Exhibit 10.4
Form SB-2
Skypath Networks, Inc.
[GRAPHIC OMITTED]
WHOLESALE SERVICES AGREEMENT
BETWEEN
CHOICE ONE COMMUNICATIONS, INC.
AND
Skypath
July 12, 2002
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Table of Contents
ARTICLE
1. Definitions 2. Service
3. Special Equipment Requirements
4. Billing and Payment
5. Forecasts
6. Maintenance and Repair of Service
7. Equipment and Installation
8. Warranties and Network Standards
9. Indemnification
10. Default
11. Limitation of Liability
12. Credit Allowances for Interruptions of Services
13. Confidential Information
14. Term and Renewal Options
15. Termination for Convenience
16. Effect of Termination
17. Force Majeure
18. Impositions
19. Regulations
20. Miscellaneous
21. Assignability
22. Notices
23. Dispute Resolution
24. Acceptable Use and Security Policy
EXHIBITS
Exhibit A: Pricing
Exhibit B: Service Order Forms, Procedures and Intervals
Exhibit C: Choice One Regional Switching Centers
Exhibit D: Inside Wire Specifications
Exhibit E: Demand Forecast
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THIS AGREEMENT is made and entered into this ________ day of
______________________, 2001 by and between Skypath Inc., a Delaware corporation
(hereinafter referred to as "Skypath,Inc"), whose principal place of business is
at and Choice One Communications, Inc., a Delaware corporation (hereinafter
referred to as "Choice One"), whose principal place of business is at 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000. Skypath,Inc and Choice
One are individually referred to as "Party" and collectively referred to herein
as "Parties."
WITNESSETH:
WHEREAS, Choice One owns and operates telecommunications facilities and is
in the business of providing dedicated transport services; and
WHEREAS, Choice One desires to provide digital subscriber link ("DSL") and
Internet access services to Skypath,Inc on Choice One facilities pursuant to
certain terms and conditions set forth in this Agreement; and
WHEREAS, Skypath,Inc desires to have Choice One provide such
telecommunications services to Skypath,Inc for Skypath,Inc's resale to
Skypath,Inc's End-Users; and
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, the Parties hereby mutually agree as follows:
ARTICLE I - DEFINITIONS
The terms used in this Agreement shall have their normal or common meaning,
except that the following terms shall have the following meanings for the
purpose of this Agreement:
(a) Agreement. "Agreement" shall mean this Wholesale Services Agreement,
including the attached schedules, appendices and exhibits.
(b) Circuit. "Circuit" shall mean the individual telecommunications facility
included as part of the DSL Service. Unless otherwise specified, the term
"circuit" shall refer to the facility connecting the end-user demarcation point
with the Choice One End-Office.
(c) MVL. "MVL" shall refer to Multiple Virtual Line, the DSL technology
developed by Paradyne and used with the Paradyne 6310 DSL modem. With MVL DSL,
the upstream speed is equal to the downstream speed.
(d) Demarc. "Demarc" shall mean the demarcation point or the point of
interconnection between telephone company communications facilities and terminal
equipment, protective apparatus or wiring at the Skypath,Inc's or an End-User's
premises.
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(e) DSLAM. "DSLAM" shall refer to a Digital Subscriber Line Access Multiplexer,
the equipment owned by Choice One and located in the Choice One End Offices
which enables DSL Service by making use of the additional available bandwidth of
a copper line.
(f) End-Office. "End-Office" shall refer to the ILEC central office facility,
serving the End-User, in which Choice One has co-located DSLAM equipment.
(g) End-User. "End-User" shall mean a user to whom Skypath,Inc will provide
telecommunications services utilizing, in part, the Services provided by Choice
One to Skypath,Inc under this Agreement.
(h) FOC. "FOC" shall mean Firm Order Confirmation. This is the form provided by
the ILEC indicating the date when ordered circuits will be installed.
(i) ILEC. "ILEC" shall mean the Incumbent Local Exchange Carrier, such as Bell
Atlantic or Frontier Telephone of Rochester.
(j) ISP. "ISP" shall refer to an Internet Service Provider, i.e., a company that
provides access to the Internet.
(k) Network. "Network" shall mean the telecommunications network of one of the
Parties, as the context of the provision requires or as contemplated under this
Agreement.
(l) Planned Service Outage. "Planned Service Outage" shall mean any Service
Outage caused by scheduled maintenance or planned enhancements or upgrades to
the Choice One Network.
(m) Point of Termination. "Point of Termination" shall mean the point at which
Choice One's responsibility to provide equipment and Service ends and where
Skypath,Inc's or Skypath,Inc's End-Users' responsibilities begin. The Point of
Termination is identified in the applicable Service Order as the demarcation
panel to which Choice One cross-connects, which panel is located within an
End-User site.
(n) Premises. "Premises" shall mean the address to which Service is provided,
identified as a Point of Termination on the Service Order.
(o) Regional Switching Center. "Regional Switching Center" shall mean the Choice
One facility where the Choice One data switching equipment is located.
(p) Service. "Service" or "DSL Service" shall mean Choice One-provided dedicated
Digital Subscriber Link, as agreed to by Skypath,Inc and Choice One, as further
described in Article 2 and as specifically identified on a Service Order. Unless
otherwise specified, Service shall be defined to include the DSL Circuits and
Internet Service collectively.
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(q) Service Order. "Service Order" shall mean the capacity order for DSL Service
which delineates the type of Service, location served, Point of Termination,
protocols, Circuit term, requested Start of Service Date and other information
specific to the applicable capacity order. The parties agree to utilize Service
Orders in the format set forth in Exhibit B, which shall be the best but not the
only form of Service Order. An order for Service is deemed valid if transmitted
by electronic means or facsimile message, notwithstanding the absence of a
signature by Skypath,Inc's representative.
(r) Service Outage. "Service Outage" shall mean a disruption or degradation of
Service as set forth in Article 12.
(s) Start of Service Date. "Start of Service Date" for Service shall be the
later of: (i) the date the Circuit (for DSL Lines) is installed and is tested as
fully operational by Choice One; and with LOA being advised in writing by Choice
One as such cisrcuit has been installed and tested as fully operational . (ii)
in the event Skypath,Inc notifies Choice One within twenty-four (24) hours after
the Circuit has been installed that the Circuit does not conform to the
specifications required in this Agreement, the date the Circuit fully conforms
to the required specifications.
(t) "Trouble" is defined as a degradation in Service, an interruption in
Service, or the initiation of a trouble ticket by Skypath,Inc with Choice One.
ARTICLE 2 - SERVICE
2.1 Choice One Provided Services. The Services provided to Skypath,Inc under
this Agreement are set forth in the following subsections:
2.1.1 Choice One shall provide Skypath,Inc with DSL Circuits, Internet
bandwidth, and other necessary or associated telecommunications facilities
or equipment to connect Skypath,Inc's End-Users with the Internet.
2.1.2 For each DSL Circuit, Choice One shall place an order with the ILEC for a
copper loop from the Demarc of the End-User to the nearest Choice One End
Office, which will be co-located within the serving wire center of the
ILEC. Choice One will work with the ILEC and Skypath,Inc to coordinate
installation of the line and connect it to the Choice One DSLAM equipment
in the End Office.
2.1.3 Choice One will provide the connectivity between the Choice One End Office
and the Choice One Regional Switching Center over common trunking referred
to as Inter-Office Facilities ("IOF"). Choice One shall be responsible for
ensuring that there are sufficient IOF trunks to accommodate the data
traffic for Skypath,Inc's End-Users, as defined by the traffic forecasts
provided by Skypath,Inc.
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2.1.4 Choice One agrees to offer and, if ordered by Skypath,Inc, provide
Skypath,Inc and, thus, Skypath,Inc's end-users with inside wire services as
part of the installation process for DSL service. The purpose of this
inside wire service is to extend the point of connection for the DSL modem
from the telco demarcation point to an RJ11 jack mounted on a wall in the
end user's location that is remote from the demarcation point. This service
will be provided by Choice One or designated Choice One contractors at a
commercial location as specified in Exhibit D. Charges for this service are
set forth in Exhibit A.
2.1.5 Choice One shall route all of Skypath,Inc's DSL Circuits to the Internet
using IP addresses assigned by Choice One to Skypath,Inc.
2.2 Service Ordering Procedures (Initial, Add, Modify, or Disconnect). Choice
One shall initiate, add, modify, or disconnect DSL Service to Skypath,Inc's
End-Users, in accordance with the following procedures, and as further
delineated on Exhibit B attached hereto, which may be modified by Choice
One from time to time, and the terms and conditions incorporated hereby:
(a) Skypath,Inc shall order DSL Circuits by submitting a DSL circuit order
to Choice One using the Wholesale DSL Line Order Form attached to
Exhibit B which Choice One may modify from time to time. Until such
time as Choice One makes an electronic order system available to
Skypath,Inc, these orders shall be submitted via fax or e-mail of the
form to a contact point designated by Choice One. If a standard
electronic format becomes available to transmit Service Orders from
Skypath,Inc to Choice One, this vehicle will be the preferred method
of order submission, and Skypath,Inc will make best efforts to submit
orders in this manner.
(b) For each order, Skypath,Inc shall be responsible to determine the
estimated wire distance from the End-User's location to the nearest
DSL-ready Choice One End Office using the on-line mapping system
provided by Choice One.
(c) Choice One shall order a copper loop to the End-User's Demarc. If an
End-User is not within the loop distance limitation for DSL service,
as defined by the ILEC (the Verizon limit is 18,000 feet) from a
Choice One End Office, special line conditioning or construction costs
may apply. Choice One will notify Skypath,Inc in writing if these
special non-recurring charges will apply. These special costs shall be
the responsibility of Skypath,Inc. If these additional non-recurring
charges apply and Skypath,Inc elects to pay the additional
non-recurring costs to have a copper loop greater than 18,000 feet
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from the Choice One End-Office, then Choice One will pass the charges
through to Skypath,Inc on a monthly invoice.
(d)
(e) Upon receipt from the ILEC, Choice One will notify Skypath,Inc of the
qualification status of the Service Order and scheduled delivery date.
Skypath,Inc will arrange to have the DSL modem delivered to the
End-User's location either directly or through a third party
contractor. If the ILEC notifies Choice One that the line is not
qualified for conditioning, the Service Order will be returned to
Skypath,Inc.
(f) Choice One will assign at least one static IP address per DSL line and
communicate these assignments back to Skypath,Inc prior to delivery of
the DSL circuit. Up to four additional IP addresses will be provided
as needed upon request at no additional cost. For requests of more
than five total IP addresses per line, Skypath,Inc must provide Choice
One with accompanying justification.
(g) Upon delivery of the Circuit, Choice One will test the ordered
bandwidth and maximum available bandwidth of the Circuit between the
DSL modem and the DSLAM once the DSL modem is installed at the
End-User premises. If the ordered bandwidth cannot be achieved, the
Circuit will be set at the maximum speed on the price schedule in
Exhibit A which can be reached. Provided that speed is no lower than
the "minimum acceptable speed" specified on the order the monthly
recurring charge for the DSL Circuit will be based upon this lower
speed. If the maximum available speed is less than the "minimum
acceptable speed" specified in the Service Order, Skypath,Inc will
also have the option of declining that circuit with no termination
charges.
(h) Choice One will program the Choice One router/switch to connect each
of Skypath,Inc's DSL Circuits with the Internet. The DSL Circuit shall
be considered installed when the Circuit is tested successfully from
the End-User's demarcation point to the Internet.
(i) Billing for each DSL Circuit will commence with the Start of Service
Date.
2.3 Scope Of Service
(a) The scope of this Agreement is currently limited to Service within the
markets served by Choice One, as listed on Exhibit C attached hereto
and as modified from time-to-time by Choice One.
(b) The pricing and terms set forth in this Agreement apply only to
Service available from DSL-ready Choice One End Offices served by
Choice One IOF trunks. Any special network configurations or
extensions to provide DSL service to locations not serviceable from a
DSL-ready Choice One End Office shall be governed by additional
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pricing, terms and conditions mutually agreed to by the parties and
set forth in an Amendment to this Agreement.
(c) Due to varying costs associated with different tariffs and
interconnection agreements, DSL costs may not be the same across all
markets. Pricing for all DSL lines is outlined in Exhibit A.
(d) Skypath,Inc may elect to transition to its own Internet bandwidth
connection with its own IP addresses. If this option is chosen, the
line pricing will be adjusted and the connectivity will be governed by
additional terms and conditions mutually agreed to by the Parties and
set forth in an Amendment to this Agreement. Choice One will work
cooperatively with Skypath,Inc to ensure a smooth transition to their
service. Additional non-recurring charges for the transition will
apply.
(e) Services provided under this Agreement do not include e-mail, news
services, Domain Name System (DNS) transfer or registration, or
end-user technical support. These services shall be the responsibility
of Skypath,Inc.
2.4 Skypath,Inc Resale Of Services
A. Choice One understands that LOA will be reselling to its end users the
services provided here under upon such terms and conditions as LOA
deems fit and proper in conformance with this agreement. LOA will not
use the Choice One name, logo or trademark in any advertising,
marketing materials, sales literature or written communications to
end-users or prospective end users without the express written
permission of Choice One, which will not be unreasonably witheld.
B. Choice One agrees that the end user is a customer of LOA not a
customer of Choice One.
C. Choice One will ensure that no information obtained through this
relationship will be shared within Choice One for the purpose of
soliciting Skypath,Inc's End-Users, unless otherwise agreed to in
writing by the Parties.
D. In the event of termination of this Agreement due default for failure
to meet payment obligations set forth in Article 4, Choice One shall
have the right to directly solicit Skypath,Inc's end-users upon 15
days prior written notification.
ARTICLE 3 - SPECIAL EQUIPMENT REQUIREMENTS
Any special interface equipment or facilities necessary to achieve
compatibility, if required because of End-User equipment between
telecommunications equipment of Choice One and facilities of the EndUser, shall
be at Skypath,Inc's expense unless otherwise agreed. Choice One shall not be
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required to provide any such equipment. Such equipment (collectively referred
herein as "CPE") shall include, but not be limited to, the DSL modem, End-User
router, and End-User's LAN bridge. Skypath,Inc, or their third party contractor
shall be responsible for any work or cost associated with CPE installation or
CPE programming.
ARTICLE 4 - BILLING AND PAYMENT
4.1 As compensation for the Services provided by Choice One, Skypath,Inc shall
pay the recurring and non-recurring rates and charges set forth herein in
Exhibit A attached hereto and/or in the Service Order. Skypath,Xxx agrees
to pay the appropriate recurring and non-recurring charges for the
Services, at the address provided for herein, within thirty (30) days after
the invoice date. The Parties shall provide one another with reasonably
requested information for bill validation. Choice One shall invoice for all
Services rendered within one hundred fifty (150) days of the scheduled
billing date or shall forfeit the right to collect such charges. Choice One
shall adjust any such charges from the Skypath,Inc's service charges.
4.2 Except for amounts disputed in the manner provided below, interest of one
and one-half percent (1.5%) per month, may be charged on any balance not
paid within thirty (30) days after the invoice date. If this interest rate
exceeds the maximum rate allowable by law, then the interest chargeable
shall be equal to the maximum rate allowable by law.
4.3 In the event Skypath,Inc disputes any billing by Choice One, Skypath,Inc
shall notify Choice One in writing, providing the billing identification,
Circuit number, any trouble ticket number and an explanation for the
dispute, and shall nevertheless pay all charges not disputed in this manner
within the thirty (30) day period specified above. No charges may be
disputed more than thirty (30) days after the date such charges are
invoiced. Payment shall not prejudice Skypath,Inc's right to dispute
charges, so long as they are disputed in the manner and within the time
specified in this section. The parties will cooperate in good faith to
resolve any such disputes within sixty (60) days after the dispute is
submitted to Choice One. If the dispute is not resolved during this period,
either party may seek alternative dispute resolution in accordance with
Article 23.
4.4 If Skypath,Inc does not pay undisputed invoiced charges within the thirty
(30) day period specified above, Choice One may terminate Service and/or
terminate the Agreement unless Skypath,Inc pays such charges within
thirteen (13) days after a written termination notice is mailed to the
Skypath,Inc postage pre-paid by Choice One. In addition, if Skypath,Inc
does not pay undisputed invoiced charges within the thirty (30) day period
specified above, Choice One may suspend the processing of any new or change
orders until payment is received.
4.5 If a disputed amount is determined to be a legitimate charge, interest of
one and one-half percent (1.5%) monthly may be charged on the unpaid
balance from the original due date. If this interest rate exceeds the
maximum rate allowable by law, then the interest chargeable shall be equal
to the maximum rate allowed by law.
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4.6 Monthly recurring charges shall be invoiced by Choice One on a monthly
basis in advance and non-recurring charges shall be invoiced in arrears.
When Service is initiated on other than the first day of the month or
terminates on other than the last day of the month, the charge for that
month shall be determined by prorating the monthly payment by the number of
days during which Service was provided.
4.7 Security clause:
Customer shall initially provide Choice One security in the form of a cash
deposit or an irrevocable letter of credit from a financial institution and in a
format acceptable to Choice One in the amount of $0 (hereinafter "Security
Fund"). After Customer has achieved a monthly billing level of $3,000 or
greater, or if Customer does not pay undisputed invoice charges in a timely
fashion as outlined in paragraph 4.1, Choice One shall have the right to request
and receive an increase in the value of the Security Fund to ensure the value
continues at not less than two times the total of Customer's average monthly
charges, plus any amount that is in dispute. Unless provided otherwise by
federal or state laws, rules or regulations, Choice One is not obligated to
begin accepting orders or providing Service, or to continue or increase Service,
until the required Security Fund is paid. Choice One shall have the right to
withdraw payment from the Security Fund by reduction of the cash deposit or by
drawing upon the irrevocable letter of credit in the case of any default
involving non-payment of undisputed amounts owed by Customer to Choice One. Such
withdrawal from the Security Fund shall not be considered a cure of the default
until Customer fully restores the Security Fund to the agreed amount.
4.8 No payments due hereunder are contingent on payments due to either party
from its own End-Users. Each party is solely responsible for billing and
collection from its End-Users.
4.9 Skypath,Inc is solely response for all Service usage. Claims of fraudulent
usage, other than frauds committed by Choice One or Choice One's employees
or agents, shall not constitute a valid basis for dispute of Choice One's
invoices.
4.10 Beginning with the fourth month following the execution of this Agreement,
Skypath,Inc shall be liable for a minimum monthly billing target as set
forth in the following schedule:
-------------------------------------------
Months Monthly Billing Target
-------------------------------------------
1-6 $0
-------------------------------------------
7-11 $2,250
-------------------------------------------
12-15 $4,500
-------------------------------------------
16-18 $6,750
-------------------------------------------
19-22 $9,000
-------------------------------------------
23-24 $11,250
-------------------------------------------
25-27 $13,500
-------------------------------------------
28-30 $15,750
-------------------------------------------
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After the Minimum Monthly Billing Target goes into effect, if Skypath,Inc's
total net charges for the Services are less than the Minimum Monthly
Billing Target in any month, Skypath,Inc shall pay a shortfall surcharge
based upon the percentage of the Minimum Charge actually achieved according
to the following schedule:
----------------------------------------------------------------
Percentage of Minimum Monthly Shortfall Surcharge as
Billing Target Percentage of Actual Monthly
Billing
----------------------------------------------------------------
91-99% 0%
----------------------------------------------------------------
75-90% 10%
----------------------------------------------------------------
51-75% 20%
----------------------------------------------------------------
25-50% 25%
----------------------------------------------------------------
0-24% 30%
----------------------------------------------------------------
The shortfall surcharge will be charged as follows:
1) Actual Monthly Billing / Minimum Monthly Billing Target = Percentage
of Monthly Minimum billing Target.
2) Use the table above to determine the Shortfall Surcharge based on the
percentage calculated in paragraph 1.
3) Actual Surcharge = Actual Monthly Billing * Shortfall Surcharge from
table above.
In calculating Skypath,Inc's total net charges, Choice One agrees that all
usage charges, recurring, non-recurring, ancillary fees and like charges,
with the exception of applicable taxes, government surcharges, and passed
loop conditioning charges, invoiced to Skypath,Inc shall be included for
determination of compliance with the Minimum Charge. Choice One shall
invoice Skypath,Inc for the shortfall surcharge if the aggregate usage by
Skypath,Inc in any month does not attain the Minimum Charge appropriate for
that month.
4.11 If Skypath,Inc fails to pay invoiced shortfall within thirty (30) days from
the invoice date, Choice One shall be entitled to all recourse set forth in
Article 4 of this Agreement. Skypath,Inc agrees that invoice shortfalls
made pursuant to this Section shall not be deemed a penalty, consequential
or indirect damages, and any such argument to that effect is expressly
waived.
4.12 Skypath,Xxx agrees to pay all costs of collection, including reasonable
attorney's fees, incurred by Choice One in the collection of any and all
unpaid amounts, including, but not limited to, unmet Monthly Billing
Commitments and past due amounts, early termination penalties and breach of
contract actions. A fee may be charged for each check returned for
insufficient funds.
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ARTICLE 5- FORECASTS
5.1 Upon execution of this Agreement, and by the fifteenth of each month
thereafter, Skypath,Inc shall provide to Choice One a 90-day forecast of
its predicted traffic and circuit needs utilizing the format set forth in
Exhibit E.
5.2 Choice One shall take reasonable efforts to provision for this forecast,
but in no case shall it have any liability for any failure in provisioning
or inadequacy of available circuits should Skypath,Inc's actual traffic
exceed its forecast by 15%. In addition, if the Skypath,Inc's business
exceeds the most recent forecast by 15 % or if no forecast has been
provided, Choice One has no obligation to accept or process orders from
Skypath,Inc until Choice One can supplement the network capacity to handle
the unexpected increase in data traffic from Skypath,Inc.
ARTICLE 6 - MAINTENANCE AND REPAIR OF SERVICE
6.1 Performance Monitoring and Reporting.
(a) Choice One will be responsible for performing surveillance on its
major systems to include DSLAM's, digital access and cross connect
systems , and multiplexing equipment, routers, switches, and
transmission equipment.
(b) Choice One will make best efforts to localize faults to determine if
the fault is occurring with the End-Users' equipment, the DSL Circuit,
the Choice One Network, or the Skypath,Inc's equipment or service.
6.2 Maintenance
(a) Any maintenance required on the Choice One's system or network shall
be performed by Choice One or its designated contractors at no
additional cost to Skypath,Inc if the failure is due to the failure of
facilities or acts of omission on the part of the employees of Choice
One.
(b) Choice One shall be responsible for all maintenance functions on its
system and facilities from the End-User demarcation point to the
Internet. Choice One scheduled maintenance which is service-affecting
will be performed after at least three (3) days notice to Skypath,Inc,
except in the case of emergencies, in which case as much notice as is
practicable will be given.
(c) Choice One's weekly scheduled maintenance 4-hour window is Wednesday
12 midnight to Thursday 4 am. Outside of the weekly scheduled
maintenance window, any preventative maintenance or service function
performed by Choice One on the Choice One's Network which will or
could affect service provided by Skypath,Inc to its End-Users will be
coordinated and scheduled through Skypath,Inc surveillance system
operations center whenever possible. Skypath,Inc shall provide and
update a list of Skypath,Inc contacts for maintenance and escalation
purposes.
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(d) Choice One is not responsible for the maintenance or monitoring of
End-Users' or Skypath,Inc's equipment.
6.3 Trouble Reporting and Repair
(a) Choice One shall cause to be maintained a twenty-four (24) hours a
day, seven (7) days a week point-of-contact for Skypath,Inc to report
to Choice One system trouble reports or faults.
(b) Prior to reporting a trouble to Choice One, Skypath,Inc will make best
efforts to ensure that the trouble is not resulting from a problem
with the End-User's equipment or with the Skypath,Inc's equipment or
service.
(c) Choice One will investigate the trouble and make best efforts to
localize the trouble. If the source of the trouble is believed to be
with the ILEC, Choice One will open a trouble ticket with the ILEC and
follow-up with the ILEC until the trouble is closed.
(d) Choice One shall make best efforts to repair troubles and restore
service as quickly as possible. Credit for interruption of service
will be provided to Skypath,Inc as set forth in Article 12 herein.
(e) Any repair on the Choice One system or ILEC facilities shall be
performed at no additional cost to Skypath,Inc. If a failure is
determined to be due to a failure of Skypath,Inc's equipment or
service or the End-User's equipment, Choice One reserves the right to
charge Skypath,Inc for any dispatched labor by Choice One or its
sub-contractors at the rates set forth in Exhibit A, as well as pass
through any dispatch costs charged to Choice One by the ILEC.
Notwithstanding anything in the Agreement to the contrary, dispatch
charges may be increased on thirty (30) days' notice in accordance
with changes to the applicable Choice One tariffs specifying such
charges.
ARTICLE 7 - EQUIPMENT AND INSTALLATION
7.1 Except with respect to equipment and facilities required by Skypath,Inc
under Article 3 of this Agreement, i.e. any and all End-User premise
equipment, Choice One shall have responsibility to provide, install,
maintain, repair, operate and control the telecommunications equipment
necessary for its Services and shall pay the cost of purchasing and
installing such telecommunications equipment.
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7.2 Choice One will provide telecommunications equipment and Service to the
Point of Termination. Choice One shall be responsible for the procurement
and maintenance of all licenses required for the installation of Choice
One's equipment. Skypath,Inc provided equipment space and conduit, if
applicable, will be specified in separate and unique collocation agreements
and all associated power and space charges shall be at Skypath,Inc's
expense.
7.3 Notwithstanding any provision of this Agreement to the contrary, if
Skypath,Inc provides its own telecommunications equipment, Choice One shall
have no obligation to install, maintain or repair such Skypath,Inc
equipment.
7.4 Neither Party shall adjust, align, or attempt to repair, the other Party's
telecommunications equipment, except as expressly authorized in advance in
writing by the other Party. Neither Party's telecommunications equipment
shall be removed or relocated by the other Party.
7.5 Choice One shall be liable for any loss or damage to Skypath,Inc's and/or
End-User's telecommunications equipment arising from Choice One's
negligence, intentional act or omission to act, unauthorized maintenance or
other cause, including theft, within the reasonable control of Choice One,
its employees or agents. In the event of any loss or damage to the
telecommunications equipment for which Choice One is liable, Choice One
shall reimburse Skypath,Inc and/or End-User for the reasonable cost of
repair or replacement thereof within thirty (30) days after receipt and
subsequent investigation by Choice One of a written request for such
reimbursement. Skypath,Inc shall be liable for any loss or damage to Choice
One's telecommunications equipment arising from the negligence, intentional
act or omission to act, or unauthorized maintenance or other cause,
including theft, of Skypath,Inc or their employees or agents. In the event
of any loss or damage to the telecommunications equipment for which
Skypath,Inc is liable, Skypath,Inc shall reimburse Choice One for the
reasonable cost of repair or replacement thereof within thirty (30) days
after receipt by Skypath,Inc of a written request for such reimbursement.
ARTICLE 8 - WARRANTIES AND NETWORK STANDARDS
8.1 Choice One represents and warrants to Skypath,Inc that Choice One or its
subsidiaries has the right to provide Skypath,Inc the Service specified
herein, and that Choice One is an entity, duly organized, validly existing
and in good standing under the laws of its origin, with all requisite power
to enter into and perform its obligations under this Agreement in
accordance with its terms. The Skypath,Inc represents and warrants that it
is an entity, duly organized, validly existing and in good standing under
the laws of its origin, with all requisite power to enter into and perform
its obligations under this Agreement in accordance with its terms.
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8.2 Choice One represents and warrants to Skypath,Inc that all Service rendered
by it hereunder shall be designed, produced, installed, furnished and in
all respects provided and maintained in conformance and material compliance
with applicable federal, state and local laws, administrative and
regulatory requirements and any other authorities having jurisdiction over
the subject matter of this Agreement and it shall be responsible for
applying for, obtaining and maintaining all registrations and
certifications which may be required by such authorities with respect to
the Service.
8.3 Choice One represents and warrants to Skypath,Inc that it shall at all
times, comply with all relevant provisions of applicable ANSI standards.
The Parties agree that if any Party, in its sole discretion, determines
that an emergency action is necessary to protect its own Network the Party
may block any transmission path over its Network by the other Party where
transmissions do not meet the above requirements of such ANSI Standards
documents. The Parties further agree that none of their respective
obligations to one another under this Agreement shall be affected by any
such blockage except that the Party affected by such blockage shall be
relieved of all obligations to make payments for charges relating to such
Service which is so blocked and that no Party shall have any obligation to
the other Party for any claim, judgment or liability resulting from such
blockage.
8.4 The warranties and remedies set forth in this Agreement constitute the only
warranties and remedies with respect to this Agreement. SUCH WARRANTIES ARE
IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
ARTICLE 9 - INDEMNIFICATION
9.1 Skypath,Inc shall indemnify, defend and hold harmless Choice One and its
wholly-owned subsidiary, employees, directors, officers, consultants,
and/or subcontractors from and against all claims, demands, actions, causes
of actions, damages, liabilities, losses, and expenses (including
reasonable attorney's fees) incurred by any such indemnitee for any loss or
damage suffered by a third party as a result of:
(i) claims for libel, slander, infringement of copyright or unauthorized
use of trademark, trade name or service mark arising out of use of the
Service;
(ii) claims for patent infringement arising from combining or connection of
facilities to use Choice One's Network;
(iii)claims for damage to property and/or personal injuries (including
death) arising out of the negligence or willful act or omission of
Skypath,Inc; and
(iv) fraudulent or unlawful usage of the Services by Skypath,Inc or its
End-Users.
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9.2 Choice One shall indemnify defend and hold harmless the Skypath,Inc and its
parent company, affiliates, employees, directors, officers, and agents from
and against all claims, demands, actions, causes of actions, damages,
liabilities, losses, and expenses (including reasonable attorney's fees)
incurred by any such indemnitee for any loss or damage suffered by a third
party as a result of:
(i) claims for patent or copyright infringement relating to the equipment
or software used by Choice One to provide the Services hereunder; and
(ii) claims for damages to property and/or personal injuries (including
death) arising out of the negligence or willful act or omission of the
Choice One.
ARTICLE 10 - DEFAULT
10.1 A party shall be deemed in default of this Agreement upon the occurrence of
anyone or more of the following events:
(i) The filing of bankruptcy or making a general assignment for the
benefit of creditors;
(ii) a Party violates any applicable laws, statutes, ordinances, codes or
other legal requirements with respect to the Service and such
violation(s) are not remedied within thirty (30) days after written
notice thereof; or
(iii)a Party fails to perform its obligations under this Agreement and
such nonperformance is not remedied within thirty (30) days after
notice thereof, except for payment defaults, for which no cure periods
in addition to those described in Section 4.4 herein shall be
available.
10.2 In addition to all remedies available at law or in equity, the
non-defaulting Party hereunder may terminate this Agreement without
incurring any termination liability upon the occurrence of a default,
subject to applicable notice and cure periods.
ARTICLE 11 - LIMITATION OF LIABILITY
Neither Party shall be liable to the other Party for any indirect,
consequential, special, incidental, reliance, or punitive damages of any kind or
nature whatsoever (including but not limited to any lost profits, lost revenues,
lost savings, or harm to business), regardless of the foreseeability thereof.
For purposes of this Agreement, a Party's out-of-pocket costs for damages of the
kinds specified in the preceding sentence which are recovered from such Party by
a third party shall be deemed to be indirect damages to such Party, except to
the extent such damages are a part of claims for which indemnification is due
under Article 9. Each Party hereby releases the other Party, its subsidiaries
and affiliates, and their respective officers, directors, managers, employees,
and agents, from any such claim.
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ARTICLE 12 - CREDIT ALLOWANCES FOR INTERRUPTIONS
OF SERVICES
12.1 In the event that Choice One is unable to restore a portion of the Service
as required hereunder, or in the event of a Service Outage, Skypath,Inc
shall be entitled to a credit for the prorated monthly charges for the
affected circuits for all unplanned Service Outages in excess of
twenty-four (24) hours. Choice One will grant a credit allowance for a
Service Outage calculated as specified below. A Service Outage will be
deemed to have occurred only where the interruption is not the result of
(i) the negligence or acts of Skypath,Inc or its agents; (ii) the failure
or malfunction of non- Choice One equipment or systems; (iii) a Force
Majeure event as set forth in Article 18; or (iv) a Planned Service Outage.
Credits for a Service Outage will be granted only if (a) Skypath,Inc or
End-User, if applicable, affords Choice One full and free access to
Skypath,Inc's premises to make appropriate repairs; and (b) Choice One is
not impeded in its efforts to repair, maintain, or test the equipment by
Skypath,Inc's unreasonable demand to continue use of the Services on an
impaired basis. A Service Outage begins when the Skypath,Inc reports
Services, or a facility or circuit to be interrupted and releases it for
testing and repair. A Service Outage ends when the Services, facility or
circuit is operative. If the Skypath,Inc reports Services or a facility or
Circuit to be inoperative but declines to release it for testing and
repair, it is considered to be impaired, but shall not be deemed a Service
Outage. Skypath,Inc must request a credit allowance for a Service Outage
within thirty (60) days after the Service Outage occurs or any claim for an
allowance is waived. Unless otherwise specifically stated, Service Outages
are not aggregated for purposes of determining the credit allowance.
12.2 For any Service Outage occurring on facilities provided by Choice One,
Choice One will grant to Skypath,Inc the following credits toward future
payments:
(a) If the Service Outage lasts for less than 24 hours, Skypath,Inc shall
receive no credit allowance;
(b) If the Service Outage lasts for at least 24 hours but no longer than
three full 24 hour periods, Skypath,Inc shall receive a credit
allowance equal to 1/30th of the monthly fee for each continuous 24
hour period of interrupted service; and
(c) If the Service Outage lasts for more than three full 24 hour periods,
Skypath,Inc shall receive a credit allowance of 2/30 of the monthly
fee for the interruption of the service for each 24 hour period of the
Service Outage over three full 24 hour periods.
12.3 Choice One's total liability for credits for interrupted service under this
paragraph 12.2 shall not exceed, in any one month, 100% of the Monthly
Recurring Line charges for the effected DSL Circuits.
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ARTICLE 13 - CONFIDENTIAL INFORMATION
During the term of this Agreement, both parties agree not to disclose
Confidential Information (as defined herein) of the other party except to their
employees, attorneys, accountants, or financial institutions on a strict
need-to-know basis, and only after advising them of the contents of this
Paragraph and obtaining such agreement to abide thereby. "Confidential
Information" means all information relating to either party of its affiliates
other than information which: (i) is or becomes generally available to the
public other than as a result of a disclosure by the receiving party or its
representative(s), (ii) was available to the receiving party or its
representative(s) on a non-confidential basis prior to the effective date of
this Agreement, (iii) is independently developed by the receiving party or its
representative(s) without the use of Confidential Information provided by the
other party, or (iv) becomes available to the receiving party of its
representative(s) on a non-confidential basis from a source other than the other
party, provided that such source is not bound by a confidentiality agreement
with, or obligation to, the other party. Except as provided above or as may be
otherwise required by law, a party hereto shall notify the other party prior to
the release of any Confidential Information. Notwithstanding anything herein to
the contrary, the confidentiality provisions shall survive the breach or
termination of this Agreement.
ARTICLE 14 - TERM AND RENEWAL OPTIONS
The term of this Agreement shall commence on the date this Agreement is made and
entered into, and terminate twenty four (24) months following the execution of
this Agreement. The term of the Agreement will automatically be renewed for an
additional 12 month period and for successive 12 month periods thereafter unless
one of the Parties gives written notice at least sixty (60) days prior to the
end of the then current term that the Agreement will not be automatically
renewed; provided, however, that in the event the period of time for a
particular Service or Services to be provided by Choice One to Skypath,Inc
pursuant to the ordering provisions described in Article 2.1 herein extends
beyond the effective date of termination, such Service shall remain in effect
for the agreed upon time of Service, subject to all of the terms and conditions
of this Agreement as if it were still in effect with respect to such Service.
ARTICLE 15 - TERMINATION FOR CONVENIENCE
The first six months of this Agreement shall be considered a Beta period ("Beta
Period"), during which Skypath,Inc or Choice One may terminate this Agreement
without cause with thirty (30) days notice and not be subject to any Termination
Charge.
ARTICLE 16 - EFFECT OF TERMINATION
Upon expiration or termination of this Agreement, Choice One will continue to
maintain all existing Skypath,Inc DSL Circuits and provide Services pursuant to
the terms hereof, provided that Skypath,Inc continues to pay all applicable fees
therefor and complies with any additional terms and conditions requested by
Choice One. Any accrued rights to payment, any remedies and Articles 4,
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6,8,9,11,16, 17 and Exhibit A will survive any expiration or termination of this
Agreement.
ARTICLE 17 - FORCE MAJEURE
In no event shall a Party have any claim or right against the Other Party for
any failure of performance due to causes beyond its reasonable control ("Force
Majeure Event"), including but not limited to: acts of God, fire, flood or other
catastrophes; any law, order regulation, direction, action or request of the
United States Government, or of any other government, including state and local
governments having or claiming jurisdiction over Choice One or of any
department, agency, commission, bureau, corporation, or other instrumentality of
any federal, state, or local government, or of any civil or military authority;
national emergencies; unavailability of materials or rights-of-way;
insurrections; riots, wars; or strikes, lock-outs, work stoppages, or other
labor difficulties. Either Party shall have a right to terminate, without
incurring any termination liability, all or any portion of the affected Services
if a Force Majeure Event continues for sixty (60) days; provided that the Party
seeking to terminate the Agreement under this provision gives notice of such
termination at least thirty (30) days in advance.
ARTICLE 18 - IMPOSITIONS
Each Party shall be fully responsible for the payment of any and all
governmental surcharges and fees and taxes required by law to be paid by that
Party. Skypath,Inc shall provide an adequate exemption certificate for any
Service it requests to be exempt from applicable taxes.
ARTICLE 19 - REGULATIONS
Each Party represents that it is not currently aware of any facts that would
justify a complaint to the Federal Communications Commission or any state
regulatory authority concerning the prices, terms or conditions of the
transactions contemplated by this Agreement. The Parties also agree that in the
event of a decision by a telecommunications regulatory authority at the federal,
state or local level necessitates modifications in this Agreement, the Parties
will negotiate in good faith to modify this Agreement in light of such decision.
ARTICLE 20 - MISCELLANEOUS
20.1 This Agreement does not constitute either Party as the agent or legal
representative of the other Party and does not create a partnership or
joint venture between Skypath,Inc and Choice One. Neither Party shall have
any authority to agree for or bind the other Party in any manner
whatsoever. This Agreement confers no rights of any kind upon any third
party.
20.2 The failure of either Party to give notice of default or to enforce or
insist upon compliance with any of the terms or conditions of this
Agreement shall not be considered the waiver of any other term or condition
of this Agreement.
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20.3 No subsequent agreement among the Parties concerning the Service shall be
effective or binding unless it is made in writing by authorized
representatives of the Parties.
20.4 This Agreement sets forth the entire understanding of the Parties and
supersedes any and all prior agreements, arrangements or understandings
relating to the subject matter hereof.
20.5 If any part of any provision of this Agreement or any other agreement,
document or writing given pursuant to or in connection with this Agreement
shall be invalid or unenforceable under applicable law, said part shall be
ineffective to the extent of such invalidity only, without in any way
affecting the remaining parts of said provision or the remaining provisions
of this Agreement.
20.6 This Agreement for Service is made pursuant to and shall be construed and
enforced in accordance with the laws in force in the State of New York,
excluding its law concerning conflicts of laws. The parties consent to
exclusive personal jurisdiction and venue of New York Federal and/or State
Courts. Any action arising under the Agreement shall be brought in a
Federal or State Court located in Monroe County, New York.
ARTICLE 21 - ASSIGNABILITY
Neither Party may assign this Agreement without the prior written consent of the
other Party, which consent shall not be unreasonably withheld, provided that no
consent shall be required for assignment by Choice One to an entity that either
controls, is controlled by or is under common control with Choice One; provided,
further, however that no consent shall be required for assignments by
Skypath,Inc to an entity that either controls, is controlled by, or is under
common control with Skypath,Inc. Notwithstanding the foregoing, in the event
this Agreement is assigned by Skypath,Inc to any other party, by assignment
operation of law; or to any entity which succeeds to all or substantially all of
such Party's assets whether by merger, sale or otherwise, which party, prior to
the assignment, has an agreement (the "Prior Agreement") with Choice One or its
successor in interest or any of its affiliates for the provision of services,
the services being provided shall continue to be governed by the Prior
Agreement, and the Service provided hereunder shall continue to be governed by
this Agreement, each without effect on the other.
ARTICLE 22 - NOTICES
Notices under this Agreement shall be in writing and delivered by overnight
in-hand delivery, return receipt requested, to the persons whose names and
business addresses appear below and such notice shall be effective on the date
of receipt or refusal thereof by the receiving Party:
If to Skypath,Inc: _______________________________
Attn: General Counsel
_______________________________
_______________________________
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If to Choice One: Choice One Communications
000 Xxxxxxxx Xx. Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: General Manager, Wholesale Services
With a copy to: Choice One Communications
000 Xxxxxxxx Xx. Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: General Counsel
ARTICLE 23 - DISPUTE RESOLUTION
Except for action seeking a temporary restraining order or injunction, or suit
to compel compliance with this dispute resolution process, the Parties agree to
use the dispute resolution procedures set forth in this Article 23 with respect
to any controversy or claim arising out of or relating to this Agreement or its
breach. For a period of forty-five (45) days after notice from either Party, the
Parties shall attempt in good faith to resolve the dispute by direct negotiation
of representatives of the Parties. If the Parties do not resolve the dispute
through negotiation within such forty-five (45) day period, either Party may
proceed with any remedy available.
ARTICLE 24 - ACCEPTABLE USE AND SECURITY POLICIES
Skypath,Inc and its customers shall comply with Choice One's Acceptable Use and
Security Policies (collectively, the "Policy"), which Policy Choice One may
modify at any time. The current, complete Policy, which is made a part of this
Agreement, is available for review at xxxx://xxx.xxxxxxxxxxxx.xxx/xxx.xxxx .
Choice One reserves the right to amend the Policy from time to time, effective
upon posting of the revised Policy at the URL or other notice to Skypath,Inc.
Choice One reserves the right to suspend the service or terminate the Agreement
effective upon notice for a violation of the Policy. Skypath,Xxx agrees to
indemnify and hold harmless Choice One from any losses, damages, costs or
expenses resulting from any third party claim or allegation ("Claim") arising
out of or relating to use of the Service, including any Claim which, if true,
would constitute a violation of the Policy.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first above written.
Skypath,Inc: CHOICE ONE COMMUNICATIONS, INC.:
/s/ /s/
------------------------------ ------------------------------
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EXHIBIT A
PRICING
Part I: Individual DSL Circuits
This cost represents the cost of each end-user line from the End-User
Demarc to the Internet, including the local loop, DSLAM and transport from
the end-office to the Regional Switching Center.
Monthly Recurring Line Charges (with Internet Service)
Business Customers: SDSL
128KB $65
256KB $90
384KB $115
512KB $135
640KB $145
768KB $155
1.0KB $175
Residential Customers: SDSL
128 $55
256 $65
384 $75
512 $85
768 $100
Choice One agrees to consider, in good faith, a request by Customer for
adjustments to the pricing schedule as needed for competitive market
reasons. In addition, every six months from the date of this Agreement,
Customer may review and renegotiate the current pricing based upon
Customer's current volume. Any modification or amendment to the pricing
schedule must be mutually agreeable to both parties, and must be signed by
both parties. Both parties agree that should the parties be unable to agree
upon a modified pricing schedule, such dispute shall not be subject to the
dispute resolution provision of the Agreement nor shall the failure to
agree to a modification be deemed a breach of the Agreement or result in a
termination of the Agreement.
Non-Recurring Charges(per line):
With No Wire Extension Service: $100
With Residential Wire Extension: $140
With Commercial Wire Extension: $190
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Moves, Adds, Changes: $150 per order (with the exception of orders for increased
DSL speed requiring no equipment changes)
End Bill Date
The end bill date ("EBD") for a Circuit shall be no less than thirty (30)
days after Choice One's confirmed receipt of Skypath,Inc's request for
termination, notwithstanding that the Circuit may be terminated prior to the
EBD.
Cancellation Charges.
There will be no cancellation charges or termination liability if the
Circuit is canceled prior to Choice One's commencement of installation
activities for such Circuit. If any Service is canceled after commencement of
installation activities for such Circuit but prior to activation of the Circuit,
Skypath,Inc shall pay one (1) month's recurring charges and the associated
non-recurring charge. If Service for a Circuit is cancelled after activation,
Skypath,Inc shall pay for the monthly recurring charges for that circuit up
until the effective date of disconnect, which will be no less than thirty (30)
days from receipt of a complete and accurate Disconnect Service Order.
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EXHIBIT B
SERVICE ORDER FORMS, PROCEDURES AND INTERVALS
As used in this Exhibit, "shall" or "will" with respect the performance of
Choice One shall mean "use its best efforts to." The intervals identified in
this Exhibit are averages, generally applicable to the Services identified, and
may vary according to capacity constraints.
1. The Wholesale DSL Line Order Form is attached herein as part of this Exhibit:
2. The Order Process Flow for adding new DSL Circuits is as follows:
>> Skypath,Inc will provide Choice One with a completed Wholesale DSL
Line Order Form.
>> Choice One will submit the order to the serving ILEC.
>> Upon receipt of qualification status and FOC from the ILEC (normally
within 3 days), Choice One will forward this information to
Skypath,Inc.
>> Choice One will provide Skypath,Inc with at least one static IP
address per DSL circuit. Up to four additional static IP addresses per
line will be provided to Skypath,Inc upon request with no
justification required and at no additional cost .
>> When ILEC delivers the circuit, Choice One will, connect the circuit
to the DSLAM and coordinate with Skypath,Inc to test the DSL circuit
upon installation of the DSL Modem by Skypath,Inc, End-User or a third
party vendor.
>> Choice One will test the circuit for ordered speed as well as the
maximum speed the circuit can handle.
>> Choice One will notify LOA in writing that the circuit has been
installed and tested and shall advise LOA of the speed.
>> Upon acceptance a start of service date shall be established.
>>
>> Total expected interval: 22 business days
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EXHIBIT C
CHOICE ONE REGIONAL SWITCHING CENTERS
ALBANY
00 Xxxxx Xx , 0xx Xxxxx, Xxxxxx, XX
BUFFALO
000 Xxxx Xx; Xxxx Xxxxx Xxxxx 0xx Xxxxx Xxxxxxx, XX
HARTFORD
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0 Xxxxx, Xxxxxxxx, Xx
MANCHESTER
Xxxxxx Center; 00 Xxxxxxx Xxxxxx, Xxxxx X00X, Xxxxxxxxxx, XX
NEW HAVEN
00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxx Xx
PITTSBURGH
Center City Tower, 000 Xxxxxxxxxx Xx, 0xx Xxxxx, Xxxxxxxxxx, XX
PROVIDENCE
000 Xxxxx Xxxx Xx; 0xx Xxxxx; Xxxxxxxxxx, XX
ROCHESTER
000 Xxxxxxxx Xx, HSBC Building; 2nd Floor; Rochester, NY
SPRINGFIELD
STCC Technology Park, One Federal St, Xxxxxxxx 000-0 , Xxxxxxxxxxx, XX
SYRACUSE
One Lincoln Center; 000 Xxxx Xxxxxxx Xx; 0xx Xxxxx; Xxxxxxxx, XX
WORCESTER
000 Xxxx Xx., Neescom Exchange Building, Worcester, MA
HARRISBURG
000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xx 00000
XXXXXX-XXXXX
0000 Xxxxxxx Xx, Xxxxxxx Xxxxxxxxxx Xxxxxxx, Xxxxxx-Xxxxx, Xx 18702
ALLENTOWN
Iron Run Corporate Center, 0000 Xxxxxxx Xxxxx, Xxxxx 0, Xxxxxxxxx, Xx
00000
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EXHIBIT D
Inside Wire Service Description
To extend the DSL service from the demarcation point to the specified jack
location, Choice One or Choice One's contractor will cross-connect the DSL
connection to an existing available inside wire pair. If no existing inside wire
is available, Choice One or Choice One's contractor will perform a simple wire
extension as set forth below:
Commercial Wire Extension Service: Simple wire extension, jack mount, connection
and test
1.) Choice One will extend the wire up to 200 feet
2.) Choice One will perform a simple demarc extension through drop ceiling
(no conduit or coring required)
3.) Choice One will either fish wire and terminate a jack if it is a
fishable wall or run wire through wire mold from ceiling to jack.
4.) Choice One will connect the jack with the incoming DSL line at the
demarcation point and perform a green light test of the DSL line for
functionality.
Note: Choice One does not offer a non-standard or complex installation. This
would include any installation which involving snaking walls or installation on
an inside wall or additional steps to meet unique or more stringent requirements
of the building owner. Determination of what constitutes a simple or complex
installation shall be made by Choice One's contractor. Such installation may be
available directly from Choice One's contractors through a direct business
relationship with Customer.
Residential Wire Extension Service: Wire extension, jack mount, connection and
test
1.) Choice One will extend wire from the telephone company demarcation
point to any outside wall on the first or second floor of the end
user's residence, or at a sensible location based on accessibility and
determination of Choice One, which may include connecting an existing
inside wire, not currently in use, with the incoming DSL line .
2.) Choice One will then drill into the residence and mount an RJ11 xxxx
from the inside. The jack must be located on the inside of an outer
wall, at or near the point of entry into the home, or at a sensible
location based on accessibility and determination of Choice One.
3.) Choice One will seal the hole with Fire Stop or a similar product.
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4.) Choice One will connect the extended wire to the new DSL line at the
demarc and perform a green light functionality test of the DSL line.
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EXHIBIT E
DEMAND FORECAST
#DSL Circuits
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Choice One End Office Month 1 Month 2 Month 3 Avg Speed
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