excused Outages. The foregoing notwithstanding, Level 3 will use commercially reasonable
efforts to respond to any such unavailability or degradation (on Level 3 Facilities) associated
with any IP Fiber Extension within four (4) hours after becoming aware of the same and shall use
commercially reasonable efforts to repair traffic-affecting discontinuity within twelve (12) hours
after Level 3’s representatives arrive at the problem site and have the ability to begin
uninterrupted repair activities.
(B) Level 3 shall have the right to supervise and control in a reasonable manner all
activities concerning any IP Fiber Extension provided hereunder, including, without limitation, all
Level 3 manholes/handholes. Any work required by Customer respecting any IP Fiber Extension
provided hereunder, including without limitation, (i) splicing the Customer fibers, and (ii)
interconnection between the Customer network and the Level 3 network, shall be undertaken only by
or (with Level 3’s consent) under the supervision of Level 3.
(C) Prior to delivery of any IP fiber Extension, Level 3 shall test the dark fiber
contained in such IP Fiber Extension in accordance with the then-current version of Level 3’s
interconnection policies and guidelines.
Page 13
7. Service Levels.
(A) Installation Service Level. Level 3 will exercise commercially reasonable efforts to install
any (3)CrossRoads® Service on or before the Customer Commit Date specified for the
particular (3)CrossRoads® Service. This Installation Service Level shall not apply to
Customer Orders that contain incorrect information supplied by Customer or Customer Orders that are
altered at Customer’s request after submission and acceptance by Level 3. In the event Xxxxx 0 does
not meet this Installation Service Level for a particular (3)CrossRoads® Service for reasons other
than an Excused Outage, Customer will be entitled to a service credit for each day of delay equal
to either (i) for (3)CrossRoads® Service billed on an Aggregate CDR basis, the charges
for one (1) day of the pro rata share of the monthly recurring charges (“MRC”) associated with the
Aggregate CDR for the affected (3)CrossRoads® Service port(s) (pro-rated based on the
number of total ports that contribute to such Aggregate CDR) or (ii) for (3)CrossRoads®
Service with any other manner of billing, the charges for one (1) day of the allocated port MRC for
the affected (3)CrossRoads® Service port(s), in each case up to a monthly maximum credit
of ten (10) days.
(B) Availability Service Level. The Availability Service Level for
(3)CrossRoads® Service is 99.98% for Standard (3)CrossRoads® Service and
99.99% for Protected (3)CrossRoads Service. Standard (3)CrossRoads® Service is considered
unavailable if the Primary Port is unable to send or receive traffic; Protected (3)CrossRoads®
Service is considered unavailable if both the Primary Port and the Backup Port are unable to send
or receive traffic. If credits are due under this Availability Service Level for a particular
unavailability event, Service credits will not be payable under Section 7(C) or 7(D) for the same
unavailability event.
In the event that (3)CrossRoads® Service becomes unavailable for reasons other than an Excused
Outage, Customer will be entitled to a service credit off of the greater of (i) the port MRC
(except for any (3)CrossRoads® Service billed on an Aggregate CDR basis) for the affected
(3)CrossRoads® Service port (if applicable), and (ii) the actual usage charges, if any, (calculated
on a Megabit basis at the contracted-for price per Megabit) associated with the affected
(3)CrossRoads® Service port for the particular month. Service credits, in each case, are based on
the cumulative unavailability of the affected (3)CrossRoads® Service port in a given calendar
month as set forth in the following table:
For Standard (3)CrossRoads® Service:
| Cumulative Unavailability | ||
| (in hrs. mins. secs.) | Service Level Credit | |
00:00:01
– 00:10:00 |
No Credit | |
00:10:01
– 00:45:00 |
5% | |
00:45:01
– 04:00:00 |
10% | |
04:00:01
– 08:00:00 |
20% | |
08:00.01
– 12:00:00 |
30% | |
12:00:01
– 16:00:00 |
40% | |
16:00:01
– 24:00:00 |
50% | |
24:00:01 or greater |
100% |
For Protected (3)CrossRoads® Service:
| Cumulative Unavailability | ||
| (in hrs. mins. secs.) | Service Level Credit | |
00:00.01
– 00:05:00 |
No Credit | |
00:05:01
– 00:45:00 |
15% | |
00:45:01
– 04:00:00 |
35% | |
04:00:01
– 08:00:00 |
50% | |
08:00.01
– 12.00:00 |
75% | |
12:00:01 or greater |
100% |
(C) Delay Service Level. The Delay Service Level for (3)CrossRoads® Service is as set forth in
the following table:
| Route | Delay Service Level | |
Intra–U.S.
|
25 ms | |
Intra–Europe
|
15 ms | |
London to New York, NY
|
40 ms |
The Delay Service Level is measured as an average one-way delay over a calendar month for
traffic on the Level 3 network between Gateways. Delay measurements may be obtained from the Level
3 website at xxx.xxxxx0.xxx. In the event of a delay in excess of the Service Levels set forth above
for reasons other than an Excused Outage, Customer will be entitled to receive a service credit off
of the greater of (i) the port MRC (except for any (3)CrossRoads® Service billed on an Aggregate
CDR basis) for the affected (3)CrossRoads® Service port (if applicable), and (ii) the actual usage
charges, if any, (calculated on a Megabit basis at the contracted for price per Megabit) associated
with the affected (3)CrossRoads® Service port for the particular month. Service credits, in each
case, are as set forth in the following table:
Page 14
| Amount of Delay in | ||
| Excess of Service Level | Service Level Credit | |
0.1 – 5 ms |
10% | |
5.1 – 10 ms |
20% | |
10.1 – 15 ms |
30% | |
15.1 – 20 ms |
40% | |
20.1 – 25 ms |
50% | |
25.1 ms or greater |
100% |
(D) Packet Delivery Service Level. The Packet Delivery Service Level for
(3)CrossRoads® Service is 99.95% for On-Net traffic between Gateways. Packet Delivery is the
average number of Internet Protocol (“IP”) packets of information that transit the Level 3 network
and are delivered by Xxxxx 0 to the intended On Net destination in a calendar month. Packet
Delivery measurements may be obtained from the Level 3 web site at xxx.xxxxx0.xxx. In the event
level 3 does not meet the Packet Delivery Service Level for reasons other than an Excused Outage or
as a result of any Off-Net Local Loop (whether provisioned by Customer or Level 3), Customer will
be entitled to receive a service credit off of the greater of (i) the port MRC (except for any
(3)CrossRoads® Service billed on an Aggregate CDR basis) for the affected (3)CrossRoads® Service
port (if applicable), and (ii) the actual usage charges, if any, (calculated on a Megabit basis at
the contracted-for price per Megabit) associated with the affected (3)CrossRoads® Service port (if
applicable) for the particular month. Service credits, in each case, are as set forth in the
following table:
| Packet Delivery | Service Level Credit | |
99.5 – 99.949% |
10% | |
99 – 99.49% |
20% | |
98 – 98.99% |
30% | |
97 – 97.99% |
40% | |
96 – 96.99% |
50% | |
95.99% or less |
100% |
8. Chronic Outage. Customer may elect to terminate an affected (3)CrossRoads® Service
prior to the end of the Service Term without termination liability if for reasons other than an
Excused Outage:
(1) For Protected (3)CrossRoads® Service, such Protected (3)CrossRoads® Service is
unavailable (as defined in Section 7(B) above) for four (4) or more separate occasions of more than
two (2) hours each OR for more than twenty four (24) hours in the aggregate in any calendar month;
or
(2) For Standard (3)CrossRoads® Service, such Standard (3)CrossRoads® Service is unavailable (as
defined in Section 7(B) above) for three (3) or more separate occasions of more than twelve (12)
hours each OR for more than forty two (42) hours in the aggregate in any calendar month.
Customer may only terminate such (3)CrossRoads® Service that is unavailable as described above, and
must exercise its right to terminate the affected (3)CrossRoads® Service under this Section, in
writing, within thirty (30) days after the event giving rise to a right of termination hereunder,
which termination will be effective as set forth by Customer in such notice of termination. Except
for any credits that have accrued pursuant to Section 7, this Section 8 sets forth the sole remedy
of Customer for chronic outages or interruptions of any (3)CrossRoads® Service.
9. Resale Restriction. Notwithstanding anything to the contrary in the
Agreement, Customer is prohibited from reselling any (3)CrossRoads® Service or any ports provided
pursuant to this Service Schedule to a third party without the express written consent of Level 3.
Page 15
