Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
MASTER SERVICES AGREEMENT
BETWEEN
MCI TELECOMMUNICATIONS CORPORATION, INC.
AND
FIVECOM, INC.
TABLE OF CONTENTS
I. DEFINITIONS.......................................................2
II. TERM AND TERMINATION..............................................3
III. SERVICE AVAILABILITY..............................................4
IV. PAYMENT FOR SERVICES..............................................5
V. AUTHORITY, REPRESENTATIONS AND PERFORMANCE OF
EQUIPMENT.........................................................7
VI. SERVICE SPECIFICATIONS, MAINTENANCE, REPAIR AND TESTING...........9
VII. COLLOCATION OF EQUIPMENT..........................................9
VIII. SERVICE INTERRUPTION, LIMITATIONS OF WARRANTY AND
DAMAGES..........................................................10
IX. INDEMNIFICATION..................................................12
X. DEFAULT..........................................................13
XI. INFRINGEMENT.....................................................14
XII. REQUIRED RIGHTS..................................................14
XIII. FORCE MAJEURE....................................................14
XIV. TAXES............................................................15
XV. NOTICES..........................................................15
XVI. CONFIDENTIALITY..................................................16
XVII. WAIVER...........................................................16
XVIII. GOVERNING LAW....................................................16
XIX. ASSIGNMENT.......................................................16
XX. COMMON CARRIERS..................................................17
XXI. NON-EXCLUSIVE ARRANGEMENT........................................17
XXII. INSURANCE AND LIABILITY..........................................17
XXIII. AUTHORITY........................................................18
XXIV. GENERAL PROVISIONS...............................................19
XXV. ARBITRATION......................................................19
XXVI. ENTIRE AGREEMENT.................................................19
EXHIBIT A TECHNICAL SPECIFICATIONS
EXHIBIT B SERVICE AGREEMENT
EXHIBIT C SERVICE AVAILABILITY
EXHIBIT D REQUIREMENTS FOR AUTOMATED INTERFACE WITH MCI
EXHIBIT E PRICING
EXHIBIT F DESCRIPTION OF SWITCHED SERVICES
EXHIBIT G PERFORMANCE AND MAINTENANCE
EXHIBIT H PROVIDER RESPONSIBILITIES AND SYSTEM CRITERIA
EXHIBIT I CONFIDENTIALITY AGREEMENT
MASTER SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of January,
1994, by and between MCI Telecommunications Corporation, a Delaware corporation,
having an office at 0000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 20036
(hereinafter referred to as "MCI"), and FiveCom, Inc., a Massachusetts
corporation, having an office at 000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx, XX
00000 (hereinafter referred to as "Provider").
RECITALS
WHEREAS, Provider and MCI wish to set forth a standard set of general
terms and conditions which will facilitate MCI's ability to obtain private line
and/or switched access services ("Services") in various metropolitan areas. The
Services will be offered in each metropolitan area by an entity which is either
an affiliate or subsidiary of Provider and/or which Provider manages or is
otherwise contractually affiliated with ("Authorized Entity"). Provider will
notify Customer from time to time of the identity of each such entity for which
such terms and conditions are applicable and of the appropriate procedure for
placing orders.
WHEREAS, Provider and MCI have entered into this Agreement for the
purpose of setting forth those terms and conditions under which Provider will
furnish MCI with requested Services; and
WHEREAS, Provider and MCI also agree that they will enter into separate
capacity agreements (hereinafter referred to collectively or singly as the
"Service Agreement") for each MCI circuit requirement not otherwise available to
MCI under the procedures set forth in this Agreement which Service Agreement
shall incorporate the terms, conditions and covenants of this Agreement and
shall also set forth the terms and provisions unique to each such circuit
requirement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and in consideration of the covenants and agreements contained
in any Service Agreement, the parties hereto hereby agree as follows:
This Agreement supersedes all existing Agreements between Provider and
MCI pursuant to which MCI purchases telecommunications access services, in their
entirety, with the exception of the Agreement listed below:
1. Fiber Use Agreement between FiveCom Associates and MCI
Telecommunications, dated June 1, 1993.
1
I. DEFINITIONS
1.1 "Capacity" shall mean dedicated telecommunications
Circuits (as hereinafter defined) that Provider furnishes to MCI under the terms
of this Agreement.
1.2 "Circuit" shall mean any individual DS-O, DS-1 or DS-3 or
other data transmission service Provider furnishes to MCI.
1.3 "Collocation" or "collocate" shall mean Provider's right
to place equipment in MCI locations solely for the purpose of providing the
Services ordered by MCI, or approved by MCI, to MCI's telecommunications network
pursuant to this Agreement or the Service Agreement.
1.4 "Confidential Information" shall mean any materials
defined as confidential or proprietary in any Confidentiality Agreement entered
into between the parties, and: a) all requests for service quotations and
Services and the contents thereof, including, but not limited to, the identity
and location of MCI's Customers (as hereinafter defined); b) all responses to
requests for quotations and Services, and the contents thereof, which Provider
submits to MCI; and c) all proprietary information one party provides to the
other.
1.5 "Customer" shall mean any corporation, company, entity or
person to which MCI furnishes Services or service, either under tariff or
contractual arrangement.
1.6 "Demarcation Point" shall mean the interface between the
Network (as hereinafter defined) and MCI's telecommunications equipment, the
interface between the Network and the local exchange carriers' network, as well
as the interface between the Network and a Customer's telecommunications
equipment. Provider shall be responsible for all equipment required for
provision of service between the Network and a Customer's telecommunications
equipment.
1.7 "Interconnection Facilities" shall mean all local access
facilities at a Demarcation Point(s).
1.8 "LEC" shall mean any company responsible for the
provisioning of local access lines owned and operated by a Regional Bell
Operating Company or an independent telephone company which has historically
held the rights to provide such services in their franchised territory.
1.9 "MCI" shall mean MCI Telecommunications Corporation, MCI
Communications Corporation, and all subsidiaries, affiliates, successors and
assigns.
2
1.10 "Network" shall mean any telecommunications links
utilized by or necessary to Provider in order to furnish the Services.
1.11 "Provider" shall mean FiveCom, Inc., and all
subsidiaries, affiliates, successors and assigns.
1.12 "SECABS" shall mean Small Exchange Carrier Access Billing
System as defined by Bellcore Special Publication Number SROPT-001-856.
1.13 "Services" shall mean the telecommunications services
provided by the Authorized Entity to MCI pursuant to this Agreement for Capacity
and/or enhanced local switching.
1.14 "Switch Services" are those Provider-furnished shared,
network or feature group services which access the MCI switch via shared
facilities from Provider; as further defined in Exhibit F.
Unless otherwise expressly defined, all other terms used in this
Agreement shall be accorded their usual and customary meanings.
II. TERM AND TERMINATION
2.1 The term of this Agreement shall commence as of the date
hereof and shall continue either: (a) for a period of ten (10) years, or (b)
until final termination of any active Service Agreement or ASR (as hereinafter
defined) entered into in accordance with this Agreement, whichever is later.
2.2 The initial term of each ASR or Service Agreement shall
commence on the date upon which the Services described in the ASR or Service
Agreement is available for use. The initial term of the ASR or Service Agreement
shall expire at the end of the period set forth in the ASR or Service Agreement.
2.3 MCI shall have the right, in its sole discretion, to
cancel any ASR or Service Agreement upon twenty-four (24) hours written notice
to Provider. Unless the ASR or Service Agreement is cancelled for Provider's
breach as provided for elsewhere in this Agreement, MCI shall remain liable for
any termination liabilities associated with the cancelled ASR or Service
Agreement. In the event MCI exercises its right to cancel any ASR or Service
Agreement, the terms and conditions of this Agreement shall nevertheless remain
in effect until termination of the last active ASR or Service Agreement.
2.4 If at any time during the Term all or any significant
portion of the fiber optic or other facilities or associated equipment used to
provide the Services to MCI shall be taken for any public or quasi-public
purpose by any lawful power or authority
3
by the exercise of the right of condemnation or eminent domain, Provider shall
be entitled to elect to terminate this Agreement or the applicable portions
hereof upon written notice to MCI.
2.5 Upon termination of this Agreement, all rights of MCI to
the Services shall cease and Provider shall have no further obligations to MCI
with respect to furnishing the Services.
III. SERVICE AVAILABILITY
3.1 Provider shall make available to MCI, in response to any
electronically transmitted requests from MCI, Services as specifically provided
for in any ASR or Service Agreement which may be entered into by the parties,
subject to the terms of this Agreement. A sample form of the Service Agreement
is attached hereto as Exhibit B.
3.2 The metropolitan areas and building locations in which
Provider's Network is currently able to furnish Capacity to MCI are listed in
Exhibit C attached hereto and made a part hereof. Provider shall have the right,
at any time and from time to time during the term of this Agreement, to provide
MCI with a revised list of metropolitan areas and building locations, in a
format acceptable to MCI. Upon receipt by MCI, any such revised list shall be
automatically attached hereto as an amended Exhibit C.
3.3 To order Capacity to be furnished at a building location
included in Exhibit C, MCI shall electronically submit an Access Service Request
(herein referred to as "ASR") to Provider, including the requested date of
service. Within five (5) business days after receipt of the ASR, Provider shall
electronically issue a Firm Order Commitment (hereinafter referred to as "FOC")
to MCI. MCI shall have the right, in its sole discretion, to cancel the ASR,
without incurring any termination liability, at any time prior to receiving the
FOC or in the event the Capacity is not provided by the in-service date set
forth in the FOC, unless the delay in providing the service is directly
attributable to MCI or its Customer for the requested Capacity. In the event the
Capacity is not provided by the in-service date set forth in the FOC, and MCI
chooses not to cancel the ASR, Provider will credit to MCI one day of service
for each day the Capacity is unavailable to MCI after the in-service date
specified in the FOC. Under no circumstances shall MCI be billed for use of a
circuit prior to installation. The requirements for electronically issuing an
ASR and an FOC are further defined in Exhibit D attached hereto and made a part
hereof.
3.4 To order Capacity to be furnished at a location not
included in Exhibit C, MCI shall submit an ASR to Provider, including a
requested date of service. Within five (5) business days after receipt of the
ASR, if Provider will be able to furnish such Capacity, Provider shall issue an
FOC to MCI, along with an estimated date on
4
which the Capacity can be made available to MCI. Within ten (10) business days
after receipt of the FOC, MCI shall have the right, in its sole discretion, to
either: (a) notify Provider that the availability date is not acceptable and
cancel the ASR at no cost to MCI or request Provider to submit a new FOC, or (b)
notify Provider that the availability date is acceptable. In the event MCI
chooses option (a) and requests Provider to submit a new FOC, the procedures and
the time periods for responses set forth in this paragraph 3.4 shall again be
applicable to MCI's request. In the event MCI chooses option (b), Provider shall
immediately begin making all arrangements necessary to insure that the Capacity
will be available for MCI's use by the estimated availability date. The parties
shall execute a Service Agreement for the Capacity within twenty (20) days from
the date Provider notifies MCI of the actual availability date for the Capacity;
provided, however, that MCI shall have the right, in its sole discretion, to
cancel a Service Agreement for Capacity without incurring any termination
liability, in the event the Capacity is not furnished on or before the
in-service date set forth in the Service Agreement.
3.5 For Switch Services, Provider shall use the facilities as
described in Exhibit F for communications originated at or terminated at MCI
locations for the applicable telephone number groups provided by Provider. On
thirty (30) days prior written notice to MCI, Provider may change, from time to
time and by deletion or addition, the eligible telephone number groups. The
communications may include, without limitation, direct dialed calls, operator
assisted calls, calling card calls, conference calls and 800 service.
To order entrance facilities/interconnect for Switch Services, MCI shall
electronically submit an Access Service Request (herein referred to as "ASR") to
Provider, including the requested date of service. Within five (5) business days
after receipt of the ASR, Provider shall electronically issue a Firm Order
Commitment (hereinafter referred to as "FOC") to MCI. MCI shall have the right,
in its sole discretion, to cancel the ASR, without incurring any termination
liability, at any time prior to receiving the FOC.
IV. PAYMENT FOR SERVICES
4.1 The monthly recurring charges for the Capacity shall be at
the rates set forth in Exhibit E, attached hereto and made a part hereof, net of
any discounts provided for in Exhibit E, and shall be payable by MCI within
thirty (30) days after receipt of an itemized invoice therefor. The charges for
Capacity will begin to accrue on the date the Capacity is available for use.
Provider will submit monthly invoices as directed by XXX, which invoice(s) will
include all Capacity furnished to MCI as of the date of the invoice(s). The
invoice(s) submitted by Provider to MCI must be prepared utilizing the SECABS
billing guidelines, and must be rendered to MCI within fifteen (15) days after
the close of the billing period. Under no circumstances shall MCI be liable for
any charges which are not billed to MCI within ninety (90) days after the
charges were initially incurred.
5
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
4.2 The non-recurring fee set forth in Exhibit E will be
included in the first monthly invoice submitted to MCI after Provider has
furnished the Services specified in the applicable FOC.
4.3 MCI shall have the right to dispute any charges for which
it is invoiced by Provider. In the event MCI disputes any such invoice or
portion thereof, MCI shall promptly pay that portion of the invoice which is
undisputed. MCI shall have the right to withhold payment of any disputed amount,
provided that XXX gives Provider notice of the amount and reason for the dispute
in accordance with the provisions of paragraph 25.1 herein. All invoicing
disputes shall be resolved in accordance with the provisions of Article XXV
herein. Notwithstanding any provisions contained in this Agreement to the
contrary, MCI's failure to pay any invoice or portion thereof as a result of an
unresolved dispute shall not be considered a breach of the terms and provisions
of this Agreement.
4.4 For Switch Services, Provider will calculate its charges
for each month at the applicable rate provided for in Exhibit E, on the basis of
Provider's accurate Switched Minutes of Actual Use report produced by Automatic
Machine Accounting (AMA) equipment. For such calculation, Provider will
calculate the time for each call, rounded up to the nearest .1 second, and such
monthly total accumulation by end office shall be rounded up to the nearest
minute. Provider will issue its invoice for these charges as of the last day of
each month. Provider will furnish an AMA tape with each bill to Customer.
4.5 The rates for furnishing the Capacity to MCI throughout
the term of this Agreement are set forth in Exhibit E. Under no circumstances
during the term of this agreement shall the price MCI pays to Provider for
Capacity be more than[**] of the tariffed prices MCI can obtain from the LEC
serving the same locations as Provider (Provider mileage for individual Circuits
shall conform to the mileage component assigned to the individual Circuit by the
LEC) assuming the LEC is used for all MCI access requirements (MCI LEC Price).
In the event of a LEC tariff change, MCI will notify the Provider within sixty
days of any such change, and Provider will modify the applicable rates in
Exhibit E within 10 days of receipt of such notice. This change will be
effective on the date of the LEC tariff change.
In the event of changes in the rates in Exhibit E resulting from changes in the
factors used by MCI to calculate the MCI LEC Price, the changes to the rates in
Exhibit E will be effective on the date MCI notifies Provider of the change in
calculation of the MCI LEC Price.
6
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Notwithstanding the provisions of the foregoing sentence, however, in the event
Provider issues a revised schedule of rates resulting in a decrease in pricing,
all Capacity furnished to MCI by Provider pursuant to this Agreement shall be
subject to such decreased pricing schedule.
4.6 Under no circumstances during the term of this agreement
shall the price MCI pays to Provider for Switch Services be more than [**] for
Switch Services from the LEC capable of providing Switch Services to the same
location as Provider. MCI will notify the Provider of any changes to the LEC
tariffed rate, and Provider will modify the applicable rates in Exhibit E within
10 days of receipt of such notice. This change will be effective on the date of
the LEC tariff change. Such changes in the rates shall be subject to the terms
of this paragraph and paragraph 4.7.
4.7 Provider shall submit a quarterly report to MCI to include
any relevant calculations required to prove compliance with the terms of
sections 4.5 and 4.6.
4.8 [**] Notwithstanding the pricing structure set forth
herein, the price available to MCI for the Services [**] in which Provider
furnishes Services to MCI, as set forth in Exhibit C. In the event that [**] in
which Provider furnishes Services to MCI, [**].
If it is determined that Provider has not fully complied with the terms of this
Paragraph, Provider shall 2[**].
V. AUTHORITY, REPRESENTATIONS AND PERFORMANCE
OF EQUIPMENT
5.1 Provider warrants and represents that it is authorized by
all applicable federal, state and local laws, regulations and ordinances to
furnish the Services and hereby agrees to indemnify and hold harmless MCI and
XXX's Customers from and against any and all loss, liability, damage and expense
(including reasonable attorneys' fees) for any demand, claim, suit or judgment
against MCI and/or MCI's Customers attributable to Provider not having or losing
such authorizations.
5.2 Provider represents and warrants to MCI that it has
authority to do business in the areas in which it furnishes Services to MCI as
set forth in Exhibit C and the right to furnish the Services to MCI, and that it
is an entity, duly organized, validly existing and in good standing under the
laws of the state of its origin, with all requisite power to enter into and
perform its obligations under this Agreement in accordance with its terms.
7
5.3 Provider represents and warrants to MCI that the Services
furnished under the terms of this Agreement and any Service Agreement shall be
designed, produced, installed, provided and maintained in conformance and
compliance with applicable federal, state and local laws, administrative and
regulatory requirements and any other authorities having jurisdiction over the
subject matter of this Agreement. Provider shall be responsible for applying
for, obtaining and maintaining all registrations and certifications which may be
required by such authorities.
5.4 Provider represents and warrants to MCI that the Services
it furnishes to MCI shall be free of interruptions (as defined in Exhibit H)
except for scheduled maintenance (as described in Exhibit G). Outages resulting
from scheduled maintenance shall not exceed one (1) cumulative hour per
consecutive thirty (30) day period with respect to any single Circuit.
5.5 Provider shall obtain any authorizations and approvals
necessary to furnish the Services to MCI. In the event of a conflict between the
terms of this Agreement and/or any Service Agreement and any tariff which
Provider or MCI may file pursuant to any federal or state law, rule or
regulation, the terms of any such tariff shall control; provided, however, that
to the extent lawfully required, Provider represents and warrants that there are
no such conflicts on the date hereof. Notwithstanding the termination provisions
set forth in paragraph 2.3 herein, if the provisions of any tariff alter the
terms and conditions of this Agreement and/or any Service Agreement materially
or adversely to either party, the affected party may terminate this Agreement
and/or any affected Service Agreement(s) upon thirty (30) days notice to the
other party, without incurring any termination liability. In the event that MCI
is the affected party, MCI shall also be entitled to receive any non-recurring
charges incurred to effectuate a reconnection of the affected service.
5.6 Each party agrees that neither its equipment nor the
Circuit(s) associated with the providing Services shall interfere with or impair
any other services or facilities furnished by the other party including, but not
limited to, damage to the other's plant, unlawful impairment of the privacy of
any communications transmitted over the Service, or creation of a hazard to any
employees or customers or to the public. If a party determines that any such
impairment of interference exists and, in the event such impairment or
interference, shall provide written notice to the other. The aforementioned
notice shall state, if known, the nature and cause of the interference or
impairment in sufficient detail to allow the damaging party to take immediate
remedial measures including, but not limited to, blockage of the other party's
network associated with the Service as provided for in paragraph 6.5 herein. If
additional equipment is required because of the damaging party's misuse of the
Service, the damaging party shall bear the cost thereof. The damaged party shall
have the right to inspect any such equipment to determine its compliance and
compatibility with the damaged party's network.
8
VI. SERVICE SPECIFICATIONS, MAINTENANCE, REPAIR
AND TESTING
6.1 Provider represents, covenants and warrants to MCI that it
shall, at all times, comply with the provisions of Exhibits G and H attached
hereto and made a part hereof.
6.2 Provider warrants, covenants and represents that the
Service it furnishes to MCI shall meet the technical specifications set forth in
Exhibit A (hereinafter referred to as the "Specifications").
6.3 Provider shall be responsible for maintaining and
repairing the Network in accordance with the procedures set forth in Exhibit X.
XXX is prohibited from performing any other maintenance and repair on the
Network without the express written authorization of Provider. Upon request from
MCI, Provider shall furnish, install, test, maintain and repair any
Interconnection Facilities in a Customer location, at Provider's sole cost and
expense, in accordance with any procedures Customer and MCI deem appropriate,
including, but not limited to, those procedures set forth in paragraph 2.9 of
Exhibit G.
6.4 Provider shall report, investigate and correct any
failure, interruption or impairment of the Service in accordance with the
procedures set forth in Exhibit G.
6.5 The parties agree that if either party, in its sole
discretion, determines that any emergency action is necessary to protect its own
telecommunications network, that party may block any signals the other party may
be transmitting over the blocking party's network. In the event MCI blocks
Provider's Circuit(s) and/or Service because such Circuit(s) and/or Service does
not meet the parameters of the specifications set forth in Exhibit A, MCI shall
be relieved of all obligations to make payments for charges relating to such
Circuit(s) and/or Service until such time as the affected Circuit(s) and/or
Service meets the Specifications. Each party agrees that it will notify the
other, as soon as practicable, when a blockage occurs and both parties agree to
work diligently towards restoration of the affected Circuits and/or Service.
Neither party shall have any obligation to the other party for any claim,
judgment or liability resulting from such blockage, except as otherwise provided
in this paragraph 6.5.
VII. COLLOCATION OF EQUIPMENT
7.1 Subject to MCI's approval, which approval may be withheld
in MCI's sole discretion, Provider shall be permitted to install its equipment
at MCI locations provided that such equipment shall be used solely for the
purpose of providing access facilities to interconnect the Service to MCI's
telecommunications network. Any equipment installed by Provider must be MCI
lab-approved. Any equipment Provider is permitted to install at an MCI location
shall be maintained and repaired by Provider.
9
In addition, MCI will allow Provider to access its equipment for the purpose of
maintenance and repair of equipment and testing the Circuits and the Service,
but only in accordance with procedures which MCI, in its sole discretion, deems
to be appropriate, including, but not limited to, those procedures set forth in
paragraph 2.9 of Exhibit G. For each MCI location in the metropolitan areas set
forth in Exhibit C, the parties shall prepare a detailed scope of work,
including a designation of the space at the MCI location within which Provider
will install its equipment and a list of the equipment Provider intends to
install, which scope of work as amended from time to time shall be attached to
this Agreement as a part of Exhibit C. Subject to all required approvals and the
availability of sufficient space, MCI will provide, at MCI's cost, reasonable
space, power and environmental conditions including, but not limited to,
equipment space, battery space and conduit space, air conditioning and fire
protection, as necessary to facilitate said interconnection.
7.2 The parties agree that if Provider installs equipment at
MCI locations in accordance with paragraph 7.1 herein, Provider will make the
equipment available as a bailment and title to the equipment will remain with
Provider. MCI shall have no right, title or interest therein, except as
expressly provided in this Agreement. MCI will keep Provider's equipment free
and clear of all liens, security interest and encumbrances. MCI shall have the
right to require Provider to relocate Provider's equipment for MCI's convenience
due to MCI's networking requirements. Such equipment relocation at the same MCI
location, and any associated out-of-pocket costs, shall be at MCI's expense and
shall accrue after written notice to Provider; provided, however, that if, as a
result of MCI's networking requirements, Provider's equipment must be relocated
to a different MCI location, such relocation shall be undertaken at Provider's
sole cost and expense.
7.3 Provider understands and agrees that permission to install
its equipment at an MCI location is not intended to and shall not be deemed to
grant Provider any property rights in the location. In the event, however, that
this arrangement shall be construed by the owner of the building in which the
location is situated to be such a grant and if the owner of the building asserts
such a grant to be a violation of the lease under which MCI occupies the
location, Provider agrees, upon request of MCI, to either enter into an
agreement approved by said owner or immediately remove its equipment. XXX agrees
to cooperate with Provider in obtaining the approvals Provider may need to
obtain from any building owner.
VIII. SERVICE INTERRUPTION, LIMITATIONS OF WARRANTY
AND DAMAGES
8.1 For interruptions of the Capacity MCI shall be entitled to
credit for interruption in one or more Circuits, unless such interruption is the
result of any act or omission of MCI or suspension of Services by Provider as
permitted under the terms of this Agreement. The amount of the credit shall be
as follows:
10
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Length of Service Interruption Credit
Less than [**] [**]
Each additional [**] period or [**]
fractions thereof
Notwithstanding the termination provisions of paragraph 2.3 herein or the
default provisions of Article X herein, if any Circuit cannot meet the
Specifications for any consecutive [**] period, or for [**] of the time over a
consecutive [**] period, MCI may immediately terminate the Services or Circuit,
at MCI's discretion, without incurring any termination liability, and Provider
will reimburse MCI for any and all installation charges MCI incurs in furnishing
the Circuit and/or Services by an alternate method; provided, however, that such
charges shall not exceed the then prevailing rates charged by the local exchange
carrier for comparable services.
In addition, if Provider has identified a location listed on Exhibit C, Building
List, as being serviced by a self-healing fiber ring, MCI shall be entitled to a
credit equal to one month's service in the event that there is a service
interruption equal to or greater than one (1) second during a particular month.
The credit will be applicable only against the specific levels of service
affected by the interruption. In no event, however, shall MCI's credit for such
service interruption during a particular month at a location serviced by a
self-healing ring exceed one month, regardless of the number of interruptions
during that particular month.
Once a location has been identified by Provider as being serviced by a
self-healing ring, that location will be subject to the service interruption
credit listed above for the term of this Agreement.
8.2 For documented interruptions of available Switch Services,
MCI shall be entitled to the following credit, unless such interruption is the
result of any act or omission of MCI or suspension of Services by Provider as
permitted under the terms of this Agreement:
Length of Service Interruption Credit
Less than [**] [**]
Each additional [**] period or [**]
fractions thereof
11
The credit shall apply to the period directly succeeding the
resumption of interrupted service.
8.3 THE FOREGOING SHALL BE PROVIDER'S SOLE OBLIGATION AND
MCI'S SOLE REMEDY FOR ANY LOSS OR DAMAGE SUSTAINED AS A RESULT .OF ANY
INTERRUPTION OR FAILURE OF THE SERVICE OR ANY FACILITIES USED IN PROVIDING THE
SERVICE, HOWEVER LONG IT SHALL LAST AND REGARDLESS OF THE CAUSE, UNLESS SUCH
LOSS OR DAMAGE IS DUE TO PROVIDER'S WILLFUL OR NEGLIGENT ACT OR OMISSIONS;
PROVIDED, HOWEVER, THAT NO LIMITATION AS TO DAMAGES FOR PERSONAL INJURY IS
HEREBY INTENDED.
8.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR
TO ANY THIRD PARTIES FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES
INCLUDING, WITHOUT LIMITATION, THOSE BASED ON LOSS OF REVENUES, PROFITS OR
BUSINESS OPPORTUNITIES, WHETHER OR NOT PROVIDER OR MCI HAD OR SHOULD HAVE HAD
ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED.
8.5 THERE ARE NO AGREEMENTS, WARRANTIES, OR REPRESENTATIONS,
EXPRESS OR IMPLIED EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR
OTHERWISE, INCLUDING WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE OR USE, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN.
IX. INDEMNIFICATION
9.1 Provider shall indemnify and hold MCI and its Customers
harmless from and against any and all loss, liability, damage and expense
(including reasonable attorneys' fees) arising out of any demand, claim, suit or
judgment for damages to any property or bodily injury to or death of any
persons, including, but not limited to, customers, agents and employees of
either party hereto (including payment under any worker's compensation law or
under any plan for employee disability and death benefits) which may arise out
of or be caused by any act or omission of Provider.
9.2 MCI shall indemnify and hold Provider harmless from and
against any and all loss, liability, damage and expense (including reasonable
attorneys' fees) arising out of any demand, claim, suit or judgment for damages
to any property or bodily injury to or death of any persons, including, but not
limited to, customers, agents and employees of either party hereto (including
payment under any workers' compensation law or under any plan for employee
disability and death benefits) which may arise out of or be caused by any act or
omission of MCI.
12
9.3 If any claim arises to which the provisions of this
Article IX may be applicable, the party against whom such claim is made shall
immediately upon learning of such claim, notify the other party. Such other
party, at its option, may settle or compromise such claim or retain counsel of
its own choosing and control and prosecute the defense. In no event shall the
party against whom the claim is asserted have the right to pay, settle or
otherwise compromise such claim without the prior written consent of the party
who may be obligated for such indemnity and the parties hereto agree that they
will not unreasonably withhold their consent to such payment, settlement or
compromise.
X. DEFAULT
10.1 Except for Provider's obligations to furnish the Service
without interruption and to repair the Network and/or Circuit(s) comprising the
Service, the remedies for breach of which obligations are provided for in
Article VIII herein, neither party shall be in default under this Agreement or
in breach of any provisions hereof unless and until it has been given written
notice of a breach of this Agreement by the other party and shall have failed to
cure such breach within thirty (30) days after receipt of such notice. When a
breach cannot reasonably be cured within such thirty (30) day period, if the
breaching party shall proceed promptly to cure the same and prosecute such
curing with due diligence, the time for curing such breach shall be extended for
such period of time as may be necessary to complete such curing. Notwithstanding
the termination provisions of paragraph 2.3 herein, upon the failure to cure any
such breach as provided above, the party giving notice of the breach may
thereupon immediately terminate this Agreement or any ASR or Service Agreement
upon providing written notice of termination to the breaching party and without
incurring any termination liability. Upon default by either party, the
non-defaulting party shall have the right to pursue any or all remedies
available at law and/or equity.
10.2 In addition to any breach of a material term of this
Agreement, other events that will, if not cured within the applicable time
periods, constitute a default shall include, but not be limited to, the
occurrence of any one or more of the following events:
a. The filing of bankruptcy or making a general
assignment for the benefit of creditors; and/or
b. The defaulting party's violation of any
applicable laws, statutes, ordinances, codes or
other legal requirements with respect to the
Services when the violation(s) is not remedied
within ten (10) business days after written
notice thereof; provided, however, that each
party hereto reserves the right to contest
and/or appeal any such claim of violation and if
such contest and/or appeal is undertaken prior
to the end
13
of the ten (10) business day period, the
defaulting party shall have a reasonable time,
which shall not exceed 180 days, to prosecute
the appeal and obtain a final determination of
the matter.
XI. INFRINGEMENT
11.1 Provider represents that the equipment and facilities it
will use in furnishing the Services to MCI pursuant to this Agreement will not
infringe or violate any copyright, patent, trade secret or any other
intellectual property rights or similar property rights, excluding, however, any
such infringement which may arise due to combining such equipment and facilities
with equipment or facilities furnished by MCI or with equipment or facilities
furnished by any entity other than Provider outside the Demarcation Points.
Provider will indemnify, defend and hold MCI and its Customers harmless from and
against any claims made as a consequence of any such infringement or violation
of any copyright, patent, trade secret or any other intellectual property rights
or similar property rights. Moreover, should the equipment or facilities
furnished by Provider hereunder become, or in Provider's opinion is likely to
become, the subject of a claim of infringement, or should MCI's use of the
equipment and facilities be finally enjoined, Provider shall, at its expense:
A. Procure for MCI the right to continue using the equipment
or facilities; or
B. Replace or modify the equipment or facilities to make it
non-infringing.
XII. REQUIRED RIGHTS
12. Provider represents that it currently owns, has obtained
or will obtain all licenses, authorizations, franchises, rights of way and other
licenses or permits necessary for furnishing the Service to MCI (hereinafter
referred to as "Required Rights"). Provider shall utilize its best efforts to
cause such Required Rights to remain in effect throughout the term of this
Agreement. Notwithstanding the termination provisions of paragraph 2.3 herein,
if Provider does not obtain and maintain such Required Rights, MCI may terminate
this Agreement and/or any affected ASR or Service Agreement immediately upon
notice to Provider, without incurring any termination liability, and the
indemnification provisions of Article IX shall apply to any claims, demands,
suits or judgments for damages arising therefrom.
XIII. FORCE MAJEURE
13.1 In no event shall either party have any claim or right
against the other party for any failure of performance by such other party if
such failure of
14
performance is caused by or the result of causes beyond the reasonable control
of such other party, including, but not limited to, act of God, fire, flood or
other natural catastrophe; laws, orders, rules, regulations, directions or
actions of governmental authorities having jurisdiction over the subject matter
of this Agreement or any civil or military authority; national emergency,
insurrection, riot or war; or other similar occurrence. Notwithstanding the
termination provisions of paragraph 2.3 herein, if the excusable delay exceeds
sixty (60) days either party may terminate this Agreement and/or any affected
ASR or Service Agreement immediately upon written notice, without incurring any
termination liability.
XIV. TAXES
14.1 Any sums MCI is required to pay under this Agreement are
exclusive of any taxes which may be imposed with respect to this Agreement or
any of the services furnished or used hereunder including, but not limited to,
taxes imposed on this Agreement, the Service, maintenance and repair or
Provider's provision of or MCI's use thereof. MCI shall be responsible for any
such taxes with the exception of municipal franchise taxes which shall be
Provider's responsibility and obligation. MCI shall pay to or reimburse Provider
for any taxes Provider is required to pay on XXX's behalf upon presentation of
proof thereof.
XV. NOTICES
15.1 All notices and communications concerning this Agreement
shall be addressed to:
MCI (one copy to each) at:
1. Director
Alternative Access Development 9460/000
0000 Xxxxx Xxxxxxxxx
XxXxxx, Xxxxxxxx 00000
2. Assistant General Counsel-Real Estate
0000 Xxxxxxxxxx Xxxxxx, X.X.
Washington, D.C. 20036
Provider at:
1. FiveCom, Inc.
000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
15
2. Peabody Brown 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 Attn: Xxxxxxx X.
Xxxxxxx, P.C.
or at such other address as may be designated in writing to the other party.
15.2 Notices shall be sent by registered or certified U.S.
Mail, postage prepaid, or by commercial overnight delivery service, or by
facsimile, and shall be deemed delivered to addressee on the date of return
receipt acknowledgment, in the case of notices sent via U.S. Mail; or on the
next day after the date the notice was sent, in the case of notices sent by
either overnight delivery service or by facsimile; provided, however, that upon
receipt of a returned notice marked "unclaimed," the sending party shall make
reasonable effort to contact and notify the other party by telephone.
Notwithstanding the aforementioned, the original of the facsimile notice must be
sent by overnight delivery service in order for the delivery of facsimile notice
to be deemed effected.
XVI. CONFIDENTIALITY
16.1 All confidential and proprietary information disclosed by
either party hereto to the other in connection with this Agreement or any
Service Agreement and in accordance with the Confidentiality Agreement, attached
hereto as Exhibit I, which is hereby incorporated herein, shall not be disclosed
to third parties and each party shall protect any such information received from
the other with the same degree of care accorded its own proprietary and
confidential information and as required under the provisions of the
Confidentiality Agreement.
16.2 The provisions of this Article XVI shall survive
termination of this Agreement for a period of two (2) years.
XVII. WAIVER
17.1 Except as otherwise stated herein, no waiver of any
breach of this Agreement or of any of the terms hereof shall be effective unless
such waiver is in writing and signed by the party against whom such xxxxxx is
claimed. No waiver of any breach shall be deemed to be a waiver of any other or
subsequent breach.
XVIII. GOVERNING LAW
18.1 This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to its
principles of conflicts of laws.
16
XIX. Assignment
19.1 Any assignment or transfer of this Agreement by Provider
shall be subject to MCI's rights under this Agreement and any assignee or
transferee shall continue to perform Provider's obligations to MCI under the
terms and conditions of this Agreement and any Service Agreement.
Notwithstanding any assignment or transfer of this Agreement by Provider,
Provider shall nevertheless remain fully and primarily liable for all of
Provider's obligations under this Agreement and any Service Agreement.
19.2 This Agreement, and each of the parties' respective
rights and obligations hereunder, shall be binding on and inure to the benefit
of the parties and each of their respective successors and assigns.
XX. COMMON CARRIERS
20.1 Provider hereby acknowledges its obligations under
Section 705 of the Communications Act of 1934, as amended, and other applicable
federal or state laws not to divulge or publish (except as authorized by law)
the existence, contents, substance, purport, effort or meaning of any
communications which Provider transmits, receives or assists in transmitting or
receiving as part of this Agreement.
XXI. NON-EXCLUSIVE ARRANGEMENT
21.1 This Agreement between Provider and MCI is non-exclusive.
Nothing in this Agreement shall prevent Provider or MCI from entering into
similar arrangements with any other entities or otherwise furnishing Service to
any entity.
XXII. INSURANCE AND LIABILITY
22.1 Throughout the term of this Agreement, Provider and its
contractors and/or subcontractors, shall obtain and maintain the following
insurance coverage:
17
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
a. Comprehensive or commercial general liability
insurance naming Provider and its affiliates as
the named insureds. MCI shall be named as an
additional insured for purposes of this
Agreement. The comprehensive or commercial
general liability insurance policy shall cover
liability for injury to or death of persons or
damage to property including, but not limited
to, work associated with this Agreement,
including such liability as may arise from the
use of independent contractors, as well as any
contractual liability assumed under this
Agreement. The policy shall be in the amount of
[**] combined single limit per occurrence and
aggregate (where applicable) for bodily injury,
personal injury and property damage, and shall
cover (i) explosion liability and damages to
underground utilities and damage caused by
collapse if the appropriate exposure exists
(involving blasting, underpinning, and
structural alterations, etc.); (ii) broad form
property damage; and (iii) personal injury
liability.
b. Business automobile liability insurance
including coverage for owned, hired and
non-owned vehicles in the amount of [**]
combined single limit per occurrence/ accident
for bodily injury and property damage. MCI shall
be named as an additional insured for purposes
of this Agreement.
c. Worker's compensation in the statutory amount(s)
and with benefits required by the laws of the
state in which the work is performed and the
state(s) in which employees are hired, if the
state(s) are other than that in which the work
is performed. Provider shall also obtain and
maintain employers' liability insurance with a
minimum limit of liability of [**] for bodily
injury per accident.
22.2 Certificates evidencing such insurance coverage shall be
submitted to MCI prior to Provider beginning any work associated with this
Agreement. The Certificates shall certify that no material alteration,
modification or termination of such coverage shall be effective without at least
thirty (30) days' advance notice to MCI.
18
22.3 Provider shall require each contractor and/or
subcontractor to obtain and maintain at all times during the term of this
Agreement, insurance equivalent to that which is required of Provider.
Subcontractor's carriers shall waive all right of recovery against MCI for any
injuries to persons or damage to property in the execution of work performed
pursuant to this Agreement.
XXIII. AUTHORITY
23.1 Each party has full power and authority to enter into and
perform this Agreement, and the person signing this Agreement on behalf of each
party has been properly authorized and empowered to enter into this Agreement.
XXIV. GENERAL PROVISIONS
24.1 The relationship of the parties hereunder shall always
and only be that of independent contractors.
24.2 Whenever the singular is used herein, the same shall
include the plural where appropriate, and when the plural is used herein, the
same shall include the singular where appropriate.
24.3 In the event any of the provisions of this Agreement
shall be held to be invalid, illegal or unenforceable, the unaffected provisions
of this Agreement shall be unimpaired and remain in full force and effect. MCI
and Provider shall negotiate in good faith to substitute for such invalid,
illegal or unenforceable provisions a mutually acceptable provision consistent
with the original intention of the parties hereto.
24.4 The title page, captions or headings in this Agreement
are strictly for convenience and shall not be considered in interpreting it or
as amplifying or limiting any of its content.
24.5 This Agreement is the joint work product of both parties
hereto; accordingly, in the event of ambiguity no presumption shall be imposed
against any party by reason of document preparation.
XXV. ARBITRATION
25.1 Any dispute or disagreement arising between Provider and
MCI in connection with this Agreement, which is not settled to the mutual
satisfaction of Provider and MCI within thirty (30) days (or such longer period
as may be mutually agreed upon) from the date that either party informs the
other in writing that such dispute or disagreement exists, shall be settled by
arbitration conducted in Washington,
19
DC, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect on the date that such notice is given.
The decision of the arbitrator shall be final and binding upon the parties and
judgment may be obtained thereon by either party in a court of competent
jurisdiction. Each party shall bear the cost of preparing and presenting its
case. The cost of the arbitration, including the fees and expenses of the
arbitrator, will be shared equally by the parties unless the award otherwise
provides.
XXVI. ENTIRE AGREEMENT
26.1 This Agreement, including Exhibits A through I which are
attached hereto and hereby incorporated as an integral part of this Agreement,
constitutes the entire Agreement between the parties with respect to the subject
matter and geographic location(s) referred to and supersedes any and all prior
or contemporaneous agreements whether written or oral. This Agreement cannot be
modified except in writing signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
MCI TELECOMMUNICATION
FIVECOM, INC. CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------- ------------------------
Name: Xxxxxx Xxxxxxxxxx Name: Xxxxxx X. Xxxxx
--------------------- ------------------------
Title: President Title: Vice President
--------------------- ------------------------
ATTEST: ATTEST:
By: /s/ Xxxx X. XxXxxxx By: /s/ X. Xxxxxx-Xxxxx
--------------------- ------------------------
Name: Xxxx X. XxXxxxx Name: X. Xxxxxx-Xxxxx
--------------------- ------------------------
Title: Notary Title: Assistant Secretary
--------------------- ------------------------
(Corporate Seal) (Corporate Seal)
20
EXHIBIT A
Page 1 of Exhibit A is Missing
A-1
2. SWITCH SERVICES PARAMETERS
The following table provides the switched services parameters excluding billing,
CAMA, LAMA, and Calling Card services. Calling Card services require DAP access.
--------------------------------------------------------------------------------
BASIC CALL PROCESSING SWITCHING PARAMETERS
--------------------------------------------------------------------------------
PARAMETERS VALUES COMMENTS
--------------------------------------------------------------------------------
Inter Digit Timing 80 ms. Max.
--------------------------------------------------------------------------------
Short Time release after 2.08 sec.
called party has disconnected
--------------------------------------------------------------------------------
Duration of transmitted wink 190-320 ms. Min.-Max.
for DP/MF pulsing
--------------------------------------------------------------------------------
The duration of transmitted 190-320 ms. Min.-Max.
wink for DP & MF
--------------------------------------------------------------------------------
ABBREVIATED DIALING Yes
FOR Calling Card
--------------------------------------------------------------------------------
Capturing Call Detail Record Yes
for ISDN Primary Access
Rate
--------------------------------------------------------------------------------
Progressive Six party Yes
Conference calling feature
along with its associated
error tones
--------------------------------------------------------------------------------
Deactivation of Dialtone Yes
speed recording during
premium service durations
--------------------------------------------------------------------------------
Maximum number of nailed 300
up connections
--------------------------------------------------------------------------------
Maximum Number of 36000
simultaneous calls
--------------------------------------------------------------------------------
FG D Direct access Yes
--------------------------------------------------------------------------------
Delay threshold for incoming 3 sec.
Start to Xxxx Xxxxx
--------------------------------------------------------------------------------
A-2
--------------------------------------------------------------------------------
BASIC CALL PROCESSING SWITCHING PARAMETERS
--------------------------------------------------------------------------------
PARAMETERS VALUES COMMENTS
--------------------------------------------------------------------------------
CCS7 H0H1 Routset HEX 53 (HEX)
value
--------------------------------------------------------------------------------
Feature Group D Cut through NO (Blocked)
and transitional option
--------------------------------------------------------------------------------
1FXO GS loop closure time 20 xx.
xxxxx from receipt of Ring
Ground
--------------------------------------------------------------------------------
FXO Remote Busy A-Off b-Off HK Loop Open,
requirement Ring Ground
--------------------------------------------------------------------------------
GS FXO Seizure Failure 5.12 sec.
declare (time-out)
--------------------------------------------------------------------------------
Hi & Dry time-out 250 ms.
--------------------------------------------------------------------------------
MAX Num. of Rings 15
--------------------------------------------------------------------------------
Ack. Wink Delay 200 ms.
--------------------------------------------------------------------------------
XXX Xxxxx time after wink 200 ms.
Termination
--------------------------------------------------------------------------------
CDR for ISUP & IMT Yes
--------------------------------------------------------------------------------
Detecting dial Tone Time out 5.02 sec.
for ONAL
--------------------------------------------------------------------------------
DTMF & MF Receiver Queue 30 sec.
time out
--------------------------------------------------------------------------------
Switching Delay After Wink 1200 ms.
for connecting to
announcement
--------------------------------------------------------------------------------
International Equal Access 190-320 ms. Min.-Max.
Wink Duration
--------------------------------------------------------------------------------
Delay for sending 2nd wink 200 ms. Min.
after the 1st stage for
international circuit
--------------------------------------------------------------------------------
A-3
--------------------------------------------------------------------------------
BASIC CALL PROCESSING SWITCHING PARAMETERS
--------------------------------------------------------------------------------
PARAMETERS VALUES COMMENTS
--------------------------------------------------------------------------------
Answer Supervision back to No
originating switch upon
detection of HI & DRY,
Reorder and Ring no answer
in to an Audio Tone detector
--------------------------------------------------------------------------------
Reorigination Duration for # 60-1000 ms. Min.-Max.
sign
--------------------------------------------------------------------------------
Reorigination Receiver STR & DTMF
--------------------------------------------------------------------------------
ISDN Basic Access Rate 0 or none
--------------------------------------------------------------------------------
MAX CCS7 Links 255
--------------------------------------------------------------------------------
ISDN PRI 0
--------------------------------------------------------------------------------
TR-444 supported Yes
--------------------------------------------------------------------------------
Allow RINGING ON TIP No
--------------------------------------------------------------------------------
Trunk Conditioning Yes, 2.5 sec.
--------------------------------------------------------------------------------
reserved reserved reserved
--------------------------------------------------------------------------------
reserved reserved reserved
--------------------------------------------------------------------------------
3. INDUSTRY STANDARDS COMPLIANCE LIST:
Provider is to comply with the network standards contained in the following
documents:
Bellcore Technical Reference, TR-TSY-000499 (DS-0 performance specifications)
AT&T Technical Reference, TR 62415, June 1989 (Switched 56K specifications)
American National Standard T1.403 (T-1 interface specifications)
American National Standard T1.404 (T-3 interface specifications)
American National Standard T1.102 (DS-1 and DS-3 physical network
specifications)
Bellcore Technical Reference TR-NPL-000335 (Switched access technical
specifications)
A-4
EXHIBIT B
SERVICE AGREEMENT
THIS SERVICE AGREEMENT shall be subject to all terms and conditions of
the Services Agreement dated as of the ___________ day of _______________, 19__,
(the "Services Agreement"), between _____________________________ (hereinafter
referred to as "Provider"), and MCI Telecommunications Corporation (hereinafter
referred to as "MCI") which, by this reference, is incorporated herein.
1. SERVICE DESCRIPTION
_____ DS-1 (1.544 Mbps) digital channels; or
_____ DS-3 (45 Mbps) digital channel(s)
on the Provider's Network, between the following
Demarcation Points in __________, __________:
Demarcation Point #1:
-----------------------, -------------------------------------
(Building No.) (Building Name)
--------------------------------------------------------------
(Customer's Name)
-------------------------, ----------------, -----------------
(Street) (Floor or Level) (Room)
-----------------------, -------------------------------------
(City) (State)
Demarcation Point #2:
-----------------------, -------------------------------------
(Building No.) (Building Name)
--------------------------------------------------------------
(Customer's Name)
-------------------------, -------------------, --------------
(Street) (Floor or Level) (Room)
-----------------------, -------------------------------------
(City) (State)
B-1
The Demarcation Points will be the Provider-furnished DSX-1 (OR) DSX-3 cross
connect panel, whichever is applicable, located within the premises designated
room or other location described above as Demarcation Points 1 and 2.
2. Requested Availability Date: _________________.
3. Term Commencement Date: __________________.
(commencement date for service and billing)
This Service Agreement shall commence on the date (hereinafter referred to as
the "Commencement Date") upon which the following conditions have been
fulfilled: (i) the Services described in this Service Agreement are available
for use; (ii) Provider has completed all testing required by the Services
Agreement and Provider has obtained MCI's authorized signature on a completed
Service Acceptance Certificate; and (iii) the seventy-two (72) hour acceptance
period described in Exhibit A of the Services Agreement has expired without MCI
notifying Provider that any Circuit has failed to perform within the
Specifications.
4. Fees and Charges for Services
The Fees and Charges for the Services provided hereunder shall be:
4.1 $_____.00 Recurring Charge per month ($_____.00 Recurring Charge
per channel, per month for service provided herein).
4.2 $_____.00 Non-Recurring Fee (one time set-up
charge).
5. Term
Unless terminated as provided for elsewhere in this Service Agreement or in the
Services Agreement, this Agreement shall be for an initial term of
______________ (_____) year(s) (the "Initial Term") commencing on the
Commencement Date, and shall continue thereafter following the expiration of the
Initial Term, on a month-to-month basis at the rates stated herein until
terminated by MCI in accordance with the provisions of the Services Agreement.
6. Miscellaneous
All capitalized terms referred to in this Service Agreement shall have the
meanings defined herein or in the Services Agreement. This Service Agreement may
not be amended or otherwise altered except by written agreement between the
parties hereto.
B-2
This Service Agreement shall not be considered as an exhibit or amendment to the
Services Agreement. Any amendments made hereto shall only affect this Service
Agreement and the Services described herein.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement this ______ date of ________________, 19___.
______________________________ MCI TELECOMMUNICATIONS
CORPORATION
By: __________________________ By: ________________________________
Name: ________________________ Name: ______________________________
Title: _______________________ Title: _____________________________
B-3
EXHIBIT C
SERVICE AVAILABILITY
TBD
C-1
EXHIBIT D
REQUIREMENTS FOR AUTOMATED INTERFACE WITH MCI
Required Codes:
[bullet] Provider is required to obtain the four (4) digit Vendor code that
uniquely identifies local exchange providers by state. Codes are
assigned by National Exchange Carrier Association (NECA).
[bullet] Provider is required to obtain a valid ICSC code(s) assigned by
Bellcore.
[bullet] Provider must obtain registered CLLI codes assigned by Bellcore for
identifying connection points between MCI POPs and CAP interconnect
facilities.
Provisioning Requirements:
[bullet] Automated ASR, FOC and DLR processing as specified in the following
Bellcore documents:
- "Access Service Ordering Guidelines"
- "ASR Mechanized Interface Specifications"
- "DLR - Mechanized Interface Specifications"
- "DLR - Industry Support Interface"
[bullet] Automated ASR, FOC and DLR transmission per MCI standard transmission
method of Network Data Mover (NDM).
[bullet] Automated delivery of building list with all fields as specified in
MCI's Automated Interface Requirements document dated March 4, 1993, as
may be amended.
[bullet] Automated delivery of terminal list with all fields as specified in
MCI's Automated Interface Requirements document dated March 4, 1993, as
may be amended.
[bullet] Automated delivery of rate file with all fields as specified in MCI's
Automated Interface Requirements document dated March 4, 1993, as may
be amended.
[bullet] Automated processing of error files as specified in MCI's Automated
Interface Requirements document dated March 4, 1993, as may be amended.
D-1
Billing Requirements:
[bullet] Automated delivery of invoicing as specified in Bellcore document
"Small Exchange Carrier Access Billing Guidelines."
D-2
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT E
PRICING
FIVECOM - HARTFORD
Effective 7/2/93
Assumption:
MCI LEC RATE
1. [**] (23 DS1s per DS3, 538 DS0s per DS3) fill factor in all LEC
territories
2. DS3 Entrance Facility - 1 Pk/5 year, DS1 and DS0 - month-month
FiveCom mileage calculated on LEC DS1 channel; not LEC DS3 or DS0 facilities
SPECIAL ACCESS DSO RATES
RECURRING
Base Rate
2 wire $ [**]
4 wire $ [**]
2.4/4.8/9.6KB $ [**]
56KB $ [**]
Fixed Mileage
2/4 wire
0-4 miles $ [**]
4-8 miles $ [**]
8-25 miles $ [**]
25-50 miles $ [**]
50+ miles $ [**]
2.4/4.8KB $ [**]
9.6KB $ [**]
56.0KB $ [**]
Variable Mileage
2/4 wire
0-4 miles $ [**]
4-8 miles $ [**]
8-25 miles $ [**]
25-50 miles $ [**]
50+ miles $ [**]
2.4/4.8/9.6/56.0KB $ [**]
E-1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
NON-RECURRING
2 wire $ [**]
4 wire $ [**]
2.4/4.8/9.6/KB $ [**]
56.0KB $ [**]
SPECIAL ACCESS DS1 RATES
RECURRING
Base Rate $ [**]
Fixed Mileage $ [**]
Variable Mileage $ [**]
NON-RECURRING $ [**]
SPECIAL ACCESS DS3 RATES
RECURRING
Base Rate $ [**]
Fixed Mileage $ [**]
Variable Mileage $ [**]
NON-RECURRING $ [**]
E-2
EXHIBIT F
DESCRIPTION OF SWITCHED SERVICES
A. At the point(s) of interface, each party will receive the
switched access traffic from the other at the DS1 or DS3
level. The point of demarcation shall be the main distribution
frame at MCI's switch. Provider shall utilize an interface for
the origination and termination of calls to the Customer
premises that is compatible to MCI's network. The interface
between the MCI and Provider switch shall be two-way feature
Group D equivalent.
B. At the termination of each DS1 or DS3 facility in a party's
location; that party shall furnish, install and maintain an
extended superframe (ESF) interface unit or remote test line
capability (or equivalent).
C. Each party shall provide the other with network control and
interface capability, including but not limited to those
contained in the Industry Standards Compliance documents
referenced in Exhibit A.
D. SS7 connectivity is required between Provider and MCI and
Provider and the BOC to avoid increases in call set up time.
E. Provider's SS7 links must meet MCI standards for diversity as
diagrammed below.
DIAGRAM
In this scenario, any path or STP can go down and 2 way
diversity still exists.
F. Provider entrance facility augments may be required. Depending
on the amount of traffic in the LATA, MCI may require entrance
diversity.
G. Trunk parameters, e.g. glare must follow Bellcore standards
(Document TRNPL000335).
H. Provider shall provide the MCI Regional Access Management
groups with a monthly report (disk or paper) which details
common transport blocking at the trunk group level.
F-1
I. Provider must have capability to transport calling party ANI
for 700/800/900/Vision/VNET products.
X. XXX will coordinate billing certification with Provider to
insure signals are properly passed for access and egress.
K. Provider shall be responsible for notifying MCI on ANI changes
for updates in the MCI switch database.
L. Trunk groups shall be configured to prevent blockage on direct
trunk groups.
F-2
EXHIBIT G
PERFORMANCE AND MAINTENANCE
1.0 PERFORMANCE MONITORING AND REPORTING
1.1 Provider shall be responsible for performing surveillance on
the Network. However, XXX may also perform surveillance on
Provider's Network.
1.2 MCI, at its expense, may provide surveillance equipment to the
terminating equipment Network side of the DSX-1 cross connect
frame connected to Provider's transmission equipment situated
in MCI's locations, which will provide the MCI's Surveillance
System Operations group with the ability to perform
surveillance of the Services to MCI's Customer locations.
1.3 Alarms related to the Services will be reported immediately to
Provider by the MCI Surveillance System Operations group.
2.0 MAINTENANCE
2.1 Provider shall be responsible for maintaining, repairing and
testing the Circuits, the Services and the Network, including
Provider-owned equipment in Customer and MCI locations. MCI
shall permit Provider to access its equipment in MCI locations
for the purpose of testing the Circuits and the Services in
accordance with procedures which MCI, in its sole discretion,
deems appropriate, including, but not limited to, the
provisions of paragraph 2.9 of this Exhibit G.
2.2 Provider shall perform all maintenance functions, except as
provided for in paragraph 2.9 of this Exhibit G and in
paragraph 7.1 of this Agreement, on the Circuits, Services
and/or Network between the Demarcation Point(s) twenty-four
(24) hours per day, seven (7) days per week. Provider
scheduled maintenance will be performed between 12:00 A.M. and
6:00 A.M. unless otherwise agreed between Provider and MCI,
with the exception of scheduled maintenance on DDN services,
which are to performed between 12:00 A.M. and 6:00 A.M. on the
second or third Sunday of a month, unless otherwise approved
by MCI.
2.3 Specifications. Maintenance of the Circuits, Services and/or
Network shall be performed to meet the manufacturer's
specifications and those provided
G-1
for in this Agreement. MCI shall have the right to review
Provider's maintenance procedures and maintenance records.
2.4 Coordination. Any maintenance and/or service function
performed by Provider on the Network which will or could
affect the Circuits and/or Services provided to MCI shall be
coordinated and scheduled through MCI's Surveillance System
Operations group pursuant to Article VI and this Exhibit G.
2.5 Response and Repair Times. In the event of a Services failure,
Provider shall begin restoring service to the affected
Services within the following time frames:
(i) Electronic Restoration. In the event of an
electronics failure, Provider shall restore Services
to the affected electronics within two (2) hours of
notification by MCI's Surveillance System operations
group.
(ii) Cable Restoration. In the event of a cable failure,
Provider shall begin cable restoration within two (2)
hours after the faulty cable is identified. Provider
shall reroute all affected MCI Circuits to an
alternate route within one (1) hour after location of
such failure has been determined. The cable shall be
restored no later than eight (8) hours after failure.
(iii) Emergency Reconfiguration. If the affected Network
has the capability to provide route reconfiguration
to maintain Services between the Demarcation Points,
Provider shall provide reconfiguration if other means
of restoration will not restore the Services within
the time frames provided in subparagraphs (i) and
(ii) above. Reconfiguration will begin within one (1)
hour after the need to re-configure has been
determined.
2.6 Trouble reporting. Provider shall maintain a twenty-four (24)
hour a day, seven (7) day a week point-of-contact for MCI to
report Services troubles. Provider shall furnish MCI with
periodically updated lists for Network management.
2.6.1 Each party shall furnish the other with a list of its
personnel authorized to issue trouble reports under
this Agreement. Each party shall accept trouble
reports without delay from these personnel whenever,
after the performance of appropriate tests, trouble
is located in the facilities provided by such party
under this Agreement and shall cause further testing
and sectionalization to be done to determine whether
the trouble is located in the provider's
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facilities, switching vehicle, equipment or another
source. If such testing is ineffective, each party
will work with the other to assist with the
localization of the trouble. Such cooperative testing
will normally be limited to continuity testing under
a party's existing practices. If the trouble is
sectionalized to a party's facilities, switching
vehicle or equipment, such party shall take all
necessary steps to clear the trouble and restore the
Services.
2.6.2 If a party becomes aware of any condition,
circumstance or failure that could adversely affect
the Services, such party shall immediately notify the
other. A party may, upon obtaining consent from the
other party, temporarily interrupt the Services to
perform needed testing.
2.6.3 When troubles are reported by either party, specific
trouble tracking information will be exchanged with
the other party. To facilitate the exchange of
information, each party will maintain a trouble log
of all trouble reports. The trouble log shall include
the following information:
1. serialization of each trouble report;
2. the nature of the reported trouble;
3. date and time of the trouble report;
4. name and telephone number of the person
reporting trouble;
5. name and telephone number of the person
receiving the trouble report;
6. diagnosis of trouble;
7. date and time of trouble clearance;
8. name and telephone number of the person
reporting trouble clearance; and
9. name and telephone number of the person
receiving trouble clearance.
2.6.4 Each party shall furnish to the other status reports
of each trouble report with thirty (30) minutes of
the initial report and periodically thereafter.
2.6.5 Whenever a party designates a recurring trouble to be
chronic in nature, each party shall immediately
perform an investigation of the recent trouble
history and report the findings to the other.
2.7 Equipment spares. Provider will supply all maintenance spares
plus repair and return service of defective parts. Provider
will be responsible for furnishing storage space for
maintenance spares.
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2.8 Scheduled Maintenance.
2.8.1 Maintenance which may place the Services in jeopardy
or require Services down time will normally be
performed during the "Maintenance Window" of 12:00
midnight and 6:00 A.M., and shall be mutually agreed
to by MCI and Provider. Provider shall request
permission from the MCI Surveillance System
Operations group at least seventy two (72) hours
prior to commencing any such scheduled maintenance
work.
2.8.2 Provider maintenance personnel shall notify MCI prior
to beginning scheduled maintenance work and must
receive authorization to proceed. Provider personnel
shall notify MCI upon completion of scheduled
maintenance work and must receive verification from
MCI that the Services is fully operational.
2.9 Access to Equipment and Facilities
2.9.1 Each party shall comply with rules, regulations and
restrictions which apply to the premises or
facilities of the other party in which such party has
installed its equipment. Such rules, regulations and
restrictions may include, without limitation, the
following:
- Visitors may be denied admission unless they
present satisfactory identification or are
identified on an authorized personnel list, or
both.
- Visitors may be required to be accompanied by
authorized personnel or be subject to other
access restrictions.
2.9.2 MCI shall have the right to be present during any
equipment testing, and during any scheduled and
non-scheduled maintenance activity. Provider shall
notify MCI in advance of any such activity.
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EXHIBIT H
PROVIDER RESPONSIBILITIES AND SYSTEM CRITERIA
1.0 PROVIDER RESPONSIBILITIES
Unless otherwise provided in the applicable Service Agreement, Provider
shall furnish the following:
(i) full-duplex, full time DS-0 and/or DS-1 and/or DS-3
Circuits between Provider-furnished cross-connect
panels at designated Demarcation Points, provided by
a fiber-optic transmission Network. MCI will provide
the connections from the designated Demarcation
Points to MCI's equipment. Provider will supply the
connections from the designated Demarcation Point(s)
to Customer's equipment, upon request from MCI.
(ii) at the Demarcation Points, digital signals which meet
the Specifications.
Provider shall not use any equipment to furnish the Services that will
in any way harm or restrict test access by MCI, including, but not limited to,
the in-band looping codes utilized to test Channel Service Units (CSUs).
2.0 SERVICES INTERRUPTION
An interruption begins when MCI reports a trouble on any one or more
Circuits to Provider in accordance with Exhibit G. Provider will provide
diagnostics and perform corrective action as necessary to timely restore the
affected Circuit(s) in accordance with the Specifications. Upon correction of
the trouble, Provider will contact XXX and advise of the action taken to correct
the problem. MCI will consult with XXX's Customer regarding acceptability of the
Circuits and upon Xxxxxxxx's confirmation that the Circuits are acceptable,
Provider will be so notified and the trouble will be considered as having been
cleared at the time that Provider last reported clearance of same, immediately
prior to Customer's confirmation.
If, during the testing of the affected Circuit(s), it is determined
that the Circuit(s) is operating normally and within the parameters of the
Specifications and the same is confirmed by Customer through MCI then such
interruption shall not be considered a Services Interruption for credit
purposes.
H-1
3.0 SYSTEM ACCEPTANCE CRITERIA
The following acceptance tests will be conducted:
DS-0, DS-1 and/or DS-3: A test for a period of seventy-two
(72) hours where Bit Error Ratio ("BER"), Error Free Seconds ("EFS") and Burst
Error Seconds ("BES") shall meet the parameters of the Specifications.
Protection Switch Operation: The protection switch shall
operate within all manufacturer's specific operating parameters.
Equipment Alarm and Status Indication Functionality: All
equipment alarm functions and status indicators provided by the equipment vendor
will function properly under all simulated (non-destructive) alarm conditions.
4.0 INTERCONNECTION
4.1 Interconnection of Provider's, XXX's or MCI's Customer's
telecommunications equipment to the Demarcation Point will be performed by MCI,
Provider or Customer, at MCI's sole discretion.
4.2 Provider shall supply and connect any special interface equipment
or facilities necessary to achieve compatibility between Provider, MCI and/or
MCI's Customer at the Demarcation Points. If such special interface equipment or
facilities are required because MCI's equipment or MCI's Customer's equipment
deviates from industry standards, then such entity shall be responsible for
supplying and connecting any special interface equipment or facilities necessary
to achieve compatibility.
H-2
EXHIBIT J
NONDISCLOSURE AGREEMENT
(Standard Two-Way)
Agreement between MCI TELECOMMUNICATIONS CORPORATION, a
Delaware corporation having offices at 000 Xxxxxxxxxxxxx Xxxx, Xxxxxxxxxx, XX
("MCI"), and FiveCom, Inc., a _____________ corporation having offices at 000
Xxxxxx Xxxx Xxxx, Xxxxxxx, XX (the "Company").
WHEREAS, for the purpose of furthering a potential business
relationship between them, MCI and the Company (collectively referred to as the
"Parties," and individually referred to as a "Party") have determined to
establish terms governing the use and protection of certain information one
Party ("Owner") may disclose to the other Party ("Recipient"), which
information, in the case of MCI, relates generally to leased fiber capacity, and
in the case of the Company, relates generally to leased fiber capacity.
NOW, THEREFORE, the Parties agree as follows:
1. "Confidential Information" means information of an Owner which
relates, respectively, to the above-identified subject matter, including
business and technical information and data, or which, although not related to
such subject matter, is nevertheless disclosed as a result of the Parties'
discussions in that regard, and which, in any case, is disclosed by Owner or its
Affiliate(s) to Recipient or its Affiliate(s) in document or other tangible form
bearing an appropriate legend indicating its confidential or proprietary nature,
or which, if initially disclosed orally or visually is identified as
confidential at the time of disclosure and a written summary thereof, also
marked with such a legend, is provided to Recipient within fourteen (14) days of
the initial disclosure. The term "Affiliate" means any person or entity
controlling, controlled by, or under common control with a Party.
2. [For a period of five (5) years from the date of this Agreement]
Recipient may use Confidential Information of Owner only for the purpose of this
Agreement and shall protect such Confidential Information from disclosure to
others, using the same degree of care used to protect its own confidential or
proprietary information of like importance, but in any case using no less than a
reasonable degree of care. Recipient may disclose Confidential Information
received hereunder to (i) its Affiliates who agree, in advance, in writing, to
be bound by this Agreement, and (ii) to its employees, and its Affiliates'
employees, who have a need to know, for the purpose of this Agreement, and who
are bound to protect the received Confidential Information from unauthorized use
and disclosure. Confidential Information shall not otherwise be disclosed to any
third party without the prior written consent of the Owner.
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3. The restrictions of this Agreement on use and disclosure of
Confidential Information shall not apply to information that:
(a) Was publicly known at the time of Owner's communication
thereof to Recipient;
(b) Becomes publicly known through no fault of Recipient
subsequent to the time of Owner's communication thereof
to Recipient;
(c) Was in Recipient's possession free of any obligation of
confidence at the time of Owner's communication thereof
to Recipient;
(d) Is developed by Recipient independently of and without
reference to any of Owner's Confidential Information or
other information that Owner disclosed in confidence to
any third party;
(e) Is rightfully obtained by Recipient from third parties
authorized to make such disclosure without restriction;
or
(f) Is identified by Owner as no longer proprietary or
confidential.
4. In the event Recipient is required by law, regulation or court order
to disclose any of Owner's Confidential Information, Recipient will promptly
notify Owner in writing prior to making any such disclosure in order to
facilitate Owner seeking a protective order or other appropriate remedy from the
proper authority. Recipient agrees to cooperate with Owner in seeking such order
or other remedy. Recipient further agrees that if Owner is not successful in
precluding the requesting legal body from requiring the disclosure of the
Confidential Information, it will furnish only that portion of the Confidential
Information which is legally required and will exercise all reasonable efforts
to obtain reliable assurances that confidential treatment will be accorded the
Confidential Information.
5. All Confidential Information disclosed under this Agreement
(including information in computer software or held in electronic storage media)
shall be and remain the property of Owner. All such information in tangible form
shall be returned to Owner promptly upon written request and shall not
thereafter be retained in any form by Recipient.
6. No licenses or rights under any patent, copyright, trademark, or
trade secret are granted or are to be implied by this Agreement. Neither Party
is obligated under this Agreement to purchase from or provide to the other Party
any service or product.
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7. Owner shall not have any liability or responsibility for errors or
omissions in, or any decisions made by Recipient in reliance on, any
Confidential Information disclosed under this Agreement.
8. This Agreement shall become effective as of the date it is signed by
both Parties and shall automatically expire one (1) year thereafter, provided,
however, that prior to such expiration, either Party may terminate this
Agreement at any time by written notice to the other. Notwithstanding such
expiration or termination, all obligations hereunder shall survive with respect
to the disclosed Confidential Information.
9. Except upon mutual written agreement, or as may be required by law,
neither Party shall in any way or in any form disclose the discussions that gave
rise to this Agreement or the fact that there have been, or will be, discussions
or negotiations covered by this Agreement.
10. The Parties acknowledge that Confidential Information is unique and
valuable, and that disclosure in breach of this Agreement will result in
irreparable injury to Owner for which monetary damages alone would not be an
adequate remedy. Therefore, the Parties agree that in the event of a breach or
threatened breach of confidentiality, the Owner shall be entitled to specific
performance and injunctive or other equitable relief as a remedy for any such
breach or anticipated breach without the necessity of posting a bond. Any such
relief shall be in addition to and not in lieu of any appropriate relief in the
way of monetary damages.
11. Neither Party shall assign any of its rights or obligations
hereunder, except to an Affiliate or successor in interest, without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld.
12. No failure or delay in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power or privilege hereunder.
13. This Agreement (a) is the complete agreement of the Parties
concerning the subject matter hereof and supersedes any prior such agreements
with respect to further disclosures concerning such subject matter; (b) may not
be amended or in any manner modified except by a written instrument signed by
both Parties; and (c) shall be governed and construed in accordance with the
laws of New York without regard to its choice of law provisions.
14. If any provision of this Agreement is found to be unenforceable,
the remainder shall be enforced as fully as possible and the unenforceable
provision shall
J-3
be deemed modified to the limited extent required to permit its enforcement in a
manner most closely representing the intention of the Parties as expressed
herein.
IN WITNESS WHEREOF, each of the Parties hereto has caused this
Agreement to be executed by its duly authorized representative.
MCI TELECOMMUNICATIONS
CORPORATION
/s/ Xxxxx Xxxxxxx
-------------------------------------------
Signature
Xxxxx Xxxxxxx
Vice President, Network Engineering
February 13, 1997
FIVECOM
/s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Signature
Xxxxxxx X. Xxxxx
Vice President
August 8, 1996
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