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EXHIBIT 10.14
MCI DOMESTIC (US) DIRECT PEERING AGREEMENT
This Agreement is made, effective as of August 1, 1998 (the "Effective
Date"), by and between MCI Telecommunications Corporation, a Delaware
corporation with a principal place of business at 0000 Xxxxxx Xxxxxxx, Xxxxxx,
Xxxxxxxx 00000 ("MCI") and CRL Network Services, Inc., with a principal place of
business at Xxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("COMPANY").
RECITALS
1. Each of MCI and COMPANY operates an Internet Network, as defined below;
and
2. The parties wish to provide for the connection of, and exchange of
traffic between, their respective Internet Networks on the terms and
conditions of this Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Definitions
a. "Internet Network" shall mean a communications network running
the TCP/IP and other Internet protocols which network exchanges
data pursuant to this Agreement.
b. "Direct Connection Point" shall mean any point at which the
parties agree to connect their respective Internet Networks under
this Agreement. A description of all Direct Connection Points is
set forth on Schedule 1, and Schedule 1 shall be amended by the
Agreement of MCI and COMPANY in the event of any changes.
2. Exchange of Traffic
a. Implementation of the terms of this Agreement is subject to
availability of peering ports and capacity in particular
locations.
b. The parties agree to exchange digital communications traffic over
their respective Internet Networks at two or more Direct
Connection Points as specified in Schedule 1, subject to the
terms and conditions set forth in this Agreement. The parties
will work to establish optimal locations for connecting their
respective Internet Networks. Unless the parties agree otherwise,
such connections shall be geographically dispersed. Direct
connections pursuant to this Agreement are established on a
bilateral basis. Unless the parties agree otherwise, the
connections will be established in pairs. Each party shall pay
for one circuit connection. Neither party will apply port,
service or other charges.
c. The data rate at which the parties will connect is set forth in
Schedule 1. However, such rates shall be at least DS-3 (45Mbps)
or higher.
d. Each party agrees not to restrict traffic flowing through the
Direct Connection Points to and from the other party based on the
subject matter of the traffic unless required to do so by court
order or applicable law; provided, however, that each party shall
be free to block traffic that the party determines violates the
terms of usage of its network. Each party shall retain its rights
to impose usage restrictions on its own customers and/or to
assist its customers in imposing customer requested usage
restrictions on traffic flowing from the requesting customer.
e. There will be no restrictions on the ability of either party to
collect data and create statistics associated with data moving
through its own network and traffic moving through the Direct
Connection Point. Each party shall keep all data it monitors or
captures concerning the Direct Connection Points confidential in
accordance with the nondisclosure obligations of Section 16
(Confidentiality), and shall use such data solely for the
purposes of operating and managing its Internet Network. Except
as otherwise agreed between the parties, statistics itemized by
the following criteria may not be provided to third parties,
service provider, company or other entity, and/or IP address.
Notwithstanding the foregoing, each party may provide its
customers with their own statistical data.
f. Neither party will establish a route of last resort directed
toward the other party's Internet Network. A "route of last
resort" is defined as a route which covers all possible
destinations. Instead, the parties will fully exchange explicit
routes comprising public Internet service destinations of
entities to whom either party is contractually obligated to
handle traffic. An "explicit route" is defined as a route that
covers only a strict, limited subset of all possible
destinations.
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g. Neither Internet Network shall obtain Transit Traffic services
from the other Internet Network for the period of this Agreement.
For purposes of this Agreement, "Transit Traffic" is traffic that
a party agrees to transport to its final destination whether or
not such destination is on such party's Internet Network.
h. If the parties are presently peering at public peering points
(for example, XXXx, NAPs, or other similar public exchange
points), the parties will terminate connections to each other at
such points as soon as practicable after the establishment of the
direct connections as provided in Schedule 1.
i. The parties intend that each pair of direct DS-3 peering
connections shall have an aggregate 20 Mbps minimum traffic
requirement. In addition, each individual DS-3 connection is
intended to carry a minimum of 5 Mbps. The traffic volumes are
measured in either direction (whichever is higher) and are weekly
aggregated averages. Any additional pair of direct peering DS-3
connections is intended to require an additional 20 Mbps of
traffic.
j. Neither Party will receive the other Party's route announcements
from a third party.
3. Payments
During the twelve-month period immediately following the Effective Date
of this Agreement, the parties agree to work together to define the data
and operational characteristics of the connection between the Internet
Networks with a view toward agreeing upon appropriate financial
arrangements for the connection of their respective Internet Networks
should they mutually be deemed necessary or desirable. Immediately upon
the parties' agreement to such financial arrangements, the parties shall
implement such arrangements by amending this Agreement to provide for
settlement or other payments between the parties. Until such financial
arrangements are finalized, no settlement or other charges of any kind
for data transmission will be paid by either party to the other under
this Agreement.
4. Term and Termination
a. This Agreement shall have an initial term of one (1) year
following the Effective Date. At the end of the one-year period,
the parties will review their compliance with the peering
criteria in order to determine if this Agreement should be
renewed. As part of this process, the parties will evaluate the
statistics relating to traffic sent to and received from each
Internet Network. Either party may terminate this Agreement for
convenience with thirty (30) calendar days' notice.
b. Either party may terminate this Agreement with ten days' notice
(unless such circumstances are cured within such ten day period)
upon the following circumstances: (i) a party disconnects from
any of the Direct Connection Points
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specified in Schedule 1 unless mutually agreed; or (ii) either
Internet Network purchases Internet access from the other
Internet Network; or (iii) either party fails to continue to meet
the requirements specified in Schedule 1.
5. Technical and Operational Matters
a. Each party represents that the Direct Connection Points set forth
in Schedule 1 are connected as party of an internal network
architecture comprised of multiple, cross-country (i.e., across
the eastern, midwestern, and western portions of the United
States) circuits of at least DS-3 (45 Mbps) speed. In addition,
each Backbone Hub on an Internet Network shall be connected to at
least two other Backbone Hubs in such Internet Network. For
purposes of this Agreement, a "Backbone Hub" means a router at a
major intersection of an Internet Network.
b. Neither party shall accept traffic from the other party if such
traffic does not originate on the other Party's Internet Network.
Any traffic that originates outside of the other Party's Internet
Network shall be called "third party routes." If third party
routes are detected by either party, that party has the right to
block the routes. The foregoing restriction shall not apply to
customers whose Transit Traffic is carried by either of the
parties' respective Internet Networks.
c. Both parties shall maintain a consistent routing announcement
(i.e., same set of routes announced with same AS path at all
Direct Connection Points). Both parties will present the same
autonomous system number at all mutual agreed Direct Connection
points listed in Schedule 1. Each party shall carry full routing
at edge routers using BGP-4 and aggregated routes. Each party
will register routes with the IRR (Internet Routing Registry) and
shall register routing policy with the IRR. Each party will
filter routes at the network edge, i.e., listen only to routes
that have been pre-registered.
d. Each party will determine how to route traffic to the other
party, and may choose alternate paths if such party determines
that an alternate path via another source to be optimal.
e. The parties will work together during the term of this Agreement
to establish mutually agreed performance objectives and
operational procedures to enable each party to provide the
highest practical quality of service over its Internet Network
and the connection provided under this Agreement, in a cost
effective fashion. The parties shall use their reasonable efforts
to achieve a minimum end-to-end one-way packet delay.
f. Each of the parties will use its reasonable efforts to achieve a
mean time to repair of four (4) hours or less for all outages at
the Direct Connection Point(s) set forth on Schedule 1. The
parties will cooperate with each other in each party's efforts
under this paragraph.
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g. Each of the parties will develop scheduled maintenance procedures
that provide for notification by one party to the other of all
schedules maintenance that could cause end-to-end connectivity
loss for any user of more than five minutes. Each party agrees to
give the other three (3) calendar days advance notice for
scheduled maintenance that is expected to result in 30 minutes or
more of end-to-end connectivity loss.
h. Each party agrees to maintain a fully staffed network operations
center ("NOC") that operates on a 24 hour/day, 7 days/week
schedule.
i. Each party will, at its own expense and on a reasonable efforts
basis, provide NOC support in cooperation with the other so as to
maintain the smooth operation of the internet network service.
The parties shall develop operational procedures for the
interworking of their respective Internet Networks, including
without limitation inter-NOC problem management information
exchanges (e.g., trouble ticket tracking), and NOC escalation
procedures for addressing unscheduled outages or emergency
maintenance.
j. Each of the parties will provide the other with certain limited
access to data for the purpose of operational monitoring and the
diagnosis of end-to-end connectivity problems. The parties will
use their reasonable efforts to develop procedures to govern the
timing and other terms and conditions upon which this access will
be provided.
k. Each of the parties shall use reasonable efforts to secure their
respective Internet Networks and traffic through the Direct
Connection Points from unauthorized access, transmission or use;
furthermore, the parties shall cooperate to address security
issues and develop security procedures.
6. Customer Relations
Each party will be responsible for communicating with its own customers
with respect to its Internet Network. Each party shall use its
reasonable efforts to notify the other promptly in writing of all
trouble reports made to it by customers of the other party. Each party
shall be responsible to screen the traffic of its own customers not
desiring public Internet access from distribution across the Direct
Connection Point(s) agreed to under this Agreement. Each party will
independently establish the charges to its own customers for the
services provided in connection with this Agreement.
7. Non-exclusivity
This Agreement shall not prohibit or restrain either party's entry into
any separate similar or dissimilar contract or agreement with one or
more third parties.
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8. Liability
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS OR DAMAGE
ARISING FROM: (I) ANY FAILURE IN OR BREAKDOWN OF ANY FACILITIES OR
SERVICES UNDER THIS AGREEMENT, WHATSOEVER THE CAUSE AND HOWEVER LONG IT
SHALL LAST; (II) ANY INTERRUPTION OF SERVICE, WHATSOEVER THE CAUSE AND
HOWEVER LONG IT SHALL LAST; (III) SUCH PARTY'S SUBMITTING TRAFFIC TO OR
ACCEPTING TRAFFIC FROM THE OTHER PARTY UNDER THIS AGREEMENT; OR (IV) ANY
OTHER CIRCUMSTANCE RELATING TO THIS AGREEMENT.
9. Liability; Consequential Damages
Each party is responsible for assessing its own need for property,
casualty and liability insurance and each shall obtain such insurance as
each sees fit. Each party shall bear the risk of loss and damage with
respect to its own equipment and agrees not to make any claims against
the other, or assign any such claims to third parties, for any property
loss or damage.
IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN
CONNECTION WITH THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN INFORMED IN
ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT SUCH
DAMAGES ARE FORESEEABLE.
10. Authorization
All undertakings and obligations assumed under this Agreement by either
party are subject to all applicable existing and future laws, rules and
regulations, and are further subject to the issuance and continuance of
all necessary governmental licenses, waivers, consents, registrations,
permissions and approvals.
11. Force Majeure
No failure or omission by either party to carry out or observe any of
the terms and conditions of this Agreement shall give rise to any claim
against the party in question or be deemed to be a breach of this
Agreement if such failure or omission arises from any cause reasonably
beyond the control of that party (a "Force Majeure Event"). Each party
shall give the other notice in the event it experiences a failure or
delay due to a Force Majeure Event. Upon such notice, the party affected
by the Force Majeure Event may delay performance under this Agreement
during the pendency of such Force Majeure Event, and shall have no
liability for such delay.
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12. Relationship of Parties
In their performance of this Agreement, the parties are acting as
independent contractors, and nothing contained in this Agreement shall
be construed to create a partnership, joint venture or other agency
relationship between the parties.
13. Regulatory Approval
The parties acknowledge that this Agreement may become subject to
regulatory approval by various local, state or federal agencies. Should
such approval be required from time to time, or at any time, the parties
shall cooperate, to the extent reasonable and lawful, in providing such
information as is necessary to complete any required filing.
14. Notices
All notices between the parties required or permitted under this
Agreement shall be effective if hand delivered or sent by post or
courier, postage or fees paid, or by facsimile or electronic mail to the
address specified below. All notices shall be effective when sent.
If to MCI:
MCI Telecommunications Corporation
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
ATTN: Internet Marketing
with a copy to:
MCI Communications Corporation
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Technology Group, Law and Public Policy
If to:
CRL, Network Services
Xxxxx 0000
Xxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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with a copy to:
Xxx Mayor, Esq.
Mayor Law Offices
13th Floor
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
15. Miscellaneous
If any provision of this agreement is held by an arbitrator or court of
competent jurisdiction to be contrary to law, the remaining provisions
of this Agreement will remain in full force and effect. This Agreement
may be modified only by a written amendment signed by both parties.
Nothing contained in this Agreement shall be deemed to confer any rights
in any third party not a signatory to this Agreement. Neither party
shall transfer or assign its rights or obligations under this Agreement
or transfer by way of merger, consolidation, sale of all or
substantially all of its assets without the prior written consent of the
other party which consent shall not be unreasonably withheld; provided,
that either party may transfer its interest in this Agreement to any
subsidiary or affiliate of either party. This Agreement represents the
entire understanding between the parties regarding the subject matter of
this Agreement and supersedes all other prior and contemporaneous
agreements, understandings, negotiations and discussions between the
parties with respect to such subject matter. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York, U.S.A., without regard to the conflicts principles thereof. No
press release, announcement, publication, or other use of the other
party's insignia, logos, trademarks, trade names or service marks
(collectively, "Marks") shall be made by either party without the other
party's prior written approval. All use by either party of the other
party's Marks will inure to the benefit of the party owning the Marks.
Upon termination of this Agreement, neither party shall have any
continuing right to use the other party's Marks and each party shall
immediately cease all such use of the other party's Marks.
16. Confidentiality
During the course of performance of this Agreement, each party may
disclose to the other certain business, technology, research, customer,
and other business information which the disclosing party treats as
confidential information ("Confidential Information"). Each party shall
maintain the other party's Confidential Information in confidence, shall
protect it with the same degree of protection which it uses to protect
its own Confidential Information, shall not disclose it to any third
party, and shall use it for the sole purpose of performing under this
Agreement. At the conclusion of this Agreement, each party shall either
return the other's Confidential Information in its possession (including
all copies). For purposes of this Section, the term "Confidential
Information" shall not include any information which: (a) enters the
public domain following disclosure through no fault of the receiving
party; (b) the receiving party is disclosed to the receiving party with
no
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obligation of confidentiality by a third party having the right to
disclose it; or (c) is independently developed by the receiving party
without reference to the disclosing party's Confidential Information;
provided that the receiving party can clearly demonstrate such
independent development through independent contemporaneous records
showing such development. Either party may disclose the other party's
Confidential Information upon the order of any competent court or law
enforcement agency; provided, that prior to disclosure the receiving
party shall inform the disclosing party of such order. Neither party
shall disclose the terms and conditions of this Agreement to any third
party. Neither party shall issue any press release regarding this
Agreement without the other party's approval. Notwithstanding the
foregoing, the parties acknowledge that they intend to disclose the
technical objectives and certain technical terms and conditions
contemplated by this Agreement to the public, in a form and manner and
at a time to be mutually agreed by the parties.
17. Disputes
Any dispute arising out of or related to this Agreement, which cannot be
resolved by negotiation, shall be settled by binding arbitration in
accordance with the J.A.M.S./ENDISPUTE Arbitration Rules and Procedures
("Endispute Rules"), as amended by this Agreement. The costs of
arbitration, including the fees and expenses of the arbitrator, shall be
shared equally by the parties unless the arbitration award provides
otherwise. Each party shall bear the cost of preparing and presenting
its case. The parties agree that this provision and the Arbitrator's
authority to grant relief shall be subject to the United States
Arbitration Act, 9 U.S.C. 1-16 et seq. ("USAA"), the provisions of this
Agreement, and the ABA-AAA Code of Ethics for Arbitrators in Commercial
Disputes. In no event shall the arbitrator have the authority to make
any award that provides for punitive or exemplary damages. The
Arbitrator's decision shall follow the plain meaning of the relevant
documents and shall be final and binding. The award may be confirmed and
enforced in any court of competent jurisdiction. All post-award
proceedings shall be governed by the USAA.
IN WITNESS WHEREOF, the parties have caused their respective authorized
representatives to sign this Agreement on their behalf, effective as of the date
first written above.
MCI Telecommunications Corporation CRL Network Services, Inc.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxx
Xxxxxx X. Xxxx Xxxxx X. Xxxxx
Senior Vice President President
Internet Architecture and Engineering
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SCHEDULE 1
Description of Company Direct Connection Points and Minimum Requirements for
Direct Connection Points
Direct Connection Points Speed
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Hayward, California (HAY) 00 Xxxx
Xxxxxx Xxxxxxx, Xxxxxxxx (WSP) 00 Xxxx
Xxxxxxxxxx, XX (WTN) 45 Mbps
Rialto, California (RTO) 45 Mbps
Either party shall be able to terminate this Agreement with ten days notice if
the other party fails to meet the following requirements and fails to cure such
breach within such ten-day period.
Infrastructure Requirements:
Cross-country DS3 (45 Mbps) backbone with Backbone Hub requirements provided in
Section 5(a);
DS3 connectivity to Direct Connection Points. as provided in Section 2(c);
Fully staffed 24X7 network operations center (NOC). as provided in Section 5(g);
Established trouble ticket and escalation procedures designed to achieve a mean
time to repair of four (4) hours or less for all outages at the Direct
Connection Points;
Connection at fewer than the Direct Connection Point(s) set forth on Schedule I.
Routing:
Carry full routing at edge routers using BGP-4 and aggregated routes. as
provided in Section 5;
Register routes with IRR, register routing policy with IRR, and filter routes as
provided in Section 5;
Consistent routing announcement (i.e.. the same set of routes announced with the
same AS path at all Direct Connection Points), as provided in Section 5;
No establishment of a route of last resort (i.e.. default route) directed to
other party, as provided in Section 2(f);
No establishment of third party routes that allow direct traffic exchange (in
either direction) between MCI and a third party, as provided in Section 5(b).
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Neither party shall purchase Transit Services from the other Internet Network
during the term of this Agreement.
Neither party will receive the other party's route announcements from a third
party, as provided in Section 2(j).
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