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EXHIBIT 10.14
CONFIDENTIAL TREATMENT REQUESTED
MASTER HIGH SPEED DATA SERVICES
ACCESS AGREEMENT
This MASTER HIGH SPEED DATA SERVICES ACCESS AGREEMENT (this "Agreement") is
entered into as of the 16th day of March, 1999 ("Effective Date"), by and
between I(3)S, INC., a Texas corporation, with an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("I(3)S"); and GLOBAL INTERACTIVE COMMUNICATIONS
CORP., a Delaware corporation, with an address at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Global"). I(3)S and Global are hereinafter sometimes
referred to individually as a "party", and collectively as the "parties".
RECITALS
WHEREAS, Global currently provides bundled telecommunications services,
including local and long-distance telephony, internet access and video services
to multiple dwelling units ("MDUs") and their residents in certain metropolitan
markets throughout the United States under an agreement between the MDU owner
and Global (each, a "Right-of-Entry");
WHEREAS, I(3)S provides broadband Internet Protocol network services, including,
without limitation, high speed data services, as more specifically described in
Exhibit B attached hereto and incorporated herein by reference ("HSDS"), to
multiple system franchise cable operators ("MSOs"), private cable operators
("PCOs"), and real estate investment trusts ("REITs"), nationwide; and
WHEREAS, Global and I(3)S desire to provide HSDS to MDUs, current and future, as
evidenced by the attachment of an MDU Rider, the form of which is attached
hereto as Exhibit A, which MDUs are served by Global in accordance with the
terms of this Agreement (each, a "Property", and collectively, the
"Properties").
NOW, THEREFORE, the parties hereto hereby covenant and agree as follows:
ARTICLE 1
REPRESENTATIONS AND WARRANTIES
1.1 REPRESENTATIONS AND WARRANTIES OF GLOBAL. In order to induce I(3)S to
enter into this Agreement, Global represents and warrants (which
representations and warranties shall survive the delivery of this
Agreement) as follows:
(a) ORGANIZATION AND QUALIFICATION. Global is a corporation duly
organized and validly existing and in good standing under the
laws of the State of Delaware; has all requisite power and
authority to own its property and assets and to carry on its
business as, and in the places where, such property and assets
are owned or such business is now conducted; and is duly
qualified to do business
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and is in good standing in every other jurisdiction in which such
qualification is necessary or desirable.
(b) NO DEFAULTS. Global is not in default under any instrument or
agreement existing as of the date hereof which Global is bound
that may adversely affect its ability to perform its obligations
under this Agreement; and no default hereunder has occurred.
(c) TITLE. Global has good, valid and indefeasible title to its
property that pertains in any way to HSDS, and all such property
is free and clear of all adverse claims, interests and liens,
except as has been heretofore disclosed in writing to I(3)S.
(d) ENFORCEABLE OBLIGATIONS; AUTHORIZATION. This Agreement is a
legal, valid and binding obligation of Global, enforceable in
accordance with its terms; the making and performance by Global
of this Agreement have been duly authorized by all necessary
action; are within the power and authority of Global; will not
contravene or violate any legal requirement, shareholders
agreement of Global, or charter of Global; and will not result in
the breach of, or constitute a default under, any agreement,
instrument, judgement, license, order, franchise or permit to
which Global is a party, or any of its property may be bound or
affected.
(e) PERMITS, LICENSES, ETC. Global possesses all material permits,
licenses, franchises rights, trademarks, trademark rights, trade
names, trade name rights and copyrights which are required to
conduct the business of HSDS.
(f) MDU PROPERTY AND OPERATING AGREEMENTS. All Rights-Of-Entry or
operating agreements to which Global is a party that pertain to
HSDS are in full force and effect, and no default has occurred
with regard to any such Right-Of-Entry or operating agreement
that would adversely affect the provision of HSDS at any
Property.
(g) INSURANCE. Global carries insurance with reputable insurers in
respect of Global's property pertaining to HSDS, in such amounts
and against such risks as are customarily maintained by other
persons of similar size engaged in similar businesses.
(h) RIGHT OF ACCESS. Global possesses the right to grant a right of
access or entry for the provision of HSDS to all Properties
during the term of this Agreement in favor of I(3)S.
(i) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by or on behalf of Global shall survive the
execution and delivery of this Agreement, and any investigation
at any time made by or on behalf of I3S shall not diminish its
rights to rely thereon.
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1.2 REPRESENTATIONS AND WARRANTIES OF I(3)S. In order to induce Global to
enter into this Agreement, I(3)S represents and warrants (which
representations and warranties shall survive the delivery of this
Agreement) as follows:
(a) ORGANIZATION AND QUALIFICATION. I(3)S is a Texas corporation duly
organized and validly existing and in good standing under the
laws of the State of Texas; has all requisite power and authority
to own its property and assets and to carry on its business as,
and in the places where, such property and assets are owned or
such business is now conducted; and is duly qualified to do
business and is in good standing in the State of Texas and in
every other jurisdiction in which such qualification is necessary
or desirable.
(b) NO DEFAULTS. I(3)S is not in default under any instrument or
agreement existing as of the date hereof which I(3)S is bound
that may adversely affect its ability to perform its obligations
under this Agreement; and no default hereunder has occurred and
is continuing.
(c) TITLE. I(3)S has good, valid and indefeasible title to its
property that pertains in any way to HSDS, and all such property
is free and clear of all adverse claims, interests and liens,
except as has been heretofore disclosed in writing to Global.
(d) ENFORCEABLE OBLIGATIONS; AUTHORIZATION. This Agreement is a
legal, valid and binding obligation of I(3)S, enforceable in
accordance with its terms; the making and performance by I(3)S of
this Agreement have been duly authorized by all necessary action;
are within the power and authority of I(3)S; will not contravene
or violate any legal requirement, shareholders agreement of
I(3)S, or articles of incorporation or bylaws of I(3)S; and will
not result in the breach of, or constitute a default under, any
agreement, instrument, judgement, license, order, franchise or
permit to which I(3)S, is a party, or any of its property may be
bound or affected.
(e) PERMITS, LICENSES, ETC. I(3)S possesses all material permits,
licenses, franchises rights, trademarks, trademark rights, trade
names, trade name rights and copyrights which are required to
conduct the business of HSDS.
(f) INSURANCE. I(3)S carries insurance with reputable insurers in
respect of I(3)S's property pertaining to HSDS, in such amounts
and against such risks as is customarily maintained by other
persons of similar size engaged in similar businesses.
(g) I(3)S LICENSES. I(3)S possesses all requisite licenses from third
parties necessary to provide HSDS to Global's Properties and
their residents.
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(h) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by or on behalf of I(3)S shall survive the
execution and delivery of this Agreement, and any investigation
at any time made by or on behalf of Global shall not diminish its
rights to rely thereon.
ARTICLE 2
TERM
2.1 TERM. This Agreement shall be co-terminus with the term (including any
extensions thereof) of any and all individual Rights-Of-Entry; provided,
however, that this Agreement shall have a term of three (3) years from the
Effective Date as to the parties' other obligations hereunder; and further
provided, however, that the initial term may be automatically extended
after the third anniversary of the Effective Date for additional one (1)
year periods unless one party notifies the other party in writing not less
than ninety (90) days prior to the then anniversary date of the notifying
party's intent to terminate this Agreement. With respect to the
Properties, Global represents and warrants that the average remaining
minimum term of the individual Rights-Of-Entry pertaining to said
Properties is not less than five (5) years as of the date I3S is scheduled
to commence providing service thereto.
ARTICLE 3
EXCLUSIVITY
3.1 EXCLUSIVITY. Except as set forth in Exhibit B attached hereto, for the
term of this Agreement and any renewals hereof, I(3)S shall be the
exclusive provider of HSDS over Global's systems at properties located in
the State of Virginia and the greater metropolitan areas of Boston, MA;
Seattle, WA; Portland, OR; Washington, DC; and Birmingham, AL (the
"Exclusive Markets"). Such exclusivity shall be extended for the term of
any Right-Of-Entry pursuant to which I(3)S serves a Property.
Notwithstanding the foregoing, if I3S declines to serve any property not
meeting the standards set forth in Section 8.5, then Global may provide
such service itself or obtain service from any third party. For the term
of this Agreement and any renewals hereof, I(3)S shall not provide video
or telephony services competing with those of Global in the aforementioned
exclusive markets (but not including streaming media content created by or
on behalf of I(3)S); provided, this restriction shall not prohibit I(3)S
from contracting with third parties to provide HSDS, which third parties
provide such competing services to other properties within the Exclusive
Markets; and further provided, however, that this restriction shall not
preclude subscribers from receiving IP or internet protocol internet based
video or telephony services via third parties.
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ARTICLE 4
AFFIRMATIVE COVENANTS OF GLOBAL
4.1 In consideration of the mutual agreements of the parties contained herein,
Global unconditionally covenants and agrees to do and perform, or cause to
be done and performed, the following:
(a) Subject to the terms and provisions of the existing agreements
with other parties that establish certain rights of entry in favor
of said parties pertaining to certain current Properties, Global
shall maintain, or cause to be maintained, in full force and
effect the right of entry granted to I(3)S hereunder to provide
HSDS to the Properties throughout the term of this Agreement, and
after the sale, assignment or conveyance of any Property that is
covered by this Agreement, subject to the terms of the
Right-Of-Entry.
(b) Global shall maintain its corporate existence and remain in good
standing under the laws of and in every other jurisdiction in
which such qualification to do business is necessary or desirable.
(c) Global shall not become in default under any instrument or
agreement which Global is bound that may adversely affect its
ability to perform its obligations under this Agreement.
(d) Global shall possess and maintain good, valid, indefeasible and
marketable title to its property that pertains in any way to HSDS,
and all such property shall remain free and clear of any adverse
claims, interests and liens, except as has been heretofore
disclosed in writing to I(3)S.
(e) Global shall maintain in full force and effect all material
permits, licenses, franchise rights, trademarks, trademark rights,
trade names, trade name rights and copyrights which are required
to conduct the business of HSDS.
(f) Global shall maintain in full force and effect all Property or
operating agreements pertaining to the provision of HSDS.
(g) Global shall maintain in full force and effect adequate insurance
with reputable insurers in respect of Global's property pertaining
to HSDS, in such amounts and against such risks as is customarily
maintained by other persons of similar size engaged in similar
businesses.
(h) Global shall use its best efforts to assist I(3)S in providing
HSDS on Properties mutually selected by Global and I(3)S on terms
and conditions acceptable to I(3)S; which MDU properties shall be
added as Riders to Schedule I attached hereto and incorporated
herein by reference for all purposes.
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(i) As more specifically described in Exhibit B attached hereto and
incorporated herein by reference, Global shall assume and timely
pay all operating and capital costs and expenses, if any,
associated with any and all:
(1) Monthly recurring Property on-site headend, cabling
and wiring maintenance
(2) Leasing agent sales commissions and property owner
revenue sharing, provided the decision to offer such
commissions and/or revenue sharing, and the amounts
thereof, shall be in Global's sole discretion
(3) Insurance on Global capital equipment related to
HSDS
(4) Global-specific training for HSDS
(5) Global-specific travel and entertainment
(6) Property CATV or other cabling and wiring upgrades
(7) Adequate on-site Property space for the installation
and maintenance of I(3)S equipment
(8) Subject to the terms of the applicable
Right-Of-Entry, reasonable access to residents'
apartments for the installation and maintenance of
customer premise equipment
(9) Monthly customer service representatives (non-1(3)S
personnel)
(10) One half (1/2) of the cost of HSDS Advertising and
Promotion, provided Global shall not be required to
expend more than $1.75 per unit per year at any
property
ARTICLE 5
AFFIRMATIVE COVENANTS OF I(3)S
5.1 In consideration of the mutual agreements of the parties contained herein,
I3S covenants and agrees to do and perform, or cause to be done and
performed, the following:
(a) I(3)S shall maintain its corporate existence and remain in good
standing under the laws of the State of Texas and in every other
jurisdiction in which such qualification to do business is
necessary or desirable.
(b) I(3)S shall not become in default under any instrument or
agreement I(3)S is bound that may adversely affected its ability
to perform its obligations under this Agreement.
(c) I(3)S shall possess and maintain good, valid, indefeasible and
marketable title to its property that pertains in any way to HSDS,
and all such property shall remain free and clear of any adverse
claims, interests and liens, except as has been heretofore
disclosed in writing to Global.
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(d) I(3)S shall maintain in full force and effect all material
permits, licenses, franchise rights, trademarks, trademark rights,
trade names, trade name rights and copyrights which are required
to conduct the business of HSDS.
(e) I(3)S shall maintain in full force and effect adequate insurance
with reputable insurers in respect of I(3)S's property pertaining
to HSDS, in such amounts and against such risks as are customarily
maintained by other persons of similar size engaged in similar
businesses.
(f) As more specifically described in Exhibit B attached hereto and
incorporated herein by reference, I(3)S shall assume and pay all
operating and capital costs and expenses associated with any and
all:
(1) Monthly recurring private Internet exchange points
(2) Monthly recurring switch maintenance
(3) Monthly recurring POP transport
(4) Monthly recurring Dallas network operations center costs
(including installation costs)
(5) Customer support IP technicians and engineers (NOC, Help
Desk and field personnel)
(6) I(3)S-specific training
(7) Insurance on I(3)S capital equipment
(8) I(3)S-specific travel and entertainment
(9) Switch site equipment (including installation costs)
(10) Peering point routers
(11) Private Internet exchange point hardware (including
installation costs)
(12) I(3)S network infrastructure equipment
(13) Transport facilities
(14) Backbone transport facilities
(15) Peering interconnection facilities
(16) Monthly recurring local loop costs
(17) Monthly recurring property maintenance (Lce, Router,
DSU/CSU)
(18) Monthly recurring IP headend maintenance
(19) CSR platform and services (non-Global)
(20) Internet browser platform user license
(21) Property IP equipment (Lce, Router, DSU/CSU)
(22) IP master headend equipment
(23) Non-recurring local loop transport costs
(24) One half (1/2) of the cost of HSDS Advertising and
Promotion, provided I(3)S shall not be required to expend
more than $1.75 per unit per year at any property
(25) Customer billing and collections
(g) I(3)S shall refer MDU property owners to Global on a non-exclusive
basis. I(3)S hereby covenants it shall not refer MDU property
owners to any other provider of services similar to those provided
by Global on an exclusive basis.
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(h) I(3)S shall offer Global the same revenue share as I(3)S offers to
any other bundled services provider competing with Global (a
"Competitor") in the same metropolitan area in which I(3)S is
serving any Property under this Agreement, under the same terms
and conditions as this Agreement, for all properties at which
I(3)S commences providing services on or after the date of
Global's acceptance of such offer. If I(3)S offers an equity
investment opportunity to a Competitor in connection with an
agreement to provide HSDS to such Competitor, I(3)S shall offer
Global the same equity investment opportunity under the same terms
and conditions as set forth therein.
ARTICLE 6
DESCRIPTION OF HIGH SPEED DATA SERVICES PROVIDED BY I(3)S
6.1 DESCRIPTION OF HSDS. During the term of this Agreement, I(3)S shall
provide, or cause to be provided, the high speed data services, in whole
or in part, more particularly described and set forth in Exhibit B.
Notwithstanding the foregoing, I(3)S shall not have the right to provide,
or to contract with any other party to provide, any video, telephony or
other services over the IP Network not set forth on Exhibit B at any
Property, provided, however, this shall not prohibit customers from
purchasing such services through the Internet independent of I(3)S.
ARTICLE 7
DEFINITION OF HSDS SERVICE LEVEL STANDARDS
7.1 DEFINITION OF HSDS SERVICE LEVEL STANDARDS. Subject to the conditions,
qualifications and limitations set forth herein, including, without
limitation, those set forth in Exhibit C attached hereto and incorporated
herein by reference, during the term of this Agreement, I(3)S shall offer,
or cause to be offered, the service level standards pertaining to various
aspects of HSDS, as more particularly described and set forth in
Exhibit C.
7.2 PLANS AND SPECIFICATIONS. At least fifteen (15) days prior to the
installation of its equipment at any Property, I(3)S shall provide to
Global a copy of its plans and specifications relating to such
installation. Global shall review, and shall cause the Property owner to
review, such plans and specifications and, if either reasonably determines
the same shall interfere with its existing systems or equipment, or is not
technically feasible, Global shall notify I(3)S of such party's objections
thereto in writing within five (5) business days of receiving the plans
and specifications. I(3)S shall not install its equipment until Global's
or the Property owner's written objections are resolved to such party's
reasonable satisfaction.
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ARTICLE 8
REVENUE ALLOCATION; CUSTOMER ACCESS PRICING; BRANDING;
SERVICE
8.1 REVENUE ALLOCATION. All monthly HSDS revenue generated by customers under
the Agreement will be collected by I(3)S throughout the term of the
Agreement; provided, however, that, by the fifteenth (15th) day of each
calendar month hereafter commencing on the Effective Date I(3)S shall pay
Global a revenue sharing calculated on the basis of all customer access
revenue collected by or on behalf of I(3)S (exclusive of, without
limitation, customer premise equipment installation charges, one-time
customer service charges, customer equipment sales or leases, sums "passed
through" on a no-▇▇▇▇ up basis collected by or on behalf of I3S, and
comparable or similar one-time charges) (the "Revenue Sharing Fee")
actually collected by or on behalf of I(3)S for the immediately preceding
month in accordance with the following table, except as provided in
Section 8.6:
Penetration On Property Revenue Sharing Fee
(Total number of paying
customers as of the first day of
the calendar month, divided by
total units on Property)
0% to 10% *
Greater than 10% to 15% *
Greater than 15% to 20% *
Greater than 20% to 30% *
Greater than 30% *
8.2 MODIFICATION OF REVENUE SHARING FEES. Twelve (12) months after the date of
execution of this Agreement, the parties agree to renegotiate the Revenue
Sharing Fees in good faith in accordance with current market standards,
such that the Revenue Sharing Fees shall be increased or decreased if
either party is economically disadvantaged hereunder, or receiving an
inordinate proportion of the revenue associated with HSDS in relation to
its investment or contribution to the relationship established hereby or
to revenue sharing generally offered by other comparable providers of HSDS
under substantially similar terms and conditions to this Agreement.
8.3 CUSTOMER ACCESS PRICING; MARKET PLANS. With the intent to increase HSDS
penetration at each Property served under this Agreement, upon
consultation with Global, I(3)S shall establish the price at which access
to the HSDS is made available to customers and end-users, provided the
HSDS shall be competitively priced in the marketplace such that all
pricing is equal to or less than that charged by comparable providers of
similar services in the same metropolitan area, excluding promotions or
offers tailored to single or groups of MDU properties. On a case-by-case
basis and
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to the extent any Right-of-Entry provides for a revenue share to the
Property owner which includes HSDS services or installation fees, I(3)S
shall include a line-item in subscriber bills in an amount mutually agreed
upon by the parties, not to exceed four dollars ($4) per customer per
month, and shall remit such amount in full to Global, who shall in turn
remit such amount in full to the Property owner. With respect to all
marketing plans pertaining to HSDS, Global and I(3)S shall mutually
establish marketing plans. I(3)S shall, at its sole cost, provide an
on-line kiosk at each Property during the first three (3) months of
provision of service. I(3)S shall, at its sole cost, provide
demonstrations and/or promotions for HSDS at each property at least twice
per calendar year.
8.4 BRANDING. With respect to HSDS, and the promotion thereof, I(3)S shall
establish the brand names, logos, labels, trademarks, service marks and
other such identifying promotional characteristics pertaining to the same
throughout the term of this Agreement. Global and I(3)S shall co-brand
certain HSDS, including the "Broadband Now!" brand; provided, the parties
shall equally share the cost of all marketing for co-branded services at
the properties served.
8.5 SERVICE. Notwithstanding the foregoing, I(3)S hereby agrees to serve any
properties offered by Global which meet the following standards: (i) the
property must be rated at least a Class "A", or "B" property by virtue of
the fact that the monthly rents associated therewith are in excess of
$1.25 per square foot of rentable space OR the average income of the
property must be at least $40,000 per annum, as determined by [official
source of information to be provided by Global], (ii) the property must
have at least one hundred fifty (150) units, (iii) the remaining term of
the Right-Of-Entry as of the date on which I(3)S is scheduled to commence
providing services is at least sixty (60) months, (iv) Global has deployed
any of its services at such property, (v) at least fifty percent (50%) of
the residents of such property possess a personal computer in their
apartment (which shall be determined by a survey of the property at I(3)S'
sole cost and expense), and (vi) the property can be physically connected
to the I(3)S nationwide network. If Global desires for compelling business
reasons that I(3)S shall provide HSDS at any property not meeting the
standards in the preceding sentence, the parties agree to negotiate in
good faith for such provision. I(3)S shall commence HSDS at a Property
within forty-five (45) days after acceptance thereof, as indicated by its
addition thereto on Exhibit A. If I(3)S declines to serve any property not
meeting the aforementioned standards, it shall notify Global of its
decision in writing.
8.6 Upon ninety (90) days written notice to I(3)S, Global shall have the right
to assume the customer care and billing obligations of I(3)S hereunder.
Prior to Global assuming such responsibilities, the parties agree to
promptly meet and negotiate in good faith to increase Global's revenue
share to cover the costs relating to such services and an increased rate
of return.
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8.7 RECORDS. I(3)S hereby grants to Global the right to audit the books and
records of I(3)S relating to the HSDS provided hereunder upon three (3)
business days' notice. In the event during such audit Global discovers a
discrepancy of the funds I(3)S was to pay to Global in an amount equal to
or greater than five percent (5%) of such funds, I(3)S shall bear the cost
of such audit, including the fees of the auditor as well as reasonable
lodging, food and travel expenses for the auditor. This audit shall occur
during normal business hours at the place where such records are normally
kept.
ARTICLE 9
SPECIFIC HSDS SOFTWARE WARRANTIES
9.1 OWNERSHIP; AUTHORITY. I(3)S represents and warrants that the software
utilized hereunder (collectively, the "Products") are free and clear of
all liens and encumbrances, and that it has full power and authority to
utilize the rights granted to it with respect to such Products without the
consent of any other person or that such consent has been obtained, and
that to the knowledge of I(3)S the Products utilized hereunder will not
infringe or violate any copyright, trade secret, trademark, patent or
other intellectual property rights of any third party.
9.2 COMPLIANCE WITH APPLICABLE LAWS. Each party represents and warrants that
the services performed by such party pursuant to this Agreement shall be
in compliance with all applicable federal and state laws, rules and
regulations.
ARTICLE 10
INDEMNIFICATION
10.1 INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION. I(3)S shall defend,
indemnify and hold harmless Global, its directors, officers, shareholders,
employees and agents and its successors and assigns, from and against any
and all claims, demands, actions, liabilities, losses, damages and
expenses, including, without limitation, settlement costs and reasonable
attorneys' fees, arising out of or relating to any actual or alleged
infringement of any third party's trade secrets, trademark, service ▇▇▇▇,
copyright, patent or other intellectual property rights (the "Intellectual
Property Rights") in connection with the use of said Intellectual Property
Rights hereunder. I(3)S's obligation pursuant to the immediately preceding
sentence is subject to the following conditions: (i) Global shall give
I(3)S prompt written notice of all actions, claims or threats against
Global of infringement or violation of Intellectual Property Rights; (ii)
Global shall permit I(3)S to elect to assume complete control of such
claims at its sole discretion and expense; and (iii) Global shall
cooperate fully with I(3)S in defending against claims, including making
known or available to the indemnifying party, upon reimbursement of all
costs associated with provision or reproduction of, all records and
document pertaining to claims.
10.2 CROSS INDEMNIFICATION FOR OBLIGATIONS UNDER THIS AGREEMENT. Each party
hereby agrees to indemnify, defend and hold harmless the other party from
any and
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all damages, liabilities, costs and expenses, including, without
limitation, reasonable attorneys' fees and expenses, arising out of, under
or in connection with the indemnitor party's duties, obligations, actions
or performance under this Agreement.
ARTICLE 11
PROTECTION OF PROPRIETARY RIGHTS
11.1 DEFINITION. During the term of this Agreement, I(3)S and Global will
provide to each other or will come into possession information relating to
each other's business which is considered confidential or proprietary (the
"Confidential Information"). Confidential Information shall include,
without limitation, the HSDS software and documentation, all of I(3)S's
and Global's trade secrets and all know-how, design, invention, plan or
process and information relating to I(3)S's and Global's respective
business operations, services, products, research and development and all
other information that is marked "confidential" or "proprietary" prior to
or upon disclosure, or which, if disclosed orally, is identified by the
disclosing party as being Confidential Information-in writing within
thirty (30) days after its initial disclosure.
11.2 RESTRICTIONS. Each party shall use its reasonable best efforts to
maintain the confidentiality of such Confidential Information and not show
or otherwise disclose such Confidential Information to any third parties,
including, but not limited to, independent contractors and consultants,
without the prior written consent of the disclosing party. Each party
shall use the Confidential Information solely for purpose of performing
its obligations under this Agreement. Each party shall indemnify and hold
harmless the other party from any loss or damage the other party may
sustain as a result of the wrongful use or disclosure by such party (or
any employee, agent, licensee, contractor, assignee or delegatee of the
other party) of its Confidential Information.
11.3 AUTHORIZED DISCLOSURES. Notwithstanding the obligations described in
Section 9.2 above, neither party shall have any obligation to maintain the
confidentiality of any Confidential Information which: (i) is or becomes
publicly available by other than unauthorized disclosure by the receiving
party; (ii) is independently developed by the receiving party; or (iii) is
received from a third party who has lawfully obtained such Confidential
Information without a confidentiality restriction. If required by any
court of competent jurisdiction or other governmental authority, the
receiving party may disclose to such authority, data, information or
material involving or pertaining to Confidential Information to the extent
required by such order, provided that the receiving party shall first have
used its best efforts to obtain a protective order reasonably satisfactory
to the disclosing party sufficient to maintain the confidentiality of such
data, information or materials.
11.4 LIMITED ACCESS. Each party shall limit the use and access of Confidential
Information to such party's bonafide employees or agents who have a need
to know
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Global HSDS Agreement
13
such information for purposes of conducting the receiving party's
business. Each party shall notify all employees and agents who have access
to Confidential Information or to whom disclosure is made that the
Confidential Information is the confidential, proprietary property of the
disclosing party and shall instruct such employees and agents to maintain
the Confidential Information in confidence.
11.5 CONFIDENTIALITY OF TERMS. Unless approved in advance by the non-disclosing
party, except for the existence of this Agreement, the terms and
provisions of this Agreement shall remain strictly confidential and shall
not be disclosed to any third party other than a party's attorneys,
accountants and other professional advisers.
11.6 CONTINUING OBLIGATIONS. Each party's obligations under this Article 9
shall survive the termination of this Agreement for two (2) years
thereafter.
ARTICLE 12
DEFAULT; TERMINATION
12.1 DEFAULT. Upon the occurrence of any of the following events, a party shall
be deemed to be in default under this Agreement:
(a) Material breach of any warranty, or misrepresentation by the
defaulting party;
(b) Material failure to perform the defaulting party's obligations
hereunder, including, without limitation, with respect to I(3)S its
failure to (i) maintain the service standards set forth in Section 7.1
hereof, and (ii) make the payments to Global set forth in Section 8.1
hereof.
(c) The defaulting party's ceasing to conduct business in the normal
course, insolvency, the making of a general assignment for the benefit of
its creditors, suffering or permitting the appointment of a receiver or
similar officer for its business or assets or availing itself of, or
becoming subject to, any proceeding under the United States Federal
Bankruptcy Laws or any federal or state statute relating to solvency or
the protection of the rights of creditors; or
(d) Making of any warranty, representation, statement or response in
connection with this Agreement which was untrue in any material respect
on the date it was made by the defaulting party.
12.2 REMEDIES. In the event the defaulting party fails to cure any default set
forth hereunder for a period of thirty (30) days after written notice of
such default by the non-defaulting party, the non-defaulting party may
terminate this Agreement without further obligation on the part of the
non-defaulting party, and pursue any claims at law or in equity against
the defaulting party.
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Global HSDS Agreement
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12.3 FAILURE TO EXERCISE REMEDY. The remedies set forth above are cumulative,
but the non-defaulting party is under no obligation to exercise any such
remedy. The exercise of, or failure to exercise, any such remedies shall
not prevent any future exercise of the same or any other remedies or
release the defaulting party from its obligations under this Agreement.
12.4 EFFECT OF TERMINATION. Termination of this Agreement shall not impair
either party's then accrued rights, obligations, liabilities or remedies
hereunder.
ARTICLE 13
NOTICE; PUBLIC DISCLOSURES
13.1 NOTICE. Any notice, demand or other communication required or permitted
by any provision of this Agreement shall be deemed to have been
sufficiently given or served for all purposes when delivered in person or
sent by registered or certified mail, return receipt requested, all
postage and other charges prepaid, to the respective addresses of the
parties first noted above, or at such other addresses as may be
designated by notice from such party to the other party pursuant to their
terms of this section.
13.2 PUBLIC DISCLOSURES. All media releases, public announcements, and public
disclosures by either party of its employees, agents or representatives
relating to this Agreement or the subject matter hereof, excluding any
announcement beyond the control of this disclosing party, will be approved
by the non-disclosing party in writing prior to release.
ARTICLE 14
MISCELLANEOUS
14.1 ENTIRE AGREEMENT. This Agreement, together with the schedules, attachments
and exhibits attached hereto or referred to herein, constitutes the entire
Agreement and understanding among the parties hereto and is the final
expression of their Agreement and no evidence of oral or other written
promises shall be binding. All other prior agreements or understandings
related to the subject hereof among the parties, whether written or oral,
shall be null and void and of no further force and effect upon the
execution of this Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
14.2 INCORPORATION BY REFERENCE. The schedules, exhibits and attachments
referred to herein or attached hereto are hereby incorporated in and to
this Agreement and made a part hereof by this reference.
14.3 AMENDMENT; MODIFICATION. This Agreement may not be supplemented, amended,
modified or otherwise altered except by written instrument executed by all
the
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Global HSDS Agreement
15
parties hereto and no course of dealing or trade usage among or between
the parties shall be effective to supplement, amend, modify or alter this
Agreement.
14.4 WAIVER. The failure to enforce or to require the performance at any time
of any of the provisions of this Agreement herein shall in no way be
construed to be a waiver of such provisions, and shall not affect either
the validity of this Agreement, any part hereof or the right of any party
thereafter to enforce each and every provision in accordance with the
terms of this Agreement.
14.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to its
conflicts or choice of laws.
14.6 SEVERABILITY. If any severable provision of this Agreement is deemed
invalid or unenforceable by any judgment of a court of competent
jurisdiction, the remainder of this Agreement shall not be affected by
such judgment, and this Agreement shall be carried out as nearly as
possible according to its original terms and intent, unless to do so would
substantially impair the underlying purposes of this Agreement.
14.7 CAPTIONS. The captions appearing in this Agreement are included solely for
convenience of reference and shall not be construed or interpreted to
affect the meaning or interpretation of this Agreement.
14.8 FORCE MAJEURE. Neither party shall be responsible for any failure to
comply with or for any delay in performance of the terms of this
Agreement, including, but not limited to, delays in delivery, where such
failure or delay is directly or indirectly caused by or results from
events of force majeure beyond the control of either party. These events
shall include, but not be limited to, fire, flood, earthquake, accident,
civil disturbance, war, acts of God, or acts or government.
14.9 HIRING PROHIBITED. During the term of this Agreement and for a period of
one (1) year thereafter, neither party shall solicit for hire or hire any
employee of the other party who has performed services under this
Agreement, but this prohibition shall not apply to any employee who
independently responds to an advertisement placed by the hiring party.
14.10 PERFORMANCE REVIEW. In the event of any dispute or controversy between the
parties of any kind or nature, upon the written request of either party,
each of the parties will appoint a designated officer whose task it will
be to meet for the purpose of resolving such dispute or controversy or to
negotiate for an adjustment to any provision of this Agreement needed to
resolve such dispute or controversy. Such officers will discuss the
dispute or controversy and negotiate in good faith in an effort to resolve
the dispute or controversy or renegotiate the applicable section or
provision of this Agreement without the necessity of any formal proceeding
relating thereto. No formal proceedings for the judicial or arbitrational
resolution
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Global HSDS Agreement
16
of such dispute or controversy may be commenced until either or both of
the designated officers conclude in good faith that an amicable resolution
through continued negotiation of the matter at issue is not likely to
occur.
14.11 ARBITRATION. Except where otherwise expressly provided, the parties hereby
agree to submit to arbitration any and all disputes, controversies,
differences, or claims which may arise between them in relation to or out
of this Agreement, or the breach thereof, if the parties fail to reach an
amicable settlement or earlier resolution by mutual agreement. Any
controversy or claim relating to this Agreement shall be submitted to
final and binding arbitration pursuant to the Rules of the American
Arbitration Association then in effect, by three arbitrators knowledgeable
of said rules and as to industry standards, sitting in a location in
Dallas County, State of Texas, designated by the filing party. Each party
will appoint one arbitrator within ten (10) days of the filing of the
arbitration claim and the two arbitrators shall appoint a third arbitrator
within thirty (30) days. None of the arbitrators shall be related to or
have any direct or indirect interest in I3S or Global. The arbitrators
will be instructed to consider, in making any determination, the customary
practices in the industry to the extent such practices exist. The
arbitration proceeding shall commence within thirty (30) days of the
selection of the arbitrators. Discovery shall be limited so as to allow
the taking of a maximum of five (5) depositions by each party. The
arbitrators shall be authorized to provide for interim and final
injunctive relief. The parties acknowledge and agree that such
arbitration shall be the sole forum for such interim and final injunctive
relief and the parties agree to accept and abide by such injunctive
relief. The arbitrators shall have the right but not the obligation to
award to the prevailing party the cost of resolving any dispute regarding
this Agreement or the formation, breach, enforcement or performance
hereof, including any reasonable fees of attorneys, accountants and expert
witnesses incurred by the prevailing party. Punitive damages shall not be
recoverable in any arbitration initiated pursuant to this Agreement.
Judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. Notwithstanding anything to the
contrary contained herein, if, at any time an initiating party can show
that it would suffer irreparable harm by following the above procedures
solely because of the time that it would take to engage the arbitrators
and the non-filing party will not agree to immediately appoint the
arbitrators and that money damages would not be adequate to compensate it
for the harm so suffered, the initiating party may apply to any court of
competent jurisdiction for an order or judgment granting that party a
provisional remedy, including, but not limited to, a temporary restraining
order, a preliminary injunction or an attachment.
14.12 BINDING NATURE; ASSIGNABILITY. This Agreement will be binding on the
parties hereto, and their respective successors and assigns. Upon prior
written notice to the other party, either party may assign its rights and
delegate its duties under this Agreement; provided however, that the
assignee party must unconditionally
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Global HSDS Agreement
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assume in writing, and agree to be bound by, the right, duties and
obligations of the assignor party under this Agreement.
14.13 RELATIONSHIP OF THE PARTIES. Notwithstanding anything to the contrary in
this Agreement, under no circumstances will either party be deemed to be
in any relationship with the other party carrying with it fiduciary or
trust responsibilities. The parties do not intend for this Agreement or
the relationship established thereby to be considered the formation of a
joint venture or partnership between the parties for any purpose. I(3)S
has the sole right to supervise, manage, contract, direct, procure,
perform or cause to be performed the day-to-day work to be performed by
I(3)S under this Agreement unless otherwise expressly provided herein or
agreed to by the parties in writing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
I(3)S, INC. GLOBAL INTERACTIVE
COMMUNICATIONS CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------- ------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
President President
Date: 3/16/99 Date: 3/12/99
------------------------- ------------------------
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LIST OF EXHIBITS
EXHIBIT A: Sample Property Rider
EXHIBIT B: Description of High Speed Data Services Provided by 13S
EXHIBIT C: Service ▇▇▇▇▇
▇
▇▇
▇▇▇▇▇▇▇ ▇
FORM OF MDU PROPERTY RIDER
1. MDU Property Owner/Agent Name:
---------------------------------------------
2. Term of Property Agreement:
------------------------------------------------
3. Location of MDU Property:
--------------------------------------------------
4. Contact Person/Leasing Agent:
----------------------------------------------
5. Number of Units:
-----------------------------------------------------------
6. Number of Buildings:
-------------------------------------------------------
7. Current Occupancy:
---------------------------------------------------------
8. Existing Property (including age) or New Build:
----------------------------
9. PC Ownership Survey
10. Acknowledgement by Owner of Right of HSDS Access to Property
11. CATV/MATV Site Survey Information
12. Coaxial Cable DSL Fiber Optic
Global Interactive Communications I3S, Inc.
Corp.
----------------------------------- ------------------------------------
Print Name: Print Name:
------------------------ -------------------------
Title: Title:
----------------------------- ------------------------------
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EXHIBIT B
B-1 DESCRIPTION OF HIGH SPEED DATA SERVICES PROVIDED BY I3S AND
RESPECTIVE RESPONSIBILITIES OF THE PARTIES
1.1 The I3S HSDS is a data network service that provide transport and peering
functions of Internet Protocol (IP) data traffic, including, without limitation:
A. Broadband access networks on MDU properties composed of one or more
broadband access technologies including but not limited to coaxial or hybrid
fiber coaxial (HFC) cable television distribution systems, twisted-pair
copper-wire-based telephone distribution systems, twisted-pair copper-wire-based
local area network distribution systems and fiber-optic-based local area network
distribution systems;
B. Local loop networks that connects the broadband access networks on
each MDU property to the I3S regional points-of-presence (POPs) in each
metropolitan area served by I3S;
C. Regional point-of-presence networks that connects the POPs to the
▇▇▇.▇▇▇ national IP backbone;
D. A national IP backbone consisting of broadband communication
facilities for the transport of data among I3S POPs and public and private
Exchange Points where data and Internet routing information will be exchanged
with other networks peered with ▇▇▇.▇▇▇ as part of the global Internet;
E. A national Network Operations Center (NOC).
F. Certain computer services that include:
(i) Membership system for user authentication and authorities;
(ii) Personalization services for customizing content to user
preferences;
(iii) Internet mail (SMTP and POP3);
(iv) Internet newsgroups (NNTP) composed of approximately 25,000 or
more newsgroups;
(v) Internet World Wide Web (HTTP) services;
(vi) Internet chat (IRC and MIRC);
(vii) Conferencing and collaboration bridges;
(viii) Streaming multimedia services such as Microsoft's NetShow and
Progressive Network's RealMedia;
(ix) A branded suite of client software that include:
(a) Web browser;
(b) Mail reader;
(c) News reader;
(d) Chat client;
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(e) Conferencing and collaboration client;
(f) Appropriate plug-ins and ActiveX controls.
(x) Certain customer service functions that include:
(a) A National Customer Care Center;
(b) A telephone and network-based customer help desk;
(c) A Trouble Reporting facility;
(d) A customer billing system.
G. Except as set forth in Section 6.1, certain multimedia-rich content
that showcases the capabilities of HSDS that includes:
(i) Original content created by I3S;
(ii) Aggregated content created by others but licensed by I3S and
improved for uses in a HSDS system;
(iii) Aggregated content created by others but licensed by I3S and
used unimproved.
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B-2 REQUIREMENTS RELATED TO BROADBAND ACCESS NETWORKS
UTILIZING MULTIPLE BROADBAND ACCESS
TECHNOLOGIES (mBAT)
A. GLOBAL's RESPONSIBILITIES
(i) Provide, or cause to be provided, suitable physical-layer
coaxial-cable, twisted-pair copper-wire, or fiber-optic distribution plant on
each GLOBAL property that will meet or exceed I3S specifications;
(ii) Provide, or cause to be provided, a right of use for the
GLOBAL-provided distribution plant; and
(iii) Provide, or cause to be provided, proper space, security
and power for data communication equipment necessary to provide I3S's HSDS.
B. I3S RESPONSIBILITIES:
(i) Provide technical specifications for suitable physical-layer
distribution plants for I3S's HSDS;
(ii) Inspect and accept or reject physical-layer distribution plants
proposed by GLOBAL as suitable for I3S's HSDS;
(iii) Maintain, or cause to be maintained, physical layer distribution
plants built and owned by GLOBAL that are used for I3S's HSDS;
(iv) Install, maintain and operate data delivery equipment for each
property offering HSDS. Installation and maintenance will meet or exceed
manufacturer's specifications and the requirements set forth in the Agreement.
Through itself or its agents, GLOBAL will assist I3S with pre-installation
engineering planning and site survey questionnaires;
(v) Integrate all data delivery equipment for each property into the
I3S Element Management System portion of its Network Management Platform using
SNMP and/or RMON. I3S will monitor all data delivery equipment twenty-four hours
per day, seven day per week (24x7);
(vi) Assume the cost of the acquisition of all data communication
equipment necessary to provide HSDS, including the RF modulator and demodulator,
and to provide termination and delivery of HSDS between the Subscriber and the
I3S POP in each Market;
(vii) Without limitation on the foregoing or the attached SLA, both
parties acknowledge that the end to end performance of HSDS is probabilistic and
subject to anomalous short lived usage patterns by Subscribers which will affect
both the utilization of the local loop circuits and the ▇▇▇.▇▇▇ national
backbone from time to time;
(viii) Configure and operate all data delivery equipment to
efficiently integrate with the rest of the ▇▇▇.▇▇▇ network;
(ix) Subscribers will not be required by I3S to install or
operate a custom web browser; and
(x) Subject to all applicable laws and regulations, Subscribers will
have voluntary access to all public Internet sites and services.
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23
B-3 ADDITIONAL REQUIREMENTS RELATED TO BROADBAND ACCESS NETWORKS
UTILIZING CABLE TELEVISION DISTRIBUTION SYSTEMS
A. GLOBAL's Responsibilities (These responsibilities apply only to the
extent HSDS is to be provided by I3S by means of an interconnection to a third
party's CATV distribution plant on an applicable property. GLOBAL shall use
commercially reasonable efforts to perform these responsibilities.):
(i) Cause CATV infrastructure to comply with FCC requirements;
(ii) Upgrade, or cause to be upgraded, property CATV infrastructure to
provide bi-directional cable delivery to all subscribers;
(iii) Cause the upgraded bi-directional CATV infrastructure to exceed
the minimal operational requirements of the I3S cable modem system, which are:
--------------------------------------------------------- --------------------------------------------
MINIMUM CABLE TELEVISION NETWORK VALUE
REQUIREMENTS FOR ▇▇▇.▇▇▇ HSDS
--------------------------------------------------------- --------------------------------------------
Amplitude variations inband
Forward channel 5 dB total
Return channel 5 dB total
--------------------------------------------------------- --------------------------------------------
--------------------------------------------------------- --------------------------------------------
Group delay variation inband
Forward channel 60 nsec/MHz, 240 nsec total
Return channel 200 nsec/MHz, 800 nsec total
--------------------------------------------------------- --------------------------------------------
--------------------------------------------------------- --------------------------------------------
Maximum tap to tap variation 27 dB
--------------------------------------------------------- --------------------------------------------
--------------------------------------------------------- --------------------------------------------
Dynamic range on receiver -15 dBmV to +15 dBmV
--------------------------------------------------------- --------------------------------------------
--------------------------------------------------------- --------------------------------------------
Maximum return/upstream loss 49 dB
--------------------------------------------------------- --------------------------------------------
--------------------------------------------------------- --------------------------------------------
Minimum carrier to noise 22 dB
--------------------------------------------------------- --------------------------------------------
--------------------------------------------------------- --------------------------------------------
Minimum carrier to interference 25 dB
--------------------------------------------------------- --------------------------------------------
(iv) Provide, or cause to be provided, two (2) six MHz video
channels within the CATV infrastructure bandwidth on Internet served properties;
one (1) in the spectrum from 54 MHz to 750 MHz and one (1) in the 5MHz to 50 MHz
spectrum; and reserve another two (2) additional video channels, in the same
spectrums for future expansion as Subscriber penetration on the property
increases; and
(v) Designate, or cause to be designated, an engineering point of
contact for each cable company operating the cable television distribution
system for I3S Network Operations Center (NOC) to report problems or failures
related to the cable television distribution system twenty-four hours per day,
seven days per week (24x7).
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24
B. I3S Responsibilities:
(i) Use the cable modem system, and certain network management
features that it provides, to monitor the availability and quality of GLOBAL's
property network (its CATV plant) and the Equipment;
(ii) Report to GLOBAL's designated engineering point of contact any
problems observed by the I3S NOC in the course of operating the cable modem
system network management features; and
(iii) Report to GLOBAL's designated engineering point of contact any
problems determined by Subscriber contact in the course of operating the
Subscriber Help Desk.
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25
B-4 LOCAL LOOP CHARACTERISTICS
A. Global's Responsibilities: Provide, or cause to be provided,
proper space, security and power for Local Loop termination and
transmission equipment necessary to provide Internet delivery and other
data services on the property.
B. I3S Responsibilities:
(i) Install, maintain and operate local loop termination and
transmission equipment necessary for each property offering HSDS.
Installation and maintenance will meet or exceed manufacturer's
specifications and the requirements set forth in the Agreement. Through
itself or its agents, GLOBAL will assist I(3)S with pre-installation
engineering planning and site survey questionnaires;
(ii) Integrate all local loop termination and transmission
equipment for each property into the I3S Element Management System portion
of its Network Management Platform using SNMP and/or RMON. I3S will
monitor all local loop termination and transmission equipment twenty-four
hours per day, seven day per week (24x7);
(iii) Assume the cost of the acquisition of all local loop
termination and transmission equipment necessary to provide HSDS and to
provide termination and delivery of HSDS between the Property and the I3S
POP in each Market;
(iv) Order, provision, install and maintain local loop communications
links between each property and I3S POP in each Market with a bandwidth of
not less than 1.544 mb/s (T1). In addition, as the number of Subscribers
on each property increases, scale the local loop bandwidth so that each
simultaneously active user averages approximately 1 mb/s ninety eight
percent (98%) of the time;
(v) Without limitation on the foregoing or the attached SLA, both
parties acknowledge that the end to end performance of HSDS is
probabilistic and subject to anomalous short lived usage patterns by
Subscribers which will affect both the utilization of the local loop
circuits and the ▇▇▇.▇▇▇ national backbone from time to time; and
(vi) Configure and operate all local loop termination and
transmission equipment to efficiently integrate with the rest of the
▇▇▇.▇▇▇ network.
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26
B-5 POINT OF PRESENCE FEATURES AND ESTABLISHMENT REQUIREMENTS
A. I3S Responsibilities:
(i) Acquire, install and maintain data communication equipment at
each POP for the termination and transmission of HSDS from properties to
the ▇▇▇.▇▇▇ national network backbone;
(ii) I3S will determine the location of its main presence in each
Market to be consistent with its own operational practices (which
currently include co-locating within its carrier's central offices in each
Market);
(iii) Acquire, install, maintain and operate Internet peering
relationships at public and private Internet Exchange Points (EP) with
other Tier 1 Internet backbone networks throughout the United States;
(iv) Acquire, install, maintain and operate computers and software to
provide Network Management and provide Internet services for Subscribers.
To provide these functions, I3S will employ a combination of locally-
distributed-to-the-POP servers as well as globally centralized servers
consistent with its overall network design and operational practices; and
(v) Order, provision, install, maintain and operate data transport/
carriage pathways from each POP, EP and/or NOC with a bandwidth not less
than 45 mb/s (DS-3) interconnection. In addition, as the number of
Subscribers on Market increases, scale the bandwidth so that each
simultaneously active user averages approximately 1 mb/s ninety eight
percent (98%) of the time.
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27
B-6 I3S INFORMATION OPERATIONS
CONTENT PRODUCTION; GLOBAL/BROADBAND NOW!(TM) LAUNCH PAGE
A. I3S operates, and shall operate for the term of this Agreement, an
information content operation for creating original content or aggregating
content created by others and licensed to I3S for inclusion in the I3S body of
content. This material will consist of but not limited to informational,
educational, recreational, entertainment and business content. This body of
content will be offered to subscribers of the HSDS product. Provision of content
shall be in accordance with the terms of the Agreement.
B. Without limitation on paragraph A above, I3S will create content as
creative and/or business opportunities present themselves. The I3S content will
be updated as I3S, using its editorial judgment, sees fit, but in no event less
frequently than good industry practice.
C. Certain portions of this content will be offered to all HSDS Subscribers
free of charge (Basic Content). Other portions of the content may be offered to
HSDS Subscribers on an optional fee basis for unlimited access to a fixed
package of content (Premium Content). Another certain portion of the content
may be offered to HSDS Subscribers on an optional fee basis for access to a
specific time-limited event (Pay-Per View Content).
D. In addition to the fees charged customers for content, I3S may solicit
and sell advertising and other revenue-producing transaction opportunities that
will appear on certain portions of the content.
E. All fees for premium content, pay-per-view content, advertising and
revenue-producing transactions shall be determined solely by I3S, subject to the
provisions of Section 8.2.
F. The potential revenue set forth here for content shall not be subject to
other provisions in the Agreement (including attachments) regarding revenue
sharing, fees and pricing.
G. I3S, or its content partners, will design, produce and update, as
necessary, all content and be responsible for all such costs.
H. I3S shall initially design, produce and update, as necessary, a
customized launch page (the "Launch Page") for HSDS Subscribers, which can be
used to market and promote the HSDS, and, on I3S's standard time and materials
rates (or as otherwise agreed by the parties), GLOBAL's other services. In
addition, the Launch Page will include hyperlinks to GLOBAL's corporate web
sites as directed by GLOBAL. The Launch Page shall meet the technical,
functional and appearance requirements specified by I3S. I3S shall from time to
time update the Launch Page throughout the Term in accordance with the terms of
this Agreement. I3S may offer HSDS Subscribers Launch Pages that are
personalized (by property) and that, in addition to the features described
above, may promote the I3S content offerings and provide direct hyperlinks to
the I3S content.
I. In no event, at any time during the term of this Agreement, shall I3S
knowingly permit or use any (i) content in the GLOBAL/Broadband NOW!(TM) website
or within its information content operations which contains obscene material,
sexually
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28
explicit adult programming, or indecent material as defined in Section 47 C.F.R.
76.701(g), (ii) material in the GLOBAL/Broadband NOW!(TM) website soliciting or
promoting unlawful conduct, or any (iii) programming in the GLOBAL/Broadband
NOW!(TM) website that may or could have been subject to the Telecommunications
Act of 1996, Section 641, relating to the scrambling of sexually-explicit adult
video service programming.
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B-7 CUSTOMER CARE CENTER FEATURES
A. I3S Responsibilities
(i) Provide a toll free number for:
(a) Inquiries about the HSDS supplied by I3S
(b) Ordering and scheduling installation of HSDS products
(c) Billing inquiries
(d) Initial technical support inquires
(e) Technical support for all HSDS issues
(f) Technical support for Subscriber CPE issues related to HSDS
(ii) Answer toll free line consistent with the GLOBAL/I3S service co-brand.
(iii) Operate 24x7 customer care call center operation.
(iv) Maintain sufficient customer service staff and call center
capacity to connect to Subscribers within 1 minutes of call entering processing
operation.
(v) Develop and publish escalation procedure for Customer Service
Representatives related to network issues.
(vi) Resolve billing issues within 24 hours 95% of time, on a monthly
basis.
(vii) Resolve property network issues within 24 hours 95% of time, on
a monthly basis.
(viii) Resolve technical issues within 24 hours if a phone call is required
95% of time, on a monthly basis.
(ix) Resolve technical issues within 48 hours if a truck roll is required
95% of time, on a monthly basis.
(x) Develop and publish escalation procedures for GLOBAL to contact
regarding technical issues related to the network.
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B-8 SUBSCRIBERS' HARDWARE AND SOFTWARE INSTALLATION SPECIFICATIONS AND
INSTALLATION REQUIREMENTS
A. I3S shall:
(i) Verify that potential Subscribers' personal computers meet the
I3S-established minimum requirements for the supplied software and the HSDS
service;
(ii) Make an appointment with each new Subscriber to meet the installation
personnel for the installation of the HSDS in the Subscriber's unit;
(iii) Collect the Subscriber information required to install, provision and
complete the set up of Subscribers' HSDS service. I3S will develop an
appropriate paper-form-based system or automated system to facilitate this
process;
(iv) Provide, or cause to be provided, coaxial connection to the
Subscriber's specified location;
(v) Verify, or cause to be verified, that the coaxial connection completed
to the Subscriber's specified location exceeds the minimum operational
requirements for the I3S-supplied CPE and the I3S HSDS service;
(vi) Verify, or cause to be verified, and if necessary, promptly (but not
more than a reasonable time frame set by GLOBAL) perform repairs such that all
access network services function properly (and to not less than the standards
pre-existing I3S HSDS operations) after I3S completes installation and
throughout the provision of HSDS;
(vii) Maintain a sufficient inventory of CPE for each Market and develop
procedures to restock CPE as used in Subscriber installations;
(viii) Issue and install the required CPE for the service requested by
the Subscriber;
(ix) Meet the Subscriber at the Subscribers location at the scheduled time
within the tolerances and limits as defined in the I3S Service Level Agreement;
(x) Install the required cable modems(s) and have HSDS operational in the
Subscriber's unit within the number of days of a Subscriber's request set forth
in Section 6.4 of the Agreement;
(xi) Install any required network interface cards (NICs), TCP/IP protocols
and Internet software suite in the Subscriber's personal computer;
(x) Offer the Subscriber a brief introduction to the HSDS to be performed
at the time of installation. This introduction will include how to launch the
service, how to find the training material on the ▇▇▇.▇▇▇ Web site, how to find
the Subscriber Support Section on the ▇▇▇.▇▇▇ Web site and how to call for
technical assistance or support;
(xi) Obtain signatures required to verify that each Subscriber installation
was executed properly and to the satisfaction of the Subscriber; and
(xii) Provide GLOBAL with a copy of the installation transaction
documentation verifying that the completed installation is ready for billing.
This documentation will include the CPE delivery receipt, the ISP contract and
the completed work order.
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B-9 HSDS INITIAL SUBSCRIBER RATES, SERVICE LEVELS AND
INSTALLATION AND EQUIPMENT CHARGES
A. The following table outlines the various levels of service available to
Personal Service subscribers:
% of TIME SUBSCRIBER IS
UPSTREAM GUARANTEED DOWNSTREAM
PRICE PER DOWNSTREAM TRANSMISSION AND
PERSONAL SERVICE LEVEL MONTH TRANSMISSION SPEED Speed UPSTREAM SPEEDS
-----------------------------------------------------------------------------------------------------------------
BBNow!(TM) Lite $29.95 64 Kbps 64 Kbps 98%
BBNow!(TM) Standard $49.95 1.0 Mbps 1.0 Mbps 98%
BBNow!(TM) Max $79.95 1.5 Mbps 1.5 Mbps 98%
B. The following table outlines the various levels of service available to
Home Office Service subscribers:
MINIMUM MINIMUM
DOWNSTREAM UPSTREAM
PRICE PER TRANSMISSION TRANSMISSION
HOME OFFICE SERVICE LEVEL Month SPEED SPEED
------------------------------------------------------------------------------------------------------
Home Office--Level 1 $199 1.5 Mbps 128 Kbps
Home Office--Level 2 $299 1.5 Mbps 512 Kbps
Home Office--Level 3 $499 1.5 Mbps 1.0 Mbps
Home Office--Level 4 $699 1.5 Mbps 1.5 Mbps
------------------------------------------------------------------------------------------------------
Vanity DNS hosting $100.00 per month
Installation fee $49.95 non-recurring
Network interface card (NIC) market price (not to exceed $60)
CPE (cable modem, xDSL modem or other
broadband access device) purchase market price
Monthly rental of CPE market price*
*The decision to purchase or rent the CPE necessary for the provision of HSDS
shall be at the sole discretion of each resident subscribing to HSDS.
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EXHIBIT C
SERVICE LEVELS
A. Definitions
1. A "Trouble" or "Trouble Report" shall relate to ▇▇▇.▇▇▇ or 13S provided
services (or resold services) and the Equipment and I3S-maintained facilities,
but shall exclude customer error, defects in customer equipment ("CPE"), defects
in customers' computers, defects in property cable or wiring plants, defects in
fiber optic distribution systems, defects in cable television distribution
systems and network problems experienced by destination networks at or beyond
Internet Exchange Points.
2. Except as otherwise set forth herein, performance levels shall be
calculated by dividing the total Customer Service Orders begun on or before the
date and clock hour promised to the customer that the service order would be
started by the total number of service orders initiated in each calendar month
and multiplying by 100.
3. Performance Requirements
1. Percent Customer Service Order Beginning Commitment Dates Timely Met:
I3S shall exhibit greater than 90% Customer Service Order Beginning Commitment
Dates Timely Met per month.
2. Percent Customer Service Order Completion Commitment Dates Timely Met:
I3S shall exhibit greater than 90% Customer Service Order Completion Commitment
Dates Timely Met per month.
3. Percent of Network Availability
a. This parameter is calculated by dividing the number of seconds that
the network is available for each customer by the total number of
customer-seconds in each calendar month and multiplying by 100.
b. Specifically excluded from the Network Availability
calculation shall be regularly scheduled maintenance windows or ad hoc
maintenance windows scheduled and announced 24 hours in advance in the ▇▇▇.▇▇▇
Customer Support Web Site.
c. Specifically excluded from the Network Availability calculation
shall be periods of time where the access distribution plant (operated by GLOBAL
or its designated third party operator) exceed the operational standards set by
I3S for each type of broadband access technology.
d. I3S shall exhibit greater than 98% Network Availability per month.
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4. Percent Customer Calls Answered within 45 Seconds by I3S Personnel
a. At a minimum, the I3S National Customer Care Center shall operate
from 8:00 a.m. to 5:00 p.m. Central Time, Monday through Friday exclusive of
holidays.
b. This parameter is calculated by dividing the number of calls
answered with 45 seconds by the total number of Customer Care Center calls
answered in each calendar month and multiplying by 100.
c. I3S shall exhibit greater than 90% of Customer Calls Answered
within 45 Seconds per month.
5. Percent of Trouble Reports Resolved Timely
a. This parameter is related to the number of Trouble Reports resolved
within the following windows:
(i) For Trouble Reports received by I3S at the I3S National
Customer Care Center prior to 2:00 p.m. Central Time, Monday through Friday,
excepting holidays, will be cleared by the end of the next business day.
(ii) For Trouble Reports received by I3S at the I3S National
Customer Care Center after 2:00 p.m. Central Time, Monday through Friday,
excepting holidays, will be cleared by noon of the second business day
thereafter.
(iii) This parameter is calculated by dividing the total
trouble reports cleared on or before the date and clock hour promised to the
customer the total number of Trouble Tickets cleared in each calendar month and
multiplying by 100.
(iv) I3S shall exhibit greater than 90% Trouble Reports
Cleared Timely per month, according to the terms of this section for trouble
that can be resolved by I3S alone.
6. Percent Customer Repair Visit Appointments Met
(a) This parameter is related to the customer commitments made by the
I3S National Customer Care Center for repairs that require a repair visit to
customers' sites or premises.
(b) This parameter is calculated by dividing the total Customer Repair
Visits Appointments met on or before the date and clock hour promised to the
customer by the total number of Customer Repair Visit Appointments initiated in
each calendar month and multiplying by 100.
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(c) I3S shall exhibit greater than 90% Customer Repair Commitment Met
per month.
(d) I3S shall complete installations of HSDS in any unit within five
(5) business days of taking an order, subject to the consent of the customer
and/or property manager.
7. Percent of Customer Bills Prepared Timely
(a) This parameter is related to the generation of Customer Bills for
delivery to customers by mail, electronic mail or credit card billing.
(b) This parameter is calculated by dividing the number of Customer
Bills generated and sent to customers within twenty (20) business days of the
end of the billing cycle by the total number Customer Bills generated in each
calendar month and multiplying by 100.
(c) I3S shall exhibit greater than 95% Customer Bills Prepared Timely
per month.
8. Percent of Customer Bills Prepared Accurately
(a) This parameter is related to the accuracy of Customer Bills for
delivery to customers by mail, electronic mail or credit card billing.
(b) This parameter is calculated by dividing the number of
Customer Bills generated that do not require an adjustment due to a billing
error caused I3S by the total number Customer Bills generated in each calendar
month and multiplying by 100.
(c) I3S shall exhibit greater than 95% Customer Bills Prepared
Accurately per month.
9. Reports: I3S shall provide to GLOBAL reports within twenty (20) business
days of the end of each calendar month, the reports listed below in this
section, each of which may be provided separately or provided on a consolidated
basis:
(a) A report depicting total subscribers, gross new customers and
gross customers terminated separated by product tier and property.
(b) New service orders, Trouble Reports opened and closed or cleared
as appropriate separated by date and property.
(c) Aggregate I3S National Customer Care Center data depicting the
distribution of call waiting time in general and the percent calls answered and
calls abandoned respectively.
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(d) Billing summaries describing the date(s) bills were sent to
customers, and the billed revenue disaggregating major categories of service.
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