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EXHIBIT 10.31
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
MCI/Verio Confidential
MCI Domestic (US) Public Interconnection Agreement
This Agreement is made, effective as of June 12, 1997 (the
"Effective Date"), by and between MCI Telecommunications Corporation, a
Delaware corporation with a principal place of business at 0000 Xxxxxxxxxx
Xxxxx, XxXxxx, XX 00000 ("MCI") and Verio, with a principal place of business
at 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("VERIO").
RECITALS
1. Each of MCI and VERIO operates an Internet Network, as defined below;
and
2. The parties wish to provide for the interconnection of, and exchange
of traffic between, their respective Internet Networks on the terms and
conditions herein.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Definitions
"Affiliate" means a corporation or other entity that controls, is controlled
by, or is under common control with another corporation or entity, but only
while that control relationship exists.
"Interconnection Point" shall mean any interconnection point at which the
parties agree to connect their respective Internet Networks under this
Agreement. A description of all Interconnection Points, together with all
direct interconnections agreed to by the parties, is set forth on Schedule 1
attached hereto, and Schedule 1 shall be amended by the agreement of MCI and
VERIO in the event of any changes.
2. Exchange of Traffic
a. The parties agree to exchange digital communications traffic over
their respective Internet Networks at (*) geographically dispersed
Interconnection Points, subject to the terms and conditions set forth in this
Agreement. (*) Unless otherwise agreed in writing the following shall be the
acceptable Interconnection Points: (*) agreed to in Schedule 1. Each party
shall provide, at its own expense, at least a (*)
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connection from its Internet Network to the Interconnection Point(s) or
direct interconnections hereunder, upon a schedule to be mutually agreed.
b. The data rate at which the parties will connect hereunder is set forth
in Schedule 1 attached hereto.
c. Each party agrees not to restrict traffic flowing through the
Interconnection Points to and from the other party based on the subject matter
of the traffic unless required to do so by court order or applicable law;
provided, however, that each party shall be free to block traffic that the
party determines violates the terms of usage of its Internet Network. Each
party shall retain its prior rights to impose usage restrictions on its own
customers and/or to assist its customers in imposing customer requested usage
restrictions on traffic flowing to and from the requesting customer.
d. There will be no restrictions on the ability of either party to
collect data and create statistics associated with data moving through its own
Internet Network and traffic moving through the Interconnection Point. Each
party shall keep all data it monitors or captures concerning the
Interconnection Points confidential in accordance with the nondisclosure
obligations of Section 16, and shall use such data solely for the purposes of
operating and managing its Internet Network. Except as otherwise agreed between
the parties, statistics itemized by the following criteria may not be provided
to third parties: service provider, company or other entity, and/or IP address.
Notwithstanding the foregoing, each party may provide any of its customers with
statistical data associated with such customer's traffic.
e. Neither party will establish a route of last resort directed toward
the other party's Internet Network. A "route of last resort" is defined as a
route which covers all possible destinations. Instead, the parties will fully
exchange explicit routes comprising public Internet service destinations of
entities to whom either party is contractually obligated to handle traffic. An
"explicit route" is defined as a route that covers only a strict, limited
subset of all possible destinations.
3. Payments
The parties agree that during the twelve-month period immediately following the
Effective Date of this agreement they shall work together to define the data
and operational characteristics of interconnection with a view toward agreeing
upon appropriate financial arrangements for interconnection of their respective
Internet Networks should they mutually be deemed necessary or desirable.
Immediately upon the parties' agreement to such financial arrangements, the
parties shall implement such arrangements by amending this Agreement to provide
for settlement or other payments between the parties. Until such financial
arrangements are finalized, no settlement or other charges of any kind for data
transmission will be paid by either
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
MCI/Verio Confidential
party to the other hereunder. Each party shall bear its own costs and expenses
incurred in connection with this Agreement.
4. Term and Termination
This Agreement shall have an initial term of one (1) year following the
Effective Date. Either party may terminate this Agreement with thirty (30)
calendar days' notice. If neither party terminates this Agreement upon
expiration of the initial term, this Agreement shall continue on its present
terms and conditions, until a party terminates it by thirty calendar days
written notice to the other. Either party may terminate this Agreement with ten
days' notice (unless such circumstances are cured within such ten day period)
upon the following circumstances: (i) a party interconnects at fewer than the
(*) geographically dispersed Interconnection Points; or (ii) VERIO or any
Affiliate thereof (subject to Schedule 1) purchases Internet access from MCI; or
(iii) either party fails to continue to meet the requirements specified in
Schedules 1 and 2.
5. Technical and Operational Matters
a. Each party represents that the Interconnection Points set forth in
Schedule 1 are, and during the term shall be, connected as part of an internal
network architecture comprised of multiple, cross-country circuits of at least
(*) speed.
b. Neither party is obligated to accept third party routes from the other
party. For purposes of this paragraph, any entity that peers with one party
hereto but not with the other shall be considered a "third party." If third
party routes are detected by either party, that party has the right to block
the routes. The foregoing restriction shall not apply to routes of customers
whose transit traffic is carried by the other party. The foregoing restriction
shall also apply to any Verio Affiliates not integrated with the Verio network
AS number 2914. For purposes of this Agreement, "transit traffic" is traffic
that a party agrees to transport to its final destination.
C. Both parties shall maintain a consistent routing announcement (i.e,
same set of routes announced with same AS path at all Interconnection Points).
Both parties will present the same autonomous system number at all mutual
agreed interconnection points listed in Schedule 1. Verio shall only present AS
2914. Each party shall carry full routing at edge routers using BGP-4 and
aggregated routes.
(i) The parties will work together during the term of
this Agreement to establish mutually agreed performance objectives and
operational procedure to enable each party to provide the highest practical
quality of service over its Internet Network and the interconnection provided
hereunder, in a cost effective fashion. In connection therewith, the parties
shall use their reasonable efforts to achieve a minimum end-to-end one-way
packet delay.
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THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
MCI/Verio Confidential
(ii) Each of the parties will use its reasonable efforts
to achieve a mean time to repair of (*) hours or less for all outages at
the Interconnection Point(s) set forth on Schedule 1. The parties will
cooperate with each other in each party's efforts under this paragraph 4.b.
(iii) Each of the parties will develop scheduled maintenance
procedures that provide for notification by one party to the other of all
scheduled maintenance that could cause end-to-end connectivity loss for any user
of more than (*). Each party agrees to give the other (*) advance notice for
scheduled maintenance that is expected to result in (*) or more of end-to-end
connectivity loss.
d. Each party agrees to maintain a fully staffed network operations
center ("NOC") that operates on a 24 hour/day, 7 days/week schedule.
(i) Each party will, at its own expense and on a
reasonable efforts basis, provide Network Operations Center ("NOC") support in
cooperation with the other so as to maintain the smooth operation of the
internetwork service. The parties shall develop operational procedures for the
interworking of their respective Internet Networks, including without
limitation inter-NOC problem management information exchanges (e.g., trouble
ticket tracking), and NOC escalation procedures for addressing unscheduled
outages or emergency maintenance.
(ii) Each of the parties will provide the other with
certain limited access to data for the purpose of operational monitoring and
the diagnosis of end-to-end connectivity problems. The determination of the
extent of this limited access to data and definition of this data shall be by
the mutual consent of both parties' engineering organizations. The parties will
use their reasonable efforts to develop procedures to govern the timing and
other terms and conditions upon which this access will be provided.
e. Each of the parties shall use reasonable efforts to secure their
respective Internet Networks and traffic through the Interconnection Points
from unauthorized access, transmission or use; furthermore, the parties shall
cooperate to address security issues and develop security procedures.
6. Customer Relations
Each party will be responsible for communicating with its own customers with
respect to its Internet Network. Each party shall use its reasonable efforts to
notify the other promptly in writing of all trouble reports made to it by
customers of the other party. Each party shall be responsible to screen the
traffic of its own customers not desiring public Internet access from
distribution across the Interconnection Point(s) agreed to hereunder. Each
party will independently establish the charges to its own customers for the
services provided in connection with this Agreement.
7. Nonexclusivity
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This Agreement shall not prohibit or restrain either party's entry into any
separate similar or dissimilar contract or agreement with one or more third
parties.
8. Liability
Neither party shall be liable to the other for any loss or damage arising from:
(i) any failure in or breakdown of any facilities or services hereunder,
whatsoever the cause and however long it shall last; (ii) any interruption of
service, whatsoever the cause and however long it shall last; (iii) such
party's submitting traffic to or accepting traffic from the other party
hereunder, or (iv) any other circumstance relating to this Agreement, except
for breaches of Sections 2(d)(Data Collection) or 16 (Confidentiality).
9. Liability; Consequential Damages
Each party is responsible for assessing its own need for property, casualty and
liability insurance and each shall obtain such insurance as each sees fit. Each
party shall bear the risk of loss and damage with respect to its own equipment
and agrees not to make any claims against the other, or assign any such claims
to third parties, for any property loss or damage.
IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL
INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT,
EVEN IF THAT PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES, AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
10. Authorizations
All undertakings and obligations assumed hereunder by either party are subject
to all applicable existing and future laws, rules and regulations, and are
further subject to the issuance and continuance of all necessary governmental
licenses, waivers, consents, registrations, permissions and approvals.
11. Force Majeure
No failure or omission by either party to carry out or observe any of the terms
and conditions of this agreement shall give rise to any claim against the party
in question or be deemed to be a breach of this Agreement if such failure or
omission arises from any cause reasonably beyond the control of that party (a
"Force Majeure Event"). Each party shall give the other notice in the event it
experiences a failure or delay due to a Force Majeure Event. Upon such notice,
the party affected by the Force Majeure Event may delay performance hereunder
during the pendency of such Force Majeure Event, and shall have no liability for
such delay.
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12. Relationship of Parties
In their performance hereunder the parties are acting as independent
contractors, and nothing contained herein shall be construed to create a
partnership, joint venture or other agency relationship between the parties.
13. Regulatory Approval.
The parties acknowledge that this Agreement, and any or all of the terms
hereof, may become subject to regulatory approval by various local, state or
federal agencies. Should such approval be required from time to time, or at any
time, the parties shall cooperate, to the extent reasonable and lawful, in
providing such information as is necessary to complete any required filing.
14. Notices
All notices between the parties required or permitted hereunder shall be
effective if hand delivered or sent by post or courier, postage or fees paid,
or by facsimile transmission (with receipt confirmed by the receiving machine)
to the facsimile numbers stated below, or electronic mail (with acknowledgement
from the recipient) to the address specified below. All notices shall be
effective when sent.
If to MCI
networkMCI, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
ATTN: Internet Marketing
Facsimile:
------------------
email:
----------------------
with a copy to:
MCI Communications Corporation
0000 00xx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Technology Group, Law and Public Policy
Facsimile:
------------------
email:
---------------------
If to VERIO:
Verio Inc.
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
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Attn: Xxxxx Xxxx
Facsimile: (000) 000-0000
email: xxxxx@xxxxx.xxx
with a copy to:
Verio Inc.
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Legal Department
Facsimile: (000) 000-0000
15. Miscellaneous
If any provision of this agreement is held by an arbitrator or court of
competent jurisdiction to be contrary to law, the remaining provisions of this
Agreement will remain in full force and effect. This Agreement may be modified
only by a written amendment signed by both parties. Nothing contained in this
Agreement shall be deemed to confer any rights in any third party not a
signatory to this Agreement. Neither party shall transfer or assign its rights
or obligations under this Agreement or transfer by way of merger, consolidation,
sale of all or substantially all of its assets without the prior written consent
of the other party which consent shall not be unreasonably withheld; provided,
that either party may transfer its interest herein to any subsidiary or
Affiliate of either party. This Agreement represents the entire understanding
between the parties regarding the subject matter hereof and supersedes all other
prior and contemporaneous agreements, understandings, negotiations and
discussions between the parties with respect to such subject matter. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, U.S.A., without regard to the conflicts principles thereof
16. Confidentiality
a. During the course of performance of this Agreement, each party may
disclose to the other certain business, technology, research, customer and other
business information which the disclosing party treats as confidential
information ("Confidential Information"). Each party shall maintain the other
party's Confidential Information in confidence, shall protect it with the same
degree of protection which it uses to protect its own Confidential Information,
shall not disclose it to any third party, and shall use it for the sole purpose
of performing under this Agreement. "Confidential Information" shall not include
any information which (i) is disclosed with written permission of the other
party, (ii) becomes a matter of public knowledge through no action or inaction
of the receiving party; (iii) is disclosed by the disclosing party to a third
party without a duty of confidentiality; (iv) is rightfully received by the
receiving parry from a third party without a duty of confidentiality; (v) was
known to the receiving party before its first receipt from the disclosing party;
or (vi) is independently developed by the receiving party without use of
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the other party's Confidential Information or by employees or other agents of
the receiving party who have not been exposed to such Confidential Information.
After any termination of this Agreement, upon written request, each party shall
promptly discontinue the use of, and return within thirty (30) days all
originals and copies of, any requested Confidential Information that has been
fixed in any tangible means of expression.
b. In the event that the receiving party is requested or required
(pursuant to any governmental rule, regulation, or form or through requests for
information or documents by any Governmental Authority in connection with legal
proceedings, civil investigations, or other similar legal processes) to
disclose any Confidential Information of the disclosing party, the receiving
party shall provide the disclosing party with prompt written notice of such
request or requirement so that the disclosing party may seek a protective order
or other appropriate remedy or waive compliance with the provisions of this
Agreement. If, in the absence of a protective order or other remedy or the
receipt of a waiver by the disclosing party, the receiving party is nonetheless
legally compelled to disclose such Confidential Information, it may, without
liability hereunder, disclose only that portion of the Confidential Information
which it is legally compelled to disclose.
c. Section 16 shall also apply to the contents of this Agreement;
provided, however, that the terms of this Agreement may be disclosed (i) as
required by applicable law, (ii) in connection with a court order or subpoena
or (iii) pursuant to press releases jointly prepared and approved by the
parties; further provided, that the existence (but not the terms) of this
Agreement may be disclosed in connection with a merger, acquisition or proposed
merger or acquisition or the like.
d. Each party agrees to notify the other party in the event of any breach
of its security under conditions in which it would appear that Confidential
Information was prejudiced or exposed to loss or unauthorized use. Each party
shall, upon request of the disclosing party, take all other steps reasonably
necessary to recover any compromised Confidential Information disclosed
hereunder. The cost of taking such steps shall be borne solely by the receiving
party.
e. Each party acknowledges that any breach of any of its obligations
under this Section 16 is likely to cause or threaten irreparable harm to the
other party, and accordingly, each party agrees that in such event the
disclosing party shall be entitled to equitable relief to protect its
interests, including but not limited to preliminary and permanent injunctive
relief, as well as money damages.
f. Except after consultation with the other party, neither party nor its
officers, directors, employees, agents or advisors shall, publicize, advertise,
announce or describe to any Governmental Authority or other Person, the terms
of this Agreement, the Parties hereto or the transactions contemplated hereby,
except in accordance with this Agreement or as required by applicable law.
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g. Notwithstanding the foregoing, the parties acknowledge that they
intend to disclose the technical objectives and certain technical terms and
conditions contemplated herein to the public, in a form and manner and at a
time or times to be mutually agreed by the parties.
17. Disputes. Any dispute arising out of or related to this Agreement,
which cannot be resolved by negotiation, shall be settled by binding
arbitration in accordance with the J.A.M.S/ENDISPUTE Arbitration Rules and
Procedures ("Endispute Rules"), as amended by this Agreement. The costs of
arbitration, including the fees and expenses of the arbitrator, shall be shared
equally by the parties unless the arbitration award provides otherwise. Each
party shall bear the cost of preparing and presenting its case. The parties
agree that this provision and the Arbitrator's authority to grant relief shall
be subject to the United States Arbitration Act, 9 U.S.C.1-16 et seq. ("USAA"),
the provisions of this Agreement, and the ABA-AAA Code of Ethics for
Arbitrators in Commercial Disputes. In no event shall the arbitrator have the
authority to make any award that provides for punitive or exemplary damages.
The Arbitrator's decision shall follow the plain meaning of the relevant
documents, and shall be final and binding. The award may be confirmed and
enforced in any court of competent jurisdiction. All post-award proceedings
shall be governed by the USAA.
IN WITNESS WHEREOF, the parties have caused their respective authorized
representatives to sign this Agreement on their behalf, effective as of the
date first written above.
MCI Telecommunications Corporation VERIO INC.
By: /s/ XXXXX X. XXXXXXXX By: /s/ XXXXX XXXXXXXX
-------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx XxXxxxxx
------------------------------ ------------------------------
Title: Vice President Title: Chief Technical Officer
----------------------------- -----------------------------
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THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
MCI/Verio Confidential
(***)
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
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Annex I
(***)
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THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
[MCI Telecommunications Corporation Letterhead]
July 3, 1997
Xx. Xxxxx XxXxxxxx
Chief Technical Officer
Verio
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Dear Xx. XxXxxxxx:
As you know, MCI and Verio entered into a Domestic Public Interconnection
Agreement on June 12, 1997 (the "Agreement"). As we have discussed, MCI and
Verio wish to amend the Agreement as follows:
(***)
(***)
As modified by this letter. the Agreement shall remain in full force and
effect. If you agree with the foregoing modification, please sign in the space
below and return to me.
Sincerely,
/s/ XXXXXX X. XXXX
Xxxxxx X. Xxxx
Senior Vice President
ACKNOWLEDGED AND ACCEPTED:
/s/ XXXXX XXXXXXXX
-------------------------------
Signature
Xxxxx XxXxxxxx
-------------------------------
Name (Printed)
CTO
-------------------------------
Title
8/7/97
-------------------------------
Date
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THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
[MCI TELECOMMUNICATIONS CORPORATION LETTERHEAD]
AMENDMENT TO MCI (US) DOMESTIC PUBLIC INTERCONNECTION AGREEMENT
DATED AS OF DECEMBER 23, 1997
BACKGROUND
The parties entered into the MCI Domestic (US) Public Interconnection Agreement
(the "Agreement") on June 12, 1997. The parties wish to amend the Agreement as
follows:
(***)
(***)
As modified by this Amendment, the Agreement shall remain in full force and
effect. This Amendment may be signed in counterparts, each of which shall be
considered part of the same whole.
IN WITNESS WHEREOF, the parties have caused their respective authorized
representatives to sign this amendment on their behalf, effective as of
December 23, 1997.
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VERIO, INC.
/s/ Xxxxx XxXxxxxx
----------------------------------
Signature
Xxxxx XxXxxxxx
----------------------------------
Name (Printed)
CTO
----------------------------------
Title
1/12/98
----------------------------------
Date
MCI TELECOMMUNICATIONS CORPORATION
/s/ Xxxxxx X. Xxxx
----------------------------------
Signature
----------------------------------
Xxxxxx X. Xxxx
Senior Vice President
1/15/98
----------------------------------
Date
