EXHIBIT 10.4
ENTERPRISE SERVICES SOLUTION AGREEMENT
Agreement, dated December 3, 1998 (the "Agreement"), by and between Cisco
Systems, Inc., a California corporation ("Cisco"), and Rhythms NetConnections
Inc., a Delaware corporation ("Rhythms").
PREAMBLE:
Rhythms and Cisco have recently announced a long-term working relationship
in connection with Rhythms' purchase of significant telecommunications equipment
from Cisco and Rhythms' establishment of a new platform for the San Francisco,
and adjacent areas in the Bay Area, San Diego, Los Angeles, California, and
adjacent areas, Boston, Massachusetts and adjacent areas, and when operational
in calendar 0000, Xxxxxx, Xxxxx and adjacent areas, Research Triangle Park, and
adjacent areas, and other specified United States locations (collectively, the
"Market").
After Rhythms successful demonstration of a pilot DSL program for Cisco
telecommuters in the San Diego market, Cisco has chosen Rhythms to be the
primary provider of a DSL network to Cisco's Operations/Information Services
telecommuters in the Market, and Rhythms is willing to accept such appointment
and to provide a DSL network designed to serve each of Cisco's approximately
8,000 current and projected telecommuters on the terms and conditions described
herein.
NOW, THEREFORE, in connection with the premises hereof, and the mutual
agreements, covenants, and representations and warranties set forth herein, the
parties thereto hereby agree as follows:
1. ENTERPRISE SERVICES SOLUTION.
1.1 ENTERPRISE SERVICES SOLUTION DEFINED. Rhythms Enterprise Services
Solution is an end-to-end managed and supported telework program or LAN
interconnect service for branch office connectivity, designed for Cisco
consisting of the following features: (a) Rhythms' provision of all necessary
telework service ordering, installation, billing, reporting, and support; (b)
Rhythms' implementation of seamless service functions into Cisco's ordering,
installation, billing, reporting and support services; (c) Rhythms' management
of Cisco's telework program with 24 x 7, Tier 1 support for both ingress/egress
circuits as well as appropriate customer premises equipment ("CPE"); (d)
Rhythms' provision of CPE needed for such telework program and related
installation, configuration and management of all CPE; (e) Rhythms' ownership
and management of all circuits; (f) Rhythms' provision of xDSL (i.e., IDSL
128/144K, ADSL speed range 384Kbps symmetrical to 7Mbps/1Mbps asymmetrical,
Fractional T1 at comparable ADSL speeds); (g) Rhythms' provision of DHCP
Services in the network; (h) Rhythms will supply Cisco products for respective
deployments; (i) Rhythms' provision of (***) dedicated customer service
technicians and a dedicated project management resource; and (j) a dedicated
Rhythms Account Team, which shall include Account Management, Program
Management, and Network
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Engineering team members. This team will be appropriately scaled with ESS
volume. The purpose of the Rhythms Enterprise Services Solution is to offer
Cisco's remote teleworkers a network experience comparable to that utilized by
Cisco's on-site workers who are connected directly to Cisco's existing corporate
LAN. The Rhythms Enterprise Services Solution shall be referred to in this
Agreement as the "ESS".
1.2 PRICING. Rhythms shall sell ESS at a data rate of 384 Kilobits
symmetrically to Cisco, and Cisco shall purchase ESS as so configured, at the
prices set forth in Exhibit A hereto for each access connection (the "ESS Base
Prices"). Each individual Cisco teleworker shall receive ESS for a minimum
period of 12 months. In addition, Rhythms shall sell DS3 Egress at a data rate
of 45 Mbps symmetrically (including related installation) at the prices set
forth in Exhibit A hereto. Furthermore, Rhythms shall sell Rhythms' California
LAN/National LAN service carrying Cisco's California/ National DSL user's
traffic back to Cisco headquarters in San Jose, California or any other Cisco
location in the Market with a regional connection to Rhythms at the prices set
forth in Exhibit A1 hereto. Rhythms shall provision, if required, based on
DSL/DS1 deployment mix, DS1s at a 384 Kilobit speed to such end-user teleworkers
at the prices set forth in Exhibit A2 hereto. Rhythms shall also be prepared to
provide Cisco with (i) rerouting of Cisco's Internet traffic through Rhythms
Internet Service, in each instance upon such terms and conditions and such
implementation schedules as may be mutually agreed upon by Rhythms and Cisco
during the term of this Agreement. If and upon the occurrence of Rhythms'
failure to meet during any calendar month the performance criteria set forth in
the Service Level Agreements attached hereto as Exhibit B, the Monthly Recurring
Rates that are included in the ESS Base Prices shall be adjusted for such month
by Rhythms in the percentage amounts indicated in Exhibit B corresponding to any
applicable level of Rhythms' non-performance occurring in any such calendar
month. To the extent that any non-performance discounts may be applicable to
the ESS Base Prices, (***)
(***) the month in which the Rhythms'
non-performance occurred.
1.3 ESS DEPLOYMENT. The parties mutual objective is to apply best
effort in deploying ESS to 100% of the telecommuting population of the Cisco
Operations/Information Services nationally, provided that the ESS technology is
the most practical and cost effective solution. The parties shall each use
their commercially reasonable efforts to refine, implement and fully deploy the
ESS to all Cisco teleworkers as promptly as possible. Initially, implementation
and deployment of ESS shall commence in the Market and shall serve
(***)
(***)
(***) . In recognition of, and reliance upon, the
parties mutual objectives, Rhythms shall (a) accelerate and expand its
installation and support personnel and capacity to provide Cisco with the
monthly teleworker activation rates as determined and set forth in Exhibit C
hereto (the "ESS Monthly Activation Rates"); and (b) deploy xDSL-based services
to support ESS; PROVIDED, HOWEVER, that, in the event that central office reach
or central office deployment affects the provisioning of xDSL-based services to
certain end-user teleworkers, (***)
(***) PROVIDED,
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FURTHER, HOWEVER, that the (***) shall not exceed (***) to
(***) of the cumulative deployment to date. Cisco and Rhythms shall
hold operational-level meetings (***) and executive-level meetings
(***) to review the status of ESS until successful deployment of ESS
is completed in accordance with the parties objectives.
2. INSTALLATION. If Cisco requests Rhythms to deploy any new product
for use in connection with ESS service (a "New Product"), Rhythms shall not be
required to commence any such deployment until the (***) after either
(a) Cisco's (***) (***) or (b)
Rhythms (***) (***)
(***) .
Rhythms will need to install certain equipment and software, that is
compliant with Cisco corporate Information Technology standards, into the
computer system of Cisco and/or each Cisco teleworker to connect Cisco and/or
each Cisco teleworker to the Rhythms Network. Rhythms will supply all standard
components to connect Cisco and/or each Cisco teleworker to the Rhythms Network
(all of which components will remain the sole and exclusive property of Rhythms)
and (***)
(***) . Cisco agrees that Cisco and its
teleworkers will (a) not abuse or otherwise damage the components while they are
in their possession, (b) operate the equipment according to manufacturer
specifications, and (c) return the components in good condition (except for
deterioration from normal usage) to Rhythms upon the termination of this
Agreement and/or such teleworkers' access to ESS.
In connection with the installation, testing or subsequent service relating
to your connection with ESS, it will be necessary for Rhythms personnel or its
authorized representatives (collectively, "Rhythms Installers") to insert
certain software in each computer and possibly reconfigure some aspects of such
computer system to accommodate ESS, that is compliant with Cisco corporate
Information Technology standards. It is possible that such activities might
inadvertently result in the loss of certain programming on that computer system
that could be important, and Cisco hereby agrees that it is its responsibility
to make appropriate arrangements to prepare diskettes of all such important
information prior to the installation, testing or service of ESS. Cisco, on
behalf of Cisco and each of its teleworkers, hereby agrees that neither Rhythms
nor the Rhythms Installers will be responsible in any manner for any loss of, or
damage to, any information or programming on any such computer system or any
breach or violation of any manufacturer's or other warranty relating to such
computer or any elements included in such computer system which may occur as a
result of any installation, testing or later service conducted by Rhythms or the
Rhythms Installers as requested with respect to Rhythms components or other
equipment or programming. Rhythms agrees to provide at the conclusion of the
installation an "Introductory Package", of which contents are referenced in
Appendix A hereto, relative to the ESS service.
3. USE OF SERVICES; RIGHTS TO RESTRICT, INTERRUPT OR END SERVICE OR
THIS AGREEMENT. Rhythms is providing products and services solely for the
internal business use of Cisco as an end user, and Cisco shall be solely
responsible for the content of any transmissions
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over the Rhythms Network from its premises location or any location of any Cisco
teleworker. Cisco shall, and shall cause such of its teleworkers to, use
Rhythms' services in a manner that conforms with the terms of this Agreement,
and Cisco and its teleworkers shall not (a) attempt to gain unauthorized access
to any other system or network, or (b) interfere or disrupt other End Users,
Network Operations or Network equipment of Rhythms or any of its affiliates.
Cisco and its teleworkers shall also not (1) propagate computer viruses or other
harmful code or data or (2) impersonate any person using forged headers or other
identifying information (provided, however, that the use of anonymous re-mailers
and nicknames is allowed). Cisco hereby warrants that Cisco and each of its
teleworkers will not infringe the copyright, trademark, or other intellectual
property rights of any other person or entity through the use of the Rhythms
Network or services, and that Cisco shall not, and shall cause each of its
teleworkers not to, use the Rhythms Network or services to defame, cause an
invasion of privacy or otherwise violate the rights of any person or entity, or
violate any local, state, federal, or international statute, regulation or
treaty. The transfer of certain technical data and software across national
boundaries (including the electronic transmission thereof) is regulated by the
federal government. Cisco shall not, directly or indirectly, export or
re-export (including by electronic transmission) any regulated technical data or
software without first obtaining any required export license or governmental
approval and otherwise complying with all governmental rules and regulations
applicable to that activity. If any conduct described in this first paragraph
of Section 3 shall occur, Rhythms shall promptly notify Cisco of such offending
conduct and, if Cisco shall have failed to cause such offending conduct to cease
in a manner calculated to avoid any repetition to the reasonable satisfaction of
Rhythms, Rhythms shall have the right, in addition to other available remedies,
to suspend and interrupt ESS service to the teleworker(s) or location(s) that
Rhythms shall have identified are responsible for such offending conduct.
To maintain or improve Rhythms service or the Rhythms Network, to prevent
fraud or for other business reasons, Rhythms can restrict, interrupt or modify
the ESS service, (***) (***) but, with
respect to each interruption, restriction or modification, Rhythms will promptly
seek to resolve any situation or condition that has caused an interruption in
service to the extent that the fault involves the Rhythms Network or its
equipment. Rhythms can restrict or end ESS service to Cisco and/or any Cisco
teleworkers, if Cisco: (a) carries past due balances; (b) incurs charges larger
than any required deposit;(c) makes a false statement to Rhythms or otherwise is
in violation of any material term of this Agreement; (d) interferes with
Rhythms' customer service or any other business operations; (e) becomes
insolvent or goes bankrupt; or (f) breaches any part of this Agreement, provided
however, that no restriction for interruption of ESS shall occur if Cisco
effects a cure of any such condition within (***) after receipt of notice
from Rhythms concerning such condition. Rhythms also reserves the right to
serve notice if (i) Rhythms believes that its service is being misused or used
by anyone for unlawful activity, or (ii) the use of Rhythms service in any
premises of Cisco or any Cisco teleworker adversely affects Rhythms service to
other Rhythms' customers. All products and services of Rhythms shall be
provided subject to Rhythms' business polices, practices and procedures, which
Rhythms' reserves the right to change at any time and from time to time in its
sole discretion.
4. MUTUAL WAIVERS AND LIMITATIONS OF LIABILITY. Rhythms' maximum
liability to Cisco under any theory (including but not limited to fraud,
misrepresentation, breach of contract,
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personal injury, negligence, or products liability) is limited to a refund or
rebate of charges paid or owed to Rhythms by Cisco. The maximum liability of
Cisco to Rhythms under any theory (including but not limited to fraud,
misrepresentation, breach of contract, personal injury, negligence, or
products liability) is limited to charges Cisco owes to Rhythms, any actual
damages Cisco causes to Rhythms business or property, and any damages
collected from Rhythms by a third party arising out of Cisco's or Cisco's
teleworker's use of Rhythms products or services. Neither Cisco nor Rhythms
shall be entitled under this Agreement to recover (a) punitive damages; (b)
treble, consequential, indirect or special damages (including lost profits,
or (c) attorney's fees. Rhythms and Cisco agree not to make, and to waive to
the fullest extent allowed by law, any claim for damages other than direct,
compensatory damages as limited above. Rhythms and Cisco also agree not to
make, and to waive to the fullest extent allowed by law, any claims for
equitable relief, other than to protect any patents, copyrights, trademarks,
or other trade secrets, or Proprietary Information, or to prevent abusive,
fraudulent or illegal use of Rhythms' products or service. Cisco agrees to
indemnify Rhythms for any claims by third parties against Rhythms arising out
of the use of Rhythms' products or services by Cisco or any Cisco teleworker.
Rhythms shall not be liable to Cisco for interrupted service or problems
caused by or contributed to (i) by Cisco; (ii) by any third party; (iii) by,
atmospheric conditions or other things Rhythms does not control; or (iv) by
any act of God or natural disaster. Rhythms shall not be liable for any
claim by or against Cisco arising out of or related to (i) alteration, theft
or destruction of Cisco's computer programs, information, data files,
procedures or other property, (ii) any losses or damages Cisco may suffer in
connection with the use or inability to use Rhythms products or services, or
(iii) any data, materials or other information transmitted or received by or
to Cisco or Cisco's intended recipient that are lost or improperly
intercepted via the Internet.
5. BILLING AND PAYMENT. Rhythms shall prepare and deliver to Cisco
monthly invoices which shall include applicable monthly connectivity charges and
Cisco's usage charges (if any) for the previous period (as well as any
applicable taxes, surcharges, assessments and fees and charges charged by any
federal, state, or local government, agency or authority). Cisco shall remit
full payment to Rhythms for each such invoice within (***) after Cisco's receipt
of such invoice. If, however, Cisco believes in good faith that any such
invoice is incorrect, Cisco shall (a) timely remit payment of all undisputed
portions of any such invoice, and (b) concurrently object in writing to the
disputed portion or portions of the invoice and set forth with particularity
each basis upon which Cisco believes the invoice to be inaccurate. If payment
of any invoice by Cisco occurs after the stated payment date, Cisco shall pay a
further amount to Rhythms equal to (***) per month ( (***) annually) on
balances that remain unpaid (or, if such rate exceeds the maximum interest rate
then allowed under applicable law, then such monthly interest rate shall be the
maximum interest rate then allowed under applicable law). If the parties are
unable to resolve any such disputed invoice within (***) after the date
payment of the invoice was initially due to Rhythms, such disputed amount shall
be submitted to binding arbitration as provided in Section 10.9 of this
Agreement. Cisco's payment of any invoice shall not affect Cisco's rights to
receive any adjustment to the ESS Base Prices that may be due to Cisco pursuant
to Section 1.2 hereof or under the provisions of Article 7 hereof.
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Invoices shall be sent to the following address:
Cisco Systems, Inc.
IS Billing Department
X.X. Xxx 000000
Xxx Xxxx, XX 00000-0000
6. CONFIDENTIAL INFORMATION.
6.1 "PROPRIETARY INFORMATION" DEFINED. As used herein, the term
"Proprietary Information" shall mean information that was or will be developed,
created or discovered by or on behalf of a specific person, or which becomes or
will become known by, or was/is conveyed by a specified person to another person
with an expectation of nondisclosure. "Proprietary Information" includes, but
is not limited to, trade secrets, computer programs, ideas, techniques,
inventions (whether patentable or not), business and product development plans,
customers and other information concerning a specified person's actual or
anticipated business, research or development, and/or personnel information, or
which is received in confidence by or for a specified reason from any other
person.
6.2 NON DISCLOSURE. Each party hereto recognizes and acknowledges that
the other party hereto possesses Proprietary Information which is important to
its business and that this Agreement creates a relationship of trust and
confidence between Rhythms and Cisco with regard to Proprietary Information. At
all times, both during the term of this Agreement and after its termination,
each party hereto (including its personnel and/or subcontractors) shall (a) keep
in confidence and trust and not use or disclose any Proprietary Information of
the other party without the prior written consent of the party who is the
rightful owner of such Proprietary Information, and (b) take reasonable
protective measures to ensure such non disclosure (which measures shall be at
least the same as measures it normally takes to protect it's own Proprietary
Information); PROVIDED, HOWEVER, that such Proprietary Information may be used
by such party in the ordinary course of performing the services and complying
with its obligations under this Agreement. Each party shall require its
personnel and/or its subcontractor(s) to execute a Non-Disclosure Agreement
containing the same requirements and conditions as set forth in this Section
6.2.
6.3 EXCEPTIONS TO NON-DISCLOSURE. Notwithstanding the provisions of
Section 6.2 hereof, neither Rhythms nor Cisco shall be limited in its use or
disclosure of any Proprietary Information that Rhythms or Cisco can demonstrate:
(a) is or has become readily publicly available without restriction through no
fault of Rhythms (or its employees or agents) or Cisco (or its employees or
agents), respectively; (b) is received without restriction from a third party
lawfully in possession of such Information and such third party was under no
obligation or duty not to disclose such Information; (c) was rightfully in
possession of Rhythms or Cisco (as the case may be) without restriction prior to
its disclosure by Cisco or Rhythms, respectively; (d) was independently
developed by employees or consultants of Rhythms or Cisco (as the case may be)
without access to Proprietary Information; or (e) is required to be disclosed by
applicable law or in connection with any legal, administrative, judicial or
governmental proceeding, hearing or process (in which event, the disclosing
party shall promptly notify the other of such proposed disclosure).
Rhythms and Cisco represents and warrants to the other party hereto that
(a) performance of the terms of this Agreement will not breach any agreement to
keep in confidence Proprietary
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Information acquired by Rhythms or Cisco, respectively, in confidence or in
trust prior to the execution of this Agreement, and (b) Rhythms and Cisco,
respectively, has not entered into (and Rhythms and Cisco, respectively, agrees
not to enter into) any agreement or commitment, either written or oral, that
conflicts or might conflict with its confidentiality obligations under this
Agreement.
6.4 EQUITABLE RELIEF. The parties each acknowledge and agree that it
would be extremely difficult to measure the amount of damages arising from a
breach or threatened breach of any covenant contained in this Article 6, and
that monetary damages would be an inadequate remedy for the irrevocable harm
that would likely result from any such breach or threatened breach.
Accordingly, in such an event, the non-breaching party shall be entitled to
temporary and permanent injunctive relief (including specific performance, an
injunction and/or a temporary restraining order) in addition to other rights and
remedies (including, without damages, monetary damages provided by law).
7. FAVORED CUSTOMER PRICING. Rhythms represents and warrants to Cisco
that throughout the term of this Agreement, the (***) for services
(***) services under
(***) . In the event that, while this
Agreement is in effect, Rhythms (***)
(***) then Cisco may
(***) . If Cisco believes in good faith that Rhythms may be (***) the
terms of this Article 7, Cisco may, (***)
(***) upon (***) advanced written notice to Rhythms and
subject to the provisions of Article 6 hereof, (***) and (***) . In the
event such (***) has
occurred, Rhythms (***) and the (***) shall be used (***) shall
be calculated as of the date beginning when (***) is determined to have
first occurred, (***) will be applied in (***). Each of the parties hereto
agrees that any periodic or temporary (***) (***)
(***) shall be deemed to be excluded from the operation of this Article 7.
8. INSURANCE. During the term of this Agreement, Rhythms at its sole
cost shall carry insurance with an "A" rated company, including but not limited
to, Comprehensive General Liability, Workers Compensation Insurance and
Automobile Liability Insurance. Rhythms will provide Cisco with a Certificate
of insurance stating that the foregoing policies are in full force and effect
within thirty (30) days after the effective date of this Agreement.
9. TERM; TERMINATION.
9.1 TERM. This Agreement shall be for a one (1) year period, with an
option to renew the second year and third year. Cisco shall provide a minimum
(30) thirty day notice of its intent to exercise this option. This contract
will continue on a month-to-month
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basis, pursuant to the terms and conditions herein, until such time that notice
is received with the intent to extend or terminate this agreement.
9.2 TERMINATION.
(a) BY CISCO. Subsequent to (***) of this
agreement, Cisco shall have the right to terminate this agreement (***)
to Rhythms. Any termination cost shall be in accordance with this article 9.2.
If Rhythms shall fail to meet the ESS Monthly Activation Rate for any full
calendar month, Cisco shall be entitled to issue a written notice (the "Default
Notice") to Rhythms reporting such non-performance that occurred during the
calendar month immediately prior to the issuance of the Default Notice. Upon
receipt of the Default Notice, if Rhythms shall thereafter fail to satisfy the
ESS Monthly Activation Rate in the next subsequent full calendar month, Cisco
shall have the right to terminate this Agreement upon thirty (30) days notice to
Rhythms. In the event that an installed ESS teleworker terminates from ESS in
the first twelve months of receiving service, Rhythms will be reimbursed (***)
for that teleworker. Not withstanding the foregoing; (a) Rhythms shall be not
deemed to have failed to meet the activation rate for any month if such failure
was as a result of Cisco's lack of demand for ESS activation's during such
month, (b) Rhythms shall be not deemed to have failed to meet the activation
rate for any month if such failure was as a result of Cisco's providing
teleworkers outside the deployment schedule, timeline for Central Office
deployment and project plan.
(b) BY RHYTHMS. Rhythms shall have the right to terminate
this Agreement, upon (***) notice to Cisco, if Cisco shall have failed
to promptly satisfy its obligations under this Agreement.
(c) BY EITHER PARTY. Either party may terminate this
Agreement upon (***) written notice to the other in the event that
the other party becomes bankrupt or insolvent, or makes an assignment for
benefit of creditors, if such proceedings are not dismissed within (***)
after commencement.
(d) TERMINATION DAMAGES. In addition to the other remedies
provided herein, each party shall be responsible for all damages, including
attorneys' fees and costs, caused by reason of such defaults by the
defaulting party.
9.3 RIGHT UPON TERMINATION. Upon the expiration or earlier termination
of this Agreement, each party shall return to the other within thirty (30) days
following such expiration or termination all papers, materials, and properties
of the other, including all Proprietary Information.
9.4 NO DAMAGE FOR TERMINATION. Neither party shall have the right to
recover damages or indemnification of any nature (whether by way of lost
profits, expenditures for promotion, payment for goodwill or payments otherwise
made in connection with the business
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contemplated by this Agreement) solely as a result of the expiration or
permitted or lawful termination of this Agreement.
9.5 SURVIVAL. The termination or expiration of this Agreement shall
not affect the provisions of Articles 3, 4, 6, 9 and 10 of this Agreement, each
of which shall survive any such termination or expiration and continue in full
force and effect thereafter.
10. MISCELLANEOUS.
10.1 SUCCESSORS AND ASSIGNS. This Agreement shall not be assigned by
Rhythms or Cisco without the prior written approval of Cisco or Rhythms,
respectively, which consent shall not be unreasonably withheld; PROVIDED,
however, that either party may assign this Agreement to any successor to at
least a majority of its respective business or assets. Except as otherwise
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
permitted successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
10.2 BUSINESS UPTURN, DOWNTURN, AND TECHNOLOGY CHANGE. If, due to a
business upturn, corporate growth or acquisition by Cisco of a new affiliated
company that significantly affects the provisioning of the Service to Cisco
and/or the overall needs of Cisco for the Service, Cisco will be able to incur
sufficient charges to substantially reduce Rhythms's or any Carrier's costs of
providing Service to Cisco, Rhythms and Cisco will cooperate in determining any
appropriate modifications to this Agreement and applicable Carrier agreements.
Such mutually agreeable modifications may include, without limitation, changes
to the minimum requirements, the Initial Term, applicable rates and charges,
price plan tiers, and or/other provisions.
If a business downturn, corporate downsizing or divestiture of Cisco or an
affiliated company significantly affects the provisioning of the Service to
Cisco and/or the overall needs of Cisco for the Service such that Cisco will be
unable, notwithstanding its reasonable efforts, to satisfy one or more
applicable minimum commitments, Rhythms, and Cisco will jointly determine
appropriate modifications to such commitments and other provisions of this
Agreement so that Cisco is able to satisfy the affected commitments. Such
modifications may include, without limitation, changes to the affected
commitments, the initial term, applicable rates and charges, and/or other
provisions. If the parties are unable to agree upon appropriate modifications
to achieve the goals of this Section, the matter will be resolved pursuant to
Section 10.9 (Arbitration).
If Cisco is unable, notwithstanding all reasonable efforts, to meet one or
more of the minimum commitments as a result of significant changes in Cisco's
use of telecommunications technology, Rhythms, any affected Carrier, and Cisco
will jointly determine appropriate modifications to the affected commitments and
other provisions of this Agreement so that Cisco is able to satisfy the affected
commitments. Such mutually agreeable modifications may include, without
limitation, changes to the affected commitments, the initial term, applicable
rates and charges, and/or other provisions. If the parties are unable to agree
upon appropriate modifications to achieve the goals of this Section, the matter
will be resolved pursuant to Section 10.9 (Arbitration).
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10.3 TECHNOLOGY OPTIMIZATION. As reasonably requested by Cisco, but no
more than semi annually during the Initial Term and all extensions thereof,
Rhythms shall, at (***) (***) review the mix and
configuration of the Service based on Cisco's expected needs during the
succeeding twelve (12) months and consider Cisco's need for additional services,
service upgrades and all changes thereto so as to optimize the efficiency and
cost-effectiveness of Cisco's use of the Service. Based on each such review,
Rhythms shall make written recommendations to Cisco that Rhythms believes will
improve the efficiency and cost-effectiveness of the Service, including bringing
to Cisco's attention any existing or planned promotional offerings of Rhythms or
other Carriers, service upgrades, or additional services that are applicable to
Cisco's use of the Service and that Rhythms believes may be of value to Cisco.
Rhythms shall also offer advice concerning the Service, and its configuration
where Rhythms believes that they do not appear to be the most technically or
economically appropriate for addressing a known business communications need.
10.4 NEW TECHNOLOGIES
10.4.1 Rhythms acknowledges Cisco's substantial interest in
state-of-the-art technologies that offer improved performance and more efficient
and cost-effective ways to meet Cisco's communications and related requirements.
Rhythms desires to offer to Cisco such advanced technologies, whether in the
form of Service or equipment upgrades or new Services (collectively, "New
Technologies") and to keep Cisco apprised of improvements to existing
technologies and of the expected and actual availability and implementation of
New Technologies by Rhythms and other Carriers.
10.4.2 Rhythms shall offer Cisco opportunities to participate in
Beta test programs for New Technologies and services and, where mutually
agreeable, shall reasonably cooperate in the testing and deployment of new or
enhanced functions, technologies or applications, including those conceived or
developed by Cisco and/or third parties working with Cisco.
10.4.3 Rhythms shall inform Cisco of Rhythms's and any Carrier's
plans for, or the existence of, any New Technologies offered by Rhythms (or by a
third party but available through Rhythms) that Rhythms believes Cisco might
wish to consider procuring. Upon Cisco's request, Rhythms shall provide (when
available ) the price, performance specifications, installation intervals,
and/or effects of any Rhythms New Technologies on Services then being purchased
by Cisco under this Agreement.
10.4.4 Upon Rhythms's and Cisco's agreement that a potential New
Technology will be provided to Cisco or to certain End Users under this
Agreement, either in addition to, or in place of, existing Services or
technologies, such New Technology shall be considered part of the Service for
all purposes under this Agreement.
10.4.5 Where (***) requests a (***) that
(***) is either (***) to provide to (***), Cisco may, at its sole option
and upon reasonable written notice to Rhythms, (***) some or all of
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10
(***) that is (***) to provide the (***). In such event, Cisco may
(***) in whole or in part (***) or other (***) except for (***) provided
prior to (***). Cisco shall also receive (***) of all (***)
attributable to the (***) that are (***). Rhythms and Cisco shall also
mutually agree to (***) all minimum commitments and discount tiers
(***) . If the parties are unable to reach mutual agreement within
thirty (30) days of Cisco's (***) the matter will be resolved
through arbitration under Section 10.9 of this Agreement.
10.4.6 Where (***) requests a (***) that (***) is (***) to
provide to (***) . Cisco may, at its sole option and upon reasonable written
notice to Rhythms, propose to (***) some or all of its (***) Rhythms shall
(***) for such (***). Upon (***) to (***) Cisco's and the relevant End
User's obligations with respect to Services and technologies
(***) without any (***). Cisco shall also receive (***) attributed
to (***) by the (***).
10.4.7 Before agreeing to purchase any New Technology from Rhythms,
the parties shall negotiate the terms to govern provision of the New Technology
according to the following procedures:
(a) Rhythms and Cisco shall negotiate in good faith to
develop mutually agreeable rates, specifications, and other terms and
conditions for the New Technology. If the parties are (***) for the
(***) within (***) of the commencement of such negotiations
(***) needs so require), (***) (through
(***) process or otherwise, (***) to provide the New Technology.
(b) After (***) from (***) to provide a
(***) shall have (***) for such service (***) respects
the performance specifications risk parameters, and other terms and
conditions (***) and that were (***) At Rhythms's
request after Cisco determines that Rhythms (***) the performance
specifications, risk parameters or other terms and conditions
(***) an officer of Cisco shall certify in writing
to Rhythms that the (***) Cisco shall not be required to reveal
the confidential or proprietary information (***) (***) this
Subsection, but shall apprise Rhythms (***) e.g., by indicating in
(***) the degree to which (***) from the (***) PROVIDED,
that if Rhythms agrees to (***) then Cisco may not subsequently claim
that it (***) Rhythms shall have a (***) in connection with each
New Technology to (***) (***) and (when applicable)
(***) in all material respects other aspects of (***)
Rhythms shall not have (***)
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
11
as provided in this Subsection (***) (i) demonstrates (***)
and the ability (***) during the negotiations
preceding (***) and (ii) submitted a reasonably (***) in response
to (***).
(c) If Rhythms is not (***)
pursuant to Subsection (a) or (b), Cisco may, at its sole option, (***)
(***) . If Cisco purchases the New Technology (***) shall be (***)
to the degree that the (***) .
10.4.8 Rhythms represents that all (***) under this
Agreement have (***) by this Section.
10.5 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California without
regard to the choice of law principles thereunder.
10.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.7 HEADINGS. The titles, subtitles and other headings used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
10.8 NOTICES. Unless otherwise provided, any notice, request, demand,
instruction, document or other communication required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
its receipt addressed to the party to be notified at the address or number
indicated for such party below, or at such other address or number as such party
may designate by advanced written notification to the other party delivered as
provided in this Section 10.5. All notices, requests, demands, instructions,
documents and other communications shall be deemed duly given upon the earliest
of (i) hand delivery; (ii) the first business day after sending by reputable
overnight delivery service for next-day delivery; (iii) the third business day
after sending by first class United States mail, postage prepaid; (iv) the time
of successful facsimile or e-mail transmission as evidenced by a confirmation of
successful transmission (or in the event that the time of receipt of the fax or
e-mail in the city where the fax or e-mail is received is not during regular
business hours on a business day, then at the customary hour for the opening of
business on the next business day); or (v) the date actually received by the
other party. The current addresses and numbers of the parties hereto are as
follows:
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
12
Rhythms NetConnections Inc.
0000 X. Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx
Tel. No.: 000-000-0000
Fax. No.: 000-000-0000
E-Mail: xxxxxx@xxxxxxx.xxx
Attention: Mr. Xxxxxxxxx Xxxxx
Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Tel. No.: 000-000-0000
Fax. No: 000-000-0000
E-Mail: xxxxxxxx@xxxxx.xxx
Attention: Xxxxxxx X. Xxxxxxxxx
10.7 EXPENSES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
10.8 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended,
either in whole or in part, only with the written consent of each of the parties
hereto. Notwithstanding any course of conduct or dealing by the parties during
the course of this Agreement, no waiver (either generally or in a particular
instance and either retroactively or prospectively) shall be deemed to have been
made by either party hereto unless expressed in writing and signed by the
waiving party. The failure of either party to insist in any one or more
instances upon strict performance of any of the terms or provisions of this
Agreement, or to exercise any election herein contained, shall not be construed
as a waiver of any prior or subsequent rights or remedies hereunder or at law.
All remedies afforded in this Agreement shall be taken and construed as in
addition to every other remedy available at law or in equity.
10.9 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be appropriately
limited in its scope and application to make it enforceable or, if any such
limitations is not possible, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
10.10 DISPUTE RESOLUTION. All claims arising out of this Agreement shall
be resolved in accordance with the then prevailing rules of the American
Arbitration Association. Any arbitration hereunder shall be conducted in the
City of San Xxxx, State of California, and the arbitrator's decision and award
shall be final and binding and may be entered and enforced in any court of
competent jurisdiction. Any arbitration under this Agreement shall be heard
before a panel of three arbitrators, one selected by each party and the third
(who shall preside) selected by the first two. The arbitrators shall adhere to
the terms of this Agreement and applicable legal and regulatory requirements and
limitations in evaluating the merits of the dispute and determining the
appropriate remedy (which shall not include injunctive relief). The arbitrators
shall deliver a written opinion setting forth findings of fact and the rationale
for their decision. Rhythms and Cisco hereby submit to personal jurisdiction in
San Jose, California solely for the purposes of conducting any arbitration under
this Agreement and hereby waive all objections to the venue described herein
solely for purposes of any arbitration under this Agreement.
13
10.11 RELATIONSHIP OF PARTIES. In fulfilling its obligations under this
Agreement, each party shall be acting as an independent contractor. This
Agreement does not make either party the employee, agent, or legal
representative of the other. Nothing stated in this Agreement shall be
construed as constituting Cisco and Rhythms as partners or joint venture, or
creating any other type of relationship such as principal and agent, master and
servant, etc.
10.12 PUBLICITY. From and after the execution of this Agreement, Rhythms
and Cisco shall be entitled to engage in the activities and utilize the
informational programs described in Exhibit D hereto. Except as contemplated
herein or to the extent its legal, investment or financial advisors recommend
disclosure to comply with legal or financial obligations of any such party or to
fully and accurately inform its existing shareholders or note holders and/or any
prospective investors, neither party shall disclose the existence or the terms
and conditions of this Agreement to third parties (other than subcontractors
and/or consultants) without the prior written consent of the other party unless
disclosure is compelled by operation of law or by an instrumentality of the
government (including, but not limited to, any court, tribunal or administrative
agency) or as necessary to enforce its rights hereunder.
10.13 ENTIRE AGREEMENT. This Agreement (including the Exhibits hereto,
each of which are incorporated herein and made a part of this Agreement by this
reference) constitutes the full and entire understanding and agreement between
the parties with regard to the subject matter hereof and thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
RHYTHMS NETCONNECTIONS INC.
By: /s/Xxxxxxxxx X. Xxxxx 12/9/98
---------------------------------------
Xxxxxxxxx X. Xxxxx Date
Vice President
National Sales
CISCO SYSTEMS, INC.
By: /s/Xxxxxxx X. Xxxxxxxxx 12/3/98
---------------------------------------
Xxxxxxx X. Xxxxxxxxx Date
Commodity Manager
Corporate Supply Management
14
Enterprise Service Solution
Custom Pricing
PART 1: Monthly Recurring Rates for ACCESS CONNECTION, (***)
YEAR 1 Committed
Client Level
FROM TO (***)
(***)
YEAR 2 Committed
Client Level
FROM TO (***)
(***)
YEAR 3 Committed
Client Level
FROM TO (***)
(***)
(***) Installation per ACCESS CONNECTION: (***)
Part 2: DS3 EGRESS PRICING
Monthly Reacurring Rate per egress connection, (***) (***)
Part 3: HUBLETT
(***)
(***)
(***)
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
U S LAN/CA LAN PRICING EXHIBIT A1
PRICING
Each site with the capability of sending traffic over the WAN will be charged
for the service based on the speed of that site's access into the Rhythms
network. The WAN charges are in addition to the amount the customer will pay
for their Enterprise Teleworker and LAN Interconnect solutions. The pricing for
each WAN connected capable site is as follows:
-----------------------------------------------------------
NETWORK CONNECTION WAN PRICE
-----------------------------------------------------------
384k DSL (***)
-----------------------------------------------------------
512k DSL (***)
-----------------------------------------------------------
768k DSL (***)
-----------------------------------------------------------
IM DSL (***)
-----------------------------------------------------------
EXAMPLE 1 - ENTERPRISE TELEWORKER SOLUTION WITH WAN CAPABILITY
[DIAGRAM]
-------------------------------------------------------------------------------------------------------------
ENTERPRISE TELEWORKER WAN MONTHLY TOTAL MONTHLY
LOCATION NETWORK CONNECTION MONTHLY PRICE PRICE PRICE
-------------------------------------------------------------------------------------------------------------
A 384k DSL (***) (***) (***)
-------------------------------------------------------------------------------------------------------------
B 512k DSL (***) (***) (***)
-------------------------------------------------------------------------------------------------------------
C 384k DSL (***) (***) (***)
-------------------------------------------------------------------------------------------------------------
D 1.544M DS1 (Egress) (***) (***) (***)
-------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------
total (***) (***) (***)
---------------------------------------------------------------------------------------------
In this example, a customer is using Rhythms Enterprise Teleworker solution to
connect remote workers in San Diego (locations A and B) and San Francisco
(location C) to the San Francisco headquarters (location D). The remote
locations communicate only with the headquarters site; traffic does not flow
directly from remote location to remote location (e.g., location B to location
C). For this customer, only locations A, B, and D send traffic over the WAN and
will be charged the additional WAN pricing as shown in the table above.
Location C does not incur additional WAN charges because its traffic is solely
local in nature.
PRICE COMPARISON VS. FRAME RELAY
THE PRICING FOR OUR SAN DIEGO - SAN XXXXXXXXX XXX CAPABILITY IS A GREAT DEAL!
RHYTHMS' PRICE FOR A 384K CONNECTION TO THE WAN IS ONLY (***) PER MONTH - (***)
FOR EITHER LAN INTERCONNECT OR ENTERPRISE TELEWORKER AND (***) FOR WAN ACCESS -
INCLUDING CPE, NETWORK ACCESS, AND MANAGED SERVICES. TO ACCOMPLISH THE SAME
CAPABILITY USING FRAME RELAY WOULD COST A CUSTOMER APPROXIMATELY (***) PER
MONTH.
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
August 3, 1998
Page 1 of 1 Proprietary & Confidential [LOGO]
Rhythms NetConnections, Inc.
DS1 PRICING EXHIBIT A2
PRICING
Cisco remote access group, may elect due to distance or Central Office location,
to receive DSI as an alternative. The table below provides pricing based on the
utilization of DSI in the telecommuter population.
-------------------------------------------------------------------------
DS1 @ 384K PRICE DSI@ 384K PRICE
PERCENTAGE (DSL/DS1) (MONTHLY) (INSTALL)
-------------------------------------------------------------------------
90/10 - 10% DS1 (***) (***)
-------------------------------------------------------------------------
75/25 - 25% DS1 (***) (***)
-------------------------------------------------------------------------
Greater than 25% DS1 (***) (***)
-------------------------------------------------------------------------
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
August 3, 1998
Page 1 of 1 Proprietary & Confidential [LOGO]
Rhythms NetConnections, Inc.
Exhibit B
--------------------------------------------------------------------------------
RHYTHMS Service Level Agreements
--------------------------------------------------------------------------------
NETWORK AVAILABILITY
RHYTHMS is committed to providing a reliable network for its customers. With
that goal, RHYTHMS's target for Network Availability is (***) per month.
RHYTHMS's Regional Network Availability is defined as:
1 - Total minutes of connection downtime in given month
---------------------------------------------------
# of minutes in month
Regional Network Availability is measured on every interface to RHYTHMS's
Regional Network (see Figure 1).
[DIAGRAM]
FIGURE 1: BOUNDARIES FOR AVAILABILITY
The availability target does not account for non-redundant Customer
Connections, natural disasters, scheduled outages on RHYTHMS's Network,
scheduled or unscheduled outages on the customer network, or end user
equipment outages. Network downtime is calculated commencing with the date
and time on which the customer opens the trouble ticket and ending upon
confirmation from RHYTHMS that the network is restored.
If RHYTHMS does not meet *** Regional Network Availability per the above
definition, RHYTHMS will credit the customer for each affected Client or
Customer Connection according to the following table:
------------------------- ---------------------------------
if availability is in service credit per affected
the range Client/Customer
Connection per month is
----------------------------------------------------------
(***) (***)
----------------------------------------------------------
(***) (***)
----------------------------------------------------------
(***) (***)
----------------------------------------------------------
RHYTHMS will supply *** for Regional Network Availability.
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
Confidential Page 1
Exhibit B
NETWORK DELAY
RHYTHMS is committed to providing a fast network for its customers. RHYTHMS
supports (***) for the time to transmit a (***) message from the DSL modem
interface up to, but not including, the customer egress and back. This
measurement does not include Client Connection serialization time (see
Figure 2).
[DIAGRAM]
FIGURE 2: BOUNDARIES FOR DELAY
RHYTHMS defines round trip message delay as the sum of the following:
- time from when the last bit of the outgoing message arrives at the DSL
modem until when the last bit of the message arrives at the customer egress
- time from when the last bit of the incoming message leaves the customer
egress until when the last bit of the message leaves the DSL modem
If RHYTHMS does not meet the delay objective, RHYTHMS will credit the customer
according to the following table:
---------------------------------------------------------
if delay objective is service credit per affected
not met during Client/Customer Connection
per month is
---------------------------------------------------------
(***) (***)
---------------------------------------------------------
(***) (***)
---------------------------------------------------------
(***) (***)
---------------------------------------------------------
(***) (***)
---------------------------------------------------------
(***) (***)
---------------------------------------------------------
RHYTHMS will provide (****) for Regional Network Delay.
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
Confidential Page 2
Exhibit B
THROUGHPUT
RHYTHMS is committed to minimizing network congestion for its customers.
RHYTHMS's target for the customer to achieve the speed of their contracted
access through the RHYTHMS's Regional Network is (***) (see Figure 3).
Throughput is defined as the ability of the network to transmit traffic at the
contracted access speed.
[DIAGRAM]
FIGURE 3: BOUNDARIES FOR THROUGHPUT
If RHYTHMS does not meet the throughput target, RHYTHMS will credit the customer
according to the following table:
--------------------------------------------------------------
if delivery objective is not service credit per affected
met during Client/Customer
Connection per month is
--------------------------------------------------------------
(***) (***)
--------------------------------------------------------------
(***) (***)
--------------------------------------------------------------
(***) (***)
--------------------------------------------------------------
(***) (***)
--------------------------------------------------------------
(***) (***)
--------------------------------------------------------------
RHYTHMS will supply (***) for Throughput. All reporting will be reviewed in
a mutually agreed upon fashion during the term of this Agreement. Cisco will be
generating a (***) on Rhythms's performance based on statistics on network
performance which shall be provided by Rhythms.
MEAN RESPONSE TIME
RHYTHMS commits itself to providing the best customer care experience in the
telecommunications industry. To that end, RHYTHMS promises to answer the phone
(***) and a customer is on hold (***) In additions,
Rhythms will respond to customer requests for repair and other technical
problems (***)
(***) RHYTHMS promises to update the customer on expected repair time or
RHYTHMS dispatch time to resolve the problem.
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
Confidential Page 3
Exhibit B
MEAN TIME TO RESTORE SERVICE
RHYTHMS commits itself to restoring service within certain periods of time based
on severity of problem, and whether single or multiple clients are affected.
RHYTHMS guarantees restoration of services within the following time frames:
CUSTOMER CONNECTIONS:
- mean time to repair (***) (excluding lack of access issues) -
(***) of monthly service charge credited if not repaired (***)
- mean time to repair (***) (excluding lack of access issues) -
(***) of monthly service charge credited if not repaired (***)
RHYTHMS will manage the local loop vendor (or Incumbent Local Exchange Carrier)
on behalf of the customer for any repairs or problems related to
RHYTHMS-provided Customer Connections.
ESCALATION PROCEDURES:
RHYTHMS will escalate problems involving customers and clients based on the
escalation table in Appendix A (as developed by Rhythms and mutually agreed upon
by Rhythms and Cisco). The matrix is used as a GUIDELINE in escalating network
problems within RHYTHMS. If at any time the customer feels that results and/or
progress in resolving a network trouble is unsatisfactory, escalation using the
numbers on the contact list is encouraged. Areas to be covered are as follows:
1.) (***)
2.) (***)
3.) (***)
PROVISIONING AND INSTALLATION INTERVAL
Rhythms will target that the customer is in service between (***) of the
time, of placing the order with Rhythms (excluding customer delays). A (***)
will be given on the installation if it is not completed within this
interval.
CLIENT INSTALLATION PROMISE
Monday - Friday; appointments begin at 8:00am and the last appointment will end
at 5:00pm local time. A RHYTHMS Field Service Technician (FST) will arrive
(***) of the installation time set with the customer. If RHYTHMS technician
fails to arrive within (***) Clients installation (***) The Client
should plan for the installation to take (***) to complete after the arrival
of the FST. The Customer or Client must confirm the installation date and time
by 12:00 noon the day before the installation is scheduled or the installation
will be rescheduled. The installation is completed correctly the first time as
based on a post installation performance check completed by the installation
technician. If the installation is not completed correctly a (***) credit
on the installation shall be credited.
INSIDE WIRE WARRANTY
All RHYTHMS-installed or repaired premise wiring is warranted to be free from
defects for a period of (***) from the date of work completion. RHYTHMS
may outsource inside wire installations.
SERVICE DETERMINATION, APPROVAL, AND ORDER ENTRY PROCESS
Appendix A contains the mutually agreed upon flowchart for the service
determination, approval, and order entry process.
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
Confidential Page 4
Exhibit B
SERVICE CHANGES (UPGRADES, MOVES, DISCONNECTS)
Appendix A contains the mutually agreed upon flowchart for service changes
including upgrades, moves, and disconnects.
GENERAL TERMS
All Network Performance Parameters are based on the assumption that the customer
network is appropriately engineered (i.e., Customer Connections are within
reasonable over-subscription limits). If Rhythms determines that the customer
network is inappropriately configured, no credits will be given.
No credits will be provided for Availability, Throughput, or Network Latency
prior to successful completion of installation. The customer will automatically
be credited. Credits provided by Rhythms hereunder shall not be cumulative for
any single failure or greater than (***) for the monthly charge within any given
month and (***) for the installation charge.
No service credits will be granted to any customer for any service interruption
or other transmission problems (including, without limitation, any inability by
Rhythms to maintain (***) under its Network Availability, Network Delay,
and Throughput commitments contained in this Exhibit B) which are caused by or
contributed to (a) by Cisco, (b) by any third party (including the customer),
(c) by atmospheric or environmental conditions, (d) by any Act of God or natural
disaster, or (e) by any person who is not controlled by, or under common control
with, Rhythms. Rhythms will nevertheless use its reasonable efforts to seek a
prompt resumption of service and/or resolution of transmission problems in
circumstances where such efforts have a reasonable likelihood of achieving those
results promptly.
DEFINITION SECTION
[DIAGRAM]
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
Confidential Page 5
SERVICE LEVEL AGREEMENT
APPENDIX A
1) Service Determination Process Page #1
2) Approval and Service Installation Process Page #2
3) Employee Move Process Page #3
4) Disconnect/Change Process Page #4
5) Service Installation and Escalation Process Page #5
6) Rhythms/Cisco Systems Integration Page #6
7) Cisco/Rhythms File Transaction Process Page #7
8) Customer Acceptance Questionnaire Page #8
9) Introductory Package components Page #9
Rhythms NetConnections
System Engineering
Xxxxxxx Xxxxxx
CISCO SERVICE DETERMINATION PROCESS
(***)
(***)
(***)
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
CISCO APPROVAL AND SERVICE INSTALLATION PROCESS
APPROVAL PROCESS
(***)
(***)
(***)
INSTALLATION PROCESS
(***)
(***)
(***)
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
CISCO EMPLOYEE MOVE PROCESS
(***)
(***)
(***)
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
CISCO DISCONNECT/CHANGE
PROCESSES
CISCO DISCONNECT PROCESS (SCHEDULED)
(***)
(***)
(***)
CISCO DISCONNECT PROCESS (IMMEDIATE)
(***)
(***)
(***)
CISCO CHANGE PROCESS
(***)
(***)
(***)
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
CISCO SERVICE INSTALLATION ESCALATION PROCESS
--------------------------------------------------------------------------------
The following escalation levels will be used for Installation WORK ORDERS. This
will help ensure that orders are completed as outlined in the CISCO/Rhythms
service agreement. During the Installation process if a NEW ORDER is not
assigned and being worked (***) of submission then the following escalation
will occur.
--------------------------------------------------------------------------------
-------------------------------------- ---------------------------------
XXXXX 0
(***) (***)
-------------------------------------- ---------------------------------
-------------------------------------- ---------------------------------
XXXXX 0
(***) (***)
-------------------------------------- ---------------------------------
-------------------------------------- ---------------------------------
XXXXX 0
(***) (***)
-------------------------------------- ---------------------------------
-------------------------------------- ---------------------------------
XXXXX 0
(***) (***)
-------------------------------------- ---------------------------------
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
RHYTHMS/CISCO SYSTEM INTEGRATION
A) SERVICE DETERMINATION REQUEST D) ORDER ACKNOWLEDGEMENT
(CISCO > RHYTHMS)
(***) (***)
B) APPROVAL REQUEST (RHYTHMS >CISCO) E) ORDER COMPLETED NOTIFICATION
(RHYTHMS > CISCO)
(***) (***)
C) ORDER REQUEST (CISCO>RHYTHMS) MONTHLY BILLING
(***) (***)
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
CISCO\RHYTHMS
PROPOSED FILE TRANSACTION PROCESS
RHYTHMS CISCO
(***)
(***)
(***)
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
CUSTOMER ACCEPTANCE QUESTIONNAIRE
We would like to verify your satisfaction with our service. Could you please
take a few moments to complete the following questions and return this with our
Installer.
1. Were you able to access your corporate site from your PC? YES / NO
2. Are you satisfied with the performance of the Link? YES / NO
3. Was the entire installation process pleasing? YES / NO
4. Do you feel that you are in a position to begin using
this service immediately? YES / NO
5. How would you rate our overall performance? 1 2 3 4 5
(1 - Great, 5 - Poor)
6. Comments:
--------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
By signing this form, I accept service and agree that it was received to my
satisfaction.
--------------------------------------------- ------------------
NAME (Printed) Date
---------------------------------------------
NAME (Signature)
INTRODUCTORY PACKAGE CONTENTS
1. Welcome letter
2. Overview of Rhythms/Cisco Telework Program.
3. Desktop Configuration Guide
4. Troubleshooting Guide
5. Frequently Asked Questions
Enterprise Service Solution Exhibit C
Monthly Activation Rates for
Cisco Systems
ESS Monthly Activation Rates
month monthly cumulative planned
deployment* deployment at deployment
end of month
1998 Dec (***) (***) (***) (***)
-----------------------------------------------------------------------------------
1999 Jan (***) (***) (***) (***)
Feb (***) (***) (***) (***)
Mar (***) (***) (***) (***)
Apr (***) (***) (***) (***)
May (***) (***) (***) (***)
Jun (***) (***) (***) (***)
Jul (***) (***) (***) (***)
Aug (***) (***) (***) (***)
Sep (***) (***) (***) (***)
Oct (***) (***) (***) (***)
Nov (***) (***) (***) (***)
Dec (***) (***) (***) (***)
-----------------------------------------------------------------------------------
2000 Jan (***) (***) (***) (***)
Feb (***) (***) (***) (***)
Mar (***) (***) (***) (***)
Apr (***) (***) (***) (***)
May (***) (***) (***) (***)
Jun (***) (***) (***) (***)
-----------------------------------------------------------------------------------
* Adjustments to Monthly Activation Rates
If Rhythms shall be prevented from activating any Cisco teleworkers(s) due to
any act of God, war or other period of hostilities, labor disputes, unusual
delay in transportation, adverse weather conditions, fire, unfavorable
casualties, or other causes beyond Rhythms' reasonable control (a "Delaying
Event"), then (a) Monthly Activation Rates adversely affected by such Delaying
Events shall be reduced by the number of activation's prevented by such Delaying
Event. Not withstanding the foregoing, Rhythms shall be deemed to have failed to
meet the activation rate for any month if such failure was as a result of
Cisco's lack of demand for ESS activation's during such month.
(***) Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
11/30/98 RhythmsNetConnections, Inc. Confidential
Enterprise Service Solution Exhibit D
Publicity Activities for
Cisco Systems
PUBLICITY ACTIVITIES
1. Case Studies
2. Joint Appearances at Trade Shows/Symposia
3. Act as a Reference Account
4. Analyst Briefings
5. Sales Seminars/Presentations
6. Investor and Financial Filings
7. Interviews (as Needed)
8. Sales Proposals
9. Account Development
10. Promotion Collateral
11. Website features
SUBJECT TO FINAL APPROVAL BY CISCO
12/9/98
