MASTER SERVICE AGREEMENT
THIS MASTER SERVICE AGREEMENT (this "Agreement") is entered into as of the
19th day of September, 1996 (the "Effective Date") between ADVANCED RADIO
TELECOM CORP., a Delaware corporation with its principal place of business at
000-000xx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000 ("ART"), and
Message Center Management Inc. A Delaware Corporation ("RESELLER"), with its
principal place of business at 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000.
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 desires to use the services by ART; and
WHEREAS, ART and Reseller desire to enter into an agreement providing for
the furnishing of broadband wireless services by ART.
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 one (1) year(s) thereafter. THE AGREEMENT SHALL RENEW FOR
SUCCESSIVE PERIODS OF THREE (3) YEARS UNLESS ONE OF THE PARTIES GIVES WRITTEN
NOTICE NOT TO RENEW NO LATER THAN SIXTY (60) DAYS PRIOR TO THE SCHEDULED DATE OF
EXPIRATION OF THE INITIAL PERIOD OR ANY SUBSEQUENT RENEWAL PERIOD.
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 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 or
with the consent of Reseller. 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, as hereinafter defined, (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 attached hereto as
ATTACHMENT B. Payment by Reseller for the Services 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
and/or other locations controlled by third parties and related to the provision
of the Services (collectively "Sites"). Equipment to be installed on each Link
includes Outdoor Units ("ODU's"), Indoor Units ("IDU's"), antennas and antenna
mounts, monitoring equipment, power supplies, associated hardware and cabling,
and other materials necessary to complete the installation process (the
"EQUIPMENT"). The specific Equipment installed at each Site shall be determined
after installation is completed and shall be specified in a supplement to the
Service Order. In the event of the installation of Equipment using frequencies
other than 38 GHz, equipment list will be amended by written agreement
accordingly.
4.2.2 TITLE AND INTEREST
Reseller acknowledges and agrees that the Equipment is, and at all times shall
remain, the property of ART, and that Reseller shall have no right, title or
interest in or to the Equipment. The Equipment is, and at all times shall
remain, 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.
4.2.3 RISK OF LOSS
Reseller shall take reasonable measurers 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 limitation, barriers, limited and locked access, posted
warnings 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 the
Services using any equipment it chooses, so long as the Services are designed to
satisfy the Performance Expectations. ART shall notify Reseller of any changes
in Equipment that appear likely to materially affect Reseller's 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 the Services, Purchaser
shall submit to ART a Request for Service ("RFS). ART shall examine the RFS for
completeness and may return the RFS to Purchaser for additional information.
Purchaser shall exercise reasonable efforts to complete and return the RFS to
ART within three (3) business days of receipt. ART may elect to conduct a
detailed site survey. ART shall exercise reasonable efforts to complete the
detailed site survey within ten (10) business days of receipt of the completed
RFS. Purchaser and ART shall execute a Service Order, which shall become an
integral part of this Agreement. The Purchase Order shall contain, among other
things, pricing for the Circuit, including all installation charges. Following
execution of the Purchase Order, ART shall deliver to Purchaser a Firm Order
Confirmation which shall contain, among other things, a mutually agreeable
target installation schedule ("Target Service Date"). The Target Service Date
may be amended from time to time by amendments to the Firm Order Confirmation.
5.2 SERVICE ORDER MODIFICATION OR CANCELLATION
Reseller may modify or cancel its Service Order at any time prior to beginning
equipment installation, after installation of Equipment but prior to the
Service Commencement Date, as hereinafter defined, 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 by Reseller will not be accepted unless confirmed in writing
by Reseller and signed by an officer of Reseller.
5.3 TIMING
ART shall exercise reasonable efforts to install the Equipment and commence
delivering the Services by the Target 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 and where site surveys show that the
installation is technically feasible. 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 Target Service Date or
fails to expeditiously process an order; provided that, notwithstanding the
provisions of Section 5.2, Reseller may cancel a Service Order without incurring
any charges, following notice to ART and ten (10) additional days to complete
installation, if ART fails to commence the Services by the Target Service Date.
5.4 COMMENCEMENT OF SERVICE
The Services shall commence and Reseller shall be responsible for charges
therefore on the date that (i) ART installs the Equipment, performs testing, and
notifies Reseller that ART is ready to commence the Services, or (ii) a later
date mutually agreed upon in writing by ART and Reseller (the "SERVICE
COMMENCEMENT DATE").
5.5 MINIMUM PERIOD OF SERVICE
The minimum period for the Services to be provided to Reseller shall be one year
from the Service Commencement Date for each Circuit ordered by Reseller and
installed by ART. Reseller shall have the option to request ART to redeploy the
Link to any geographic area chosen by Reseller for which ART holds a license as
a 38 GHz provider, provided: (i) Reseller pays all costs to ART, including,
without limitation, a reasonable allocation of overhead, as determined by ART,
and all charges to third parties associated with deinstallation and
reinstallation of the Equipment at the new Link location ("REDEPLOYMENT"); (ii)
the location chosen is completely suitable, in ART's sole discretion, for the
provision of the Services under the terms of this Agreement; and (iii)
Redeployment at the location chosen does not interfere, as determined by ART,
with existing or planned services by ART.
6. RELATED SUPPORT SERVICES PROVIDED BY ART
ART shall supply certain services set forth in this Section 6 in support of the
Services (the "RELATED SUPPORT SERVICES"). There shall be no additional
charges for the Related Support Services and they shall be included in the
charges for the Services as set forth in Section 10, except for fees set forth
in Section 6.3.
6.1. SITE SURVEYS
Site Surveys (the "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 Services. In addition, ART
shall maintain, or cause to be maintained, 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 by Reseller and subject to the provisions
of Section 15.1.
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 as of the date of this Agreement are set forth in Section 10.
6.4. MAINTENANCE AND RESTORAL
6.4.1 OUTAGE RESTORAL
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
Reseller expressly acknowledges that it is not possible for the Services to be
restored within four (4) hours in all instances and that it shall not be a
breach of this Agreement for 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
Circdispatch of field service personnal within thirty (30) minutes and
Service restoral within four (4) hours or less; provided that Reseller
expressly acknowledges that it is not possible for the Services to be
restored within four (4) hours in all instances and that it shall not be a
breach of this Agreement for Outages to exceed four (4) hours by any amount,
except that, as its sole remedy, [
] at reasonable times to be chosen by ART, for which ART shall give
advance notice and shall exercise reasonable efforts to restore the Services
as quickly as possible in accordance with ART's standard escalation procedures.
6.4.3 LIMITATIONS ON ART'S OBLIGATION TO MAINTAIN AND RESTORE
ART's obligations under Section 6.4.1. exclude each of the following, as
determined solely by ART: (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 in order to perform
installation, maintenance and repair.
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. 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").
6.6 CUSTOMER USER SERVICE
ART's Customer Service Department shall be available to assist Reseller with
Service 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 Reseller service issues within twenty-four (24) hours.
ART shall establish a system of its own choosing for either reporting all
inquiries to Reseller or enabling 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 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 Xxxxxxx,
Director of Sales, NE Region, Campton, New Hampshire.
6.8 POST TERMINATION SUPPORT SERVICES
In the event of a termination of this Agreement by either party, ART shall, if
requested by Reseller, continue to provide on-going service, support,
maintenance and restoral in accordance with the terms of this Agreement for all
Circuit's in service pursuant to this Agreement and prior to its termination,
provided that Reseller continues to pay the applicable charges.
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 PERFORMANCE EXPECTATIONS
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, ART expects to provide the
Services, with a Bit Error Rate of better than 10 TO THE NEGATIVE THIRTEENTH
POWER 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. Reseller expressly acknowledges that: (i) this Section sets forth the
parties' expectations only; (ii) ART is not obligated to meet the Performance
Expectations of this Section 8.1.; (iii) that such failure shall not
constitute a breach of this Agreement, provided that ART is exercising
reasonable efforts to meet these expectations; and (iv) Reseller is entitled
only to Outage credits as specified in Section 11 for any failure by ART to
meet the Performance Expectations of this Section 8.1.
8.2 LIMITATIONS ON ART'S DUTY TO PERFORM
ART's obligation to meet the Performance Expectations 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 impracticable; (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 a 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 Expectations in Section 8.1 in the event that
such failure is due to: (a) Reseller's failure to follow procedures for use of
the Services 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
or third parties affecting the Services and/or Equipment so as to impede ART's
ability to provide the Services; or (d) the inability of ART to access the
premises of Reseller in order to perform installation, maintenance and repair
due to limitations or restrictions imposed by Reseller due to any violations of
Section 9.4 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 five (35) days of the receipt of billing
information in electronic media to Message Center Management's Office. Payments
shall be forwarded to the address stated on 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 percent (2%) of the total amount of said invoice if the EFT is effective
within seventy-two (72) hours of the date of the invoice. 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
Reseller notifies ART to the contrary within thirty (30) days of the receipt of
the invoice, except where the incorrectness could not have been discovered with
due diligence within that period
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 may be performed by Reseller personnel or agents, when such personnel or
agents are authorized and certified by ART to perform such surveys. Reseller
shall bear the entire expense of such Preliminary Site Survey, including,
without limitation, direct and indirect personnel expenses. Reseller's
designated Site Survey persons shall undertake training and certification at
ART's expense and at reasonable times and places. The personnel performing the
Preliminary Site Survey shall 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
Subject to Section 10.2.1, ART shall be responsible for acquisition of Sites for
the installation of the Equipment, use of the Sites by ART for the provision of
the Services and access to those Sites in connection therewith including but
not limited to (i) acquiring the necessary zoning, permits and other municipal
approvals for installation of the Equipment and use of the Site, (ii) paying any
taxes associated therewith and (iii) obtaining access during the normal business
day for installation and routine maintenance and twenty-four (24) hour emergency
access to the Site to maintain and restore the Services.
9.4 RESELLER POINT OF CONTACT
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 Reseller address first listed above
and an emergency point of contact, if different. The initial
contact person for the business day by name and title shall be
__________________ The initial contact person for other than business hours by
name and title shall be _____________________________.
10. WHOLESALE PRICING
ART will from time to time establish its Standard Price List for Service at
non-volume rates (STANDARD PRICING"). Reseller shall pay ART at the Standard
Pricing in effect at the time of the Services minus a wholesale discount based
on volume purchasing and the length of the term ("WHOLESALE PRICING"). ART
shall have the option to increase or decrease its Standard Pricing at any time
and with regard to any Service Area; provided that ART provides notice of such
change to Reseller, in writing and sixty (60) days before the effective date of
the price change. The Standard Pricing in effect at the time of the execution
of this Agreement are set forth in ATTACHMENT D and shall remain in effect for
the purposes of this Agreement until further notice. The subsections
immediately following set forth the structure of the Standard Rates .
10.1 INSTALLATION CHARGES
Installation is charged on a per DS-1 or DS-3 Circuit basis, with differing
charges depending on the capacity and type of the Equipment installed and the
environment of the Site. The rate may be decreased, at ART's sole option, for
additional DS-1s for the same Reseller between the same two points. The charge
for installation may vary by state and by city. Reseller shall pay a non-
recurring charge, as set forth on ATTACHMENT D, for a Standard Installation,
which charge represents a portion of the actual cost of installation. Such
Standard Installation charge assumes reasonable access to the Equipment
locations and that the locations meet ART's minimal acceptable site criteria.
The Equipment that is part of a Standard Installation is listed in ATTACHMENT E.
If the installation requires the purchase and installation of Additional
Equipment, there will be an additional charge as set forth in ATTACHMENT F.
10.2 CIRCUIT CHARGES
10.2.1 CIRCUIT CHARGES.
Circuits which will range in capacity from DS-1s to DS-3s shall be
charged on a monthly basis. Basic charges will either be determined from the
standard pricing list or by negotiated amount mutual agreed upon by Reseller and
ART. In cases where Site license, lease or other recurring or non-recurring
Site fees or costs will be incurred, those fees or costs shall be in addition to
the standard pricing or negotiated amount, and will be disclosed as part of the
final quote for each Circuit.
10.2.2 TERM DISCOUNTS
Term discounts for Circuits will be provided based on the length of the
commitment. The discounts shall be applicable to a two year commitment and may
increase for each year of commitment up to five years. The amount of term
discount may vary by state and by city. If
Reseller terminates this Agreement without cause, as determined by ART, then
Reseller shall be liable for termination payments equal to the difference
between the charges that would have applied, calculating term discounts as of
the actual term elapsed, and the charges that Reseller actually paid.
10.2.3 VOLUME DISCOUNTS
Reseller will be eligible for volume purchase discounts based on projected
quotas. The projected sales quotas and applicable discounts are set forth in
ATTACHMENT D. The discounts set forth therein will apply to the first and each
succeeding Link in the year in which they are installed; provided, however, if
the sales quotas are not met in any year, then the discounts for the entire
following year shall be based upon the sales level actually achieved in such
previous year. Volume purchase discounts shall only apply to monthly recurring
charges. Non-recurring charges shall not be subject to discount. Non-recurring
charges include, but are not limited to, installation, de-installation,
re-location, frequency coordination, and other services. Volume discounts are
calculated based upon the anniversary of the Effective Date, not (unless
coinciding) a calendar year. The volume purchase discount level for the first
year of this Agreement shall be as set forth in Section 17.23.
10.2.4 RESELL TO CARRIERS WITH VOLUME PURCHASE AGREEMENT
Reseller will be guaranteed margin of 5% on all sales made to other
organizations who have executed a volume discount agreement with ART, in such
cases where the other organization's rate would be less than the published
Standard Rate.
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 the Services and not caused by actions of
Reseller or third parties shall be strictly limited to Outage credits against
sums paid or to be paid in an amount determined in accordance with Section 11.2
("CREDIT"). Credit for Outages shall be allowed only when Outages are caused by
or occur in the facilities or the 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 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 advance notice of such maintenance.
Reseller must promptly notify ART of any Outages and include details of such
Outages on forms to be supplied by ART.
11.2 DETERMINATION OF OUTAGE CREDITS
Outages will be deemed to start upon the earlier of either the time upon which
ART receives Notice from Reseller 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 is greater than thirty (30) Severely Errored Seconds.
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, Reseller shall be given credit for the entire month
for that Circuit. Credits will only given on a Circuit by Circuit basis.
12. LICENSING & REGULATORY MATTERS
12.1 LICENSE AUTHORIZATION
ART shall be responsible for obtaining or for maintaining in good standing
appropriate authorizations from the Federal Communications Commission ("FCC")
(i) as a licensee in the millimetric wave frequencies at 38 GHz, and (ii) to
construct and operate (or permit others to construct and operate) radio
equipment necessary to provide service to Reseller 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 AUTHORIZATIONS
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
ART shall be responsible for complying with zoning, environmental, and other
rules and regulations imposed by municipal or other local governmental agencies
with respect to the Services and Equipment. ART shall be responsible for
ensuring the Equipment operates within any applicable environmental and safety
standards.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 TRADEMARKS, TRADENAMES AND BRANDING
The execution of 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 likelihood of public distribution. Such approval
shall not be unreasonably withheld. All Services sold by Reseller hereunder
shall carry Reseller is tradename, unless otherwise directed in writing by
Reseller and agreed to in writing by ART.
13.2 INVENTIONS, PATENT RIGHTS, COPYRIGHTS, TRADE SECRETS AND KNOW-HOW
Each party shall retain all rights in patents, inventions, copyrights, trade
secrets, and technical know- how existing prior to the Effective Date or
independently developed after the Effective Date. 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 transfer such software or
firmware to any other equipment and covenants and agrees not to 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
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. ART SHALL NOT BE
LIABLE FOR ANY CLAIM OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ACTIONS,
DAMAGES, DEMANDS, JUDGMENTS, LOSSES, COSTS, EXPENSES, LIABILITIES, AND LOSS OF
MONIES ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE, WHETHER BASED ON
CONTRACT, WARRANTY, TORT INCLUDING NEGLIGENCE, MISTAKE, ERROR, MISCONDUCT,
INTERRUPTION, DELAY, DEFECT OR OTHERWISE OF ART, ITS EMPLOYEES, AGENTS,
CONTRACTORS, OR SUB-CONTRACTORS, OR AFFILIATED COMPANIES, INCLUDING BUT NOT
LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE
DAMAGES, LOSS OF REVENUE OR PROFIT, LOSS OF USE OF ANY PROPERTY, COST OF
SUBSTITUTE PERFORMANCE, EQUIPMENT OR SERVICES, COST OF CAPITAL DOWNTIME COSTS
AND CLAIMS OF THE RESELLER FOR DAMAGES.
15. CONFIDENTIALITY
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 non-public information,
including 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 is being provided
or which has been provided to the receiving party by the disclosing party, or
which is 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 non-confidential 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
thereof and to delete from electronic memory such Confidential Information.
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 written 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; provided that such financing sources, auditors, attorneys and other
agents keep such information confidential.
16. TERMINATION
16.1 TERMINATION FOR DEFAULT
Either party may terminate this Agreement immediately on the occurrence of any
of the following events: (i) failure to perform a material obligation under this
Agreement, or a material 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)
days 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.
16.2.1 ACCRUED RIGHTS
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.
16.2.2 NOT EXCLUSIVE REMEDY
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 or by law.
16.2.3 RETURN OF MATERIALS
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 upon business hours, or other mutually agreeable times, 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
the other 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 and describe in detail all work in process under this
Agreement.
16.2.4 PAYMENTS DUE
Reseller shall pay in full to ART any and all amounts then due and owing within
thirty (30) days of termination of this Agreement, except that the payments due
under Section 10.2.2 shall be due according to the terms of that Section.
17. GENERAL PROVISIONS
17.1 ASSIGNMENT AND SECURITY INTEREST
17.1 ASSIGNMENT
This agreement and the rights and duties of each party hereunder shall not be
assignable without prior written consent of the other party and such assignment
shall not be unreasonably withheld by either party provided that each party may
assign this agreement to any party under common ownership with the assigning
party and may assign this agreement to any party acquiring all or substantially
all of the assets of the assigning party. Subject to the foregoing this
agreement will be binding upon and will inure to the benefit of the personal
representatives, successors and permitted assigns or lessees of the parties
hereto.
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 Delaware 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 materially affecting the relationship between the
parties, provided that the imposition of such rules or regulations shall not be
construed to relieve the party affected by such rules or regulations from any
duty under Sections 9.1, 9.2, 13 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
Delaware State law. The Site of such arbitration shall be in the State of,
Delaware, or the closest other site of agreed to by the AAA. This choice of
venue is intended by the parties to be mandatory and permissive in nature and
each party waives any right it have to assert the doctrine of forum
non-convenience 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.
17.9 FORCE MAJEURE
NEITHER PARTY SHALL BE LIABLE FOR DELAYS IN PERFORMANCE, OR FAILURE TO PERFORM
THIS AGREEMENT OR ANY OBLIGATIONS HEREUNDER, WHICH ARE ATTRIBUTABLE TO CAUSES
BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO, 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.
17.10 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 written 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 and Section 15.
17.11 INSURANCE
Both parties shall provide proof of insurance or 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 Two Million Dollars ($2,000,000)
for each occurrence.
17.12 INDEMNIFICATION
17.12.1 INDEMNIFICATION OF ART BY RESELLER
Reseller shall indemnify ART against, and hold ART harmless from all
liabilities, demands, 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 of ART
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, demands, 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 of
Reseller 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 it appears that the other party may be obligated to provide indemnification
as a result of 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. 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.
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 mail.
IF TO ART:
Xxxxxx X. Xxxxxx
President
000-000xx Xxx XX, Xxx. 0000
Xxxxxxxx, XX 00000
000-000-0000
Fax 000-000-0000
WITH COPY TO:
W. Xxxxxxxx Xxxxxxx, XX., Esq.
ART General Counsel
c/o Xxxxxxx, Xxxxxxx & Xxxxxx
0000 X Xxxxxx, X.X., Xxx. 000
Xxxxxxxxxx, X.X. 00000
000-000-0000
Fax 000-000-0000
IF TO RESELLER
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17.14 PERIOD OF LIMITATIONS
Any claim arising from or in connection with this Agreement must be brought to
the attention of the other party in writing within sixty (60) 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 six (6) months 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
Sections 6.8, 13, 14, 15, 17.7 and 17.12 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 and nor for or
against either party because of the identity of the party drafting or proposing
a provision.
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 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. 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.
17.23 FIRST YEAR DISCOUNT LEVEL
THE PARTIES HERETO AGREE THAT THE QUOTA DISCOUNT LEVEL FOR THE YEAR COMMENCING
AS OF THE EFFECTIVE DATE AND TERMINATING ONE YEAR THEREAFTER SHALL Be LEVEL 3.
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 TELECOM, MESSAGE CENTER MANAGEMENT
CORP., a Delaware Corporation INC. a Delaware Corporation
By:
-----------------------------
Name: By:
--------------------------- ------------------------------------
Title: Name:
-------------------------- ----------------------------------
Title:
---------------------------------
ATTACHMENTS
A. Definitions
B. Current Form of Service Order
C. Standard Pricing
D. Quota Discounts
E. Term Discounts
F. Equipment
ATTACHMENT A
As used in this Agreement, the following terms shall have the following
meanings:
"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.
"AGREEMENT" shall mean each initialed page of this agreement, each of its
Attachments and each amendments if executed by each party.
"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-0, 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.
"DS-0" 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.
"DS-1" shall mean Digital Signal One, which is a circuit with a bandwidth of
1.544 megabits per second, roughly 24 times that of DS-0. A DS-1 is also known
as a T-1.
"DS-3" 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.
"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 17.10 that are
considered to excuse performance.
"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 Reseller's Premises and is connected to the ODU by coaxial
cable, usually RG 8.
"LINK" shall mean radio path between two transceivers. A radio path may consist
of one or more Links.
"NOTICE" shall mean the notice provisions set forth in Section 17.13.
"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 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.
"OUTAGE" shall mean service interruptions in excess of ten (10) consecutive
Severely Errored Seconds.
"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.
"PRELIMINARY SITE SURVEYS" shall mean the initial survey of the Site.
"PT" shall mean either standard clock Pacific Time or daylight Pacific clock
Time whichever is applicable.
"RESELLER" shall mean the carrier to whom ART sells Service at Wholesale rates
and which in turn provides Service to the Reseller.
"SERVICES" shall mean the services provided by ART pursuant to the terms of this
Agreement.
"SERVICE AREA" shall mean the area within which ART provides Service.
"SERVICE ORDER" shall mean the order for Service executed by Reseller in the
form of Attachment B.
"SEVERELY ERRORED SECONDS" shall mean those seconds in which the Bit Error Rate
is greater than 10 TO THE NEGATIVE THIRD POWER.
"SITE" shall mean location of the IDU, ODU, the connecting cabling and ancillary
equipment to be used for furnishing Service to the Reseller. 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.
"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.
"STANDARD PRICING" shall mean the rates charged to Resellers by ART, prior to
term or volume discounts, plus any licensing or lease fees for that circuit.
"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.
"WHOLESALE RATES" shall mean the rates charged to Reseller by ART.
"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.