1
EXHIBIT 10.17
CONFIDENTIAL TREATMENT REQUESTED
MASTER HIGH SPEED DATA SERVICES
MARKETING AGREEMENT
This MASTER HIGH SPEED DATA SERVICES MARKETING AGREEMENT (this
"Agreement") is entered into as of the 1st day of February 1999 ("Effective
Date"), by and between I(3)S, INC., a Texas corporation, with a place of
business at 0000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxxx 00000 ("I3S"); and Private Cable,
Inc., a Texas corporation with a place of business at 0000 Xxxxxx X, Xxxxxxxxx,
Xxxxx 00000, including all affiliates and subsidiaries which may become parties
to this Agreement from time to time (collectively "PCI").
RECITALS
WHEREAS, PCI provides, directly and through third party
private cable operators and others ("PCI Customers") satellite-based, video
entertainment programming to multiple dwelling unit communities ("MDUs") in
several metropolitan markets throughout the United States;
WHEREAS, I3S provides broadband Internet protocol network
services, including, without limitation, high speed data services, as more
specifically described in Exhibit D and E attached hereto and incorporated
herein by reference (the "Service"), to multiple system franchise cable
operators ("MSO's"), private cable operators ("PCO's"), and real estate
investment trusts ("REIT's"), nationwide; and
WHEREAS, PCI and I3S desire to provide the Service to MDUs,
current and future, served by PCI or a PCI customer pursuant to a right of entry
agreement ("I3S XXX") that gives PCI or a PCI Customer the right of access to
one or more MDU's (individually, an "I3S Property", and collectively, the "I3S
Properties") to provide the Service in accordance with the terms of this
Agreement.
NOW, THEREFORE, the parties hereto hereby covenant and agree
as follows:
ARTICLE 1
REPRESENTATIONS AND WARRANTIES
1.1 REPRESENTATIONS AND WARRANTIES OF PCI.
AUTHORITY. This Agreement has been duly authorized, executed
and delivered by PCI and constitutes a valid and legally binding Agreement of
PCI, and neither the execution and delivery of nor the performance of the
provisions of this Agreement shall conflict with or result in (a) a breach,
violation or default under the Certificate of Incorporation and Bylaws of PCI,
if applicable; or any material agreement binding on PCI that would affect its
obligations hereunder;
2
or (b) the breach or violation of any law, order, rule, ordinance, regulation,
judgement or decree of an governmental authority having jurisdiction.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by or on behalf of PCI shall survive the
execution and delivery of this Agreement, and any investigation at any time made
by or on behalf of I3S shall not diminish its rights to rely thereon.
1.2 REPRESENTATIONS AND WARRANTIES OF I3S.
AUTHORITY. This Agreement has been duly authorized, executed
and delivered by I3S and constitutes a valid and legally binding Agreement of
I3S, and neither the execution and delivery of nor the performance of the
provisions of this Agreement shall conflict with or result in (a) a breach,
violation or default under the Certificate of Incorporation and Bylaws of I3S,
if applicable; or any material agreement binding on I3S that would affect its
obligations hereunder; or (b) the breach of violation of any law, order, rule,
ordinance, regulation, judgement or decree of an governmental authority having
jurisdiction.
PERMITS, LICENSES, ETC. I3S possesses all material permits,
licenses, franchises rights, trademarks, trademark rights, trade names, trade
name rights and copyrights which are required to conduct the business of the
Service.
I3S LICENSES. I3S possesses all requisite licenses from third
parties necessary to provide the Service to PCI's MDUs and their residents.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by or on behalf of I3S shall survive the
execution and delivery of this Agreement, and any investigation at any time made
by or on behalf of PCI shall not diminish its rights to rely thereon.
ARTICLE 2
TERM
2.1 TERM. This Agreement shall have an initial term of seven (7)
years from the Effective Date; provided, however, that the initial term may be
automatically extended after the seventh anniversary of the Effective Date on a
month-to-month basis unless one party provides the other party with thirty (30)
days prior written notice of the notifying party's intent to terminate this
Agreement upon the expiration of such thirty (30) day notice period; and
further, provided, however, that the term of this Agreement shall be
automatically extended to always be coterminous with the term (including any
extensions thereof) of any and all I3S XXX'X for any and all I3S Properties.
3
ARTICLE 3
EXCLUSIVITY
3.1 EXCLUSIVITY. PCI and PCI Customers may not be precluded from
allowing parties providing U.S. Federal Communications Commission tariffed
telecommunications or municipal franchise cable television services to the I3S
Property to deliver high speed Internet access service to an I3S Property in the
event that said party possesses a specific federal or state statutory or
regulatory right to do so. PCI shall not agree to or accept commissions or other
forms of compensation or benefits for the marketing of the Service at the I3S
Properties, except as provided herein, and shall not provide on-premise
marketing support for such other parties' Internet access service. Further,
neither I3S, PCI, nor a PCI Customer shall provide, market or support, or cause
to be provided, marketed or supported, directly or indirectly, a competitive
service to HSDS to the I3S Properties during the term of this Agreement. Subject
to these limitations, I3S shall have the exclusive right to market, promote and
sell the Service at each I3S Property during the term of this Agreement.
ARTICLE 4
PCI'S OBLIGATIONS
4.1 OBTAINING I3S XXX'X. In consideration of the mutual agreements
of the parties contained herein, PCI covenants and agrees to use its best
efforts to obtain and maintain or cause to be obtained and maintained by a PCI
Customer an I3S XXX for each I3S Property. I3S shall have no obligation to
provide the Service at any location in the absence of an I3S XXX. The I3S XXX
shall provide that I3S shall, at its own expense, provide the Service to the
residents of the I3S Property and collect revenues directly from its subscribers
and further provide, at a minimum (unless waived by I3S in writing), that:
(i) there are three parties to the I3S XXX; (a) I3S, (b)
the owner or authorized agent of the owner of the I3S Property, e.g. the
property manager (the "Owner") and (c) the owner or authorized agent of the
owner, e.g. a PCO, of the cable facilities used to deliver the Service to the
residents of the I3S Property (the "Operator"); and
(ii) the Owner grants I3S access to the I3S Property to
provide the Service to the residents; and
(iii) the Operator grants I3S access to the equivalent of
at least two (2) video channels worth of bandwidth on the cable distribution
facilities (the "System") at the I3S Property to provide the Service to the
residents; and
(iv) the Operator shall, at its own expense, operate and
maintain the video head-end and the System to the specifications described in
Exhibit F (the "Specifications") sufficient to ensure that the Service is
properly delivered to the residents; and
(v) the Operator shall pay the cost for training its own
personnel to maintain the System up to the Specifications; and
4
(vi) the Operator shall maintain commercial general
liability insurance with minimum limits of $1,000,000 per occurrence for bodily
injury (or death) and property damage liability with limits of at least
$1,000,000 per occurrence [Personal Injury and $1,000,000 General Policy
Aggregate (applicable to Commercial General Liability Policies)] which names I3S
as an additional insured; and
(vii) the Owner and Operator shall use their respective
best efforts to assist I3S in securing access to all occupied and unoccupied
units as necessary to provide the Service so long as I3S shall not enter an
occupied unit without the resident's express approval and I3S shall not enter
any occupied unit unless resident or an adult representative of the resident is
present; and
(viii) the employees, agents, or contractors of I3S
shall have reasonable access, at no charge, to the I3S Property and facilities
of the Operator in connection with and to perform any and all work reasonably
necessary to provide the Service at the I3S Property including but not limited
to installation, inspection, maintenance, repair or removal of equipment, or to
facilitate the provision of the Service to I3S customers; and
(ix) each party's employees, contractors, or
agents will, while on the premises of any other party, comply with all
applicable law and regulations and any reasonable written rules or regulations
of the Owner applicable to all tradesmen or contractors on the premises; and
(x) revenue sharing or other payment to the
Owner for granting I3S access to the I3S Property shall be the responsibility of
the Operator. I3S shall have no obligation to pay any revenue shares,
commissions, or other consideration to the Owner in connection with the
provision of the Service; and
(xi) any and all maintenance or other problems with
respect to the Service will be reported directly to I3S to the point of
contact designated in writing by I3S (the "Contact"); and
(xii) the Owner and Operator will immediately inform the
Contact of any material or recurring maintenance problems brought to their
attention along with the name and address of the subscriber, if any, who made
the complaint; and
(xiii) the Operator will direct the residents to call the
Contact regarding any complaints or technical problems concerning the Service;
and
(xiv) the Owner will provide a secure air-conditioned
space, at no charge, to I3S for the storage of all equipment reasonably
necessary to provide the Service at the I3S Property; and
5
(xv) the Owner will provide electricity necessary to power
I3S equipment, not to exceed $250 per year; and
(xvi) I3S may record a memorandum of the I3S XXX provided
that I3S XXX is subordinate to any and all leases, mortgages, deeds or trusts
that encumber the I3S Property at any time and that further provided that I3S
shall provide such certificates or other statements as the Owner may request in
writing to acknowledge the subordination of the I3S XXX; and
(xvii) if the Operator breaches its obligations to provide
access to or proper maintenance of the System necessary to provide the Service,
I3S may, at its own expense, take possession of and maintenance responsibility
for the System and continue providing the Services; and
(xviii) the XXX will have a minimum term of seven (7) years;
and
(xix) I3S will make warranties and representations to the
Owner and Operator that are substantially the same as set forth in Sections 5.1,
10.1 and 10.2 below; and
(xx) the parties are excused from performance due to force
majeure, as defined below in Section 14.8.
A sample I3S XXX, approved by the parties, is attached as Exhibit A.
4.2 MDU SURVEY. PCI or the PCI Customer shall use their best
efforts to complete and submit the MDU Survey, annexed as Exhibit B, (or
otherwise provide substantially the same information described in the MDU
Survey) and deliver it to I3S for review and approval before I3S executes the
I3S XXX. I3S and PCI will use their respective best efforts to establish
criteria pursuant to which I3S will be obligated to provide the Service to PCI
or a PCI Customer based on the MDU Survey. Until that time, I3S will have sole
discretion to accept or reject any I3S XXX, provided that once any I3S XXX is
rejected, I3S may not thereafter enter into any contract to provide the Service
at the I3S Property covered by the rejected I3S XXX except through PCI.
4.3 MARKETING. PCI and I3S will consult and develop a joint
marketing strategy designed to promote HSDS hereunder.
ARTICLE 5
AFFIRMATIVE COVENANTS OF I3S
5.1 GENERAL OBLIGATIONS. In consideration of the mutual agreements
of the parties contained herein, I3S covenants and agrees to do and perform, or
cause to be done and performed, the following:
(i) I3S possesses and shall maintain for the
term of this Agreement any and all property, right, title or interest necessary
to lawfully provide the Service as contemplated
6
in this Agreement the Service, and all such property, right, title and interest
shall remain free and clear of any adverse claims, interests and liens.
(ii) I3S possesses and shall maintain in full
force and effect for the term of this Agreement, all material permits, licenses,
franchise rights, trademarks, trademark rights, trade names, trade name rights
and copyrights which are required to provide the Service.
(iii) With respect to performance hereunder, I3S
agrees to maintain, at all times during the term of this Agreement, as a
minimum, commercial general liability insurance with minimum limits of
$1,000,000 per occurrence for bodily injury (or death) and property damage
liability with limits of at least $1,000,000 per occurrence [Personal Injury and
$1,000,000 General Policy Aggregate (applicable to Commercial General Liability
Policies)] and any additional insurance and/or bonds required by law. Upon
request, I3S agrees to furnish certificates or other acceptable proof of the
foregoing insurance and name PCI as an additional insured and also name such
Owners and Operators as an additional insured who may request it. I3S warrants
that it meets or exceeds all insurance requirements stated herein and those that
are required by the laws in the State of Texas.
(iv) As more specifically described in Exhibits D
and E attached hereto and incorporated herein by reference, I3S shall assume and
pay all operating and capital costs and expenses associated with any and all:
Monthly recurring private Internet exchange points
Monthly recurring switch maintenance
Monthly recurring POP transport
Monthly recurring Dallas network operations center costs (including
installation costs)
Customer support IP technicians and engineers (NOC, Help Desk and
field personnel)
I3S-specific training
Insurance on I3S capital equipment
I3S-specific travel and entertainment
Switch site equipment (including installation costs)
Peering point routers
Private Internet exchange point hardware (including installation
costs)
I3S network infrastructure equipment
Transport facilities
Backbone transport facilities
Monthly recurring local loop costs
Monthly recurring property maintenance (Lce, Router, DSU/CSU)
Monthly recurring IP headend maintenance
CSR platform and services
Internet browser platform user license
MDU property IP equipment (Lce, Router, DSU/CSU)
IP master headend equipment
Non-recurring local loop transport costs
Customer billing and collections
7
ARTICLE 6
DESCRIPTION OF THE SERVICE
6.1 DESCRIPTION OF THE SERVICE. During the term of this Agreement,
I3S shall provide, or cause to be provided to the residents of I3S Properties,
the Service, more particularly described and set forth in Exhibits D and E
attached hereto and incorporated herein by reference.
ARTICLE 7
DEFINITION OF SERVICE LEVEL STANDARDS
7.1 DEFINITION OF SERVICE LEVEL STANDARDS. Subject to the
conditions, qualifications and limitations set forth herein, including, without
limitation, those set forth in Exhibit F attached hereto and incorporated herein
by reference, during the term of this Agreement, I3S shall offer, or cause to be
offered, the service level standards pertaining to various aspects of the
Service, as more particularly described and set forth in Exhibits D and E
attached hereto and incorporated herein by reference.
ARTICLE 8
REVENUE ALLOCATION; CUSTOMER ACCESS PRICING; BRANDING
8.1 REVENUE ALLOCATION. Internet access revenue (the "Revenue")
generated by I3S subscribers at I3S Properties will be paid directly to I3S;
provided, however, that, by the twenty-fifth day of each month I3S shall pay PCI
a revenue sharing fee calculated as a percentage of Revenue for each I3S
Property, prepaid or not, (exclusive of installation charges, customer service
charges, customer equipment sales or leases, other charges "passed through" on a
no-markup basis collected by I3S, and comparable charges) actually collected by
or on behalf of I3S for the immediately preceding month ("Commissionable
Revenues") in accordance with the following tables:
PENETRATION BASE FEE PENETRATION INCENTIVE
0% to 10% * *
Greater than 10% to 15% * *
Greater than 15% to 20% * *
Greater than 20% to 30% * *
Greater than 30% to 40% * *
Greater than 40% to 50% * *
Greater than 50% * *
8
"Penetration" means the total number of I3S subscribers at an I3S
Property divided by the total number of units at the I3S Property. The "Base
Fee" and "Penetration Incentive" are a percentage of the Revenue derived from
the I3S Property for which the Penetration is determined. The respective
"Penetration Incentive" shall be paid only on the basis of the incremental I3S
subscribers who actually subscribe to the Service at the particular applicable
penetration level set forth above.
8.2 CUSTOMER ACCESS PRICING. With the intent to increase Service
penetration at each I3S Property, I3S, in consultation with PCI shall establish
the price at which access to the Service is made available to subscribers. Such
access shall be provided at a price, service quality and content comparable to
the services of companies, which utilize high-speed cable modems to deliver high
speed data service. Prior to the provision of the Service and the execution of
any I3S XXX, I3S shall provide to PCI for PCI's review the proposed pricing
structure and service quality and content standards for the Service to each I3S
Property.
8.3 BRANDING. With respect to the Service, and the promotion
thereof, I3S shall establish the brand names, logos, labels, trademarks, service
marks and other such identifying promotional characteristics pertaining to the
same throughout the term of this Agreement.
ARTICLE 9
SPECIFIC SOFTWARE WARRANTIES
9.1 OWNERSHIP; AUTHORITY. I3S represents and warrants that the
software utilized hereunder (collectively, the "Products") are free and clear of
all liens and encumbrances, and that it has full power, license and authority to
utilize the rights granted to it with respect to such Products without the
consent of any other person or that such consent has been obtained, and that to
the knowledge of I3S the Products utilized hereunder will not infringe or
violate any copyright, trade secret, trademark, patent or other intellectual
property rights of any third party.
9.2 COMPLIANCE WITH APPLICABLE LAWS. I3S represents and warrants
that the provision of the Service pursuant to this Agreement shall be in
compliance with all applicable federal and state laws, rules and regulations.
9
ARTICLE 10
INDEMNIFICATION
10.1 INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION. I3S shall
defend, indemnify and hold harmless PCI, its directors, officers, shareholders,
employees and agents and its successors and assigns, from and against any and
all claims, demands, actions, liabilities, losses, damages and expenses,
including, without limitation, settlement costs and reasonable attorneys' fees,
arising out of or relating to any actual or alleged infringement of any third
party's trade secrets, trademark, service xxxx, copyright, patent or other
intellectual property rights (the "Intellectual Property Rights") in connection
with the use of said Intellectual Property Rights hereunder. I3S's obligation
pursuant to the immediately preceding sentence is subject to the following
conditions: (i) PCI shall give I3S prompt written notice of all actions, claims
or threats against PCI of infringement or violation of Intellectual Property
Rights; (ii) PCI shall permit I3S to elect to assume complete control of such
claims at its sole discretion and expense; and (iii) PCI shall cooperate fully
with I3S in defending against claims, including making known or available to the
indemnifying party, upon reimbursement of all costs associated with provision or
reproduction of, all records and document pertaining to claims.
10.2. INDEMNIFICATION. Each party shall indemnify the other against
all liability, loss, damage, and expense resulting from injury to or death of
any person (including injury to or death of their employees) or loss of or
damage to tangible real or tangible personal property (including damage to their
property) or the environment, but only to the extent that such liability, loss,
damage or expense was proximately caused by its breach of this Agreement or
by any negligent act or omission, willful misconduct or violation of law on the
part of the party from whom indemnity is sought ("the indemnitor"), its agents,
employees, subcontractors or assignees. Indemnitor shall have the right to
assume defense of the claim with counsel reasonably acceptable to indemnitee.
Indemnitee shall be entitled to participate in the defense of the claim with its
own counsel at its sole expense.
ARTICLE 11
PROTECTION OF PROPRIETARY RIGHTS
11.1 CONFIDENTIAL INFORMATION. Information to be held in confidence
shall be clearly marked "Proprietary" or "Confidential." Information which is
conveyed orally shall be deemed confidential only if prior to disclosure it is
indicated as being confidential and written confirmation identifying the
confidential or proprietary information is provided to the receiving party
within ten (10) business days after it was discussed orally.
11.2 RESTRICTIONS. Each party shall use its reasonable best efforts
to maintain the confidentiality of such Confidential Information and not show or
otherwise disclose such Confidential Information to any third parties,
including, but not limited to, independent contractors and consultants, without
the prior written consent of the disclosing party. Each party shall use the
Confidential Information solely for purpose of performing its obligations under
this Agreement.
10
11.3 AUTHORIZED DISCLOSURES. Notwithstanding the obligations
described in Section 11.2 above, neither party shall have any obligation to
maintain the confidentiality of any Confidential Information which: (i) is or
becomes publicly available by other than unauthorized disclosure by the
receiving party; (ii) is independently developed by the receiving party; or
(iii) is received from a third party who has lawfully obtained such Confidential
Information without a confidentiality restriction. If required by any court of
competent jurisdiction or other governmental authority, the receiving party may
disclose to such authority, data, information or material involving or
pertaining to Confidential Information to the extent required by such order,
provided that the receiving party shall first have used its best efforts to
obtain a protective order reasonably satisfactory to the disclosing party
sufficient to maintain the confidentiality of such data, information or
materials.
11.4 LIMITED ACCESS. Each party shall limit the use and access of
Confidential Information to such party's bona-fide employees or agents who have
a need to know such information for purposes of conducting the receiving party's
business. Each party shall notify all employees and agents who have access to
Confidential Information or to whom disclosure is made that the Confidential
Information is the confidential, proprietary property of the disclosing party
and shall instruct such employees and agents to maintain the Confidential
Information in confidence.
11.5 CONTINUING OBLIGATIONS. Each party's obligations under this
Article 11 shall survive the termination of this Agreement for two (2) years
thereafter.
ARTICLE 12
DEFAULT; TERMINATION
12.1 DEFAULT. Upon the occurrence of any of the following events, a
party shall be deemed to be in default under this Agreement:
(a) Material breach of any warranty or misrepresentation by the defaulting
party;
(b) Material failure to perform the defaulting party's obligations
hereunder, including with respect to I3S its failure to (i) maintain the service
standards set forth in Section 7.1 hereof, and (ii) make the payments to PCI set
forth in Section 8.1 hereof
(c) The defaulting party's ceasing to conduct business in the normal
course, insolvency, the making of a general assignment for the benefit of its
creditors, suffering or permitting the appointment of a receiver or similar
officer for its business or assets or availing itself of, or becoming subject
to, any proceeding under the United States Federal Bankruptcy Laws or any
federal or state statute relating to solvency or the protection of the rights of
creditors; or
(d) Making of any warranty, representation, statement or response in
connection with this Agreement which was untrue in any material respect on the
date it was made by the defaulting party.
11
12.2 REMEDIES. In the event the defaulting party fails to cure any
default set forth hereunder within thirty (30) days, except for defaults
pursuant to Section 12.1(c) which shall have a cure period of ninety (90) days,
after written notice of such default by the non-defaulting party specifying
the acts or omissions constituting the default with reference to the sections of
this Agreement which have allegedly been breached, the non-defaulting party may
terminate this Agreement without further obligation on the part of the
non-defaulting party, and pursue any claims at law or in equity against the
defaulting party.
12.3 FAILURE TO EXERCISE REMEDY. The remedies set forth above are
cumulative, but the non-defaulting party is under no obligation to exercise any
such remedy. The exercise of, or failure to exercise, any such remedies shall
not prevent any future exercise of the same or any other remedies or release the
defaulting party from its obligations under this Agreement.
12.4 EFFECT OF TERMINATION. Termination of this Agreement shall not
impair either party's then accrued rights, obligations, liabilities or remedies
hereunder.
ARTICLE 13
NOTICE; PUBLIC DISCLOSURES
13.1 NOTICE. All notices pursuant to this Agreement shall be in
writing and may be personally delivered or sent by overnight courier or by
Certified or Registered mail. All notices personally delivered shall be
deemed delivered at the time of such delivery. All notices sent by Certified or
Registered mail shall be deemed delivered five (5) days after deposited in the
US mail. All notices sent by overnight courier shall be deemed made one (1)
business day after delivery to such courier service. Any party may designate a
change of address upon ten (10) days written notice.
If to I(3)S, to:
I(3)S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx 00000
Attn: Mr. Xxx Xxxxx, CEO
with a copy to:
I(3)S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx 00000
Attn: Xxxx Xxxxxxxx, President
If to PCI, to:
Private Cable, Inc.
0000 Xxxxxx X
Xxxxxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxxxx, CEO
12
13.2 PUBLIC DISCLOSURES. All media releases, public announcements,
and public disclosures by either party of its employees, agents or
representatives relating to this Agreement or the subject matter hereof,
excluding any announcement beyond the control of this disclosing party, will be
approved by the non-disclosing party in writing prior to release.
ARTICLE 14
MISCELLANEOUS
14.1 ENTIRE AGREEMENT. This Agreement, together with the schedules,
attachments and exhibits attached hereto or referred to herein, constitutes the
entire Agreement and understanding among the parties hereto with respect to the
provision of the Service at I3S Properties and is the final expression of their
Agreement on that subject and no evidence of oral or other written promises
shall be binding. All other prior agreements or understandings related to the
subject hereof among the parties, whether written or oral, shall be null and
void and of no further force and effect upon the execution of this Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
14.2 INCORPORATION BY REFERENCE. The schedules, exhibits and
attachments referred to herein or attached hereto are hereby incorporated in and
to this Agreement and made a part hereof by this reference.
14.3 AMENDMENT; MODIFICATION. This Agreement may not be
supplemented, amended, modified or otherwise altered except by written
instrument executed by all the parties hereto and no course of dealing or trade
usage among or between the parties shall be effective to supplement, amend,
modify or alter this Agreement.
14.4 WAIVER. The failure to enforce or to require the performance
at any time of any of the provisions of this Agreement herein shall in no way be
construed to be a waiver of such provisions, and shall not affect either the
validity of this Agreement, any part hereof or the right of any party thereafter
to enforce each and every provision in accordance with the terms of this
Agreement.
14.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
ITS CONFLICTS OR CHOICE OF LAWS.
14.6 CONTINUITY OF CONTRACT. If any severable provision of this
Agreement is deemed invalid or unenforceable by any judgment of a court of
competent jurisdiction, the remainder of this Agreement shall not be affected by
such judgment, and this Agreement shall be carried out as nearly as possible
according to its original terms and intent, unless to do so would substantially
impair the underlying purposes of this Agreement.
14.7 CAPTIONS. The captions appearing in this agreement are
included solely for
13
convenience of reference and shall not be construed or interpreted to affect the
meaning or interpretation of this Agreement.
14.8 FORCE MAJEURE. Neither party shall be responsible for any
failure to comply with or for any delay in performance of the terms of this
Agreement, including, but not limited to, delays in delivery, where such failure
or delay is directly or indirectly caused by or results from events of force
majeure beyond the control of either party. These events shall include, but not
be limited to, fire, flood, earthquake, accident, civil disturbance, war, acts
of God, or acts or government.
14.9 HIRING PROHIBITED. During the term of this Agreement and for a
period of one (1) year thereafter, neither party shall solicit for hire or hire
any employee of the other party who has performed services under this Agreement.
14.10 PERFORMANCE REVIEW. In the event of any dispute or controversy
between the parties of any kind or nature, except in circumstances where
equitable relief is deemed necessary by either party in its sole discretion,
upon the written request of either party, each of the parties will appoint a
designated officer whose task it will be to meet for the purpose of resolving
such dispute or controversy or to negotiate for an adjustment to any provision
of this Agreement needed to resolve such dispute or controversy. Such officers
will discuss the dispute or controversy and negotiate in good faith in an effort
to resolve the dispute or controversy or renegotiate the applicable section or
provision of this Agreement without the necessity of any formal proceeding
relating thereto. No formal proceedings for the judicial or arbitrational
resolution of such dispute or controversy may be commenced until either or both
of the designated officers conclude in good faith that an amicable resolution
through continued negotiation of the matter at issue is not likely to occur.
14.11 BINDING NATURE; ASSIGNMENT. This Agreement will be binding on
the parties hereto, and their respective successors and assigns. Upon prior
written notice to the other party, either party may assign its rights and
delegate its duties under this Agreement; provided however, that the assignee
party must unconditionally assume in writing, and agree to be bound by, the
right, duties and obligations of the assignor party under this Agreement.
14.12 RELATIONSHIP OF THE PARTIES. Notwithstanding anything to the
contrary in this Agreement, under no circumstances will either party be deemed
to be in any relationship with the other party carrying with it fiduciary or
trust responsibilities. The parties do not intend for this Agreement or the
relationship established thereby to be considered the formation of a joint
venture or partnership between the parties for any purpose. I3S has the sole
right to supervise, manage, contract, direct, procure, perform or cause to be
performed the day-to-day work to be performed by I3S under this Agreement unless
otherwise expressly provided herein or agreed to by the parties in writing.
14.13 COUNTERPARTS. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon the same
instrument.
14
14.14 MEMORANDUM OF UNDERSTANDING. The Parties stipulate and agree
that a Memorandum describing the existence of any I3S XXX with respect to each
I3S Property (attached hereto as Exhibit C) be recorded, at I3S' expense, with
the Title for such I3S Property and all liens thereto.
14.15 SUBORDINATION. Each and every I3S XXX is subject and
subordinate to all leases, mortgages, and/or deed of trust which may now or
hereafter affect the I3S Property, to all renewals, modifications,
consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instrument or subordination shall be required by
any mortgage, trustee, lessor or lessee. In confirmation of such subordination,
I S shall execute promptly any certificate that PCI, or any Owner or Operator
may request. Notwithstanding the foregoing, the party secured by any deed of
trust shall have the right to recognize the I3S XXX. In the event of any
foreclosure sale under such deed of trust, the I3S XXX shall continue in full
force and effect at the option of the party secured by such deed of trust or the
purchaser under any such foreclosure sale. I S covenants that it will, at the
written request of the party secured by any such deed of trust, execute,
acknowledge and deliver any instrument that has for its purpose and effect the
subordination to said deed of trust of the lien of the I3S XXX.
14.16 SEVERABILITY. The Parties agree that multiple Properties may
become subject to this Agreement. Any default or termination (whether voluntary
or involuntary) by any Party with respect to a particular Property shall operate
as a default or termination only with respect to the Parties' responsibilities
and obligations as they relate to the specific Property or Properties, as the
case may be. Unless otherwise agreed to by the Parties with respect to the
particular default, a default shall be construed, where possible, to exclude
unaffected Properties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
I(3)S, INC. PRIVATE CABLE, Inc.
By: /s/ Xxxx Xxxxxxxx By: /s/ X.X. XXXXXXXXX
-------------------------- ----------------------------
Xxxx Xxxxxxxx Name: X.X. Xxxxxxxxx
President --------------------------
Title: President
-------------------------
Date: 3/2/99 Date: 3/1/99
------------------------ --------------------------
15
LIST OF EXHIBITS
EXHIBIT A: I3S Right of Entry Agreement
EXHIBIT B: MDU Survey
EXHIBIT C: Sample Memorandum of Existence of Right of Entry Agreement
EXHIBIT D: I3S Capital and Operating Expense Responsibilities
EXHIBIT E: Description of the Services Provided by I3S
EXHIBIT F: Service Level Standards
16
EXHIBIT A
I3S RIGHT OF ENTRY AGREEMENT
This Agreement is made _______, 199__ between I3S, Inc., 0000 Xxxxxxxxx
Xxxxx, Xxxxxx, XX 00000 ("I3S"), and ________________________, whose address is
___________________________________, (the "Operator") and ______________________
whose address is __________________________________________________________ (the
"Owner").
WHEREAS
A. The Owner is the owner or authorized agent for the owner of a
multifamily residential property located at __________________________,
which has _______________ units (the "Property"); and
B. The Operator is the owner or authorized agent for the owner of the
cable distribution facilities (the "System") at the Property used to deliver
video services to the residents (the "Residents"); and
C. I3S can provide high speed internet access and other data services
(the "Service") to the Residents using the System; and
D. The parties wish I3S to provide the Services to the Residents using
the System;
THEREFORE the parties agree as follows:
1. ACCESS. The Owner grants I3S access to the Property to provide the
Service to the Residents. The Owner and Operator shall use their respective best
efforts to assist I S in securing access to all units as necessary. I S shall
not enter an occupied unit without the Resident's express consent and only in
the presence of the Resident or an adult representative of the Resident.
1. OWNER SUPPORT. The Owner will provide secure air-conditioned space to I
S for all equipment reasonably necessary to provide the Service at the Property
(the "Equipment"). The Owner will provide electricity necessary to power the
Equipment, not to exceed $250 per year. I S will have access to the Property and
the Equipment for routine installation, maintenance and marketing on weekdays
from 9 a.m. to 9 p.m., and on Saturdays from 9 a.m. to 5 p.m.. Emergency service
and repair calls can be made at any time, 24 hours a day.
1. I3S EQUIPMENT. I3S shall, at its own expense, install, operate and
maintain the Equipment, keep it in good repair and provide the Service to the
Residents. I3S shall make a good and workmanlike installation of the Equipment
and shall not damage the Property or injure anyone. I3S shall own the
Equipment and may remove it and restore the Property to its original condition
upon the termination of this Agreement, subject to ordinary wear and tear.
17
1. THE SYSTEM. The Operator grants I3S the use of two (2) video channels
of bandwidth on the System to provide the Service to the Residents. The Operator
shall, at its own expense, install, upgrade, operate and maintain the video
head-end and the System to I3S' specifications (the "Specifications"). The
Operator shall pay the cost for training its own personnel to maintain the
System according to the Specifications.
1. BILLING AND COLLECTING. I3S shall directly xxxx and collect from any
Resident who receives the Service. Neither the Owner nor the Operator shall have
any liability for I3S subscriber fees. I3S shall set the price for the Service
in consultation with the Operator. I3S shall have no obligation to pay any
commissions or other similar consideration to the Owner or Operator for the
rights granted I3S in this Agreement. Nothing in this Agreement shall preclude
the Operator from receiving consideration from a third party or paying
consideration to the Owner for the rights granted in this Agreement.
1. CONTACT. I3S will establish a point of contact to take any complaints
or questions about the Service (the "Contact"). The Owner and Operator will
immediately inform the Contact about any material or recurring problems with the
Service brought to their attention including the name and address of the
subscriber, if any, who made the complaint.
1. RECORDED MEMORANDUM. I3S may, at its own expense and with the
cooperation of the Owner if necessary, record a memorandum of this Agreement
which shall state that this Agreement is subordinate to any and all leases,
mortgages, deeds or trusts at any time. I3S shall provide such certificates or
other statements as the Owner may request to acknowledge the subordination of
this Agreement.
1. EXCLUSIVITY. The Owner and Operator promise that no high speed internet
or data service that competes with I3S (a "Competitor") will be offered at the
Property, except as required by law or if the Competitor is a telephone company
using telephone lines. The Operator and Owner shall not, to the extent permitted
by law, permit any Competitor to use the System or provide support, directly or
indirectly, to a Competitor. The Operator and Owner shall not accept commissions
or other consideration from a Competitor or allow on premises marketing by a
Competitor.
1. TERM. The term of this Agreement is seven (7) years from the date of
the Owner's signature and renewed automatically for one (1) year terms
thereafter unless either party notifies the other of an intent to not renew
within ninety (90) days of the end of the term by written notice.
1. INDEMNITY. Each party shall indemnify and hold the others harmless from
any and all claims, damages or expenses arising out of any breach by the
indemnifying party of this Agreement. The indemnifying party shall control and
pay for the defense of such claims. The indemnifying party may settle such
claims subject to the indemnified
18
party's consent which shall not be unreasonably withheld or delayed. The
indemnified party may, but is not obligated to, participate in the defense of
such claims at its own expense.
1. CANCELLATION FOR CAUSE. Any party may cancel this Agreement on written
notice if any other party defaults in performing the material obligations of
this Agreement provided, however, that the defaulting party will first be given
the opportunity to cure the default. The canceling party will specify the
default to the other parties in writing and the defaulting party will have sixty
(60) days to cure the default. If the default is not cured, the other parties
may then cancel this Agreement. Before the Owner or I3S cancels this Agreement
for default by the Operator, I3S shall be given thirty (30) days to cure the
Operator's default and thereby assume the Operator's rights and obligations
under this Agreement.
1. INSURANCE. I3S shall provide Worker's Compensation Insurance for its
employees and require Worker's Compensation Insurance for the employees of all
contractors and subcontractors. The Operator and I3S shall each maintain
separate comprehensive liability insurance in the amount of $1,000,000 covering
their respective operations, contractors and subcontractors. The Operator and
I3S shall, upon request, name each other and the Owner as an additional insured
and provide certificates of insurance.
1. COMPLIANCE. The parties will comply with all applicable laws, codes and
regulations. I3S will comply with any reasonable written rules of the Owner that
apply to all other tradesmen or contractors.
1. FORCE MAJEURE. No party shall be liable for failure to perform all or
part of this Agreement by reason of a force majeure event. These events shall
include, but are not limited to, fire, flood, earthquake, accident, civil
disturbance, war, acts of God, or acts of government.
1. ASSIGNMENT. This Agreement shall benefit and be binding on the
respective assigns, transferees and successors of the parties. Operator or I3S
will assign this Agreement only to a responsible company which at the time of
assignment has the resources necessary to perform under this Agreement. The
Owner will notify new owners of the Property about this Agreement.
1. CONFIDENTIALITY. This Agreement will remain confidential and shall not
be disclosed to third parties except as required by law or to make an
assignment.
19
1. ENTIRE UNDERSTANDING. This Agreement shall not modify or amend any
other agreement between the Operator and Owner except as expressly set forth
above. This Agreement otherwise contains the entire understanding of the parties
and may not be modified except by a writing signed by each of the parties.
---------------------- ----------------------
-----------------------
I3S Owner Operator
Name: Name: Name:
20
EXHIBIT B - MDU SURVEY
OPERATOR
NAME
--------------------------------------------------------------------------
CONTACT PERSON
----------------------------------------------------------------
ADDRESS
------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
TELEPHONE NO.
------------------------------------------------------------------
FAX NO.
------------------------------------------------------------------------
E-MAIL ADDRESS
------------------------------------------------------------------
OWNER
NAME
--------------------------------------------------------------------------
CONTACT PERSON
-----------------------------------------------------------------
ADDRESS
------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
TELEPHONE NO.
------------------------------------------------------------------
FAX NO.
------------------------------------------------------------------------
E-MAIL ADDRESS
-----------------------------------------------------------------
21
EXHIBIT B - MDU SURVEY
PROPERTY
CONTACT PERSON
-----------------------------------------------------------------
ADDRESS
------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
TELEPHONE NO.
-------------------------------------------------------------------
FAX NO.
------------------------------------------------------------------------
E-MAIL ADDRESS
-----------------------------------------------------------------
NUMBER OF UNITS
-----------------------------------------------------------------
NUMBER OF BUILDINGS
------------------------------------------------------------
AGE OF BUILDINGS
----------------------------------------------------------------
CURRENT OCCUPANCY
--------------------------------------------------------------
MONTHLY RENTAL FOR ONE BEDROOM
--------------------------------------------------
MONTHLY RENTAL FOR TWO BEDROOM
--------------------------------------------------
MONTHLY RENTAL FOR THREE BEDROOM
------------------------------------------------
FULL LEGAL DESCRIPTION OF THE PROPERTY SUFFICIENT TO RECORD MEMORANDUM OF RIGHT
OF ENTRY AGREEMENT:
22
EXHIBIT B - MDU SURVEY
CATV/MATV SITE SURVEY INFORMATION
HOW LONG HAVE YOU BEEN PROVIDING SERVICE AT THIS LOCATION
-------------------------------------------
CHANNEL LINE UP AND PRICING
-------------------------------------------
BASIC PENETRATION
-------------------------------------------
PAY PENETRATION
-------------------------------------------
AGE OF CABLE DISTRIBUTION PLANT
-------------------------------------------
MANUFACTURER AND TYPE OF CABLE
-------------------------------------------
MANUFACTURER AND TYPE OF SPLITTERS AND OTHER CONNECTORS
-------------------------------------------
LOOP THROUGH OR HOME RUN WIRING
-------------------------------------------
REMAINING TERM ON CONTRACT TO SERVE THE PROPERTY
-------------------------------------------
ANY CLAIMS OF BREACH OR DEFAULT ON THE CONTRACT
-------------------------------------------
23
EXHIBIT B - MDU SURVEY
Certification
I certify that the statements made in this survey are true
and correct and acknowledge that I3S, Inc. may make a substantial investment at
the above-described property in reliance on the this information.
------------------------------------------
Name:
Title:
Company:
Date:
-------------------------------------
24
EXHIBIT C - MEMORANDUM OF AGREEMENT
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxxxx Xxxxxxxx
President
I3S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
MEMORANDUM OF EXISTENCE OF
IS RIGHT OF ENTRY
AGREEMENT
A license has been granted by ________________________________________
("Grantor") the owner of record of the premises located at ____________________
_______________________________________________________ to I3S ("Grantee") under
a certain I3S Right of Entry Agreement dated _________________________ by and
between Grantor and Grantee (the "Agreement"). The license permits Grantee,
among other things, to provide high speed data services, as described in the
Agreement, and to engage in any other act or activity contemplated by the
Agreement at the Property described herein. This Agreement runs with the land
and terminates on the earlier of seven (7) years after the above date (with
renewals of one year terms in the absence of written termination) or (ii) any
termination of the Agreement due to breach by any party. Such earlier
termination may be evidenced by the recording of an Affidavit executed by
Grantor stating that such termination has occurred. As used in the Agreement,
the term "Property" means that the real property consisting of approximately
______ units located in the city/town/village of______________, County
of____________, State of _____________________, at the address commonly known as
______________________________________[Name and Address of Apartment Community].
Whose legal description is as follows:
In the event of any conflict between the terms and conditions of this Memorandum
of Existence and the terms and conditions of the Agreement, the Agreement shall
control. The parties agree that the sole purpose of this Memorandum of Existence
is to provide notice of the Agreement.
The undersigned personally warrants and represents that he/she has the authority
to execute this Memorandum on behalf of the Grantor and the information stated
in this Memorandum is true and accurate and acknowledges that I3S is making a
substantial investment at the above-described premises in reliance on the
statements made by the Grantor in this Memorandum.
25
Executed this ______ day of____________, 199___.
GRANTOR:
---------------------------------
A
----------------------
BY:
------------------------------
NAME:
----------------------------
TITLE:
----------------------------
STATE OF
----------------------
COUNTY OF
---------------------
On ____________, 199___, before me, __________________ personally
appeared _________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies) and that by
his/her/their signature(s) on the instrument and the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
--------------------- (seal)
GRANTEE: I3S, Inc.
A Texas Corporation
BY:
----------------------
NAME:
-----------------------
TITLE:
-----------------------
STATE OF
-------------------
COUNTY OF
------------------
26
On, _______________, 199___, before me, ______________, personally
appeared __________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies) and that by
his/her/their signature(s) on the instrument and the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature: ___________________ (seal)
27
EXHIBIT D
I3S CAPITAL AND OPERATING RESPONSIBILITIES
I3S Responsibilities:
Install, maintain and operate data delivery equipment for each property
offering high speed data service ("HSDS"). Installation and maintenance will
meet or exceed manufacturer's specifications. the Operator will assist I3S with
pre-installation engineering of the CATV infrastructure at the Property and
site survey questionnaires, installation, testing and preparation of maintenance
schedules.
Integrate all data delivery equipment for each property into the I3S
Element Management System portion of its Network Management Platform using SNMP
and RMON. I3S will monitor all data delivery equipment twenty-four hours per
day, seven day per week (24x7).
Assume the cost of the acquisition of I3S-specified data communication
equipment conforming to the I3S design for HSDS and necessary to provide
termination and delivery of HSDS between the Subscriber and the I3S POP in each
Market.
Order, provision, install and maintain local loop pathways between each
property and I3S POP in each Market with a bandwidth of not less than 1.544 Mb/s
(T1). In addition, as the number of Subscribers on each property increases,
scale the local loop bandwidth so that each simultaneously active user averages
approximately 1 Mb/s ninety eight percent (98%) of the time.
Configure and operate all data delivery equipment to efficiently
integrate with the rest of the X0x.xxx network.
POINT OF PRESENCE
FEATURES AND ESTABLISHMENT REQUIREMENTS
I3S Responsibilities:
Acquire, install and maintain data communication equipment at each POP
for the termination and transmission of HSDS from properties to the x0x.xxx
national network backbone.
I3S will determine the location of its main presence in each Market to
be consistent with its own operational practices (which currently include
co-locating within its carrier's central offices in each Market).
Acquire, install, maintain and operate Internet peering relationships
at public and private Internet Exchange Points (EP) with other Tier 1 Internet
backbone networks throughout the United States.
Acquire, install, maintain and operate computers and software to
provide Network Management and provide Internet services for Subscribers. To
provide these functions, I3S will
28
employ a combination of locally-distributed-to-the-POP servers as well as
globally centralized servers consistent with its overall network design and
operational practices.
Order, provision, install, maintain and operate data transport/carriage
pathways from each POP, EP and/or NOC with a bandwidth not less than 45 Mb/s
(DS-3) interconnection. In addition, as the number of Subscribers on Market
increases, scale the bandwidth so that each simultaneously active user averages
approximately 1 Mb/s ninety eight percent (98%) of the time. Both parties
acknowledge that the end-to-end performance of HSDS is probabilistic and subject
to anomalous short-lived usage patterns by Subscribers which will affect both
the utilization of the local-loop circuits and the x0x.xxx national backbone
from time to time.
CUSTOMER HELP LINE
SERVICE AND REQUIRED FEATURES
I3S Responsibilities:
Provide toll free numbers for:
Inquires about the HSDS product
Ordering and scheduling installation of HSDS products
Billing inquiries
Initial technical support inquires
Operate 24x7 customer service call center operation.
Maintain sufficient customer service staff and call center
capacity to connect to Subscribers within 5 minutes of call entering processing
operation.
Resolve billing issues within 24 hours 95% of time.
Resolve property network issues within 24 hours 95% of time.
Develop and publish escalation procedure for Help Desk and
attendants related to network issues.
Provide toll free number for:
Technical support for all HSDS issues
Technical support for Subscriber CPU hardware and
software issues related to HSDS
Technical support for cable modem issues
Answer toll free line consistent with the Operator/I3S service co-brand
29
Operate 24x7 customer service call center operation.
Maintain sufficient customer service staff and call center capacity to
connect to Subscribers within 5 minutes of call entering processing operation.
Resolve technical issues within 24 hours if a phone call is required
95% of time.
Resolve technical issues within 48 hours if a truck roll is required
95% of time.
Develop and publish escalation procedure for Help Desk and attendants
related to network issues.
Develop and publish escalation procedures for the Operator to contact
regarding technical issues related to the network.
Provide training support for the Operator's customer service
representatives (train-the-trainer support).
SUBSCRIBERS' HARDWARE AND SOFTWARE INSTALLATION
SPECIFICATIONS AND INSTALLATION REQUIREMENTS
I3S shall:
Verify that potential Subscribers' personal computers meet the
I3S-established minimum requirements for the supplied software and the HSDS
service.
Make an appointment with each new Subscriber to meet the 13S
installation personnel for the installation of the HSDS in the Subscriber's
unit.
Supply I3S with Subscribers' information required to install, provision
and complete the set up of Subscribers' HSDS service. The Operator and I3S will
jointly develop an appropriate paper-form-based system or automated system to
facilitate this process.
Verify, or cause to be verified, the CATV connection completed to the
Subscriber's specified location exceeds the minimum operational requirements for
the I3S-supplied network interface card (NIC) and the I3S HSDS service.
Verify, or cause to be verified, that all CATV services function
properly after I3S completes installation.
Maintain a sufficient inventory of NICs for the Property and develop
procedures to restock the NICs as used in Subscriber installations.
30
Issue and install the required number of NICs for the service requested
by the Subscriber.
Meet the Subscriber at the Subscribers location at the scheduled time
within the tolerances and limits as defined in the I3S Service Level Agreement.
Install the required NIC(s) in the Subscriber's unit.
Install any required TCP/IP protocols and Internet software suite in
the Subscriber's personal computer.
Offer the Subscriber a brief introduction to the HSCS to be performed
at the time of installation. This introduction will include how to launch the
service, how to find the training material on the x0x.xxx Web site, how to find
the Subscriber Support Section on the x0x.xxx Web site and how to call for
technical assistance or support.
Obtain signatures required to verify that installation was executed
properly and to the satisfaction of the Subscriber.
Provide the Operator with a copy of the installation transaction
documentation verifying that the completed installation is ready for billing.
This documentation will include the cable modem delivery receipt, the ISP
contract and the completed work order.
PROCEDURES FOR DETECTION AND NOTICE
OF THE OPERATOR PROPERTY NETWORK OR LOCAL LOOP FAILURES
I3S shall:
Use the CATV system, and certain network management features that it
provides, to monitor the availability and quality of the Operator's property
network (its CATV infrastructure at the Property).
Report to the Operators's designated engineering point of contact any
problems observed by the I3S NOC in the course of operating the CATV system
network management features.
Report to the Operator's designated engineering point of contact any
problems determined by Subscriber contact in the course of operating the
Subscriber Help Desk.
Offer to the Operator a read-only direct computer interface into the
I3S CATV system's network management platform for the purposes of direct
observation of the information produced by the management platform and possible
enhancement of the Operator's Property network operations. If the Operator
elects to implement a read-only direct-computer interface, the Operator will be
responsible for all of the costs associated with such an interface.
31
EXHIBIT E
DEFINITION OF THE SERVICE,
ALSO REFERRED TO HEREIN AS HIGH-SPEED DATA SERVICES (HSDS)
Features and Requirements
The I3S HSDS includes:
Data Network services that provide transport and peering functions to
the global Internet, including, without limitation:
A broadband access network on MDU properties composed of one or more
headend reference nodes, interfaced with an CATV distribution system at the
Property and one or more network interface cards (NIC) within Subscriber PCs;
A local loop network that connects the headend reference node on each
MDU property to the I3S regional point-of-presence (POP) in each metropolitan
area served by I3S;
A regional point-of-presence network that connects the POP to the
x0x.xxx national Internet backbone;
A national Internet backbone consisting of broadband communication
facilities for the transport of data among I3S POPs and public and private
Exchange Points where data and Internet routing information will be exchanged
with other networks peered with x0x.xxx;
A national Network Operations Center (NOC).
Certain computer services that include:
Membership system for user authentication and authorities;
Personalization services for customizing content to user preferences;
Internet mail (SMTP and POP3);
Internet newsgroups (NNTP) composed of approximately 25,000
newsgroups;
Internet World Wide Web (HTTP) services;
Internet chat (IRC and MIRC);
White-pages-style directory services;
Internet locator services;
Conferencing and collaboration bridges;
Streaming multimedia services such as Microsoft's NetShow and
Progressive Network's RealMedia;
Electronic commerce services.
A branded suite of client software that include:
Web browser;
Mail reader;
32
News reader;
Chat client;
Conferencing and collaboration client;
Appropriate plug-ins and ActiveX controls.
Certain customer service functions that include:
A National Customer Care Center;
A telephone and network-based customer help desk;
A Trouble Reporting facility;
A customer billing system.
Certain multimedia-rich content that showcases the capabilities of HSDS
that includes:
Original content created by I3S;
Aggregated content created by others but licensed by I3S and improved
for uses in a HSDS system;
Aggregated content created by others but licensed by I3S and used
unimproved.
33
EXHIBIT F
SPECIFICATIONS/SERVICE LEVEL AGREEMENT
INTRODUCTION
This Exhibit entitled "Service Level Agreement" ("SLA") sets out
operation specifications and requirements for the Service, also known as high
speed data services or "HSDS" provided by I3S for the residents or customers of
the Operator (herein sometimes called "Teaming Associate"). The SLA shall
encompass data services originating and terminating within the I3S internetwork
("x0x.xxx").
The HSDS provided by I3S shall meet the operations specification and
requirements stated herein, which are generally stated in terms of events or
outcomes, rather than terms of specific hardware, software or procedural
requirements. For the purposes of the SLA, x0x.xxx shall relate to that portion
of the global Internet operated by I3S, originating within end users' customer
premises and terminating within I3S computers or transported and peered at a
public or private Internet Exchange Point.
For the purposes of the SLA, a "Trouble" or "Trouble Report" shall
relate to x0x.xxx or I3S provided services (or resold services), but shall
exclude customer error, defects in "customer premises equipment" ("CPE"),
defects in customers' computers, defects in distribution coaxial cable, defects
in distribution fiber optics defects in cable television systems and network
problems experienced by destination networks at or beyond Internet Exchange
Points.
PERFORMANCE REQUIREMENTS
PERCENT CUSTOMER SERVICE ORDER BEGINNING COMMITMENT DATES TIMELY MET
This parameter is generally indicative of the timely beginning of work
on orders from customers for new service or orders to make changes in their
existing service.
The timely beginning parameter is calculated by dividing the total
Customer Service Orders begun on or before the date and clock hour promised to
the customer that the service order would be started by the total number of
service orders initiated in each calendar month and multiplying by 100.
I3S shall exhibit greater than 90% Customer Service Order Beginning
Commitment Dates Timely Met per month.
PERCENT CUSTOMER SERVICE ORDER COMPLETION COMMITMENT DATES TIMELY MET
This parameter is generally indicative of the timely completion of work
on orders from customers for new service or orders to make changes in their
existing service and the timely completion of those service orders.
34
The timely completion parameter is calculated by dividing the total
Customer Service Orders completed on or before the date and clock hour promised
to the customer that the service order would be completed by the total number of
service orders initiated in each calendar month and multiplying by 100.
I3S shall exhibit greater than 90% Customer Service Order Completion
Commitment Dates Timely Met per month.
PERCENT OF NETWORK AVAILABILITY
This parameter is generally indicative of the availability of the
network to transport and peer customer data at an Internet Exchange Point, or,
in the event that the customer data is to be fulfilled by computers within
x0x.xxx, generally indicative of the availability of to transport data to the
I3S servers and the availability of the servers.
This parameter is calculated by dividing the number of seconds that the
network is available for each customer by the total number of customer-seconds
in each calendar month and multiplying by 100.
Specifically excluded from the Network Availability calculation shall
be regularly scheduled maintenance windows or ad hoc maintenance windows
scheduled and announced 24 hours in advance in the x0x.xxx Customer Support Web
Site.
Specifically excluded from the Network Availability calculation shall
be periods of time where the cable television distribution plant (operated by
the Teaming Associate or its designated third party operator) exceed the follow
table of acceptable values:
Amplitude Variation Inband Upstream1 dB/MHz., 5 dB total
Amplitude Variation Inband Downstream
1 dB/MHz., 5 dB total
Group Delay Variation Inband Upstream
200 nsec./MHz., 800 nsec. total
Group Delay Variation Inband Downstream
60 nsec./MHz., 240 nsec. total
Tap to Tap Level Variation
<27 dB
I3S shall exhibit greater than 98% Network Availability per month.
PERCENT CUSTOMER CALLS ANSWERED WITHIN 45 SECONDS BY I3S PERSONNEL
This parameter is based upon the number of customers calls answered
within 15 seconds by a human operator or by an ACD queue greeting during the
hours of operation of the I3S National Customer Care Center and thereafter to be
answered by a customer representative
35
with 30 seconds. At a minimum, the I3S National Customer Care Center shall
operate from 8:00 a.m. to 5:00 p.m. Central Time, Monday through Friday
exclusive of holidays.
This parameter is calculated by dividing the number of calls answered
with 45 seconds by the total number of calls answered seconds in each calendar
month and multiplying by 100.
I3S shall exhibit greater than 90% of Customer Calls Answered within 45
Seconds per month.
PERCENT OF TROUBLE REPORTS RESOLVED TIMELY
This parameter is related to the number of Trouble Reports resolved
within the following windows:
For Trouble Reports received by I3S at the I3S National Customer Care
Center prior to 2:00 p.m. Central Time, Monday through Friday, excepting
holidays, will be cleared by the end of the next business day.
For Trouble Reports received by I3S at the I3S National Customer Care
Center after 2:00 p.m. Central Time, Monday through Friday, excepting holidays,
will be cleared by noon of the second business day thereafter.
This parameter is calculated by dividing the total trouble reports
cleared on or before the date and clock hour promised to the customer the total
number of Trouble Tickets cleared in each calendar month and multiplying by 100.
I3S shall exhibit greater than 90% Trouble Reports Cleared Timely per
month, according to the terms of this section for trouble that can be resolved
by I3S alone.
PERCENT CUSTOMER REPAIR VISIT APPOINTMENTS MET
This parameter is related to the customer commitments made by the I3S
National Customer Care Center for repairs that require a repair visit to
customers' sites or premises.
This parameter is calculated by dividing the total Customer Repair
Visits Appointments met on or before the date and clock hour promised to the
customer by the total number of Customer Repair Visit Appointments initiated in
each calendar and multiplying by 100.
I3S shall exhibit greater than 90% Customer Repair Commitment Met per
month.
36
PERCENT OF CUSTOMER BILLS PREPARED TIMELY
This parameter is related to the generation of Customer Bills for
delivery to customers by mail, electronic mail or credit card billing.
This parameter is calculated by dividing the number of Customer Bills
generated and sent to customers within twenty (20) business days of the end of
the billing cycle by the total number Customer Bills generated in each calendar
month and multiplying by 100.
I3S shall exhibit greater than 95% Customer Bills Prepared Timely per
month.
PERCENT OF CUSTOMER BILLS PREPARED ACCURATELY
This parameter is related to the accuracy of Customer Bills for
delivery to customers by mail, electronic mail or credit card billing.
This parameter is calculated by dividing the number of Customer Bills
generated that do not require an adjustment due to a billing error caused I3S by
the total number Customer Bills generated in each calendar month and multiplying
by 100.
I3S shall exhibit greater than 95% Customer Bills Prepared Accurately
per month.
REPORTS
I3S shall undertake commercially reasonable efforts to provide to
Teaming Associates reports within twenty (20) business days of the end of each
calendar month, the reports listed below in this section, each of which may be
provided separately or provided on a consolidated basis:
A report depicting total subscribers, gross new customers and gross
customers terminated separated by product tier and property.
New service orders, Trouble Reports opened and closed or cleared as
appropriate separated by date and property.
Aggregate I3S National Customer Care Center data depicting the
distribution of call waiting time in general and the percent calls answered and
calls abandoned respectively.
Billing summaries describing the date(s) bills were sent to customers,
and the billed revenue disaggregating major categories of service.
37
HOLIDAYS
New Years Day
Memorial Day
Independence Day
Labor Day
Thanksgiving
Day after Thanksgiving
Christmas
And any other holiday recognized by I3S
