CARRIER RESALE AGREEMENT
THE PARTIES:
This Carrier Resale Agreement ("Agreement") is entered into this 22 of October,
1996 between Advanced Radio Technologies Corporation, ("ART") and its
affiliates, a Delaware Corporation with its principal place of business at 000
000xx Xxxxxx, XX, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000, and Xxxxxxxx
Telephone, ("Reseller") and its affiliates, a Pennsylvania partnership, with its
principal place of business at 0 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000-0000.
RECITALS:
WHEREAS, ART is a common carrier providing broadband wireless local
telecommunications services in certain geographic areas throughout the United
States, and its primary service offering uses 38 GHz milimetric facilities;
WHEREAS, Reseller is in the business of providing long distance and/or
local telecommunications services to end users;
and
WHEREAS, ART and Reseller desire to enter into an agreement providing for
the furnishing of broadband wireless services by ART to Reseller to be
integrated into Reseller's services to end users.
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants and agreements hereinafter set forth, ART
and Reseller, intending to be legally bound, agree as follows:
1. Definitions
Definitions are contained in Attachment A.
2. Term of Agreement
The term of this Agreement shall begin on the Effective Date and shall continue
in effect for five(5) year(s) thereafter. The Agreement shall renew for
successive periods of one (1) year unless one of the parties gives written
notice not to renew no later than ninety (90) days prior to the scheduled date
of expiration of the initial period or any subsequent renewal period. The
parties acknowledge and agree that failure of either party to give notice of
termination shall give rise to a conclusive presumption that the Agreement is to
be renewed pursuant to this Section 2.
3. Scope of Agreement
ART shall provide to Reseller domestic interstate and intrastate Services
pursuant to this Agreement and to ART's tariffs ("Tariffs") governing certain of
the Services on file with the Federal Communications Commission ("FCC") and
various state regulatory commissions. This Agreement incorporates the relevant
Tariff provisions as they may be amended from time to time in accordance with
law. The Tariffs shall control the furnishing of service under this Agreement in
the event of any conflict between this Agreement and the Tariffs but only to the
extent that the Tariffs are required to control by operation of law; provided
that ART expressly agrees not to seek to amend its Tariffs if the effect is to
invalidate provisions of this Agreement except where this Agreement expressly
permits such amendment.
Capitalized terms not otherwise defined in this Agreement shall have the
meanings assigned to them in the Tariffs.
4. Services Provided by ART
4.1 38 GHz Transmission Services
ART shall provide transmission services over authorized 38 GHz facilities in
authorized areas, which services shall consist of the equipment, circuits and
connection facilities specified in the Equipment Supplement (the "Services").
Additional services may be added, from time to time, by amendment to this
Agreement in the form of the Service Order, the current version of which is
Attachment B. Payment for ART's Services by Reseller shall be in accordance with
Section 10.
4.2 Equipment
4.2.1 Equipment Supplied
In connection with the provision of Services under this Agreement, it will be
necessary for ART to install certain equipment on the premises of Reseller, the
customer of the Reseller ("End User") and/or other locations controlled by third
parties and related to the provision of Services (collectively "Sites").
Equipment to be installed on each Link includes the Outdoor Units ("ODU's"),
Indoor Units ("IDU's"), antenna and antenna mounts, monitoring equipment, power
supplies, associated hardware and cabling, and other materials necessary to
complete the installation process ("Equipment"). This Agreement also can be used
for the installation of equipment using frequencies other than 38 GHz.
4.2.2 Title and Interest
Reseller acknowledges and agrees, and shall secure the acknowledgment and
agreement of its End Users, that the Equipment is, and at all times shall
remain, the property of ART, and that the Reseller and its End Users shall have
no right, title or interest in or to the Equipment except as may be expressly
set forth in this Agreement. The Equipment is, and at all times shall remain,
2
personal property notwithstanding that it may now be or hereafter become in any
manner embedded in, affixed or attached to real property or any building
thereon. Reseller shall require its End Users to agree to keep and maintain the
Equipment free and clear of all liens, charges, security interests and
encumbrances (except any placed thereon by or with the written consent of ART).
This Section 4.2.2. shall not be interpreted to require Reseller to be
responsible for the actions of third parties.
4.2.3 Security of Equipment
Reseller and its End Users shall take all appropriate measures to secure the
Equipment from loss, destruction or damage, and prevent the possibility that the
Equipment might create environmental hazards, including but not limited to:
physical security, including without limit barriers, limited and locked access
and training of those with access; electronic security including without limit
periodic audits of its telecommunications systems and passwords; environmental
controls; and suitable power supplies.
4.2.4 Equipment Alterations
Reseller acknowledges that ART shall have complete discretion to furnish
Service using any equipment that it chooses, so long as the Services are
designed to satisfy the Performance Specifications. ART shall use reasonable
efforts to notify Reseller of any changes in Equipment that appear likely to
effect Reseller's or Customers' equipment or services prior to making any such
changes.
5. Service Ordering Procedures
5.1 Service Order Processing
In order to initiate the processing of an order for Service, the Reseller shall
submit to ART a Request for Service ("RFS"), accompanied by a Preliminary Site
Survey. ART shall examine the RES for completeness and may return the RFS to the
Reseller for additional information. Reseller shall exercise reasonable efforts
to complete and return the RES to ART within three (3) business days of receipt.
ART may elect to conduct a Detailed Site Survey and shall deliver to Reseller a
firm quote. ART shall exercise reasonable efforts to complete the Detailed Site
Survey if it is deemed necessary and the firm quote within ten (10) business
days of receipt of the completed RFS. The Reseller and ART shall execute a
Service Order, including a firm quote, which shall become an integral part of
this Agreement. ART shall exercise reasonable efforts to process the Service
Order expeditiously and in accordance with a mutually-agreeable target schedule
("Targeted Service Date").
5.2 Service Order Modification or Cancellation
3
The Reseller may modify or cancel its Service Order at any time (i) prior to the
installation of the Equipment without charge except that the Reseller shall be
responsible for all direct charges incurred to the date of cancellation that are
payable to third parties and (ii) after installation of Equipment but prior to
Service Commencement provided that Reseller shall be responsible for all charges
incurred by ART and for all direct charges incurred to the date of cancellation
that are payable to third parties. The charges set forth in this Section 5.2 are
subject to Section 5.3. Cancellations and modifications will not be accepted
unless confirmed in writing and signed by a person with authority.
5.3 Timing
ART shall exercise reasonable efforts to install the Equipment and commence
delivering Service by the Targeted Service Date but only in situations where
arrangements to obtain access to and use of the Site have been completed prior
to execution of the Service Order. Reseller expressly acknowledges that time is
not of the essence with regard to this Section 5 and that it shall not be
considered a breach of this Agreement if ART fails to commence Service by the
Service Date or fails to expeditiously process an order; provided that,
notwithstanding the provisions of Section 5.2, the Reseller may cancel a Service
Order without incurring any charges if ART fails to commence Service by the
Targeted Service Date.
5.4 Commencement of Service
Service shall commence and the Reseller shall be responsible for charges
therefore on the date that the Reseller states in writing that it has accepted
the Service in accordance with the Acceptance Criteria ("Acceptance Statement");
provided that it will be conclusively presumed that the Reseller has accepted
the Service and agrees to the commencement of charges if the Reseller has not
stated in writing, and set forth in sufficient detail its reasons therefore
which reasons shall demonstrate that the Acceptance Criteria were not met, that
the Service does not satisfy the Acceptance Criteria within five (5) business
days after the Targeted Service Date ("Service Commencement Date"). In the event
that the Reseller states that the Service does not meet the Acceptance Criteria,
ART shall have thirty (30) days ("Correction Period") within which to meet the
Acceptance Criteria. In the event that ART fails to meet the acceptance criteria
within the Correction Period, the Reseller may cancel the Service Order without
any charges or further obligation but only with regard to the Link effected. The
Targeted Service Date shall be set forth in the Service Order, and may be
amended from time to time by amendments to the Service Order. The Acceptance
Criteria are set forth in the Definitions in Attachment A hereto.
5.5 Minimum Period of Service
The minimum period for Service to be provided to the Reseller shall be one year
for each Link ordered and installed. The Reseller shall have the option to
redeploy the Link to any geographic area chosen by it for which ART holds a
license as a 38 GHz provider, provided: (i) the Reseller pays all costs to ART
including a reasonable allocation of overhead and all charges to third parties
associated with deinstallation and reinstallation of the Equipment at the Link
4
("Redeployment"); (ii) the location chosen is completely suitable for the
provision of Service under the terms of this Agreement; and (iii) Redeployment
at the location chosen does not interfere with existing or planned services by
ART. The Reseller agrees that ART's conclusions with regard to conditions (ii)
and (iii) in this Section 5.5 shall be deemed to be conclusive on the parties.
6. Related Support Services Provided by ART
ART shall supply the services set forth in this Section 6 in support of its
transmission Services ("Related Support Services"). There shall be no additional
charges for Related Support Services and they shall be included in the charges
for the Services as set forth in Section 10, except where additional charges are
set forth in this Section 6.
6.1 Site Surveys
Preliminary surveys of the Sites at which the Equipment is to be installed are
the responsibility of the Reseller as set forth in Section 9.3.1. Detailed Site
Surveys shall be conducted by ART's Field Services Department or ART's
subcontractors in the event that ART, in its sole discretion, determines that
such surveys are necessary. The primary purpose of the Detailed Site Survey is
to obtain engineering information to validate the feasibility of using 38 GHz
millimetric wave circuits and the suitability of the Site and to identify in
advance the optimal installation methods to be used and the obstruction
obstacles to be overcome.
6.2 Frequency Coordination
It is necessary to "coordinate" the frequencies to be used on the paths to be
activated with other potentially interfering frequencies used either by ART or
by third parties, and engineer the path layouts, in order to optimize path
performance. ART's Engineering Department shall be responsible for all frequency
coordination, spectrum management, path engineering and transmission engineering
in connection with the Service. In addition, ART shall maintain databases and
systems to support coordination with other 38 GHz service providers. Frequency
coordination information and engineering databases shall remain the property of
ART and shall be considered confidential information.
6.3 Installation
ART's Field Services Department or subcontractors, at ART's sole option, shall
perform all installations in connection with this Agreement. The charges for
installation are set forth in Section 10 and on Attachment C.
6.4 Maintenance and Restoral
6.4.1 Maintenance and Restoral
5
ART or subcontractors, at ART's sole option, (i) shall perform routine
maintenance and adds, moves, and changes at times to be chosen by ART, for which
ART shall give reasonable advance Notice and (ii) shall exercise reasonable
efforts to restore Service as quickly as possible in accordance with the
escalation procedures. Escalation procedures for restoring service are set forth
in Attachment D. Except as agreed otherwise, ART shall set goals of, and
exercise reasonable efforts to achieve: dispatch of field service personnel
within thirty (30) minutes and Service restoral within four (4) hours or less;
provided that the Reseller expressly acknowledges that it is not possible for
Service to be restored within four (4) hours in all instances and that it shall
not be a breach of this Agreement for Service Outages to exceed four (4) hours
by any amount, except that, as its sole remedy, Reseller shall be entitled to a
credit of one (1) month's Service for all outages within a given month for a
given Link if the total Outages exceed four (4) hours. The Outage credit under
this Section 6.4.1. is in lieu of and not cumulative with the Outage credits
pursuant to Section 11.2. If ART responds to an outage report by Reseller or End
User and no such Outage exists, then the Reseller shall be responsible for all
charges for the response to the service call at ART's current standard hourly
rates.
6.4.2 Limitations on ART's Obligation to Maintain and Restore
ART' obligations under Section 6.4.1 exclude each of the following: (i) Service
that would be unsafe or impractical because of alterations to the Equipment not
approved by ART, or its connection to equipment or devices not furnished or
approved by ART or which connection would for any reason render Service
impossible; (ii) Service using Equipment located in an unsafe or hazardous
environment; (iii) Service that cannot be restored because of elements external
to the Equipment and not under the control of ART, including, but not limited
to, adverse environmental conditions or inadequate power that are not within the
manufacturer's or ART's specifications; (iv) Service resulting from any
accident, neglect, alterations, improper use or misuse of the Equipment by
personnel not under the control of ART; (v) Service in connection with
relocation not approved by ART of any of the Equipment; and (vi) the inability
of ART to access the premises of Reseller or the End user in order to perform
installation, maintenance and repair due to limitations or restrictions imposed
by Reseller or the End User.
6.5 Network Operations Management
The ART Network Operations Center ("NOC") will provide the following services:
(i) Link alarm monitoring; (ii) Link performance monitoring; (iii) Link
performance reporting; (iv) Link performance data; (v) remote Link diagnosis;
(vi) Link restoral; and (vii) coordination and testing to the extent feasible
with operations centers operated by third parties. The NOC operates on a seven
(7) day per week twenty-four (24) hour basis to monitor all ART circuits. The
NOC provides continuous supervisory control and data acquisition (SCADA). The
NOC services to be provided under this Agreement are subject to change from time
to time, as a result of changing customer needs, without Notice and in the sole
discretion of ART.
6.6 End User Service
ART's Customer Service Department shall be available to assist End Users with
Service
6
complaints and other problems without charge, provided that the requests for
assistance are reasonable. ART shall maintain a "help" desk twenty-four (24)
hours per day, seven (7) days per week. ART shall exercise reasonable efforts to
resolve all End User service issues within twenty-four (24) hours. ART shall
establish a system of its own choosing for either reporting all End User
inquiries to Reseller or enabling the Reseller to access an ART database, such
as an electronic bulletin board, to retrieve information concerning such
inquiries and their resolution.
6.7 ART Point of Contact
ART shall assign a person as a primary point of contact for inquiries and
customer support for the Reseller, which person shall be reachable during the
business day, 8am until 6pm PT, and shall provide an escalation procedure for
resolving differences. The initial contact person shall be Xxxxx X. Xxxxxxxx,
Director of Sales NE Region.
6.8 Post Termination Support Services
In the event of a termination of this Agreement by either party, if requested by
Reseller, ART shall continue to provide ongoing service, support, maintenance
and restoral in accordance with the terms of this Agreement for all End Users
with active contracts that were sold by Reseller pursuant to this Agreement and
prior to its termination, provided that Reseller continues to pay the applicable
charges. The parties agree to cooperate to provide transition services for the
End Users with the goal of minimizing End User disruption and inconvenience.
7. Use of Subcontractors
Reseller expressly agrees that ART may use any subcontractor that it chooses
without prior approval for installation, maintenance, restoral and other field
service functions, and for any other ART obligations under this Agreement;
provided that the use of subcontractors shall not relieve ART of any of its
obligations hereunder.
8. Performance
8.1 Reseller's Right to Cancel for Non-performance
Based upon its standard engineering evaluations, Link analysis, expected weather
patterns for the Link to be installed, manufacturer's Equipment specifications,
anticipated site environment and ART's experience, except where agreed otherwise
on Attachment E, ART intends to engineer each Link to provide Service, with a
Bit Error Rate of less than 10^(-13) over each Circuit in unfaded conditions,
and Service over each Circuit that has an Availability of better than 99.995% in
the aggregate during each month. In the event that in any month the Availability
over a Link fails to meet the 99.995% goal in the aggregate during the month the
Reseller may cancel the provision of Service over that Link provided that (i)
Notice is given during the first ten (10) days of the Immediately Following
Month and (ii) the Availablity during the Immediately
7
Following Month also falls below 99.995%, which cancellation shall be effective
with the first day of the second month following the date that Notice of
cancellation is given. The Reseller shall remain fully obligated with respect to
other Service under the terms of this Agreement. The Reseller's sole remedy with
respect to performance failures of any kind shall be the right to cancel a Link
as set forth in this Section 8.1 or the Outage credits as set forth in Section
11 of this Agreement.
8.2 Limitations on ART's Duty to Perform
ART's obligation to meet the Performance Standards in Section 8.1 shall not
require ART to provide Service or Related Support Services: (i) that would be
unsafe or impractical because of alterations to the Equipment not approved by
ART, or its connection to equipment or devices not furnished or approved by ART
or which connection would for any reason render Service impossible; (ii) that
uses Equipment located in an unsafe or hazardous environment; (iii) that cannot
be restored because of elements external to the Equipment and not under the
control of ART, including, but not limited to, adverse environmental conditions
or inadequate power that are not within the manufacturer's or ART's
specifications; (iv) to restore service that was out due to any accident,
neglect, alterations, improper use or misuse of the Equipment by personnel not
under the control of ART; and (v) in connection with relocation not approved by
ART of any of the Equipment. In addition, ART shall not be liable for ART's
failure to meet the Performance Standards in Section 8.1 in the event that such
failure is due to: (a) Reseller or the End user's failure to follow procedures
for use of the Service and Equipment as provided by ART or the manufacturer from
time to time; (b) repair, modification, maintenance or relocation of the
Equipment by personnel other than ART personnel or ART designated
representatives, without the express written consent of ART; (c) abuse, misuse,
or negligence by Reseller, the End user or third parties affecting the service
and/or equipment so as to impede ART's ability to provide service; or (d) the
inability of ART to access the premises of Reseller or the End User in order to
perform installation, maintenance and repair due to limitations or restrictions
imposed by Reseller or the End User or due to any violations of Section 9.3.2 of
this Agreement.
9. Reseller's Responsibilities
9.1 Payment
ART shall invoice Reseller for the applicable charges and taxes each month. All
payments shall be due within thirty (30) days of the date stated on the face of
the invoice. Payments shall be forwarded to the address stated on the face of
the invoice. Reseller may at its option arrange for electronic forwarding of the
invoice and electronic transfer of funds ("EFT"), and shall receive a discount
of two (2) percent of the total amount of said invoice if the EFT is effective
within seventy-two (72) hours of date on the face of the invoice. ART shall
have the option without notice to impose a late payment charge of one and
one-half percent (1.5%) per month or the maximum amount allowable by law on any
past due charges. The Reseller agrees to pay all costs, including reasonable
attorney's fees, expended in collecting past due charges. All invoices shall be
conclusively presumed to be accurate unless the Reseller notifies ART to the
contrary within sixty (60) days of the receipt of the invoice, except where the
incorrectness could not have
8
been discovered with due diligence within that period. Reseller shall not be
relieved of its responsibility for timely payment because of any conduct or
nonpayment by the End User.
9.2 Conduct
Reseller shall not represent that it is an agent or otherwise a representative
of ART, without ART's prior written permission. Reseller and ART each pledge to
each other that they will conduct their business affairs at all times with the
highest standards of honesty, fair dealing and ethics.
9.3 Sites
9.3.1 Preliminary Site Survey
The primary purpose of the Preliminary Site Survey is to provide preliminary
technical and administrative information so that ART Field Services and
Engineering can make an initial determination of whether a proposed radio link
is feasible and whether a Detailed Site Survey is required. A Preliminary Site
Survey shall be performed by Reseller personnel or agents, when such personnel
or agents are authorized and certified by ART to perform such surveys. The
Reseller shall bear the entire expense of such preliminary site survey,
including direct and indirect personnel expenses. The Reseller's designated site
survey persons shall undertake training and certification at ART's expense and
at reasonable times and places chosen by ART. The personnel performing the
Preliminary Site Survey shall complete and promptly forward to ART the results
of the survey in such form as ART shall designate from time to time.
9.3.2 Site Acquisition and Access
Reseller shall be responsible for all costs and charges, recurring and
nonrecurring, associated with acquisition of Sites for the installation of the
Equipment, use of the Sites by ART for the provision of its Service and access
to those Sites in connection therewith, with the provision of Services by ART,
including but not limited to (i) acquiring the necessary zoning, permits and
other municipal approvals for the installation of the Equipment and use of the
site, (ii) paying any annual taxes or fees associated therewith and (iii)
obtaining twenty-four (24) hour emergency access to the Site to install,
maintain and restore Service and access during the normal business day for
installation and routine maintenance. ART shall exercise reasonable efforts to
assist the Reseller in its site acquisition efforts. At Reseller's request, ART
shall provide its Site Acquisition Services at standard rates plus reasonable
travel expenses from, at ART's sole option, ART's headquarters or the nearest
staging area.
9.4 Access to End User Premises and Service-Related Equipment
During the term of this Agreement, the Reseller shall arrange for ART or its
representatives to have access to the End User premises or other premises in
control of third parties where the Equipment is located ("Equipment Premises")
for the purpose of installation, testing, preventive maintenance and Service
restoral. Where the nature of the access permits advance notice, ART
9
shall give reasonable advance notice and shall schedule the visits during
business hours. Where the nature of the does not permit an advance scheduling,
including but not limit to emergency or restoral situations, the Reseller shall
arrange for ART or its representatives to have immediate access where possible
to the Equipment Premises and all Equipment located therein, and fully assist
and cooperate with ART in remedying the emergency or Outage.
9.5 Reseller Point of Contact
The Reseller shall appoint a person, who shall be the primary point of contact
for ART, which person shall be reachable during the business day, from 8am until
6pm, using the time standard in effect at the Reseller address first listed
above. The initial contact person by name and title shall be R. Xxxxxxxx Xxxx,
Jr., President.
9.6 End User Contacts and Billing
Reseller shall perform all End User contacts, selling, marketing and billing at
Reseller's sole expense. Reseller shall negotiate service orders with the End
User and notify ART for service order fulfillment. Conduct and operations of the
End Users shall be the sole responsibility of the Reseller.
9.7 End User Performance
Reseller shall enter into an agreement with each of its End Users that requires
the End User to perform all obligations imposed upon the End Users by this
Agreement. In addition the Reseller shall ensure that the End User (i) exercises
reasonable efforts to protect the Site and equipment from damage or loss; and to
prevent any obstructions that would interfere with line of sight along the Link
and (ii) promptly reports any developments including but not limited to
activities or planned activities, including without limitation new antenna masts
or buildings or other structures, that obstruct or might obstruct line of sight
along the Link.
10. Wholesale Pricing
ART shall have the option to increase or decrease its Wholesale Pricing at any
time and with regard to any Service Area; provided that ART provides notice of
such change to the Reseller, in writing and ninety (90) days before the
effective date of the price change. The Wholesale Rates in effect at the time of
the execution of this Agreement are set forth in Attachment C and shall remain
in effect for the purposes of this Agreement until further Notice in accordance
with this Section 10. No increase in rates under the terms of this Section 10
shall apply to any Circuits that had been the subject of a Service Order on the
date that ART notifies Reseller of an increase.
10.1 Installation Charges
Installation is charged on a per DS1 or DS3 circuit basis, with differing
charges depending on the capacity and type of the Equipment actually installed
and the environment of the Site. The rate may be decreased, at ART's sole
option, for additional DS1s for the same end user between the same two points.
The charge for installation may vary by state and by city. The Standard
Installation Charge is for a Standard Installation and assumes reasonable access
to the Equipment
10
locations and that the locations meet Minimal Acceptable Site Criteria. The
Equipment that is part of a Standard Installation is listed in Attachment F. The
charges for a Standard Installation are set forth in Attachment C. If the
installation requires the purchase and installation of Additional Equipment or
additional labor, there will be an additional charge as set forth in Attachment
G or as stated by ART when an order is accepted.
10.2 Service Charges
The charges for Service are set forth in Attachment C.
11. Outages
11.1 ART's Liability for Outages
All liability of ART for interruptions, errors, omissions, outages or defects
occurring in the course of furnishing Service and not caused by actions of the
Reseller or third parties ("Outages") shall be strictly limited, at the sole
option of the Reseller, either to (i) termination without further liability of
Service over the Link on which the Outage occurred or (ii) Outage credits
against sums paid or to be paid in an amount determined in accordance with
Section 11.2 ("Credit"). Reseller must elect either remedy (i) or (ii) but not
both. Credit for Outages shall be allowed only when Outages are caused by or
occur in the facilities or Services provided by, operated or serviced by ART. No
Credit shall be allowed for Outages due to the failure of facilities, services
or equipment not provided, operated or serviced by ART or the acts or omissions
of Reseller, End User or third parties. No Credit shall be given for any Outages
caused by testing or emergency interruptions, or by routine maintenance provided
that ART has given Reseller appropriate advance notice of such maintenance. The
Reseller or End User must promptly notify ART of any Outages and include details
of such Outages.
11.2 Determination of Outage Credits
An Outage will be deemed to occur at the beginning of any period of time when
performance falls below the following standard: there are ten consecutive
seconds ("Severely Errored Seconds") when the bit error rate over the Circuit is
greater than 10^(-3) for each second ("Errored Period"). Outages will be deemed
to start upon the earlier of either the time upon which ART receives Notice from
the Reseller or the End User that an Outage has commenced or the time that ART
becomes aware of the Outage; provided that, if ART is informed or becomes aware
of the Outage within two hours of its commencement, the Outage will be deemed to
have commenced at the first of the Severely Errored Seconds. The Outage will be
deemed to cease when the Service is restored to the performance standards set
forth in this Section 11.2. Outage Credits will be given for each day ("Credit
Day") during which there are at least two Errored Periods that are not
consecutive or three consecutive Errored Periods. Credits will be given against
the monthly recurring charges on the basis of a thirty day assumed month, at the
rate of each Credit Day being 1/30th of the recurring charge. In any month in
which there are three successive Credit Days or five total Credit Days, the
Reseller shall be given credit for the entire month. Credits will only be given
on a Circuit by Circuit basis.
11
12. Licensing & Regulatory Matters
12.1 Good Standing; Future License Acquisition
ART shall be responsible for obtaining from others or for maintaining in good
standing appropriate authorizations from the Federal Communications Commission
("FCC") as a licensee in the millimetric wave frequencies at 38 GHz to construct
and operate (or permit others to construct and operate) radio equipment
necessary to provide service to end users under this Agreement; provided that
nothing in this Agreement shall be construed to require ART to continue to
prosecute any pending authorization applications or file for any additional
authorizations after the Effective Date.
12.2 Common Carrier Certification
Subject to Section 12.1, ART and Reseller each shall be responsible for
obtaining common carrier or other appropriate authorizations from the FCC and
state utility commissions and, to the extent required, to file tariffs wherever
necessary to provide the services contemplated by each under this Agreement;
provided that each party shall have complete discretion as to the terms and
conditions of its tariffs and geographies except to the extent compelled to do
otherwise by this Agreement.
12.3 Municipal and Local Government Regulatory Compliance
Reseller shall be responsible for complying with zoning, environmental, and
other rules and regulations imposed by municipal or other local governmental
units with respect to the Service and Equipment, provided that ARTs sole remedy
for Reseller's breach of this Section 12.3 is to seek indemnification from the
Reseller in accordance with Section 17.12.1 and that ART shall be responsible
for ensuring that the Equipment operates within any applicable environmental and
safety standards; provided, however, that Reseller shall be responsible for
ensuring that the location of the equipment is suitable for ART's operations and
that there are no impediments to full, continuous and safe operation of ART's
equipment.
13. Intellectual Property Rights
13.1 Trademarks, Tradenames and Branding
This Agreement does not waive either party's common law or statutory rights in
its respective trademarks and tradenames. Each party shall request prior
approval for use of the other party's trademarks, tradenames, logos, logotype
and corporate name in any promotional, marketing, reporting, materials,
including but not limited to hard copy, video, and electronic media, with a
12
likelihood of public distribution. Such approval shall not be unreasonably
withheld. All Services sold by Reseller hereunder shall carry the Reseller
tradename, unless otherwise directed in writing by Reseller and agreed to in
writing by ART.
13.2 Inventions, Patent Rights, Copyrights, Trade Secrets and KnowHow
Each party shall retaln all rights in patents, inventions, copyrights, trade
secrets, and technical know how existing prior to this Agreement or
independently developed after the Effective Date of this Agreement. Use,
implementation, transfer or other disclosure of either party's intellectual
property in support of or in connection with this Agreement, whether indirect or
direct, shall not affect the intellectual property rights of the originating
party. Rights to mutually developed intellectual property will be negotiated in
good faith independent of the terms and conditions of this Agreement.
13.3 Software and Firmware
Any software or firmware provided to Reseller under this Agreement shall be
licensed to Reseller to install and use on Equipment provided by ART under this
Agreement. Reseller covenants and agrees to use such software or firmware
provided to it only for the purposes contemplated by this Agreement, and
Reseller retains no right, implied or otherwise, to use, transfer this software
or firmware to any other equipment and will not permit such software or firmware
to be copied or disclosed to third parties without the express, prior written
consent of ART. Upon the termination of this Agreement, Reseller agrees to
return all copies of such software and firmware to ART within thirty (30) days
of such termination.
14. Limitation of Liabilities
EXCEPT AS EXPRESSLY SET FORTH HEREIN, ART MAKES NO WARRANTIES OF ANY KIND WITH
RESPECT TO ANY OF THE EQUIPMENT, SERVICES, AND RELATED SUPPORT SERVICES, WHETHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY
REPRESENTATION OR DESCRIPTION. WITH RESPECT TO THE FURNISHING OF SERVICES TO
THIRD PARTIES AND/OR CUSTOMERS, NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE
TO THE OTHER PARTY, OR ANY CUSTOMER OF SUCH OTHER PARTY, OR ANY OTHER PERSON,
INCLUDING, FOR EXAMPLE, A PERSON BUYING COMMUNICATION SERVICES FROM A CUSTOMER
OF SUCH OTHER PARTY, FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, AND INCLUDING, BUT NOT LIMITED TO, LOST REVENUES, ANY
CLAIM OF ANY CLIENT, CUSTOMER, OR PATRON FOR LOSS OF SERVCIES, LOST PROFITS, OR
REVENUES, OR COST OF SUBSTITUTE PERFORMANCE, EQUIPMENT, OR SERVICES ARISING
UNDER THIS AGREEMENT.
15. Confidentiality
13
In connection with this Agreement, each party may disclose or otherwise make
available certain data or information to the other party, which data or
information the disclosing party considers to be confidential and proprietary.
As used herein, "Confidential Information," means any nonpublic information,
including end user and vendor lists, business plans and proposals, financial
information, marketing information, problem solving methods, implementation
steps, know how, technology, trade secrets and drawings and renderings related
to each party's ongoing and proposed businesses, products and services which are
being provided or which have been provided to the receiving party by the
disclosing party, or which are obtained by the receiving party from its meetings
and contacts with the disclosing party, or any information derived by receiving
party from information so provided or obtained. Confidential Information
includes all written or electronically recorded materials identified and marked
as confidential or proprietary or which on their face appear to be confidential
or proprietary, and oral disclosures of Confidential Information by the
disclosing party which are identified as confidential or proprietary at the time
of such oral disclosure.
Confidential Information does not include any of the following: (a) information
that is in or becomes part of the public domain without violation of this
Agreement by the receiving Party; (b) information that was known to or in the
possession of the receiving party on a nonconfidential basis prior to the
disclosure to the receiving party by the disclosing party; information that was
developed independently by the receiving party's employees, which employees have
had no access to the Confidential Information; (d) information that is disclosed
to the receiving party by a third party under no obligation of confidentiality
to the disclosing party and without violation of this Agreement by the receiving
party; or (e) is authorized by the disclosing party in writing for disclosure or
release by the receiving party.
The parties agree: (a) to treat and keep as confidential and proprietary all
Confidential Information disclosed by the other party; (b) to advise each
employee to whom any Confidential Information is to be made available of the
confidential nature of such Confidential Information and of the terms of this
Agreement; to promptly return to the disclosing party (or its designees), upon
the disclosing party's request, all Confidential Information and all copies. The
receiving party shall have discharged its obligation to safeguard the
Confidential Information received hereunder only if it has exercised the same
degree of care as it uses to protect its own proprietary information of like
importance.
The parties agree to keep confidential the terms of this Agreement, including
but not limited to information relating to the prices charged and services
provided by ART. The parties further agree that any disclosures concerning this
Agreement or the terms and conditions shall require the mutual consent of ART
and Reseller, except as to such disclosures that may be required to comply with
securities laws, court order or similar order of an administrative or regulatory
agency, and in connection with relevant government agency communications.
Notwithstanding the foregoing, either party shall be entitled to disclose this
Agreement and the terms and conditions to its financing sources, and to its
auditors, attorneys and other agents to the extent necessary to enforce such
party's right or perform its obligations pursuant to this Agreement.
14
16. Termination
16.1 Termination for Default
Either party may terminate this Agreement immediately upon any of the following
events: (i) failure to perform an obligation under this Agreement, or committing
a breach of this Agreement, and failure to cure such breach within thirty (30)
days following delivery to such defaulting party of a written notice of the
breach ("Notice"); provided that (a) if the cause of such breach is a Force
Majeure condition as defined in Section 17.10, the period for remedying such
breach shall be extended by the time measured by any delay from the Force
Majeure condition, except that, notwithstanding the foregoing, either party may
terminate if the Force Majeure condition extends beyond ninety (90) following
Notice and (b) if the breach by its nature cannot be cured within thirty (30)
days, the period for remedying such breach shall be extended for ninety (90)
days from Notice provided that the breaching party has exercised its best
efforts to cure the breach from the Notice; or (ii) if the other party becomes
insolvent or makes an assignment for the benefit of its creditors, or if a
committee of creditors or other representative is appointed to represent its
business, or if a voluntary or involuntary petition under any section of a
bankruptcy or similar act shall be filed by or against such other party and that
party fails within ninety (90) days following the appointment of such committee
or representative or the filing of any such involuntary petition to cause the
discharge of such committee or representative or the dismissal of such
involuntary petition.
16.2 Effect of Termination
(i) No termination of this Agreement shall effect any accrued rights or
obligations of any party as of the effective date of such termination nor shall
it affect any rights or obligations of any party which are intended by the
parties to survive any such termination. (ii) The right of any party to
terminate this Agreement is not an exclusive remedy, and any party shall be
entitled, alternatively or cumulatively, to other remedies permitted under the
terms of this Agreement. (iii) Upon termination or expiration of this Agreement,
each party promptly shall: (a) remove and return to the other party, or
obliterate, at the providing party's option, any material supplied by that party
and provide the other party with access to collect and retrieve any and all
equipment installed pursuant to this Agreement; (b) notify and arrange for all
publishers and others who may identify, list or publish either party's name as a
marketer, promoter or supporter of Services including, but not limited to,
publishers of telephone directories, yellow pages, and other business
directories, to discontinue these listings within six months of the termination
date of this Agreement or before the publication of a subsequent version of the
directory, whichever may occur earliest; and (c) certify to the other party of
and describe in detail all work in process under this Agreement. (iv) Reseller
shall pay in full to ART any and all amounts then due and owing, and not
reasonably in dispute, within thirty (30) days of termination of this Agreement.
17. General Provisions
17.1 Assignment
15
Reseller shall not assign or transfer any of its rights or obligations hereunder
without the prior written consent of ART, which consent shall not be
unreasonably withheld or delayed if the assignee or transferee (i) expressly
assumes in writing the terms and conditions of this Agreement and (ii) satisfies
ART's reasonable requirements concerning the assignee's/transferee's human
resources to satisfy its obligations under this Agreement, financial condition,
creditworthiness and general business reputation. ART may assign this Agreement
(i) without notice or consent, to any Affiliate that agrees in writing to be
bound by the terms hereof (ii) without Notice or consent, on a contingent basis
to a financial service organization to secure any debt or lease payment, or
(iii) to any other entity that expressly assumes in writing the terms and
conditions of this Agreement upon prior consent from Reseller, which consent
shall not be unreasonably withheld. Any attempted assignment in violation of the
terms of this Section 17.1 will be void.
17.2 Benefit/Binding Nature
This Agreement shall inure to the benefit of and shall be binding upon the
parties and their successors and assigns.
17.3 No Third Party Beneficiaries
This Agreement is made solely for the benefit of the parties hereto and their
respective successors and assigns.
17.4 Authority and Acknowledgment
Each party represents and warrants that it has full power and authority to enter
into and perform under this Agreement and that the person signing this Agreement
has been properly authorized to do so. Each party further acknowledges that it
has had an adequate opportunity to consult counsel, that it has carefully read
each provision of this Agreement and understands this Agreement and that it
agrees to be bound by all of its terms, conditions and provisions.
17.5 Controlling Law
All questions concerning the validity and operation of this Agreement and the
performance of the obligations imposed on the parties under this Agreement shall
be interpreted and construed in accordance with the domestic laws of the State
of Pennsylvania even if its choice of law provisions or statutes are in conflict
with this requirement.
17.6 Regulatory Approval
This Agreement is subject to any regulatory approvals which may be required and
may be terminated by either party if any governmental or regulatory agency
imposes rules or regulations affecting the relationship between the parties in a
material way, provided that the imposition of such rules or regulations shall
not be construed to relieve the party affected by such rules or
16
regulations from any duty under Sections 10.1, 10.2, 14, and 15 and from being
considered in breach for failure to carry out that obligation.
17.7 Dispute Resolution and Consent to Jurisdiction and Forum Selection
The parties agree that all disputes, claims or controversies between them
arising out of or relating to this Agreement shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). Decisions of the arbitration panel shall be based upon
Pennsylvania State law. The Site of such arbitration shall be in Northhampton
County, Pennsylvania, or the closest other site agreed to by the AAA. This
choice of venue intended by the parties to be mandatory and permissive in nature
and each party waives any right it may have to assert the doctrine of forum non
conveniens or similar doctrine or otherwise object to venue as stated herein.
The arbitration panel shall consist of three arbitrators, one arbitrator to be
selected by each party and the third arbitrator to be selected by the other two
arbitrators. Any decision rendered by the arbitration panel pursuant to this
provision shall be concurred in by a majority of the members of the panel.
Judgment may be entered by any court of competent jurisdiction. Arbitration
pursuant to this section shall be the exclusive means of resolving any dispute,
claim or disagreement arising hereunder. The prevailing party in the arbitration
shall be entitled to reimbursement from the other party for all costs of the
arbitration including but not limited to fees and expenses paid to the AAA and
its own reasonable attorneys' fees.
17.8 Relationship of the Parties; No Agency or Partnership
The relationship between the parties under this Agreement is solely that of
independent reseller and service provider. It is agreed and understood that
neither party is an agent, employee or legal representative of the other, and
has no authority to bind the other in any way. Nothing in this Agreement shall
be deemed to constitute ART and Reseller as partners, joint venture partners, or
otherwise associated in or with the business of the other, and neither party
shall be liable for the debts, accounts, obligations or other liabilities of the
other party, its agents or employees. Neither party is authorized to incur debts
or other obligations of any kind on the part of or as agent for the other except
as may be specifically authorized herein.
17.9 Publicity
Neither party shall make any press release or other public announcement of or
otherwise disclose this Agreement, its contents, or the transactions herein
contemplated without the prior approval of the other party unless required by
law, regulation, court order or rule of any securities exchange, in which case
the disclosing party shall promptly inform the other party of such disclosure
and shall permit it to intervene to object if such is permitted. The foregoing
shall not prohibit either party from disclosing this Agreement or its contents
to its attorneys, accountants or other advisors provided they are informed of
and bound by this Section 17.9.
17.10 Force Majeure
NEITHER PARTY SHALL BE LIABLE FOR DELAYS IN PERFORMANCE, OR
17
FAILURE TO PERFORM, THIS AGREEMENT OR ANY OBLIGATIONS HEREUNDER, WHICH ARE
ATTRIBUTABLE TO CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED
TO OBSTRUCTION OF LINE OF SIGHT BETWEEN SITES, FIRE, FLOOD, EPIDEMIC,
EARTHQUAKE, ACT OF GOD, LIGHTNING, PUBLIC POWER FAILURE OR SURGE, EXPLOSION,
STRIKE OR OTHER LABOR DISPUTE, RIOT OR CIVIL DISTURBANCE, WAR OR ARMED CONFLICT,
OR ANY OTHER SIMILAR OCCURRENCE NOT WITHIN ITS CONTROL.
17.11 Insurance
Both parties shall provide insurance or provide self insurance during the term
of the Agreement for Worker's Compensation insurance and comprehensive general
liability. The liability insurance policies shall insure against loss or damage
on account of claims for bodily injuries, death or property damage suffered by a
person or persons in connection with each party's performance of this Agreement
and shall be in the combined limit amount of One Million Dollars ($1,000,000)
for each occurrence. Each party shall cause to have the other party named as an
additional insured on all required and necessary insurance policies.
Certificates of Insurance shall be issued to each party by the other party
within sixty (60) days following the Execution Date.
17.12 Indemnification
17.12.1 Indemnification of ART by Reseller
Reseller shall indemnify ART against, and hold ART harmless from all
liabilities, claims, damages, losses, demands, costs, judgments and expenses
(including reasonable attorneys' fees) arising out of or in connection with this
Agreement for personal injury or damage to tangible property caused by the acts
or omissions of Reseller or Reseller's employees, agents or invitees. In no
event shall ART's employees, agents or invitees be deemed to be employees,
agents or invitees of Reseller.
17.12.2 Indemnification of Reseller by ART
ART shall indemnify Reseller against, and hold Reseller harmless from all
liabilities, claims, damages, losses, demands, costs, judgments and expenses
(including reasonable attorneys' fees) arising out of or in connection with this
Agreement for personal injury or damage to tangible property caused by the acts
or omissions of ART or ART's employees, agents or invitees. In no event shall
Reseller's employees, agents or invitees be deemed to be employees, agents or
invitees of ART.
17.12.3 Duty to Notify and Assist
If any claim arises to which the provisions of this Section 17.12.3 may be
applicable, the party against whom such claim is made shall notify the other
party immediately upon learning of the claim. If it appears that the other party
may be obligated to provide indemnification as a result of
18
such claim, the other party, in its discretion, may settle or compromise the
claim or retain counsel of its own choosing and control and prosecute the
defense against such claim. In no event shall the party against whom the claim
is asserted have the right to pay, settle or compromise such claim without the
prior written consent of the party who may be obligated to indemnify under this
Section 17.12.3, and the parties hereto agree that they will not unreasonably
withhold consent to such payment, settlement or compromise. The party against
whom the claim is asserted shall provide the other party such assistance as may
be reasonable in the defense and disposition of such claim.
17.13 Notices
All notices, demands or other communications which are required or may be given
under this Agreement shall be given or made in writing, and shall be delivered
personally or by overnight air courier or first class certified or registered
mail, return receipt requested and postage prepaid to the persons and addresses
listed below, or to such other persons and/or address as the party to whom
notice is to be given has furnished to the other party. Each such notice, demand
or other communication shall, simultaneously with its being delivered to the
courier or messenger for delivery or placed in the mail, be sent by facsimile or
comparable electronic means. All notices and other communications hereunder
shall be deemed to have been given: (a) on the date of delivery if personally
delivered or, if not delivered on a business day, the first business day
thereafter; (b) on the first business day after the date sent if sent by
overnight air courier; or (c) on the fifth business day after the date sent if
sent by certified registered mail.
If to ART: If to Reseller:
Xxxxxx X. Xxxxxx R. Xxxxxxxx Xxxx, Jr.
President President
000000xx Xxx. XX, Xxx. 0000 Xxxxxxxx Telephone
Xxxxxxxx, XX 00000 0 Xxxxxxxxx Xxxxx
000.000.0000 Xxxxxxxxx, XX 00000-0000
206.688.0703 000.000.0000
610.861.8718
with copy to: with copy to:
W. Xxxxxxxx Xxxxxxx, Xx., Esq. Xxxx X. Xxxxxx
ART General Counsel Xxxxxx & Xxxxxx
c/o Xxxxxxx, Xxxxxxx & Xxxxxx 000 Xxxx Xxxxx Xxxxxx
0000 X Xxxxxx, XX, Xxx. 000 Xxxxxxxxx, XX 00000
Xxxxxxxxxx, X.X. 00000 610.865.2742
202.466.3044 000.000.0000
Fax 000.000.0000
17.14 Period of Limitations
19
Any claim arising from or in connection with this Agreement must be brought to
the attention of the other party in writing within one hundred eighty (180) days
of the event alleged as giving rise to an action, and any action arising from or
in connection with this Agreement must be brought within one (1) year after the
cause of action arises under this Agreement.
17.15 Section Headings
All Section Headings used in this Agreement are for convenience or reference
only and are not intended to define or limit the scope of any provisions of this
Agreement
17.16 Survival
The provisions of this Agreement that by their nature and context are intended
to survive the execution, delivery, performance and termination of this
Agreement, shall so survive and shall continue in force and effect until the
applicable limitations period has expired.
17.17 Waiver
No waiver of any right or remedy in respect to any occurrence or event on one
occasion shall be deemed a waiver of such right or remedy in respect of such an
occurrence or event on any other occasion.
17.18 Severability
If any portion of this Agreement is held to be invalid by a court of competent
jurisdiction, that provision shall become ineffective and unenforceable. The
parties agree that such invalidity shall not affect the validity of the
remaining portions of this Agreement and they further agree to substitute for
the invalid provision a valid provision that most closely approximates the
effect and intent of the invalid provision.
17.19 Interpretation
The words and phrases used herein shall have the meaning generally understood in
the telecommunications industry and the microwave radio industry. This Agreement
shall be construed in accordance with its fair meaning.
17.20 No Offsets
The payments required under this Agreement shall be due on time and neither
party may offset any such payment because of any claim hereunder.
17.21 Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall, when executed, be deemed to be an original, but all of which together
shall constitute one and the same
20
instrument. This Agreement may be executed and deemed effective and binding if
executed and exchanged by facsimile, provided that promptly thereafter original
signatures are exchanged.
17.22 Integration
This Agreement and all Attachments hereto constitute the entire agreement
between the parties hereto and supersedes all prior representations, agreements,
understandings and arrangements, oral or written, between the parties with
respect to the subject matter. All Preambles, Recitals, Background and
Statements of Purpose are expressly excluded from this Agreement. This Agreement
allocates the risks of loss among the parties according to their express
agreement, which allocation is reflected in the charges and terms and conditions
set forth herein. Except as otherwise provided for herein, this Agreement may
not be released, discharged, amended, or modified in any way except by a writing
that expressly refers to this Agreement and is executed by all parties hereto.
IN WITNESS WHEREOF, and intending to be legally bound, the undersigned parties
have duly executed this Agreement effective as of the date first above written.
ADVANCED RADIO TECHNOLOGIES. XXXXXXXX TELEPHONE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ X.X. Xxxx, Junior
----------------------- ---------------------
Name: Xxxxxx X. Xxxxxxx Name: X.X. Xxxx, Xx.
--------------------- ------------------
Title: VP/GM, NE Title: Pres.
--------------------- ------------------
Date: 29 Oct 96 Date: 11-13-96
--------------------- ------------------
21
ATTACHMENTS
A. Definitions
B. Current Version of Service Order
C. Charges for Services and Standard Installation
D. Escalation Procedures for Restoring Service
E. Performance Agreement
F. Standard Installation Equipment
G. Additional Equipment and Charges
22
Attachment A
Definitions
As used in this Agreement, the following terms shall have the following
meanings:
"Acceptance Criteria" shall mean that the circuit is able to successfully
transmit and receive voice and/or data traffic between the two Demarcation
Points that define the ART portion of the circuit.
"Affiliates" shall mean any corporation or other entity which, directly or
indirectly, owns or controls, either de facto or de jure, the first entity, or
is directly or indirectly owned or controlled, either de facto or de jure, by
the first entity.
"Availability of 99.995%" shall mean a Circuit that, for a defined period of
time, the number of Severely Errored Seconds is less than .005% of the total
seconds in the period.
"Bit Error Rate" shall mean the number of bits unintentionally changed in the
course of transmission relative to a specific quantity of bits transmitted;
usually expressed as a number referenced to a power of 10.
"CAP" shall mean a Competitive Access Provider and is synonymous with the term
CLEC.
"Circuit" shall mean any individual XX-0, XX-x, XX-0 or other data transmission
service provided in total or in part by ART.
"CLEC" shall mean a company that is not the traditional LEC and furnishes local
exchange service pursuant to state authorization using primarily fiber optic
cable.
"Demarcation Point" shall mean the interface between the portion of a circuit
provided by ART and any portion of the circuit not provided by ART.
"Standard Installation" shall mean an installation where both radios are roof
mounted, no core boring penetrations are necessary, access is unrestricted
during normal business hours, and the installation can be accomplished in one
concurrent eight (8) hour period.
"IDU" shall mean the Indoor Unit, consisting of electronics that are part of the
ART-supplied 38 GHz radio transceiver, which is located typically within a
building on the End user's Premises and is connected to the ODU by coaxial
cable, usually RG 8.
"ODU" shall mean the Outdoor Unit, consisting of an antenna, antenna mount or
mast and electronics that are part of the ART-supplied 38 GHz radio transceiver
and which is located
23
typically on the roof of a building or tower, but which may be mounted inside of
a window and which is connected to the IDU by coaxial cable, usually RG 8.
"PT" shall mean either standard clock Pacific Time or daylight Pacific clock
Time whichever is applicable.
"DS0" shall mean a Digital Signal Zero, which is a circuit with a bandwidth of
64 kilobits per second, which is the capacity necessary to carry a single voice
conversation.
"DS1" shall mean Digital Signal One, which is a circuit with a bandwidth of
1.544 megabits per second, roughiy 24 times that of DS-0. ADS-1 is also known as
a T-l.
"D53" shall mean Digital Signal Three, which is a circuit with a bandwidth of 45
megabits per second. A D-3 is also known as a T-3.
"End User" shall mean the Customer of the Reseller, which is responsible for the
content of the transmissions.
"Equipment" shall mean the equipment installed by ART and set forth in the Link
Inventory List.
"Force Majeure" shall mean the factors set forth in Section 18.10 that are
considered to excuse performance.
"Notice" shall mean the notice provisions set forth in Section 18.12.3.
"Outage" shall mean service interruptions in excess often consecutive (10)
Severely Errored Seconds.
"Link" shall mean radio path between two transceivers. A radio path may consist
of one or more Links.
"POTS" shall mean Plain Old Telephone Service, which is an [ ]acronym for the
simple, no vertical services, dial tone service, [ ] which is the basic voice
telephone service.
"Retail Rates" shall mean the rates charged to End Users by ART.
"Wholesale Rates" shall mean the rates charged to the Reseller by ART.
"Reseller" shall mean the carrier to whom ART sells Service at Wholesale rates
and which in turn provides Service to the End User.
"Service Area" shall mean the area within which ART provides Service.
24
"Services" shall mean the services provided by ART pursuant to the terms of this
Agreement.
"Agreement" shall mean each initialed page of this agreement, each of its
Attachments and each amendments if executed by each party.
"Service Order" shall mean the order for Service executed by the Reseller in the
form of Attachment C.
"Severely Errored Seconds" shall mean those seconds in which the Bit Error Rate
is greater than 10-3.
"Site" shall mean location of the IDU, ODU, the connecting cabling and ancillary
equipment to be used for furnishing Service to the End User. Each Link shall
consist of two or more Sites.
"Site Surveys" shall mean the surveys of potential Sites for acceptability for
the location of Equipment and furnishing of Service.
"Tariff' shall mean the rates and related terms and conditions of Service filed
by ART with federal and state regulatory commissions and in effect at the time
of Service.
"Writing" shall mean any recordation whether on paper or its equivalent or in an
decipherable electronic medium, except that where a writing must be signed under
the terms of this Agreement it shall be on paper.
"Preliminary Site Surveys" shall mean the initial survey of the Site.
25
