EXHIBIT 10.0
* CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. PORTIONS OF 27 PAGES TOTAL ARE SO OMITTED AND FILED
SEPARATELY.
BROADWING CONTRACT NO. 10292
[LOGO]
MASTER SERVICE AGREEMENT
This Agreement for telecommunications services is made as of the date of last
execution below (the "Effective Date") and entered into by and between
BROADWING COMMUNICATIONS SERVICES INC., a Delaware corporation with its
principal place of business at 0000 Xxxxxxx xx Xxxxx Xxx. Xxxxx, Xxxxxx,
Xxxxx 00000-0000 ("Supplier"), and ZEROPLUS, a Delaware corporation with its
principal place of business at 00000 Xxxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000 ("Customer").
WHEREAS, Customer desires to obtain telecommunications services as described
below (the "Service") from Supplier, and Supplier is willing to provide the
Service for the rates attached hereto.
NOW, THEREFORE, Customer and Supplier hereby mutually agree as follows:
CREDIT REQUIREMENTS: See Section 3, ADDITIONAL ASSURANCES, of the Master
Service Agreement Terms & Conditions.
Supplier agrees to provide and Customer agrees to purchase Service(s)
indicated below. A Service Supplement for each Service Type checked is
attached hereto and incorporated herein. All Services ordered under this
Agreement are subject to credit approval.
SERVICE TYPE:
SWITCHED SERVICE: BROADBAND SERVICE:
Xclusive ATM
----------------- ------------------
X Xnet LATA Frame Relay
----------------- ------------------
Virtual Private Line
IXPLUS SERVICE: ------------------
Network Management Services (NNI)
Retail Billing ------------------
-----------------
Back Office INTERNET SERVICE:
-----------------
Dial-Up
PRIVATE LINE SERVICE: ------------------
Digital/Optical Dedicated IP
----------------- ------------------
Minimum number of Ded. IP Circuits
CUSTOMER INTERFACE: ----- (Pricing is based on min.# of Circuits)
X Rack Space & Power X Data Collection & Bandwidth
----------------- ------------------
Managed Modem
CUSTOMER PREMISE EQUIPMENT: ------------------
CPE Services eClass-TM- IP Services
----------------- ------------------
Minimum number of eClass-TM- Circuits
-----(Pricing is based on min. # of Circuits.)
This Agreement, including any terms and conditions, addenda, schedules,
riders, supplements or exhibits which are attached hereto and incorporated
herein, constitutes the entire agreement (the "Agreement") by Supplier and
Customer pertaining to the subject matter(s) hereof and supersedes all prior
and contemporaneous agreements and understandings in connection herewith.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
last written below.
BROADWING COMMUNICATIONS SERVICES INC. ZEROPLUS
By: /s/ Xxxxxxxx XxXxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------- ------------------------
Name: Xxxxxxxx XxXxxxxx Name: Xxxxxx X. Xxxxx
----------------------- ----------------------
Title: President, Internet/Data Services Title: VP Finance
----------------------- ---------------------
Date: 9-27-2000 Date: 9/28/00
----------------------- ----------------------
FULL BUSINESS ADDRESS: FULL BUSINESS ADDRESS:
0000 XXXXXXX XX XXXXX XXX. SOUTH 00000 XXXXXXXXXXX XXXX, XXXXX 000
XXXXXX, XXXXX 00000-0000 XXXXXXXXXX, XX 00000
TELEPHONE: 000-000-0000 TELEPHONE: (000)000-0000
FACSIMILE: 000-000-0000 FACSIMILE: (000)000-0000
BILLING CONTRACT: Accounts Payable
-----------------
TELEPHONE: 000-000-0000
------------------------
BROADWING MASTER SERVICE AGREEMENT
TERMS & CONDITIONS
------------------
1. PAYMENT TERMS. Invoices for Services are due and payable in U.S.
dollars within * of Customer's receipt of invoice (unless otherwise
indicated in the Credit Requirements Supplement). Payments not received
within * of Customer's receipt of invoice are considered past due. *
2. BILLING DISPUTES. If Customer in good faith disputes any portion of any
Supplier invoice, Customer shall submit to Supplier, within * following
Customer's receipt of the invoice, full payment of the undisputed
portion of the invoice and written documentation identifying and
substantiating the disputed amount. If Customer does not report a
dispute within * following Customer's receipt of an invoice, Customer
shall have waived its right to dispute that invoice. Supplier and
Customer agree to use their respective best efforts to resolve any
dispute within * after Supplier receives written notice of the dispute
from Customer. Any disputed amounts resolved in favor of Customer shall
be credited to Customer's account on the next invoice following
resolution of the dispute. Any disputed amounts determined to be payable
to Supplier shall be due within * of the resolution of the dispute.
Any dispute arising out of or relating to this Agreement which has not
been resolved by the good faith efforts of the parties will be settled
by binding arbitration conducted expeditiously in accordance with this
Agreement.
3. ADDITIONAL ASSURANCES. If at any time during the term of this Agreement
there is a material and adverse change in Customer's financial
condition, business prospects, or payment history, which shall be
determined by Supplier in its sole and absolute discretion, then
Supplier may demand that Customer deposit with Supplier a security deposit
or increase the amount of deposit (the "Security Deposit"), as the case
may be, pursuant to Supplier's standard terms and conditions, as security
for the full and faithful performance of Customer of the terms,
conditions, and covenants of this Agreement; provided, however, that in
no event shall the amount of the Security Deposit ever exceed * estimated
or actual Usage Charges and other amounts payable by Customer to Supplier
hereunder.
4. CERTIFICATION. Customer hereby represents and warrants that it is
certified to do business in all jurisdictions in which it conducts
business and is in good standing in all such jurisdictions. Customer
further represents and warrants that it is certified by the proper
regulatory agencies to provide interstate, intrastate and international
long distance services to End-Users in those jurisdictions where such
services are to be provided by Customer. Customer shall keep current
during the term of this Agreement, copies of its Certificates of Public
Convenience and Necessity or similar documents certifying Customer's
interstate, intrastate, or international operating authority in any
local, state, or federal jurisdiction (collectively, "Service
Compliance Certificates") and furnish copies thereof to Supplier within
* of written request by Supplier. Supplier reserves the right to refuse
or withhold Service in any jurisdiction in which Customer's Service
Compliance Certificate has not been furnished to Supplier in a timely
manner. Customer shall defend and indemnify Supplier from any losses,
expenses, demands and claims in connection with Customer's failure to
provide Supplier with such Service Compliance Certificates. Such
indemnification includes costs and expenses (including reasonable
attorney's fees) incurred by Supplier in settling, defending, or
appealing any claims or actions brought against it relating to
Customer's failure to provide such Service Compliance Certificates.
5. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the validity and performance hereof, shall be
governed by the laws of the State of Texas without regard to its
principles of choice of law.
6. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given as of the date of
delivery or confirmed facsimile transmission. If mailed, notice shall be
sent first class postage prepaid, certified or registered mail, return
receipt requested and becomes effective upon confirmed delivery. Notices
will be delivered or sent to the parties' respective addresses set forth
on the signature page of this Agreement to the attention of the
following persons:
IF TO SUPPLIER:
Attention: Contract Administration
IF TO CUSTOMER:
Attention: Contract Administration
------------------------
7. WAIVER OF BREACH OR VIOLATION NOT DEEMED CONTINUING. The waiver by
either party of a breach or violation of any provision of this Agreement
shall not operate as or be construed to be a waiver of any subsequent
breach hereof.
8. BANKRUPTCY. In the event of the bankruptcy or insolvency of either
party or if either party shall make any assignment for the benefit of
creditors or take advantage of any act or law for relief of debtors,
the other party to this Agreement shall have the right to terminate this
Agreement without further obligation or liability on its part.
9. BUSINESS RELATIONSHIP. This Agreement shall not create any agency,
employment, joint venture, partnership, representation, or fiduciary
relationship between the parties. Neither party shall have the authority
to, nor shall any party attempt to, create any obligation on behalf
of the other party.
10. INDEMNITY.
PAGE 1
A. Each party shall indemnify, defend, release, and hold harmless the
other party, their affiliates, directors, officers, employees, workers,
and agents from and against any action, claim, costs, damage, demand,
loss, penalty, or expense including but not limited to attorneys' fees,
expert witness fees, and costs (collectively "Claims") imposed upon
either party by reason of damages to property or personal injuries,
including death, as a result of an intentional or negligent act or
omission on the part of the indemnifying party in connection with the
performance of this Agreement or other activities relating to the
Service, the property, or the facilities which are the subject of this
Agreement. In the event a Claim relates to the negligence of both
parties, the relative burden of the Claim shall be attributed equitably
between the parties in accordance with the principles of comparative
negligence.
B. The term "property" as used in this section shall include real,
personal, tangible, and intangible property, including but not limited
to, data, proprietary information, intellectual property, trademarks,
copyrights, patents, and knowledge.
C. In the event any action shall be brought against the indemnified
party, such party shall immediately notify the indemnifying party in
writing, and the indemnifying party, upon the request of the indemnified
party, shall assume the cost of the defense thereof on behalf of the
indemnified party and its Affiliates and shall pay all expenses and
satisfy all judgments which may be incurred by or rendered against
the indemnified party or its Affiliates in connection therewith,
provided that the indemnified party shall not be liable for any
settlement of any such action effected without its written consent.
D. This Indemnification section shall survive termination of this
Agreement, regardless of the reason for termination.
11. INSURANCE. Through the Term of this Agreement and any extension
thereof, each party shall maintain and, upon written request, shall
provide proof of adequate commercial general liability insurance
covering all operations and work hereunder. Such insurance shall be
written on an occurrence coverage basis and shall provide coverage
equivalent to or greater than one million dollars ($1,000,000.00) per
occurrence for bodily injury liability and property damage liability,
including coverage extensions for blanket contractual liability,
personal injury liability, products and completed operations liability,
and advertising injury. Such insurance shall specifically cover the
liability assumed under the indemnification provisions of this Agreement.
12. AUTHORIZED USE OF NAME. * , without the other party's prior written
consent, neither party shall: (i) refer to itself as an authorized
representative of the other in promotional, advertising, or other
materials; or (ii) use the other party's logos, trade marks, service
marks, carrier identification codes (CICs), or any variations thereof in
any of its promotional, advertising, or other materials, or in any
activity using or displaying the other party's name or the Service(s) to
be provided hereunder. Both parties agree to change or correct at their
own expense any material or activity the affected party determines to be
inaccurate, misleading, or otherwise objectionable under this section.
Customer is authorized to use the following statements in its sales
literature: (i) "Customer utilizes the Broadwing network;" (ii)
"Customer utilizes Broadwing's facilities," (iii) "Broadwing provides
only the network facilities," and/or (iv) "Broadwing is * our network
services provider *."
13. ASSIGNMENT. Neither party hereto may assign this Agreement without the
express written consent of the other party hereto, which consent shall
not be unreasonably withheld. Notwithstanding the foregoing: (i) a
security interest in this Agreement may be granted by Supplier to any
lender to secure borrowings by Supplier or any of its Affiliates; (ii)
either party may assign all its rights and obligations hereunder to any
Affiliate; and (iii) any subsidiary of Supplier may assign any amounts
due from Customer to Supplier for billing purposes. Affiliate, as used
herein, is defined as any entity controlled by, in control of, or under
common control with the assigning party hereunder.
14. BINDING ARBITRATION. The parties will attempt in good faith to resolve
any controversy or claim arising out of or relating to this Agreement
promptly through discussion between themselves at the operation level.
In the event a resolution cannot be reached at the operational level,
the disputing party shall give the other party written notice of the
dispute and such controversy or claim shall be negotiated between
appointed counsel or senior executives of the parties who have
authority to settle this controversy. If the parties fail to resolve
such controversy or claim within thirty (30) days of the disputing
party's notice, either party may seek arbitration as set forth below.
Any controversy or claim arising out of or relating to this Agreement,
or a breach of this Agreement, shall be finally settled by arbitration
in Austin, Texas and shall be resolved under the laws of the State of
Texas. The arbitration shall be conducted before a single arbitrator in
accordance with the commercial rules and practices of the American
Arbitration Association then in effect.
The arbitrator shall have the power to order specific performance if
requested. Any award, order, or judgment pursuant to such arbitration
shall be deemed final and binding and may be enforced in any court of
competent jurisdiction. The parties agree that the arbitrator shall have
no power or authority to make awards or issue orders of any kind except
as expressly permitted by this Agreement, and in no event shall the
arbitrator have the authority to make any award that provides for
punitive or exemplary damages. All such arbitration proceedings shall be
conducted on a confidential basis. The arbitrator may, as part of the
arbitration award, permit the substantially prevailing party to recover
all or part of its attorney's fees and other out-of-pocket costs
incurred in connection with such arbitration. Customer may, at its
option, continue to accept what is considers to be below-standard
Service(s) and pay the charges relating thereto during the pendency of
such arbitration, without prejudice thereto.
15. LEGAL CONSTRUCTION. In the event one or more of the provisions
contained in this Agreement shall, for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
PAGE 2
provision had never been contained herein.
In the event of any conflict between the provisions of these Terms and
Conditions and the applicable Supplement and Exhibits, the conflict
shall be resolved by reference to the following order of priority of
interpretation: a) Exhibits; b) Supplement; and c) Terms and
Conditions. Notwithstanding the foregoing no Exhibit requiring execution
shall be binding unless and until such Exhibit has been fully executed
by an authorized officer, agent, or representative of each party.
16. NO PERSONAL LIABILITY. Each action or claim of any party arising under
or relating to this Agreement shall be made only against the other party
as a corporation, and any liability relating thereto shall be enforceable
only against the corporate assets of such party.
17. NOTICE OF BREACH OF AGREEMENT. To be effective, written notice of any
material breach (except Payment Default) must prominently contain the
following sentences in capital letters: "THIS IS FORMAL NOTICE OF A
BREACH OF CONTRACT. FAILURE TO CURE SUCH BREACH WILL HAVE SIGNIFICANT
LEGAL CONSEQUENCES."
18. LIMITATION OF LIABILITY. Supplier's liability arising out the provision
of Services, delays in the restoration of Services to be provided under
this Agreement or any other telecommunications services, or arising out
of mistakes, accidents, omissions, interruptions, errors or defects in
transmission, or delays caused by judicial or regulatory authorities,
shall be subject to the limitations set forth below and in the applicable
Tariff. IN NO EVENT SHALL SUPPLIER BE LIABLE TO CUSTOMER, CUSTOMER'S OWN
CUSTOMERS, OR ANY OTHER THIRD PARTY WITH RESPECT TO THE SUBJECT MATTER
OF THIS AGREEMENT UNDER ANY CONTRACT, WARRANTY, NEGLIGENCE, STRICT
LIABILITY, OR OTHER THEORY FOR ANY TYPE OF INDIRECT, CONSEQUENTIAL,
INCIDENTAL, RELIANCE, ACTUAL, SPECIAL, OR PUNITIVE DAMAGES, OR FOR ANY
LOST PROFITS, LOST REVENUES, OR LOST SAVINGS OF ANY KIND, ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE OBLIGATIONS OF SUPPLIER PURSUANT TO
THIS AGREEMENT, WHETHER OR NOT SUPPLIER OR CUSTOMER WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES WERE
FORESEEABLE. IN NO EVENT SHALL SUPPLIER BE LIABLE TO CUSTOMER FOR ANY
AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT SUPPLIER HAS PRIOR TO SUCH TIME
COLLECTED FROM CUSTOMER WITH RESPECT TO SERVICES DELIVERED HEREUNDER.
SUPPLIER MAKES NO WARRANTY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY,
WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE DESCRIPTION, QUALITY,
MERCHANTABILITY, COMPLETENESS, OR FITNESS FOR ANY PURPOSE OF ANY SERVICE
PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF
WHICH WARRANTIES BY SUPPLIER ARE HEREBY EXCLUDED AND DISCLAIMED.
For purposes of this Section, the term "Supplier" shall be deemed to
include Supplier, its affiliates, shareholders, directors, officers and
employees, and any person or entity assisting Supplier in its performance
pursuant to this Agreement. *
19. SYSTEM MAINTENANCE. In the event Supplier determines that it is necessary
to interrupt Services or that there is a potential for Services to be
interrupted for the performance of system maintenance, Supplier will use
good faith efforts to notify Customer prior to the performance of such
maintenance and will schedule such maintenance during non-peak hours
(midnight to 6:00 a.m. local time). In no event shall interruption for
system maintenance constitute a failure of performance by Supplier.
20. SUBJECT TO LAWS. This Agreement is subject to, and Customer agrees to
comply with, all applicable federal, state and local laws, and
regulations, rulings, and orders of governmental agencies, including,
but not limited to, the Communications Act of 1934, the
Telecommunications Act of 1996, the Rules and Regulations of the
Federal Communications Commission ("FCC"), state public utility or
service commissions ("PSC"), and tariffs. Customer further agrees to obtain
and maintain any and all required certifications, permits, licenses,
approvals, or authorizations of the FCC and/or PSC and/or any governmental
body, including, but not limited to regulations applying to feature group
termination and Letter of Agencies ("LOAs").
21. FCC PERMITS, AUTHORIZATION AND FILINGS. Supplier shall take all necessary
and appropriate steps, as soon as possible, to procure the necessary
authorizations and approvals, if any, from the FCC or any other federal
or state agency required to deliver the Services hereunder to Customer.
In the event that Supplier cannot obtain all necessary federal, state,
or local authority to provide Services hereunder, Supplier shall
promptly give written notice thereof to Customer and such notice shall
constitute termination of this Agreement without further liability or
obligation of either party.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and when taken
together shall constitute one document. The parties expressly authorize
the use of a facsimile counterpart as a valid method of execution for
Customer; however, for valid execution by Supplier, Supplier's original
signature shall be required. In the event that Customer executes this
Agreement via facsimile counterpart Customer agrees to provide
Supplier with a fully executed original of this Agreement within five
(5) calendar days of such facsimile counterpart execution.
23. CONFIDENTIAL INFORMATION. "Confidential Information" shall mean all
information disclosed in writing by one party to the other party which
is clearly marked "CONFIDENTIAL" or "PROPRIETARY" by the disclosing
party at the time of disclosure. Confidential or Proprietary Information
shall also include certain oral information disclosed by one party to
the other party, provided that the disclosing party designates such
information as Confidential at the time of disclosure and gives
recipient a written summary of such information within five (5) business
days after the oral disclosure was made. Notwithstanding the foregoing, all
information concerning either party's traffic
PAGE 3
volume or distribution, pricing, customer lists, and financial
information is hereby deemed to be Confidential and Proprietary
regardless of whether it is so identified. The term "Confidential
Information" does not include any information which: (i) was already
known by the receiving party free of any obligation to keep it
Confidential at the time of its disclosure; (ii) becomes publicly known
through no wrongful act of the receiving party; (iii) is rightfully
received from a third person without knowledge of any Confidential
obligation; (iv) is independently acquired or developed without violating
any of the obligations under this Agreement; or (v) is approved for
release by written authorization of the disclosing party.
A recipient of Confidential or Proprietary Information shall not
disclose the Information to any person or entity except for (i) the
recipient's employees, contractors, and consultants and/or (ii) the
recipient's Affiliates and their employees, contractors, and consultants
and only to those parties who have a need to know such Confidential
Information and who are bound in writing to protect the Information from
unauthorized use or disclosure.
Confidential Information shall not be disclosed to any third party
without the prior written consent of the owner of the Information. The
recipient shall use the Confidential Information only for the purposes
of this Agreement and shall protect the Information from disclosure
using the same degree of care used to protect its own Confidential or
Proprietary Information, but in no event less than a reasonable degree
of care.
Further, the recipient may disclose Confidential Information pursuant to
a judicial or governmental request, requirement, or order. The
recipient, however, shall take all reasonable steps to give the
disclosing party sufficient prior notice to contest such request,
requirement, or order. Confidential Information shall remain the property
of the disclosing party and shall be returned to the disclosing party or
destroyed upon request of the disclosing party. Either party may make
Confidential Information available to its lenders and/or financial
advisors provided the lenders or financial advisors are bound by a
written Confidentiality Agreement.
Because money damages may be insufficient in the event of a breach or
threatened breach of the foregoing provisions, the affected party shall
be entitled to an injunction or restraining order in addition to such
other rights or remedies as may be available under this Agreement, at
law or in equity, including but not limited to money damages.
24. FORCE MAJEURE. * liable for any failure of performance hereunder due to
causes beyond its reasonable control including, but not limited to: acts
of God, fire, explosion, vandalism, cable cut, flood, storm, or other
similar catastrophe; any law, order, regulation, direction, action or
request of the United States government or of any other government,
including state and local governments having jurisdiction over either of
the parties, or of any department, agency, commission, court, bureau,
corporation or other instrumentality of any one or more of said
governments, or of any civil or military authority; national
emergencies; insurance; riots, wars; or strikes, lock outs, or work
stoppages.
25. SURVIVAL. The covenants and agreements of Customer contained in this
Agreement with respect to payment of amounts due, confidentiality,
liability, and indemnification shall survive any termination of this
Agreement. The rights and obligations under this Agreement shall survive
any merger or sale of either party and shall be binding upon the
successors and permitted assigns of each party.
26. REGULATORY. *
27. EVENTS OF DEFAULT. *
PAGE 4
28. OBLIGATIONS SEVERAL AND NOT JOINT. Each party shall be responsible only
for its own performance under the Agreement (including any attachments,
exhibits, schedules or addenda) and not for that of any other party.
29. AMENDMENTS / RIDERS. This Agreement may only be modified or
supplemented by an instrument in writing executed by each party.
LIST OF EXHIBITS
----------------
EXHIBIT A TAXES ON TELECOMMUNICATIONS SERVICES
PAGE 5
BROADWING SWITCHED SERVICE SUPPLEMENT
XNET LATA SERVICES
------------------
1. SCOPE. Supplier: (i) shall use its best efforts to start provisioning
of Services to Customer on or before the Service Commencement Date,
which is scheduled to be the first date of order activation; and (ii) is
authorized to act as Customer's agent in placing orders with other
carriers in order to provide telecommunications services, if requested.
Usage charges ("Usage Charges") hereunder shall be based on: (i) the
rates for Services set forth in Exhibit A, as applicable; and (ii)
actual usage of Supplier's network from establishment of a connection
between the calling telephone and the called telephone to termination,
as determined by Supplier. Supplier has the right to reject any order if
Supplier reasonably determines that such order could adversely affect
Supplier's performance under this Agreement or Supplier's general
ability to transfer its other customers or other End-Users to the
Supplier's network.
2. TERM. This Agreement is for a term of * commencing on the Effective
Date, unless extended or earlier terminated pursuant to its terms. This
Agreement shall be automatically extended at the expiration of the
initial term on a month-to-month basis unless: (i) earlier terminated;
or (ii) written notice is given by either party at least * before such
expiration that such party does not consent to such extension. *
3. CUSTOMER RESPONSIBILITIES FOR XNET SERVICE.
A. GENERAL DUTIES. Customer shall use its best efforts to solicit and
market the Services in accordance herewith and with applicable law.
Customer shall at all times conduct its efforts in a commercially
reasonable and ethical manner. Customer shall pay all its expenses in
connection with its business and its performance hereunder. Customer
shall provide its own billing and customer service to its customers
("End-Users"). To the extent Customer makes any statements or
representations to third parties (including End-Users) with regard to
Supplier, the Services, or the terms hereof, such statements or
representations shall be true and not misleading.
B. VOLUME FORECASTS. Prior to the Service Commencement Date and by the
end of each quarter thereafter, Customer shall provide Supplier with
forecasts covering a good faith estimate of the monthly traffic volume
and distribution for the ordered Services for the next *. Supplier shall
provide Customer with any information reasonably requested to help
Customer with its forecasts.
C. SERVICE INTERCONNECTIONS. In order to utilize Xnet or other
dedicated Services, Customer shall be solely responsible for
establishing and maintaining a full time, dedicated connection (a
"Service Interconnection") between its network and one of Supplier's
designated hubs ("HUBS"), subject to Supplier's approval in accordance
with the terms of this Agreement. If a Service Interconnection is
proposed to be made using a LEC, Supplier may require Customer to
utilize Supplier's entrance facilities or local service arrangement ("LSA")
with the relevant LEC, and Customer shall be subject to a
non-discriminatory charge therefor from Supplier. The monthly recurring
charge relevant to Customer's use of LSA capacity shall be subject to
adjustment by Supplier from time to time. Such adjustment, if any, shall
not exceed the rate that otherwise would be charged for the equivalent
service from the LEC pursuant to its published rates for such service.
D. CANCELLATION. *
E. PIU CERTIFICATION. Absent the automatic number identification
("ANI") of the calling party, Customer shall provide Supplier with a
written certification (the "Certification") of the percentage of
interstate (including international) and intrastate minutes of use
relevant to the minutes of traffic to be terminated in the same state in
which the Supplier HUB is located to which the Service Interconnection
is made. This Certification shall be provided by Customer prior to
commencement of Service for any Service Interconnection. It shall be
updated from time to time: (i) as desired by Customer; or (ii) upon
request of Supplier made no more than once each calendar quarter. Any
such modification or Certification shall be effective as of the first
day of the calendar month following * written notice to Supplier from
Customer. In the event Customer fails to make such Certification, the
relevant minutes of use will be deemed to be subject to the Intrastate
Rates provided for in Exhibit A. In the event Supplier or any other
third party requires an audit of Supplier's interstate/intrastate
minutes of traffic, Customer agrees to cooperate in such audit at its
expense and make its call detail records, billing systems and other
necessary information reasonably available to Supplier or any third
party solely for the purpose of verifying Customer's
interstate/intrastate minutes of traffic. Customer agrees to indemnify
Supplier for any liability Supplier incurs in the event Customer's
Certification is not supported by such audit.
4. RATE CHANGES/SERVICE MODIFICATIONS.
*
PAGE 1
5. FRAUDULENT CALLS. Customer shall indemnify and hold Supplier harmless
from all costs, expenses, claims or actions arising from fraudulent
calls of any nature which may comprise a portion of the Service to the
extent that the party claiming the call(s) in question to be fraudulent
is (or had been at the time of the call) an End-User of the Service
through Customer or an End-User of the Service through Customer's
distribution channels. Customer shall not be excused from paying
Supplier for Service provided to Customer or any portion thereof on the
basis that fraudulent calls comprised a corresponding portion of the
Service. In the event Supplier discovers fraudulent calls being made (or
reasonably believes fraudulent calls are being made), nothing contained
herein shall prohibit Supplier from taking immediate action that is
reasonably necessary to prevent such fraudulent calls from taking place,
including without limitation, denying Service to particular ANI's or
terminating Service to or from specific locations. Supplier shall use
reasonable efforts to notify Customer in the event Supplier takes action
upon discovery of fraudulent calls. In the event Customer discovers
fraudulent calls being made (or reasonably believes fraudulent calls are
being made), Customer shall notify Supplier as soon as possible at
0-000-000-0000.
6. INVOICE & RATES.
A. DUE DATE. Usage Charges are billed and payable following the period
in which actual usage has been incurred. All Usage Charges contained in
this Agreement are calculated according to the rates set forth in
Exhibit A attached hereto.
B. VOLUME RATES. Subject to the terms and conditions herein, Customer
shall pay for any Services hereunder at the rates reflected in Exhibit A
based upon Customer's total monthly Usage.
7. CALCULATION OF CALL DURATION. Supplier will calculate call duration for
Call Detail Records ("CDRs") which will be sent to Customer by Supplier
for Customer to re-xxxx Customer's End-Users, based upon the
then-current Broadwing specifications. Customer will be billed according
to the rates in the attached exhibits based on call duration of each
CDR. Call duration for outbound services will be from answer supervision
of the called party to disconnect. Call duration for inbound service
will be from trunk seizure of the Customer's platform to disconnect.
CDRs, upon request by Customer will be sent by Supplier within * from
the end of the month in which service is rendered. Customer shall choose
to have the CDRs delivered either by electronic transmission or by CD
ROM and shall pay for such delivery according to the schedule set forth
in Exhibit A. CDRs shall be made available for up to * from the date of
service. The information format of the CDRs is included in the User
Guide and is subject to change from time to time at Supplier's sole
discretion.
LIST OF EXHIBITS
----------------
EXHIBIT A XNET LATA SERVICES RATES
EXHIBIT B LOW COST ORIGINATION OR TERMINATION OPERATING COMPANY NUMBERS
PAGE 2
EXHIBIT A - XNET LATA SERVICES RATES
*
PAGES 1-9
EXHIBIT B-LOW COST ORIGINATION OR TERMINATION OPERATING COMPANY NUMBERS
*
PAGES 1-2
BROADWING SERVICE SUPPLEMENT
DATA COLLOCATION & BANDWIDTH SERVICES
1. TERM. Unless otherwise agreed to, this Agreement shall commence on the
Effective Date as set forth on the Master Service Agreement. In addition,
each Service Order Form shall set forth a Service Term ("Service Term").
The initial Term of this Agreement shall be the greater of (i) *
commencing on the Effective Date; or (ii) the period commencing on the
Effective Date and continuing through the end of the Service Term,
whichever is last to expire. This Agreement will automatically renew for
successive * Terms ("Renewal Terms") after expiration of the initial Term,
unless (a) earlier terminated in accordance with this Agreement; or
(b) written notice is given by either party at least * before the
expiration of the Term that such party does not consent to an extension of
the Term. *
2. COLLOCATION RIGHTS. Subject to the terms of this Agreement, Supplier
will accept custody of Customer's equipment to be placed in Supplier's
Data Collocation facility (the "Premises"). Customer shall indicate the
type and quantity of space to be provided for Customer's equipment (the
"Collocation Space") on the Service Order Form and Supplier shall
designate Customer's space and location within the Premises (the
"Customer Area"). Supplier will grant Customer a license to enter the
Premises described in the applicable Service Order Form subject to the
policies, procedures, and security requirements imposed by Supplier to
protect the interest or property of Supplier, its other customers,
assigns, grantees, or licensees. * Customer shall designate certain
qualified persons who will be the only persons given access to the
Customer Area (the "Designated Persons"). Designated Persons will be
listed on Supplier's Access list and are subject to the Non-Disclosure
Agreement signed by Customer. In consideration of the right to enter the
Premises and to use the Collocation Space, Customer shall pay to Supplier
(i) the applicable amounts described in the Data Collocation and
Bandwidth Services Rate Card (Exhibit A), unless otherwise specified and
agreed to by both parties in a Service Order Form; and (ii) such
additional amounts and may be mutually agreed upon in subsequent Service
Order Form(s). The subleasing of the premises to any third party is
strictly prohibited and will be grounds for immediate termination of this
Agreement. In the event this Agreement is terminated because Customer
subleases the premises to third party in violation of this Agreement, all
Early Termination penalties shall apply.
3. BANDWIDTH RIGHTS.
A. Subject to the terms of this Agreement, commencing on the date that
service provisioning is completed by Supplier and Customer is notified via
telephone, facsimile, or e-mail (the "Service Commencement Date") and
continuing during the Term hereof, Supplier agrees to provide Customer the
amount of bandwidth (the "Bandwidth"), up to a maximum of One Hundred (100)
Mbps per data port measured in accordance with the provisions below,
together with any other applicable options as set forth on the Service Order
Form.
B. In consideration of the Bandwidth being provided to Customer each
month, Customer shall pay to Supplier, on a monthly basis, the amount equal
to the base rate as set forth in Exhibit A (unless such rate is otherwise
specified and mutually agreed upon in a Service Order Form), multiplied by
the number of "Utilization Units" used by Customer during that month. *
4. CONNECTION SERVICES. In consideration of the amounts paid for additional
cross-connections as described in Exhibit A or the Service Order Form,
Supplier will connect Customer's equipment to Supplier's
telecommunication circuits, to Supplier's collocated equipment, or to any
third party's circuits or service located at the premises to which
Customer has been granted access. If Customer is cross-connecting to a
third party's equipment or service, Customer is solely responsible for
arranging the delivery and
PAGE 1
installation of all necessary telecommunications equipment and circuits
at the premises. This connection service shall not be available if
Supplier determines, in its sole discretion, that the installation of
such equipment and/or circuits at the premises is physically,
electrically, or otherwise impractical.
5. OWNERSHIP OF THE PREMISES AND THE BANDWIDTH EQUIPMENT. As between the
parties, Supplier retains all right, title, and interest in the Premises
and Supplier's equipment utilized to provide the Bandwidth to Customer
(the "Bandwidth Equipment"). The provision of Bandwidth pursuant to this
Agreement does not constitute a sale of the Bandwidth Equipment or any
other type of equipment or other piece of hardware or software relating
thereto.
6. RELOCATION OF CUSTOMER'S EQUIPMENT. Supplier reserves the right to
change the location or configuration of Customer's Collocation Space if
deemed necessary by Supplier. Supplier shall not arbitrarily or
discriminatorily require such changes and will work with Customer in good
faith to minimize any disruption in Customer's Service(s) that may be
caused by such changes.
7. LIMITED WARRANTY. Supplier warrants that it will use commercially
reasonable efforts to provide the amount of Bandwidth requested by
Customer. Supplier will guarantee * Network availability. If an
Environmental Outage, a Power Outage, or a Connectivity Outage
(collectively a "Service Outage") either individually or collectively
violates this * Network availability guarantee in any month, to the
extent that such Service Outage was not caused by the failure of
equipment or systems provided by Customer or persons other than Supplier
or Supplier's Affiliates, agents, employees, customers, or permitted
assigns, including any provider of local access service, and upon *
written notice from Customer describing such outage, Supplier will credit
Customer's account in the amount of * ("Bandwidth Credit"). The
Bandwidth Credit shall be applied to Customer's account on the following
month's invoice.
An environmental outage occurs when the temperature or humidity within
the data center, as monitored by strategically placed temperature and
humidity devices, falls outside the operating range of the equipment
placed on the Premises. A Power Outage occurs when the power is
unavailable to Customer's equipment, provided Customer has both an "A"
and "B" (bilateral) power source. A Connectivity Outage occurs when a
packet loss on the Broadwing IP backbone in excess of * is sustained for
more than *, provided that Customer has dual catalyst connections. A
Service Outage begins when a condition is not met and ends when the
condition returns to within the agreed service commitments.
Notwithstanding the foregoing, Customer shall not be entitled and shall
not receive any Bandwidth Credit for unavailable bandwidth due to planned
or routine maintenance, acts or omissions of Customer or Customer's
assigns, agents, customers, or users including electronic or physical
sabotage or acts of Force Majeure as described herein. *
8. PAYMENT. Customer shall pay to Supplier all amounts due in U.S. dollars
in accordance with the Master Service Agreement. Customer's first billing
cycle shall begin * after Supplier notifies Customer via telephone,
e-mail, or U.S. mail that collocation space is available on the Premises.
Billing shall commence * after Customer is notified regardless of whether
Customer has occupied the Space or not. Customer shall be responsible for
all taxes and withholdings, including any sales tax that Customer may be
liable for, relating to Services provided hereunder (excluding taxes on
Supplier's net income).
9. CUSTOMER'S RESPONSIBILITIES.
A. Customer shall ensure that all equipment it brings onto the Premises
will perform according to published technical specifications for all such
equipment and complies with all specifications, policies, procedures, and
security requirements provided by Supplier.
B. Customer acknowledges that Supplier is not responsible for the manner
in which the Bandwidth is used by Customer or any other person or entity
Customer permits to access such Bandwidth or the Bandwidth Equipment (a
"User"). Customer agrees that it will not, and will use its best efforts to
ensure that any User will not, use or assist others in using the
Bandwidth for illegal or improper purposes, including but not limited to
transmission of any material in violation of any United States or state
regulation, copyrighted material, material legally judged to be
threatening or obscene, material protected by trade secret, trade xxxx or
service xxxx, or interfere with or disrupt other users of the Bandwidth
and/or the Bandwidth Equipment. Customer further agrees that it will not,
and will use its best efforts to ensure that any User will not, violate
Supplier's Acceptable Use Policy which may be read at
xxxx://xxx.Xxxxxxxxx.xxx/xxx/. Supplier reserves the right to terminate
Customer's network connection(s) for any action in contradiction to this
paragraph or Supplier's Acceptable Use Policy.
C. Customer shall comply with all of Supplier's access procedures and
security requirements for the Premises, shall use its best efforts to
ensure that all Designated Persons named on the Access List comply with
such procedures, and shall monitor its Designated Persons to ensure their
compliance. To the extent deemed reasonably necessary by Supplier in its
good faith business judgment, Supplier may implement additional access
and security procedures. Customer agrees to repair at its own cost any
damage to the Premises caused by its employees, agents, or Designated
Persons.
D. Supplier will not tolerate the practice of transmitting unsolicited
electronic mail ("Spamming"). Neither Customer nor Customer's Users may
send unsolicited electronic mail on Supplier's network. Neither Customer
nor Customer's Users may send unsolicited electronic mail that includes
Supplier's logos, trade marks, service marks, CIC codes, hosted IP
addresses, or any variation thereof. Acts of
PAGE 2
spamming by Customer or Customer's Users shall result in the immediate
termination of Service and/or this Agreement. Customer will indemnify,
defend, release, and hold harmless Supplier for spamming activities caused by
Customer or Customer's Users using Supplier's network. Supplier shall not
have (i) any obligation or liability to the Customer or User for any unlawful
or improper use of the Service by Customer or any User; or (ii) any duty or
obligation to exercise control over the use of, or the content or information
passing through the Service.
10. MAINTENANCE AND SUPPORT. During the term of this Agreement, Supplier
shall: (i) maintain the Bandwidth Equipment, excluding all of Customer's
equipment, in working condition; (ii) maintain Uninterruptable Power
Supply ("UPS") and generator back-up service; (iii) maintain fire
suppression and heating, ventilation, and air conditioning systems
(HVAC); and (iv) provide twenty-four (24) hour, seven (7) day per week
operational support and monitoring. Upon Customer's request, Supplier
may provide additional maintenance and support to Customer for
Customer's equipment, software, or other problems (i.e., problems not
relating solely to Supplier's services, equipment, software, personnel,
or property) at Supplier's then-current custom services rates. Any and
all amounts payable to Supplier under this section shall be paid by
Customer in compliance with the provisions set forth herein.
11. TERMINATION. This Agreement shall remain in effect until terminated in
accordance with the terms of this Agreement. Sections 5, 8, 12, 13 and
any other accrued rights to payment and other remedies for breach of
this Agreement shall survive termination of this Agreement, regardless
of the cause for the termination.
*
12. EARLY TERMINATION. *
13. LIMITATION OF LIABILITY.
A. IN ADDITION TO LIMITATIONS OF LIABILITY CONTAINED IN THE ATTACHED
MASTER SERVICE AGREEMENT TERMS AND CONDITIONS, SUPPLIER SHALL NOT BE
LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR (i) ANY DAMAGE THAT CUSTOMER
OR ANY USER MAY SUFFER ARISING OUT OF THE USE OF OR THE INABILITY TO USE
THE SERVICE UNLESS SUCH DAMAGE IS CAUSED BY AN INTENTIONAL OR A GROSSLY
NEGLIGENT ACT OF SUPPLIER; (ii) ANY LOSS OF DATA OR THE INACCURACY OF
DATA; (iii) THE CONTENT OF INFORMATION OR DATA PROVIDED OR TRANSMITTED
BY CUSTOMER OR ANY USER, (iii) DAMAGES RESULTING FROM DELAYS DUE TO A
FORCE MAJEURE EVENT AS DESCRIBED HEREIN; (iv) SERVICE IMPAIRMENTS CAUSED
BY ACTS WITHIN THE CONTROL OF CUSTOMER, ITS EMPLOYEES, AGENTS, SERVANTS,
OR SUBCONTRACTORS; (v) INTEROPERABILITY OF SPECIFIC CUSTOMER
APPLICATIONS; (vi) CUSTOMER'S INABILITY TO ACCESS OR INTERACT WITH OTHER
PROVIDERS OR THEIR SERVICES THROUGH THE INTERNET, OTHER NETWORKS, OTHER
INTERNET USERS, OR OTHER RESOURCES AVAILABLE THROUGH THE INTERNET; (vii)
PERFORMANCE IMPAIRMENTS CAUSED ON THE INTERNET; OR (viii) FOR THE COST
OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY. *
B. SUPPLIER DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS
REGARDING THE USE OR THE RESULTS OF THE USE OF THE BANDWIDTH IN TERMS OF
CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
C. THIS LIMITATION SHALL NOT APPLY TO A BREACH BY EITHER PARTY OF ANY
CONFIDENTIALITY REQUIREMENTS.
14. INDEMNIFICATION. In addition to the Indemnification section contained in
the attached Master Service Agreement, Customer shall indemnify, defend,
release, and hold harmless Supplier, Supplier's affiliates, directors,
officers, employees, workers, and agents from and against any Claims
arising out of, resulting from, or relating to: (i) the content of
information or data provided by or transmitted by Customer, Customer's
Affiliates, or Customer's Users in connection with the Service; or (ii)
damage to equipment (including fire damage or damage resulting from fire
extinguishment) incurred by Supplier or any other customer at the
Premises resulting from Customer's use or occupancy of the Collocation
Space. Customer's insurance, as required under this Agreement, shall
include coverage for Customer's indemnification obligations hereunder.
This indemnification section shall survive termination of this
Agreement, regardless of the reason for termination.
15. NOTICES. Notices under this Agreement shall be sufficient only if
personally delivered, delivered by a major commercial rapid delivery
courier service with tracking capabilities or mailed by certified or
registered mail, return receipt requested, to the other party at its
address set forth in the attached Master Service Agreement Terms and
Conditions. If not received sooner, notice by mail shall be deemed
received * after deposit in the U.S. mail.
16. CONFIDENTIALITY. Customer shall not disclose the terms of this Agreement
or any other Confidential Information as that term is defined in the
attached Master Service Agreement Terms and Conditions and in any
Non-Disclosure Agreement between the parties.
17. MISCELLANEOUS. This Agreement (including the initial Service Order
Form and any subsequent Service Order Forms accepted by Supplier)
constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all proposals, oral or written,
all negotiations, conversations or discussions, and all past dealings or
industry customs between the parties relating to the subject matter
hereof. Supplier's obligations under this Agreement shall be solely to
Customer and not to any third party. This Agreement does not provide any
third party with any claim, right of action, remedy, entitlement,
benefit, or any other right whatsoever. Each party shall be responsible
only for its own performance under this Agreement (including any
attachments, exhibits, schedules, or addenda) and not for that of any
other party.
A. The failure of either party to enforce its rights under this
Agreement at any time for any period shall not be construed as a waiver
of such rights.
B. In the event that any provision of this Agreement shall be
determined to be invalid, illegal, or unenforceable in any respect, that
provision will be limited or eliminated to the minimum extent necessary
so that the remaining provisions of this Agreement remain in full force.
C. Headings herein are for convenience of reference only and shall in
no way affect interpretation of the Agreement.
D. Except as otherwise expressly stated in this Agreement, the rights
and remedies of a party set forth herein with respect to any failure of
the other party to comply with the terms or conditions of this Agreement
(including, without limitation, rights of full termination of this
Agreement) are not exclusive, the exercise thereof shall not constitute
an election of remedies.
E. All references in this Agreement to "days" shall mean calendar days.
F. Unless otherwise specifically provided, capitalized terms used
herein shall have the same meaning as in the Master Service Agreement
Terms and Conditions.
Version 3.17.00
LIST OF EXHIBITS
----------------
EXHIBIT A DATA COLLOCATION & BANDWIDTH SERVICES RATES
PAGE 3
EXHIBIT A - DATA COLLOCATION & BANDWIDTH SERVICES RATES
*
[LOGO] RACK SPACE AGREEMENT
This Rack Space Agreement is made as of the date of last execution below (the
"Effective Date") and entered into by and between BROADWING COMMUNICATIONS
SERVICES INC., a Delaware corporation ("Supplier"), and XXXXXXXX.XXX, INC.,
a Delaware corporation ("Customer").
BACKGROUND
A. Customer desires to install and keep certain telecommunications
equipment on the premises of Supplier.
B. Supplier and Customer desire to set forth the terms and
conditions upon which Supplier shall provide space to Customer at Supplier's
facilities for such equipment.
TERMS OF AGREEMENT
Accordingly, in consideration of the mutual promises set forth below,
the parties hereby agree as follows:
1. RACK SPACE. Supplier hereby leases to Customer one (1) standard
(23"W x 30"D x 84"H) rack space(s) for the purpose of installing electronic
equipment to permit Customer to receive and deliver communications traffic to
and from Supplier's telecommunications network. Such rack space shall be
located within the Customer Interface ("CIF") Room at Supplier's building
site (the "Premises") at the address shown below. Delivery of such
communications traffic shall be to the Supplier's point of demarcation in
Supplier's equipment room. The point of demarcation shall be a DSX1, DSX3, or
OCX as applicable. Signals received at this demarcation shall meet the then
current DSX signal specification. Material and installation to the
demarcation interconnect shall meet Broadwing approved technical standards
and shall be at Customer's expense. Any voice grade facilities (two wire
copper) are not typically available and are excluded from installation under
this Agreement. The equipment installed by the Customer must meet Broadwing
installation standards, as well as all National Electrical Codes (NEC), any
local fire and safety codes and any other applicable safety standards and is
subject to inspection by Broadwing personnel. Deficiencies or code violations
must be corrected within * of written notification or Customer will be
considered in breach of this Agreement. (A copy of Broadwing Installation
Standards will be available upon request).
00000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Supplier shall provide (i) zero (0) amps DC power and twenty (20)
amps non-UPS AC power at the above site and provide access to an AC outlet
for test equipment and occasional use; (ii) lighting; (iii) heating; and (iv)
air conditioning for the Premises (collectively, the "Services"). Supplier
does not allow Customers to place lead acid battery units in the leased racks
without written permission.
2. MONTHLY LEASE PAYMENTS. Customer agrees to pay in advance to
Supplier each month during the term of this Agreement the payment (a "Monthly
Lease Payment") set forth in Exhibit A hereto. * Supplier shall send invoices
to Customer at the address listed herein. Monthly Lease Payments shall
commence upon completion of Supplier equipment installation.
3. MAINTENANCE, USE AND ALTERATION OF THE PREMISES.
A. Supplier agrees to use reasonable care in maintaining the
Premises. Customer may make minor alterations at Customer's expense to the
Premises with the prior written consent of Supplier. Any alteration performed
by Customer shall be done using reasonable care and shall become the
property of Supplier upon the termination of this Agreement.
PAGE 1
B. Supplier shall provide Customer with a key to the Customer
INterface ("CIF") Room located on the Premises. Customer may access the CIF
Room at all times, in accordance with the building security procedures
generally applicable to the Premises, for the purpose of installing,
inspecting, maintaining and removing Customer's Property. Customer shall
return to Supplier key to the CIF Room upon termination of this Agreement.
4. EFFECTIVENESS AND TERMINATION.
A. TERM. This Agreement is effective as of the Effective
Date and shall remain in force and effect for a minimum of *, unless earlier
terminated pursuant to its terms. This Agreement may be extended for an
additional * term upon (i) written notice by Customer to Supplier at least *
before the date of the expiration of the initial term; and (ii) such terms
and conditions mutually agreeable to the parties.
B. TERMINATION. *
C. EFFECT OF TERMINATION. *
D. LIMITS OF LIABILITY. Supplier shall use reasonable care
in maintaining the Premises and providing the Services. Notwithstanding the
foregoing, in no event shall Supplier be liable for any special, incidental,
indirect, punitive, reliance or consequential damages, whether foreseeable or
not, including but not limited to, defacement, damage or loss of property or
equipment, loss of profits or revenue, cost of capital, cost of replacement
services, or claims for service interruptions or transmission problems,
occasioned by any defect in the Premises or the Services, delay in
availability of the Premises or the Services or any other cause whatsoever
with respect to the Premises, the Services or this Agreement. Supplier shall
not be liable for any defect with respect to the Premises or the Services
from causes outside its control, including accidents, cable cuts, fires,
floods, emergencies, government regulation, wars or acts of God. SUPPLIER
DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE PREMISES OR THE
SERVICES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE. *
5. INDEMNIFICATION.
A. BY CUSTOMER. * Customer shall indemnify, defend, release
and hold harmless Supplier and all of its affiliates, agents, clients,
consultants, customers, employees, subcontractors, invitees or licensees from
and against any action, claim, court cost, damage, demand, expense,
liability, loss, penalty, proceeding or suit, (collectively, together with
related attorneys' fees, including costs and disbursements, "Claims") imposed
upon Supplier by reason of damages to property or injuries, including death,
as a result of an act (whether intentional, negligent or otherwise) or
omission on the part of Customer or any of its affiliates, agents, clients,
consultants, customers, employees, subcontractors, invitees or licensees in
connection with Customer's use of the Premises.
B. NOTICE BY SUPPLIER. In the event any action shall be
brought against Supplier, Supplier shall immediately notify Customer in
writing, and Customer, upon the request of Supplier, shall assume the defense
thereof on behalf of Supplier and its affiliates and shall pay all expenses
and satisfy all judgments which may be incurred by or rendered against
Supplier or its affiliates in connection therewith, provided that Supplier
shall not be liable for any settlement of any such action effected without its
written consent.
6. SURVIVAL. Notwithstanding the termination of this Agreement for
any reasons, this Section 5 Indemnification shall survive such termination.
PAGE 2
7. INSURANCE. Throughout the term of this Agreement and any extension
thereof, * shall maintain, and, upon written request, shall provide to *
proof of comprehensive general liability insurance with a limit of not less
than $2,000,000 per occurrence for bodily injury liability and property
damage liability, including coverage extensions for blanket contractual
liability, personal injury liability and products and completed operations
liability.
8. ASSIGNMENT. Upon notice to and with the consent of Supplier,
Customer may make any assignment of rights or interests or delegation of its
obligations with respect to this Agreement. Such consent shall not be
unreasonably withheld or delayed. Supplier may make any assignment of its
rights or interest or delegation of its obligations with respect to this
Agreement upon written notice to Customer.
9. BINDING ARBITRATION. Upon notice to the other party, any party may
refer any dispute or claim arising out of or relating to this Agreement to
arbitration in Austin, Texas in accordance with the commercial arbitration
rules of the American Arbitration Association then prevailing and, in such
event neither party may commence any action based on such dispute or claim,
and, if any action has been commenced it shall be stayed, pending the outcome
of such arbitration proceeding. Each party shall select one independent
arbitrator within * of such notice and the two arbitrators shall then select
a third arbitrator within an additional * to form a three-person panel of
arbitrators. The panel of arbitrators shall have the power to order specific
performance if requested. Any award, order, or judgment pursuant to such
arbitration shall be deemed final and binding and may be enforced in any
court of competent jurisdiction. All such arbitration proceedings shall be
conducted on a confidential basis. The panel of arbitrators may, as part of
the arbitration award, permit the substantially prevailing party to recover
all or part of its attorney's fees and other out-of-pocket costs incurred in
connection with such arbitration.
10. WAIVERS AND CONSENTS. No delay in taking, or failure to take,
action with respect to any breach of this Agreement shall constitute a waiver
of any right to take action with respect to such breach or with respect to
any subsequent breach. No waiver of a party's right to take action with
respect to, no consent to, and no acceptance of, any late payment, late or
imperfect performance, or failure to perform on one occasion shall constitute
a waiver of such party's rights to take action with respect to any delay in
making, or failure to make, acceptable performance upon any other occasion.
No waiver of, or delay in taking or failure to take action with respect to,
any right, power or privilege hereunder on one occasion shall constitute a
waiver thereof on any other occasion. No waiver of a party's rights to take
action with respect to any breach of a provision of this Agreement, or of any
right, power or privilege hereunder, and no consent by a party to any breach
of a provision of this Agreement, shall be effective unless set forth in
writing and signed by such party.
11. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the validity and performance hereof, shall be governed
by the laws of the State of Texas without regard to its principles of choice
of law.
12. NOTICES. Each notice relating to this Agreement shall be in writing
and shall be: (i) given in person; (ii) sent by registered or certified mail
(return receipt requested), overnight mail or by courier; or (iii)
transmitted by facsimile machine, with a copy of such transmission delivered
by one of the foregoing methods. Each properly given notice shall be deemed
to have been given as of the earlier of (i) delivery, (ii) four (4) days after
the date of the mailing, or (iii) the date of facsimile transmission
(receipt of which is orally confirmed or which date is indicated by the
facsimile machine of any party). Notices shall be made to the following
persons at the following addresses and facsimile telephone numbers (which may
be changed only by properly given notice);
If to Supplier: Broadwing Communications Services Inc.
0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
If to Customer: Xxxxxxxx.xxx, Inc.
00000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
13. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and all other
documents specifically referred to herein constitute the entire and final
agreement and understanding between the parties with respect to the subject
matter hereof and
PAGE 3
supersedes all prior agreements relating to the subject matter hereof, which
are of no further force or effect. The Exhibits referred to herein are
integral parts hereof and are hereby made a part of this Agreement. This
Agreement may only be modified or supplemented by an instrument in writing
executed by a duly authorized representative of each party.
In confirmation of their consent hereto and intention to be legally bound
hereby, the parties have executed this Agreement as of the date last written
below:
BROADWING COMMUNICATION SERVICES, INC. XXXXXXXX.XXX, INC.
By: /s/ Xxxxxxxx X. XxXxxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------------- --------------------------------
Name: Xxxxxxxx X. XxXxxxxx Name: Xxxxxx X. Xxxxx
------------------------------
Title: President Data/Internet Services Title: VP Finance
-----------------------------
Date: ________________________________ Date: 9/28/00
------------------------------
Full Business Address: Full Business Address:
0000 Xxxxxxx xx Xxxxx Xxx. South 00000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000 Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000 Telephone: 000-000-0000
Facsimile: (000) 000-0000 Facsimile: 000-000-0000
Billing Contact: Accounts Payable
------------------
Telephone: 000-000-0000
------------------------
PAGE 4
EXHIBIT A - RACK SPACE AND POWER RATES
*
PAGE 5
