EXHIBIT 10.2
NOTE: PORTIONS OF THIS EXHIBIT (MARKED WITH AN ASKERISK) HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Agreement No. _________
CARRIER SERVICES AGREEMENT
THIS CARRIER SERVICES AGREEMENT (this "Agreement") is made as of
this 31st day of March, 2000 the ("Effective Date"), by and between
XXXXXXXX COMMUNICATIONS, INC., a Delaware corporation ("Xxxxxxxx"), and
CTC COMMUNICATIONS CORP., a Delaware corporation ("CTC").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Telecommunications Facilities and
Services Agreement entered into between the parties on even date herewith
(the "Master Agreement"), CTC and Xxxxxxxx have agreed to enter into this
Agreement under which CTC may order and purchase from Xxxxxxxx, and
Xxxxxxxx shall sell to CTC, telecommunications services over Xxxxxxxx'
network as hereafter described for the consideration and upon the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set forth
below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I tc "ARTICLE I " \l 5
EXHIBITS tc "EXHIBITS " \l 5
The following are attached hereto as Exhibits to this Agreement:
Exhibit A - Xxxxxxxx Network Pricing Schedule
Exhibit B - Xxxxxxxx Network Technical Specifications
Exhibit C - Xxxxxxxx' Current On-Net POPs
ARTICLE II tc "ARTICLE II " \l 5
DEFINITIONS tc "DEFINITIONS " \l 5
Where capitalized, the following words and phrases in this Agreement
shall be defined as follows:
"Actual Start Date" shall have the definition set forth in Section
5.5.
"Additional Charges" shall have the definition set forth in Section
8.1.
"Affiliate" means, with respect to any entity, any other entity
controlling, controlled by or under common control with such entity,
whether directly or indirectly through one or more intermediaries.
"Control" and its derivatives mean legal, beneficial or equitable
ownership, directly or indirectly, of more than fifty percent (50%) of the
outstanding voting capital stock (or other ownership interest, if not a
corporation) of an entity, or management or operational control over such
entity.
"Ancillary Services" shall have the definition set forth in Section
7.1.
"Balance" shall have the definition set forth in Section 8.1.
"Circuit" means a communications path with a specified bandwidth.
"Collocation Service" shall have the definition set forth in Section
3.3(b).
"CTC Equipment Inventory" shall have the definition set forth in
Section 12.1.
"CTC Facilities" shall have the definition set forth in Section
9.11.
"Due Date" shall have the definition set forth in Section 8.1.
"FCC" means the United States Federal Communications Commission and
any successor federal agency having jurisdiction over the provision of
telecommunications services.
"Initial Term" shall have the definition set forth in Article IV.
"Interim Agreement" means that certain Interim Carrier Services and
Provisioning Agreement previously entered into between the parties hereto
as of January 20, 2000.
"IRU Agreement" means that certain Dark Fiber IRU Agreement entered
into by and between the parties on even date herewith pursuant to the
Master Agreement.
"Local Access Services" shall have the definition set forth in
Section 6.1.
"Network Segment" means a portion of the Xxxxxxxx Network between
two (2) Xxxxxxxx POPs over which On-Net telecommunications services are
available and/or provided.
"On-Net" means a Circuit traversing the Xxxxxxxx Network between two
(2) Xxxxxxxx POPs.
"Outage" shall have the definition set forth in Section
9.1(a).
"Outage Credit" shall have the definition set forth in
Section 9.1(a).
"POPs" shall mean Xxxxxxxx' current designated On-Net
points of presence on the Xxxxxxxx Network as listed on
Exhibit C, as may be hereafter updated or changed from time to
time.
"Private Line Service" shall have the definition set forth in
Section 3.3(a).
"Proceedings" shall have the definition set forth in Section 12.9.
"Providers" shall have the definition set forth in Section 9.4.
"Renewal Term(s)" shall have the definition set forth in
Article IV.
"Representative(s)" shall have the definition set forth in Section
10.1.
"Requested Start Date" shall have the definition set forth in
Section 5.2.
"Restricted Fibers" shall have the definition set forth in Section
9.8.
"Service Order(s)" shall have the definition set forth in Section
5.1.
"Services" means the Private Line Services, Collocation Services,
Local Access Services and/or Ancillary Services, collectively.
"Start of Service Notice or "SOSN" shall have the definition set
forth in Section 5.5.
"Term" means the Initial Term and any Renewal Term(s) of this
Agreement as defined in Article IV.
"Transmission Sites" shall mean Xxxxxxxx' optical amplifier and
regenerator stations, or junctions, along the Route.
"Xxxxxxxx Network" means the telecommunications facilities owned
and/or operated by Xxxxxxxx which will be used to provide On-Net
Telecommunications Services to CTC hereunder.
ARTICLE III tc "ARTICLE III " \l 5
DESCRIPTION OF SERVICES AND PRICING tc "DESCRIPTION OF SERVICES AND
PRICING " \l 5
3.1 Interim Agreement. The parties acknowledge the Interim
Agreement and hereby agree that any Service Orders placed by CTC and
accepted by Xxxxxxxx under the terms thereof shall continue for the term
specified in such Service Orders and shall be subject to all terms and
conditions of this Agreement effective retroactively to the date such
Service Orders were accepted by Xxxxxxxx under the Interim Agreement. Any
Service Orders submitted by CTC under the Interim Agreement but not
accepted by Xxxxxxxx as of the Effective Date of this Agreement shall be
deemed submitted under the terms of this Agreement and subject to all
terms and conditions hereof. Notwithstanding the foregoing, the parties
acknowledge and agree that Collocation Service Orders submitted under the
Interim Agreement shall not be subject to this Agreement but rather shall
be governed by the terms of the IRU Agreement as specified in Exhibit K
thereof.
3.2 Additional Services. In addition to Interim Services, CTC
may order additional Services from Xxxxxxxx over any Network Segment of
the Xxxxxxxx Network on the terms and conditions set forth in this
Agreement and at Xxxxxxxx' rates agreed upon in the applicable Service
Order. The current Xxxxxxxx Network Pricing Schedule, which may be
changed from time to time during the Term of this Agreement, is attached
to this Agreement and incorporated herein by reference. All Services
ordered by CTC are subject to availability at the time of such order as
determined in Xxxxxxxx sole discretion. Xxxxxxxx shall use commercially
reasonable efforts to provide Services ordered by CTC upon mutually
agreeable terms and conditions. All Services described hereunder refer
only to On-Net Services unless otherwise specifically noted herein.
Availability of any off-net service requested by CTC shall be determined
on a case by case basis and the pricing, terms and conditions governing
the arrangement of such off-net services shall be those of the third party
provider of such services, which terms and conditions must be acceptable
to CTC and Xxxxxxxx. The general provisions of this Agreement, including
limitation of liability and indemnity, are applicable to Xxxxxxxx'
arrangement of any such off-net, third party provided services. The
"Monthly Recurring Charges" for any Services provided to CTC hereunder as
set forth and described in Exhibit A shall be payable within thirty (30)
days after receipt of Xxxxxxxx' invoice therefor. After the Actual Start
Date for any Services provided hereunder, Xxxxxxxx shall send an invoice
to CTC for the month in which the Actual Start Date occurs, as prorated
for the days remaining in such month after the Actual Start Date, and for
the calendar month following the month in which the Actual Start Date
occurs. Thereafter, Xxxxxxxx shall send monthly invoices for the above
charges in advance of each calendar month during the term of the
applicable Service Order. All "Non-Recurring Charges" described in
Exhibit A or otherwise under this Agreement applicable to said Services
shall be payable by CTC in accordance with the terms of Article VIII
below.
3.3 Description of Services. In addition to Local Access Services
and Ancillary Services, Services offered or to be offered under this
Agreement by Xxxxxxxx to CTC over the Xxxxxxxx Network include the
following:
(a) 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 CTC'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 B.
(b) Collocation Service: The parties acknowledge that pursuant to
the IRU Agreement, Xxxxxxxx has granted CTC collocation rights
in certain of Xxxxxxxx' POPs and Transmission Sites which IRU
Agreement shall control CTC's collocation of the covered
facilities. In the event CTC should desire to place CTC owned
(or leased) equipment in any other facility owned (or leased)
and operated by Xxxxxxxx for the purpose of interconnecting
CTC owned (or leased) equipment with the Xxxxxxxx Network
("Collocation Service"), CTC shall complete and execute a
collocate request using the form included in Exhibit K of the
IRU Agreement. Upon agreement between CTC and Xxxxxxxx of the
Collocation Services to be provided, the parties shall
complete a Collocation Service Order pursuant to said Exhibit
K. The terms and conditions relating to Collocation Service
and the forms required from CTC shall be as set forth in
Exhibit K of the IRU Agreement, which Exhibit is hereby
incorporated herein by reference.
Other On-Net telecommunications services also provided over
the Xxxxxxxx Network include, without limitation, asynchronous
transfer mode service, frame relay services and optical wave
services. In the event that CTC desires to order any such
services from Xxxxxxxx after the date of this Agreement, the
parties shall enter into a separate agreement or addendum to
this Agreement under which such services may be ordered by CTC
upon mutually agreeable terms and conditions.
ARTICLE IV tc "ARTICLE IV " \l 5
EFFECTIVE DATE AND TERM tc "EFFECTIVE DATE AND TERM " \l 5
This Agreement shall be effective on the Effective Date and shall
continue for an initial term of five (5) years (the "Initial Term").
Thereafter, this Agreement shall automatically renew for successive one-year
periods (the "Renewal Term(s)") (the Initial Term and Renewal Term(s)
collectively referred to herein as the "Term") unless canceled by either
party by giving written notice of such cancellation not less than sixty (60)
days before the end of the Initial Term or then current Renewal Term.
Notwithstanding the foregoing, the term applicable to specific Services
ordered by CTC hereunder shall be specified in each Service Order. Unless
CTC is in default beyond any applicable cure period, any Services being
provided at the time of termination of this Agreement shall continue until
expiration of the term specified in the applicable Service Order upon the
terms and conditions of this Agreement; provided, however, that CTC may not
order any new Services until CTC and Xxxxxxxx have entered into a new
agreement or mutually agreed in writing to extend this Agreement. The
charges for any Services during any such extension shall be as agreed in the
applicable Service Orders.
ARTICLE V tc "ARTICLE V " \l 5
SERVICE ORDERS AND PROVISIONING OF CIRCUITS tc "SERVICE ORDERS AND
PROVISIONING OF CIRCUITS " \l 5
5.1 Services shall be requested by CTC on Xxxxxxxx' service order
forms in effect from time to time or on CTC's forms if approved in advance
by Xxxxxxxx, which approval shall not be unreasonably withheld or delayed
("Service Order(s)"). Each Service Order shall reference this Agreement
and the Agreement number set forth at the top of page 1. Xxxxxxxx'
acceptance of a submitted Service Order shall be indicated by either the
signature of an authorized representative of Xxxxxxxx' Customer Care
Department or by CTC's receipt of Xxxxxxxx' standard "Order Confirmation
Document" via Internet electronic mail. Xxxxxxxx reserves the right not
to accept a Service Order under this Agreement at any time, but agrees
that it will make commercially reasonable efforts to expedite the
processing of Service Orders submitted by CTC. Unless otherwise provided
herein or in the IRU Agreement, in the event Xxxxxxxx has not accepted or
rejected a Service Order submitted by CTC hereunder within fifteen (15)
days after its receipt thereof from CTC, Xxxxxxxx shall be deemed to have
rejected the Service Order.
5.2 When CTC submits a Service Order, CTC will indicate a
requested start date for the Services being ordered, the desired term of
such Services, the type of Services requested, the Network Segments over
which such Services are requested, the applicable bandwidth and any other
information necessary for Xxxxxxxx to provide the Service. The requested
start date specified in any Service Order accepted by Xxxxxxxx is referred
to herein as the "Requested Start Date". Xxxxxxxx will make reasonable
efforts to meet CTC's Requested Start Date. In the event that a Requested
Start Date is altered, CTC's Requested Start Date will be changed to
reflect the number of days of delay or advance, as appropriate.
5.3 This Agreement shall apply to all Services provided by
Xxxxxxxx to CTC during the Term hereof and during the term of any Service
Order previously submitted under the Interim Agreement, whether submitted
and/or accepted pursuant to the Interim Agreement, Service Orders
hereunder or otherwise. All Service Orders accepted by Xxxxxxxx under the
Interim Agreement shall continue hereunder for the term specified in such
Service Orders.
5.4 Xxxxxxxx' standard service implementation interval for
Services provided on the Xxxxxxxx Network after acceptance of a Service
Order by Xxxxxxxx' Customer Care Department is thirty (30) days for POP to
POP DS-1 and DS-3 services, forty-five (45) days for DS-1 and DS-3
services which are ordered in connection with Local Access Services,
forty-five (45) days for POP to POP OC-3 and OC-12 services and ninety
(90) days for POP to POP OC-3 and OC-12 services which are ordered in
connection with Local Access Services, with all other Services determined
on a case-by-case basis. The above-described standard intervals refer
only to services provided by Xxxxxxxx and not to any Local Access Services
ordered in connection therewith. The standard service implementation
interval for Services provided by a third party (e.g. Local Access
Services) and either partially or wholly off of the Xxxxxxxx Network shall
be determined on an individual case basis and approved by CTC. Xxxxxxxx
shall make reasonable efforts to provide the Services within its standard
service implementation interval or on CTC's Requested Start Date. Failure
of Xxxxxxxx to deliver by such dates shall not constitute a default under
this Agreement and Xxxxxxxx shall not be liable to pay to CTC any
penalties or damages for such failure; provided that CTC shall have the
right to terminate the applicable Service Order during the period of any
such delay.
5.5 Services shall begin on the date Xxxxxxxx issues notice that
Services previously ordered under a Service Order are available (the
"Start of Service Notice" or "SOSN"), indicating that the Service has been
tested by Xxxxxxxx in accordance with the procedures set forth in Exhibit
B attached hereto and that the Service meets or exceeds the applicable
technical specifications set forth in Exhibit B (the "Actual Start Date").
If CTC fails to give written notice that the Service is in material non-
compliance with the applicable technical specifications within ten (10)
calendar days after Xxxxxxxx issues the SOSN, CTC shall be deemed to have
accepted such Service and Xxxxxxxx shall begin billing for the Service as
of the Actual Start Date. In the event CTC notifies Xxxxxxxx within the
above 10-calendar day period that a particular Service does not comply
with the applicable technical specifications, Xxxxxxxx shall expeditiously
take such action reasonably necessary to correct such non-compliance.
5.6 The parties may mutually agree to change the Requested Start
Date of a Service Order. In addition, CTC may request a delay in the
Actual Start Date of a Service Order provided that (i) it provides
Xxxxxxxx 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 or mutually agreed
upon changed Requested Start Date.
5.7 Unless acknowledged by Xxxxxxxx as described in the following
sentence, any conflicting, different or additional terms and conditions
contained in CTC's acknowledgment of a Service Order or elsewhere are
objected to by Xxxxxxxx and shall not constitute part of this Agreement.
Unless contained in an amended Service Order signed by an authorized
representative of Xxxxxxxx or in a Xxxxxxxx "Order Confirmation Document"
sent to CTC via Internet electronic mail, no action by Xxxxxxxx
(including, without limitation, provision of Services pursuant to such
Service Order) shall be construed as binding or estopping Xxxxxxxx with
respect to such term or condition.
5.8 Once the Actual Start Date for any ordered Services has passed
and CTC has accepted such Services, so long as such Services are actually
available for use by CTC, CTC must pay for the Services as indicated on
the Service Order through the term indicated on such Service Order and in
accordance with all applicable provisions of this Agreement, regardless of
whether CTC is actually using such Services.
ARTICLE VI tc "ARTICLE VI " \x 0
XXXXX XXXXXX SERVICES tc "LOCAL ACCESS SERVICES " \l 5
6.1 Unless the parties otherwise agree pursuant to Section 6.3
below, upon the written request of CTC, Xxxxxxxx shall obtain "Local
Access Services" for CTC, which are defined as the telecommunications
facilities connecting a CTC-designated termination point to a Xxxxxxxx
POP. CTC shall execute a Letter of Agency, on such form as provided by
Xxxxxxxx in form and substance reasonably acceptable to CTC, authorizing
Xxxxxxxx to interact directly with the local access provider(s) to obtain
the Local Access Services. CTC shall have the right to review and approve
the agreement(s) entered into with such provider(s). CTC shall be
responsible for all CTC-approved charges, including without limitation,
monthly charges, usage charges, installation charges, non-recurring
charges, or applicable termination/cancellation liabilities, of the Local
Access provider(s).
6.2 In obtaining Local Access Services, Xxxxxxxx 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. Xxxxxxxx will coordinate the installation of the
Local Access Services with the interexchange Service being provided by
Xxxxxxxx. Charges to CTC for Local Access Service administered by
Xxxxxxxx on behalf of CTC shall be billed to CTC 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 rate
changes will be passed through to CTC. CTC may request termination of any
particular Local Access Service in which case CTC shall be solely
responsible for any termination or other fees or charges associated with
such termination.
6.3 CTC may order any Local Access Services directly from
providers which are then currently certified by Xxxxxxxx with respect to
the affected Xxxxxxxx' POP upon obtaining Xxxxxxxx' prior approval, which
approval shall not be unreasonably withheld or delayed and shall be
evidenced by Xxxxxxxx' issuance of an LOA/CFA to CTC. CTC may not order
Local Access Services from any provider which is not certified for the
affected Xxxxxxxx' POP without the prior written consent of Xxxxxxxx,
which consent may be withheld in Xxxxxxxx' sole and absolute discretion.
In such event, CTC shall be the customer of record and shall be billed
directly by the provider of such services and Xxxxxxxx shall not be
responsible for billing any such charges. If CTC orders its own Local
Access Services, CTC shall be responsible for ensuring that such services
are turned up at the same time as the Services being provided by Xxxxxxxx.
In the event the CTC-ordered Local Access Services are not ready at such
time as the Services being provided by Xxxxxxxx, Xxxxxxxx shall
nevertheless have the right to begin billing for such Services as of the
Actual Start Date and CTC shall be liable for payment for such Services as
of such date.
ARTICLE VII tc "ARTICLE VII " \l 5
ANCILLARY SERVICES AND CHARGES tc "ANCILLARY SERVICES AND CHARGES " \l 5
7.1 Xxxxxxxx may provide extraordinary service to CTC for reasons
including but not limited to: (a) CTC's request to expedite Service
availability to a date earlier than Xxxxxxxx' published installation
interval or a previously accepted Requested Start Date; (b) Service
redesign or other activity occasioned by receipt of inaccurate information
from CTC; (c) reinstallation charges following any suspension of the
Service for cause by Xxxxxxxx; (d) CTC's request for use of routes or
facilities other than those selected by Xxxxxxxx for provision of the
Service; and (e) other circumstances in which extraordinary costs and
expenses are generated by CTC and reasonably incurred by Xxxxxxxx
(services under this subsection are collectively referred to herein as
"Ancillary Services"). CTC shall be liable for all charges for any
Ancillary Services provided by Xxxxxxxx, which charges shall be specified
on the applicable Service Order.
7.2 Subject to Section 5.6, if CTC desires to change the Requested
Start Date of a Service Order, other than a request to expedite Services
as set forth above, CTC may be charged a change of service date charge.
Such charge will not apply to CTC's first change request, as long as such
request is made more than fifteen (15) business days prior to the original
Requested Start Date or is a mutually agreed upon changed Requested Start
Date. If CTC requests a second change, or such change is requested less
than fifteen (15) days prior to the original Requested Start Date or
mutually agreed upon changed Requested Start Date, as applicable, CTC will
be charged Xxxxxxxx' then applicable change of service date charge. CTC
will also be charged for any costs actually incurred by Xxxxxxxx from
third party providers solely as a result of CTC's request for a change of
service date.
7.3 If CTC 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, Xxxxxxxx may impose and CTC shall pay a
reasonable change of Service Order charge. No charge will be imposed if
the change is administrative in nature (i.e., billing address, contact
information, etc.) unless the administrative change relates to Local
Access Services for which Xxxxxxxx is acting as agent and Xxxxxxxx
actually incurs charges from the Local Access Services Provider that are
solely a result of such change.
7.4 If CTC requests a change to Services after such Services have
been installed, Xxxxxxxx may impose and CTC shall pay a reasonable change
of service charge. If such change of Service is administrative in nature
(i.e., billing address, contact information, etc.), a change of service
charge will not be imposed unless such administrative change applies to
Local Access Services which have been ordered by Xxxxxxxx as agent for CTC
and Xxxxxxxx actually incurs charges from the Local Access Services
provider that are solely a result of such change. In addition to the
change of Service charge, CTC will be responsible for any reasonable
charges due to re-engineering which is required solely as a result of
CTC's request for a change of Service.
7.5 If CTC desires to cancel a Service Order prior to installation
and acceptance of the Service, Xxxxxxxx may impose and CTC will pay a
reasonable cancellation charge. In addition to such cancellation charge,
CTC will be required to reimburse Xxxxxxxx for any reasonable cancellation
charges relating to Local Access Services or off-net service for which
Xxxxxxxx is acting as agent and Xxxxxxxx actually incurs charges from the
Local Access Services Provider that are solely a result of such change.
7.6 All charges referred to in this Article VII shall be
established as of Xxxxxxxx' acceptance of the Service Order to which they
apply and shall be specified in the Service Order.
ARTICLE VIII tc "ARTICLE VIII " \l 5
PAYMENT TERMS tc "PAYMENT TERMS " \l 5
8.1 Due Date and Invoice. Recurring monthly charges for Services
are due and payable by CTC in accordance with the terms of Section 3.2.
All other amounts due under this Agreement shall be reflected on invoices
sent by Xxxxxxxx to CTC no more frequently than monthly. All amounts set
forth on each such invoice shall be due within thirty (30) days after
CTC's receipt of the invoice (the "Due Date"). CTC agrees to remit
payment to Xxxxxxxx at the remittance address set forth in Section 12.2.
In the event CTC fails to make full payment of any amounts due, including
any prior late fees (the "Balance") to the proper address on or before the
Due Date, CTC shall also pay a late fee in the amount of the lesser of one
and one-half percent (1.5%) of the unpaid Balance per month or the maximum
lawful interest rate under applicable state law which shall accrue from
the Due Date. CTC 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 Xxxxxxxx), whether charged to or against Xxxxxxxx, its suppliers or
affiliates or CTC associated with the Service, Local Access Service or
Ancillary Service provided to CTC ("Additional Charges"). Such Additional
Charges shall be paid by CTC in addition to all other charges provided for
herein.
8.2 Payment Disputes. If CTC in good faith disputes any portion
of an invoice, it shall provide written notice to Xxxxxxxx of the billing
dispute within thirty (30) days after receipt of the invoice. Such notice
must include documentation substantiating the dispute. Upon receipt of
any such notice from CTC, CTC and Xxxxxxxx shall attempt in good faith to
resolve any legitimate dispute arising out of or relating to any monetary
obligation under this Agreement promptly and as expeditiously as possible
by negotiations between a Vice President of CTC or his or her designated
representative with sufficient authority to negotiate a resolution of the
dispute for CTC and an executive with similar authority from Xxxxxxxx. In
the event the amount in dispute is in excess of Twenty-five Thousand and
No/100 Dollars ($25,000.00) and is not resolved on or before its actual
due date hereunder, then the amount in dispute shall be deposited by CTC
with an escrow agent mutually acceptable to the parties who shall hold
said sum along with all interest earned thereon, in escrow, pending
resolution of the dispute hereunder and shall distribute said sums in
accordance with the resolution of the parties under this Section 8.2 or
the decision of the arbitrator under Section 12.13. All other payments
shall be paid by CTC in accordance with the due date set forth herein
regardless of any pending dispute hereunder. Within twenty (20) days
after delivery of notice of a billing dispute as described above, the
designated executives shall meet at a mutually acceptable time and place,
and thereafter as often as they reasonably deem necessary to exchange
information and to attempt to resolve the dispute. If the matter has not
been resolved within thirty (30) days after the first meeting, either CTC
or Xxxxxxxx may demand arbitration in accordance with the provisions of
Section 12.13 below. To the extent any payment dispute described
hereunder is resolved in favor of a party, whether pursuant to the
provisions of this Section or pursuant to arbitration, the escrow agent
shall pay all amounts previously placed in escrow under this Section to
the prevailing party with the other party paying interest at the prime
rate on such amount less, however, any interest earned (net of any account
charges) thereon while in escrow and distributed to the prevailing party.
For purposes of this Section 8.2, the "prime rate" shall mean the variable
rate of interest published in the Money Rates Section of The Wall Street
Journal as the prime rate on corporate loans at large United States money
center commercial banks. All negotiations conducted pursuant to Section
8.2 shall be confidential.
8.3 Suspension of Service.
(a) In the event payment of all amounts not disputed by CTC within
the time limit and in accordance with the terms of Section 8.2
is not received in full from CTC on or before sixty (60) days
following the date of CTC's receipt of any invoice or the due
date for Monthly Recurring Charges, then, in addition to any
and all other rights and remedies of Xxxxxxxx hereunder,
Xxxxxxxx shall have the right to suspend all or any portion of
the Services provided hereunder to CTC. Xxxxxxxx shall
exercise this suspension right by providing CTC with a minimum
of fifteen (15) days' prior written notice specifying the past
due amount, identifying the Services to be suspended and
specifying the date on which such suspension shall occur. If
Xxxxxxxx receives the entire specified past due amount,
including applicable late fees and Additional Charges, prior
to the suspension date specified in the above notice, then
CTC's Service shall not be suspended.
(b) If only a portion of the Services is initially suspended
pursuant to Xxxxxxxx' written notice, and CTC fails to pay the
specified past due amount within an additional fifteen (15)
days after the partial suspension of Service, then after the
additional fifteen (15) day period, Xxxxxxxx may suspend all or
any additional portion of the Services provided hereunder to
CTC with no additional written notice. Further, after the
additional fifteen (15) day period, Xxxxxxxx may continue
suspension until such time as CTC has paid in full all charges
then due including any late fees as specified herein.
Following such payment, Xxxxxxxx shall immediately reinstate
the suspended Services subject to Xxxxxxxx' Right to Assurance
as provided in Section 8.4 below.
(c) In addition to the nonpayment of any sum due hereunder,
Xxxxxxxx may immediately suspend any Services provided
hereunder in whole or part if Xxxxxxxx determines that such
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 FCC or other governing
body makes Xxxxxxxx' performance commercially impracticable.
(d) Subject to the provisions of Section 8.2, suspension of any
Services under Subsections (a) and (b) of this Section shall
not affect CTC's obligation to pay for the suspended Services
during the period of suspension in the event of subsequent
reinstatement under the terms hereof.
8.4 Xxxxxxxx' Right to Assurance.
(a) If at any time there is a material adverse change in CTC's
creditworthiness, as hereafter defined, then in addition to
any other remedies available to Xxxxxxxx under this Agreement
or applicable law, Xxxxxxxx may elect, in its sole discretion,
to demand reasonable assurance of payment from CTC. A
"material adverse change in CTC's creditworthiness" shall
include, but not be limited to: (a) CTC's default beyond any
applicable cure period of its obligations to Xxxxxxxx under
this Agreement, the Master Agreement or any other agreement
with Xxxxxxxx; or (b) CTC's being subject to or having filed
for bankruptcy or insolvency proceedings (which proceedings
are not dismissed within sixty (60) days) or the legal
insolvency of CTC. If CTC's financial statements are not
public information, upon Xxxxxxxx' demand for reasonable
assurance of payment, CTC shall provide Xxxxxxxx with copies
of its most recent financial statements. After receipt and
review of CTC's financial information, Xxxxxxxx may require a
reasonable deposit or other means mutually agreed to by the
parties to establish reasonable assurance of payment. All
financial or other information provided by CTC to Xxxxxxxx
under this Section shall be subject to the confidentiality
requirements of Article X of this Agreement.
(b) If CTC has not provided Xxxxxxxx with its financial
information and with reassurance reasonably satisfactory to
Xxxxxxxx within thirty (30) days of Xxxxxxxx' notice of demand
for reassurance, then, in addition to any other remedies
available to Xxxxxxxx, Xxxxxxxx shall have the option, in its
sole discretion, to exercise one or more of the following
remedies: (i) cause the start of any Services described
hereunder or in a previously executed Service Order to be
delayed pending reasonably satisfactory reassurance; or (ii)
decline to accept a Service Order or other requests from CTC
to provide Services hereunder pending reasonably satisfactory
reassurance as described in (a) above.
8.5 Credit. As may be determined by Xxxxxxxx, if the financial
condition or payment history of CTC is determined by Xxxxxxxx to be
unacceptable, Xxxxxxxx may require CTC to post a deposit or irrevocable
letter of credit, at Xxxxxxxx' option, to secure CTC's payment for the
term of this Agreement. Should Xxxxxxxx determine that a deposit or
irrevocable letter of credit is necessary, CTC and Xxxxxxxx will execute a
reasonably appropriate credit or deposit agreement in form and substance
reasonably acceptable to CTC. Should CTC fail to post such deposit or
letter of credit or fail to execute such agreement within fifteen (15)
days after Xxxxxxxx' notice of such requirement, or should CTC fail to
abide by the terms of any credit or deposit agreement, CTC shall be deemed
to be in default of this Agreement and, upon CTC's continued failure to
post such deposit or letter of credit within ten (10) days after notice of
such failure from Xxxxxxxx, Xxxxxxxx may terminate this Agreement in
accordance with Section 9.7 below.
8.6 Taxes. If any sales taxes, valued added taxes or similar
charges or impositions are asserted against Xxxxxxxx after, or as a result
of, CTC's use of any of the Services 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, CTC shall be solely responsible for such taxes, charges or
impositions attributable to the Services provided hereunder. CTC agrees
to pay any such taxes, charges or impositions and hold Xxxxxxxx harmless
from any liability or expense associated with such taxes, charges or
impositions.
8.8 Adjustments. Xxxxxxxx may correct billing errors for a period
of twelve (12) months after the Due Date of an invoice, or twelve (12)
months after the date a Service is rendered, whichever is later. Xxxxxxxx
shall correct errors within such periods brought to its attention by CTC.
Disputed items shall be subject to Section 8.2.
ARTICLE IX tc "ARTICLE IX " \l 5
GENERAL AGREEMENT tc "GENERAL AGREEMENT " \l 5
9.1 Outage Credits.
(a) CTC acknowledges the possibility of an unscheduled, continuous
and/or interrupted period of time when a Service or Services
provided hereunder become "unavailable" (as defined in the
technical specifications attached hereto as Exhibit B) for a
continuous period of two (2) hours (an "Outage"). The Outage
shall begin upon the earlier of Xxxxxxxx' actual knowledge of
the Outage or Xxxxxxxx' receipt of notice from CTC of the
Outage. In the event of an Outage, CTC shall be entitled to a
credit (the "Outage Credit") for Private Line Service and
Collocation Service in the amount of 1/720 of the monthly
recurring charge for the interexchange portion of the Service
for each hour of the Outage in excess of the first two (2)
consecutive hours that the affected Service fails to conform
to the Technical Specifications.
(b) CTC shall not receive an Outage Credit if the interruptions
are (i) of a duration of less than two (2) consecutive hours,
(ii) directly caused by CTC or others authorized by CTC to use
the Services under this Agreement, (iii) due to the failure of
power, facilities, equipment, systems or connections not
provided by or under the control of Xxxxxxxx, (iv) caused by
the failure of Local Access to Xxxxxxxx' fiber optic network,
or (v) due to a Force Majeure event as defined in Section 9.6
of this Agreement.
(c) In the event Xxxxxxxx in good faith objects to a request for
an Outage Credit submitted by CTC under Section 9.1(a) within
thirty (30) days after Xxxxxxxx' receipt of such notice, then
the parties shall make a good faith effort to resolve the
dispute as expeditiously as possible. If Xxxxxxxx does not
object within such thirty (30) day period or upon Xxxxxxxx'
waiver of such objection, then CTC may credit the amount of
such Outage Credit against CTC's next monthly payment for the
affected Service or against other payments due hereunder if
the affected Service has expired or been terminated under the
terms hereof prior to CTC's application of the Outage Credit
under this Subsection. If there are no further payments due
hereunder for the affected Service or otherwise, then CTC
shall be entitled to a refund in the amount of the Outage
Credit.
(d) Unless caused or contributed to by the intentional misconduct
of Xxxxxxxx, the Outage Credit under this Section shall be the
sole and exclusive remedy of CTC in the event of any Outage
and under no circumstances shall an Outage be deemed a default
under this Agreement.
9.2 WARRANTY AND DISCLAIMER OF WARRANTY. XXXXXXXX WARRANTS THAT
ALL SERVICES SHALL BE PROVIDED TO CTC IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT AND THE APPLICABLE TECHNICAL SPECIFICATIONS SET FORTH IN EXHIBIT
X. XXXXXXXX SHALL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY ANY
DELAYS, INTERRUPTIONS, OMISSIONS, MISTAKES, ACCIDENTS OR ERRORS IN THE
SERVICES AND RESTORE SUCH SERVICES IN AS EXPEDITIOUSLY AS POSSIBLE 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, ALL OF WHICH ARE
HEREBY EXPRESSLY DISCLAIMED. THE OUTAGE CREDITS REMEDY PROVIDED TO
CUSTOMER AS SET FORTH IN SECTION 9.1 IS THE SOLE AND EXCLUSIVE REMEDY
PROVIDED TO CUSTOMER AND IS IN LIEU OF ALL OTHER REMEDIES, REGARDLESS OF
WHETHER THIS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
9.3 LIMITATION OF LIABILITY. UNLESS CAUSED OR CONTRIBUTED BY THE
INTENTIONAL MISCONDUCT OF XXXXXXXX, IN THE EVENT OF ANY BREACH OF THIS
AGREEMENT OR ANY FAILURE OF THE SERVICES WHATSOEVER, NO PROVIDER (AS
DEFINED IN SECTION 9.4) SHALL BE LIABLE FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR
ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, EVEN IF THE PROVIDER
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
9.4 CTC Content and Indemnity. CTC shall indemnify and hold
Providers (as defined below) harmless 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 Xxxxxxxx' network
including, but not limited to, claims, actual or alleged, relating to any
violation of copyright law, export control laws, failure to meet
governmental 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 Xxxxxxxx
and its parent, subsidiary and affiliated companies, shareholders,
directors, officers, employees and agents, or any third party or
affiliated provider, operator or maintenance/repair contractor of
facilities employed in connection with the provision of Services under
this Agreement. Xxxxxxxx may terminate or restrict any transmissions over
the Xxxxxxxx Network if, in its judgment, such actions are reasonably
appropriate to avoid violation of applicable law. CTC agrees not to use
any Services provided hereunder for any unlawful purpose, including
without limitation any use which constitutes or may constitute a violation
of any local, state or federal obscenity law.
9.5 General Indemnity.
(a) CTC and Xxxxxxxx shall defend, indemnify and hold the other
harmless 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 (whether
simple or gross negligence) or willful misconduct of the
respective indemnifying party, its employees, agents, or
contractors in connection with the provision or use of any of
the Services or other performance hereunder.
(b) With respect to third parties authorized by CTC to use the
Services provided hereunder, CTC shall defend, indemnify and
hold Providers harmless against any claims by such third
parties for damages arising or resulting from any defect in,
failure to provide or interruption or Outage of any of the
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.
9.6 Force Majeure. Neither Xxxxxxxx nor CTC shall be in default
under this Agreement with respect to any delay in its performance (other
than a failure to make payments when due) caused by any of the following
conditions (each a "Force Majeure Event"): (a) act of God; (b) fire; (c)
flood; (d) material shortage or unavailability not resulting from the
responsible party's failure to timely place orders or take other necessary
actions therefor; (e) government codes, ordinances, laws, rules,
regulations, or restrictions not resulting from the responsible party's
failure to abide by such government codes ordinances, laws, rules,
regulations or restrictions; (f) war or civil disorder; or (g) any other
cause beyond the reasonable control of such party. The party claiming
relief under this Article shall promptly notify the other in writing of
the existence of the Force Majeure Event relied on and the cessation or
termination of the Force Majeure Event. The party claiming relief under
this Article shall exercise commercially reasonable efforts to minimize
the time for any such delay.
9.7 Events of Default. Either party may terminate this Agreement
and/or any Service provided hereunder if the other is in default of any
material obligation contained herein or in the Master Agreement, which
default has not been cured within thirty (30) days (or ten (10) days with
respect to monetary defaults) following the receipt of notice of such
default setting forth the specifics of such default ("Event of Default");
provided that where a non-monetary default cannot be cured within such
thirty (30) day period, the period of time shall be extended for up to
ninety (90) days as required for the defaulting party to cure the same on
condition that the defaulting party commence curing within such thirty
(30) day period and thereafter prosecute such curing with due diligence to
completion. Upon an Event of Default by CTC, Xxxxxxxx may, in addition to
any other rights granted under this Agreement: (a) terminate this
Agreement and/or any Services provided hereunder; and/or (b) subject to
the provisions of Section 8.2 and Section 13.13, pursue any other remedies
it may have under applicable law or principles of equity relating to such
breach. Upon an Event of Default by Xxxxxxxx, CTC may terminate this
Agreement and/or any Services provided hereunder. Except as otherwise
provided herein, termination and receipt of any applicable refund are
CTC's sole remedies in the event of an Event of Default by Xxxxxxxx.
Notwithstanding the foregoing provisions of this
Section, neither party shall exercise any of the remedies
described in the preceding paragraph until after it has
notified the other party of its intent to do so and invited
discussions between Vice Presidents of each party to discuss
such other party's default(s). Such Vice Presidents shall
meet within thirty (30) days after receipt of the non-
defaulting party's notice to discuss the status of the
default(s), the reason(s) for the default(s), and possible
efforts that could be undertaken to resolve the problems in a
manner agreeable to the non-defaulting party. If such Vice
Presidents cannot agree upon a mutually agreeable plan to
address the default(s), or if the defaulting party does not
respond to the non-defaulting party's invitation to meet or
fails to meet with the non-defaulting party within the above
30-day period, then the non-defaulting party may exercise any
or all remedies set forth in the preceding paragraph without
further notice to the defaulting party. Nothing in this
paragraph shall obligate the non-defaulting party to waive any
default of the other party hereunder or any rights or remedies
it may have under this Agreement. The non-defaulting party
shall have no obligation under this paragraph if, after any
meeting described hereunder, the default continues and the
defaulting party fails to take the action agreed upon at the
meeting, or upon the subsequent default by the defaulting
party related to the initial default(s) for which the meeting
was held (which is not cured within any applicable cure
period) within the twelve (12) month period following any
meeting described in this paragraph. All negotiations
conducted pursuant to this Section shall be confidential.
Notwithstanding the foregoing, this paragraph shall not
prevent a party from immediately seeking injunctive relief to
prevent perceived irreparable harm and shall not apply to any
such action.
9.8 Use of Services. Xxxxxxxx' obligation to provide Services
hereunder is subject to the following conditions: (a) no Services shall
be used for any unlawful purpose; and (b) at least ten percent (10%) of
the transmissions shall be interstate transmissions. Xxxxxxxx represents
that this 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 CTC's use of
Services may be intended for transmission upon a portion of the Xxxxxxxx
Network with respect to which Xxxxxxxx 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 Xxxxxxxx, prior to Xxxxxxxx' acceptance of
a Service Order submitted by CTC, CTC agrees within one (1) business day
to identify the nature of its proposed use of the Service so as to permit
Xxxxxxxx to determine whether the Service may be carried over the
Restricted Fiber. The fact that Xxxxxxxx may not utilize the Restricted
Fiber for such transmissions shall not affect Xxxxxxxx' obligation to
provide Services hereunder.
9.9 Intrastate Interexchange Services. CTC may use any
interexchange Service provided under this Agreement only if such
interexchange Service is used for carrying at least ten percent (10%) of
interstate telecommunications (i.e., telecommunications subject to the
jurisdiction of the FCC). Xxxxxxxx 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 CTC represents in writing that such interexchange Service or
Circuits shall be used to carry at least ten percent (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 Xxxxxxxx or its
affiliates pursuant to applicable state laws, regulations and applicable
tariffs, or Xxxxxxxx and its affiliates may discontinue provision of the
affected interexchange Service or Circuit.
9.10 Tariff. Based on CTC's representation to Xxxxxxxx that CTC is
a telecommunications carrier, to the best of Xxxxxxxx' knowledge, this
Agreement is not subject to and does not require the filling of a tariff
with the FCC, because this 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 under applicable law or regulation, this Agreement is or
becomes subject to a requirement of an FCC tariff, or if Xxxxxxxx has or
decides to file a tariff that covers some or all of the services provided
hereunder, then Xxxxxxxx will file a contract tariff with the FCC
incorporating all of the material terms and conditions of this Agreement,
including pricing, and the parties agree to abide by that contract tariff.
No such tariff filed by Xxxxxxxx shall be inconsistent with or modify the
terms of this Agreement unless agreed to in writing between the parties.
9.11 CTC Responsibilities. CTC has sole responsibility for
installation, testing and operation of facilities, services and equipment
other than those specifically provided by or arranged for by Xxxxxxxx
under specific Service Orders ("CTC Facilities"). So long as Xxxxxxxx
does not cause any delay in installation or testing of any CTC Facilities,
then any untimely installation or non-operation of CTC Facilities shall
not relieve CTC of its obligation to pay all charges hereunder for the
Services after the Actual Start Date of such Services determined under
Section 5.5.
During the Term of this Agreement, CTC shall provide Xxxxxxxx, on no
more frequent than an annual basis, a universal service exemption
certificate within ninety (90) days after CTC's filing of the universal
service filing made with the appropriate federal agency evidencing that
CTC is required to contribute to the federal Universal Service Fund. CTC
agrees that failure to provide such an exemption shall authorize Xxxxxxxx
to begin billing CTC prospectively for Universal Service Fund
contributions pursuant to the applicable contribution factor (revised
quarterly), plus an administrative charge of one percent (1%) of such
contributions.
ARTICLE X tc "ARTICLE X"
CONFIDENTIALITY
10.1 Confidentiality Obligation. If either party provides
confidential information to the other or, if in the course of performing
under this Agreement or negotiating this Agreement a party learns
confidential information regarding the facilities or plans of the other,
the receiving party shall (a) protect the confidential information from
disclosure to third parties with the same degree of care accorded its own
confidential and proprietary information, but in any case with at least
reasonable care and (b) refrain from using such confidential information
except in negotiating or performing under this Agreement. Notwithstanding
the above, a party may provide such confidential information to its
directors, officers, members, managers, employees, agents, contractors and
consultants (collectively, "Representatives"), Affiliates, financial
institutions, underlying facility owners, potential assignees of this
Agreement (which potential assignees are bound under a separate agreement
with the disclosing party restricting the use of confidential
information), and Representatives of Affiliates, in each case whose access
is reasonably necessary. Each such recipient of confidential information
shall be informed by the party disclosing confidential information of its
confidential nature, and shall be directed to treat such information
confidentially and shall agree to abide by these provisions. In any
event, each party shall be liable (with respect to the other party) for
any breach of this provision by any entity to whom that party discloses
confidential information. The terms of this Agreement (but not its
execution or existence) shall be considered confidential information for
purposes of this Article, except as set forth in Section 10.3. The
obligations set forth in this Section shall survive expiration or
termination of this Agreement for a period of two (2) years, except that,
with respect to any confidential information designated by the disclosing
party as a trade secret, and entitled to protection as such, the
obligations set forth in this Section shall survive such expiration or
termination indefinitely.
10.2 Permitted Disclosures. Notwithstanding any other provision
herein, neither Xxxxxxxx nor CTC shall be required to hold confidential
any information that:
(a) becomes publicly available other than through the recipient;
(b) is required to be disclosed by a governmental, regulatory
authority, or judicial order, rule, or regulation or
proceedings with respect to this Agreement or a party's
obligations as a publicly held company, provided that a party
subject to such requirement shall promptly notify the other
party of such requirement;
(c) is independently developed by the receiving party;
(d) becomes available to the receiving party without restriction
from a third party;
(e) is required by its lender and is given to such lender on a
confidential basis; or
(f) to the extent disclosure by the receiving party is required by
applicable law, rule or regulation.
10.3 Goodwill and Publicity. Neither party shall use the name,
trade name, service xxxx, or trademark of the other in any promotional or
advertising material without the prior written consent of the other. The
parties shall coordinate and cooperate with each other when making public
announcements related to the terms of this Agreement and each party shall
have the right to promptly review, comment upon, and approve any publicity
materials, press releases, or other public statements by the other party
that refer to, or that describe any aspect of, this Agreement.
Notwithstanding the above, either party may, without the other party's
approval but after allowing the other party a reasonable opportunity to
comment on a proposed press release, issue a press release announcing
execution of this Agreement.
ARTICLE XI tc "ARTICLE XI " \l 5
REPRESENTATIONS AND WARRANTIES tc "REPRESENTATIONS AND WARRANTIES " \l 5
In addition to any other representations and warranties contained in
this Agreement, each party hereto represents and warrants to the other
that:
(a) It has the full right and authority to enter into, execute,
deliver and perform its obligations under this Agreement;
(b) It has taken all requisite corporate action to approve the
execution, delivery and performance of this Agreement;
(c) This Agreement constitutes a legal, valid and binding
obligation enforceable against such party in accordance with
its terms; and
(d) Its execution of and performance under this Agreement shall
not violate any applicable existing regulations, rules,
statutes or court orders of any local, state or federal
government agency, court or body.
ARTICLE XII tc "ARTICLE XII " \l 5
MISCELLANEOUS PROVISIONS tc "MISCELLANEOUS PROVISIONS " \l 5
12.1 Title to Equipment. This Agreement shall not, and shall not
be deemed to, convey from either party to the other 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 Services. Any equipment provided by CTC must be itemized on a
schedule listing all such CTC-provided equipment including a detailed
description and serial numbers, and appended to the Service Order to which
use of that equipment relates ("CTC Equipment Inventory").
12.2 Notices. Unless otherwise provided in this Agreement, all
notices and communications concerning this Agreement shall be in writing
and addressed to the other party as follows:
If to CTC: CTC Communications Corp.
Attn: Chief Technology Officer
000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone: (000) 000-0000
If to Xxxxxxxx: Xxxxxxxx Communications, Inc.
Attn: Xxxxxxxx Network, Contract
Administration Xxx Xxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Xxxxxxxx Communications, Inc.
Attn: General Counsel
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone: (000) 000-0000
with payment remittances to:
Xxxxxxxx Communications, Inc.
Dept. 1409
Xxxxx, Xxxxxxxx 00000
or at such other address as may be designated in writing to the other
party.
Unless otherwise provided herein, notices shall be hand delivered,
sent by registered or certified U.S. Mail, postage prepaid, or by
commercial overnight delivery service, or transmitted by facsimile, and
shall be deemed served or delivered to the addressee or its office when
received at the address for notice specified above when hand delivered,
upon confirmation of sending when sent by facsimile, on the next business
day after being sent when sent by priority overnight delivery service, or
three (3) United States Postal Service business days after deposit in the
mail when sent by registered or certified U.S. mail.
12.3 Merger/Integration. This Agreement and the Master Agreement
(including the attached Exhibits, as they may be modified from time to
time) constitute the complete and exclusive statement of the understanding
between the parties and supersedes all proposals and prior agreements
(oral or written) between the parties relating to the Services provided
hereunder. The terms of this Agreement shall control over any conflicting
terms in a Service Order except with respect to specific terms therein
pertaining to pricing, description of services or provisioning
requirements.
12.4 Written Amendment. Any addition, deletion or modification to
this Agreement shall not be binding on either party except by written
amendment executed by both parties.
12.5 No Venture. The relationship between Xxxxxxxx and CTC 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, including,
but not limited to federal income tax purposes. Xxxxxxxx and CTC, in
performing any of their obligations hereunder, shall be independent
contractors or independent parties and shall discharge their contractual
obligations at their own risk.
12.6 Intentionally omitted.
12.7 Effect of Change in Law. Upon thirty (30) days' prior written
notice to the other party, either CTC or Xxxxxxxx shall have the right,
without disconnection charge or other liability to the other party, to
cancel the affected portion of any Services provided hereunder if Xxxxxxxx
is prohibited by governmental authority from furnishing or CTC is
prohibited from using such portion, or if any material rate or term
contained herein and relevant to the affected portion of any such Services
is substantially changed by order of the highest court of competent
jurisdiction to adjudicate the matter, the FCC, or other local, state or
federal government authority.
12.8 Assignment.
(a) Conditions to Effective Assignment. An assignment (or other
transfer) of this Agreement or a party's rights or obligations
hereunder to any other party shall not be effective without
(a) either the prior written consent of the non-assigning
party, or, if such consent is not required pursuant to
specific terms of this Section 12.8, written notice to the
non-assigning party, (b) the written agreement of the assignee
to be bound by all terms and conditions of this Agreement
including, without limitation, the indemnification provisions
and limitations on liability and recourse set forth in this
Agreement, and (c) such assignee's agreement to cure all prior
defaults of the assigning party under this Agreement.
Notwithstanding any provision hereof to the contrary,
Xxxxxxxx' consent shall not be required and CTC shall not be
prevented from using capacity obtained hereunder for providing
service to its customers in the ordinary course of business.
(b) Impermissible Assignments. Except as set forth in Section
12.8(d), the non-assigning party may withhold consent to an
assignment in its sole discretion, if the assignment:
(i) is made by CTC within one (1) year of the Effective
Date, other than as part of a sale of substantially all
of CTC's assets; or
(ii) is an assignment of less than all of a party's rights or
obligations hereunder.
(c) Consent not to be Unreasonably Withheld. Except to the extent
Section 12.8(b) provides the non-assigning party the right to
withhold its consent in its sole discretion and except as set
forth in Section 12.8(e), the non-assigning party shall not
unreasonably withhold or delay its consent to an assignment if
neither the assigning party nor the proposed assignee is in
material default under this Agreement or any other agreement
with the non-assigning party. For purposes of this Section, a
party's consent to a requested assignment or transfer shall
not be considered unreasonably withheld if such requested
assignment or transfer is to a party which does not have the
technical ability or financial capability to perform the
assigning party's obligations under this Agreement.
(d) Assignments to Particular Classes of Entities. The provisions
of Section 12.8(b) notwithstanding, Xxxxxxxx may assign some
or all of its rights and obligations hereunder to State Street
Bank and Trust Company of Connecticut, National Association,
in connection with a financing by Xxxxxxxx of construction of
its fiber optic network; in addition, State Street Bank and
Trust Company of Connecticut, National Association, may
further assign this Agreement as collateral for such
financing. If Xxxxxxxx makes an assignment pursuant to this
Subsection 12.8(d), Xxxxxxxx (or its assignee pursuant to an
assignment made under the other provisions of this Article)
shall guarantee performance of the assignee's obligations.
Either party may assign its interest in this Agreement
without the prior consent of the other party (i) to any
corporation or other entity which is a successor to such party
either by merger or consolidation, or (ii) to a purchaser of
all or substantially all of such party's assets, or (iii) to a
corporation or other entity which is an Affiliate of such
party; provided that in the event of an assignment under
clause (iii), the assigning party shall remain fully liable,
jointly and severally with any assignee(s), for all
obligations under this Agreement.
(e) Agreement Binds Successors. This Agreement and the rights
and obligations under this Agreement (including the
limitations on liability and recourse set forth in this
Agreement benefitting the other party) shall be binding upon
and shall inure to the benefit of Xxxxxxxx and CTC and their
respective permitted successors and assigns.
(f) Change in Control Not an Assignment. Notwithstanding any
presumptions under applicable state law that a change in
control of a party constitutes an assignment of an agreement,
a change in control of a party, not made for purposes of
circumventing restrictions on assignment or of depriving the
other party of rights under this Agreement, shall not be
deemed an assignment for purposes of this Agreement.
(g) Right to Subcontract. Xxxxxxxx may subcontract for testing,
maintenance, repair, restoration, relocation, or other
operational and technical services it is obligated to provide
hereunder or may have the underlying facility owner or its
contractor perform such obligations; provided, that, Xxxxxxxx
shall remain primarily liable for the performance of such
obligations.
(h) Financing Arrangements. Either party shall have the right,
directly or through an Affiliate, to enter into financing
arrangements (including secured loans, leases, sales with
lease-back, or leases with lease-back arrangements, purchase-
money or vendor financing, conditional sales transactions, or
other arrangements) with one or more financial institutions,
vendors, suppliers or other financing sources (individually
and collectively, "Lenders").
12.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic law of the State of New York
without reference to its choice of law principles. With respect to any
suit, action or proceedings relating to this Agreement (the
"Proceedings"), each party: (1) irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York and the United States
District Courts located in that state; (2) irrevocably waives any
objection which it may have at any time to the laying of venue of any
proceedings brought in any such court; (3) waives any claim that such
proceedings have been brought in an inconvenient forum; and (4) waives the
right to object, with respect to such proceedings, that such court does
not have jurisdiction over such party. Nothing in this Agreement
precludes either party from enforcing in any jurisdiction any judgment,
order or award obtained in any such court.
12.10 Rules Of Construction. The following rules of construction
shall govern any interpretation of this Agreement:
(a) The captions or headings in this Agreement are strictly
for convenience and shall not be considered in interpreting this
Agreement or as amplifying or limiting any of its content. Words in
this Agreement that import the singular connotation shall be
interpreted as plural, and words that import the plural connotation
shall be interpreted as singular, as the identity of the parties or
objects referred to may require.
(b) Unless expressly defined herein, words having well-known
technical or trade meanings shall be so construed.
(c) Except as set forth to the contrary herein, any right or
remedy of Xxxxxxxx or CTC shall be cumulative and without prejudice
to any other right or remedy, whether contained herein or not.
(d) Nothing in this Agreement is intended to provide any
legal rights to anyone not an executing party of this Agreement
except under the indemnification and insurance provisions.
(e) This Agreement has been fully negotiated between and
jointly drafted by Xxxxxxxx and CTC and no rule of construction
requiring interpretation against the draftsman hereof shall apply in
the interpretation of this Agreement.
(f) Except as otherwise provided herein, in the event of a
conflict between the provisions of this Agreement and those of any
Exhibit, the provisions of this Agreement shall prevail and such
Exhibits shall be corrected accordingly.
(g) All actions, activities, consents, approvals and other
undertakings of the parties in this Agreement shall be performed in
a reasonable and timely manner. Except as specifically set forth
herein, for the purpose of this Section 12.10, the normal standards
of performance within the telecommunications industry in the
relevant market shall be the measure of whether a party's
performance is reasonable and timely.
12.11 No Third Party Beneficiary. The provisions of this
Agreement are for the benefit only of the parties hereto, and no third
party may seek to enforce or benefit from these provisions.
12.12 Attorneys' Fees. 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.
12.13 Arbitration. Any dispute arising between Xxxxxxxx and CTC in
connection with this Agreement that is not settled to their mutual
satisfaction within the applicable notice or cure periods provided in this
Agreement, shall, upon the demand for arbitration by either party, be
settled by arbitration in New York, New York in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in
effect on the date that a party gives notice of its demand for arbitration
under this Article. If Xxxxxxxx and CTC cannot agree on a single
arbitrator within fifteen (15) days after the notice demanding arbitration
is received by the receiving party, Xxxxxxxx and CTC shall each select an
arbitrator within such fifteen (15) day period and the two (2) arbitrators
shall select a third arbitrator within ten (10) days. If the parties fail
to appoint arbitrators or the arbitrators cannot agree on a third
arbitrator, then either party may request that the American Arbitration
Association shall select and appoint a neutral arbitrator who shall act as
the sole arbitrator. In any such arbitration proceeding, the parties may
take discovery pursuant to applicable laws or rules. The parties shall be
entitled to submit expert testimony and/or written documentation on such
arbitration proceeding. The decision of the arbitrator or arbitrators
shall be final and binding upon Xxxxxxxx and CTC and shall include written
findings of law and fact, and judgment may be obtained thereon by either
Xxxxxxxx or CTC in a court of competent jurisdiction. Xxxxxxxx and CTC
shall each bear the cost of preparing and presenting its own case. The
cost of the arbitration, including the fees and expenses of the arbitrator
or arbitrators, shall be shared equally by Xxxxxxxx and CTC unless the
award otherwise provides. The arbitrator or arbitrators shall be
instructed to establish procedures such that a decision can be rendered
within sixty (60) days after the appointment of the arbitrator or
arbitrators. In no event shall the arbitrator or arbitrators have the
power to award any damages described in and limited by Section 9.3 which
shall be binding on the arbitrator(s). This section shall not be
construed to limit either party's ability to recover under any
indemnification provisions in this Agreement with respect to claims of
third parties brought against such party.
The obligation to arbitrate shall not be binding upon any party with
respect to (a) 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 by such court
to preserve the status quo or prevent irreparable injury pending
resolution by arbitration of the actual dispute or (b) actions to collect
payments not subject to bona fide dispute under Section 8.2 of this
Agreement.
Any arbitrator appointed to act under this Section, must agree to be
bound to the provisions of Article X entitled Confidentiality and
Proprietary Information with respect to the terms of this Agreement and
any information obtained during the course of the arbitration proceedings.
12.14 Severability. If any term, covenant or condition in this
Agreement shall, to any extent, be invalid or unenforceable in any respect
under the laws governing this Agreement, the remainder of this Agreement
shall not be affected thereby, and each term, covenant or condition of
this Agreement shall be valid and enforceable to the fullest extent
permitted by law and if appropriate such invalid or unenforceable
provision shall be modified or replaced to give effect to the underlying
intent of the parties hereto and to the intended economic benefits of the
parties.
12.15 No Waiver. The failure of either party to enforce any
provision hereof shall not constitute the permanent waiver of such
provision.
12.16 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and
the same instrument.
IN WITNESS WHEREOF and in confirmation of their consent to the terms
and conditions contained in this Agreement and intending to be legally
bound hereby, Xxxxxxxx and CTC have executed this Carrier Services
Agreement as of the Effective Date.
CTC COMMUNICATIONS CORP. XXXXXXXX COMMUNICATIONS, INC.
By:/s/ By:/s/
Name: Name:__________________________
Title: Title:_________________________
Date: March 31, 2000 Date: March 31, 2000
Exhibit A
Xxxxxxxx Network Pricing Schedule
THIS EXHIBIT A is attached to and made a part of that certain
Carrier Services Agreement dated as of March 31, 2000, by and between
Xxxxxxxx and CTC ("Agreement"). Capitalized terms used and not defined
herein shall have the meanings set forth for such terms in the Agreement.
A. Private Line Services*
B. Collocation Services. The monthly recurring charges for
Collocation Services shall be specified in the applicable Collocation
Service Orders.
*THIS PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
Exhibit B
Xxxxxxxx Network Technical Specifications
I. Technical Specifications for Private Line Service
A. Interconnection Specifications
1. DS-1. DS-1 service is provided in accordance with ANSI
Standard T1.102 and T1.403 (formerly AT&T Compatibility
Bulletin 119). DS-1 Service operates at 1.544 Mbps.
2. 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.
3. 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 the 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 and approved by
CTC.
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 and approved by CTC. For multi-media
services, Error Free Seconds will be as defined by WorldCom,
Inc.
II. General Provisions Relating to Private Line 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 in
accordance with the Agreement.
3. All standards exclude nonperformance due to acts or
omissions of CTC or due to any failure of CTC-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
CTC and CTC has released all or part of the Service for
testing. The maintenance standards in this Section II B
only apply for 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. CTC must notify the Xxxxxxxx Network
Customer Care department and initiate an action request to determine if
the standards stated above were met.
EXHIBIT C
XXXXXXXX' ON-NET POPS*
*THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
