Exhibit 10.1
July 1, 1999
Page 1
STRATEGIC MARKETING AND SALES AGREEMENT
THIS STRATEGIC MARKETING AND SALES AGREEMENT ("Agreement") is made and
entered into this 1st day of July, 1999, by and between LEVEL 3 COMMUNICATIONS,
LLC, a Delaware limited liability company ("Level 3") and DATA RETURN
CORPORATION, a Texas corporation ("Customer"). This Agreement modifies that
certain Customer Order (including the Standard Terms and Conditions for Delivery
of Services, a copy of which is attached hereto as Exhibit D) executed by Xxxxx
0 and Customer dated April 28, 1999; the Customer Order, and the Standard Terms
and Conditions, are hereby incorporated into this Agreement. The terms and
provisions contained in this Agreement modify the terms contained in the
Customer Order as set forth herein. To the extent that the terms of this
Agreement are inconsistent with the terms in any Customer Order (including the
Standard Terms and Conditions), the terms set forth in this Agreement shall
control.
ARTICLE 1
DEFINED TERMS
1.1 Advanced Microsoft Hosting Service. "Advanced Microsoft Hosting
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Service" shall mean hosting services delivered by Customer on the Microsoft
platform and which has a Monthly Recurring Charge of one hundred dollars
($100.00) or more per customer.
1.2 Broadband Services. "Broadband Services" shall mean the services
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provided by Xxxxx 0 to Customer originating in the United States hereunder.
Broadband Services shall include (a) a local ethernet connection for
distribution of content to other networks on the local ethernet in a Gateway
Facility, (b) InterGateway transport, with traffic terminating to any customer
on the Level 3 Network or any Level 3 peer through non-paid peering points, and
(c) transit services, with traffic terminating to Level 3 transit connections.
1.3 Capacity Forecasts. "Capacity Forecasts" shall mean forecasts of
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Customer's reasonably anticipated needs for Broadband Services, Colocation
Space, Private Line Service and other associated services and products which
Level 3 can provide.
1.4 Colocation Space. "Colocation Space" shall mean space within Level
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3's Gateway Facilities in the United States which is used by Customer for the
placement of electronic communications equipment and connection of such
equipment to other parties or networks (including, but not limited to, the Level
3 Network).
1.5 Technical Assistance: "Technical Assistance" shall mean technical
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support provided by Xxxxx 0 personnel within the Gateway Facility. Technical
Assistance services shall be purchased in blocks of hourly time, and will cover
basic hardware and operational functions such as: Power Cycling Equipment;
Securing Cables; Setting Switches; Hot Swapping Components; Swapping Backup
Tapes; and physical equipment Installs (but excluding configuration of such
equipment).
1.6 Gateway Facility. "Gateway Facility" shall mean Level 3's leased or
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owned facility in various cities in the United States where connections to the
Level 3 Network can be accomplished.
1.7 Level 3 Network. "Level 3 Network" shall mean Level 3's leased or
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owned Internet Protocol network, including the bandwidth capacity and
connections to other networks and
July 1, 1999
Page 2
providers, and such future network capacity, connections and technologies as
Level 3 shall hereafter acquire, lease or develop.
1.8 Monthly Recurring Charges. "Monthly Recurring Charges" shall mean the
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monthly charges for the various services delivered hereunder, as set forth in
Exhibit A.
1.9 Nonrecurring Charges. "Nonrecurring Charges" shall mean the charges
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for the installation and reconfiguration of the various services delivered to
each party hereunder, as set forth in Exhibit A.
1.10 Off-Net Services. "Off-Net Service" shall mean Broadband Services
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that are not delivered through direct non-paid transit or peering connections to
the Level 3 Network (i.e., those Broadband Services that are delivered through
paid transit connections provided by other carriers).
1.11 On-Net Service. "On-Net Service" shall mean Broadband Services that
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are delivered through direct connections to the Level 3 Network (i.e., those
Broadband Services that are not delivered through paid transit connections
provided by other carriers).
1.12 Preferred Provider. "Preferred Provider" refers to a designation by
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Level 3 under Level 3's "Value Added Partner" program where Level 3 recommends
(with appropriate disclaimers of any liability resulting from a customer's
reliance on such recommendation) the services and/or products provided by a
Preferred Provider based on the unique capabilities of the designated company.
1.13 Private Line Service. "Private Line Service" shall mean point to
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point dedicated transport service connecting two locations, one of which is
located within the continental United States.
1.14 Term. "Term" shall mean the period of time that commences upon
----
execution of this Agreement and ends five (5) years thereafter, unless sooner
terminated in accordance with the requirements of the Standard Terms and
Conditions.
ARTICLE 2
PURCHASE COMMITMENT
2.1 Services Included. Xxxxx 0 agrees to sell to Customer, and Customer
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agrees to purchase from Xxxxx 0, the following Services: Colocation Space
(including Technical Assistance); Broadband Services; Private Line Services
(collectively the "Services").
2.2 Revenue Commitment. Provided Level 3 is delivering Services in
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accordance with the requirements of this Agreement, Customer shall, on a monthly
basis during the Term order and pay for the following volumes of Services (the
"Revenue Commitment"):
Contract Year* Cumulative Monthly Recurring Charges Per Quarter
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1 $ 200,000
2 $ 300,000
3 $ 400,000
4 $ 600,000
July 1, 1999
Page 3
5 $1,000,000
* Each "Contract Year" shall be measured as each full year after execution of
this Agreement (so that Contract Year 1 ends one year from execution hereof).
The Revenue Commitment is a "take-or-pay" commitment; on a quarterly basis
Customer will be billed for the greater of (a) its actual usage of Services, or
(b) the billing amount that would have been charged if the Revenue Commitment
had been satisfied.
2.3 Requirements Commitment. Commencing twelve (12) months after
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execution hereof, Customer shall satisfy no less than seventy five percent (75%)
of its requirements for all services which are substantially similar to and
perform substantially the same function as the Services (including Colocation
Space) through purchases from Level 3. Commencing eighteen (18) months after
execution hereof and continuing for the remainder of the Term, Customer shall
satisfy no less than ninety percent (90%) of its requirements for all services
which are substantially similar to and perform substantially the same function
as the Services through purchases from Level 3. Satisfaction of the foregoing
percentage requirements will be determined by measuring Customer's use of (a)
total Mbps of Broadband Services, and (b) total square feet of Colocation Space.
2.4 Price for Broadband Service. In the event that, during the Term of
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this Agreement, Level 3's standard prices for Broadband Services are (taken as a
whole and for customers making a dollar volume commitment which, on a monthly
basis, is equal to or greater than the Revenue Commitment made by Customer
herein) less than the prices for Broadband Services as set forth in Exhibit A,
then the Monthly Recurring Charges for Broadband Services delivered to Customer
hereunder shall, from and after such date, be reduced so that such Monthly
Recurring Charges are no greater than the standard discounted prices offered for
such other customers.
ARTICLE 3
PURCHASE AND DELIVERY OF BROADBAND SERVICES
3.1 The Broadband Services. Level 3 shall, except as otherwise provided
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herein and upon request of Customer, deliver and provide Broadband Services to
Customer. The Monthly Recurring Charges and Nonrecurring Charges applicable to
the ordering and delivery of the Broadband Services are set forth in Exhibit A
attached hereto. Customer hereby requests, and Level 3 hereby agrees to
provide, the Broadband Services described in Exhibit B attached hereto, which
Broadband Services shall be delivered to Customer at the locations identified in
Exhibit B.
3.2 Terms and Conditions. Except as modified by the terms of this
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Agreement, the terms and conditions applicable to Level 3's delivery of, and
Customer's purchase of, the Broadband Services shall be as set forth in Level
3's Terms and Conditions for Delivery of Services attached hereto as Exhibit D.
The Broadband Services shall be considered to be "Services" as defined in Level
3's Terms and Conditions.
3.3 Forecasts and Capacity Management. Customer will submit Capacity
---------------------------------
Forecasts to Level 3 on a quarterly basis during the Term. Level 3 will, on a
periodic basis throughout the Term, evaluate Customer's consumption and use of
Services and consult with Customer regarding the ordering and provisioning of
sufficient capacity to meet Customer's needs.
July 1, 1999
Page 4
ARTICLE 4
ADDITIONAL TERMS RELATING TO COLOCATION SPACE
4.1 Agreement to Service Order. The terms set forth in this Article 4
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shall supplement and, to the extent inconsistent therewith, supersede, the terms
and conditions set forth in the Customer Order.
4.2 Colocation Space. Subject to availability, Xxxxx 0 shall, upon
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request of Customer, deliver and provide Colocation Space to Customer in Level
3's Gateway Facilities (only those located in the United States) for the Term
hereof. The Monthly Recurring Charges and Nonrecurring Charges applicable to
the ordering and delivery of the Colocation Space (including charges for
consumption of power) are set forth in Exhibit A attached hereto. The minimum
term for Customer's use of Colocation Space (the "Colocation Term") shall be
five (5) years from the date upon which the Colocation Space was delivered to
Customer (regardless of whether the Term of this Agreement expires prior to such
time).
4.3 Order for Colocation Space. Customer hereby orders, and Level 3
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hereby agrees to provide, the Colocation Space within the Gateway Facilities
identified and set forth in Exhibit B attached hereto. Level 3 shall complete
the build-out of the Space and shall make such Space available to Customer on or
before February 1, 1999. Level 3 agrees to make individual Colocation Space
available within 60 days of Customer's request.
ARTICLE 5
PREFERRED PROVIDER STATUS AND COOPERATIVE MARKETING
5.1 Designation as Preferred Provider. Upon execution of this Agreement
---------------------------------
and subject to execution Level 3's standard agreement "Value Added Partners",
Level 3 will designate Customer as a Preferred Provider for Advanced Microsoft
Hosting Service. Such designation is non-exclusive, and shall continue and
remain in place only for so long as Level 3 determines. Level 3 may, in its
discretion, cease such designation at any time; provided, however, that in the
event that Level 3 ceases such designation other than "For Cause" (as defined
below), and Level 3 has designated or subsequently designates another entity as
its Preferred Provider for Advanced Microsoft Hosting Service, or discontinues
the entire Preferred Provider and Value Added Partner Programs, then Customer
may terminate its purchase commitments contained in Sections 2.3 hereof, and all
other obligations shall continue in full force and effect. For purposes of the
foregoing, "For Cause" termination by Level 3 shall mean a termination which
results from Level 3's reasonable determination that the quality of service or
the breadth and usefulness of service offerings provided by Customer are
materially changed, so that such service offerings are (in Level 3's judgement)
inadequate to support continued designation of Customer as a Preferred Provider
(which shall occur only after Level 3 has given Customer thirty (30) days
advance written notice and Customer has failed to take such steps as Level 3
reasonably determines are necessary to continue Customer's designation as a
Preferred Provider). Notwithstanding the foregoing, the following procedure
shall apply to a termination "For Cause" during the first year after execution
of this Agreement. In the event that, during such time, Level 3 becomes aware
of demonstrable and material deficiencies in Customer's delivery or service
offerings, Xxxxx 0 may, on thirty (30) days' written notice to Customer and
provided Customer has not within such time taken steps to cure the deficiencies
specified by Xxxxx 0, suspend Customer's designation as a Preferred Provider.
Upon such suspension, Customer shall have a period of one hundred twenty (120)
days within which to cure the deficiencies specified by Level 3. In the event
Customer fails to do so, then Xxxxx 0 may
July 1, 1999
Page 5
terminate the designation as a Preferred Provider and such termination shall be
deemed to be "For Cause" hereunder.
5.2 Sales Training. No later than September 30, 1999, Customer and Level
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3 will develop a mutually agreed schedule for Customer to provide sales training
to the Level 3 sales staff at operational Gateway Facilities during 2000, and as
required through the length of this contract. The sales training will be
sufficient to provide the Level 3 sales staff with a basic working knowledge of
the Advanced Microsoft Hosting Service offered by Customer so that the sales
staff can identify Prospects which might be able to use the Advanced Microsoft
Hosting Service in their business applications. Sales training will be provided
at Customer's expense (except that Level 3 will be responsible for the payment
of compensation of such personnel and travel and lodging expenses incurred by
its personnel in connection therewith), and will be prioritized according to a
mutually agreed upon schedule to coincide, to the extent feasible, with the
opening of each new Gateway Facility.
5.3 Prospect Contacts. Each party will cause its employed and independent
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sales force to assist the other party's employed and independent sales force in
the sale of the other party's services (so that Level 3 shall provide leads to
Customer for the sale of Advanced Microsoft Hosting Services, and Customer shall
provide Level 3 with leads for the sale of Service) as set forth herein. Such
assistance shall include providing customers who may have an interest in or need
for the other party's services ("Prospects") with the name and marketing
materials for the services of the other party, providing the other party with
names of Prospects and (where such party determines appropriate) introducing the
other party's professional sales staff to Prospects. The referral of Prospects
contemplated hereby is non-exclusive; either party may provide referrals to
other suppliers of services competitive with the services provided by the other
party. Notwithstanding the foregoing, both parties agree that they will inform
the other of all Prospect leads of which they become aware during the Term (but
either party may also refer or provide such Prospect leads to other companies).
A failure or alleged failure of either party to refer a Prospect to the other,
to provide marketing material respecting the other's service to such Prospect,
or to otherwise perform the cooperative marketing envisioned by this Article 4
shall not constitute a default in the performance of this Agreement.
5.4 Managers. Each party shall identify management personnel to supervise
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and monitor the performance of the cooperative marketing contemplated by this
Article 4. Level 3 will identify a "Channel Manager" for the management of this
Agreement to oversee all activities in connection with such cooperative
marketing and to supervise and monitor local cooperative marketing activities.
The Channel Manager's general responsibilities are delineated in Exhibit C. The
Channel Manager will schedule and moderate a day-long seminar for regional sales
groups, which seminars shall be conducted by Customer at its sole cost and
expense, and which will cover the following general topics:
a. overview of Customer and the Advanced Microsoft Hosting Services, as
well as an overview of web hosting services generally;
b. an overview of Level 3 incentive programs for the sales personnel will
be presented by the Channel Manager; and
c. processes for qualification and referral of Prospects.
July 1, 1999
Page 6
The marketing managers for each party shall use good faith efforts to assure
that the seminars are attended by all relevant and required personnel (it being
Level 3's goal to assure that at least ninety percent (90%) of its sales staff
attends such seminar). The marketing managers of each party will work together
to jointly develop sales support materials, including an overview of the
Customer/Level 3 service package, comprehensive sales kit for distribution to
Prospects and development of a web site (or development of additional pages to
the Level 3 and Customer web sites) to promote the services of each party.
Level 3 shall, within forty five (45) days after execution of this Agreement,
generate a written plan for implementation of the foregoing activities. While
no sales quota or other objective performance criteria is applicable to either
party's performance of this Article 4, the parties agree to define specific
strategic goals of the relationship, periodically evaluate the performance of
both parties hereunder, and work together in good faith to take steps designed
to ensure that the specific strategic goals of the parties are met. The parties
agree that a failure or alleged failure of a party to perform any obligation
imposed by this Article 4 shall not constitute a material default in the
performance of this Agreement.
5.5 Value Added Partner Program. Level 3 will make Customer a
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participant in Level 3's "Value Added Partner" program (which is generally
described in Exhibit C) and will provide Customer with all of the benefits
associated with such program (including participation in the web-enabled
customer support system ("WECSS") when such system is implemented by Level 3).
Level 3 reserves the right to change the terms of its "Value Added Partners"
program at any time; provided, however, that in the event that Level 3
materially alters the Value Added Partners program during the Term of this
Agreement, Xxxxx 0 and Customer shall meet and discuss measures to preserve the
benefits associated with the program.
5.6 Vendor Relationships. Customer acknowledges that Level 3 has
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established relationships and high level contacts with certain vendors
(including Microsoft and Compaq) and this Agreement and the relationship created
hereby will not give Customer any right to participate in or otherwise influence
or affect Level 3's business dealings and relationships with such vendors.
Customer also has independent business relationships with certain vendors
(including Microsoft and Compaq) and intends and commits to use those business
relationships in connection with a good faith effort to generate increased
platform demand for Level 3's Services. Further, it is Level 3's intention to
feature Customer's Advanced Microsoft Hosting Services as part of Level 3's
relationship with Microsoft and Compaq. Toward this objective, Customer and
Level 3 will work cooperatively together to address Microsoft initiatives such
Microsoft's Business to Consumer and Business to Business E-Commerce programs in
a manner that features Level 3's Services and Customer's Advanced Microsoft
Hosting Services. Likewise, Data Return and Level 3 will work cooperatively
together to address Compaq market development initiatives in a manner that
features Level 3's Services and Customer's Advanced Microsoft Hosting Services.
5.7 Product Development. Customer and Level 3 will work together to
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develop new products and services to grow the Advanced Microsoft Hosting
Services. To the extent allowed by Customer's contractual commitments and non-
disclosure agreements with Microsoft, Customer will involve Level 3 in the
"Windows 2000" readiness deployment partners task force.
5.8 Commissions. A sale to a Prospect shall only generate Commission, as
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defined below, if a sale is closed within 120 days of initial introduction of
the Prospect to the selling party. Each party will pay to the other the
commission ("Commission") set forth in this Section. The Commission payable by
Customer hereunder shall be equal to thirty percent (30%) of the gross recurring
revenue (not including any set-up fees) received by Customer in the first full
billing
July 1, 1999
Page 7
month after initiation of delivery of service to the Prospect received by
Customer as a result of a sale of services to a Prospect introduced to Customer
by Level 3. The Commission payable by Level 3 shall be determined in accordance
with Exhibit D. Only the party which initiated a sales call to a Prospect shall
be entitled to a Commission; any dispute respecting which party is entitled to a
Commission on the sale of services to a Prospect shall be resolved by designated
sales management for each party. A party's failure to pay a Commission allegedly
owing as a result of a good faith dispute shall not constitute a material
default of this Agreement.
5.9 Prospect Terms and Conditions. Each party shall have the sole and
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absolute discretion respecting the terms and conditions for such party's
agreement for the sale of services to Prospects. Nothing in this Agreement
shall be construed to be a binding commitment on the part of either party to
sell services to Prospects. Each party shall be solely responsible for the
performance of any agreements it enters into with any Prospects. Neither party
shall have (or represent to any Prospects that it has) the authority to act as
agent for the other, enter into contracts for, or otherwise commit the other
party to, the delivery of services to any Prospect. Each party shall use its
best efforts to preserve the goodwill and business reputation of the other party
in connection with the cooperative marketing of services contemplated hereby.
ARTICLE 6
DEFAULT AND TERMINATION
In the event that, other than as may be caused by an event of force majeure or
by the wrongful actions or omissions of the other party, a party fails to timely
observe or perform any material covenant, agreement, obligation, term or
condition required to be observed or performed hereunder, which failure is not
cured within thirty (30) days after receipt of written notice thereof (a
"Default"), then the other party may, in addition to any other remedies which it
has hereunder (including but not limited to the remedies set forth in Exhibit D,
which remedies would be applicable for a Default hereunder), terminate this
Agreement by providing written notice of termination to the defaulting party.
In the event that this Agreement is terminated as a result of a Default by
Customer (other than a Default in the payment of money due), then Customer may,
notwithstanding such termination, continue to use the Colocation Space ordered
by Customer hereunder for a period of not longer than 150 days after the
effective date of termination; PROVIDED, however, that (a) Customer timely pays
any charges due for the use of such Colocation Space during such period, and (b)
Customer abides by all other terms and conditions applicable to the use of such
Colocation Space during such period.
ARTICLE 7
GENERAL PROVISIONS
7.1 Press Releases.
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(a) Neither party shall, without the advance written consent of the other
party (which may be granted or withheld in the sole discretion of such party),
issue any press release respecting this Agreement or the terms hereof or
otherwise disclose this Agreement or the terms hereof to any other party.
(b) In the event either party shall be required to disclose all or any
part of this Agreement in, or attach all or any part of this Agreement to, any
regulatory filing or statement, each party agrees to discuss and work
cooperatively, in good faith, with the other party, to protect, to the
July 1, 1999
Page 8
extent possible, those items or matters which the other party deems confidential
and which may, in accordance with applicable laws, be deleted therefrom.
7.2 No Agency. This Agreement does not constitute either party as the
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agent or legal representative of the other party and does not create a
partnership or joint venture between the parties. Neither party shall have any
authority to agree for or bind the other party in any manner whatsoever, unless
otherwise authorized to do so in writing during the Term. This Agreement
confers no rights of any kind upon any third party.
7.3 Entire Agreement; Amendment. This Agreement (including the Customer
---------------------------
Order) sets forth the entire understanding of the parties and supersedes any and
all prior agreements, arrangements or understandings relating to the subject
matter hereof. No subsequent amendment to this Agreement shall be effective or
binding unless it is made in writing by authorized representatives of the
parties.
7.4 Enforceability. If any part of any provision of this Agreement or any
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other Agreement, document or writing given pursuant to or in connection with
this Agreement shall be invalid or unenforceable under applicable law, said part
shall be ineffective to the extent of such invalidity only, without in any way
affecting the remaining parts of said provision or the remaining provisions of
this Agreement.
7.5 Governing Law. This Agreement is made pursuant to and shall be
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construed and enforced in accordance with the laws in force in the State of
Colorado.
7.6 Non-Exclusive. This Agreement is non-exclusive. Except as might result
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from Section 2.3, nothing in this Agreement shall prevent either party from
entering into similar arrangements with, or otherwise providing services to, any
other person or entity.
7.7 Notices. All notices or other communications which are required or
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permitted herein shall be in writing and sufficient if delivered personally,
sent by prepaid overnight air courier, or sent by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
IF TO XXXXX 0
XXXXX 0 COMMUNICATIONS, LLC
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
IF TO CUSTOMER:
DATA RETURN CORPORATION
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Attn: President
or at such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such
communication shall be deemed to have been given when delivered if delivered
personally, on the business day after dispatch if sent by overnight air courier,
or on the third business day after posting if sent by mail
July 1, 1999
Page 9
7.8 Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and
assigns.
7.9 Change of Control. In the event that there is a Change of Control (as
-----------------
defined below) which results in either party owing or being owned by a Direct
Competitor (as defined below) of the other party, then the other party shall (if
it is not then in Default hereunder) have the rights and alternatives specified
herein. If a Change of Control which results in Level 3 owning or being owned by
or being under common ownership with a Direct Competitor of Customer occurs,
then Customer shall have the right, by written notice delivered to Level 3
within thirty (30) days after Customer learns of such event, to elect to:
(a) terminate the obligations of both parties under Article 5 of this
Agreement; and/or
(b) terminate its obligations under Section 2.3 of this Agreement, in which
event Customer would remain obligated to satisfy the purchase commitment
contained in Section 2.2 hereof.
If a Change of Control which results in Customer owning or being owned by or
being under common ownership with a Direct Competitor of Level 3 occurs, then
Level 3 shall have the right, by written notice delivered to Customer within
thirty (30) days after Level 3 learns of such event, to elect to:
(y) terminate the obligations of both parties under Article 5 of the
Agreement; and/or
(z) terminate this Agreement (including the provision of Service to
Customer) in its entirety, in which event Customer would be responsible for
payment of a termination charge equal to the Revenue Commitment for the
balance of the Term hereof (so that if the Agreement was terminated on the
fourth anniversary of the date of this Agreement, for example, Customer
would pay a termination charge of $4 million ($1 million multiplied by the
remaining quarters in the Term).
Provided Customer is not then in default of any other material terms, Customer
shall be permitted a reasonable period of time (not to exceed ninety (90) days)
within which to terminate consumption of Service delivered hereunder (except
that any obligation to vacate the Colocation Space shall occur within the time
frames set forth in Article 6 hereof). For purposes of the foregoing, "Change
of Control" shall mean the act, by any person or entity, of obtaining "control",
meaning ownership (direct or indirect), of more than twenty five percent (25%)
of the equity, or the ability to direct more than twenty five percent (25%) of
voting power, or ability to direct management policies, of an entity. With
respect to Customer, a "Direct Competitor" is any entity that derives revenue
that is greater than or equal to Customer from the sale or delivery of Advanced
NT Hosting Services. With respect to Xxxxx 0, a "Direct Competitor" is any
entity that derives more than eighty percent (80%) of its revenue from the sale
or delivery of Services.
7.10 International Negotiations. Promptly following the date hereof, the
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parties agree to negotiate in good faith to enter into an agreement or
agreements for Services on a world-wide basis upon substantially the same terms
and conditions as provided in this Agreement, with appropriate changes to
address (a) non-United States legal issues with respect to the countries in
which such services are to be performed, and (b) different pricing terms to be
agreed by the parties to take into
July 1, 1999
Page 10
account different costs to Level 3 of providing such services outside of the
United States. Neither party shall be obligated to execute any such agreement or
agreements, and the failure or alleged failure of either party to negotiate in
good faith shall not constitute a Default under Article 6 hereof.
7.11 Multiple Counterparts. This Agreement may be executed in one or more
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counterparts, which when taken together, shall constitute one and the same
document. The parties hereby agree that facsimile signatures are valid and
binding on the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXX 0 COMMUNICATIONS, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: V.P. WEBBUSINESS
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Dated: JULY 1, 1999
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DATA RETURN, INC.
By: /s/ Sunny X. Xxxxxxxxxx
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Its: Chairman & CEO
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Dated: July 1, 1999
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Exhibit A - Pricing
Exhibit B - Colocation Space Ordered by Customer
Exhibit C - Level 3 Value Added Partner Program
Exhibit D - Standard Terms and Conditions for Delivery of Services
July 1, 1999
Page 11
Exhibit A
Pricing for Broadband Services and Colocation Space
A. Broadband Services Monthly Recurring Charges:
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Intra-Gateway Exchange
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Ethernet Port Speed Year 1* Year 2* Year 3*
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100 Mbps $ $ $
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1000 Mbps $ $ $
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On-Net Transport
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Monthly Mbps Year 1* Year 2* Year 3*
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000-500 Mbps/mo $ $ $
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500-999 Mbps/mo $ $ $
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$1,000+ Mbps/mo $ $ $
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Off-Net Transit
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Monthly Mbps Year 1* Year 2* Year 3*
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100+ Mbps/mo $ $ $
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The foregoing prices for Broadband Services shall be applicable if and only if
Customer is satisfying the Revenue Commitment for Broadband Services set forth
in the Agreement.
B. Broadband Services--Nonrecurring Charges*:
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Intra-Gateway Exchange Ports: $
C. Colocation Space--Monthly Recurring Charges*:
--------------------------------------------------
$
D. Colocation Space--Nonrecurring Charges*:
---------------------------------------------
$
E. Technical Service Package (applies only to use during business hours. After
hours rates apply per hour for service after hours
Charges* Non-Recurring
1 hour $ N/A
3 hour $ N/A
5 hour $ N/A
July 1, 1999
Page 12
10 hour $ N/A
On-Demand $ N/A
$ N/A
* CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC.
Exhibit B
Customer's Colocation Space Order
[To be completed by Customer]
July 1, 1999
Page 13
Exhibit C
The Level 3 Value Added Partner Program
The Level 3 Value Added Partner Program was developed with the understanding
that our Partner relationships are truly interdependent and are an important
component in positioning Level 3 for success in the telecommunications market.
We have developed a Partner program that is committed to giving our Partners the
products, services, and support they need to meet and exceed their business
objectives while meeting customers' demands.
Level 3 takes pride in carefully selecting Partners that share the idea of
interdependent relationships, quality service and technologically advanced
solutions. The Level 3 Partner Alliance Program is your opportunity to become
part of a highly innovative, industry-leading team experienced in building
powerful relationships.
The Program Philosophy
The Value Added Partner Program was developed to build strategic relationships
that enable Level 3 and its Partners to offer customers one complete solution
for their business and telecommunication needs. As a Level 3 Value Added
Partner, you can expect to work closely with our direct sales teams to offer
Level 3 services alongside their existing value added services. Level 3
acknowledges the value that our Partners bring and has put processes in place to
promote interaction between you and our direct sales team. We strive to ensure
that you have access to, and maximize the use of unique Level 3 resources
designed to help you exceed your business objectives.
Our Value Added Partner Program offers:
. A dedicated support team with proven experience in supporting
successful Partner relationships
. A team sales approach with Level 3 sales organization
. A comprehensive product and service mix that allows you to offer
integrated solutions to your customers
. Innovative management tools
. An aggressive Partner compensation plan
. A unique training certification program
Partner Support
Level 3 realizes that you are dependent on us to be able to service your
customers' needs timely and efficiently. Our Partner support begins with a
dedicated account support and customer care team that has been built by
management well experienced in the Partner industry. Our Partner program also
ensures superior provisioning processes and is in the process of implementing
industry first support tools that will empower you to proactively manage your
customers and proactively respond to their needs.
Each Partner's account team consists of the Channel Sales Manager (CSM), Partner
Account Consultant, Sales Engineer, and Program Coordinator. The Channel Sales
Manager serves as the single point of contact and works with our Partners
through the contracting process and on a day-to-day basis to coordinate and
support sales and retention opportunities. The other members of the
July 1, 1999
Page 14
Partner's dedicated support team play a critical role in ensuring that the
Partner's orders are implemented in an effective and timely manner.
Finally, the Level 3 Partner Help Desk makes it easy for our Partners by
providing a one-stop shop for Partner inquiries on products, programs, pricing,
or order status and escalations. The Partner Help Desk is unique in that it is
managed by real-time support and is dedicated to serve our Partners only.
Products
As a Level 3 Value Added Partner you will have access to a host of products that
will complete your portfolio and enable you to meet your customers' evolving
needs. Between the value add services our Partners offer, and Level 3 products
and services, customers are provided with one solution.
Our entire product suite will include:
. Dedicated Internet Access
. Private Line
. Managed Modem
. Colocation
. Voice services
Tools
Level 3's superior products and support team are backed by quality back office
systems and innovative support tools. We know that as a Value Added Partner, you
are dependent on the information we provide and timeliness in which we provide
that information. Level 3 is committed to providing advanced on-line systems
that empower you to proactively manage your business.
Access to our On-Line Customer Service Center will ultimately include:
. On-line network performance monitoring
. On-line repair ticket submitting and tracking
. On-line order entry and status inquiry
. On-line access to customer invoices
. On-line communications and training
Compensation
Our highly competitive compensation plan has been designed to reinforce the
relationship between Level 3 and our Value Added Partners. Our compensation plan
provides you with commissions based on net aggregated billed revenues. You will
receive timely monthly payments as well as product specific one-time payments.
Our compensation structure has been designed to avoid channel conflict and
promote interaction between you and our Direct Sales force. Whether the
interaction to complete a sale is initiated by a Level 3 Sales Representative or
Xxxxx 0 Value Added Partner, both the VAP and Level 3 Sales
July 1, 1999
Page 15
Representative receive 100% compensation and 100% of quota relief. This industry
unique plan promotes Partner interaction and drives both Level 3 sales and your
sales.
Training and Certification
The Level 3 Partner Alliance Program consists of a select group of Partners, and
therefore offers a thorough contracting and certification process. We recognize
the value in selecting our Partners carefully and providing you with the
knowledge base they need to succeed. Our Partner certification program has been
customized to meet your needs as a Partner and ensures that you are well
prepared to sell and represent Level 3 today and in the future as each of our
companies grow.
July 1, 1999
Page 16
[LOGO OF LEVEL(3) COMMUNICATIONS
APPEARS HERE]
General Terms and Conditions
For Delivery of Service
These Terms and Conditions for Delivery of Service are applicable to Customer
Orders executed by Customer for Services delivered by Level 3 Communications,
LLC ("Level 3"), and are incorporated into each Customer Order. The Terms and
Conditions include these General Terms and Conditions for Delivery of Service
and all terms and conditions attached hereto which relate to any Service
provided by Xxxxx 0 to Customer. These Terms and Conditions are applicable to
sales of Services originating or terminating in the United States.
DEFINITIONS
-----------
Confidential Information: Licensed Software, and all source code, source
documentation, inventions, know-how, and ideas, updates and any documentation
and information related to the Licensed Software, and any non-public information
regarding the business of a party provided to either party by the other party
where such information is marked or otherwise communicated as being
"proprietary" or "confidential" or the like, or where such information is, by
its nature, confidential.
Committed Data Rate: A commitment made by Customer (where applicable)
obligating it to order and pay for a minimum amount of a Level 3 Service
expressed in Megabits per second (Mbps).
Customer: The person, firm or corporation so named on the Customer Order.
Customer Order: A request for Level 3 Service submitted by the Customer for
acceptance by Level 3.
Facilities: Any and all devices supplied by Xxxxx 0 used to deliver Services,
including but not limited to all terminal and other equipment, wires, lines,
circuits, ports, routers, switches, channel service units, data service units,
cabinets, racks, private rooms and the like. Facilities shall not include any
such devices sold to Customer by Xxxxx 0 and paid for by Customer or owned by
Customer or any third party.
Licensed Software: Computer software, in object code format only, the use of
which is required for use of Service ordered by Customer.
Premises: The location(s) occupied by Customer or its end users to which Service
will be delivered by Level 3. Premises does not include Space as defined below.
Revenue Commitment: A commitment made by Customer obligating it to order and
pay for a minimum volume of Services during an agreed term.
Service: A service offered by Level 3 pursuant to a Customer Order.
Space: The location(s) within Level 3 gateways into which Customer is permitted
to colocate telecommunications or internet equipment pursuant to a colocation
Customer Order accepted by Level 3.
Target Install Date: A written communication from Level 3 to Customer
indicating the date upon which it is anticipated that Services will be available
to Customer.
SECTION 1. CUSTOMER ORDERS
1.1 Submission of Customer Orders. To order any Service, Customer may submit to
-----------------------------
Level 3 an order form for Services, completed with Level 3's assistance
("Customer Order") requesting the provision of Service. Level 3's delivery of a
Target Install Date respecting such Service shall constitute Level 3's
acceptance of the Customer Order. The Customer Order and its backup detail shall
set forth the Service, the Premises and/or Space, the prices to be charged for
Services and any applicable term and/or Revenue Commitment.
1.2 Undertaking of Level 3. If Level 3 issues a Target Install Date respecting
----------------------
Services, Xxxxx 0 will furnish such Services in accordance with the Terms and
Conditions and any Customer Orders.
SECTION 2. BILLING AND PAYMENT
2.1 Payment of Bills. Level 3 bills all charges incurred by Customer on a
----------------
monthly basis. Level 3 bills in advance for all Services to be provided during
the ensuing month, except for charges which are dependent upon usage of Service,
which are billed in arrears. Billing for partial months will be prorated based
on a Calendar month. All bills are due upon receipt, and become past due thirty
(30) days later. The unpaid balance of any past due bills shall bear interest at
a rate of 1.5% per month (prorated on a daily basis beginning on the past due
date), or the highest rate allowed by law, whichever is less.
To the extent Customer orders any service designated as "Burstable," the
following billing method shall apply: Customer will be billed as set forth
above for its Committed Data Rate. In addition, over each month, Customer's
usage of the Service will be sampled by Level 3 in five minute inbound and
outbound averages.
July 1, 1999
Page 17
At the end of the month, the top ten percent of the inbound and outbound
averages shall be discarded. The highest of the resulting ninetieth percentile
for inbound and outbound traffic will be compared to the Committed Data Rate. If
the ninetieth percentile of either inbound or outbound traffic is higher than
the Committed Data Rate, Customer will, in addition to being billed for its
Committed Data Rate, be billed for its utilization of the Service that exceeds
their Committed Data Rate, which shall be billed at the contracted-for price per
Mbps.
2.2 Taxes and Fees. Except for taxes based on Level 3's net income and ad
--------------
valorem, personal and real property taxes imposed on Level 3's property,
Customer shall be responsible for payment of all sales, use, gross receipts,
excise, access, bypass, franchise or other local, state and federal taxes, fees,
charges, or surcharges, however designated, imposed on or based upon the
provision, sale or use of the Services.
2.3 Regulatory and Legal Changes. In the event of any change in applicable law,
----------------------------
regulation, decision, rule or order that materially increases the costs or other
terms of delivery of Service, Xxxxx 0 and Customer agree to negotiate regarding
the rates to be charged to Customer to reflect such increase in cost and, in the
event that the parties are unable to reach agreement respecting new rates within
thirty (30) days after Level 3's delivery of written notice requesting
renegotiation, then (a) Level 3 may pass such increased costs through to
Customer, and (b) Customer may terminate the affected Customer Order without
termination liability upon sixty (60) days' prior written notice.
2.4 Disputed Bills. In the event that Customer disputes any portion of a Level
--------------
3 xxxx, Customer must pay the undisputed portion of the xxxx and submit a
written claim for the disputed amount. All claims must be submitted to Level 3
within sixty (60) days of receipt of billing for those Services. Customer
acknowledges that it is able to and that it is reasonable to require Customer to
dispute bills within that time, and Customer therefore waives the right to
dispute charges not disputed within the time frame set forth above.
2.5 Credit Approval and Deposits. Customer shall provide Level 3 with credit
----------------------------
information as requested, and delivery of Service is subject to credit approval.
Xxxxx 0 may require Customer to make a deposit (which will not exceed Customer's
estimated charges for two months' Service) as a condition to Level 3's
acceptance of any Customer Order, or as a condition to Level 3's continuation of
Service, which deposit shall be held by Level 3 as security for payment of
Customer's charges. At such time as the provision of Service to Customer is
terminated, the amount of the deposit will be credited to Customer's account and
any credit balance which may remain will be refunded.
2.6 Fraudulent Use of Services. Customer is responsible for all charges
--------------------------
attributable to Customer incurred respecting the Services, even if incurred as
the result of fraudulent or unauthorized use of the Services, unless Level 3 has
actual knowledge of the same and fails to notify Customer thereof. Xxxxx 0 may,
but is not obligated to, detect or report unauthorized or fraudulent use of
Services.
SECTION 3. DISCONTINUANCE OF CUSTOMER ORDERS
3.1 Discontinuance of Customer Order by Level 3. Level 3 may terminate any
-------------------------------------------
Customer Order and discontinue Service without liability:
A. If Customer fails to pay a past due balance for Services within thirty (30)
days of written notice thereof provided by Level 3;
B. If Customer violates any law, rule, regulation or policy of any government
authority having jurisdiction over the Services; if Customer makes a material
misrepresentation in any submission of information in a Customer Order or other
submission of information to Level 3; if Customer engages in any fraudulent use
of the Services; or if a court or other government authority having jurisdiction
over the Services prohibits Level 3 from furnishing the Services;
C. If Customer fails to cure its breach of any provision of these Terms and
Conditions or any Customer Order within thirty (30) days written notice thereof
provided by Level 3;
D. If Customer files bankruptcy, for reorganization, or fails to discharge an
involuntary petition therefore within sixty (60) days;
E. If Customer's use of the Services materially exceeds Customer's credit
limit, unless within fourteen (14) days written notice thereof by Level 3,
Customer provides adequate security for payment for the Services.
3.2 Effect of Discontinuance. Upon Level 3's discontinuance of Service to
------------------------
Customer, Xxxxx 0 may, in addition to all other remedies that may be available
to Level 3 at law or in equity, assess and collect from Customer any applicable
termination charge.
3.3 Resumption of Service. If Service has been discontinued by Xxxxx 0 and
---------------------
Customer requests that Service be restored, Level 3 shall have the sole and
absolute discretion to restore such Service. Nonrecurring charges, with the
exception of any charges for the build-out of Colocation Space already paid by
Customer, may apply to restoration of Service.
3.4 Discontinuance of Customer Order by Customer. Customer shall have the
--------------------------------------------
right to terminate any Customer Order and discontinue Service prior to the end
of the agreed term with respect to which a Customer Order has been executed
without payment of any
July 1, 1999
Page 18
applicable termination charge if: (i) such Service is Unavailable (as defined
below) on two or more separate occasions of more than eight (8) hours each in
any 30 day period, and (ii) following written notice thereof from Customer to
Xxxxx 0, Xxxxx 0 has an Unavailability event of more than 12 hours at any time
within the 12 month period immediately following said notice. For purposes of
the foregoing, Unavailability shall mean the period of time beginning when
Customer reports an outage in its Service to the Level 3 Customer Service and
Support Organization (1-877-4LEVEL3) and shall end when the Service is
operative. Unavailability shall not apply to any outage which is caused by
Customer, Customer's end users or any third party, which results from failure of
power or equipment provided by Customer or others, which occurs or continues
during any period in which Level 3 is not given access to the Premises or the
Space, or which results from maintenance events. Customer must exercise its
right to terminate under this Section, in writing, no later than thirty (30)
days after the Unavailability event giving rise to a right of termination
hereunder.
SECTION 4. DELIVERY OF SERVICES
4.1 Xxxxx 0 Xxxxxx to Premises and Space. Customer shall allow Level 3 access
------------------------------------
to the Premises to the extent reasonably determined by Xxxxx 0 for the
installation, inspection and scheduled or emergency maintenance of Facilities
relating to the Service. Level 3 shall notify Customer two (2) business days in
advance of any regularly scheduled maintenance that will require access to the
Premises. Level 3 retains the right to access any Space for any legitimate
business purpose.
4.2 Xxxxx 0 Xxxxxxxxxx. Xxxxx 0 will use reasonable efforts to provide and
------------------
maintain the Facilities in good working order. Customer shall not and shall not
permit others to rearrange, disconnect, remove, attempt to repair, or otherwise
tamper with any of the Facilities. If the same occurs without first obtaining
Level 3's written approval, in addition to being a breach by Customer of
Customer's obligations hereunder, Customer shall (1) pay Level 3 the cost to
repair any damage to the Facilities caused thereby; and (2) be responsible for
the payment of service charges in the event that maintenance or inspection of
the Facilities is required as a result of Customer's breach of this Section. In
no event shall Level 3 be liable to Customer or any other person for
interruption of Service or for any other loss, cost or damage caused or related
to improper use or maintenance of the Facilities, unless the same is caused by
the negligence of Xxxxx 0, and then only to the extent of Section 5.2
4.3 Title and Power. Title to all Facilities (except as otherwise agreed)
---------------
shall remain with Level 3. The electric power consumed by such Facilities on the
Premises shall be provided by and maintained at the expense of Customer.
Electric power to the Space shall be provided by Level 3.
4.4 Customer-Provided Equipment. Xxxxx 0 may install certain Customer provided
---------------------------
communications equipment upon installation of Service and the Facilities, but
unless otherwise agreed by Level 3 in writing, Level 3 shall not thereafter be
responsible for the operation or maintenance of any Customer provided
communication equipment. Level 3 shall not be responsible for the transmission
or reception of signals by Customer-provided equipment or for the quality of, or
defects in, such transmission.
4.5 Removal of Facilities. Customer agrees to allow Xxxxx 0 to remove all
---------------------
Facilities from the Premises:
A. after termination of the Service in connection with which the Facilities
were used; and
B. for repair, replacement or otherwise as Level 3 may determine is necessary,
but Level 3 shall use reasonable efforts to minimize disruptions to the Service
caused thereby.
At the time of such removal, the Facilities shall be in the same condition as
when installed, normal wear and tear excepted. Customer shall reimburse Level 3
for the depreciated cost of any Facilities not in such condition.
4.6 Service Subject to Availability. The furnishing of Service is subject to
-------------------------------
the availability thereof, on a continuing basis, and is limited to the capacity
of Level 3 to provide the Service as well as the capacity which Level 3 may
obtain from other carriers to furnish Service from time to time as required at
the sole discretion of Level 3. Nothing in these Terms and Conditions shall be
construed to obligate Customer to submit, or Level 3 to accept, Customer Orders.
In the event Service becomes unavailable pursuant to this paragraph 4.6,
Customer shall have the rights set forth in Section 3.4 of these Terms and
Conditions.
SECTION 5. OBLIGATIONS AND LIABILITY LIMITATION
5.1 Obligations of the Customer. Customer shall be responsible for:
---------------------------
A. The payment of all charges applicable to the Service;
B. Damage or loss of the Facilities installed on the Premises or in the Space
(unless caused by the negligence or willful misconduct of the employees or
agents of Level 3);
C. Providing the level of power, heating and air conditioning necessary to
maintain the proper environment on the Premises for the provision of Service;
D. Providing a safe place to work and complying with all laws and regulations
regarding the working conditions on the Premises;
July 1, 1999
Page 19
E. Granting Level 3 or its employees access to the Premises as set forth in
Section 4.1 of these Terms and Conditions; and
F. Keeping Level 3's Facilities located on Premises free and clear of any liens
or encumbrances.
5.2 Liability. Except as provided in Section 8.4, the liability of Level 3 for
---------
damages arising out of the furnishing of or the failure to furnish Service,
including but not limited to mistakes, omissions, interruptions, delays,
tortious conduct, representations, errors, or other defects, whether caused by
acts of commission or omission, shall be limited to the extension of credit
allowances or refunds due under any applicable Service Level Agreement. Except
as provided in Section 8.4, the extension of such credit allowances or refunds
shall be the sole remedy of Customer and the sole liability of Level 3.
5.3 No Special Damages. Notwithstanding any other provision hereof, neither
------------------
party shall be liable for any indirect, incidental, special, consequential,
exemplary or punitive damages (including but not limited to damages for lost
profits or lost revenues), whether or not caused by the acts or omissions or
negligence of its employees or agents, and regardless of whether such party has
been informed of the possibility or likelihood of such damages.
5.4 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 ANY APPLICABLE SERVICE LEVEL AGREEMENT.
SECTION 6. SOFTWARE TERMS
6.1 License. If and to the extent that Customer requires the use of Licensed
-------
Software in order to use the Service supplied under any Customer Order, Customer
shall have a nonexclusive, nontransferable (except pursuant to paragraph 8.2
hereof) license to use such Licensed Software only and solely to the extent
required to permit delivery of the Service. Customer may not claim title to or
any ownership interest in any Licensed Software (or any derivations or
improvements thereto), and Customer shall execute any documentation reasonably
required by Level 3 to memorialize Level 3's existing and continued ownership of
the Licensed Software.
6.2 Restrictions. Customer agrees that it shall not:
------------
A. copy the Licensed Software except for emergency backup purposes or as
permitted by the express written consent of Level 3;
B. reverse engineer, decompile or disassemble the Licensed Software;
C. sell, lease, license or sublicense the Licensed Software; or
D. create, write or develop any derivative software or any other software
program based on the Licensed Software.
SECTION 7. CONFIDENTIAL INFORMATION
7.1 Disclosure and Use. Any Confidential Information disclosed by either party
------------------
shall be kept by the receiving party in strict confidence and not disclose to
any third party (except as authorized by these Terms and Conditions) without
the disclosing party's express written consent. Each party agrees to treat all
Confidential Information of the other in the same manner as it treats its own
proprietary information, but in no case will the degree of care be less than
reasonable care.
7.2 Restricted Use. Each party agrees:
--------------
A. to use Confidential Information only for the purposes of performance of any
Customer Order or as otherwise expressly permitted by these Terms and
Conditions;
B. not to make copies of Confidential Information or any part thereof except for
purposes consistent with these Terms and Conditions; and
C. to reproduce and maintain on any copies of any Confidential Information such
proprietary legends or notices (whether of disclosing party or a third party) as
are contained in or on the original or as the disclosing party may otherwise
reasonably request.
7.3 Exceptions. Notwithstanding the foregoing, each party's confidentiality
----------
obligations hereunder shall not apply to information which:
A. is already known to the receiving party;
B. becomes publicly available without fault of the receiving party;
C. is rightfully obtained by the receiving party from a third party without
restriction as to disclosure, or is approved for release by written
authorization of the disclosing party;
D. is developed independently by the receiving party without use of the
disclosing party's Confidential Information;
E. is required to be disclosed by law.
7.4 Publicity. This agreement grants no right to use any party's or its
---------
affiliates' trademarks, service marks or trade names or to otherwise refer to
the other party in any marketing, promotional or advertising materials or
activities. Neither party shall issue any publication or press release relating
to, or otherwise disclose the existence of, or the terms and conditions of any
contractual relationship between Level 3 and Customer, except as may be required
by law.
July 1, 1999
Page 20
7.5 Remedies. Notwithstanding any other section of these Terms and Conditions,
--------
the non-breaching party shall be entitled to seek equitable relief to protect
its interests, including but not limited to preliminary and permanent injunctive
relief. Nothing stated herein shall be construed to limit any other remedies
available to the parties.
7.6 Survival. The obligations of confidentiality and limitation of use shall
--------
survive the termination of any applicable Customer Order.
SECTION 8. GENERAL TERMS
8.1 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, including but
not limited to: acts of God, fire, flood or other catastrophes; any law, order,
regulation, direction, action, or request of any governmental entity or agency,
or any civil or military authority; national emergencies, insurrections, riots,
wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work
stoppages, or other labor difficulties. In the event any of the foregoing occur
and Level 3 is unable to deliver the Service for fourteen (14) consecutive days,
Customer shall not be obligated to pay Level 3 for the affected Service for so
long as Level 3 is unable to deliver them, provided, however, that the term of
the Customer Order respecting those Services shall be extended for a period of
time equal to the period of time for which Xxxxx 0 was unable to provide and
Customer was not required to pay for the affected Service.
8.2 Assignment or Transfer. Except with respect to a merger or sale of
----------------------
substantially all of Customer's assets, Customer may not transfer, sublease or
assign the use of Service without the express prior written consent of Xxxxx 0,
and then only when such transfer or assignment can be accomplished without
interruption of the use or location of Service. Level 3 will not unreasonably
withhold its consent. These Terms and Conditions shall apply to any transferees
or assignees. Customer shall remain liable for the payment of all charges due
under each Customer Order.
8.3 Notices. Notices hereunder shall be deemed properly given when delivered,
-------
if delivered in person, or when sent via facsimile, overnight courier,
electronic mail or when deposited with the U.S. Postal Service, (a) with respect
to Customer, the address listed on any Customer Order, or (b) with respect to
Xxxxx 0, to: Xxxxxxxxx Xxxxxxxxxxxxxx, Xxxxx 0 Communications, LLC, 0000
Xxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000. Customer shall notify Xxxxx 0 of any
changes to its addresses listed on any Customer Order.
8.4 Indemnification by Level 3. Level 3 shall indemnify, defend and hold
--------------------------
Customer harmless from any claim, loss, damage, expense or liability (including
attorney's fees and court costs) (hereinafter "Claims") made against Customer
for property damage, patent infringement or personal injury caused by Level 3's
negligence or willful misconduct.
8.5 Indemnification by Customer. Customer shall indemnify, defend and hold
---------------------------
Level 3 harmless from Claims (including Claims for patent infringement) (i) made
against Level 3 by any end user of Customer in connection with the delivery or
consumption of Service, (ii) made against Level 3 arising out of any commission
or negligent omission by Customer in connection with the Service, or (iii)
arising from Customer's negligence or willful misconduct.
8.6 Application of Tariffs. Level 3 may elect or be required to file with the
-----------------------
appropriate regulatory agency tariffs respecting the delivery of certain
Service. In the event that such tariffs are filed respecting Service ordered by
Customer, then (to the extent such provisions are not inconsistent with the
terms of a Customer Order) the terms set forth in the applicable tariff shall
govern Level 3's delivery of, and Customer's consumption or use of, such
Service.
8.7 Contents of Communications Level 3 does not monitor and shall have no
--------------------------
liability or responsibility for the content of any communications transmitted
via the Service, and Customer shall hold Level 3 harmless from any and all
claims (including claims by governmental entities seeking to impose penal
sanctions) related to such content attributable to Customer or its agents,
employees or end users.
8.8 Entire Understanding These Terms and Conditions, including any Customer
--------------------
Orders executed hereunder, constitute the entire understanding of the parties
related to the subject matter hereof. In the event of any conflict between these
Terms and Conditions and the terms and conditions of any Customer Order, these
Terms and Conditions shall control. These Terms and Conditions shall be
governed and construed in accordance with the laws of the state of Colorado.
8.9 No Waiver. No failure by either party to enforce any rights hereunder shall
---------
constitute a waiver of such right(s).
July 1, 1999
Page 21
ADDITIONAL TERMS AND CONDITIONS
FOR PRIVATE LINE SERVICE
The following additional terms and conditions are applicable where, pursuant to
a Customer Order, Customer orders metropolitan (local), city to city (within the
United States) and international (from the United States to another country)
private line, non-switchable circuits (the "Private Line Services").
1. Any state or federal tariffs applicable to the Private Line Services to be
delivered under any Customer Order are incorporated into the terms thereof.
Level 3's pricing to Customer for Private Line Services may, if required, be
subject to PUC or other regulatory approval.
2. The nonrecurring charges and monthly recurring rates for the Private Line
Services provided by Level 3 are shall be set forth in each Customer Order.
3. The rates and other charges set forth in each Customer Order are established
in reliance on the term commitment made therein, and Customer shall pay the same
in accordance therewith. In the event that Customer terminates Services ordered
in any Customer Order which is accepted by Level 3 or in the event that the
delivery of Services is terminated due to a failure of Customer to satisfy the
requirements set forth in these Terms and Conditions prior to the end of the
agreed term, Customer shall (unless Customer has made a Revenue Commitment) pay
a termination charge equal to the percentage of the monthly recurring charges
for the terminated Private Line Services calculated as follows:
A. 100% of the monthly recurring charge that would have been incurred for the
Private Line Service for months 1-12 of the agreed term; plus
B. 75% of the monthly recurring charge that would have been incurred for the
Private Line Service for months 13-24 of the agreed term; plus
C. 50% of the monthly recurring charge that would have been incurred for the
Private Line Service for months 25 through the end of the agreed term.
In the event that a Revenue Commitment is made and is then being satisfied by
Customer, Customer may terminate, rearrange or reconfigure the Private Line
Services ordered under a Customer Order without payment of the termination
charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges applicable
to such termination, rearrangement or reconfiguration.
4. Level 3 makes the Service Level Agreements in the attached Exhibit "A"
respecting Private Line Service.
July 1, 1999
Page 22
Standard Service Level Agreement (SLA)
--------------------------------------
International / US National Private Line
International/National Private Line service will be backed by a Standard Service
Level Agreement that has two components: a Service Delivery SLA and a Network
Performance SLA.
NOTE: The total number of credits per month for both Service Delivery is limited
to four days.
Service Delivery SLA
--------------------
============================================================================================
US On-net City Standard Service Delivery Intervals
(US NPLS and IPL)
============================================================================================
Nx64K, DS1, E1* DS3 0C3/0C12
--------------------------------------------------------------------------------------------
US NPLS IPL US NPLS IPL US NPLS IPL
--------------------------------------------------------------------------------------------
On-Net 20 20 30 30 40 30
working working working working working
days days days days days
--------------------------------------------------------------------------------------------
Off-Net building 30 60 45 60 60 ICB
within SSA working working working working working
(either end) days days days days days
--------------------------------------------------------------------------------------------
Off-net building 30 60 45 60 70 ICB
outside SSA (within working working working working working
50 miles) days days days days days
(either end)
============================================================================================
============================================================================================
US Domestic Served Standard Service Delivery Intervals
Off-net City1
============================================================================================
DS1 DS3 0C3
--------------------------------------------------------------------------------------------
One side of the 30 working days 45 working days 60 working days (70 days
circuit is served by would apply if the
an off-net city POP customer location served
by the gateway city is
outside of the SSA)
============================================================================================
* Off-net building must have DS3 local service availability in order to
support
** E1 delivery is available in NYC only and is dependant upon local
availability of E1 delivery
. Single toll-free number to reach Level 3 Customer Service for all customer
issues, including technical, billing, and product inquiries.
. Mean Time to Respond - Within 30 minutes
. 2 hour calendar month Average Time To Repair (ATTR)
If Level 3 fails to meet any of the guarantees above, Level 3 will review all
reported failures at the end of the month, and calculate the applicable credits:
. Any customer inquiry to the Level 3 Customer Service Center that results in
a Time to Respond of Greater than 30 minutes will result in a one day
service credit when the customer notifies Level 3 of the failure.
. ATTR is calculated as a monthly average. All reported customer trouble
tickets will be totaled over the month, then the average time to close each
ticket will be calculated. If the ATTR is greater than 2 hours, the
customer will receive a one day service credit.
July 1, 1999
Page 23
. Credits will only be applied to events where the Customer reports a failure
to the Level 3 Customer Care organization. Customers must report any
Service Delivery failures within five business days of the event
Network Performance SLA
. 99.99 % Service Availability
. Target Bit Error Rate 1
End-to-end link (Level 3 on-net) Less than 1 x 10-11 at T1 Rate
(equivalent rate for DS0 1x10-6)
End-to-end link (Non-Level 3 access) Less than 1 x 10-7 (Dependent
on local supplier)
. Target Severely Errored Seconds 2
End-to-end link (Level 3 fiber access) Less than 0.008%
End-to-end link (Non-Level 3 access) Less than 0.013% (Dependent on
local supplier)
. Availability refers to customer's access point to the Xxxxx 0 Xxxxxxxx
Xxxxxxx, including their Level 3 provided local access circuit.
. Availability does not include regularly scheduled or emergency maintenance
events, or customer caused outages or disruptions.
. Customers may report service unavailability events of longer than 15
consecutive minutes to Xxxxx 0 customer service within 48 hours of the
event. If the event is confirmed by Level 3 customer service, the customer
will receive a pro-rated service credit that equals the time of the
unavailability.
NOTES:
. All measurements are based on monthly averages.
. These guarantees only apply to the Level 3 Network (including the Local
Access to the customer). They do not apply to off-net city circuits which
do not transit the Xxxxx 0 Xxxxxxxx Xxxxxxx (or the portion the circuit
which does not transit the Level 3 Backbone)
. This SLA does not apply to periods of regularly scheduled or emergency
maintenance that Level 3 performs on its network or associated hardware and
software.
. Credits will only be applied to events where the Customer reports a network
performance failure to the Level 3 Customer Care organization.
. Customers must report any Network Performance failures (unavailability or
delay) within 48 hours (two business days) of the service affecting event
in order to receive a credit. Customers must report any Service Delivery
failures within five business days of the event.
-----------------------
1 Bit Error Rate Figure excludes periods of more than 10 seconds having error
rates equal to, or worse than 1x10-3
2 Severely Errored Seconds have bit error rates, to, or worse than 1x10-3
July 1, 1999
Page 24
ADDITIONAL TERMS AND CONDITIONS
FOR TELEPHONY AND IP COLOCATION
The following additional terms and conditions are applicable where, pursuant to
a Customer Order, Customer orders the use of space within Level 3 gateways to be
used for the purpose of colocating telecommunications equipment or equipment
used for connection to the internet (the "Space").
1. Customer is granted the right to occupy the Space identified in a Customer
Order. Customer shall be permitted reasonable access to the Space subject to any
and all rules, regulations and access requirements imposed by Level 3 governing
such access. Customer may submit multiple Customer Orders requesting use of
different Space, each of which shall be governed by the terms hereof.
2. Customer shall be permitted to use the Space only for placement and
maintenance of communications equipment. The nonrecurring and monthly recurring
charges for the Space and any Services ordered by Customer shall be set forth in
each Customer Order. Customer hereby agrees, within six (6) months of ordering
such Space, to use the Space for placement and maintenance of telecommunications
or internet access equipment. In the event Customer fails to fill said Space as
set forth herein, Level 3 has the right to reclaim the proportion of Space not
being used exclusively as indicated above, if the same is not cured within
forty-five (45) days' prior notice thereof to Customer. Customer agrees to
immediately vacate such recaptured Space and Level 3 shall reduce the Colocation
fees allocated to such recaptured Space. Customer further agrees that no refunds
shall be made to Customer regarding such recaptured Space.
3. Level 3 shall perform such janitorial services, environmental systems
maintenance, power plant maintenance and other actions as are reasonably
required to maintain the gateway in which the Space is located in a condition
which is suitable for the placement of telecommunications and internet access
equipment. Customer shall maintain the Space in an orderly and safe condition,
and shall return the Space to Level 3 at the conclusion of the term set forth in
the Customer Order in the same condition (reasonable wear and tear excepted) as
when such Space was delivered to Customer. EXCEPT AS EXPRESSLY STATED HEREIN OR
IN ANY CUSTOMER ORDER, THE 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 SPACE FOR CUSTOMER'S INTENDED PURPOSE.
4. The term of use of the Space shall begin on the later to occur of the date
requested by Customer or the date that Level 3 completes the build-out of the
Space. Customer's use of the Space beyond the initial term shall be on a
month-to-month basis, unless Customer and Level 3 have agreed in writing to a
renewal of the right to use such Space. Customer hereby agrees to pay for the
Space and any related Services for the term of this Agreement. The rates and
other charges set forth in each Customer Order are established in reliance on
the term commitment made therein. In the event that Customer terminates a
Customer Order for Space which is accepted by Level 3 or in the event that the
Customer Order is terminated due to a failure of Customer to satisfy the
requirements set forth herein or in the Customer Order prior to the end of the
agreed term, Customer shall pay a termination charge equal to the costs incurred
by Level 3 in returning the Space to a condition suitable for use by other
parties, plus the percentage of the monthly recurring fees for the terminated
Space calculated as follows:
a. 100% of the monthly recurring fees that would have been charged for the Space
for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring fees that would have been charged for the Space
for months 13-24 of the agreed term; plus
c. 50% of the monthly recurring fees that would have been charged for the Space
for months 25 through the end of the agreed term.
In the event that a Revenue Commitment is made and is then being satisfied by
Customer, Customer may terminate the Space ordered pursuant to a Customer Order
without payment of the termination charge specified above; PROVIDED, HOWEVER,
that Customer shall be responsible for payment of Level 3's then-current
standard nonrecurring charges applicable to such termination.
5. Level 3 shall use reasonable efforts to complete the build-out and make the
Space available to Customer on or before the date requested by Customer. In the
event that Level 3 fails to complete the build-out within sixty (60) days of the
date requested by Customer, then Customer may terminate its rights to use such
Space and receive a refund of any fees paid for the use or build-out of such
Space.
6. Customer shall abide by any posted or otherwise communicated rules relating
to use of, access to, or
July 1, 1999
Page 25
security measures respecting the Space. Customers use of the Space will be
immediately terminated in the event Customer or any of its agents or employees
is found in Level 3's gateway with any firearms, drugs, alcohol or is found
engaging in any criminal activity, eavesdropping, foreign intelligence, card
selling or slamming. Persons found engaging in any such activity or in
possession of the aforementioned prohibited items will be immediately escorted
from the gateway. In the event that unauthorized parties gain access to the
Space through access cards, keys or other access devices provided to Customer,
Customer shall be responsible for any damages incurred as a result thereof.
Customer shall be responsible for the cost of replacing any security devices
lost or stolen after delivery thereof to Customer. In addition, Level 3 shall
have the right to terminate Customer's use of the Space or the Services in the
event that: (a) Level 3's rights to use the facility within which the Space is
located terminates or expires for any reason; (b) Customer has violated the
terms hereof or of any Customer Order submitted hereunder; (c) Customer makes
any material alterations to the Space without first obtaining the written
consent of Level 3; (d) Customer allows personnel or contractors to enter the
Space who have not been approved by Level 3 in advance; or (e) Customer violates
any posted or otherwise communicated rules relating to use of or access to the
Space. With respect to items (b), (c), (d) and (e) immediately above, unless the
same interferes or has the potential to interfere with other Xxxxx 0 Xxxxxxxxxx
xxxxxxxxx, Xxxxx 0 shall provide Customer a written notice of the foregoing and
a 10-day opportunity to cure the same before terminating Customer's rights to
the Space.
7. Customer may sublease the Space under the following conditions: i) all
proposed sublessees must be approved, in writing, by Xxxxx 0 in Level 3's sole
discretion; ii) Customer hereby guarantees that all Sublessees shall abide by
all terms and conditions set forth between Customer and Level 3; iii) Customer
shall indemnify, defend and hold Level 3 harmless from all claims brought
against Level 3 arising from any act or omission of any subcontractor and iv)
any sublessee shall be considered customer's agent and all of sublessees' acts
and omissions and usage of the Space or Services hereunder shall be attributable
to Customer for the purposes of these Terms and Conditions.
8. Level 3 reserves the right to change the location or configuration of the
Space, provided, however, that Level 3 shall not arbitrarily or discriminatorily
require such changes. Xxxxx 0 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 Space.
9. Prior to occupancy and during the term of use of any Space, Customer shall
procure and maintain the following minimum insurance coverage: (a) Workers'
Compensation in compliance with all applicable statutes of appropriate
jurisdiction. 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 Customers
personal property located in the Space. 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. All policies shall provide that
Customer's insurers waive all rights of subrogation against Level 3. Customer
shall furnish Level 3 with certificates of insurance demonstrating that Customer
has obtained the required insurance coverages prior to occupancy of the Space.
Such certificates shall contain a statement that the insurance coverage shall
not be materially changed or cancelled without at least thirty (30) days prior
written notice to Level 3. Customer shall require any contractor entering the
Space on its behalf to procure and maintain the same types, amounts and coverage
extensions as required of Customer above.
10. Customer may order and pay for Level 3 to perform certain limited ("remote
hands") maintenance services on Customer's equipment within the space, which
shall be performed in accordance with Customer's directions. "Remote hands"
maintenance services includes power cycling equipment. Level 3 shall in no event
be responsible for the repair, configuration or tuning of equipment, or for
installation of Customer's equipment (although Level 3 will provide reasonable
assistance to Customer in such installation).
July 1, 1999
Page 26
ADDITIONAL TERMS AND CONDITIONS
FOR DEDICATED, RAPID ACCESS AND DIAL UP
INTERNET ACCESS
The following additional terms and conditions are applicable where, pursuant to
a Customer Order, Customer orders dedicated, rapid access and/or dial-up
Internet Access Service (the "Internet Access Services").
1. Any state or federal tariffs applicable to the Internet Access Services to be
delivered under any Customer Order are incorporated into the terms thereof. The
Internet Access Services shall at all times be used in compliance with Level 3's
then-current Acceptable Use Policy and Privacy Policy, as amended by Xxxxx 0
from time to time and which are available through Level 3's web site.
2. The nonrecurring charges and monthly recurring rates for the Internet Access
Services provided by Xxxxx 0 to Customer are set forth in each Customer Order.
3. The rates and other charges set forth in each Customer Order are established
in reliance on the term and/or volume commitment made therein, and Customer
agrees to pay the same. In the event that Customer terminates Internet Access
Services ordered in any Customer Order which is accepted by Level 3 or in the
event that the delivery of Internet Access Services is terminated due to a
failure of Customer to satisfy the requirements set forth herein or in the
Customer Order prior to the end of the agreed term, Customer shall (unless
Customer has made a Revenue Commitment) pay a termination charge equal to the
percentage of the monthly recurring charges for the terminated Internet Access
Services calculated as follows:
a. 100% of the monthly recurring charge that would have been incurred for the
Internet Access Service for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would have been incurred for the
Internet Access Service for months 13-24 of the agreed term; plus
c. 50% of the monthly recurring charge that would have been incurred for the
Internet Access Service for months 25 through the end of the agreed term.
Customer may, in the event that a Revenue Commitment is made and is then being
satisfied by Customer, terminate, rearrange or reconfigure the Internet Access
Services ordered under a Customer Order without payment of the termination
charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges applicable
to such termination, rearrangement or reconfiguration.
4. Level 3 provides only access to the Internet; Level 3 does not operate or
control the information, services, opinions or other content of the Internet.
Customer agrees that it shall make no claim whatsoever against Level 3 relating
to the content of the Internet or respecting any information, product, service
or software ordered through or provided by virtue of the Internet.
5. This Section 5 applies only to Customers who order Dial-Up Internet Access
Services. The Dial-Up Internet Access Services shall be used only by an officer,
director, employee or agent ("Employee") of Customer. Customer shall assure that
each Employee accessing the Dial-Up Internet Access Service abides by these
Terms and Conditions. Prior to any Employee accessing Dial-Up Internet Access
Services, such Employee will be required to accurately complete an on-line
registration process. During this registration process, each Employee will be
required to identify himself/herself through some means satisfactory to Level 3.
Pursuant to the registration process, by clicking an "ACCEPT" icon, each
Employee will (i) agree to accurately complete the registration; (ii) agree to
abide by all of the provisions, terms, limitations, conditions and restrictions
of these Terms and Conditions; and (iii) agree to use the Dial-Up Internet
Access Services in accordance with any requirements set forth in the online
registration process and for the legitimate business purposes of Customer only.
Each Employee will also receive a password which such Employee will agree to
keep in strict confidence and which will be required whenever accessing the
Dial-Up Internet Access Services.
6. If Customer orders Burstable Dedicated Internet Access Services pursuant to a
Customer Order, the Customer shall be permitted to make two (2) changes to its
Committed Data Rate each contract year, provided that such change be to a higher
Committed Data Rate.
7. This Section 7 applies only to Customers who order Dedicated Internet Access
and Rapid Access Services. Level 3 makes the following Service Level Agreements
attached as Exhibit "A" respecting Dedicated Internet Access and Rapid Access
Service.
July 1, 1999
Page 27
Standard Service Level Agreement (SLA)
--------------------------------------
Release 1
---------
Internet Dedicated Access
Dedicated Internet Access service will be backed by a Standard Service Level
Agreement that has two components: a Service Delivery SLA and a Network
Performance SLA.
NOTE: The total number of credits per month for both Service Delivery and
Network Performance is limited to four days.
Service Delivery SLA
. 30 Calendar Day Installation Guarantee for Customers buying Dedicated
Internet Access in speeds from 64 Kbps - 1.544 Kbps within the Standard
Service Area.
. 45 Calendar Day Installation Guarantee for Customers buying Dedicated
Internet Access in speeds from 3 Mbps - 45 Mbps within the Standard Service
Area.
. Single toll-free number to reach Level 3 Customer Service for all customer
issues, including technical, billing, and product inquiries.
. Time to Respond - Within 30 minutes
. 2 hour calendar month Average Time To Repair (ATTR)
If Level 3 fails to meet any of the guarantees above, Level 3 will review all
reported failures at the end of the month, and calculate the applicable credits:
. Any customer inquiry to the Level 3 Customer Service Center that results in
a Time to Respond of Greater than 30 minutes will result in a one day
service credit when the customer notifies Level 3 of the failure.
. ATTR is calculated as a monthly average. All reported customer trouble
tickets will be totaled over the month, then the average time to close each
ticket will be calculated. If the ATTR is greater than 2 hours, the
customer will receive a one day service credit.
. Credits will only be applied to events where the Customer reports a failure
to the Level 3 Customer Care organization. Customers must report any
Service Delivery failures within five business days of the event.
Network Performance SLA
Service Availability
. Availability refers to customer's access point to the Level 3 Internet
network, including their Level 3 provided local access circuit, and the
customer's port.
. Unavailability Events are defined as any outage of the Level 3 provided
local access circuit and the customer's port of longer than 15 consecutive
minutes.
. The Availability Guarantee does not extend to the performance of Internet
networks controlled by other companies, or traffic exchange points
(including NAPs and XXXx) which are controlled by other companies.
. Availability does not include regularly scheduled or emergency maintenance
events, or customer caused outages or disruptions.
. Customers may report service unavailability events of longer than 15
consecutive minutes to Xxxxx 0 customer service within 48 hours of the
event. If the event is confirmed by Level 3 customer service, the customer
will receive a pro-rated service credit that equals the time of the
unavailability.
July 1, 1999
Page 28
. 40 ms One-Way Delay Guarantee
. The Delay guarantee refers to the average delay parameters among the Xxxxx
0 Xxxxxxx xxxxx xx xxx Xxxxxx Xxxxxx. It does not extend to the customer's
local access circuit, transit or peering connections, or to circuits to the
traffic exchange points, including NAPs and XXXx.
. Delay is measured as the average delay, over a calendar month, of traffic
between all major Gateways on the Level 3 U.S. Internet network.
. Level 3 will publicly report the Average Monthly Delay measurement for the
Level 3 U.S. Internet Network at the end of every month.
. If the customer reports that Level 3 has failed to meet the Delay
guarantee, and this is confirmed by Level 3 customer service, the customer
will be issued one day service credit.
NOTES:
. All measurements are based on monthly averages.
. These guarantees only apply to the Xxxxx 0 Xxxxxxxx Xxxxxxx. They do not
apply to NAP or transit connections, or to any traffic once it leaves the
Level 3 network.
. This SLA does not apply to periods of regularly scheduled or emergency
maintenance that Level 3 performs on its network or associated hardware and
software.
. Credits will only be applied to events where the Customer reports a network
performance failure to the Level 3 Customer Care organization.
. Customers must report any Network Performance failures (unavailability or
delay) within 48 hours (two business days) of the service affecting event
in order to receive a credit. Customers must report any Service Delivery
failures within five business days of the event.
July 1, 1999
Page 29
ADDITIONAL TERMS AND CONDITIONS
FOR MANAGED MODEM - DEDICATED AND QUICKSTART
TRANSIT SERVICES
The following additional terms and conditions are applicable where, pursuant to
a Customer Order Customer orders services required to allow access to "Dedicated
Services," "Dedicated Service with QuickStart" and "Transit Services" as offered
by Level 3 (the "Managed Modem Services") ordered by Customer under any Customer
Order.
1. Any state or federal tariffs applicable to the Managed Modem Services to be
delivered under any Customer Order are incorporated into the terms thereof. The
Managed Modem Services shall at all times be used in compliance with Level 3's
then-current Acceptable Use Policy and Privacy Policy, as amended by Xxxxx 0
from time to time and which are available through Level 3's web site.
2. In the event Customer orders "Dedicated Service," end user traffic will be
routed through and aggregated in Level 3's facility, sent to the Customer's
Premises via a dedicated circuit, and then routed to its final destination by
Customer. In the event that Customer orders "Transit Services," End User traffic
will be routed to Level 3's facility and then routed to its final destination by
Level 3 via the Internet. Dedicated Service with "QuickStart" will initially be
provisioned to the Customer in the same fashion as Transit Services, until such
time as Level 3 has provisioned the dedicated circuit to send end user traffic
from Level 3's facility to the Customer's Premises. QuickStart will then be
migrated to standard Dedicated Service. Customers ordering Dedicated Services
will be required to make a portion of the Premises available to Level 3 for the
placement of equipment necessary to provide such Dedicated Services. For
Dedicated Service, all Customer CPE as well as the private line necessary to
support this service will be ordered, installed and managed by Level 3. Any
telephone numbers assigned to Customer for the purpose of providing Managed
Modem Services hereunder shall be property of Level 3; PROVIDED, however, that
Level 3 shall be obligated to release such numbers to Customer upon expiration
or termination hereof if and only if Customer is then in compliance with all of
the terms contained herein or in the General Terms and Conditions.
3. Section 1.1 of the General Terms and Conditions for Delivery of Service
notwithstanding, a Customer order for Managed Modem Service shall be accepted by
Level 3 once Level 3 has provisioned and tested the ports. Customer's billing
respecting said ports shall commence once tested and found to be functioning
properly by Level 3 notwithstanding Customer's: i) refusal to accept the ports
or ii) Customer's refusal to acknowledge communications by Level 3 to Customer
respecting the ports. Termination liability shall apply once a Customer Order
for these Services is accepted by Level 3.
4. Customer shall have the option to purchase twenty percent (20%) port overage
from Level 3. If ordered, Level 3 shall provision an additional twenty percent
(20%) of ports over the number of ports actually ordered by Customer to accept
Customer traffic in the event Customer's traffic bursts and its usage exceeds
the capacity of the ports actually ordered. In the event Customer chooses not to
purchase twenty percent (20%) port overage from Xxxxx 0, if the Customer's
traffic bursts as set forth above, Customer will get a busy signal in the event
its ordered capacity is exceeded.
5. Customer must utilize all Managed Modem ports provisioned hereunder at no
less than fifty percent (50%) of the capacity of such port. Customer agrees to
allow Xxxxx 0 to monitor Customer's utilization of the ports provisioned herein.
In the event Customer is Under-Utilizing (as defined below) such ports, Level 3
retains the right to reclaim such ports after which Customer shall have no
further right to use the ports Under-Utilized. Termination liability shall apply
to any ports reclaimed pursuant to this paragraph.
For the purpose of this Section, "Under-Utilization" shall mean the use of less
than fifty percent (50%) of the capacity of any given port for any sixty (60)
day period as determined by Level 3. Under-Utilization shall not be applicable
to the first sixty (60) day period immediately following the provisioning of any
Managed Modem port.
6. The nonrecurring charges and monthly recurring rates for the Managed Modem
Services provided by Level 3 to Customer shall be set forth in each Customer
Order. Level 3 will dedicate the specified number of ports to Customer in the
Level 3 facilities as identified in each Customer Order. Customer may be
responsible for additional monthly charges if Customer's use of the Managed
Modem Services requires and utilizes more ports than the number committed to and
ordered by Customer.
7. The rates and other charges set forth in each Customer Order are established
in reliance on the term commitment made therein, and Customer agrees to pay the
same. In the event that Customer terminates Managed Modem Services ordered in
any Customer Order which is accepted by Level 3 or in the event that the
delivery of Managed Modem Services is terminated due to a failure of Customer to
satisfy the requirements
July 1, 1999
Page 30
set forth herein or in the Customer Order prior to the end of the agreed term,
Customer shall (unless Customer has made a Revenue Commitment) pay a termination
charge equal to the percentage of the monthly recurring charges for the
terminated Managed Modem Services calculated as follows:
a. 100% of the monthly recurring charge that would have been incurred for the
Managed Modem Service for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would have been incurred for the
Managed Modem Service for months 13-24 of the agreed term; plus
c. 50% of the monthly recurring charge that would have been incurred for the
Managed Modem Service for months 25 through the end of the agreed term.
Customer may, in the event that a Revenue Commitment is made and is then being
satisfied by Customer, terminate, rearrange or reconfigure the Managed Modem
Services ordered under a Customer Order without payment of the termination
charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges for such
termination, rearrangement or reconfiguration.
8. Level 3 provides only access to the Internet; Level 3 does not operate or
control the information, services, opinions or other content of the Internet.
Customer agrees that it shall make no claim whatsoever against Level 3 relating
to the content of the Internet or respecting any information, product, service
or software ordered through or provided by virtue of the Internet.
9. Level 3 makes the Service Level Agreement attached as Exhibit "A" respecting
Managed Modem Services.
July 1, 1999
Page 31
Standard Service Level Agreement (SLA)
--------------------------------------
Release 1
---------
Managed Modem
Managed Modem service will be backed by a Service Delivery SLA.
NOTE: The total number of credits per month is limited to four days.
Service Delivery SLA
. 30 Calendar Day Installation Guarantee for Customers buying Managed Modem
service in speeds from 64 Kbps - 1.544 Kbps within
the Standard Service Area.
. 45 Calendar Day Installation Guarantee for Customers buying Managed Modem
service in speeds from 3 Mbps - 45 Mbps within the Standard Service Area.
. Single toll-free number to reach Level 3 Customer Service for all customer
issues, including technical, billing, and product inquiries.
. Time to Respond - Within 30 minutes
. 2 hour calendar month Average Time To Repair (ATTR)
If Level 3 fails to meet any of the guarantees above, Level 3 will review all
reported failures at the end of the month, and calculate the applicable credits:
. Any customer inquiry to the Level 3 Customer Service Center that results in
a Time to Respond of Greater than 30 minutes will result in a one day
service credit when the customer notifies Level 3 of the failure.
. ATTR is calculated as a monthly average. All reported customer trouble
tickets will be totaled over the month, then the average time to close each
ticket will be calculated. If the ATTR is greater than 2 hours, the
customer will receive a one day service credit.
. Credits will only be applied to events where the Customer reports a failure
to the Level 3 Customer Care organization. Customers must report any
Service Delivery failures within five business days of the event.
July 1, 1999
Page 32
ADDITIONAL TERMS AND CONDITIONS
FOR IP CROSSROADS
The following additional terms and conditions are applicable where, pursuant to
a Customer Order, Customer orders IP CrossRoads.
1. Any state or federal tariffs applicable to the IP CrossRoads Services to be
delivered under any Customer Order are incorporated into the terms thereof. The
IP CrossRoads Services shall at all times be used in compliance with Level 3's
then-current Acceptable Use Policy and Privacy Policy, as amended by Xxxxx 0
from time to time and which are available through Level 3's web site.
2. The nonrecurring charges and monthly recurring rates for the IP CrossRoads
Services provided by Xxxxx 0 to Customer are set forth in each Customer Order.
3. The rates and other charges set forth in each Customer Order are established
in reliance on the term and/or volume commitment made therein, and Customer
agrees to pay the same. In the event that Customer terminates IP CrossRoads
Services ordered in any Customer Order which is accepted by Level 3 or in the
event that the delivery of IP CrossRoads Services is terminated due to a failure
of Customer to satisfy the requirements set forth herein or in the Customer
Order prior to the end of the agreed term, Customer shall (unless Customer has
made a Revenue Commitment) pay a termination charge equal to the percentage of
the monthly recurring charges for the terminated IP CrossRoads Services
calculated as follows:
a. 100% of the monthly recurring charge that would have been incurred for the IP
CrossRoads Service for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would have been incurred for the IP
CrossRoads Service for months 13-24 of the agreed term; plus
c. 50% of the monthly recurring charge that would have been incurred for the IP
CrossRoads Service for months 25 through the end of the agreed term.
Customer may, in the event that a Revenue Commitment is made and is then being
satisfied by Customer, terminate, rearrange or reconfigure the IP CrossRoads
Services ordered under a Customer Order without payment of the termination
charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges applicable
to such termination, rearrangement or reconfiguration.
4. Level 3 provides only access to the Internet; Level 3 does not operate or
control the information, services, opinions or other content of the Internet.
Customer agrees that it shall make no claim whatsoever against Level 3 relating
to the content of the Internet or respecting any information, product, service
or software ordered through or provided by virtue of the Internet.
5. If Customer orders IP CrossRoads Services pursuant to a Customer Order, the
Customer shall be permitted to make two (2) changes to its Committed Data Rate
each contract year, provided that such change be to a higher Committed Data
Rate.
6. Level 3 reserves the right, but does not undertake the obligation, to provide
any Customer or potential customer bound by a Nondisclosure Agreement access to
a list of (i) Level 3's Customers which are connected to the IP Crossroads
Intra-Gateway Exchange Network Platform; and/or (ii) Autonomous Systems Internet
Networks connected to the IP Crossroads On-Net Transport Network Platform.
By this Agreement, Customer consents to such disclosures.
Level 3 makes no guarantee of any Customer's willingness to exchange Internet
traffic with any other customer. Level 3 will, however, use reasonable efforts
to arrange an introduction between customers or prospective customers bound by a
Nondisclosure Agreement to facilitate an agreement between them respecting the
exchange of Internet traffic.
Level 3 undertakes no obligations and accepts no liability for the
configuration, management, performance or any other issue relating to Customer's
routers or other customer provided equipment used for access to or the exchange
of traffic in connection with Level 3's IP Crossroads Service.
7. Level 3 makes the Service Level Agreement attached as Exhibit "A" respecting
IP Crossroads Service.
July 1, 1999
Page 33
[LOGO OF LEVEL(3) COMMUNICATIONS APPEARS HERE]
---------------------------------
IP CrossRoads
---------------------------------
Service Level Agreement
Level 3 IP CrossRoads Service is backed by the following Service Level
Agreement. If the Level 3 Obligation is missed, the credit set forth below will
be issued to the Customer when requested.
--------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxxxxxxx Xxxxxx
--------------------------------------------------------------------------------------------
Xxxxxxxxxxxx - Xxxxx 0 guarantees installation of IP CrossRoads Service in Level 1 day
3's standard service area, within the following time frames upon Level 3's
acceptance of a Customer order: 20 business days or less for Ethernet port
speeds of 10Mbps, 100Mbps, or 1000Mbps terminating in Level 3 Colocation
--------------------------------------------------------------------------------------------
Response Time - Level 3's response time to any issue reported to and confirmed 1 day
by Level 3 Customer Service will be 30 minutes or less. As soon as an issue is
reported, Level 3 will open a trouble ticket.
Resolution Time - Level 3's mean time to resolve ("MTTR") Customer issues 1 day
relating to the technical performance or nonperformance of Level 3's IP
CrossRoads Service will be 2 hours or less, on a monthly average basis. MTTR is
calculated by taking the monthly aggregate of time to close all trouble tickets
relating to the technical performance of Level 3's IP CrossRoads Service,
divided by the number of trouble tickets opened that month.
The Response Time and Resolution Time Obligations are depicted on the timeline
below:
[TIMELINE APPEARS HERE]
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100% Service Availability - Service Unavailability means an IP CrossRoads outage 1 day
was confirmed by Level 3 Customer Service. This outage is reported by a Customer
within 48 hours of the outage, which relates to the Customer's access point on
the Level 3 Internet Network, including the Customer's Level 3-provided port and
local access circuit. Service Unavailability does not include outages associated
with maintenance events, customer-caused outages or disruptions, the performance
of Internet networks controlled by other companies, or traffic exchange points
that are controlled by other companies. Customers will receive credits,
calculated monthly as an aggregate of all Service Unavailability events in
15-minute increments.
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Delay Guarantee - 40 ms one-way. Delay refers to the one-way average delay over 1 day
a calendar month of traffic between all major gateways on the Level 3 U.S.
Internet Network. Delay does not apply to Customer's local access circuit,
transit or peering connections, circuits to the traffic exchange points,
maintenance events, or to customer-caused outages or disruptions. Customer may
obtain a report from Level 3 if there is a question whether a delay has
occurred. This request must be made within five (5) days from the last day of
the month in question.
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Contact Level 3 Customer Service toll-free at: 1-877-4LEVEL3 (877-453-8353) for
all issues, including technical, billing, and product inquiries.
The total number of credits per month is limited to five (5) days. Customer must
request credits within five days of the end of any month to receive credits.
