Exhibit 10.17
Agreement No._________
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT ("Agreement") is made this 1st day of
October, 2001, by and between Xxxxxxxx Communications, LLC, a Delaware limited
liability company ("Xxxxxxxx"), with its principal place of business at One
Technology Center, 000 Xxxxx Xxxxxxxxxx 0xx Xxxxx, Xxxxx, Xxxxxxxx 00000, and
Universal Access, Inc., a Delaware corporation ("Customer"), with its principal
place of business at Sears Tower, 000 X. Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000, for the provision of telecommunications services, subject to this
Agreement and as set forth in this Agreement.
RECITALS
WHEREAS, the parties entered into a Carrier Services Agreement 98R0613.00
("CSA") as of June 29, 1998, which contained a revenue commitment.
WHEREAS, the parties desire to resolve all issues relating to commitment
shortfalls and early termination liability under the CSA.
WHEREAS, Xxxxxxxx and Customer are parties to that certain Universal Transport
Exchange License Agreement entered into contemporaneously herewith (the
"Collocation Agreement").
ARTICLE 1. AGREEMENT OF THE PARTIES
1.1 SERVICES. Customer may order from Xxxxxxxx telecommunications services
which may consist of either or both Xxxxxxxx' Services or Third Party
Services, (sometimes referred to herein collectively or individually, as
the "Service(s)"). "Xxxxxxxx' Services" shall consist of those Services
described in the attached service schedule(s) ("Service Schedule(s)"), as
indicated in Table A (check as applicable), but does not include any
Services which constitute Third Party Services as defined below in Section
1.2. All Services shall be provided upon the terms and conditions that are
set forth in this Agreement, including any applicable Service Schedule and
process and procedure as set forth in Exhibit B. This Agreement will
supercede the CSA and all Services provided pursuant to the CSA will now be
provided under this Agreement. The circuits provided under the CSA which
will now be provided pursuant to this Agreement (the "Existing Circuits")
are listed in Exhibit A. The Existing Circuits will continue to be provided
at the price and term as set forth in the original Service Order placed
under the CSA. The circuits, which have been ordered under the CSA but are
not in service (the "Pending Circuits") will be priced under the Agreement.
All Services are subject to availability and approval of Customer's credit
by Xxxxxxxx.
TABLE A
Schedule 1 /X/ Private Line Service Schedule 8 / / Carrier Voice Services
Schedule 2 /X/ Optical Wave Service Schedule 9 /X/ International Backhaul Services
Schedule 3 /X/ ATM Service Schedule 10 /X/ International Private Line Service
Schedule 4 / / Dedicated Internet Service Schedule 11 / / Collocation Service
Schedule 5 / / Frame Relay Service Schedule 12 / / CNMS Service
Schedule 6 / / Network Timing Services Schedule 13 /X/ Metro Access Service
Schedule 7 / / Switched Voice Service
1.2 THIRD PARTY SERVICES. Xxxxxxxx may arrange on behalf of Customer for
services to be provided by a third party ("Third Party Services"). For
instance, Third Party Services may include Third Party Local Access
Services, third party provided interexchange services, and third party
provided international service. Third Party Local Access Services shall be
arranged pursuant to Article 4 of this Agreement. When Customer requests
international service, Xxxxxxxx may arrange for the foreign end of the
Service or for a portion of the foreign end of the Service to be provided
by a third party carrier licensed in the relevant foreign point. In some
cases, Xxxxxxxx may be unable to, and Customer may be required to, arrange
the foreign end of such Service with a foreign carrier. Although this
Agreement governs the terms of Xxxxxxxx' arrangement of Third Party
Service, the service level parameters and related warranties (if any),
pricing, surcharges, outage credits, required commitments, termination
liability, and other service specific terms of the Third Party Service
shall be those of the provider of the Third Party Services ("Third Party
Provider").
ARTICLE 2. EFFECTIVE DATE, TERM AND REVENUE COMMITMENT
2.1 TERM OF AGREEMENT. This Agreement shall become effective on the date first
written above ("Effective Date") and shall continue through the tenth
anniversary of such Effective Date ("Term"). This Agreement shall
automatically renew for month
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to month periods ("Renewal Terms") unless either party gives written notice
to the other party that the Agreement will not be renewed, such notice to
be delivered at least thirty (30) days before the end of the Term or the
then current Renewal Term.
2.2 SERVICE ORDER TERM. Each Service Order placed under this Agreement shall
have its own term, as indicated on such Service Order ("Service Term"). At
the end of the Service Term for any Service Order (as defined in Section
3.1(a)), such Service Order shall continue on a month-to-month basis
("Extension Period") unless either party gives written notice to the other
that the Service described in such Service Order shall be disconnected,
such notice to be delivered at least thirty (30) calendar days before the
end of the Service Term, or if during the Extension Period, then upon at
least thirty (30) calendar days' written notice. Customer's charges, as set
forth in this Agreement, for Services provided by Xxxxxxxx at the
expiration of the Service Term shall continue to apply to Customer's
Service throughout any Extension Period, unless modified pursuant to the
terms of this Agreement. Unless Customer is in default, any Service being
provided at the time of termination of this Agreement shall continue upon
the terms and conditions of this Agreement until end of the Service Term or
any applicable Extension Period Service as specified in the applicable
Service Order or until such Service Order is terminated pursuant to the
second sentence of this Section 2.2; provided, however, that Customer may
not order any new Service until Customer and Xxxxxxxx have entered into a
new agreement or mutually agreed in writing to extend this Agreement.
2.3 Revenue Commitment.
a. In consideration of the pricing and discounts and other terms and
conditions offered to Customer, Customer agrees to purchase Applicable
Services (as defined below) under this Agreement in the amount of
Fifty-seven Million, Six Hundred Thousand dollars ($57,600,000)
aggregate ("Term Commitment") throughout the Term of this Agreement, as
set forth in Section 2.3(c) below.
b. In addition, commencing on the Effective Date, Customer agrees to
purchase each year Applicable Services under this Agreement in the
amount set forth below for the relevant year (each, an "Annual
Minimum"):
Year 1 = $2,820,000 (per year)
Year 2-5 = $4,200,000 (per year)
Year 6-7 = $6,276,000 (per year)
Year 8-10 = $8,476,000 (per year)
In the event that Customer is in Default of Section 15.1 of the
Collocation Agreement, then Customer's Annual Minimum shall be
increased by the amount set forth in Section 15.1 of the Collocation
Agreement. The Term Commitment and the Annual Minimum will be
collectively referred to as the "Revenue Commitment".
c. In determining whether the annual charges are of a sufficient dollar
amount to meet Customer's Revenue Commitment, Xxxxxxxx will include the
monthly recurring charges for Xxxxxxxx' Services. In addition to
Xxxxxxxx Service(s), any circuit or bandwidth ordered by Customer from
Xxxxxxxx pursuant to any circuit or bandwidth trade, whether directly
between the parties or through a broker, and whether any such trade is
governed by a separate agreement between the parties, shall be
considered an ("Applicable Service"). Applicable Services shall also
include all charges and fees associated with any such circuit or
bandwidth and any paid Deficiency Amounts, (as discounted, if
applicable) and any credits to which Customer may be entitled pursuant
to this Agreement. The Applicable Services will not include late
charges, non-recurring charges, and ancillary charges payment
penalties, taxes and other government imposed surcharges, or payments
made by Customer for Third Party Services (including but not limited to
Third Party Local Access Service) or to reimburse Xxxxxxxx for costs
paid by Xxxxxxxx to any Third Party Provider.
To the extent that, in any year during the Term of this Agreement,
Customer fails to have a total aggregate billing of Applicable Services
from Xxxxxxxx greater than or equal to the Annual Minimum amount
applicable to a year, Xxxxxxxx shall invoice Customer, on Customer's
current or next invoice, and Customer hereby agrees to pay, an amount
equal of the difference between the Annual Minimum amount and the
amount of Applicable Services actually purchased by Customer (the
"Deficiency Amount") for such year. The parties agree that the
Deficiency Amount represents liquidated damages, and is based on
Customer's commitment to meet the Annual Minimum amount during each
year of the Term of this Agreement and Xxxxxxxx' agreement to the
discounted prices set forth in the Service Schedules attached hereto,
which are based upon such commitment. Not withstanding the foregoing,
in the event that Customer has not taken delivery of an Applicable
Service within forty-five (45) days of the end of the then current term
then Xxxxxxxx shall not count the monthly recurring charges for
Xxxxxxxx Services as set forth in such Service Orders towards
Customer's Annual Minimum.
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d. Amounts purchased in any year in excess of the applicable Annual
Minimum, shall be carried over into the next year, or beyond if
applicable. Once the total Revenue Commitment of $57,600,000 has been
satisfied, no further Revenue Commitment will apply under this
Agreement. If Customer is purchasing both voice and data Services, any
Deficiency Amount shall be set forth on the Customer's invoice for
voice Services. If Customer is only purchasing data Services, any
Deficiency Amount shall be set forth on the Customer's invoice for data
Services.
e. FORECAST AND REMEDY FOR CAPACITY NOT AVAILABLE. Before issuing its
first Service Order and on a quarterly basis throughout the Term of the
Agreement, Customer shall provide Xxxxxxxx with a detailed, non-binding
rolling one (1) year forecast. If, in any consecutive three (3) month
period, Xxxxxxxx responds to greater than [***] percent ([***]%) of the
requested Willliam's Private Line Service quotes with "capacity not
available", and if after reaching this threshold, Xxxxxxxx responds to
additional request for service with "capacity not available" and
Customer places an order for and takes delivery of the requested
service elsewhere, Xxxxxxxx will treat the request for quotation as if
it were a Service Order placed with Xxxxxxxx for the purposes of
applying it to the applicable Annual Minimum. If no circuit term was
specified in the request for quotation, the adjustment to the
applicable Annual Minimum will apply during the first twelve (12)
months of the circuit term only.
f. COMPETITIVE PRICING.
PRIVATE LINE. Xxxxxxxx may provide on-net, private line pricing for
substantially similar services within [***]% of the lowest quote
provided to Xxxxxxxx by Customer, using [***] as the control group (the
"Carrier Control Group"). The parties agree to review the Carrier
Control Group on an as needed basis. The Carrier Control Group may be
altered if mutually agreed to by the parties. If the lowest quote for
substantially similar services that Customer receives from the Carrier
Control Group is more than [***] percent ([***]%) lower than applicable
Xxxxxxxx'x rates, the Customer will give Xxxxxxxx the opportunity to
submit a revised price. If Xxxxxxxx is unwilling to offer a rate within
[***]% of such lowest quote, the applicable Annual Minimum will be
adjusted as if Customer placed such order with Xxxxxxxx provided that
(i) Customer places an order with and takes delivery from the carrier
offering a lower quote for substantially similar services and
(ii) Customer provides to Xxxxxxxx a certificate from either its Vice
President of Network Engineering or its Vice President of Carrier
Relations, stating that such lowest quote was a bona fide quote for
substantially similar services and (iii) that the relevant circuit or
service was purchased from a member of the Carrier Control Group and
(iv) that such purchase was made with the same pricing as contained in
such Carrier Control Group's quote. For purposes of determining whether
a private line service is substantially similar, the parties will
consider: (1) type of service, (2) city pair, (3) diversity,
(4) protected or unprotected, and (5) term. For the purpose of this
Agreement [***] percent ([***]%) of the lowest price shall mean, the
monthly recurring charges based on the Voice Grade Equivalent/XX xxxxx.
METRO SERVICES. Xxxxxxxx may provide on-net, metro pricing for
substantially similar services within [***]% of the lowest to Xxxxxxxx
by Customer, using [***] as the control group ("the Metro Control
Group"). The parties agree to review the Metro Control Group on an as
needed basis. The Metro Control Group may be altered if mutually agreed
to by the parties. If the lowest quote for substantially similar
services that Customer receives from the Metro Control Group is more
than [***] percent ([***]%) lower than applicable Xxxxxxxx'x rates, the
Customer will give Xxxxxxxx the opportunity to submit a revised price.
If Xxxxxxxx is unwilling to offer a rate within [***]% of such lowest
quote, the applicable Annual Minimum will be adjusted based on the
Monthly Recurring Charge as if Customer placed such order with Xxxxxxxx
provided that (i) Customer places an order with and takes delivery from
the carrier offering a lower quote for substantially similar services
and (ii) Customer provides to Xxxxxxxx a certificate from either its
Vice President of Network Engineering or its Vice President of Carrier
Relations, stating that such lowest quote was a bona fide quote for
substantially similar services and (iii) that the relevant circuit or
service was purchased from the member of the Metro Control Group and
(iv) that such purchase was made with the same pricing as contained in
such Metro Control Group's quote. For purposes of determining whether a
local or metro service is substantially similar, the parties will
consider: (1) type of service, (2) metro access point, (3) diversity,
(4) protected or unprotected, and (5) term.
ARTICLE 3. ORDERING AND PROVISIONING OF SERVICE
3.1 SERVICE ORDERS.
a. All Services shall be requested on Xxxxxxxx' Service Order forms in
effect from time to time or on Customer's forms which have been
previously accepted in writing by Xxxxxxxx ("Service Order(s)").
Service Orders shall be transmitted and processed in accordance with
the terms and conditions of this Agreement as well as any procedures
set out in the
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applicable Service Schedule for a specific Service. Xxxxxxxx shall
accept any Service Order under this Agreement that complies with the
terms and conditions set forth herein, subject to availability and
credit approval at the time Customer places such Service Order.
b. A Service Order is deemed accepted (subject to availability) by
Xxxxxxxx when Xxxxxxxx' Service Delivery department transmits an
electronic Order Confirmation Document ("OCD") to Customer indicating
that Xxxxxxxx is processing Customer's order.
c. When a Service Order is placed, Customer will designate: (i) a
requested start date ("Requested Start Date") for the Service; (ii) the
desired term of the Service; (iii) the specific city pairs, if
applicable; (iv) the bandwidth, if applicable; and (v) any other
information necessary to enable Xxxxxxxx to provide the Service.
Xxxxxxxx will make reasonable efforts to meet Customer's Requested
Start Date. In the event that Xxxxxxxx is unable to meet Customer's
Requested Start Date, Xxxxxxxx will notify Customer of the date when
Xxxxxxxx believes the Service will be available and Customer's
Requested Start Date will be changed to reflect the number of days of
delay or advance, as appropriate. Failure of Xxxxxxxx to deliver by
Customer's Requested Start Date shall not constitute a default under
this Agreement and Xxxxxxxx shall not be liable to pay to Customer any
penalties or damages for Xxxxxxxx' failure to meet Customer's Requested
Start Date, except for the delay credits set forth in Section 3.4.
d. Any terms or conditions contained in Customer's acknowledgement or
Service Order or elsewhere which conflict with, are different from, or
are in addition to, the terms and conditions in this Agreement are
hereby objected to by Xxxxxxxx and shall not constitute part of this
Agreement. No action by Xxxxxxxx (including, without limitation,
provision of Services to Customer pursuant to such Service Order) shall
be construed as binding or estopping Xxxxxxxx with respect to such term
or condition.
3.2 TURN UP ACKNOWLEDGEMENT. Xxxxxxxx will issue to Customer an electronic
notice that Service is available ("Turn Up Acknowledgement" or "TUA"). The
TUA will indicate that the relevant Service ordered through Xxxxxxxx has
been tested by Xxxxxxxx and that the Xxxxxxxx' Service meets or exceeds the
Technical Specifications set forth in the relevant Service Schedule. The
TUA will also set forth the date Customer's Service was available for use
by Customer and upon which Xxxxxxxx shall commence charging for the
Service, provided that absent Customer's written acknowledgement, in no
event xxxx Xxxxxxxx begin to invoice for the Services prior to the
Customer's Requested Start Date ("Circuit Effective Billing Date").
3.3 SERVICE ACCEPTANCE. Customer shall be deemed to have accepted Service and
Xxxxxxxx shall begin billing for the Service as of the Circuit Effective
Billing Date, provided that, if Customer notifies Xxxxxxxx' Service
Delivery Department in writing within three (3) business days of the
Circuit Effective Billing Date that Xxxxxxxx' Service is in material
non-compliance with the applicable Technical Specifications and if, upon
investigation, such material non-compliance is not due to Customer fault,
then Xxxxxxxx shall correct the non-compliance and make the appropriate
adjustment to Customer's xxxxxxxx under this Agreement. The occurrence of
any such non-compliance shall not constitute a default under this Agreement
and Xxxxxxxx shall not be liable to pay to Customer any penalties or
damages resulting from any such non-compliance except for delay credits as
set forth in Section 3.4, if applicable. Charges for Service begin accruing
upon Circuit Effective Billing Date, regardless of whether Customer is
actually using the Services, or is ready to test and accept the Services.
3.4 IMPLEMENTATION INTERVALS REMEDIES.
a. It is Xxxxxxxx'x goal to provision Xxxxxxxx Services within it standard
service implementation intervals as set forth in the Schedule
applicable to each type of Service. Xxxxxxxx'x standard service
implementation intervals apply only to Xxxxxxxx Private Line, Optical
Wave and Metro Access Services and not Third Party Services.
b. In the event Xxxxxxxx fails to make Services available within its
standard service implementation interval as stated in the applicable
Schedule, Customer shall receive a pro-rata credit of the monthly
recurring charge for such Service based on the number of days Service
is delayed, such credit not to exceed [***] portions. month's monthly
recurring charge. Customer shall not receive such credit and Xxxxxxxx
shall not be liable for any delay, if delay is due to the Customer,
Third Party Local Access provider or as a result of a Force Majeure
event as defined in Section 8.5 hereof. Notwithstanding anything to the
contrary in this Agreement, in no event shall Xxxxxxxx' failure to
deliver William's Service within the periods set forth in the attached
Schedules constitute a default under this Agreement.
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c. In the event Xxxxxxxx fails to make Services available within its
standard Service implementation interval as stated in the applicable
Schedule Customer may cancel the Service Order for late delivery.
Customer shall not have the right to cancel and Xxxxxxxx shall not be
liable for any delay, if delay is due to the Customer, Third Party
Local Access provider or as a result of a Force Majeure event as
defined in Section 8.5 hereof. Notwithstanding anything to the contrary
in this Agreement, in no event shall William's failure to deliver
William's Service within the periods set forth in the attached
Schedules constitute a default under this Agreement.
d. Customer may either exercise its right to a delay credit pursuant to
subsection (b) above or exercise it right to cancel the delayed Service
pursuant to subsection (c) above but may not exercise both remedies.
Customer agrees that the delay credit or the right to termination as
set forth above is Customer's sole remedy and Xxxxxxxx' sole liability
in the event of any delay in providing such Service. In the event
Customer cancels a Service Order in accordance with this Section
3.4(c), such Service Order will be applied to reduce Customer's
applicable Annual Minimum as if it had not been cancelled.
e. ANNUAL IMPLEMENTATION INTERVAL REVIEW. Xxxxxxxx agrees that it will,
upon the request of Customer and no more often than annually, review
the actual implementation intervals set forth in the attached Service
Schedules, and may adjust installation intervals in accordance with:
i) prevailing market implementation intervals at the time of the
review; and
ii) implementation intervals as published by other suppliers,
delivering comparable telecommunication services that are
substantially similar to the range of service offered by
Xxxxxxxx under this Agreement.
If the parties agree to any such adjustment, such adjustment shall be
effective upon written amendment and shall not apply to orders, which
have already been submitted by Customer and accepted by Xxxxxxxx.
3.5 CHANGE OF SERVICE ORDER DATE. Customer may request a delay in the Start
Date of an order, when Xxxxxxxx receives the delay request a minimum of
five (5) days prior to the due date and the requested delay does not exceed
sixty (60) cumulative calendar days from the Service Orders initial Start
Date. When Customer has delayed a Service Order for the maximum sixty (60)
cumulative calendar days, the order may not be delayed again by Customer.
Once the maximum sixty (60) day delay has been achieved, Customer has the
option to (a) accept the billing for the Service Order, or (b) cancel the
Service Order and pay the applicable cancellation charges for the
facilities ordered. The billing or cancellation is effective on the
sixtieth (60th) cumulative calendar day of the delay. If Customer elects to
accept billing the installation will be completed as soon as reasonably
practical after Customer advises Xxxxxxxx that the installation can be
completed.
ARTICLE 4. THIRD PARTY LOCAL ACCESS SERVICES
4.1 THIRD PARTY LOCAL ACCESS SERVICES. Xxxxxxxx may obtain "Third Party Local
Access Service" on behalf of Customer, which is defined as the
telecommunications facilities or services connecting a Customer-designated
termination point to a point of presence ("POP") designated by Xxxxxxxx.
The term Third Party Local Access Service, as used throughout this
Agreement, may include both domestic U.S. and foreign Third Party Local
Access Service. Customer shall execute a Letter of Agency, in a form
provided by Xxxxxxxx and agreed to by Customer authorizing Xxxxxxxx to
interact directly with the Third Party Local Access Service provider(s) to
obtain the Third Party Local Access Service. Customer shall pay all charges
including, without limitation, monthly charges, usage charges, installation
charges, non-recurring charges, or applicable termination/cancellation
charges, of the Third Party Local Access Service provider(s).
4.2 XXXXXXXX' PROVISIONING, TESTING, AND CHARGING FOR THIRD PARTY LOCAL ACCESS
SERVICES. For Third Party Local Access Services ordered by Xxxxxxxx,
Xxxxxxxx shall provision and conduct the initial testing of an
interconnection between the Xxxxxxxx' Service set forth in the Service
Order and the Third Party Local Access Service. Xxxxxxxx shall coordinate
the installation of the Third Party Local Access Service with the Xxxxxxxx'
Service. Third Party Local Access Service charges shall accrue at the
then-current tariff rate (or the standard published rate, if there is no
tariff rate) of the Third Party Local Access Service provider. If the
applicable rate for Third Party Local Access Service is changed by the
Third Party Local Access Service provider, such changes will be passed
through to, and be borne by, Customer. In the event Xxxxxxxx' Services are
not ready at the same time as the Xxxxxxxx' ordered Third Party Local
Access Service, Xxxxxxxx will not begin billing Customer for such Third
Party Local Access Services until the related Xxxxxxxx' Services are turned
up.
4.3 CUSTOMER ORDERED THIRD PARTY LOCAL ACCESS SERVICE. Customer may, in
conformance with Xxxxxxxx' policies on third parties providing connectivity
into a Xxxxxxxx' POP, order its own Third Party Local Access Services from
a vendor who has established entrance facilities in Xxxxxxxx' POP
("Approved Vendor"). In the event Customer desires to order Third Party
Local Access Services from someone other than an Approved Vendor, Customer
must get Xxxxxxxx' prior written permission, which permission shall not be
unreasonably withheld, conditioned or delayed. In such event, the Third
Party Local Access Service provider shall directly xxxx Customer for such
Services. Xxxxxxxx may charge Customer for any associated entrance
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facility or mileage charges if it provides Carrier Facility Assignment
("CFA") to Customer. Customer shall ensure that the Customer-ordered Third
Party Local Access Services are turned up at the same time as the Xxxxxxxx'
Services. If the Customer-ordered Third Party Local Access Services are not
ready as of the Circuit Effective Billing Date, Customer shall nonetheless
be obligated to pay for Xxxxxxxx' Services as of the Circuit Effective
Billing Date.
ARTICLE 5. PAYMENT TERMS AND CHARGES
5.1 MONTHLY BILLING. Xxxxxxxx provides and charges for Service on a monthly
basis in U.S. dollars. Usage sensitive charges are billed in arrears and
fixed monthly recurring charges, if any, are billed one (1) month in
advance. Unless Xxxxxxxx requires payment in advance, charges for
installation charges and other non-recurring charges shall be billed in
Xxxxxxxx' next invoice cycle and are due and payable in accordance with
section 5.2 below.
5.2 DUE DATE AND INVOICE. All amounts stated on each monthly invoice are due
and payable in U.S. dollars within thirty (30) calendar days of the date of
the receipt of the invoice ("Due Date"). Customer agrees to accept delivery
of such invoice electronically via e-mail and Customer agrees to remit
payment to Xxxxxxxx Communications, LLC, 00000 Xxxxxxx Xxxxx, Xxxxxxx, XX
00000-0000, or such address as Xxxxxxxx may in writing direct Customer to
remit payment pursuant to the notice provisions of this Agreement. In the
event Customer fails to make full payment of undisputed amounts by the Due
Date, Customer shall also pay a late fee in the amount of the lesser of
(i) one and one-half percent (1 1/2 %) per month or (ii) the maximum lawful
monthly rate under applicable state law, of the unpaid balance which amount
shall accrue from the date of the invoice. Customer acknowledges and
understands that all charges are computed exclusive of any Additional
Charges (as defined in Section 5.8(a)). Such Additional Charges shall be
paid by Customer in addition to all other charges provided for herein
5.3 ADJUSTMENTS. Xxxxxxxx may make billing adjustments for Xxxxxxxx Services
for one-hundred-eighty (180) calendar days after the Due Date or after the
date Service is rendered, whichever is later. Xxxxxxxx may make billing
adjustments for Third Party Services for a period of two (2) years.
5.4 RETURN CHECK CHARGE. When applicable, a return check charge of $25.00 will
be assessed for checks made payable to Xxxxxxxx and returned for
insufficient funds, For service billed on behalf of Xxxxxxxx, any
applicable return check charges will be assessed according to the terms and
conditions of Xxxxxxxx' billing agent.
5.5 BILLING DISPUTES. If Customer in good faith disputes any portion of an
invoice it must pay the undisputed amount of the invoice on or before its
Due Date and provide written notice to Xxxxxxxx of the billing dispute
within sixty (60) calendar days thereafter. Such notice must include
documentation substantiating the dispute. Customer's failure to notify
Xxxxxxxx, of a dispute shall be deemed to be Customer's acceptance of such
charges. The parties will make a good faith effort to resolve billing
disputes as expeditiously as possible. If a dispute is resolved in favor of
Customer, Customer shall receive a credit on their next xxxx for the amount
determined to be due, if not, the additional sum due shall be payable no
later than thirty (30) days following a determination that it is due.
5.6 VALIDATION OF CREDIT. Xxxxxxxx reserves the right to determine the
creditworthiness of Customer through available verification procedures or
sources and Customer hereby consents to Xxxxxxxx obtaining credit
information regarding the Customer, its owners and affiliates.
5.7 XXXXXXXX' RIGHT TO ASSURANCE.
a. If at any time there is a material adverse change in Customer's
creditworthiness or a material adverse change in Customer's financial
position, then in addition to any other remedies available to Xxxxxxxx,
Xxxxxxxx may elect, in its sole discretion, to demand reasonable
assurance of payment from Customer, including among others the posting
of a deposit and executing an agreement with Xxxxxxxx regarding the use
of any such deposit ("Deposit Agreement"), such Deposit Agreement to be
in form and substance acceptable to Xxxxxxxx.
b. A material adverse change in Customer's creditworthiness shall include,
but not limited to: (i) Customer's default of its obligations to
Xxxxxxxx under this Agreement; (ii) failure of Customer to make full
payment of charges due hereunder on or before the Due Date on two
(2) or more occasions during any period of twelve (12) or fewer months;
(iii) acquisition of Customer (whether in whole or by majority or
controlling interest) by an entity which is insolvent or which is
subject to bankruptcy or insolvency proceedings, or which owes past due
amounts to Xxxxxxxx or any Xxxxxxxx affiliate, or which is a
materially greater credit risk than Customer; or (iv) Customer's being
subject to or having filed for bankruptcy or insolvency proceedings or
the legal insolvency of Customer.
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c. A material adverse change in Customer's financial position shall
include, but not limited to: (i) a decrease in net worth or working
capital of five percent (5%) or greater during any calendar quarter;
or, (ii) a negative net worth or working capital. If Customer's
financial statements are not public information or have not otherwise
been made available to Xxxxxxxx, then, upon Xxxxxxxx' request, Customer
shall provide its most current audited and unaudited financial
statements.
d. If Customer has not provided Xxxxxxxx with (i) its financial statements
within ten (10) calendar days of Xxxxxxxx' request therefore or (ii) in
the event of a Xxxxxxxx demand for assurance of payment, assurance
satisfactory to Xxxxxxxx within ten (10) calendar days of Xxxxxxxx'
notice of demand for such assurance, then, in addition to any other
remedies available to Xxxxxxxx, Xxxxxxxx shall have the option, in its
sole discretion, to exercise one or more of the following remedies:
(x) cause the start of any Service described in any previously executed
Service Order to be delayed pending receipt of such financial
statements or of the satisfactory assurance; or (y) decline to accept a
Service Order or other requests from Customer to provide Service; or
(z) suspend all or any portion of the Service then being provided after
giving Customer five (5) calendar days prior written notice. If
Customer provides satisfactory assurance during the five (5) calendar
day notice period, Xxxxxxxx will not suspend any Service.
5.8 CHARGES FOR SERVICES. All charges for Services shall be as set forth in
this Agreement and may be established on an individual case basis as
contemplated herein and shall be those in effect as of the date Xxxxxxxx'
accepts the Service Order unless the charges are otherwise specifically set
forth in attached Service Schedules. Customer shall be liable for all
charges (recurring and non-recurring) for Services provided by Xxxxxxxx and
by Third Party Providers. Additionally, Customer shall incur charges in
those circumstances in which extraordinary costs and expenses are generated
by Customer and reasonably incurred by Xxxxxxxx beyond those normally
associated with the Services, including but not limited to, the following:
(a) Customer's request to expedite Service availability to a date earlier
than Xxxxxxxx' published installation interval or a previously accepted
start date; (b) Service redesign or other activity occasioned by receipt of
inaccurate information from Customer; (c) reinstallation charges following
any suspension of the Service for cause by Xxxxxxxx; and (d) Customer's
request for use of routes or facilities other than those selected by
Xxxxxxxx for provision of the Service.
5.9 QUARTERLY PRICE REVIEW. Xxxxxxxx agrees that it will, upon the request of
Customer and no more often than quarterly, review the actual rates as set
forth in the attached Service Schedules, and may adjust such rates in
accordance with:
i) prevailing market rates for substantially similar service at
the time of the review; and
ii) rates as published by other suppliers, delivering comparable
telecommunication services that are substantially similar to
the range of service offered by Xxxxxxxx under this Agreement.
If the parties agree to any such adjustment, such adjustment shall be
effective upon written amendment and shall not apply to orders, which have
already been submitted by Customer and accepted by Xxxxxxxx.
5.10 TAXES.
a. If any sales taxes, valued added taxes or other charges or impositions
are asserted against Xxxxxxxx after, or as a result of, Customer's use
of Services by any local, state, national, international, public or
quasi-public governmental entity or foreign government or its political
subdivision, including without limitation, any tax or charge levied to
support the federal Universal Service Fund contemplated by the
Telecommunications Act of 1996, or any state or foreign equivalent
("Additional Charges"), Customer shall be solely responsible for such
Additional Charges. Customer agrees to pay any such Additional Charges
and hold Xxxxxxxx harmless from any liability or expense associated
with such Additional Charges.
b. If Customer has been granted a tax exemption for taxes in a given
jurisdiction, then Xxxxxxxx shall not xxxx Customer for such taxes if
Customer provides Xxxxxxxx with written verification of such tax
exemption acceptable to Xxxxxxxx and properly issued by the relevant
taxing jurisdiction. Service provided hereunder shall also not be
subject to contribution to any universal service program if Customer
provides Xxxxxxxx with written verification or exemption certificate,
acceptable to Xxxxxxxx for the relevant jurisdiction, that the Service
will be resold by Customer and that the revenues from such resale shall
be subject to the universal service program's contribution
requirements. If any jurisdiction, in conjunction with any universal
service program, assesses any charges against, or seeks any
contributions from, Xxxxxxxx in connection with any of the Service
provided hereunder, Customer shall indemnify Xxxxxxxx against any such
assessments or contributions.
ARTICLE 6. SUSPENSION AND TERMINATION
6.1 SUSPENSION OF SERVICE.
a. In the event payment in full is not received from Customer on or before
the Due Date, Xxxxxxxx shall have the right: (i) upon providing a
minimum of five (5) business days written notice (the "Suspension
Notice"), to suspend or block, at
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any time after such Suspension Notice, all or any portion of all the
Services then being provided to Customer; and (ii) to immediately place
any pending Service Orders on hold, and to decline to accept any new
Service Orders or other requests from Customer to provide Service
commencing on the day that Xxxxxxxx issues the Suspension Notice to
Customer. If Xxxxxxxx receives the entire past due amount within the
five (5) business days notice period, then Customer's Service shall not
be suspended. Xxxxxxxx may continue such suspension until such time as
Customer has paid in full all charges then due, including any
reinstallation charges and/or late fees as specified herein. Following
such payment, Xxxxxxxx shall reinstate Customer's Services subject to
Xxxxxxxx' Right to Assurance as provided above in Section 5.6.
b. Suspension of Services as set forth in this Section shall not affect
Customer's obligation to pay for the Services. Notwithstanding anything
to the contrary in this Agreement, if Customer has agreed to a Revenue
Commitment, any suspension of Service by Xxxxxxxx shall not relieve
Customer of its obligations to pay the Revenue Commitment.
6.2 TERMINATION OF SERVICE.
a. In addition to its other termination rights hereunder, and with respect
to all Services, either party may immediately disconnect any Services
in whole or in part if Xxxxxxxx determines that such Services violate
any law, statute, or ordinance, including the Communication Act of 1934
(as amended), or that the imposition of any statute, or promulgation of
any rule, regulation, or order of the Federal Communications Commission
or other governing body makes Xxxxxxxx' performance under this
Agreement commercially impracticable.
b. Except where Customer is in default, Xxxxxxxx recognizes that, upon the
expiration or termination of this Agreement or any Service as defined
in Section 2.1 and 2.2, a successor vendor may be retained to provide
replacement telecommunication service to Customer. During Customer's
migration to the successor vendor following the expiration or
termination of this Agreement or a Service, Xxxxxxxx shall reasonably
cooperate with Customer and the successor vendor in the development and
execution of a plan for the orderly and efficient transition to the
successor vendor.
6.3 TERMINATION OF AGREEMENT.
a. TERMINATION OF AGREEMENT FOR CAUSE. Except for an event of non-payment
by Customer hereunder which is addressed in subsection (b) below,
either party may terminate this Agreement if the other is in default of
any material obligation contained herein, which default has not been
cured within thirty (30) calendar days following the receipt of notice
of such default setting forth the specifics of such default. The
failure of any particular Service or Services to comply with the
Technical Specifications set forth individually for each Service in the
attached Service Schedules shall not be deemed a default by Xxxxxxxx,
but may obligate Xxxxxxxx to provide Customer with Outage Credits, if
applicable, under the relevant Service Schedule. Such Outage Credits
and right to terminate for excessive outages, if applicable, shall be
Customer's sole and exclusive remedy for any failure of the Services.
Termination of this Agreement for cause does not relieve Customer of
any obligations to pay Xxxxxxxx for charges accrued for Service which
has been furnished up to the time of termination nor does it relieve
the Customer of all applicable cancellation and/or disconnection
charges.
b. TERMINATION OF AGREEMENT FOR NON-PAYMENT. In the event any amount
payable by Customer has not been received in full by Xxxxxxxx on or
before the Due Date (except for amounts disputed by Customer in
accordance with Section 5.4 Billing Disputes), Xxxxxxxx shall have the
right to terminate this Agreement ten (10) calendar days' written
notice to the Customer. Termination of this Agreement pursuant to this
subsection shall not relieve Customer of any obligations to pay
Xxxxxxxx for charges accrued for Service which has been furnished up to
the time of termination nor does it relieve the Customer of all
applicable cancellation and/or disconnection charges or for payment of
the Revenue Commitment Termination Charge. The remedies available to
Xxxxxxxx for any such termination of the Agreement for non-payment
shall be to collect from Customer all amounts due under this Agreement
including but not limited to all applicable cancellation and/or
disconnection charges and/or for payment of the Revenue Commitment
Termination Charge.
c. TERMINATION DUE TO GOVERNMENT ACTION. Notwithstanding the foregoing,
and upon written notice consistent with the mandate put forth by the
applicable governmental authority or commission, to the other party,
either Customer or Xxxxxxxx shall have the right, without incurring an
Early Termination Charge or other liability to the other party, to
immediately disconnect the affected portion of any Service, if Xxxxxxxx
is prohibited by governmental authority from furnishing or Customer is
prohibited from using such portion, or if any material rate or term
contained herein and relevant to the affected portion of any Service is
substantially changed by order of the highest court of competent
jurisdiction to adjudicate the matter, the Federal Communications
Commission, or other local, state, federal, or foreign government
authority.
6.4 TERMINATION CHARGES.
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a. EARLY TERMINATION CHARGE. If Customer desires to disconnect any Service
after installation, Customer may do so by providing written
notification to Xxxxxxxx thereof thirty (30) days in advance of the
effective date of the disconnection. In the event of such
disconnection, Customer shall pay to Xxxxxxxx an "Early Termination
Charge" in an amount equal to the monthly recurring charge for such
disconnected Service multiplied by the number of months in the relevant
Service Term, less the charges for such Service actually paid by
Customer through the effective date of the disconnection plus any
non-recurring payments not yet paid by Customer together with any
termination liability associated with Third Party Local Access Service
or any other Third Party Service.
b.
I. PORTABILITY. After any Service has been in effect for a period
of at least twelve (12) months and provided that Customer is in
compliance with the terms and conditions of the Agreement, including
the Revenue Commitment, Customer shall have the option to disconnect a
circuit wholly on Xxxxxxxx' owned and operated network and order a new
circuit also wholly on Xxxxxxxx' owned and operated network as a
replacement, subject to availability, without incurring the Early
Termination Charge set forth above. For purposes of this Agreement
Xxxxxxxx owned and operated network will include facilities leased to
Xxxxxxxx under an IRU agreement. The replacement circuit must be for
the same or greater net value and same or greater monthly recurring
charge as the circuit being replaced and the replacement circuit must
be ordered by Customer within thirty (30) days after the date on which
Customer provides Xxxxxxxx with written notice of termination. If
Customer exercises this portability option, Customer will be liable for
if applicable: (i) all termination liability charges for Third Party
Local Access Services or any other Third Party Services or provided
facilities that are impacted by the replacement of the circuit;
(ii) installation charges due to Xxxxxxxx as set forth in the attached
Service Schedules; and (iii) any one (1) time Third Party Local Access
Service charges and the new monthly recurring Third Party Local Access
Service charges.
II. SERVICE TERM ADJUSTMENT. After any Existing Circuit as set
forth on Exhibit A has been in effect for a period of at least twelve
(12) months and provided that Customer is in compliance with the terms
and conditions of the Agreement, including the Revenue Commitment,
Customer shall have the option to adjust the initial Service Term to a
period equal to six months ("Adjusted Service Term"). The Adjusted
Service Term applicable to an Existing Circuit(s) will start
concurrently with the turn up and acceptance date of the new circuit or
circuit(s). Customer shall effectuate the adjustment by placing a
Service Order for a new circuit(s) wholly on Xxxxxxxx' owned and
operated network, subject to availability. For purposes of this
Agreement Xxxxxxxx owned and operated network will include facilities
leased to Xxxxxxxx under an IRU agreement. The new circuit(s) must be
for: a) a minimum Service Term of twelve months, b) the same or greater
total Service Term value, and c) the same or greater monthly recurring
charge as the adjusted Existing Circuit(s). If Customer exercises this
Service Term adjustment option, it will only be applicable to the
inter-exchange portion of the adjusted circuit that is wholly on
Xxxxxxxx owned and operated network. Customer remains liable for Third
Party charges including, without limitation, any Third Party local
access termination charges, which will be passed through to the
Customer. The new circuits shall be subject to ordering and
provisioning as provided in Article 3 herein. For example: If Customer
has (3) DS-3s which have been in effect for at least 12 months with 24
months remaining on the Service Term and the remaining Service Term
value of the DS-3s is $60,000, Customer may adjust the Service Term of
those DS-3s to 6 months by placing a Service Order and by accepting
Service of a circuit or circuits pursuant to Section 3.3 herein, that
have: 1) a twelve month term and 2) a total MRC greater than or equal
to those DS-3s and 3) a Service Term value greater than or equal to
$60,000. The Service Term value shall be determined by multiplying the
monthly recurring charge by the number of months remaining in the
original Service Term for the applicable Existing Circuit(s).
c. REVENUE COMMITMENT TERMINATION CHARGE. If Customer has made a Revenue
Commitment, the rates for Services and associated discounts are based
on Customer's agreement to purchase Service for the entire Term of the
Agreement. If Customer terminates the Agreement or breaches the
Agreement prior to the end of the Term of the Agreement, Customer shall
pay to Xxxxxxxx a "Revenue Commitment Termination Charge" as calculated
below in addition to all applicable Early Termination Charges as set
forth in Section 6.4 (a) above: The Revenue Commitment Termination
Charge shall be calculated as follows: ($57,600,000 LESS the total
monthly recurring charge for Applicable Services for which Customer has
paid to Xxxxxxxx) multiplied by 40%. Such total will then be adjusted
to reflect the net present value using 15% as the interest rate and
calculated over the remaining term of the Agreement as of the date of
such notice.
d. SERVICE MIGRATION. If customer wishes to upgrade to a higher bandwidth
of service, Customer has forty-five (45) days from the turnup of the
higher bandwidth circuit in which to groom existing circuits onto the
higher bandwidth of service. During this forty-five (45) day period,
the Customer will not be billed for the higher bandwidth. After the
forty-five (45) day period from circuit turnup, billing for the higher
bandwidth circuit commences, whether or not if the existing circuits
have been disconnected and groomed onto the larger bandwidth.
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e. TECHNOLOGY MIGRATION. If, as a result of technological changes or
improvements, Customer's services provided under the Agreement may be
changed or improved upon, Xxxxxxxx agrees to allow Customer to migrate
to new services as it applies under Section 6.4 (b) Portability.
f. LIQUIDATED DAMAGES. Customer agrees that the actual damages in the
event of a disconnection pursuant to this Section 6.4 would be
difficult or impossible to ascertain, and that the Early Termination
Charges and Revenue Commitment Termination Charges, if any, in this
Section 6.4 are intended to establish liquidated damages only and are
not intended as penalties.
ARTICLE 7. LIMITATION OF LIABILITY
IN THE EVENT OF ANY BREACH OF THIS AGREEMENT OR ANY FAILURE OF THE SERVICES,
WHATSOEVER, NEITHER XXXXXXXX NOR ANY XXXXXXXX' PROVIDER (AS DEFINED IN SECTION
8.4 INDEMNITY) SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL,
ACTUAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF
ANY KIND OR NATURE WHATSOEVER, EVEN IF XXXXXXXX OR THE XXXXXXXX PROVIDER HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THIS LIMITATION ON
DIRECT DAMAGES SHALL NOT LIMIT CUSTOMER'S RIGHT TO RECEIVE OUTAGE OR DELAY
CREDITS IF APPLICABLE AND SHALL NOT LIMIT XXXXXXXX LIABILITY FOR INDEMNITY OR
CONFIDENTIALITY OBLIGATIONS PURSUANT TO THIS AGREEMENT. EXCEPT FOR AMOUNTS DUE
PURSUANT TO THIS AGREEMENT, IN NO EVENT SHALL CUSTOMER BE LIABLE FOR ANY
INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR, PUNITIVE DAMAGES, OR FOR ANY
LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, EVEN IF XXXXXXXX PROVIDER HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
ARTICLE 8. GENERAL
8.1 EXCLUSIVE REMEDIES. Except as otherwise specifically provided for herein,
the remedies set forth in this Agreement comprise the exclusive remedies
available to either party at law or in equity.
8.2 WARRANTY AND DISCLAIMER OF WARRANTY. XXXXXXXX MAKES NO WARRANTY WITH
RESPECT TO THE SERVICE OR ITS PERFORMANCE UNDER THIS AGREEMENT UNLESS
EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING THE ATTACHED SERVICE
SCHEDULES. XXXXXXXX MAKES NO WARRANTY WITH RESPECT TO SWITCHED AND CARRIER
VOICE SERVICES. WITH THE EXCEPTION OF THE EXPRESS WARRANTIES, IF ANY, SET
FORTH IN THE SERVICE SCHEDULES, XXXXXXXX DISCLAIMS ALL WARRANTIES WHETHER
EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTY IS MADE
OR PASSED ON WITH RESPECT TO ANY THIRD PARTY SERVICES.
8.3 COMPLIANCE WITH LAW. Each Party agrees that its provision of and/or use of
the Services shall be in accordance, and comply, with all applicable laws,
regulations, and rules and that it shall obtain all approvals, consents and
authorizations necessary to conduct its business and initiate or conduct
any transmissions over any Services covered by this Agreement. Each Party
may, exercisable in its sole discretion, disconnect any Service or restrict
any transmission, if such actions are reasonably appropriate to assure that
is not in violation of any civil or criminal law, regulation or rule.
8.4 INDEMNITY.
a. Customer and Xxxxxxxx shall defend, indemnify and hold harmless the
other and their respective officers, directors, employees, contractors
and agents against and from any and all claims for damage to tangible
property or bodily injury, including claims for wrongful death, to the
extent that such claim arises out of the gross negligence or willful
misconduct of the respective indemnifying Party, its employees, agents,
or contractors in connection with this Agreement or the provision of
Services hereunder.
b. Customer and Xxxxxxxx will defend, indemnify and hold harmless the
other Party and their respective officers, directors, employees,
contractors and agents against and from any loss, debt, liability,
damage, obligation, claim, demand, judgment or settlement of any nature
or kind, known or unknown, liquidated or unliquidated, including
without limitation, all reasonable costs and expenses incurred
including all reasonable litigation costs and attorneys' fees
(collectively, "Damages") arising out of, resulting from or based upon
any complaint, claim, action, proceeding or suit of any third
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party, including any governmental authority, (a "Claim"), to the extent
such Claim arises from or is based on the indemnifying Party's
violation of any law or any rule or regulation.
c. Customer will defend, indemnify and hold harmless Xxxxxxxx and its
respective officers, directors, employees, contractors and agents for
all Damages resulting from any Claims by any third party or end user
for who is using the Services through Customer, including without
limitation, any Claims by such end users for damages arising or
resulting from any defect or failure to provide the Services.
d. Customer will defend indemnify and hold harmless Xxxxxxxx and its
respective officers, directors, employees, contractors and agents for
all Damages resulting from any Claims by any third party arising out of
the content transmitted over Xxxxxxxx' network or otherwise including
but not limited Claims relating to any violation of copyright law,
export control laws, failure to procure any necessary consents, or that
such transmissions are libelous, slanderous, an invasion or privacy or
illegal.
e. If the equipment and facilities used in furnishing the Services to
Customer pursuant to this Agreement infringe any United States
copyright, patent, trade secret or any other intellectual property
rights, Xxxxxxxx shall indemnify, defend and hold Customer harmless
from and against any claims made as a consequence of any such
infringement However, Xxxxxxxx obligation to indemnify, defend, and
hold harmless Customer will not apply if any such infringement arises
due to (a) the modification or combination of such equipment and
facilities with (i) equipment or facilities furnished by Customer, or
(ii) equipment or facilities of Xxxxxxxx or its third party supplier's
network, or (b) Customer's use of the Services in violation of this
Agreement. Moreover, if the equipment or facilities furnished by
Xxxxxxxx to provide the Services under this Agreement becomes, or in
Xxxxxxxx opinion is likely to become, the subject of a claim of
infringement, or if Customer's use of the Services is finally enjoined
or in Xxxxxxxx opinion is likely to be enjoined, Xxxxxxxx may in its
sole discretion provide alternate Services which are not subject to the
claim of infringement. If Xxxxxxxx elects not to provide alternate
Service(s), Customer may terminate the Service without liability for
the Early Termination Charge set forth in Section 6.4 of the Agreement.
However, Customer shall be liable for any termination liability
associated with Third Party Local Access Service or any other Third
Party Service associated with such disconnection. In the event Customer
terminates a circuit pursuant to this Section, such terminated circuit
shall count toward Customer's Revenue Commitment as if it had not been
terminated.
f. The indemnified Party shall promptly notify the indemnifying Party in
writing of any claims, which are subject to the terms of this Section
8.4. The indemnified Party shall have the right at its own expense to
appoint its own counsel who shall be entitled to participate in any
settlement negotiations or litigation regarding any matter for which it
is entitled to be indemnified hereunder. The indemnifying Party shall
not agree to any settlement or consent to any decree, order or judgment
without obtaining the consent of the indemnified Party which consent
shall not be unreasonably withheld.
8.5 FORCE MAJEURE. If either party's performance of this Agreement or any
obligation (other than the obligation to make payments) hereunder is
prevented, restricted or interfered with by causes beyond its reasonable
control including, but not limited to, acts of God, fire, explosion,
vandalism, cable cut, power outage, storm or other similar occurrence
including rain fade or other atmospheric conditions, any law, order,
regulation, direction, action or request of any government, 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, or by national emergencies, insurrections, riots, wars,
acts of terrorism, strikes, lockouts or work stoppages or other labor,
supplier failures, shortages, breaches or delays, then the party that is
unable to perform or meet its obligations due to such causes shall be
excused from such performance on a day-to-day basis to the extent of such
prevention, restriction or interference. The party that is unable to
perform or meet its obligations due to such causes shall use commercially
reasonable efforts under the circumstances to avoid and remove such causes
of non-performance and shall proceed to perform with reasonable dispatch
whenever such causes cease. In the event the force majeure event prevents
the use of any circuit provided as part of the Xxxxxxxx' Services and such
force majeure event continues for a period of sixty (60) days, then either
party may disconnect the affected circuit without incurring liability
except for Customer's liability for any charges of a Third Party Provider
that are incurred by Xxxxxxxx will be passed through to Customer.
8.6 PROPRIETARY INFORMATION.
x. Xxxxxxxx and Customer understand and agree that the terms and
conditions of this Agreement and all documents referenced herein
(including invoices to Customer for Services provided hereunder) are
confidential as between Customer and Xxxxxxxx. Neither Customer nor
Xxxxxxxx shall disclose such information to any third party without the
prior written consent of the other, except as provided in Section
8.6(c) below.
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b. In addition to the matters covered under clause a. above, when
confidential information is furnished in a tangible form by one party
to the other, the disclosing party shall xxxx the information in a
manner to indicate that it is considered confidential. When information
deemed to be confidential is provided orally, the disclosing party
shall, at the time of disclosure, clearly identify the information as
being confidential. If the disclosing party fails to identify
information as confidential, such disclosing party may correct the
omission by later notice consisting of a writing or statement, and the
receiving party shall only be liable for unauthorized disclosures of
such confidential information made subsequent to said notice. All
information identified as confidential pursuant to this clause b. shall
not be disclosed by the receiving party to any third party without the
written consent of the disclosing party, except as provided in Section
8.6(c) below.
c. The party to whom confidential information is disclosed shall have no
obligation to preserve the confidential nature of such information if
it: (i) was previously known to such party free of any obligation to
keep it confidential; (ii) is or becomes publicly available by other
than unauthorized disclosure; (iii) is developed by or on behalf of
such party independent of any information furnished under this
Agreement; or (iv) is received from a third party whose disclosure does
not violate any confidentiality obligation. Each Party may disclose
confidential information regarding its relationship with the other
party to commercial lenders who have specifically agreed to hold such
information in confidence. In addition, a party may disclose
confidential information provided to it by the other party if such
disclosure is made pursuant to the requirement or request of a
recognized stock exchange or of a governmental agency or court of
competent jurisdiction to the extent such disclosure is required by a
valid law, regulation or court order, and provided further, that,
prompt notice thereof is given (unless such notice is prohibited by
law) to the disclosing party of any such requirement or request.
8.7 REPRESENTATIONS.
a. Unless Xxxxxxxx specifically offers an intrastate Service as set forth
in an applicable Service Schedule, Xxxxxxxx requires that more than ten
percent (10%) of the transmissions on each circuit shall be interstate
transmissions or foreign transmissions as those terms are defined in 47
U.S.C. Sections 153(17) and 153(22). Xxxxxxxx and its affiliates shall
not be obligated to make available intrastate Service, e.g., any
Service on a circuit with end points within a single state or service
on a circuit which originates/terminates at points both of which are
situated within a single state unless Customer represents in writing
that such interexchange Service or circuits shall be used to carry more
than ten percent (10%) interstate or foreign telecommunications. If it
is determined at any time that such Service or circuit is subject to
regulation by a U.S. State regulatory agency, the Service or circuit
may be provided by Xxxxxxxx or its affiliates pursuant to applicable
state laws, regulations and applicable tariffs, or Xxxxxxxx and its
affiliates may discontinue provision of the affected Service or
circuit.
b. USE OF SERVICES.
(i) Customer represents that it is a telecommunications carrier under
the Communications Act of 1934, as amended or under the laws of the
jurisdiction where it operates. The parties do not contemplate, as of
the Effective Date, the filing of any tariff as to the Services
provided under this Agreement, however, in the event that due to a
court or agency ruling, or change in applicable law or regulation, this
Agreement becomes subject to a requirement of an FCC tariff, then
Xxxxxxxx will file a contract tariff with the FCC incorporating all of
the material terms and conditions of this Agreement, including pricing,
and the parties agree to abide by that contract tariff. Service may
also be subject to tariffs in jurisdictions outside of the United
States, and Xxxxxxxx' reserves the right to make its provision of
Services subject to such tariff terms. Customer represents that it has
taken all actions required by the FCC to operate as a
telecommunications carrier under the Communications Act of 1934, as
amended. Customer may engage in resale of international private lines
for the provision of a switched, basic telecommunication service only
upon authorization from the FCC under Section 214 of the Communications
Act of 1934, as amended, and provided that the private line is used
only (i) on a route where Customer exchanges switched traffic with a
foreign carrier that the FCC has determined lacks market power; or (ii)
on any route for with the FCC has authorized the provision of switched
services over international private lines. Service shall not be used
for any unlawful purpose.
(ii) Customer is responsible for ensuring that it and its customers
comply with Xxxxxxxx' Acceptable Use Policy ("AUP and Customer agrees
to be bound by the AUP as set forth in Exhibit B. Any material
violation of the AUP shall constitute a breach of this Agreement.
c. CUSTOMER FACILITIES. Customer has sole responsibility for installation,
testing and operation of facilities, services and equipment ("Customer
Facilities") other than those specifically provided by Xxxxxxxx as part
of the Services as described in a Service Order. In no event will the
untimely installation or non-operation of Customer Facilities relieve
Customer of its obligation to pay charges for the Services after
Customer's acceptance or deemed acceptance.
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d. UNIVERSAL SERVICE EXEMPTION. During the Term or Renewal Term of this
Agreement, Customer shall provide Xxxxxxxx, on a semiannual basis, a
universal service exemption certificate within thirty (30) days of the
Customer's filing of the universal service filing made with the
appropriate federal agency, evidencing that the Customer is required to
contribute to the federal Universal Service Fund. Customer agrees that
failure to provide such an exemption authorizes Xxxxxxxx to begin
billing Customer prospectively for Universal Service Fund contributions
pursuant to the applicable contribution factor (revised quarterly),
plus an administrative charge of one percent (1%).
8.8 TITLE TO EQUIPMENT. This Agreement shall not, and shall not be deemed to,
convey to the other party title of any kind to any of the transmission
facilities, digital encoder/decoders, telephone lines, microwave facilities
or other facilities utilized in connection with the Services.
8.9 NOTICES. All legal notices to be sent to a party pursuant to this Agreement
shall be in writing and deemed to be effective upon (i) personal delivery,
(ii) three (3) business days after mailing certified mail return receipt
requested if mailed within the domestic U.S., or (iii) one day after
mailing by express mail priority, next-day delivery. The Full Business
Address for purposes of notice under this Section as well as telephone
voice and facsimile numbers shall be:
Xxxxxxxx Communications, LLC Universal Access, Inc.
000 Xxxxx Xxxxxxxxxx 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
One Technology Center, 6th Floor Chicago, Illinois 60606
Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attention: Contract Management Attention: General Counsel
With a copy to: For billing issues to:
General Counsel Universal Access, Inc
Xxxxxxxx Communications, LLC 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
One Xxxxxxxx Center, 41st Floor Chicago, Illinois 60606
Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attention: Controller
8.10 WRITTEN AMENDMENT. Any addition, deletion or modification to this Agreement
shall not be binding on either party except by written amendment executed
by authorized representatives of both parties.
8.11 NO VENTURE. The provision of Services shall not create a partnership or
joint venture between the parties. The parties hereto are independent
contractors.
8.12 ASSIGNMENT. Customer shall not assign or otherwise transfer its rights or
obligations under this Agreement without the prior written consent of
Xxxxxxxx, which shall not be unreasonably withheld. However, Customer may
assign or otherwise transfer this Agreement, upon notice to Xxxxxxxx, to an
entity that acquires a controlling interest in Customer through assignment,
merger, sale or other transfer (provided that, prior to assignment or
transfer, (i) Customer is not in breach of this Agreement and no amounts
due under this Agreement are past due, (ii) such entity is reasonably
determined by Xxxxxxxx to be at least as creditworthy as Customer and
(iii) that such entity is subject to Section 5.5, Validation of Credit).
Any assignment or transfer of Customer's rights or obligations inconsistent
with this paragraph shall entitle Xxxxxxxx to terminate the Services or
Third Party Local Access Services provided hereunder at its option upon ten
(10) days prior written notice to Customer in accordance of 6.3 (a).
8.13 CHOICE OF LAW. This Agreement shall be governed by the laws of the State of
New York, U.S. without regard to choice of law principles.
8.14 INTERPRETATION. No rule of construction requiring interpretation against
the draftsman hereof shall apply in the interpretation of this Agreement.
Xxxxxxxx Communications Page 13 of 15
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
MASTER SERVICES AGREEMENT
8.15 PRIORITY OF AGREEMENT AND SCHEDULES. In the event of any inconsistency
between or among a Service Order, a Service Schedule, this Agreement and
any applicable tariff, the following order of precedence shall prevail
(from highest priority to lowest): the applicable tariff, if any, this
Agreement, a Service Schedule, a Service Order, and Exhibits.
8.16 NO THIRD PARTY BENEFICIARY. The provisions of this Agreement are for the
benefit only of the parties hereto, and no third party may seek to enforce
or benefit from these provisions.
8.17 COSTS AND ATTORNEYS' FEES. If a proceeding is brought for the enforcement
of this Agreement or because of any alleged or actual dispute, breach,
default or misrepresentation in connection with any of the provisions of
this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and other reasonable costs and expenses incurred
in such action or proceeding in addition to any other relief to which such
party may be entitled.
8.18 SEVERABILITY. If any term or provision of this Agreement shall, to any
extent, be determined to be invalid or unenforceable by a court or body of
competent jurisdiction, then (a) both parties shall be relieved of all
obligations arising under such provision and this Agreement shall be deemed
amended by modifying such provision to the extent necessary to make it
valid and enforceable while preserving its intent, and (b) the remainder of
this Agreement shall be valid and enforceable.
8.19 NO WAIVER. The failure of either party to enforce any provision hereof
shall not constitute the permanent waiver of such provision.
8.20 PUBLICITY AND REFERENCES. Subject to Section 8.6 Proprietary Information,
the parties contemplate and agree that publication of information relating
to this Agreement may occur through press releases, articles, interviews,
marketing materials, online materials, and/or speeches ("Publicity"). Both
parties must approve the content of any such Publicity prior to its
publication, which approval shall not be unreasonably withheld. No public
statements or announcements relating to this Agreement shall be issued by
either party without the prior written consent of the other party
8.21 HEADINGS. Descriptive headings contained in this Agreement are for
convenience and not intended as substantive portions of the Agreement. Such
headings shall have no affect upon the construction of the Agreement.
8.22 INDUSTRY TERMS. The parties intend that words having well-known technical
or trade meanings shall be accorded such meaning, unless expressly defined
otherwise.
8.23 DEFINITIONS. For purposes of this Agreement, capitalized words and phrases
shall have the respective meanings assigned to them in this Agreement.
8.24 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same agreement. Facsimile signatures shall be deemed
original signatures.
8.25 GENERAL APPLICABILITY OF PROVISIONS. Unless expressly excluded, all terms
of this Agreement are applicable to all sections of this Agreement,
notwithstanding the specific reference to such a term in any other
particular section.
8.26 INTELLECTUAL PROPERTY RIGHTS. Unless otherwise specifically agreed in
writing by the parties, each party shall retain all right, title and
interest in and to any intellectual property associated with the provision
of Services. If it should be necessary for a party to practice any patent,
copyright, trade secret or other non-trademark intellectual property of the
other party to avail itself of the Services, the parties shall negotiate in
good faith a license with respect to such intellectual property. Each party
acknowledges that the other party's name is proprietary to the other party.
This Agreement does not transfer, and confers no right to use, the name,
trademarks (including service marks), patents, copyrights, trade secrets,
other intellectual property of either party, except as expressly provided
herein. Neither party shall take any action inconsistent with the
intellectual property rights of the other party.
8.27 SURVIVAL OF TERMS. No termination of this Agreement shall affect the rights
or obligations of either party: (a) with respect to any payment for
services rendered before termination or credits or refunds owed; or (b)
pursuant to other provisions of this Agreement that, by their sense and
context, are intended to survive termination of this Agreement, including
without limitation, indemnification and limitation of liability.
8.28 MERGER/INTEGRATION. This Agreement consists of all the terms and conditions
contained herein and in documents incorporated herein specifically by
reference. This Agreement constitutes the complete and exclusive statement
of the understanding between the parties and supersedes all proposals and
prior agreements (oral or written) between the parties relating to Services
provided hereunder. This Agreement is not intended to supercede those
Agreements entered into by the parties
Xxxxxxxx Communications Page 14 of 15
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
MASTER SERVICES AGREEMENT
contemporaneously herewith, including the Letter Agreement, the Collocation
Agreement, and the Consulting Services Agreement.
[Remainder of page left intentionally blank]
Xxxxxxxx Communications Page 15 of 15
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
MASTER SERVICES AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Master Services
Agreement effective as of the day and year first above written. The offer
expressed in this Agreement is extended to Customer for thirty (30) calendar
days from date of Xxxxxxxx' signature, but such offer shall expire immediately
following such thirty (30) calendar day period.
UNIVERSAL ACCESS, INC.: XXXXXXXX COMMUNICATIONS, LLC:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxx
-------------------------------- -----------------------------------------
Signature of Authorized Signature of Authorized
Representative Representative
Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxx
-------------------------------- -----------------------------------------
Printed Name Printed Name
President, Global Operations President and Chief Executive Officer
-------------------------------- -----------------------------------------
Title Title
10/03/01 10/03/01
-------------------------------- -----------------------------------------
Date of Signature Date of Signature
Xxxxxxxx Communications Page 15 of 15
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
EXHIBIT A
EXISTING CIRCUITS
---------------------------------------------------------------------------------------------------------------------------
Circuit ID Circuit Status Term in Product Date Service Type Location Location
Months Type Completed A City Z City
---------------------------------------------------------------------------------------------------------------------------
TWC00004271 Active 60 DS3 29-Mar-99 Private Line New York City Miami
---------------------------------------------------------------------------------------------------------------------------
TWC00005351 Active 60 DS3 16-Apr-99 Private Line Washington Atlanta
---------------------------------------------------------------------------------------------------------------------------
TWC00005352 Active 60 DS3 16-Apr-99 Private Line Xxxxxx Atlanta
---------------------------------------------------------------------------------------------------------------------------
TWC0000613 Active 60 DS3 07-Jan-99 Private Line Chicago Denver
---------------------------------------------------------------------------------------------------------------------------
TWC0000653 Active 60 DS3 00-Xxx-00 Xxxxxxx Xxxx Xxxxxxxx Xxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------
TWC0000665 Active 60 DS3 00-Xxx-00 Xxxxxxx Xxxx Xxxxxxx Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX0000000 Active 60 DS3 00-Xxx-00 Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX0000000 Active 60 DS3 28-Sep-98 Private Line San Francisco San Xxxx
---------------------------------------------------------------------------------------------------------------------------
TWC0000681 Active 60 DS3 03-Dec-98 ATM Chicago Broadview
---------------------------------------------------------------------------------------------------------------------------
TWC00006933 Active 60 OC3 11-Jun-99 Private Line San Xxxx Seattle
---------------------------------------------------------------------------------------------------------------------------
TWC002171 Active 60 DS3 00-Xxx-00 Xxxxxxx Xxxx Xxxxx Xxxxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 60 DS3 25-May-99 Private Line Boston Manhattan
---------------------------------------------------------------------------------------------------------------------------
TWC110593 Active 12 DS3 10-Sep-99 Private Line Xxxxxx New York City
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 60 DS3 30-Dec-99 Private Line Los Angeles San Diego
---------------------------------------------------------------------------------------------------------------------------
TWC147240 Active 36 DS3 11-Feb-00 Private Line Los Angeles San Diego
---------------------------------------------------------------------------------------------------------------------------
TWC155665 Active 60 DS3 28-Jan-00 Private Line Akron Detroit
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 60 DS3 19-Jan-00 Private Line Akron Cincinnati
---------------------------------------------------------------------------------------------------------------------------
TWC164440 Active 60 DS3 00-Xxx-00 Xxxxxxx Xxxx Xxxxxxx Xxxxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 12 DS1 15-Aug-00 Private Line Cleveland Cincinnati
---------------------------------------------------------------------------------------------------------------------------
TWC248230 Active 12 DS1 15-Aug-00 Private Line Cleveland Cincinnati
---------------------------------------------------------------------------------------------------------------------------
TWC262353 Active 60 DS3 23-Jun-00 Private Line Xxxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------
TWC262924 Active 60 DS1 24-May-00 Private Line New York City Philadelphia
---------------------------------------------------------------------------------------------------------------------------
TWC262953 Active 60 DS1 24-May-00 Private Line Raleigh Reston
---------------------------------------------------------------------------------------------------------------------------
TWC272307 Active 60 DS1 31-Aug-00 Private Line Manhattan Stamford
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 60 DS1 15-Sep-00 Private Line Manhattan Stamford
---------------------------------------------------------------------------------------------------------------------------
TWC285568 Active 24 DS1 03-Jul-00 Private Line Minneapolis Minneapolis
---------------------------------------------------------------------------------------------------------------------------
TWC290208 Active 60 DS1 04-Aug-00 Private Line Los Angeles Salt Lake City
---------------------------------------------------------------------------------------------------------------------------
TWC369045 Active 12 DS3 17-Jan-01 Private Line Washington Baltimore
---------------------------------------------------------------------------------------------------------------------------
TWC369159 Active 12 DS3 17-Jan-01 Private Line Washington Baltimore
---------------------------------------------------------------------------------------------------------------------------
TWC374878 Active 24 OC12 14-Mar-01 Private Line Sacramento Los Angeles
---------------------------------------------------------------------------------------------------------------------------
TWC376178 Active 12 DS3 00-Xxx-00 Xxxxxxx Xxxx Xxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 12 DS3 09-Jan-01 Private Line Kansas City Topeka
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 12 DS1 04-Dec-00 Private Line Los Angeles Santa Xxxxx
---------------------------------------------------------------------------------------------------------------------------
TWC388705 Active 12 DS1 06-Dec-00 Private Line Denver Los Angeles
---------------------------------------------------------------------------------------------------------------------------
TWC392921 Active 12 DS3 31-Jan-01 Private Line Denver Dallas
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 36 DS1 24-Jan-01 Private Line Xxxxxx Washington
---------------------------------------------------------------------------------------------------------------------------
TWC394040 Active 12 DS1 29-Jan-01 Private Line Santa Xxxxx New York City
---------------------------------------------------------------------------------------------------------------------------
TWC417182 Active 60 DS1 25-Jan-01 Private Line Xxxxxxx Minneapolis
---------------------------------------------------------------------------------------------------------------------------
TWC431996 Active 12 DS1 21-Mar-01 Private Line Xxxxxxx Atlanta
---------------------------------------------------------------------------------------------------------------------------
TWC431998 Active 12 DS1 04-Apr-01 Private Line Newark Philadelphia
---------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Communications Page 1 of 3
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
EXHIBIT A
EXISTING CIRCUITS
---------------------------------------------------------------------------------------------------------------------------
Circuit ID Circuit Status Term in Product Date Service Type Location Location
Months Type Completed A City Z City
---------------------------------------------------------------------------------------------------------------------------
TWC436486 Active 12 DS1 14-Mar-01 Private Line Los Angeles Houston
---------------------------------------------------------------------------------------------------------------------------
TWC438927 Active 12 DS1 14-Mar-01 Private Line Los Angeles Houston
---------------------------------------------------------------------------------------------------------------------------
TWC446073 Active 12 DS1 17-Apr-01 Private Line Los Angeles San Francisco
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 12 DS1 05-Apr-01 Private Line New York City Newark
---------------------------------------------------------------------------------------------------------------------------
TWC446876 Active 12 DS3 27-Apr-01 Private Line New York City Chicago
---------------------------------------------------------------------------------------------------------------------------
TWC447643 Active 12 STM1 02-Apr-01 Xxxxxxx Xxxx Xxx Xxxx Xxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 12 STM1 02-Apr-01 Xxxxxxx Xxxx Xxx Xxxx Xxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 12 STM1 30-Mar-01 Xxxxxxx Xxxx Xxx Xxxx Xxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 12 STM1 30-Mar-01 Xxxxxxx Xxxx Xxx Xxxx Xxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 12 DS1 31-May-01 Private Line Xxxxxxx Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 12 DS1 03-May-01 Private Line Dallas W. Palm Beach
---------------------------------------------------------------------------------------------------------------------------
TWC450682 Active 12 DS1 18-May-01 Private Line Los Angeles Denver
---------------------------------------------------------------------------------------------------------------------------
TWC450745 Active 12 DS1 18-May-01 Private Line Los Angeles Denver
---------------------------------------------------------------------------------------------------------------------------
TWC453307 Active 12 DS3 11-Apr-01 Private Line Los Angeles Santa Xxxxx
---------------------------------------------------------------------------------------------------------------------------
TWC460834 Active 12 DS1 23-May-01 Private Line New York City Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
TWC460836 Active 12 DS1 23-May-01 Private Line New York City Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
TWC473511 Active 12 DS1 29-May-01 Private Line Dallas Los Angeles
---------------------------------------------------------------------------------------------------------------------------
TWC481652 Active 12 DS1 05-Jun-01 Private Line Los Angeles New York City
---------------------------------------------------------------------------------------------------------------------------
TWC494926 Active 12 DS1 29-Jun-01 Private Line Los Angeles Portland
---------------------------------------------------------------------------------------------------------------------------
TWC495030 Active 12 DS1 29-Jun-01 Private Line Los Angeles Portland
---------------------------------------------------------------------------------------------------------------------------
TWC515174 Active 12 DS1 09-Jul-01 Private Line Newark Dallas
---------------------------------------------------------------------------------------------------------------------------
TWC515175 Active 12 DS1 09-Jul-01 Private Line Newark Dallas
---------------------------------------------------------------------------------------------------------------------------
TWC515178 Active 12 DS1 10-Jul-01 Private Line Newark Dallas
---------------------------------------------------------------------------------------------------------------------------
TWC531956 Active 12 DS1 31-Jul-01 Private Line New York City Atlanta
---------------------------------------------------------------------------------------------------------------------------
TWC531981 Active 12 DS1 31-Jul-01 Private Line New York City Atlanta
---------------------------------------------------------------------------------------------------------------------------
TWC532202 Active 12 DS1 27-Jul-01 Private Line New York City Boston
---------------------------------------------------------------------------------------------------------------------------
TWC532231 Active 12 DS1 18-Jul-01 Private Line New York City Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
TWC532288 Active 12 DS1 18-Jul-01 Private Line New York City Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Active 12 DS1 18-Jul-01 Private Line New York City Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
TWC532696 Active 12 DS1 27-Jul-01 Xxxxxxx Xxxx Xxx Xxxx Xxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Pending 12 DS3 28-Sep-01 Private Line Buffalo Minneapolis
---------------------------------------------------------------------------------------------------------------------------
TWC609843 Pending 12 DS1 15-Oct-01 Xxxxxxx Xxxx Xxx Xxxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Pending 12 DS1 19-Oct-01 Private Line Miami Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
TWC612417 Pending 12 DS1 10-Oct-01 Private Line Minneapolis Chicago
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Pending 12 DS1 24-Oct-01 Xxxxxxx Xxxx Xxx Xxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Pending 12 DS1 24-Oct-01 Xxxxxxx Xxxx Xxx Xxxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Pending 12 DS1 24-Oct-01 Xxxxxxx Xxxx Xxx Xxxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Pending 12 DS1 24-Oct-01 Private Line Dallas Anaheim
---------------------------------------------------------------------------------------------------------------------------
TWC620395 Pending 12 DS1 30-Oct-01 Private Line Newark Ft. Lauderdale
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Pending 12 DS1 2-Nov-01 Private Line New York City Miami
---------------------------------------------------------------------------------------------------------------------------
TWC645368 Pending 12 DS3 2-Nov-01 Private Line New York City Newark
---------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Communications Page 2 of 3
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
EXHIBIT A
EXISTING CIRCUITS
---------------------------------------------------------------------------------------------------------------------------
Circuit ID Circuit Status Term in Product Date Service Type Location Location
Months Type Completed A City Z City
---------------------------------------------------------------------------------------------------------------------------
TWC645369 Pending 12 DS3 2-Nov-01 Private Line New York City Newark
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Pending 12 DS3 2-Nov-01 Xxxxxxx Xxxx Xxx Xxxx Xxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------
XXX000000 Pending 12 OC12 28-Sep-01 Private Line Seattle Palo Alto
---------------------------------------------------------------------------------------------------------------------------
TWC637937 Pending 12 DS1 15-Nov-01 Private Line Xxxxxxx Chicago
---------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Communications Page 3 of 3
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
EXHIBIT B
SERVICE DELIVERY PROCESS AND ACCEPTABLE USE POLICY
CUSTOMER SERVICE
SERVICE DELIVERY PROCESSES
SERVICE ORDERS AND PROVISIONING OF CIRCUITS
Data Circuits and Voice Grade Dedicated Access Line Circuits: Service Orders. A
Customer's request for service shall be made on Xxxxxxxx' Service Order forms in
effect from time to time or on Customer's forms which have previously been
accepted in writing by Xxxxxxxx ("Service Order(s)"). Each Service Order shall
reference the written agreement ("Agreement") between Xxxxxxxx and the Customer
regarding the provision of telecommunication service ("Service") and the
Customer's Agreement number. Xxxxxxxx will accept any Service Order under the
Customer's Agreement that comports with the terms and conditions set forth in
such Customer's Agreement and as otherwise set forth herein, subject to
availability and credit approval at the time Customer places such Service Order.
REQUESTED START DATE. When a Service Order is placed, Customer will designate:
(i) a requested start date ("Requested Start Date") for the Service; (ii) the
desired term of the Service; (iii) the specific city pairs; (iv) the applicable
bandwidth; (v) whether Customer or Xxxxxxxx will be obtaining Third Party Local
Access Services; and (vi) any other information necessary for Xxxxxxxx to
provide the Service. Xxxxxxxx will make reasonable efforts to meet Customer's
Requested Start Date. In the event that Xxxxxxxx is unable to meet Customer's
Requested Start Date, Xxxxxxxx will notify Customer of the date when Xxxxxxxx
believes the Service will be available and Customer's Requested Start Date will
be changed to reflect the number of days of delay or advance, as appropriate.
IMPLEMENTATION INTERVALS. Xxxxxxxx' standard service implementation intervals
for each of the Services provided by Xxxxxxxx on its own network are set forth
individually for each Service in the respective Service Schedules attached to
the Customer's Agreement. A Service Order is deemed accepted by Xxxxxxxx when
Xxxxxxxx' Service Delivery department transmits an electronic Order Confirmation
Document ("OCD") to Customer which contains a Xxxxxxxx' circuit identification
number. Service implementation intervals for Services provided either partially
or wholly off of Xxxxxxxx' owned and operated network, shall be determined on an
individual case basis and shall be subject to service-specific terms and
conditions of the of the provider of the third party services, such as the
service level parameters and related warranties, if any, pricing, surcharges,
outage credits, required commitments and termination liability. Xxxxxxxx shall
make reasonable efforts to provide Services within its standard service
implementation interval or on Customer's Requested Start Date. Failure of
Xxxxxxxx to deliver within such interval or by such Requested Start Date shall
not constitute a default under Customer's Agreement and Xxxxxxxx shall not be
liable to pay to Customer any penalties or damages for Xxxxxxxx' failure to meet
such standard service implementation intervals or Requested Start Date.
TURN UP ACKNOWLEDGEMENT. Xxxxxxxx will issue to Customer an electronic notice
that Service is available ("Turn Up Acknowledgement" or "TUA"). The TUA will
indicate that the relevant Service has been tested by Xxxxxxxx and that the
Xxxxxxxx' provided portion of the service meets or exceeds the Technical
Specifications set forth in the relevant Service Schedule and whether any
related third party Service is currently available. The TUA will also set forth
the date Customer's Service will be ready for use by Customer and upon which
Xxxxxxxx shall commence charging for the Service ("Circuit Effective Billing
Date"). Customer shall be deemed to have accepted Service and Xxxxxxxx shall
begin billing for the Service as of the Circuit Effective Billing Date, provided
that, if Customer notifies Xxxxxxxx' Service Delivery Department in writing
within three (3) business days of the Circuit Effective Billing Date that
Xxxxxxxx' Service is in material non-compliance with the applicable Technical
Specifications and if, upon investigation, such material non-compliance is due
solely to Xxxxxxxx' fault, then Xxxxxxxx shall correct the non-compliance and
make the appropriate adjustment to Customer's xxxxxxxx under the Customer's
Agreement. The occurrence of any such non-compliance shall not constitute a
default under the Customer's Agreement and Xxxxxxxx shall not be liable to pay
to Customer any penalties or damages resulting from any such non-compliance.
Charges for Service begin accruing upon Circuit Effective Billing Date,
regardless of whether Customer is actually using the Service, or is ready to
test and accept the Service.
Xxxxxxxx Communications Page 1 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
EXHIBIT B
SERVICE DELIVERY PROCESS AND ACCEPTABLE USE POLICY
CUSTOMER SERVICE
SERVICE DELIVERY CHARGES
NON-RECURRING AND ENHANCED SERVICE CHARGES.
The following is a list of the most common circumstances under which Xxxxxxxx
assesses a separate, non-recurring charge in connection with the service being
provided.
NEW ORDER INSTALLATION. Installation Charges apply when Xxxxxxxx provides new or
additional Interexchange Service ("IXC") or when Xxxxxxxx obtains new or
additional Third Party Local Access (including feature group service) on the
Customer's behalf. Xxxxxxxx will charge the Customer for IXC installation and
for issuing an Access Service Request ("ASR") to the Third Party Local Access
provider, i.e., Local Exchange Carrier ("LEC") or by-pass carrier, i.e.,
Competitive Access Provider ("CAP"). All Third Party Local Access provider
charges are billed to the Customer. This charge applies to both data and voice
services.
CHANGE OF SERVICE ORDER CHARGE. If Customer requests a modification to the
information contained in a Service Order (other than a Change of Service Date)
prior to completion of installation of the Service, Customer may incur a Change
of Service Order Charge. No charge will be incurred if the change is
administrative in nature (i.e. billing address, contact information, etc.). If
the change is requested prior to facilities being slotted, a Change of Service
Order, Pre-Engineering charge will apply. If the change is requested after
facilities have been slotted, a Change of Service Order, Post-Engineering charge
shall apply. A charge will be incurred if the administrative change relates to
Third Party Local Access for which Xxxxxxxx is acting as agent. This charge
applies to both data and voice services.
ORDER CANCELLATION CHARGE. If Customer desires to cancel a Service Order prior
to installation or acceptance of the Service, Customer will incur a Cancellation
Charge. If Customer cancels the Service Order prior to facilities being slotted,
Customer will be assessed a Pre-Engineering Cancellation Charge. If Customer
cancels the Service Order after facilities have been slotted, Customer will be
assessed a Post-Engineering Cancellation Charge. In addition to the Cancellation
Charge, Customer will be required to reimburse Xxxxxxxx for any cancellation
charges relating to Third Party Local Access or other third party service for
which Xxxxxxxx is acting as agent on behalf of Customer. This charge applies to
both data and voice services.
ASR SPECIAL ACCESS. Third Party Local Access providers supply standard service
at tariffed rates. Any local access request that the Third Party Local Access
provider defines as "special" will be subject to the ASR Special Access charges.
This charge is an administrative charge for handling the special access request.
In addition to Xxxxxxxx' administrative charge, Customer shall be responsible
for all charges imposed by Third Party Local Access providers in fulfilling the
request. This charge applies to both data and voice services.
ORDER EXPEDITE CHARGE. An Order Expedite Charge will apply when Customer
requests that a Service be turned-up on a date, which is earlier than Xxxxxxxx'
standard implementation interval. If Customer requests that a Service Order be
expedited and the expedited order fails to be installed in the standard
interval, the expedite charge will still apply. This charge applies to both data
and voice services.
CROSS CONNECT INSTALL CHARGE. Cross Connect charges shall apply to connections
between Customer Equipment, Xxxxxxxx facilities or network, and the equipment or
cable of third parties.
THIRD PARTY ORDER EXPEDITE CHARGES. These charges are assessed by a Third Party
Service Provider (e.g., Third Party Local Access Providers) if Customer requests
expedited services and/or changes to Service Order and Xxxxxxxx agrees to such
request. This charge applies to both data and voice services.
MISCELLANEOUS. Customer should be aware that from time to time, third-party
charges are levied to Xxxxxxxx after submission of the original Service Order
from Customer. Xxxxxxxx may be obligated to pass these charges to Customer.
Xxxxxxxx will inform Customer of any such charges before the charges are passed
to Customer. Xxxxxxxx cannot commit that all charges related to an order will
always be on the original Service Order. This charge applies to both data and
voice services.
Xxxxxxxx Communications Page 2 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
EXHIBIT B
SERVICE DELIVERY PROCESS AND ACCEPTABLE USE POLICY
CUSTOMER SERVICE
ACCEPTABLE USE POLICY
Acceptable Use Policy Xxxxxxxx Communications, LLC ("Xxxxxxxx") has established
this Acceptable Use Policy to advise the users of its network and services of
the acceptable and prohibited uses of its network and services. Xxxxxxxx'
network and services must be used only for lawful purposes and for purposes
consistent with this Acceptable Use Policy.
1. Users are prohibited from violating any system or network security measures
including but not limited to engaging in: unauthorized access or use of
Xxxxxxxx' or a third party's network, data, or information;
o unauthorized monitoring of Xxxxxxxx' or third party's data, systems
or network traffic;
o interference with a third party's use of Xxxxxxxx' network or
service.
2. Users are prohibited from engaging in activities that cause interference with
a third party's ability to connect to the Internet or provide services to
Internet users.
3. Users are prohibiting from sending unsolicited email messages. Users shall
not: post ten (10) or more messages similar in content to Usenet or other
newsgroups, forums, email mailing lists or other similar groups or lists;
post any Usenet or other newsgroup, forum, email mailing list or other
similar group or list articles which are off-topic according to the charter
or other owner-published FAQ or description of the group or list; Send
unsolicited email of commercial content to Internet users, or any unsolicited
email that could reasonably be expected to provoke complaints.
4. Users are prohibited from creating, storing or disseminating any material
containing unlawful content including materials protected by trademark, trade
secret, copyright or other intellectual property rights without proper
authorization, material that is libelous, slanderous, an invasion of privacy
or otherwise illegal.
5. Users are prohibited from falsifying user information provided to Xxxxxxxx or
to other users in connection with use of a Xxxxxxxx'x service.
6. Users are prohibited from engaging in any of the foregoing activities by
using the service of another provider, but channeling such activities through
a Xxxxxxxx account, remailer, or otherwise through a Xxxxxxxx service or
using a Xxxxxxxx account as a maildrop for responses or otherwise using the
services of another provider for the purpose of facilitating the forgoing
activities if such use of another party's service could reasonably be
expected to adversely affect a Xxxxxxxx service.
Xxxxxxxx considers the above practices to constitute abuse of its service.
Engaging in one or more of these practices may result in termination of a user's
access to Xxxxxxxx' services. Nothing contained in this policy shall be
construed to limit Xxxxxxxx' actions or remedies in any way with respect to any
of the foregoing activities, and Xxxxxxxx reserves the right to take any and all
additional actions it may deem appropriate with respect to such activities,
including without limitation taking action to recover the costs and expenses of
identifying offenders and removing them from the Xxxxxxxx service, and levying
cancellation charges to cover Xxxxxxxx' costs. Xxxxxxxx will investigate
violations of policy and will cooperate with law enforcement officials for
suspected criminal violations. In addition, Xxxxxxxx'x reserves at all times all
rights and remedies available to it with respect to such activities at law or in
equity.
Xxxxxxxx Communications Page 3 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 1
PRIVATE LINE SERVICE
This Service Schedule is subject to that Master Services Agreement No.
________________ ("Agreement") by and between Xxxxxxxx Communications, LLC
("Xxxxxxxx"), and Customer.
SECTION 1. PRIVATE LINE SERVICES
1.1 SERVICE DESCRIPTION. Xxxxxxxx' Private Line Service ("Private Line
Service") provides domestic XX-0, XX-0 and Optical SONET (OC-N) circuits
which are specifically dedicated to Customer's use between two (2) points
specified by the parties in a Service Order and meeting the technical
requirements as defined below in Section 5, Technical Specifications for
Private Line Service. In addition, Private Line Service includes only those
circuits where the entire circuit shall be located solely upon the
Xxxxxxxx' owned and operated network and both end points of such circuit
shall originate or terminate at a Xxxxxxxx point of presence.
SECTION 2. RECURRING RATES AND CHARGES
2.1 MONTHLY RECURRING RATES.
Interexchange Rates. Interexchange rates for Private Line Services
wholly on Xxxxxxxx' owned and operated network are as set forth in
Table A.1. Pricing in Table A.1 will apply for any Service, unless the
parties agree to different rates, which will be determined on an
individual case basis ("ICB"). In any event the applicable rates will
be set forth on Customer's Service Order.
----------------------------------------------------
TABLE A.1. MONTHLY RECURRING RATES
----------------------------------------------------
TERM DS1 DS3 OC3 OC12 OC-48
----------------------------------------------------
1 year $[***] $[***] $[***] $[***] $[***]
----------------------------------------------------
RATES ARE PER VGE V&H MILE
----------------------------------------------------
2.2 MINIMUM MONTHLY RECURRING CHARGE. Notwithstanding the foregoing, the
minimum monthly recurring charge for any Interexchange circuit ordered by
Customer will be priced in accordance with Table A.2 below.
----------------------------------------------------------------------------------------
TABLE A.2 DS-1 DS-3 OC-3 OC-12 OC-48
----------------------------------------------------------------------------------------
Minimum Monthly Recurring Charge $[***] $[***] $[***] $[***] $[***]
----------------------------------------------------------------------------------------
2.3 THIRD PARTY LOCAL ACCESS RATES. If a Customer requests a Letter of Agency
("LOA") for a DS1 Private Line circuit, Xxxxxxxx will issue LOA/CFA
(Carrier Facilities Assignment) from the ILEC Central Office, which serves
Xxxxxxxx' facilities. The Customer will then be responsible for a monthly
recurring Local Service Arrangement ("LSA") charge for the channel
termination and any applicable mileage between the ILEC Central Office and
Xxxxxxxx' facilities. The LSA only applies to DS1 Private Line circuits and
is set forth in Table A.3. For DS-3 through OC-48 Private Line circuits, or
for any Private Line circuits not entirely located on Xxxxxxxx' owned and
operated network, an entrance facility charge plus any applicable mileage
charges will be assessed at standard tariff rates if Xxxxxxxx issues CFA.
----------------------------------------------------
TABLE A.3 DS-1
----------------------------------------------------
Monthly Recurring LSA Charge $[***]
----------------------------------------------------
Non-Recurring LSA Installation Charge $[***]
----------------------------------------------------
2.4 3:1 MUX. 3:1 Muxing allows Customer to aggregate multiple DS-1's in a
single Xxxxxxxx'x POP for transport and termination on a single DS-3 to
another Xxxxxxxx POP. For example, Customer orders five (5) DS1's from POP
A to POP X. Xxxxxxxx will mux the DS1's in POP A for transport on a single
DS3 at the price listed in Table A.4 and terminate a DS3 to Customer at POP
X. Xxxxxxxx will not demux the DS1's at the POP B location.
----------------------------------------------------
TABLE A.4 DS-3
----------------------------------------------------
Monthly Recurring 3:1 Mux Charge $[***]
----------------------------------------------------
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 1 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
Schedule 1
Private Line Service
SECTION 3. NON-RECURRING RATES AND CHARGES
3.1 NON-RECURRING CHARGES. Non-Recurring Charges may be incurred for Private
Line connections. Non-Recurring Charges are set forth in Table A.5 below.
--------------------------------------------------------------------------------------------------------
TABLE A.5 NON-RECURRING CHARGES DS-1 DS-3 OC-3 OC-12 OC-48
--------------------------------------------------------------------------------------------------------
New Order Installation $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
Change Of Service Date Charge (1st change free) $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
Change Of Service Order Charge
--------------------------------------------------------------------------------------------------------
Pre-engineering $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
Post-engineering $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
Order Cancellation
--------------------------------------------------------------------------------------------------------
Pre-engineering $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
Post-engineering $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
Reconfiguration Charge $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
Access Service Request (ASR) $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
Access Service Request (ASR) Change $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
Order Expedite $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
Cross Connect Install Charge $[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------
In addition to the above charges, Customer is required to reimburse
Xxxxxxxx for any Third Party Provider charges relating to Customer's
service. Non-Recurring Charges not described above will be considered
special requests and will be handled on an individual case basis. All
of the charges stated above are subject to change with thirty (30)
calendar day's notice. See Exhibit B for a complete description of the
above charges
3.2 INSTALLATION CHARGES. For Xxxxxxxx Services, installation charges shall be
[***]***Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been requested
with respect to the omitted portions..
3.3 MISCELLANEOUS. Customer should be aware that from time to time, third-party
charges are levied to Xxxxxxxx after submission of the original Service
Order from Customer. Xxxxxxxx may be obligated to pass these charges to
Customer. Xxxxxxxx will inform Customer of any such charges before the
charges are passed to Customer as referenced in Section 5.3 of the
Agreement. Xxxxxxxx cannot commit that all charges related to any requested
Service will always be on the original Service Order.
3.4 NON-RECURRING PRICING. Pricing for Non-Recurring Private Line Service shall
be as set forth in this Section 3 and are subject to change upon thirty
(30) calendar days' written or electronic notice by Xxxxxxxx to Customer.
Price changes shall only be effective on a going-forward basis and shall
not apply to Service Orders placed by Customer and accepted by Xxxxxxxx
prior to the effective date of the respective price change.
SECTION 4. OUTAGE CREDITS
4.1 OUTAGE CREDITS. Customer acknowledges the possibility of an unscheduled,
continuous and/or interrupted period of time during which Private Line
Service is unavailable or fails to conform to the Technical Specifications
below ("Outage"). An Outage shall begin upon the earlier of Xxxxxxxx'
actual knowledge of the Outage or Xxxxxxxx' receipt of notice from the
Customer of the Outage. In the event of an Outage, Customer shall be
entitled to a credit ("Outage Credit") upon Xxxxxxxx' receipt of Customer's
written request for such Outage Credit. The amount of the Outage Credit for
Private Line Service shall be an amount equal to 1/720 of the monthly
recurring charge for the interexchange portion of the Service for each hour
in excess of the first two (2) consecutive hours that the affected Service
is unavailable or fails to conform to the Technical Specifications.
4.2 EXCESSIVE OUTAGES. If a single circuit experiences either (a) three (3) or
more outages of fifteen (15) minutes duration or longer during any thirty
(30) day period, or (b) one or more outages of fifteen (15) minutes each in
each of three (3) consecutive months or (c) one (1) outage of more than
twenty-four (24) consecutive hours in a one (1) calendar month period,
("Excessive Outage"), Customer shall be entitled, in addition to the
applicable Outage Credit, if any, to terminate such circuits as are
affected by the Excessive Outage without liability for the Early
Termination Charge set forth in Section 6.4 of the Agreement. However,
Customer shall be liable for any termination liability associated with
Third Party Local Access Service or any other
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 2 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 1
PRIVATE LINE SERVICE
Third Party Service associated with such disconnection.
In the event Customer terminates a circuit for an Excessive Outage pursuant
to this Section and such termination causes the Customer to fall below
their Revenue Commitment, such terminated circuit shall count toward
Customer's Annual Commitment as if it had not been terminated.
4.3 REMEDY. The Outage Credit and right to terminate for an Excessive Outage as
set forth in this Section 4 shall be the sole and exclusive remedy of
Customer in the event of any Outage and under no circumstances shall an
Outage be deemed a default under the Agreement.
4.4 LIMITATIONS. Customer shall not receive an Outage Credit if the Outage is
(i) of a duration of less than two (2) consecutive hours; (ii) caused by
Customer or others authorized by Customer to use the Services under the
Agreement; (iii) due to the failure of power, facilities, equipment,
systems or connections not provided by Xxxxxxxx; (iv) caused by the failure
of Third Party Local Access Service to Xxxxxxxx' fiber optic network; (v)
the result of scheduled maintenance where Customer has been notified of
scheduled maintenance in advance; or (vi) due to a Force Majeure event as
defined in the Agreement.
4.5 CREDIT PAYMENT. Outage Credits shall be credited on Customer's next monthly
invoice for the affected Service.
SECTION 5. TECHNICAL SPECIFICATIONS
5.1 TECHNICAL SPECIFICATIONS. Interconnection Specifications for DS-1 service
is provided in accordance with ANSI Standard T1.102 and T1.403 (formerly
AT&T Compatibility Bulletin 119). DS-1 Service operates at 1.544 Mbps. DS-3
service is provided in accordance with ANSI Standard T1.102 and T1.404.
DS-3 Service operates at 44.736 Mbps. Optical SONET Services are provided
in accordance with ANSI Standard T1.105. OC-3 Service operates at 155.520
Mbps and is configured with 3 separate STS-1 signaling paths. OC-3C Service
operates at 155.520 Mbps and is configured with 1 STS-3C signaling path (or
3 concatenated STS-1 signaling paths). OC-12 Service operates at 622.080
Mbps with 12 separate STS-1 signaling paths. OC-12C Service operates at
622.080 Mbps with 1 STS-12C signaling path (or 4 separate STS-3C signaling
paths). OC-48 Service operates at 2488.320 Mbps and is configured with 48
separate STS-1 signaling paths. The standards by which Xxxxxxxx' Private
Line Services is measured apply on a one-way basis between Xxxxxxxx' POPs
only.
5.2 NETWORK AVAILABILITY. Network Availability is a measurement of the percent
of total time that service is operative when measured over a 365
consecutive day (8760 hour) period. DS1, DS-3 and Optical SONET Service is
considered inoperative when there has been a loss of signal or when two
consecutive 15 second loop-back tests confirm the observation of a bit
error rate equal to or worse than 1 x 10-6. For DS-N level Services on
Xxxxxxxx' network, availability shall be 99.95% from POP to POP measured
over a one-year period. For OC-N level Services on Xxxxxxxx' network,
availability shall be 99.95% from POP to POP measured over a one-year
period. Network availability for Services of a Third Party Provider is
established by the Third Party Provider. The local access availability
standards for DS-1 and DS-3 and Optical SONET Services are established by
the Third Party Local Access Service provider.
5.3 MEAN TIME TO RESTORE. Mean Time to Restore (MTTR) shall be the average time
required to restore service and resume availability and is stated in terms
of equipment and cable outages. The time is measured from the moment the
outage is reported until the service is available. With respect to Private
Line Service, Xxxxxxxx has an objective of repairing network equipment
within an average of two (2) hours and an objective to have the first fiber
on a cable cut restored within an average of six (6) hours. Xxxxxxxx will
undertake repair efforts on equipment or fiber when Xxxxxxxx first becomes
aware of the problem, or when notified by Customer and Customer has
released all or part of the Service for testing. The maintenance standards
in this Section 5.3 only apply for equipment or fiber on Xxxxxxxx' owned
and operated network and from Xxxxxxxx' POP to Xxxxxxxx' POP.
5.4 ERROR FREE SECONDS. Performance is noted in Error Free Seconds (Error Free
Seconds ("EFS"), while Available) which is a measure of the percentage of
total seconds that do not contain bit errors over a consecutive twenty-four
(24) hour period. Performance shall be measured on a one-way basis using a
Pseudo Random Bit Sequence test pattern as defined in CCITT Recommendation
0.151. For Services on Xxxxxxxx' network, EFS shall be 99.5% from POP to
POP measured over a one-year
period. For Services not on Xxxxxxxx' network, the EFS standards for local
access DS1, DS-3 and Optical SONET Service is
Xxxxxxxx Communications Page 3 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 1
PRIVATE LINE SERVICE
established by the Third Party Local Access Service provider. For Services
from a Third Party Provider, the Third Party Provider will establish EFS.
SECTION 6. PRODUCT INTERVALS
6.1 IMPLEMENTATION INTERVALS. Xxxxxxxx' standard service implementation
interval for DSN and OCN Service is set forth below in Table A.6. Third
Party Provider Service implementation intervals shall be determined on an
individual case basis. Xxxxxxxx shall make reasonable efforts to provide
Xxxxxxxx' Services within its standard service implementation interval.
Failure of Xxxxxxxx to deliver by such date shall not constitute a default
under the Agreement and Xxxxxxxx shall not be liable to pay to Customer any
penalties or damages for Xxxxxxxx' failure to meet such standard service
implementation intervals, except as set forth in Section 3.4 of the
Agreement.
----------------------------------------------
TABLE A.6 IMPLEMENTATION INTERVALS
---------------------- -----------------------
STANDARD INTERVAL
SERVICE TYPE POP TO POP
---------------------- -----------------------
DS1 [***] calendar days
---------------------- -----------------------
DS3 [***] calendar days
---------------------- -----------------------
OC3 [***] calendar days
---------------------- -----------------------
OC12 [***] calendar days
---------------------- -----------------------
OC48 [***] calendar days
---------------------- -----------------------
SECTION 7. PLANNED NETWORK MAINTENANCE ACTIVITY
7.1 TIMING. Xxxxxxxx shall avoid performing network maintenance between 0600 to
2200 Central Time (or local time with respect to facilities comprising
international Service), Monday through Friday, inclusive, that will have a
disruptive impact on the continuity or performance level of Customer's
Service. However, the preceding sentence does not apply to restoration of
continuity to a severed or partially severed fiber optic cable, restoration
of dysfunctional power and ancillary support equipment, or correction of
any potential jeopardy conditions. Xxxxxxxx will use commercially
reasonable efforts to notify Customer prior to emergency maintenance.
7.2 NOTICE. Xxxxxxxx shall provide Customer with electronic mail, telephone,
facsimile, or written notice of all non-emergency, planned network
maintenance (i) not less than [***] business days prior to performing
maintenance that, in its reasonable opinion, has a substantial likelihood
of affecting Customer's traffic for up to fifty (50) milliseconds, and (ii)
not less than [***] business days prior to performing maintenance that, in
its reasonable opinion, has a substantial likelihood of affecting Customer
traffic for more than fifty (50) milliseconds. If Xxxxxxxx' planned
activity is canceled or delayed, Xxxxxxxx shall promptly notify Customer
and shall comply with the provisions of this Section to reschedule any
delayed activity.
SECTION 8. WARRANTY
Xxxxxxxx warrants that Private Line Service shall be provided to Customer in
accordance with the applicable Technical Specifications set forth above.
Xxxxxxxx shall use commercially reasonable efforts under the circumstances to
remedy any delays, interruptions, omissions, mistakes, accidents or errors in
the Service and restore such Service to comply with the terms hereof. THE
FOREGOING WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY AND IS PROVIDED IN LIEU OF
ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
OUTAGE CREDITS REMEDY AND RIGHT TO TERMINATE FOR EXCESSIVE OUTAGES PROVIDED TO
CUSTOMER AS SET FORTH IN SECTION 4 OF THIS SERVICE SCHEDULE ARE THE SOLE AND
EXCLUSIVE REMEDIES PROVIDED TO CUSTOMER AND IS IN LIEU OF ALL OTHER REMEDIES,
REGARDLESS OF WHETHER THIS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 4 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 1
PRIVATE LINE SERVICE
IN WITNESS WHEREOF, THE PARTIES HAVE INDICATED THEIR AGREEMENT BY SIGNING BELOW.
UNIVERSAL ACCESS, INC.: XXXXXXXX COMMUNICATIONS, LLC:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxx
-------------------------------- ---------------------------------------
Signature of Authorized Signature of Authorized
Representative Representative
Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxx
-------------------------------- ---------------------------------------
Printed Name Printed Name
President, Global Operations President and Chief Executive Officer
-------------------------------- ---------------------------------------
Title Title
10/03/01 10/03/01
-------------------------------- ---------------------------------------
Date Date
Xxxxxxxx Communications Page 5 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 2
OPTICAL WAVE SERVICE
This Service Schedule is subject to that Master Services Agreement No.
________________ ("Agreement") by and between Xxxxxxxx Communications, LLC
("Xxxxxxxx"), and Customer.
SECTION 1. OPTICAL WAVE SERVICES
1.1 OPTICAL WAVE SERVICE DESCRIPTION. Xxxxxxxx' Optical Wave Service provides
unprotected, concatenated OC-48 wavelengths ("Optical Wave Service").
Xxxxxxxx uses dense wavelength division multiplexing ("DWDM") technology to
multiplex OC-48 signals at unique wavelengths, or waves, and then transmits
the composite signal over a single fiber. At the receiver, the composite
signal is then de-multiplexed and each unique signal is recovered. The
Optical Wave Service provided hereunder will originate at the fiber cross
connect in the Xxxxxxxx' POP designated by Customer as the origination
point and will terminate at the fiber cross connect in the Xxxxxxxx' POP
designated by Customer as the termination point with all such Optical Wave
Service to be provided on circuits located entirely upon the Xxxxxxxx'
owned and operated network and both end points of such circuit shall
originate or terminate at a Xxxxxxxx point of presence. Xxxxxxxx' Optical
Wave Service does not include a timing source. When a Customer purchases
Optical Wave Service from Xxxxxxxx, the Customer will be expected to
provide a clocking source for its equipment.
SECTION 2. RECURRING RATES & CHARGES
2.1 MONTHLY RECURRING RATES.
OPTICAL WAVE SERVICE RATES. Rates for Optical Wave Service wholly on
Xxxxxxxx' owned and operated network are as set forth in Table B.1 below.
Pricing in Table B.1 will apply for any Service, unless the parties agree
to different rates, which will be determined on an individual case basis
("ICB"). In any event the applicable rates will be set forth on Customer's
Service Order.
------------------------------------------
TABLE B.1 MONTHLY RECURRING RATES
------------------------------------------
TERM OC-48
------------------------------------------
1 year [***]
------------------------------------------
RATES ARE PER VGE V&H MILE
------------------------------------------
2.2 DIVERSE ROUTING CHARGES. A diverse route is defined as an indirect route
between two cities. Customer may order a diverse route between two city
pairs For example, a Customer's initial request for Optical Wave Service
from City A to City B will be provided and priced using the shortest route
and V&H miles. When Customer requests a diverse route from City A to City B
through City C, the route will be priced using V&H miles from City A to
City C and City C to City B separately. These prices will then be added
giving the total monthly recurring charge for the diverse route from City A
to City B.
2.3 MINIMUM MONTHLY RECURRING CHARGE.. Notwithstanding the foregoing, the
minimum monthly recurring charge for any Interexchange circuit ordered by
Customer will be priced in accordance with Table B.2 below.
----------------------------------------------------
TABLE B.2 OC-48
----------------------------------------------------
Minimum Monthly Recurring Charge $[***]
----------------------------------------------------
SECTION 3. NON-RECURRING RATES & CHARGES
3.1 NON-RECURRING CHARGES. Non-Recurring Charges may be incurred for Optical
Wave Services and are set forth below in Table B.3.
----------------------------------------------------------------------
TABLE B.3 NON-RECURRING CHARGES OC48
----------------------------------------------------------------------
New Order Installation $[***]
----------------------------------------------------------------------
Change Of Service Date Charge (1st change free) $[***]
----------------------------------------------------------------------
Change of Service Order Charge
----------------------------------------------------------------------
Pre-engineering $[***]
----------------------------------------------------------------------
Post-engineering $[***]
----------------------------------------------------------------------
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 3 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 2
OPTICAL WAVE SERVICE
------------------------------------------------------------
Order Cancellation
------------------------------------------------------------
Pre-engineering %[***]
------------------------------------------------------------
TABLE B.3 NON-RECURRING CHARGES OC48
------------------------------------------------------------
Post-engineering $[***]
------------------------------------------------------------
Reconfiguration $[***]
------------------------------------------------------------
Order Expedite $[***]
------------------------------------------------------------
ALL NON-RECURRING CHARGES FOR WAVES ARE FIGURED
SEPARATELY FOR EACH DIVERSE ROUTE.
------------------------------------------------------------
In addition to the above charges, Customer is required to
reimburse Xxxxxxxx for any Third Party Provider charges
relating to Customer's service. Non-Recurring Charges not
described above will be considered special requests and will
be handled on an individual case basis. All of the charges
stated above are subject to change with thirty (30) calendar
day's notice. See Exhibit B for a complete description of the
above charges.
------------------------------------------------------------
3.2 INSTALLATION CHARGES. For Xxxxxxxx Services, installation charges shall be
waived by Xxxxxxxx at the time of order for a OC-48 Wave Service where the
mileage is greater than 500 miles. Should the individual OC-48 Wave Service
be canceled prior to the twelve (12) month anniversary of its installation,
Xxxxxxxx will back xxxx Customer the full installation amount for that
Service.
3.3 HYBRID CIRCUIT CHARGES. For circuits containing both Optical Wave
Service and Private Line Service, pricing shall be calculated using the
following process:
a. A circuit shall be divided into segments by Service. Each circuit
segment shall be delineated by the longest span of that Service
possible.
b. Circuit pricing will be by segment as identified above. Pricing shall
be based on the V&H coordinates of each segment's endpoints.
Installation pricing shall be on a per segment basis. Other
Non-Recurring Charges shall be on a per circuit basis.
3.4 NON-RECURRING PRICING. Pricing for Non-Recurring Optical Wave Service shall
be as set forth in this Section 3 and are subject to change upon thirty
(30) calendar days' written or electronic notice by Xxxxxxxx to Customer.
Price changes shall only be effective on a going-forward basis and shall
not apply to Service Orders placed by Customer and accepted by Xxxxxxxx
prior to the effective date of the respective price change.
SECTION 4. OUTAGE CREDITS
4.1 OUTAGE CREDITS. Customer acknowledges the possibility of an unscheduled,
continuous and/or interrupted period of time during which Optical Wave
Service is unavailable or fails to conform to the Technical Specifications
below ("Outage"). An Outage shall begin upon the earlier of Xxxxxxxx'
actual knowledge of the Outage or Xxxxxxxx' receipt of notice from the
Customer of the Outage. In the event of an Outage, Customer shall be
entitled to a credit ("Outage Credit") upon Xxxxxxxx' receipt of Customer's
written request for such Outage Credit. The amount of the Outage Credit for
Optical Wave Service shall be an amount equal to 1/1440 of the monthly
recurring charge for the interexchange portion of the Service for each hour
in excess of the first two (2) consecutive hours that the affected Service
is unavailable or fails to conform to the below Technical Specifications.
4.2 REMEDY. The Outage Credit as set forth in this Section 4 shall be the sole
and exclusive remedy of Customer in the event of any Outage and under no
circumstances shall an Outage be deemed a default under the Agreement
4.3 LIMITATIONS. Customer shall not receive an Outage Credit if the Outage is:
(i) of a duration of less than two (2) consecutive hours; (ii) caused by
Customer or others authorized by Customer to use the Services under the
Agreement; (iii) due to the failure of power, facilities, equipment,
systems or connections not provided by Xxxxxxxx; (iv) caused by the failure
of Third Party Local Access Service to Xxxxxxxx' fiber optic network; (v)
the result of scheduled maintenance where Customer has been notified of
scheduled maintenance in advance; or (vi) due to a Force Majeure event as
defined in the Agreement.
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 4 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 2
OPTICAL WAVE SERVICE
4.4 CREDIT PAYMENT. Outage Credits shall be credited on Customer's next
monthly invoice for the affected Service.
SECTION 5. TECHNICAL SPECIFICATIONS
5.1 TECHNICAL SPECIFICATIONS. At any time during the term of the Agreement,
Xxxxxxxx shall have the capability to monitor and report performance
monitoring functions and alarm/status monitoring functions listed as
required in the Telcordia GR-253-CORE SONET Transport Systems Common
Generic Criteria (Dec. 1997) for Optical Wave Service. The standards by
which Xxxxxxxx' Optical Wave Service is measured apply on a one-way basis
between Xxxxxxxx' POPs only.
5.2 NETWORK AVAILABILITY. Network Availability is a measurement of the percent
of total time that Service is operative when measured over a 365
consecutive day (8760 hour) period. For Services on Xxxxxxxx' network,
Network Availability shall be 99.339% measured over a one thousand (1,000)
mile Service for a one-year period. Performance (% Error Free Seconds
("EFS"), while available) is noted in EFS, which is a measure of the
percentage of total seconds that do not contain bit errors when measured
over a period of thirty (30) consecutive days. For Services on Xxxxxxxx'
network, EFS shall be 99.076% from POP to POP measured over a one (1) year
period. Network Availability will vary with different circuit lengths.
5.3 MAINTENANCE. The following maintenance procedures and activities are to be
provided by Xxxxxxxx for Optical Wave Service. Xxxxxxxx will promptly
perform transport capacity maintenance activities for Optical Wave Service
including isolating troubles and will provide information concerning those
troubles, for each Optical Wave Service, to the Customer's Trouble
Reporting Center.
a. REMOTE ALARM SURVEILLANCE. Throughout the term of the Agreement,
Xxxxxxxx will provide remote alarm surveillance and sectionalization
equipment and procedures for the purpose of detecting any
out-of-service conditions or Service-affecting conditions, and for
rapidly removing Service impairments and restoring Service for Optical
Wave Service.
b. NOTIFICATION. In the event of any service-affecting alarm condition on
Optical Wave Service, Xxxxxxxx will notify the applicable Customer
Trouble Reporting Center. Such notice will include (i) the type and
status of alarm-causing condition, (ii) the estimated time to repair,
(iii) and the probable cause of failure. Xxxxxxxx will report, the
status of repair work and a revised estimate of the time to complete
the repair.
5.4 MEAN TIME TO RESTORE. Mean Time to Restore (MTTR) shall be the average time
required to restore service and resume availability and is stated in terms
of cable outages. The time is measured from the moment the outage is
reported until the service is available. With respect to Optical Wave
Service, Xxxxxxxx has an objective to have the first fiber on a cable cut
restored within an average of six (6) hours. Xxxxxxxx will undertake repair
efforts on equipment or fiber when Xxxxxxxx first becomes aware of the
problem, or when notified by Customer and Customer has released all or part
of the Service for testing. The maintenance standards in this Section 5.4
only apply for equipment or fiber on Xxxxxxxx' owned and operated network
and from Xxxxxxxx' POP to Xxxxxxxx' POP.
SECTION 6. PRODUCT INTERVALS
6.1 IMPLEMENTATION INTERVALS. Xxxxxxxx' standard service implementation
interval for DSN and OCN service is set forth below in Table B.4. Third
Party Service implementation intervals shall be determined on an individual
case basis. Xxxxxxxx shall make reasonable efforts to provide Xxxxxxxx'
Services within its standard service implementation interval. Failure of
Xxxxxxxx to deliver by such date shall not constitute a default under the
Agreement, and Xxxxxxxx shall not be liable to pay to Customer any
penalties or damages for Xxxxxxxx' failure to meet such standard service
implementation intervals, except as set forth in Section 3.4 of the
Agreement.
------------------------------------------------------
TABLE B.4 IMPLEMENTATION INTERVALS
------------------------------------------------------
STANDARD INTERVAL
SERVICE TYPE POP TO POP
------------------------------------------------------
OC48 Waves [***] Calendar days
------------------------------------------------------
OC192 Waves ICB
------------------------------------------------------
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 5 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 2
OPTICAL WAVE SERVICE
SECTION 7. PLANNED NETWORK MAINTENANCE ACTIVITY
7.1 TIMING. Xxxxxxxx shall avoid performing network maintenance between 0600 to
2200 Central Time (or local time with respect to facilities comprising
international Service), Monday through Friday, inclusive, that will have a
disruptive impact on the continuity or performance level of Customer's
Service. However, the preceding sentence does not apply to restoration of
continuity to a severed or partially severed fiber optic cable, restoration
of dysfunctional power and ancillary support equipment, or correction of
any potential jeopardy conditions. Xxxxxxxx will use commercially
reasonable efforts to notify Customer prior to emergency maintenance.
7.2 NOTICE. Xxxxxxxx shall provide Customer with electronic mail, telephone,
facsimile, or written notice of all non-emergency, planned network
maintenance (i) not less than [***][*** Certain information on this page
has been omitted and filed separately with the Commission treatment has
been requested with respect to the omitted portions.] business days prior
to performing maintenance that, in its reasonable opinion, has a
substantial likelihood of affecting Customer's traffic for up to fifty (50)
milliseconds, and (ii) not less than [***] business days prior to
performing maintenance that, in its reasonable opinion, has a substantial
likelihood of affecting Customer traffic for more than fifty (50)
milliseconds. If Xxxxxxxx' planned activity is canceled or delayed,
Xxxxxxxx shall promptly notify Customer and shall comply with the
provisions of this Section to reschedule any delayed activity.
SECTION 8. WARRANTY
Xxxxxxxx warrants that Optical Wave Service shall be provided to Customer in
accordance with the applicable Technical Specifications set forth above.
Xxxxxxxx shall use commercially reasonable efforts under the circumstances to
remedy any delays, interruptions, omissions, mistakes, accidents or errors in
the Services and restore such Services to comply with the terms hereof. THE
FOREGOING WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY AND IS PROVIDED IN LIEU OF
ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
OUTAGE CREDITS REMEDY AND RIGHT TO TERMINATE FOR EXCESSIVE OUTAGES PROVIDED TO
CUSTOMER AS SET FORTH IN SECTION 4 OF THIS SERVICE SCHEDULE ARE THE SOLE AND
EXCLUSIVE REMEDIES PROVIDED TO CUSTOMER AND IS IN LIEU OF ALL OTHER REMEDIES,
REGARDLESS OF WHETHER THIS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
[Remainder of page left intentionally blank]
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 4 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 2
OPTICAL WAVE SERVICE
IN WITNESS WHEREOF, THE PARTIES HAVE INDICATED THEIR AGREEMENT BY SIGNING BELOW.
UNIVERSAL ACCESS, INC.: XXXXXXXX COMMUNICATIONS, LLC:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxx
--------------------------------- ----------------------------------------
Signature of Authorized Signature of Authorized
Representative Representative
Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxx
--------------------------------- ----------------------------------------
Printed Name Printed Name
President, Global Operations President and Chief Executive Officer
--------------------------------- ----------------------------------------
Title Title
10/03/01 10/03/01
--------------------------------- ----------------------------------------
Date Date
Xxxxxxxx Communications Page 5 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 3
ATM SERVICE
This Service Schedule is subject to that Master Services Agreement No.
________________ ("Agreement") by and between Xxxxxxxx Communications, LLC
("Xxxxxxxx"), and Customer.
SECTION 1. DESCRIPTION OF SERVICE
1.1 SERVICE DESCRIPTION. Xxxxxxxx Network Asynchronous Transfer Mode Service
(the "ATM Service") is cell-based switching and multiplexing technology,
which can support applications requiring high bandwidth and high
performance. ATM Service will allow Customers who have requirements for
high speed, inter-premise connectivity to interconnect their multiple
locations via a User Network Interface (UNI) element from the Customer
premise equipment (CPE) to the Xxxxxxxx' point of presence (POP). ATM
Service is a general-purpose, connection-oriented technology that provides
integration of disparate networks onto a single communications
infrastructure. ATM Service provides the capability to route traffic
between various end points via virtual circuits that are predefined on the
Xxxxxxxx' ATM network and in the equipment provided by the Customer (CPE).
The Customer is responsible for segmenting information into 53 byte cells
for transport across the Xxxxxxxx' ATM network. ATM Service provides
networking capabilities suited for high-speed, low delay, bandwidth
intensive applications such as voice, video and data that require real-time
or near real-time connectivity between multiple locations. In addition, ATM
Service shall only be provided with respect to those circuits where the
entire circuit shall be located entirely upon the Xxxxxxxx' owned and
operated network and both end points of such circuit shall originate or
terminate at a Xxxxxxxx' point of presence.
SECTION 2. RECURRING RATES AND CHARGES
2.1 UNI PORT CONNECTIONS. Rates for User Network Interface (UNI) Port
Connections is determined on the port speed connections selected by
Customer. UNI Port Connections are currently available at DS3, OC3 and OC12
speeds. Monthly recurring charges for Port Connections are set forth in
Table C.1 below.
---------------------------------------------------
TABLE C.1 MONTHLY RECURRING PORT CHARGE
---------------------------------------------------
DS3 OC3 OC12
---------------------------------------------------
$[***]*** $[***] $[***]
---------------------------------------------------
VBRNRT, CBR AND UBR
---------------------------------------------------
2.2 VIRTUAL CIRCUITS. There are two types of virtual circuits, which can be
selected, the Virtual Channel Connection (VCC) or the Virtual Path
Connection (VPC). The type of virtual circuit selected by the Customer does
not determine the price. Pricing for virtual circuits is determined based
on the Class of Service (CoS). Three Classes of Service are offered by
Xxxxxxxx: Constant Bit Rate (CBR) and Variable Bit Ratenon real time
(VBRnrt) and Unspecified Bit Rate (UBR). CoS charges are stated in
Committed Information Rates (CIR) which are stated in Megabit per second
(Mbps) increments for one-way (Simplex) VCCs or VPCs. CIR increments are
available in 1 Mbps increments up to 40 Mbps for DS3 ports, 5 Mbps
increments up to 150 Mpbs for OC3 ports and 25 Mbps increments up to 600
Mbps for OC12 ports. Monthly recurring charges for Bandwidth are set forth
below in Table C.2.
---------------------------------------------------------------------------------------
TABLE C.2 MONTHLY RECURRING BANDWIDTH CHARGES
---------------------------------------------------------------------------------------
PRICE PER PRICE PRICE
PORT CIR VCC PER PER
SPEED (MBPS) COS COS MBPS COS MBPS
---------------------------------------------------------------------------------------
DS3 1-9 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
10-19 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
20-29 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
30-40 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
OC3 1-20 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
21-35 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
36-55 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
56-75 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
76-95 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
96-120 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
121-150 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 1 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 3
ATM SERVICE
---------------------------------------------------------------------------------------
TABLE C.2 MONTHLY RECURRING BANDWIDTH CHARGES
---------------------------------------------------------------------------------------
PRICE PER PRICE PRICE
PORT CIR VCC PER PER
SPEED (MBPS) COS COS MBPS COS MBPS
---------------------------------------------------------------------------------------
OC12 1-75 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
76-175 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
176-275 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
276-350 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
351-475 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
476-600 UBR $[***] VBRnrt $[***] CBR $[***]
---------------------------------------------------------------------------------------
2.3 ATM FLEX-UNI. ATM Flex-UNI allows Customers, expecting to outgrow their
initial physical port size within the first twelve (12) months of their
Service, a migration path to larger Permanent Virtual Circuits (PVCs)
without requiring an upgrade of their hardware.
a. OC3 ORDERING INCREMENTS. Customer can order PVCs in one-megabyte
increments starting with one (1) megabytes up to nineteen (19)
megabytes for an OC3 physical port. Once Customer needs a twenty (20)
megabyte PVC, Customer must revert to the standard OC3 port pricing
regardless of the time remaining on the twelve (12) month period.
b. OC12 ORDERING INCREMENTS. Customer can order PVCs in five-megabyte
increments starting with five (5) megabytes up to seventy (70)
megabytes for an OC12 physical port. Once Customer needs a 75-megabyte
PVC, Customer must revert to the standard OC12 port pricing regardless
of the time remaining on the twelve (12) month period.
c. ATM FLEX UNI TERM COMMITMENT. Before ATM Flex-UNI Service will be
allowed, Customer must collocate with Xxxxxxxx' POP and commit to a
three (3) year term for the Service. Customer will receive the reduced
ATM Flex-UNI rate for the first twelve (12) months of the circuit.
Customer will be charged Xxxxxxxx' standard ATM rate for the port, (i)
if Customer exceeds the ATM Flex-UNI capacity during the first twelve
(12) months of Service; or (ii) beginning the 13th month of the
circuit, whichever is sooner.
d. MONTHLY RECURRING CHARGES. ATM Flex-UNI pricing is based on flat
monthly fee assessed per node, which includes a flat port charge based
on the port connection speed, a charge for each PVC's CIR going out
from the port, and local access. ATM Flex-UNI is priced simplex,
meaning that a PVC's CIR is priced for both the ingress and egress CIR.
Monthly recurring charges for ATM Flex-UNI pricing is set forth below
in Table C.3.
---------------------------------------------------------
TABLE C.3 MONTHLY RECURRING PORT CHARGE
---------------------------------------------------------
OC3 OC12
---------------------------------------------------------
$[***] $[***]
---------------------------------------------------------
SECTION 3. NON-RECURRING RATES AND CHARGES
3.1 UNI PORT AND ATM FLEX-UNI CONNECTIONS. Non-recurring charges may be
incurred for the Port, VCC or VPC connections. Non-recurring Charges are
set forth below in Table C.4.
----------------------------------------------------------------------------------------------------
TABLE C.4 UNI PORT NON-RECURRING CHARGES
----------------------------------------------------------------------------------------------------
DS3 OC3 OC12
----------------------------------------------------------------------------------------------------
New Order Installation
----------------------------------------------------------------------------------------------------
Port $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
Virtual Circuit $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
Change Of Service Date Charge (1st $[***] $[***] $[***]
change free)
----------------------------------------------------------------------------------------------------
Change Of Service Order Charge
----------------------------------------------------------------------------------------------------
Pre-engineering $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
Post-engineering $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
Port Order Change $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 2 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 3
ATM SERVICE
----------------------------------------------------------------------------------------------------
PVC Order Change $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
Order Cancellation
----------------------------------------------------------------------------------------------------
Pre-engineering $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
Post-engineering $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
Access Service Request (ASR) Special $[***] $[***] $[***]
Access
----------------------------------------------------------------------------------------------------
ASR Supplement $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
Order Expedite $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
Cross Connect Install Charge $[***] $[***] $[***]
----------------------------------------------------------------------------------------------------
In addition to the above charges, Customer is required to reimburse
Xxxxxxxx for any Third Party Provider charges relating to Customer's
service. Non-Recurring Charges not described above will be considered
special requests and will be handled on an individual case basis. All
of the charges stated above are subject to change with thirty (30)
calendar day's notice. See Exhibit B for a complete description of the
above charges.
-----------------------------------------------------------------------
3.2 INSTALLATION CHARGES For Xxxxxxxx Services, installation and non-recurring
charges shall be [***].
3.3 MISCELLANEOUS. Customer should be aware that from time to time, third-party
charges are levied to Xxxxxxxx after submission of the original Service
Order from Customer. Xxxxxxxx may be obligated to pass these charges to
Customer. Xxxxxxxx will inform Customer of any such charges before the
charges are passed to Customer. Xxxxxxxx cannot commit that all charges
related to any requested Service will always be on the original Service
Order.
3.4 NON-RECURRING PRICING. Pricing for Non-Recurring ATM Service shall be as
set forth in this Section 3 and are subject to change upon thirty (30)
calendar days' written or electronic notice by Xxxxxxxx to Customer. Price
changes shall only be effective on a going-forward basis and shall not
apply to Service Orders placed by Customer and accepted by Xxxxxxxx prior
to the effective date of the respective price change.
SECTION 4. OUTAGE CREDITS
4.1 OUTAGE CREDITS. Customer acknowledges the possibility of an unscheduled,
continuous and/or interrupted period of time during which ATM Service is
unavailable or fails to conform to the Technical Specifications below
("Outage"). An Outage shall begin upon the earlier of Xxxxxxxx' actual
knowledge of the Outage or Xxxxxxxx' receipt of notice from the Customer of
the Outage. In the event of an Outage, Customer shall be entitled to a
credit ("Outage Credit") upon Xxxxxxxx' receipt of Customer's written
request for such Outage Credit. The amount of the Outage Credit for ATM
Service shall be an amount equal to ten percent (10%) of the monthly Port,
PVC and/or usage charges (as stated on the applicable Service Order)
regardless of the length of such Outage.
4.2 REMEDY. The Outage Credit as set forth in this Section 4 shall be the sole
and exclusive remedy of Customer in the event of any Outage and under no
circumstances shall an Outage be deemed a default under the Agreement.
4.3 LIMITATIONS. Customer shall not receive an Outage Credit if the Outage is:
(i) of a duration of less than two (2) consecutive hours; (ii) caused by
Customer or others authorized by Customer to use the Services under the
Agreement; (iii) due to the failure of power, facilities, equipment,
systems or connections not provided by Xxxxxxxx; (iv) caused by the failure
of Third Party Local Access Service to Xxxxxxxx' fiber optic network; (v)
the result of scheduled maintenance where Customer has been notified of
scheduled maintenance in advance; or (vi) due to a Force Majeure event as
defined in the Agreement.
4.4 CREDIT PAYMENT. Outage Credits shall be credited on Customer's next monthly
invoice for the affected Service.
SECTION 5. TECHNICAL SPECIFICATIONS
5.1 TECHNICAL SPECIFICATIONS. The Technical Specifications set forth herein are
stated as an objective that the ATM Service will perform in accordance with
prevailing telecommunications industry standards. The standards by which
Xxxxxxxx' ATM Service is measured apply on a one-way basis between
Xxxxxxxx' POPs only and involves two variables: Network Availability and
Mean-time-to-restore. Mean-time-to-restore is discussed in Section 5.3 of
this Schedule.
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 3 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 3
ATM SERVICE
5.2 NETWORK AVAILABILITY. Xxxxxxxx' Network Availability is a measurement of
the percent of total time that service is operative when measured over a
365 consecutive day (8760 hour) period. For ATM Services on Xxxxxxxx'
network, Network Availability shall be 99.95% from point-of-presence
("POP") to POP measured over a one (1) year period. Network Availability
for Services of a Third Party Provider is established by the Third Party
Provider. The Local Access Service availability standards for ATM Services
are established by the Local Access Service provider.
5.3 MEAN TIME TO RESTORE. Mean Time to Restore (MTTR) shall be the average time
required to restore service and resume availability and is stated in terms
of equipment and cable outages. The time is measured from the moment the
outage is reported until the service is available. With respect to ATM
Service, Xxxxxxxx has an objective of repairing network equipment within an
average of two (2) hours and an objective to have the first fiber on a
cable cut restored within an average of six (6) hours. Xxxxxxxx will
undertake repair efforts on equipment or fiber when Xxxxxxxx first becomes
aware of the problem, or when notified by Customer and Customer has
released all or part of the Service for testing. The maintenance standards
in this Section 5.3 only apply for equipment or fiber on Xxxxxxxx' owned
and operated network and from Xxxxxxxx' POP to Xxxxxxxx' POP.
SECTION 6. PRODUCT INTERVALS
6.1 IMPLEMENTATION INTERVALS. Xxxxxxxx' standard service implementation
interval for DSN and OCN service is set forth below in Table C.5. Third
Party Service implementation intervals shall be determined on an individual
case basis. Xxxxxxxx shall make reasonable efforts to provide Xxxxxxxx'
Services within its standard service implementation interval. Failure of
Xxxxxxxx to deliver by such date shall not constitute a default under the
Agreement and Xxxxxxxx shall not be liable to pay to Customer any penalties
or damages for Xxxxxxxx' failure to meet such implementation intervals.
--------------------------------------------------------------------------------------
TABLE C.5 IMPLEMENTATION INTERVALS
--------------------------------------------------------------------------------------
STANDARD INTERVAL STANDARD INTERVAL
SERVICE TYPE POP TO POP POP TO POP W/THIRD PARTY
LOCAL ACCESS
--------------------------------------------------------------------------------------
DSN [***] calendar days [***] calendar days
--------------------------------------------------------------------------------------
OCN [***] calendar days [***] calendar days
--------------------------------------------------------------------------------------
SECTION 7. PLANNED NETWORK MAINTENANCE ACTIVITY
7.1 TIMING. Xxxxxxxx shall avoid performing network maintenance between 0600 to
2200 Central Time (or local time with respect to facilities comprising
international Service), Monday through Friday, inclusive, that will have a
disruptive impact on the continuity or performance level of Customer's
Service. However, the preceding sentence does not apply to restoration of
continuity to a severed or partially severed fiber optic cable, restoration
of dysfunctional power and ancillary support equipment, or correction of
any potential jeopardy conditions. Xxxxxxxx will use commercially
reasonable efforts to notify Customer prior to emergency maintenance.
7.2 NOTICE. Xxxxxxxx shall provide Customer with electronic mail, telephone,
facsimile, or written notice of all non-emergency, planned network
maintenance (i) not less than[***] business days prior to performing
maintenance that, in its reasonable opinion, has a substantial likelihood
of affecting Customer's traffic for up to fifty (50) milliseconds, and (ii)
not less than [***] business days prior to performing maintenance that, in
its reasonable opinion, has a substantial likelihood of affecting Customer
traffic for more than fifty (50) milliseconds. If Xxxxxxxx' planned
activity is canceled or delayed, Xxxxxxxx shall promptly notify Customer
and shall comply with the provisions of this Section to reschedule any
delayed activity.
SECTION 8. WARRANTY
Xxxxxxxx warrants that ATM Service shall be provided to Customer in accordance
with the applicable Technical Specifications set forth above. Xxxxxxxx shall use
commercially reasonable efforts under the circumstances to remedy any delays,
interruptions, omissions, mistakes, accidents or errors in the Services and
restore such Services to comply with the terms hereof. THE FOREGOING WARRANTY IS
THE SOLE AND EXCLUSIVE WARRANTY AND IS PROVIDED IN LIEU OF ALL
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 4 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 3
ATM SERVICE
OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
OUTAGE CREDITS REMEDY PROVIDED TO CUSTOMER AS SET FORTH IN SECTION 4 OF THIS
SERVICE SCHEDULE IS THE SOLE AND EXCLUSIVE REMEDY PROVIDED TO CUSTOMER AND IS IN
LIEU OF ALL OTHER REMEDIES, REGARDLESS OF WHETHER THIS WARRANTY FAILS OF ITS
ESSENTIAL PURPOSE.
[Remainder of page left intentionally blank]
Xxxxxxxx Communications Page 5 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 3
ATM SERVICE
IN WITNESS WHEREOF, THE PARTIES HAVE INDICATED THEIR AGREEMENT BY SIGNING BELOW.
UNIVERSAL ACCESS, INC.: XXXXXXXX COMMUNICATIONS, LLC:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxx
--------------------------------- ----------------------------------------
Signature of Authorized Signature of Authorized
Representative Representative
Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxx
--------------------------------- ----------------------------------------
Printed Name Printed Name
President, Global Operations President and Chief Executive Officer
--------------------------------- ----------------------------------------
Title Title
10/03/01 10/03/01
--------------------------------- ----------------------------------------
Date Date
Xxxxxxxx Communications Page 6 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 9
INTERNATIONAL BACKHAUL SERVICE
This Service Schedule is subject to that Master Services Agreement No.
________________ ("Agreement") by and between Xxxxxxxx Communications, LLC
("Xxxxxxxx"), and Customer.
SECTION 1. INTERNATIONAL BACKHAUL SERVICES
1.1 SERVICE DESCRIPTION. Xxxxxxxx' International Backhaul Service
("International Backhaul Service") is a point-to-point transport service
that connects a Customer's international cable network to Williams'
domestic U.S. network. Customer may order International Backhaul Service at
STM-1 capacity at the China U.S. Cable and Southern Cross Cable Network
("Southern Cross") and XXX-0, XXX-0 or STM-16 capacity at the Japan U.S.
Cable and TAT-14 ("TAT-14"), subject to availability. Xxxxxxxx will pick up
Customer's traffic, which enters the U.S. via a cable system at a cable
landing station. The cable landing stations where Xxxxxxxx may pick up
Customer's traffic for the individual cable systems are as set forth in
Table G.1 below. The origination demarcation point for International
Backhaul Service shall be at the system interface of the landing station of
the applicable cable system (the "Origination Demarcation Point"). Customer
will designate on each Service Order at which cable landing station the
Service is to originate. Once Xxxxxxxx'x picks up the traffic at the cable
landing station, it will then carry the traffic to one of Xxxxxxxx'
designated termination points-of-presence ("Termination POP"), which will
also be specified by Customer on the Service Order. The Termination POPs
for each landing station are set forth in Table F.1 below.
-----------------------------------------------------------
TABLE F.1
-----------------------------------------------------------
CABLE SYSTEM *LANDING STATION TERMINATION
POINT
-----------------------------------------------------------
San Xxxx Obispo, Santa Clara, CA
CA
-----------------------------------------------------------
San Francisco,
CA
-----------------------------------------------------------
Sacramento, CA
-----------------------------------------------------------
Los Angeles, CA
-----------------------------------------------------------
China US Cable Bandon, OR Portland, OR
-----------------------------------------------------------
(NON-DIVERSE) Seattle, WA
-----------------------------------------------------------
Sacramento, CA
-----------------------------------------------------------
San Francisco,
CA
-----------------------------------------------------------
Bandon, OR Los Angeles, CA
(DIVERSE)
-----------------------------------------------------------
Santa Clara, CA
-----------------------------------------------------------
Manchester, CA Santa Clara, CA
-----------------------------------------------------------
(NON-DIVERSE) Sacramento, CA
-----------------------------------------------------------
San Francisco, CA
-----------------------------------------------------------
Japan XX Xxxxx Xxx Xxxxxxx, XX
-----------------------------------------------------------
Xxxxx Xxxxx, XX
-----------------------------------------------------------
Sacramento, CA
-----------------------------------------------------------
Morro Bay, CA San Francisco, CA
-----------------------------------------------------------
Xxx Xxxxxxx, XX
-----------------------------------------------------------
Xxxxx Xxxxx,
XX
-----------------------------------------------------------
Sacramento, CA
-----------------------------------------------------------
Southern CrossCable Morro Bay, CA San Francisco,
Network CA
-----------------------------------------------------------
Los Angeles, CA
-----------------------------------------------------------
TAT-14 Tuckerton, NJ New York City,
NY
-----------------------------------------------------------
*subject to availability
-----------------------------------------------------------
1.2 PRE-PROVISION OF CIRCUITS WITH AT&T & WORLDCOM. Customer agrees to provide
Xxxxxxxx with an appropriate Letter of Authorization which will allow
Xxxxxxxx to pre-provision Customer's requested circuits from the
appropriate cable landing station operator's cable landing station to the
system interface of the applicable cable system. Such pre-provisioning will
be provided by Xxxxxxxx at no charge to Customer. However, Customer shall
pay all Xxxxxxxx' installation charges for International Backhaul Service
(as set forth in Section 3 below) once International Backhaul Service is
available. Xxxxxxxx will not assume any responsibility for such
pre-provisioning or associated service, which service shall be provided
directly by the cable landing station operator.
1.3 SERVICE AVAILABILITY. The availability of International Backhaul Service
depends on the actual in-service date for each of the respective cables and
landing stations. Under no circumstances shall International Backhaul
Service be available before the in-service date of the applicable cables
and landing stations. Currently, it is anticipated that STM-16 will not be
available for the Japan U.S. landing stations before October 2001, but this
date is subject to change.
Xxxxxxxx Communications Page 1 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 9
INTERNATIONAL BACKHAUL SERVICE
1.4 LIABILITY FOR THIRD PARTY LOCAL ACCESS SERVICES. In issuing a Service Order
that includes a request for Third Party Local Access Services, Customer
should be aware of the anticipated in-service date of the applicable cables
and landing stations In the event Xxxxxxxx arranges Third Party Local
Access Services on behalf of Customer in accordance with the terms and
conditions of the Agreement and Service is not available, because the cable
system or landing station is not available, Xxxxxxxx shall, (i) begin
billing Customer for any Third Party Local Access Services arranged by
Xxxxxxxx on behalf of Customer; or (ii) terminate the Third Party Local
Access Services arranged by Xxxxxxxx on behalf of Customer and pass through
to Customer any termination liability incurred by Xxxxxxxx from the Third
Party Local Access Service provider, whichever is provided by Customer.
Customer shall pay all Third Party Local Access charges.
SECTION 2. RECURRING RATES AND CHARGES
2.1 MONTHLY RECURRING RATES.
a. Pricing for International Backhaul Services shall consist of monthly
recurring charges, one-time installation charges and non-recurring
charges. Customer's monthly recurring charges shall be determined on an
individual case basis.
b. THIRD PARTY LOCAL ACCESS. Pricing for Third Party Local Access is
determined in accordance with the terms and conditions set forth in the
Agreement.
SECTION 3. NON-RECURRING RATES AND CHARGES
3. 1 NON-RECURRING RATES. In addition to the monthly recurring charges set forth
on Customer's Service Order, Customer may incur the following non-recurring
charges for Services as set forth below in Table F.2.
----------------------- ------------------------ ---------- ----------- -----------
TABLE X.0 XXX-XXXXXXXXX XXXXXXX XXX-0 XXX-0 STM-16
-----------------------------------------------------------------------------------
New Order Installation $[***] $[***] $[***]
-----------------------------------------------------------------------------------
Change Of Service Date Charge (1st change free) [$***] $[***] [$***]
-----------------------------------------------------------------------------------
Change Of Service Order Charge
-----------------------------------------------------------------------------------
Pre-Engineering $[***] $[***] $[***]
-----------------------------------------------------------------------------------
Post-Engineering $[***] $[***] $[***]
-----------------------------------------------------------------------------------
Order Cancellation
-----------------------------------------------------------------------------------
Pre-Engineering $[***] $[***] $[***]
-----------------------------------------------------------------------------------
Post-Engineering $[***] $[***] $[***]
-----------------------------------------------------------------------------------
Access Service Request (ASR) Special Access $[***] $[***] $[***]
-----------------------------------------------------------------------------------
Order Expedite $[***] $[***] $[***]
-----------------------------------------------------------------------------------
In addition to the above charges, Customer is required to
reimburse Xxxxxxxx for any Third Party Provider charges
relating to Customer's service. Non-Recurring Charges not
described above will be considered special requests and will
be handled on an individual case basis. All of the charges
stated above are subject to change with thirty (30) calendar
day's notice. See Exhibit B for a complete description of the
above charges.
-------------------------------------------------------------------
3.2 MISCELLANEOUS. Customer should be aware that from time to time, third-party
charges are levied to Xxxxxxxx after submission of the original Service
Order from Customer. Xxxxxxxx may be obligated to pass these charges to
Customer. Xxxxxxxx will inform Customer of any such charges before the
charges are passed to Customer. Xxxxxxxx cannot commit that all charges
related to any requested Service will always be on the original Service
Order.
3.3 NON-RECURRING PRICING. Pricing for Non-Recurring International Backhaul
Service shall be as set forth in this Section 3 and are subject to change
upon thirty (30) calendar days' written or electronic notice by Xxxxxxxx to
Customer. Price changes shall only be effective on a going-forward basis
and shall not apply to Service Orders placed by Customer and accepted by
Xxxxxxxx prior to the effective date of the respective price change.
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 2 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 9
INTERNATIONAL BACKHAUL SERVICE
SECTION 4. INTERNATIONAL BACKHAUL SERVICES OUTAGE CREDITS
4.1 OUTAGE CREDITS. Customer acknowledges the possibility of an unscheduled,
continuous and/or interrupted period of time during which when
International Backhaul Service fails to conform to the Technical
Specifications set forth below ("Outage"). An Outage shall begin upon the
earlier of Xxxxxxxx' actual knowledge of the Outage or Xxxxxxxx' receipt of
notice from the Customer of the Outage. In the event of an Outage, Customer
shall be entitled to a credit ("Outage Credit") upon Xxxxxxxx' receipt of
Customer's written request for such Outage Credit. For International
Backhaul Service, the Outage Credit amount shall be the amount of 1/720 of
the monthly recurring charge for the interexchange portion of the Service
for each hour in excess of the first two (2) consecutive hours that the
affected Service fails to conform to the below Technical Specifications.
4.2 EXCESSIVE OUTAGES. If a single circuit experiences either (a) three (3) or
more outages of fifteen (15) minutes duration or longer during any thirty
(30) day period, or (b) one or more outages of fifteen (15) minutes each in
each of three (3) consecutive months or (c) one (1) outage of more than
twenty-four (24) consecutive hours in a one (1) calendar month period,
("Excessive Outages"), Customer shall be entitled, in addition to the
applicable Outage Credit, if any, to terminate such circuits as are
affected by the Excessive Outage without liability for the Early
Termination Charge set forth in Section 6.4 of the Agreement. However,
Customer shall be liable for any termination liability associated with
Third Party Local Access Service or any other Third Party Service
associated with such disconnection.
In the event Customer terminates a circuit for an Excessive Outage pursuant
to this Section 4.2 and such termination causes the Customer to fall below
their Revenue Commitment, such terminated circuit shall count toward
Customer's Revenue Commitment as if it had not been terminated.
4.3 REMEDY. The Outage Credit and right to terminate for an Excessive Outage as
set forth in this Section 4 shall be the sole and exclusive remedy of
Customer in the event of any Outage and under no circumstances shall an
Outage be deemed a default under the Agreement.
4.4 LIMITATIONS. Customer shall not receive an Outage Credit if the Outage is:
(i) of a duration of less than two (2) consecutive hours (ii) caused by
Customer or others authorized by Customer to use the Services under the
Agreement; (iii) due to the failure of power, facilities, equipment,
systems or connections not provided by Xxxxxxxx; (iv) caused by the failure
of Third Party Local Access Service to Xxxxxxxx' fiber optic network; (v)
the result of scheduled maintenance where Customer has been notified of
scheduled maintenance in advance; or (vi) due to a Force Majeure event as
defined in the Agreement.
4.5 CREDIT PAYMENT. Outage Credits shall be credited on Customer's next monthly
invoice for the affected Service.
SECTION 5. TECHNICAL SPECIFICATIONS
5.1 The Technical Specifications set forth herein are stated as an objective
that the International Backhaul Services will perform in accordance with
prevailing telecommunications industry standards. The International
Backhaul Service provided under this Agreement is measured using two
variables: Network Availability and Mean-time-to-restore.
Mean-time-to-restore is addressed in Section 6.3 of this Schedule.
5.2 INTERCONNECTION SPECIFICATIONS
a. Optical SONET Services (OC-N). Optical SONET Services are provided in
accordance with ANSI Standard TL105.
b. Optical Synchronous Digital Hierarchy (SDH) Services. SDH Services are
provided in accordance with ITU standards.
c. Network Access and Interfaces. International Backhaul Service provides
network access at standard SDH (ITU) interfaces capable of
interconnecting STM-1, STM-4 and 2.5 Gbps Wave single-ended dedicated
line circuits.
5.3 PROTECTION. The network equipment has a protection capability on a per
STM-1 and STM-4 circuit basis.
Xxxxxxxx Communications Page 3 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 9
INTERNATIONAL BACKHAUL SERVICE
5.4 DIVERSITY. International Backhaul shall provide Route Diversity between all
landing stations (excluding certain paths at Bandon) and designated
termination points. Route Diversity is defined as separate physical paths
being delivered via two different conduits between the cable landing
station and the designated Xxxxxxxx' POP.
5.5 AVAILABILITY.
a. AVAILABILITY ON XXXXXXXX' NETWORK. Availability is a measurement of the
percent of total time that service is operative when measured over a 365
consecutive day (8760 hour) period. Optical SONET Service is considered
inoperative when there has been a loss of signal or when two consecutive 15
second loop-back tests confirm the observation of a bit error rate equal to
Or worse than 1 x 10-(6). For Services on Xxxxxxxx' network,
availability shall be 99.95% from the Origination Demarcation Point (as
defined in Section 1.1 of this Schedule) to Xxxxxxxx' Termination POP
measured over a one (1) year period.
b. AVAILABILITY FOR SERVICES NOT ON XXXXXXXX' NETWORK. For Services not on
Xxxxxxxx' network, the Third Party Provider will establish availability.
The Third Party Local Access availability standards for Third Party Local
Access Services are established by the Third Party Local Access Provider.
See General Provisions for other factors affecting availability.
5.6 PERFORMANCE (% ERROR FREE SECONDS, WHILE AVAILABLE). Performance is noted
in Error Free Seconds, which are a measure of the percentage of total
seconds that do not contain bit errors when measured over a consecutive
twenty-four (24) hour period. Performance shall be measured on a one-way
basis using a Pseudo Random Bit Sequence test pattern as defined in CCITT
Recommendation 0.151. For Services on Xxxxxxxx' network, Error Free Seconds
shall be 99.5% from the Origination Demarcation Point (as defined in
Section 1.1 of this Schedule) to Xxxxxxxx' Termination POP measured over a
one (1) year period. Error Free Seconds for Services not on Xxxxxxxx'
Network. The Error Free Seconds standards for Third Party Local Access
Services is established by the Third Party Local Access Provider. For
Services not on Xxxxxxxx' network, the Third Party Provider will establish
Error Free Seconds.
SECTION 6. GENERAL PROVISIONS RELATING TO TECHNICAL SPECIFICATIONS
6.1 QUALITY STANDARDS. Standards apply on a one-way basis between the
Origination Demarcation Point (as defined in Section 1.1 of this Service
Schedule) and Xxxxxxxx' Termination POP only. All standards exclude
nonperformance due to force majeure or planned interruptions for necessary
maintenance purposes. All standards exclude nonperformance due to acts or
omissions of Customer or due to any failure of Customer-provided equipment.
6.2 MAINTENANCE. Xxxxxxxx will undertake repair efforts on equipment or fiber
when Xxxxxxxx first becomes aware of it, or when notified by Customer and
Customer has released all or part of the Service for testing. The
maintenance standards in this Section 6 only apply for Equipment or Fiber
on Xxxxxxxx' owned and operated network and from the Origination
Demarcation Point (as defined in Section 1.1 of this Service Schedule) to
Xxxxxxxx' Termination POP.
6.3 MEAN TIME TO RESTORE ("MTTR"). Mean Time to Restore is be the average time
required to restore service and resume availability and is stated in terms
of equipment and cable outages. The time is measured from the moment the
outage is reported until the service is available. With respect to
International Backhaul Service, Xxxxxxxx has an objective of repairing
network equipment within an average of two (2) hours and an objective to
have the first fiber on a cable cut restored within an average of six (6)
hours. Xxxxxxxx will undertake repair efforts on equipment or fiber when
Xxxxxxxx first becomes aware of the problem, or when notified by Customer
and Customer has released all or part of the Service for testing. The
maintenance standards in this Section 6.3 only apply for equipment or fiber
on Xxxxxxxx' owned and operated network and from Xxxxxxxx' POP to Xxxxxxxx'
POP.
6.4 CALCULATION. Xxxxxxxx calculates network availability upon written request
from customers. Customer must notify the Xxxxxxxx Service Delivery and
initiate an action request to determine if the standards stated above were
met.
Xxxxxxxx Communications Page 4 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 9
INTERNATIONAL BACKHAUL SERVICE
SECTION 7. PRODUCT INTERVALS
7.1 SERVICE IMPLEMENTATION INTERVALS. Xxxxxxxx' standard service
implementation interval for International Backhaul Service is
[***] days (a) from acceptance of a Service Order by Xxxxxxxx' Service
Delivery department (if the applicable cable station is already in service)
or (b) (if Xxxxxxxx has accepted the Service Order before the in-service
date of the applicable cable station) from the in-service date of the
applicable cable station, whichever is later. Under no circumstances shall
the standard service implementation interval period start running before
Service is available. Xxxxxxxx shall make reasonable efforts to provide
International Backhaul Service within its standard service implementation
interval as determined in accordance herewith. Failure of Xxxxxxxx to
deliver by such date shall not constitute a default under the Agreement and
Xxxxxxxx shall not be liable to pay to Customer any penalties or damages
for Xxxxxxxx' failure to meet such standard service implementation
intervals except as set forth in Section 3.4 of the Agreement.
SECTION 8. PLANNED NETWORK MAINTENANCE ACTIVITY
8.1 TIMING. Xxxxxxxx shall avoid performing network maintenance between 0600 to
2200 Central Time (or local time with respect to facilities comprising
international Service), Monday through Friday, inclusive, that will have a
disruptive impact on the continuity or performance level of Customer's
Service. However, the preceding sentence does not apply to restoration of
continuity to a severed or partially severed fiber optic cable, restoration
of dysfunctional power and ancillary support equipment, or correction of
any potential jeopardy conditions. Xxxxxxxx will use commercially
reasonable efforts to notify Customer prior to emergency maintenance.
8.2 NOTICE. Xxxxxxxx shall provide Customer with electronic mail, telephone,
facsimile, or written notice of all non-emergency, planned network
maintenance (i) not less than [***] business days prior to performing
maintenance that, in its reasonable opinion, has a substantial likelihood
of affecting Customer's traffic for up to fifty (50) milliseconds, and (ii)
not less than [***] business days prior to performing maintenance that, in
its reasonable opinion, has a substantial likelihood of affecting Customer
traffic for more than fifty (50) milliseconds. If Xxxxxxxx' planned
activity is canceled or delayed, Xxxxxxxx shall promptly notify Customer
and shall comply with the provisions of this Section to reschedule any
delayed activity.
SECTION 9. WARRANTY
Xxxxxxxx warrants that International Backhaul Service shall be provided to
Customer in accordance with the applicable Technical Specifications set forth in
Section 5 of this Schedule. Xxxxxxxx shall use commercially reasonable efforts
under the circumstances to remedy any delays, interruptions, omissions,
mistakes, accidents or errors in the Services and restore such Services to
compliance with the Technical Specifications. THE FOREGOING WARRANTY IS THE SOLE
AND EXCLUSIVE WARRANTY MADE BY XXXXXXXX WITH RESPECT TO THE SERVICES PROVIDED
UNDER THIS SCHEDULE 9 AND SUCH WARRANTY IS PROVIDED IN LIEU OF ALL OTHER
WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE OUTAGE
CREDITS REMEDY PROVIDED TO CUSTOMER AS SET FORTH IN SECTION 4 OF THIS SCHEDULE
IS THE SOLE AND EXCLUSIVE REMEDY PROVIDED TO CUSTOMER AND IS IN LIEU OF ALL
OTHER REMEDIES, REGARDLESS OF WHETHER THIS WARRANTY FAILS OF ITS ESSENTIAL
PURPOSE.
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 9
INTERNATIONAL BACKHAUL SERVICE
IN WITNESS WHEREOF, THE PARTIES HAVE INDICATED THEIR AGREEMENT BY SIGNING BELOW
UNIVERSAL ACCESS, INC.: XXXXXXXX COMMUNICATIONS, LLC:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------ --------------------------------------
Signature of Authorized Signature of Authorized
Representative Representative
Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxx
------------------------------------ --------------------------------------
Printed Name Printed Name
President, Global Operations President and Chief Executive Officer
------------------------------------ --------------------------------------
Title Title
10/03/01 10/03/01
------------------------------------ --------------------------------------
Date Date
Xxxxxxxx Communications Page 6 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 10
INTERNATIONAL PRIVATE LINE SERVICE
This Service Schedule is subject to that Master Services Agreement No.
________________ ("Agreement") by and between Xxxxxxxx Communications, LLC
("Xxxxxxxx"), and Customer.
SECTION 1. INTERNATIONAL PRIVATE LINE SERVICES
1.1 SERVICE DESCRIPTION. Xxxxxxxx International Private Line Service (the
"International Private Line Service") provides international circuits at
varying speeds which are specifically dedicated to Customer's use between
two (2) points specified by the parties in a Service Order and meeting the
technical requirements as defined below in the Technical Specifications.
SECTION 2. RECURRING RATES AND CHARGES
2.1 MONTHLY RECURRING RATES. Pricing for any International Private Line Service
is determined on an individual case basis and will be set forth on
Customer's Service Order. Pricing and arranging for Third Party Local
Access Service is determined in accordance with the terms and conditions
set forth in the Agreement.
SECTION 3. NON-RECURRING RATES AND CHARGES
3.1 NON-RECURRING CHARGES. Non-Recurring Charges may be incurred for Private
Line connections. Non-recurring Charges include, but are not limited to new
order installation, change of service date charge, change of service order
charge (pre-installation and post installation), order cancellation
(pre-installation and post-installation) and cancellation charges related
to Third Party Local Access service for which Xxxxxxxx is acting as agent,
ASR (new or disconnect) special access, ASR supplement, order expedite,
reconfiguration, and additional installation/maintenance/engineering during
and after hours. Non-recurring charges for the Services or other services
agreed to by the parties as set forth above will be set forth on Customer's
Service Order.
3.2 INSTALLATION CHARGES. Installation charges shall apply to the normal
installation of equipment necessary to provide the requested service to the
point of demarcation at the Customer's premises. Additional installation
charges shall apply when Xxxxxxxx is required to install equipment other
than that normally required to provide the service or when Customer
requests special equipment.
3.3 NON-RECURRING CHARGES. Non-Recurring Charges not described above will be
considered special requests and will be handled on an individual case
basis. All Non-Recurring Charges are subject to change with thirty (30)
calendar days' notice. Price changes shall only be effective on a
going-forward basis and shall not apply to Service Orders placed by
Customer and accepted by Xxxxxxxx prior to the effective date of the
respective price change.
3.4 MISCELLANEOUS. Customer should be aware that from time to time, third-party
charges are levied to Xxxxxxxx after submission of the original Service
Order from Customer. Xxxxxxxx may be obligated to pass these charges to
Customer. Xxxxxxxx will inform Customer of any such charges before the
charges are passed to Customer. Xxxxxxxx cannot commit that all charges
related to any requested Service will always be on the original Service
Order.
SECTION 4. OUTAGE CREDITS
4.1 OUTAGE CREDITS. Customer acknowledges the possibility of an unscheduled,
continuous and/or interrupted period of time during which period of time
International Private Line Service fails to conform to the Technical
Specifications ("Outage"). An Outage shall begin upon the earlier of
Xxxxxxxx' actual knowledge of the Outage or Xxxxxxxx' receipt of notice
from the Customer of the Outage. In the event of an Outage, Customer shall
be entitled to a credit ("Outage Credit") upon Xxxxxxxx' receipt of
Customer's written request for such Outage Credit. For the domestic USA
interexchange portion of International Private Line Service, the Outage
Credit amount shall be the amount of 1/720 of the monthly recurring charge
for each hour in excess of the first two (2) consecutive hours that the
affected Service fails to conform to the below Technical Specifications.
For Outages due to a submarine cable failure, Xxxxxxxx shall pass through
outage credits, if any, it may receive from the cable administrator.
4.2 REMEDY. The Outage Credit as set forth in this Section 4 shall be the sole
and exclusive remedy of Customer in the event of any Outage and under no
circumstances shall an Outage be deemed a default under the Agreement.
Xxxxxxxx Communications Page 1 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 10
INTERNATIONAL PRIVATE LINE SERVICE
4.3 LIMITATIONS. Customer shall not receive an Outage Credit if the Outage is:
(i) of a duration of less than two (2) consecutive hours (ii) caused by
Customer or others authorized by Customer to use the Services under the
Agreement; (iii) due to the failure of power, facilities, equipment,
systems or connections not provided by Xxxxxxxx; (iv) caused by the failure
of Third Party Local Access Service to Xxxxxxxx' fiber optic network; (v)
the result of scheduled maintenance where Customer has been notified of
scheduled maintenance in advance; or (vi) due to a Force Majeure event as
defined in the Agreement.
4.4 CREDIT PAYMENT. Outage Credits shall be credited on the Customer's next
monthly invoice for the affected Service.
SECTION 5. TECHNICAL SPECIFICATIONS
5.1 SPECIFICATIONS. Xxxxxxxx' International Private Line Services ("IPL"s) meet
or exceed the International Telecommunications Union's ("ITU"'s)
recommendations. The ITU specifications for circuit performance parameters
are set forth below in Table G.1.
----------------------------------------------------------
TABLE G.1
----------------------------------------------------------
Errored Seconds (ES) Compliant to M.2100
----------------------------------------------------------
Severely Errored Seconds (SES) Compliant to M.2100
----------------------------------------------------------
Availability Compliant to G.822
----------------------------------------------------------
5.2 XXXXXXXX' PERFORMANCE OBJECTIVES. Xxxxxxxx' minimum performance objectives
are detailed in the table below. These parameters are the provisioning
specifications used for 24-hour end-to-end tests, and are derived from ITU
specifications. In most cases, Xxxxxxxx' circuit performance outperforms
these objectives by a substantial margin as set forth below in Table G.2.
---------------------------------------------------------
TABLE G.2
---------------------------------------------------------
PERFORMANCE OBJECTIVE SATELLITE CABLE
---------------------------------------------------------
Bit Error Ratio (BER) < 10(6) < 10(7)
---------------------------------------------------------
Synchronization Loss < 5 < 3
---------------------------------------------------------
Error Free Seconds (EFS) > 98.5 % > 99.5 %
---------------------------------------------------------
ITU Availability > 99.0 % > 99.6 %
---------------------------------------------------------
5.3 SERVICE LEVEL AGREEMENTS. A Service Level Agreement ("SLA") is available on
Customer's request depending on the route chosen. The route-specific SLA
will not only be dependent on the origination and destination locations,
but also on the specific fiber-optic cable or satellite over which the
traffic will travel. These specific SLAs are more accurate and clearly
demonstrate the high quality of service Xxxxxxxx provides to its clients.
5.4 FOREIGN CARRIER ROUTES. Please note that any route involving a Foreign
Carrier or other carrier will generally not be covered in a Xxxxxxxx SLA,
as the Foreign Carrier's operations are not under the control of Xxxxxxxx.
Nevertheless, these carriers will also comply with the ITU specifications
for circuit performance parameters. For any route that consists of a
submarine cable, the submarine cable portion of the route will generally
not be covered by an SLA but shall comply with the technical specifications
set forth for the particular submarine cable system specified below, which
specifications will be provided to Customer upon Customer's request.
SUBMARINE CABLE SYSTEM (subject to availability)
----------------------
China-U.S. Cable / /
Southern Cross Cable / /
TAT-14 Cable / /
Japan-U.S. Cable / /
5.5 MEAN TIME TO RESTORE. Mean Time to Restore (MTTR) shall be the average time
required to restore service and resume availability and is stated in terms
of equipment and cable outages. The time is measured from the moment the
outage is reported until the service is available. With respect to
International Private Line Service, Xxxxxxxx has an objective of repairing
network equipment within an average of two (2) hours and an objective to
have the first fiber on a cable cut restored within an average of six (6)
hours. Xxxxxxxx will undertake repair efforts on equipment or fiber when
Xxxxxxxx first becomes aware of the problem, or when notified by Customer
and Customer has released all or part of the Service for testing. The
maintenance standards in this Section 5.5 only apply for equipment or fiber
on Xxxxxxxx' owned and operated network and from Xxxxxxxx' POP to Xxxxxxxx'
POP.
Xxxxxxxx Communications Page 2 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 10
INTERNATIONAL PRIVATE LINE SERVICE
SECTION 6. PRODUCT INTERVALS
6.1 IMPLEMENTATION INTERVALS. Xxxxxxxx' standard service implementation
interval shall be determined on an individual case basis. Xxxxxxxx shall
make reasonable efforts to provide International Private Line Service
within its standard service implementation interval. Failure of Xxxxxxxx to
deliver by such date shall not constitute a default under the Agreement and
Xxxxxxxx shall not be liable to pay to Customer any penalties or damages
for Xxxxxxxx' failure to meet such standard service implementation
intervals.
SECTION 7. PLANNED NETWORK MAINTENANCE ACTIVITY
7.1 TIMING. Xxxxxxxx shall avoid performing network maintenance between 0600 to
2200 Central Time (or local time with respect to facilities comprising
international Service), Monday through Friday, inclusive, that will have a
disruptive impact on the continuity or performance level of Customer's
Service. However, the preceding sentence does not apply to restoration of
continuity to a severed or partially severed fiber optic cable, restoration
of dysfunctional power and ancillary support equipment, or correction of
any potential jeopardy conditions. Xxxxxxxx will use commercially
reasonable efforts to notify Customer prior to emergency maintenance.
7.2 NOTICE. Xxxxxxxx shall provide Customer with electronic mail, telephone,
facsimile, or written notice of all non-emergency, planned network
maintenance (i) not less than [***] business days prior to performing
maintenance that, in its reasonable opinion, has a substantial likelihood
of affecting Customer traffic for up to fifty (50) milliseconds, and (ii)
not less than [***] business days prior to performing maintenance that, in
its reasonable opinion, has a substantial likelihood of affecting Customer
traffic for more than fifty (50) milliseconde. If Xxxxxxxx' planned
activity is canceled or delayed, Xxxxxxxx shall promptly notify Customer
and shall comply with the provisions of this Section to reschedule any
delayed activity.
SECTION 8. WARRANTY
Xxxxxxxx warrants that International Private Line Service shall be provided to
Customer in accordance with the applicable Technical Specifications set forth in
Section 5 of this Schedule. Xxxxxxxx shall use commercially reasonable efforts
under the circumstances to remedy any delays, interruptions, omissions,
mistakes, accidents or errors in the Services and restore such Services to
compliance with the Technical Specifications. THE FOREGOING WARRANTY IS THE SOLE
AND EXCLUSIVE WARRANTY AND IS PROVIDED IN LIEU OF ALL OTHER WARRANTIES WHETHER
EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE OUTAGE CREDITS REMEDY
PROVIDED TO CUSTOMER AS SET FORTH IN SECTION 4 OF THIS SCHEDULE IS THE SOLE AND
EXCLUSIVE REMEDY PROVIDED TO CUSTOMER AND IS IN LIEU OF ALL OTHER REMEDIES,
REGARDLESS OF WHETHER THIS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Xxxxxxxx Communications Page 3 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 10
INTERNATIONAL PRIVATE LINE SERVICE
IN WITNESS WHEREOF, THE PARTIES HAVE INDICATED THEIR AGREEMENT BY SIGNING BELOW
UNIVERSAL ACCESS, INC.: XXXXXXXX COMMUNICATIONS, LLC:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxx
-------------------------------- -----------------------------------------
Signature of Authorized Signature of Authorized
Representative Representative
Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxx
-------------------------------- -----------------------------------------
Printed Name Printed Name
President, Global Operations President and Chief Executive Officer
-------------------------------- -----------------------------------------
Title Title
10/03/01 10/03/01
-------------------------------- -----------------------------------------
Date Date
Xxxxxxxx Communications Page 4 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 13
METRO ACCESS PRIVATE LINE SERVICE
This Service Schedule is subject to that Master Services Agreement No.
________________ ("Agreement") by and between Xxxxxxxx Communications, LLC
("Xxxxxxxx"), and Customer. Xxxxxxxx may designate an affiliate to provide any
portion of the Metro Access Private Line Service then for purposes of this
Schedule 13.
SECTION 1. METRO PRIVATE LINE SERVICES
1.1 SERVICE DESCRIPTION. Xxxxxxxx' Metro Access Private Line Service ("Metro
Private Line Service") provides domestic DS-3 and Optical SONET (OC-3,
OC-12 and OC-48) circuits, which are located entirely upon Xxxxxxxx owned
and operated network with both end points of such circuit located within
the same city and at a Xxxxxxxx metro access point ("MAP"). Metro Private
Line Service is specifically dedicated to Customer's use between two (2)
points specified by the parties in a Service Order and will meet the
Technical Specifications as defined below in Section 6.
SECTION 2. SERVICE AVAILABILITY
2.1 SERVICE AVAILABILITY. Xxxxxxxx offers Metro Private Line Service in the
cities set forth below:
---------------------------------------------------------------
METRO ACCESS PRIVATE LINE CITIES
2001
---------------------------------------------------------------
Atlanta Los Angeles San Diego
Baltimore Miami St. Louis
Boston Minneapolis San Francisco
Chicago Newark San Xxxx
Dallas New York Seattle
Denver Philadelphia Washington, D.C.
Houston Phoenix
---------------------- ------------------- --------------------
SECTION 3. RECURRING RATES AND CHARGES
3.1 MONTHLY RECURRING RATES.
a. Monthly recurring charges for Metro Private Line Service are set forth
in table K.1 below, and include both a fixed and variable component.
The fixed rate is based upon the Metro city and type of circuit
ordered. The variable rate is based upon the mileage between the
Xxxxxxxx MAPS, which constitute the end points of the Metro Private
Line Service. Customer shall also pay any monthly Metro Private Line
interconnect charges.
----------------------------------------------------------------------------------------
TABLE K.1 MONTHLY RECURRING RATES
----------------------------------------------------------------------------------------
1 YEAR PRICING DS-3 OC-3 OC-12 OC-48
----------------------------------------------------------------------------------------
REGION 0-15 additiona 0-15 additiona 0-15 additiona 0-15 miles
miles mileage miles mileage miles mileage
----------------------------------------------------------------------------------------
AMERITECH $[***] $[***] $[***] $[***] $[***] $[***] $[***]
XXXX ATLANTIC & NYNEX $[***] $[***] $[***] $[***] $[***] $[***] $[***]
XXXX SOUTH $[***] $[***] $[***] $[***] $[***] $[***] $[***]
PAC XXXX $[***] $[***] $[***] $[***] $[***] $[***] $[***]
SWBELL $[***] $[***] $[***] $[***] $[***] $[***] $[***]
USWEST $[***] $[***] $[***] $[***] $[***] $[***] $[***]
----------------------------------------------------------------------------------------
b. THIRD PARTY LOCAL ACCESS SERVICE. Customer shall execute a Letter of
Agency, in a form provided by Xxxxxxxx, authorizing Xxxxxxxx to deal
directly with Third Party Local Access Provider(s) to obtain the
necessary Third Party Service on behalf of the Customer. Customer shall
pay all charges including, without limitation, monthly charges, usage
charges, installation charges, non-recurring charges, or Third Party
Local Access Provider(s). When Xxxxxxxx orders Third Party Local Access
Services for Customer, Xxxxxxxx shall coordinate the installation of
the Third Party Local
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Xxxxxxxx Communications Page 1 of 5
[XXXXXXXX LOGO] Proprietary & Confidential AGREEMENT (06/25/01)
SCHEDULE 00
XXXXX XXXXXX PRIVATE LINE SERVICE
Access Service, and conduct the initial testing of an interconnection
between the Xxxxxxxx' Service and the Third Party Local Access Service.
The Customer's charge for Third Party Local Access Service ordered by
Xxxxxxxx shall accrue at the then current tariff rate (or the standard
published rate, if there is no tariff rate) of the Third Party
Provider; and any changes in that rate will be passed through to the
Customer. When Xxxxxxxx orders Third Party Local Access Services,
Xxxxxxxx shall not begin billing Customer for such Third Party Local
Access Services until the Start of Service for any related Xxxxxxxx
Services. Customer may order its own Third Party Local Access Services
with a vendor who has established entrance facilities in a Xxxxxxxx'
POP or other vendors with Xxxxxxxx' prior written permission. When
Customer orders its own Third Party Local Access Service, its provider
shall directly xxxx Customer for Services. In addition, Xxxxxxxx may
charge Customer for any associated entrance facility or mileage charges
if it provides a carrier facility assignment ("CFA") to Customer.
Customer shall be responsible for having the Customer-ordered Third
Party Local Access Services turned up and shall be obligated to pay for
Xxxxxxxx' Services regardless of whether the Customer ordered Third
Party Local Access Services are available. It is understood that
Article 4 of the Agreement shall have no application to the provision
of Metro Private Line Services under this Schedule 13.
SECTION 4. NON-RECURRING RATES AND CHARGES
4.1 NON-RECURRING CHARGES. Non-Recurring Charges may apply to Metro Private
Line connections. Non-Recurring Charges are set forth in Table K.2 below.
----------------------------------------------------------------------------------------------
TABLE K.2 NON-RECURRING CHARGES DS-3 OC-3 OC-12 OC-48
----------------------------------------------------------------------------------------------
Installation $[***] $[***] $[***] $[***]
----------------------------------------------------------------------------------------------
Change Of Service Order Charge
----------------------------------------------------------------------------------------------
Pre-install $[***] $[***] $[***] $[***]
----------------------------------------------------------------------------------------------
Post-install $[***] $[***] $[***] $[***]
----------------------------------------------------------------------------------------------
Order Cancellation $[***] $[***] $[***] $[***]
----------------------------------------------------------------------------------------------
Order Expedite $[***] $[***] $[***] $[***]
----------------------------------------------------------------------------------------------
Cross Connect Install Charge $[***] $[***] $[***] $[***]
----------------------------------------------------------------------------------------------
4.2 INSTALLATION CHARGES. For Xxxxxxxx Services, installation charges shall
[***].
4.3 MISCELLANEOUS. Customer should be aware that from time to time, charges of
Third Party Providers are levied against Xxxxxxxx after submission of the
original Service Order from Customer. Xxxxxxxx will pass these charges
through to Customer. Xxxxxxxx will inform Customer of any such charges
before the charges are passed to Customer. Xxxxxxxx cannot guarantee that
all charges related to any requested Metro Private Line Service will always
be on the original Service Order.
4.4 NON-RECURRING PRICING. Pricing for Non-Recurring Metro Access Service shall
be as set forth in this Section 4 and are subject to change upon thirty
(30) calendar days' written or electronic notice by Xxxxxxxx to Customer.
Price changes shall only be effective on a going-forward basis and shall
not apply to Service Orders placed by Customer and accepted by Xxxxxxxx
prior to the effective date of the respective price change.
SECTION 5. OUTAGE CREDITS
5.1 OUTAGE CREDITS. Customer acknowledges the possibility of an unscheduled,
continuous and/or interrupted period of time during which Metro Private
Line Service fails to conform to the Technical Specifications below
("Outage"). An Outage shall begin upon the earlier of Xxxxxxxx' actual
knowledge of the Outage or Xxxxxxxx' receipt of notice from the Customer of
the Outage. In the event of an Outage, Customer shall be entitled to a
credit ("Outage Credit") upon Xxxxxxxx' receipt of Customer's written
request for such Outage Credit. The amount of the Outage Credit for Metro
Private Line Service shall be an amount equal to 1/720 of the monthly
recurring charge for that portion of the Metro Private Line Service which
is subject to the Outage for each hour in excess of the first two (2)
consecutive hours that the affected Metro Private Line Service fails to
conform to the Technical Specifications set forth below.
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
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Xxxxxxxx Communications Page 2 of 5
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SCHEDULE 00
XXXXX XXXXXX PRIVATE LINE SERVICE
5.2 EXCESSIVE OUTAGES. If a single circuit experiences either (a) three (3) or
more outages of fifteen (15) minutes duration or longer during any thirty
(30) day period, or (b) one or more outages of fifteen (15) minutes each in
each of three consecutive months or (c) one (1) outage of more than
twenty-four (24) consecutive hours in a one (1) calendar month period,
("Excessive Outage"), Customer shall be entitled, in addition to the
applicable Outage Credit, if any, to terminate such circuits as are
affected by the Excessive Outage without liability for the Early
Termination Charge set forth in Section 6.4 of the Agreement. However,
Customer shall be liable for any termination liability associated with
Third Party Local Access Service or any other Third Party Service
associated with such disconnection.
In the event Customer terminates a circuit for an Excessive Outage pursuant
to this Section and such termination causes the Customer to fall below
their Revenue Commitment, such terminated circuit shall count toward
Customer's Annual Commitment as if it had not been terminated.
5.3 REMEDY. The Outage Credit and the right to terminate for an Excessive
Outage as set forth in this Section 5 shall be the sole and exclusive
remedy of Customer in the event of any Outage and under no circumstances
shall an Outage be deemed a default under the Agreement.
5.4 LIMITATIONS. Customer shall not receive an Outage Credit if the Outage is:
(i) of a duration of less than two (2) consecutive hours; (ii) caused by
Customer or others authorized by Customer to use the Metro Private Line
Services under the MSA; (iii) due to the failure of power, facilities,
equipment, systems or connections not provided by Xxxxxxxx; (iv) caused by
the failure of Third Party Local Access Service to Xxxxxxxx' owned and
operated network; (v) the result of scheduled maintenance where Customer
has been notified of scheduled maintenance in advance; or (vi) due to a
Force Majeure event as defined in Section 8.5 of the Agreement.
5.5 CREDIT PAYMENT. Xxxxxxxx shall credit Customer with Outage Credits on the
next monthly invoice for the affected Service.
SECTION 6. TECHNICAL SPECIFICATIONS
6.1 TECHNICAL SPECIFICATIONS. Interconnection Specifications for DS-3 service
are as set forth in ANSI Standard T1.102 and T1.404. DS-3 Service operates
at 44.736 Mbps. Xxxxxxxx provides Optical SONET Services in accordance with
ANSI Standard T1.105. OC-3 Service operates at 155.520 Mbps and is
configured with 3 separate STS-1 signaling paths. OC-3C Service operates at
155.520 Mbps and is configured with 1 STS-3C signaling path (or 3
concatenated STS-1 signaling paths). OC-12 Service operates at 622.080 Mbps
with 12 separate STS-1 signaling paths. OC-12C Service operates at 622.080
Mbps with 1 STS-12C signaling path (or 4 separate STS-3C signaling paths).
OC-48 Service operates at 2488.320 Mbps and is configured with 48 separate
STS-1 signaling paths. The standards by which Xxxxxxxx' Metro Private Line
Services are measured apply on a one-way basis between Xxxxxxxx' MAPs only.
6.2 NETWORK AVAILABILITY. Network Availability is a measurement of the percent
of total time that service is operative when measured over a 365
consecutive day (8760 hour) period. DS-3 and Optical SONET Services are
considered inoperative when there has been a loss of signal or when two
consecutive 15 second loop-back tests confirm the observation of a bit
error rate equal to or worse than 1 x 10-6. For DS-N level Services on
Xxxxxxxx' network, availability shall be 99.95% from MAP to MAP measured
over a one-year period. For OC-N level Services on Xxxxxxxx' network,
availability shall be 99.95% from MAP to MAP measured over a one-year
period. Network availability standards for Third Party Services shall be
established by the Third Party Provider.
6.3 MEAN TIME TO RESTORE. Mean Time to Restore (MTTR) shall be the average time
required to restore service and resume availability and is stated in terms
of equipment and cable outages. The time is measured from the moment the
outage is reported until the service is available. With respect to Metro
Private Line Service, Xxxxxxxx has an objective of repairing network
equipment within an average of two (2) hours and an objective to have the
first fiber on a cable cut restored within an average of six (6) hours.
Xxxxxxxx will undertake repair efforts on equipment or fiber when Xxxxxxxx
first becomes aware of the problem, or when notified by Customer and
Customer has released all or part of the Service for testing. The
maintenance standards in this Section 6.3 only apply for equipment or fiber
on Xxxxxxxx' owned and operated network and from Xxxxxxxx' MAP to Xxxxxxxx'
MAP.
6.3 ERROR FREE SECONDS. Performance is noted in Error Free Seconds (Error Free
Seconds ("EFS"), while Available) which is a measure of the percentage of
total seconds that do not contain bit errors over a consecutive twenty-four
(24) hour period. Performance shall be measured on a one-way basis using a
Pseudo Random Bit Sequence test pattern as defined in CCITT
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METRO ACCESS PRIVATE LINE SERVICE
Recommendation 0.151. For Services on Xxxxxxxx' owned and operated network,
EFS shall be 99.5% from MAP to MAP measured over a one-year period. For
Third Party Services, the EFS standards shall be established by the Third
Party provider.
SECTION 7. PRODUCT INTERVALS
7.1 IMPLEMENTATION INTERVALS. Xxxxxxxx' standard service implementation
interval for DS(N) and OC(N) Service is set forth below in Table K.3. Third
Party Service implementation intervals shall be determined on an individual
case basis. Xxxxxxxx shall make reasonable efforts to provide Xxxxxxxx'
Services within its standard service implementation interval. Failure of
Xxxxxxxx to deliver by such date shall not constitute a default under the
Agreement and Xxxxxxxx shall not be liable to pay to Customer any penalties
or damages for Xxxxxxxx' failure to meet such standard service
implementation intervals.
-----------------------------------------------------
TABLE K.3 IMPLEMENTATION INTERVALS
-----------------------------------------------------
STANDARD INTERVAL
SERVICE TYPE MAP TO MAP
-----------------------------------------------------
DS-1 [***]
-----------------------------------------------------
DS-3 [***] calendar days
-----------------------------------------------------
OC-3 [***] calendar days
-----------------------------------------------------
OC-12 [***] calendar days
-----------------------------------------------------
OC-48 IBC
-----------------------------------------------------
OC-48 Wave IBC
-----------------------------------------------------
SECTION 8. PLANNED NETWORK MAINTENANCE ACTIVITY
8.1 TIMING. Xxxxxxxx shall avoid performing network maintenance between 0600 to
2200 Central Time, Monday through Friday, inclusive, that will have a
disruptive impact on the continuity or performance level of Customer's
Metro Private Line Service. However, the preceding sentence does not apply
to restoration of continuity to a severed or partially severed fiber optic
cable, restoration of dysfunctional power and ancillary support equipment,
or correction of any potential jeopardy conditions. Xxxxxxxx will use
commercially reasonable efforts to notify Customer prior to emergency
maintenance.
8.2 NOTICE. Xxxxxxxx shall provide Customer with electronic mail, telephone,
facsimile, or written notice of all non emergency, planned network
maintenance: (i) not less than [***] business days prior to performing
maintenance that, in its reasonable opinion, has a substantial likelihood
of affecting Customer's traffic for up to fifty (50) milliseconds, and (ii)
not less than [***] business days prior to performing maintenance that, in
its reasonable opinion, has a substantial likelihood of affecting Customer
traffic for more than fifty (50) milliseconds. If Xxxxxxxx' planned
activity is cancelled or delayed, Xxxxxxxx shall promptly notify Customer
and shall comply with the provisions of this Section to reschedule any
delayed activity.
SECTION 9. WARRANTY
Xxxxxxxx warrants that it shall provide Metro Private Line Service in accordance
with the applicable Technical Specifications set forth above. Xxxxxxxx shall use
commercially reasonable efforts under the circumstances to remedy any delays,
interruptions, omissions, mistakes, accidents or errors in the Service and
restore such Service to comply with the terms hereof. THE FOREGOING WARRANTY IS
THE SOLE AND EXCLUSIVE WARRANTY AND IS PROVIDED IN LIEU OF ALL OTHER WARRANTIES
WHETHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE OUTAGE CREDITS REMEDY
PROVIDED TO CUSTOMER AS SET FORTH IN SECTION 5 OF THIS SERVICE SCHEDULE IS THE
SOLE AND EXCLUSIVE REMEDY PROVIDED TO CUSTOMER AND IS IN LIEU OF ALL OTHER
REMEDIES, REGARDLESS OF WHETHER THIS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
----------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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SCHEDULE 13
METRO ACCESS PRIVATE LINE SERVICE
SECTION 10. FCC REGULATION
Customer represents that more than ten percent (10%) of the total traffic
carried on each circuit provided pursuant to this Service Schedule is
interstate (including international) traffic. If it is determined at any
time that any circuit provided hereunder is subject to regulation by a U.S.
state regulatory agency, the service or circuit may be provided by Xxxxxxxx
or its affiliates pursuant to applicable state laws, regulations and
applicable tariffs, or Xxxxxxxx and its affiliates my discontinue provision
of the affected Service or circuit.
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SCHEDULE 13
METRO ACCESS PRIVATE LINE SERVICE
IN WITNESS WHEREOF, THE PARTIES HAVE INDICATED THEIR AGREEMENT BY SIGNING BELOW.
UNIVERSAL ACCESS, INC.: XXXXXXXX COMMUNICATIONS, LLC:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------- -----------------------------------------
Signature of Authorized Signature of Authorized
Representative Representative
Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxx
------------------------------- -----------------------------------------
Printed Name Printed Name
President, Global Operations President and Chief Executive Officer
------------------------------- -----------------------------------------
Title Title
10/03/01 10/03/01
------------------------------- -----------------------------------------
Date Date
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