EXHIBIT 10.22
AGREEMENT FOR TELECOMMUNICATIONS SERVICES AND OTHER AGREEMENTS
This Agreement for Telecommunication Services (the "AGREEMENT") is entered by
and between AOL Brasil Ltda., a corporation with offices at Xx. Xxxxxxxxxx, 000
- 0xx xxxxx - Xxxxx Xxxxx - SP, registered at the "CNPJ/MF" (National File of
Legal Entities) under Nr. 03.032.579/0001-62 ("AOL") and Telefonica Empresas
S.A., a company with its head offices located at Xxxxxxx Xxxxxxx, 000/000, in
the city of Barueri/SP, registered at the "CNPJ/MF" (National File of Legal
Entities) under Nr. 04.027.547/0001-62 ("VENDOR").
As used in the Agreement and its Exhibits": "PARTY" means either AOL or Vendor,
as appropriate, and "PARTIES" means AOL and Vendor collectively. Capitalized
terms used but not defined herein shall have the respective meanings given to
them in Exhibit A attached hereto.
The Parties agree that the following terms and conditions shall apply to the
Services to be provided by Vendor under the Agreement in consideration of
certain payments to be made by XXX.
0 XXXX
1.1 This Agreement shall become effective on the date of its
execution, and shall govern the rendering of services by the
Vendor to AOL since its first date, namely, [**] ("Effective
Date").
1.2 This Agreement shall remain in force for [**] [**] months from
the Effective Date, unless terminated earlier or extended in
accordance with this Article 1 (the "Term"). AOL may elect to
renew the Agreement for up to [**] [**] additional [**] [**]
year periods by giving Vendor thirty (30) days' notice prior
to the expiration of the then-current term.
2 PROVISION OF SERVICES
2.1 Commencing on the Effective Date, Vendor shall perform the
Services in accordance with the terms of this Agreement.
Notwithstanding anything to the contrary in this Agreement,
until such time that the number of Finally Accepted
Simultaneous Accesses exceeds [**] [**], Vendor shall make
available each calendar month for AOL's sole and exclusive use
the number of Additional Simultaneous Accesses designated by
AOL prior to such calendar month (for any calendar month, the
"Designated Additional Simultaneous Accesses Amount");
provided that (a) the Additional Simultaneous Accesses to be
made available to AOL under this Article 2 shall be in
addition to (and not including) Finally Accepted Simultaneous
Accesses, and (b) the Designated Additional Port Amount shall
at no time exceed [**] [**] minus the number of Finally
Accepted Simultaneous Accesses. Additional Simultaneous
Accesses to be made available for AOL's use under this Article
2 shall fully conform with the terms of this Agreement.
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3 CHARGES AND PAYMENT TERMS
3.1. GENERAL. All charges relating to the Services in the Initial
Service Area are set forth in Exhibit F. Vendor shall not
charge AOL for any Port or related Services which have been
ordered by AOL in accordance with Section 0 of Exhibit E prior
to Final Acceptance of the same by AOL. Vendor shall not
charge AOL for any Additional Simultaneous Accesses except to
the extent set forth in Section 0 of Exhibit F. AOL shall not
be required to pay Vendor any amounts for the Services in the
Initial Service Area in addition to those payable to Vendor
under Exhibit F. Pricing for Additional Service Areas will be
agreed by the Parties following AOL's request to Vendor to
provide Services in such areas, provided that Vendor offers or
provides, or is able to offer or provide Services in such
Additional Service Area.
3.2. PAYMENT TERMS. All charges due under this Agreement shall be
invoiced in Reais (R$) through a Sale Xxxx for
Telecommunication Services (NFFST). Vendor shall deliver,
substantially in the form attached hereto as Exhibit G, the
invoices relative to the rendered services to:
Xxxx Xxxxxx
Brazil Operations Director
AOL Brazil
Xx. Xxxxxxxxxx, 000 - 0x. floor
Xxxxx Xxxxx - SP
CEP 09080-500
Copy to:
Xxxxx XxxXxxxxx
Senior Vice President, Global Access Network
America Online, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
All undisputed charges shall be payable within thirty (30) days of
receipt of the corresponding invoice. AOL may withhold payment of
particular charges that AOL disputes in good faith. In the event that
AOL withholds payment pursuant to this Section, AOL shall provide
Vendor with written notice of the dispute within the thirty-day period
described in this Section and shall engage in good faith discussions
with Vendor to resolve such disputed charges during such thirty-day
period.
3.2.1 In case the parties do not reach an agreement within such
thirty-day period, there will be a meeting, within [**] days
from the invoice due date, between Operations areas
representatives from both parties in order to solve the
dispute.
3.2.1.1 In case the above mentioned meeting is not enough to
solve the dispute, then, the parties will take the
dispute to a third party independent consulting firm,
chosen by common agreement, to solve the pending
issue. The process of choosing and presenting a
definitive report shall not be longer than [**] days.
All expenses related to such consulting shall be
shared by the parties in the proportion of [**]% to
each one, no matter what the final result is.
3.2.2 The lack of payment of the NFFST, without dispute,
corresponding to the rendered service, on the date of the
respective due date, will subject AOL, independently of any
notice or information, to the payment of a [**] ([**] per
cent) fine on the value of the debt, plus [**]% ([**] per
cent) interests per month, after the day following the
maturity until the effective date of the payment, with said
values being included in the NFFST, when issued, for the
subsequent period of time.
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3.2.3 When the delay is longer than [**] [**] months,
besides the charges of fine and interest, the
monetary revaluation shall be added to the due
values, based upon the variation of the Price General
Index, Internal Availability - IGP - DI
"pro-rata-die", until the date when the debit is
paid.
3.2.4 If AOL does not provide payment after [**] [**]
days of a non-disputed NFFST issued based upon this
agreement, the Vendor may suspend the rendering of
the corresponding services, with the resumption being
conditioned to the payment of the overdue NFFST's
values, plus the respective fines and interests.
3.2.5 If AOL does not provide payment after [**] [**] after
maturity and non payment of any non-disputed NFFST
issued based upon this agreement, the Vendor may
terminate the rendering of the corresponding services
and take off its equipment, independently of any
previous notice.
3.3 All taxes, contributions and other related charges, specific
to the telecommunication or not, in force at the time of
execution of this Agreement and that are directly or
indirectly related to the rendering of services herein
described shall be included in the Price.
3.3.2 AOL will have the right to retain any taxes relative
to which, due to the applicable legislation, AOL be
the paying agent, and that fall exclusively on the
services rendered under the terms of this Agreement.
3.3.3 Any changes in taxes that fall directly on the
offered services shall be reflected in their prices,
as specified in the respective exhibits.
3.3.4 The Parties agree to [**] with each other to enable
each to more accurately determine its [**] [**]
liability. Neither Party shall act [**] in assisting
the other Party in [**] such other Party's tax
liability to the extent legally permissible. Each
Party shall provide and make available to the other
any [**] [**], information regarding [**] or [**]
[**] or [**], [**], and other [**] or information
reasonably requested by either Party.
3.4 BILLING. AOL shall be responsible for the billing and
collection of all amounts due from AOL end-users for access
and use of an AOL Information Service made possible through
Vendor's provision of the Services, and Vendor agrees that it
shall not xxxx or collect any amounts for such activities from
AOL end-users. AOL shall be solely responsible to Vendor for
payment for the Services.
4 SERVICE LEVELS
4.3 The Services shall meet or exceed the performance standards
identified in Exhibit E, an integral part of this Agreement
(such performance standards collectively the "SERVICE
LEVELS"). If Vendor fails to meet any Service Level, then in
addition to any other rights AOL may have, Vendor shall, at no
additional charge to AOL, (i) investigate and report on the
causes of the problem; (ii) advise AOL, as and to the extent
reasonably requested by AOL, of the status of remedial efforts
being undertaken with respect to such problems; (iii) correct
the problem and begin meeting the Service Levels as soon as
practicable; and (iv) take appropriate preventive measures to
avoid recurrence of the problem.
5 PROJECT MANAGEMENT
5.3 Vendor shall appoint an AOL support team dedicated to AOL,
which team shall be responsible for overseeing the provision
of Services and the relationship between the Parties. Such AOL
support team shall be staffed with a Vendor Account Manager
and a project manager (each of whom are subject to AOL's
reasonable approval),
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who shall (i) be responsible for building, maintaining and
operating the network infrastructure, (ii) have day-to-day
authority for undertaking to ensure AOL's satisfaction with the
Services, and (iii) be responsible for ensuring Vendor's
performance of its obligations hereunder. The persons forming this
support team shall be AOL's primary point of contact.
6 TERMINATION
6.1 TERMINATION FOR CAUSE. Either Party shall have the right to
terminate this Agreement, without liability to such Party (the
"TERMINATING PARTY") and upon written notice to the other
Party (the "BREACHING PARTY"), in the event of (a) a breach by
the Breaching Party, if such breach is not cured within [**]
[**] calendar days after written notice by the Terminating
Party to the Breaching Party of such breach, or (b) repeated
breaches of this Agreement of a similar nature by the
Breaching Party (even if cured).
6.2 In the event of (i) a change in Control of Telefonica, TData
or a TData-Controlled Affiliate where such Control is
acquired, directly or indirectly, in a single transaction or
series of related transactions by a CiC Entity, (ii) all or
substantially all of the assets of Telefonica, TData or a
TData-Controlled Affiliate are acquired by or transferred to
any CiC Entity, (iii) Telefonica, TData or a TData-Controlled
Affiliate is merged with or into a CiC Entity (including a
merger to form a new entity), then at any time after any such
event, AOL may, at its option, terminate this Agreement upon
notice to Vendor and neither party shall have liability to the
other party as a result of such termination (except as
expressly set forth below in this Section 6.2). If AOL
terminates this Agreement under this Section 6.2, then within
[**] [**] days of the effective date of such termination
(the "TERMINATION DATE"), AOL shall pay Vendor an amount equal
to [**] percent ([**]%) of the amount equal to the difference
between the Purchase Commitment (determined as of the
Termination Date) and the aggregate amount charged to AOL for
Incremental Services rendered through the Termination. The
payment amount set forth in the preceding sentence shall be
Vendor's sole and exclusive remedy for AOL's election to
terminate this Agreement under this Section 6.2 and shall be
deemed to fully compensate Vendor for any development,
planning, infrastructure and any other costs and expenses
incurred by Vendor or its Affiliates in anticipation of AOL's
fulfillment of the Purchase Commitment.
6.3 The termination may occur, also, by any of the parties,
through a written notice, if the other party applies for
bankruptcy or composition with creditors, or if it has the
bankruptcy or composition sentenced, or if it enters into
judicial or extra judicial liquidation.
6.4 The termination of this agreement, by any reason whatsoever,
shall not impair the requirement of eventual non paid values
derived from its execution, nor the return of the equipment
owned by the Vendor.
6.5 TRANSITION ASSISTANCE. Upon expiration or any termination of
this Agreement but not the one caused by lack of compliance of
the Agreement by AOL, then AOL may cancel all Services and
Vendor shall (i) provide AOL, or at AOL's request AOL's
designees, reasonable assistance and consultation to ensure a
smooth and timely transition of AOL's purchase of Services
then expiring or being terminated to another vendor or vendors
or to AOL, and (ii) continue to provide the Services then
expiring or being terminated to AOL (at prices then in effect
as of the date of such expiration, termination or
cancellation) and otherwise perform all of its obligations
under this Agreement (such Vendor obligations described in
this Section 6.4 collectively "Transition Assistance") for the
Transition Period. "Transition Period" shall mean a time
period commencing upon the effective date of expiration or
termination, and ending after a period of time to be
determined by AOL in its reasonable discretion, not to exceed
[**] [**] months in duration.
7 CONFIDENTIALITY
7.1 Each Party acknowledges that Confidential Information may be
disclosed to the other Party during the course of this
Agreement. Each Party agrees that it shall take reasonable
steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the Term,
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and for a period of [**] years thereafter, to prevent the
duplication or disclosure of Confidential Information of the
other Party, other than by or to (a) its employees or agents
who must have access to such Confidential Information to
perform such Party's obligations hereunder, who shall each
agree to comply with this section, and (b) independent
third-party auditors that agree in writing to comply with
confidentiality requirements substantially reasonably
comparable to those set forth in this section. Notwithstanding
the foregoing, either Party may issue a disclosure containing
Confidential Information without the consent of the other
Party, to the extent such disclosure is required by law, rule,
regulation or government or court order. In such event, the
disclosing Party shall provide at least [**] [**] business
days prior written notice of such proposed disclosure to the
other Party. Further, in the event such disclosure is required
of either Party under the laws, rules or regulations of any
applicable governing body, such Party shall (i) redact
mutually agreed-upon portions of this Agreement to the fullest
extent permitted under applicable laws, rules and regulations
and (ii) submit a request to such governing body that such
portions and other provisions of this Agreement receive
confidential treatment or otherwise be held in the strictest
confidence to the fullest extent permitted under the laws,
rules or regulations of the applicable governing body.
8 REPRESENTATIONS AND WARRANTIES
8.1 COMPLIANCE WITH SPECIFICATIONS AND APPLICABLE LAWS. Vendor
represents that the Services offered to AOL are, and warrants
that after the Effective Date Services purchased by AOL shall
be, in full conformance with (a) the specifications set forth
in Exhibit C applicable to such Services, and (b) applicable
federal, state and local laws and regulations.
8.2 WORK STANDARDS. Vendor covenants that it shall deliver the
Services with promptness and diligence. Vendor warrants that
it shall use adequate numbers of qualified individuals with
suitable training, education, experience, and skill to provide
the Services.
8.3 NON-INFRINGEMENT. Parties warrants that the Services shall not
infringe, and that the other party shall perform its
responsibilities under this Agreement in a manner that does
not infringe, or constitute an infringement or
misappropriation of, any patent, copyright, trademark, trade
secret or other proprietary rights of any third party.
8.4 FULL POWER. Each Party represents and warrants that (i) It has
the requisite power and authority to enter into the Agreement
and to carry out the obligations and transactions contemplated
by the Agreement; and (ii) The execution, delivery and
performance of the Agreement and the consummation of the
transactions contemplated by the Agreement have been duly
authorized by the requisite action on the part of such Party.
9 INDEMNITIES
9.1 The Parties agree to indemnify and hold the other Party
harmless for all eventual claims (a) arising from the
indemnifying Party's breach of any obligation, representation
or warranty under this Agreement, and (b) damages caused by
fraud or guilt of its employees and/or contractors, with said
damages to be determined in an appropriate judicial suit. This
clause shall apply in the cases when the specific penalty is
not provided in this Agreement or its Exhibits
9.2 AOL agrees to indemnify, defend, and hold Vendor harmless from
Losses arising from any third party claims of intellectual
property rights infringement arising from any AOL developed
materials provided to Vendor to provide the Services. Further,
Vendor agrees to indemnify, defend, and hold AOL harmless from
Losses arising from any third party claims of intellectual
property rights infringement arising from the Services or from
any materials or services utilized to provide the Services. .
9.3 If any item described in Section 9.2 becomes, or is likely to
become, the subject of an infringement or misappropriation
claim or proceeding, Vendor shall, in addition to indemnifying
AOL as provided in Section 9.2 and to the other rights AOL may
have under this Agreement, promptly at Vendor's expense use
best efforts to (i) secure the right to continue using the
item, or (ii) replace or modify the item to make it
non-infringing, provided that any such replacement or
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modification shall not degrade the performance or quality of
the affected component of the Services. In the event neither
of such actions can be accomplished by Vendor, and only in
such event, Vendor shall remove the item from the Services and
the applicable charges under this Agreement shall be equitably
adjusted to reflect such removal and in the event that such
removal may reasonably cause degradation of performance or
quality of the affected component of the Services, AOL may at
its option terminate this Agreement upon notice to Vendor.
9.4 In respect to the non compliance of the provisions relative to
availability of services, the Vendor shall be responsible
solely and exclusively for the granting of the discounts
established in this instrument, with no additional values
being owed to AOL, under any other title. Despite the
foregoing, this clause 9.4. does not apply to failure to
comply with deadlines and /or the deployment plan. Also, the
Parties agree, in any event, that any damages the Vendor may
be condemned to pay as indirect damages, shall never be more
than the accumulated amount paid by AOL to Vendor for services
rendered and contracted under the terms of this instrument and
its exhibits of the last [**] [**] payments preceding the
occurrence of the event that originated such damages. The
accumulated amount will be calculated by adding the total
amounts paid in each invoice and shall be adjusted by the IGPM
index to the date of the occurrence of the event.
9.4.1 NOTWITHSTANDING THE FOREGOING, SUCH LIMITATIONS SHALL
NOT APPLY WITH RESPECT TO DAMAGES OCCASIONED BY THE
BREACH BY A PARTY OF ANY OF SUCH PARTY'S OBLIGATIONS
SET FORTH IN ARTICLE 7 OF THIS AGREEMENT.
10 FORCE MAJEURE
10.1 Neither Party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and to
the extent such default or delay is caused, directly or
indirectly, by fire, flood, lightning, earthquake, elements of
nature or acts of God, riots, civil disorders, rebellions or
revolutions, or any other cause beyond the reasonable control
of such Party; provided, however, that the non-performing
Party is without fault in causing such default or delay, and
such default or delay could not have been prevented by
reasonable precautions and cannot reasonably be circumvented
by the non-performing Party through the use of alternate
sources, workaround plans or other means (any such event a
"FORCE MAJEURE EVENT"). Notwithstanding the foregoing, the
failure of a supplier or subcontractor of Vendor to perform
under its arrangement with Vendor shall not constitute a Force
Majeure Event for Vendor unless such failure by such supplier
or subcontractor is itself is caused by a Force Majeure Event.
10.2 For any Force Majeure Event, the non-performing Party shall be
excused from further performance or observance of the
obligation(s) so affected for as long as such circumstances
prevail and such Party continues to use its best efforts to
recommence performance or observance whenever and to whatever
extent possible without delay. Any Party so delayed in its
performance shall immediately notify the Party to whom
performance is due by telephone (to be confirmed in writing
within [**] [**] business days of the inception of such delay)
and describe at a reasonable level of detail the circumstances
causing such delay. To the extent a Party can reasonably
anticipate in advance that such Party's performance is going
to be delayed by a Force Majeure Event, such Party shall
immediately notify the other Party of such anticipated delay
and describe at a reasonable level of detail the circumstances
that may cause such anticipated delay.
10.3 If Force Majeure Event substantially prevents, hinders, or
delays Vendor's performance for more than [**] [**]
consecutive calendar days, then at AOL's option: (i) AOL may
terminate or modify any affected portion of any order, or
terminate any affected portion of this Agreement, and the
charges payable hereunder shall be equitably adjusted to
reflect such termination; or (ii) AOL may terminate this
Agreement in its entirety without liability to Vendor as of a
date specified by AOL in a written notice of termination to
Vendor. Vendor shall not have the right to any additional
payments from AOL for costs or expenses incurred by Vendor as
a result of any Force Majeure Event.
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11 INDUSTRY DEVELOPMENTS
11.1 COST SAVINGS. If Vendor's costs associated with the Services
in a Service Area decrease as a result of changes to the
telecommunications regulatory regime, the Service charges will
be [**] by the amount of such [**]. If Vendor's costs
associated with the Services in a Service Area increase as a
result of changes to the telecommunications regulatory regime,
Vendor may, by providing AOL with [**] [**] days advanced
notice, [**] such applicable [**] [**] along to [**] on an
[**]; provided that during such [**] day period, AOL may
reject such cost increase, in which case, (a) AOL may cancel
all Services provided under this Agreement without penalty or
liability pro rata over the [**] [**] month period following
the date of AOL's rejection notice, and (b) the prices for
Services during such [**] [**] month period shall be the
prices in effect on the date of AOL's rejection notice.
11.2 As soon as dial-up access services utilizing [**] become
available in any Service Area, Vendor will offer to provide
such Services utilizing such Ports to AOL on an expedited
basis. Pricing for new Ports will be at initial Market Prices
that reflect the then-current, competitive market prices in
such Additional Service Area.
11.3 CERTAIN REGULATORY EVENTS. In the event that Vendor is
obligated under applicable law to provide any of the Services
hereunder in accordance with tariffs filed with a governmental
authority, then Vendor shall file the terms and conditions of
this Agreement with such authority such that applicable law
shall require no change in the rights or obligations of any
Party under the Agreement. If despite Vendor's use of
good-faith, commercially reasonable efforts to perform this
obligation, such tariffs require a material change in the
rights or obligations of either Party under this Agreement
that adversely affects them then either Party may at its
option, terminate the Agreement for cause.
12 GENERAL
12.1 CONTINUED PERFORMANCE. Each Party agrees to continue
performing its obligations under this Agreement while any
dispute is being resolved, with exception to the conditions
described on Sections 3.2.4 and 3.2.5.
12.2 SEVERABILITY. In the event that any provision of this
Agreement conflicts with the law under which this Agreement is
to be construed or if any such provision is held invalid by a
court with jurisdiction over the Parties, the remainder of
this Agreement shall remain in full force and effect. In the
event any such INVALIDITY of any such provision prevents the
accomplishment of a fundamental purpose of this Agreement, AOL
and Vendor shall immediately commence negotiations in good
faith to provide the party which has been adversely affected
by such restatement with value (in cash or in kind) equivalent
to the value that such Party would have received had such
provision not been restated.
12.3 In case the Vendor is not allowed to render the services
contracted by this instrument, by an order from the National
Telecommunication Agency (ANATEL), provided that such order
did not originate from Vendor's responsibility, including,
without limitation, failure to comply with Concession Contract
or legislation, or due to any change in the applicable
legislation in force, this instrument shall be immediately
terminated, through a written notice from the Vendor to AOL
informing it of such fact. The termination of the agreement
due to the reasons as above shall not give any party any right
to claim, reparation and/or compensation.
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12.4 PRESS RELEASE. Except to the extent such prior disclosure to
the other party is precluded by law, neither Party shall issue
any press releases, announcements and marketing, advertising
or other promotional materials related to this agreement or
referencing the other party or its trade names, trademarks and
service marks without the prior written approval of the other
party, which shall not be unreasonably withheld or delayed.
12.4.1 Notwithstanding the foregoing, (i) either Party may issue
Press Releases and other disclosures as required by the United
States Securities and Exchange Commission without the consent
of the other Party; and (ii) AOL may issue any Press Release
and other disclosures relating to its quarterly earnings
reports without the Vendor's consent. In both cases, each
Party shall give the other Party prior notification of such
disclosure.
12.5 ASSIGNMENT. This Agreement shall accrue to the benefit of and
be binding upon the Parties hereto and any purchaser or any
successor entity into which a Party has been merged or
consolidated or to which a Party has sold or transferred all
or substantially all of its assets. No Party may assign or
transfer in any way this Agreement or assign or delegate its
rights or obligations under this Agreement without the prior
written consent of the other Party, whose consent shall not be
unreasonably withheld.
12.6 NOTICES. All notices, requests, demands, and determinations
under this Agreement (other than routine operational
communications or as otherwise specifically set forth herein),
shall be in writing and shall be deemed duly given (i) when
delivered by hand, one (1) business day after being given to
an express post service, with a reliable system for tracking
delivery, or (ii) four (4) business days after the day of
mailing, when mailed by United States mail, registered or
certified mail, return receipt requested, postage prepaid, and
addressed as follows:
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TO AOL: TO VENDOR:
------- ---------
AOL Brazil Telefonica Empresas S. A.
Xx. Xxxxxxxx xx Xxx Xxxxxxxxx, 0000 - Ed. Xx Xxxxx Xxxx 0000 - 0(0)xxxxx
Xxxxxxxxxxxx - 2(0). Andar - CEP 05693-000- Sao Paulo - SP - Brazil
Sao Paulo - SP - Brazil Attn: Diretor de Vendas
Attn: Dirtor Juridico Tel: x00 (00) 0000-0000
Fax: x00 (00) 0000 0000 Fax: x00 (00) 0000-0000
AOL Brazil COPIES TO:
---------
Xx. Xxxxxxxx xx Xxx Xxxxxxxxx, 0000 - Ed.
Philadelphia - 2(0). Andar - CEP 05693-000- Telefonica Empresas S. A.
Sao Paulo - SP - Brazil Secretaria Geral -
Attn: Diretor de Operacoes Fax: x00 (00) 0000-0000
Fax: x00 (00) 0000 0000
America Online, Inc. Telefonica DataCorp. S.A., Sociedad
0000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxxxx xx Xxxxxxxxx, 00, 0(xxxxxx)xxx
Attn: Xxxxxxxxx XxxXxxxxx, Xxxxxx 00000 Xxxxxx, XXXXX
Vice President, Global Access Network Attn: Xxxx Xxxx Xxxxxxxxx, Director
Fax: (000) 000 0000 General Comercial
Fax: 000 00 00 000 0000
COPIES TO: Telefonica DataCorp. S.A., Sociedad
---------
America Online, Inc. Unipersonal
00000 XXX Xxx Xxxxxxx xx Xxxxxxxxx, 14, 2(degree) izq
Xxxxxx, Xxxxxxxx 00000 28040 Madrid, SPAIN
Attn: General Counsel Attn: Xxxxxx Xxxxxxxx, Multinational
Fax: (000) 000-0000 Sales Director
Fax: 000 00 00 000 0000
America Online, Inc.
00000 XXX Xxx
Xxxxxx, Xxxxxxxx 00000
Attn: President Of Business Affairs
Fax: (000) 000-0000
A Party may from time to time change its address or designee for notification
purposes by giving the other prior written notice of the new address or designee
and the date upon which it shall become effective.
12.7 NO EXISTENCE OF LEGAL PERSON. Nothing contained herein shall
be construed as creating any agency, partnership, or other
form of joint enterprise between the Parties.
12.8 Labor Obligations: Vendor undertakes to pay the salaries and
other labor security, social security and social charges
referring to its employees, related to the Services to be
rendered, the liability for which lies exclusively on the
Vendor. Moreover, Vendor assumes full employers liability for
its personnel, including of social, social security,
casualties, administrative, disciplinary, fiscal and/or civil,
being Vendor deemed the only employer, there being no
connection whatsoever between its employees, workers or
representatives and AOL.
12.8.1 Labor Claims: In case any demand or claim is moved
against AOL by an employee, office, ex-employee or
ex-officer of Vendor due to their tasks under the
Agreement, Vendor undertakes to substitute AOL as
plaintiff of the demand or claim. In case the agreed
substitution is not possible, Vendor undertakes to
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reimburse AOL from any expenses (including attorney's
fees) incurred by AOL in the intended labor claim or
demand.
12.9 The parties agree, as of now, that any obligations that
expressly or by its own nature shall continue in force after
the termination, the cancellation or expiration of the
Agreement shall survive and remain in effect.
12.10 LEGAL COMPLIANCE. Both Parties shall comply with all
applicable laws and regulations that are material to their
respective performance under this Agreement. Vendor shall not
gather, process, store, use or disclose any personal data
relating to AOL members. Further, Vendor shall not monitor the
content of traffic sent by or delivered to AOL end-users via
the Services.
12.11 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Parties with respect to the subject
matter hereof, substituting any and all documents produced in
respect to the same matter. This Agreement may only be changed
by mutual agreement of authorized representatives of the
Parties in writing.
12.12 SERVICE MARKS. The Parties agree that they shall not use the
names, service marks or trademarks of the other Party or its
Affiliates. without prior written consent thereof.
12.13 WAIVER. The omission and/or delay by any of the parties in
performing any right established herein shall not be
considered as a forfeit thereof, and the no single or partial
performance of any right herein determined may turn impossible
any future or deeper performance of said right or of any other
right
12.14 INCORPORATION BY REFERENCE. All Exhibits attached hereto are
hereby incorporated by reference into the Agreement.
13. GOVERNING LAW AND CONSENT TO JURISDICTION
13.1. The Agreement shall be interpreted, construed and enforced in
all respects in accordance with the laws of Federal Republic
of Brazil.
13.2. Each Party irrevocably consents to the exclusive jurisdiction
of the courts of the City of Sao Paulo, SP, Brazil in
connection with any action to enforce the provisions of this
Agreement, to recover damages or other relief for breach or
default under this Agreement or otherwise arising under or by
reason of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
effective, in three equal copies, as of the Effective Date. Each Party
acknowledges that it has read this Agreement, understands it, and agrees to
be bound by its terms.
Sao Paulo, Xxxxx 0, 0000
XXX XXXXXX LTDA. AOL LATIN AMERICA, S.L.
By: /S/ XXXXXX X. XXXXXXX By: /S/ XXXXXX X. XXXXXXX
-------------------------- -------------------------------------
Printed: XXXXXX X. XXXXXXX Printed: XXXXXX X. XXXXXXX
-------------------- --------------------------------
Title: PRESIDENT Title: LEGAL REPRESENTATIVE
---------------------- ----------------------------------
Date: Date:
----------------------- -------------------------------------
A-10
TELEFONICA EMPRESAS S.A.
By: /s/ XXXXXXX DO XXXXXXXXXX XXXXXXX By: /s/ XXXXXXX XXXXXXXX
------------------------------------- -------------------------
Printed: XXXXXXX DO XXXXXXXXXX XXXXXXX Printed: XXXXXXX XXXXXXXX
------------------------------- --------------------
Title: COMMERCIAL VICE PRESIDENT Title: PRESIDENT
---------------------------------- ----------------------
Date:
------------------------------------
WITNESSES:
/s/ XXXXXX SERZEDELLO
---------------------------------- ----------------------------
NAME: XXXXXX SERZEDELLO NAME:
---------------------------------- ----------------------------
ID CARD: 8.324.796 ID CARD:
---------------------------------- ----------------------------
CPF/MF CARD: 000.000.000-00 CPF/MF CARD:
---------------------------------- ----------------------------
A-11
EXHIBIT A
DEFINITIONS
"ACCEPTANCE TEST PERIOD" has the meaning set forth in Section 3 of Exhibit E.
"ACCEPTED ORDER" has the meaning set forth in Section 2 of Exhibit E.
"ADDITIONAL SIMULTANEOUS ACCESSES" means Simultaneous Accesses and related
Services in addition to (but not including) Finally Accepted Simultaneous
Accesses to be made available by Vendor for AOL's use in accordance with Section
2 of the Agreement; provided that under no circumstances shall Additional
Simultaneous Accesses include (a) Finally Accepted Simultaneous Accesses, or (b)
Simultaneous Accesses and related Services which (i) have been ordered by AOL in
accordance with Section 1.2 of Exhibit E, (ii) have been delivered by Vendor in
accordance with Section 2 of Exhibit E, and (iii) have not yet received Final
Acceptance by AOL in accordance with Section 3 of Exhibit E.
"ADDITIONAL SERVICE AREAS" means any countries or areas, other than the Initial
Service Areas, requested from time to time by AOL in which Vendor offers or
provides (or is reasonably able to offer or provide) dial-up access services.
"AFFILIATE" means, with respect to any entity, any other entity Controlling,
Controlled by or under common Control with such entity. With respect to AOL, an
"Affiliate" also means any entity which operates or distributes, or is
authorized to operate or distribute, an AOL Information Service. "AOL" has the
meaning set forth in the preamble to this Agreement.
"AOL INFORMATION SERVICE" means an Interactive Service containing branding owned
or controlled by AOL or an AOL Affiliate, or using all or a portion of AOL's or
an AOL Affiliate's network or backend systems. "AOL PROVIDER" has the meaning
set forth in Section 1 of Exhibit F.
"BANDWIDTH REQUIREMENT" has the meaning set forth in Section 1.1 of Exhibit C.
"BREACHING PARTY" has the meaning set forth in Section 6.1 of the Agreement.
"CIC ENTITY" means an (i) an entity which has as a [**] an Interactive Service,
or (ii) [**] with one of AOL's primary lines of business (including, pending
merger approval, the primary lines of business of the merged AOL/Time Warner
entity), as such lines may evolve. Further, a CiC Entity shall not include [**]
unless (A) [**] or a [**] acquires Control of [**], (B) [**] acquires Control of
or a [**], or (C) some or all of the senior management of [**] and [**] are the
same individuals; provided that the same individual serving on the board of
directors of both [**] and [**] shall not be deemed to be covered by subpart (C)
of this definition. CiC Entity shall not include [**].
"CONFIDENTIAL INFORMATION" means any information, in any form, furnished or made
available directly or indirectly by one Party (the "DISCLOSING PARTY") to the
other (the "RECEIVING PARTY") relating to or disclosed in the course of the
negotiation or performance of this Agreement, that is, or should be reasonably
understood to be, confidential or proprietary to the Disclosing Party (including
the terms of this Agreement; data transmitted by means of the services (e.g.,
the content of AOL members' e-mail traffic); AOL usage statistics; all usage
data and reports collected by Vendor and all reports provided to AOL by Vendor;
calling patterns; invoices and any supporting information provided by Vendor or
AOL with respect to such invoices; information audited pursuant to Section 4 of
Exhibit F; AOL's customer and member information; automatic numbering
identification (ANI) data and information; the relations of the Disclosing Party
with its customers; employees and service providers; technical processes and
formulas; source codes, product designs, sales, cost and other unpublished
financial information; and product and business plans, projections and marketing
data). "Confidential Information" shall not include information (a) already
lawfully known to or independently developed by the receiving Party, (b)
disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party without an obligation of confidentiality.
"CONTROL" and its derivatives means, with regard to any entity, (a) the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such entity, or (b) the legal or
record, beneficial, or equitable ownership, directly or indirectly, of more than
fifty percent (50%) of the capital stock (or other ownership interest, if not a
corporation) of such entity ordinarily having voting rights.
"DESIGNATED ADDITIONAL PORT AMOUNT" shall have the meaning set forth in Article
2 of the Agreement.
CA-1
"DIAL-UP ACCESS" is the facility and associated end-to-end,
managed services, however provided in terms of technology, for receiving analog
or ISDN in-bound calls from the public switched telephone network on demand and
converting those signals to digital form for transmission over digital networks,
where the end-user has initiated the call.
"DISCLOSING PARTY" has the meaning set forth in Article 7.
"EFFECTIVE DATE" has the meaning set forth in the preamble to the Agreement.
"FINAL ACCEPTANCE" has the meaning set forth in Section 3.4 of Exhibit E.
"FINALLY ACCEPTED SIMULTANEOUS ACCESSES" means Simultaneous Accesses and related
Services which (a) have been ordered by AOL in accordance with Section 1.2 of
Exhibit E, (b) have been delivered by Vendor in accordance with Section 2 of
Exhibit E, (c) have received Final Acceptance by AOL in accordance with Section
3 of Exhibit E, and (d) have not been cancelled by AOL in accordance with
Section 6 of Exhibit F.
"FORCE MAJEURE EVENT" has the meaning set forth in Section 10 of the Agreement.
"INCLUDE," "INCLUDES", and "INCLUDING", whether or not capitalized, mean
"include but are not limited to", "includes but is not limited to", and
"including but not limited to", respectively.
"INITIAL SERVICE AREA" means sectors 31, 32 and 34 of Region III, as defined in
the decree Nr. 2.534, of April 2nd., 1998.
"INTERACTIVE SERVICE" means one or more of the following Internet or online
services: (i) online or Internet connectivity services; (ii) an interactive site
or service featuring a broad selection of aggregated third party interactive
content (or navigation thereto) (e.g., an online service or search and directory
service) and/or marketing a broad selection of products and/or services across
multiple interactive commerce categories; (iii) a persistent desktop client; or
(iv) communications software capable of serving as the principal means through
which a user creates, sends or receives electronic mail or real time or
"instant" online messages (whether by telephone, computer, wireless or other
means).
"NON-BREACHING PARTY" has the meaning set forth in Section 6.1 of the Agreement.
"NON-COMPARABLE SERVICES" has the meaning set forth in Section 3.1 of Exhibit F.
"NONCONFORMITY" has the meaning set forth in Section 3.3 of Exhibit E.
"NORMALIZATION METHODOLOGY" has the meaning set forth in Section 5 of Exhibit F.
"OUT-OF-POCKET EXPENSES" means, verifiable and actual direct expenses incurred
by a Party (including direct network and operations costs), but excluding that
Party's overhead costs (or allocations thereof), administrative expenses or
other xxxx-ups and excluding expenses which could reasonably have been avoided
or which could reasonably be recouped by that Party.
"PEAK OF SIMULTANEOUS USERS". Vendor will provide the Vendor Managed Modem
Services on a [**], AOL's usage of the Vendor Managed Modem Services shall be
measured by reference to the [**] utilized by Vendor to provide such services in
each [**]. In order to calculate such quantity of ports, Vendor shall measure
the peak number of simultaneous AOL users in each [**]. The highest between the
resulting figure and [**] for such calendar month shall be deemed to be the
number of ports which are used by AOL in the month under consideration, and that
figure shall be used to calculate the monthly charges for the Vendor Managed
Modem Services, AOL's commitment to purchase Vendor Managed Modem Services and
Vendor's obligation to provide Vendor Managed Modem Services. In case the
resulting figure is higher than the [**], AOL may verify Vendor's calculation
of the peak user figures noted above. If the resultant figure calculated by AOL
is more than [**]% lower than the port figure calculated by Vendor above, AOL
and Vendor shall enter in good faith conversations to agree on the number of
simultaneous accesses exceeding the [**] that shall be paid by AOL in such
month. AOL shall have the option at any time and at its sole discretion, to
request Vendor to limit the maximum number of simultaneous sessions used to
provide the Vendor Managed Modem Services to a new maximum number of
simultaneous sessions, which will be higher or equal to the [**] for the current
month, and lower than [**]. Initially, the maximum number of simultaneous
sessions used to provide the Vendor Managed Modem Services shall be equal to the
[**] for the current month.
"SIMULTANEOUS ACCESS" means the capacity to offer Dial-Up Access to one (1)
incoming analog or ISDN in-bound call, plus signaling channels, which access is
(a) available solely to AOL and its designees, as applicable, and the end users
of AOL's and its designees' services, and (b) is not available to any other
Group.
"SIMULTANEOUS ACCESS INSTALL FEE" shall have the meaning set forth in Section 0
of Exhibit F.
CA-2
"PURCHASE COMMITMENT" has the meaning set forth in Section 1 of
Exhibit F.
"RECEIVING PARTY" has the meaning set forth in Article 7.
"REJECTION CRITERIA" has the meaning set forth in Section 3.2 of Exhibit E.
"SERVICE AREAS" shall mean the Initial Service Areas and the Additional Service
Areas.
"SERVICES" means (a) the services, functions and responsibilities of Vendor as
described in the Agreement (including Exhibits C and D) as such services,
functions and responsibilities may evolve during the Term and may be
supplemented and enhanced in accordance with the Agreement; and (b) any
services, functions or responsibilities not specifically described in the
Agreement that are required for the proper performance and provision of the
services described in part (a) of this definition.
"SERVICE LEVELS" has the meaning set forth in Article 4 of the Agreement.
"TDATA" means Telefonica DataCorp, S.A., Sociedad Unipersonal.
"TDATA-CONTROLLED AFFILIATE" means any entity Controlled by TData.
"TELEFONICA" means Telefonica S.A.
"TERM" has the meaning set forth in Article 1 of the Agreement.
"TRANSITION ASSISTANCE" has the meaning set forth in Section 6 of the Agreement.
"TRANSITION PERIOD" has the meaning set forth in Section 6 of the Agreement.
"VENDOR" has the meaning set forth in the preamble to this Agreement.
CA-3
EXHIBIT B
SCOPE OF SERVICES
Vendor shall, in accordance with this Agreement, install and activate, and on an
end-to-end basis manage, maintain and operate, Simultaneous Accesses throughout
the Service Areas. Services provided hereunder shall include all associated
fully managed, end-to-end network service functions (including those functions
described in this Exhibit B).
1. OPERATIONS
Vendor shall provision, staff, and operate a primary Network Operations Center
("NOC") with dedicated support for AOL in the Initial Service Area and a backup
NOC (without active management) at a separate location a reasonable distance
away from the primary NOC, different power company and a different local
telephone company than the dedicated AOL NOC. The scope of this task shall
include the following Vendor support Services for the network:
1.1. Operation of the NOC and co-located systems with trained and
qualified personnel on a continuous, 24 hours per day, 7 days
per week basis;
1.2. Performance of network surveillance and monitoring;
1.3. Operation of all NOC equipment, monitoring, and fault
isolation functions;
1.4. Coordination of the dispatch of maintenance representatives
for corrective maintenance activities and recording
information in a Problem Report ("PR"). Vendor's
responsibilities shall include:
1.4.1. Initiation of a corrective maintenance request, plus
recording the time that the call is received by the
Vendor maintenance representative;
1.4.2. Upon arrival of the maintenance representative at the
site, confirmation by the NOC of the reported
problems and recording the site arrival time with the
representative;
1.4.3. Upon notification to the NOC by the on-site
maintenance representative of work stoppage, delay,
denial of access to the equipment, Vendor shall
confer with AOL representatives for advice or
assistance; and
1.4.4. Upon restoration of Service by the maintenance
representative, the NOC shall confirm, with
assistance from the maintenance representative,
operation of the equipment and record the time when
Services are restored and the reason for the problem
outage;
1.5. Initiation of PRs, maintenance of a log of all PRs,
coordination of PRs with support personnel and tracking of
problems until resolution using a commercially available
trouble reporting software system;
1.6. Utilization of SNMP facilities, for reading only and Vendor
diagnostic software resident in the NOC for:
1.6.1. Daily testing of Simultaneous Accesses and local
access numbers;
1.6.2. Measurements of the usage of each Simultaneous Access
at the frequency or at the times requested by AOL;
1.6.3. Monitoring and recording the backbone and trunk
availability and utilization; and
1.6.4. Accounting for the disposition of each call placed to
AOL (e.g., how many calls were placed, how many calls
were sent successfully to AOL, how many calls were
lost in the network due to routing problems, how many
calls were sent to AOL but which were not accepted by
AOL, etc.);
B-1
1.7 . Providing on-site analyst support Monday through Friday
(excluding holidays) during normal working hours. A dedicated
access number shall be maintained for AOL's exclusive use,
which shall always be operational. Analyst support shall
include the following:
1.7.1. Supporting short-term and long-term problem
identification, analysis, and resolution;
1.7.2. Ensuring that proper steps are taken to resolve the
problem;
1.7.3. Identifying and tracking all software, baseline and
patches, deployed in the Vendor network and NOC
platforms;
1.7.4. Supporting the deployment of new software to the
Vendor Network, AOL and NOC equipment as coordinated
with AOL;
1.7.5. Providing support to network provisioning
requirements; and
1.7.6. Maintaining a technical library for the NOC.
1.8. Performing on-call analyst support of the Vendor Network on a
continuous 24 hour per day, 7 days per week basis. Vendor
agrees to provide AOL with a toll-free number available 24
hours per day, 7 days per week, to report problems relating to
network integrity. On-call analyst personnel shall respond to
urgent requests from the NOC in conjunction with the on-site
Vendor personnel. Procedures for the conduct of network
testing are in accordance with those developed in conjunction
with AOL representatives. Vendor shall provide an escalation
list for AOL containing pager numbers, cell phones and other
necessary contact information of relevant and appropriate
Vendor personnel (including Vendor executives) for emergency
response should the Vendor NOC fail to respond with adequate
information regarding a major Service outage within the first
half hour of such an outage. Vendor shall update the list
periodically as necessary or upon AOL's request.
1.9. Providing operational support to AOL in the area of network
testing in association with provisioning actions. Such testing
shall be conducted from the NOC in conjunction with the
on-site Vendor installation team personnel;
1.10. Maintaining and providing updates and changes to NOC maps;
1.11. Maintaining an authorized outage listing for NOC controller
use;
1.12. Acting as AOL's agent in network security matters on a
day-to-day basis as directed by AOL in accordance with
commercially reasonable practices, and making recommendations
for improvements;
1.13. Using commercial teleconferencing facilities in the resolution
of network problems, escalation of problems, and planning
activities;
1.14. Providing electronic mail service support for the NOC via the
e-mail/DNS capabilities;
1.15. Providing a facsimile service resident in the NOC equipment;
1.16. Delivering the following reports to AOL-designated
representatives (or by email if requested by AOL), whenever
requested:
1.16.1. Usage Reports
1.16.2. [**] on [**] by Port by [**]
1.16.3. [**] on [**] of [**]
1.16.4. [**] on [**] and [**], including [**];
1.16.5. [**] by AOL to [**];
B-2
1.16.6. [**] and [**];
1.16.7. [**] reports;
1.16.8. [**] of the amount of [**] required to
[**];
1.16.9. [**] report;
1.16.10. [**] statistics;
1.16.11. [**] and [**] statistics;
1.16.12. [**] as required to [**] client and AOL
network [**];
1.16.13. [**] Port [**] across all [**] and [**]
[**] (reporting provided [**] by Vendor within [**]
days of the Effective Date); provided that such
report shall comply with the [**] standard;
1.16.14. [**] Port [**] (reported [**]); provided that such
report shall comply with the [**] standard; and
1.16.15. [**] hours used on Vendor's network, broken down by
[**] (reporting provided daily by Vendor within [**]
days of the Effective Date);
1.16.16 AOL may request additional reports, and Vendor shall
provide these additional reports, or the raw data,
subject to technical reasonableness.
1.17 Vendor shall aggregate routing information sent to AOL and
shall control the addition and withdrawal of routing
information. Vendor shall announce AOL routing information at
Vendor interchange points as required by AOL.
2. NETWORK ENGINEERING.
2.1. Vendor agrees to provide network engineering to address
operational and long-term planning issues.
2.2. Vendor shall continue to improve the network design in order
to reduce risks to AOL, improve robustness, and enhance the
price/performance of the transmission system. AOL shall be
permitted to establish a route of last resort on the network.
2.3. Vendor shall maintain the facilities, equipment and software
used to provide the Services so that they operate in
accordance with their specifications (e.g., applicable vendor
support release information), including (a) maintaining
equipment in good operating condition, (b) undertaking repairs
and preventive maintenance on equipment, including at a
minimum in accordance with the applicable equipment
manufacturer's recommendations, and (c) performing software
maintenance, including at a minimum in accordance with the
applicable software documentation and software vendor's
recommendations.
2.4. Vendor agrees not to restrict traffic to and from AOL unless
requested to do so by AOL or required to do so by court order
or applicable law. Before restricting traffic as permitted
under this Section, Vendor shall provide AOL with reasonable
prior written notice of the timing, duration, scope and
reasons for such restriction.
2.5. Vendor shall manage the backbone and interconnection points
with other Internet providers and customers to minimize loss
and delay of AOL traffic. Such management shall include
creation of new interconnection points as required.
2.6. Vendor shall provide the Services via POPs whose geographical
distribution and location has been agreed with AOL in advance
and which, at a minimum, are dispersed according to the
geographical distribution of the population in each particular
territory.
B-3
3. NETWORK SUPPORT ORGANIZATION
Vendor shall structure the provision of Services in a manner that shall enable
Vendor to rapidly build out its networks and deliver quality Services.
3.1. ENGINEERING: Vendor shall maintain a network engineering group
that shall handle the technical aspects of the Services,
resolution of problems escalated by the NOC, planning for
future network expansion, and improvement of performance and
process. Such engineering group shall interact directly with
AOL and the NOC.
3.2. DEPLOYMENT: Vendor shall maintain a deployment team consisting
of field engineers and technicians, as well as others who have
experience dealing directly with telcos, preparing sites, and
installing equipment. Part of this team shall be based at
Vendor's facilities to coordinate activities and provide
support for installers.
3.3. OPERATIONS: Vendor's NOC shall handle the operation and
maintenance of the Vendor Network. The NOC shall be connected
to AOL's central facilities, including a direct telephone link
to the AOL operations center. The NOC's monitoring capability
shall be set up to detect and correct most network problems
before they are visible to AOL or its customers. The NOC shall
direct maintenance activities based on input from the
monitoring systems and AOL. Vendor shall handle a large
majority of repair tasks over the telephone with technicians
at the POPs by storing Dial-Up Access subsystems at the POPs,
establishing working agreements with the POPs and other
service providers, and by providing written procedures. When
it is necessary to send technicians to deal with problems,
Vendor shall use its existing infrastructure of satellite
offices and field engineers.
4. MISCELLANEOUS SERVICES
4.1. Vendor shall provide, [**], a unique set of source IP
addresses such that [**] [**] can be identified through such
source IP addresses. AOL shall be provided the source IP
addresses at least [**] weeks prior to use by Vendor to
provide the Services.
4.2. Vendor shall acquire and manage IP addresses for all protocols
to be supported by Vendor under this Agreement and as
otherwise necessary for Vendor to fulfill its obligations to
AOL under this Agreement. Without limiting the generality of
the foregoing, for each session of an end user of the
Services, Vendor shall dynamically assign a unique IP address
to such session.
4.3. Vendor shall provide DNS services contained in its network,
including the following:
4.3.1. provision of DNS for AOL;
4.3.2. resolution of DNS queries to AOL destinations;
4.3.3. support of DNS for AOL domain and any zones resident
on AOL name servers; and
4.3.4. maintenance of domain name service servers.
5. TELEPHONE NUMBERS
5.1 Vendor will reserve agreed dedicated number ranges, for the
sole use of AOL, in each city in services are provided. Such
number ranges will comprise a specific access code reasonably
requested by AOL, with exclusive numbers to be added
thereafter which shall be provided solely to AOL.
5.2 As among the parties, to the extent that Vendor is permitted
to take such action under the relevant regulatory regime, it
is technically possible, and after previous commercial
negotiation AOL shall own the telephone numbers to each of the
dial-up points of presence, and Vendor shall not provide such
telephone numbers to any third party without written
permission from AOL.
B-4
5.3 In the event of any termination or expiration of this
Agreement, or upon the decommissioning of Services hereunder,
to the extent that Vendor is permitted to take such action
under the relevant regulatory regime, it is technically
possible and after previous negotiation, then upon AOL's
request, Vendor will transfer, to AOL or its designee,
ownership of the telephone numbers in the network
corresponding to the affected Services.
5.4 If a particular telephone number becomes unavailable through a
Force Majeure Event, Vendor shall use all commercially
reasonable efforts to make alternative arrangements (through
re-routing or other techniques and subject to the availability
of the necessary technology) that permit AOL subscribers to
continue to use the original telephone number.
5.5 Any changes with respect to telephone numbers used to provide
the Managed Modem- Services shall require prior written
notification to AOL. Vendor shall not make any changes to the
telephone numbers used for the Managed Modem Services provided
to AOL unless it is required by regulation or technically
necessary.
5.6 Whenever it is allowed under the relevant regulatory regime
and it is technically possible, Vendor will provide AOL with a
unique nationwide number, that will be owned by AOL.
B-5
EXHIBIT C
SPECIFICATIONS
1. SPECIFICATIONS
Services provided hereunder shall fully conform with the following
specifications:
1.1. Vendor shall provision end-to-end backhaul capacity (i.e.,
from the Simultaneous Access to the AOL dial termination
facility) such that available bandwidth for the Services is no
less than [**] bps per Simultaneous Access, (with no more
than [**]% utilization), as such available bandwidth may be
adjusted in accordance with the terms of this Agreement.
1.2. The Services shall fully support and be in conformance with
AOL's access methods, access technology, hub architecture, and
other access methods that may become available to AOL from
time to time. Access methods shall include:
1.2.1. the proprietary AOL P3 protocol -- a proprietary AOL
character-oriented protocol using TCP clear or raw
mode telnet. The NAS using a common user id and
password for each session;
1.2.2. PPP-- standard point to point protocol based on RFC
1661. Vendor provides a unique routable IP address
for each session from a pool of IP addresses
dedicated to AOL. A common authentication is used for
each session;
1.2.3. TCP/IP;
1.2.4. UDP;
1.2.5. ADSL;
1.2.6. 1-way cable
1.2.7. L2TP -- Layer 2 tunneling protocol, based on XXX 0000
using a common realm string to route traffic to AOL.
AOL assigns the routable IP address;
1.2.8. V.110;
1.2.9. ISDN synchronous and ISDN asynchronous shall be
available to AOL as soon as technically supported by
Vendor, under commercial terms to be agreed upon by
the Parties;
1.2.10. Routing to a point of physical interconnect with
AOL's facilities at an AOL-designated meet point for
each Service Area at which Dial-Up Access traffic
shall be exchanged by the Parties (each such point a
"Meet Point"). The Meet Point for the Initial Service
Area is the AOL facility at Embratel Morumbi, Sao
Paulo. AOL may propose additional Meet Points
hereunder, which Vendor shall supplyat no additional
charge to AOL (1) if Vendor or a Vendor Affiliate can
provision the backhaul capacity on its own
infrastructure, or (2) to the extent that Vendor or a
Vendor Affiliate cannot provision such backhaul
capacity on its own infrastructure, if the cost of
routing to such other Meet Points does not materially
exceed the cost of routing the equivalent traffic to
the then-current Meet Point for such Service Area.
For routing to any such additional Country Meet
Point, Vendor and AOL shall agree on how IP routing
is implemented and on the technology and protocols to
be used at each Meet Point. At a minimum, Vendor
shall provide redundant paths from its backbone to
the Meet Point in order to eliminate single points of
failure on the Vendor backbone.
C-1
1.3. AOL may request changes beyond that described in
Section 1.2 of this Section to provisioned bandwidth,
AOL access methods, access technology, and hub
architecture. Vendor shall use commercially
reasonable efforts to implement such changes.
1.4. Vendor, in its network design and topology, shall
comply with IETF approved and adopted standards
applicable to the access methods described in
Subsection 1.2 of this Section.
1.5. Vendor agrees that, at no additional charge to AOL,
all Simultaneous Accesses provided hereunder shall
continue to support the V.90 protocol, and within
commercially reasonable timeframes, all successors,
upgrades and enhancements to such protocol.
2. TECHNOLOGY
2.1 The Parties shall mutually agree upon the technology and vendor of choice
for the Simultaneous Accesses and related equipment used for the Services.
Vendor will provide AOL with at least [**] days' prior written notice of any
changes with respect to the Simultaneous Accesses component providers or any
dial-access router provided hereunder for Services prior to implementing such
changes. Vendor may not implement any such changes without prior written
approval from AOL. In the event of a platform change as permitted under this
Section, Vendor shall not simultaneously utilize different access platforms for
any given telephone number. Vendor agrees to use all commercially reasonable
efforts to implement, at no additional charge to AOL, any new technology
(including any hardware or software upgrades) (a) within [**] months of such
technology becoming a reasonably-accepted industry standard in one or more
Service Areas, and (b) on an expedited basis if requested by AOL; provided,
however, that if Vendor is unable to implement any material new technology
requested by AOL, despite using such reasonable efforts within a commercially
reasonable period of time, then, notwithstanding anything herein to the
contrary, AOL may, cancel upon [**] days' prior notice to Vendor any or all
Dial-Up Access Services provided by Vendor without penalty or liability. If
Vendor has implemented a new technology solely as a result of AOL's request, and
such new technology has not been introduced by Vendor as a result of Vendor's
obligation under subpart (a) of the preceding sentence to implement new
technology within [**]' of such technology becoming a reasonably-accepted
industry standard in one or more Service Areas, then if there are [**]
associated with such new technology implementation, [**] among all
beneficiaries. In case AOL is the only beneficiary, then [**] will be
responsible for [**]. Reimbursement of such costs will not result in reduction
or exemption of monthly charges related to the provisioning of services using
such new technology.
3. ARCHITECTURAL INDEPENDENCE
3.1 In the event that Vendor determines that another carrier's offerings
represent a superior value, or other factors which may make another carrier's
offerings preferable, Vendor may utilize a carrier other than its current
carrier for the network or any portion thereof; provided, however, that such
utilization does not adversely affect the Services provided hereunder. Vendor
shall provide the Services in a manner that is consistent with AOL's goal of
achieving architectural independence (i) among its service providers, and (ii)
for any service provider, between or among the networks of such provider if such
provider uses more than one network to provide services, each in order to
minimize the possibility that a single failure could impact more than one AOL
service provider (or more than one network of a single service provider, as
applicable). Vendor shall solicit AOL's input prior to the use of a carrier
other than its current carrier to the extent permitted under this Article.
Without limiting Vendor's obligations as described above in this Section 7,
Vendor shall design and engineer the network used to provide Services to AOL
under this Agreement such that there shall be no single point of failure in such
network that may result in a material adverse effect upon the Services. Vendor,
in its network design and topology, shall comply with IETF approved and adopted
standards applicable to access methods described in this Exhibit.
C-2
EXHIBIT D
SERVICE LEVELS
Vendor shall meet or exceed the global AOLnet average with [**] for each of the
areas below:
Despite the foregoing, the percentage of abnormal disconnects shall be, at all
times, lower than [**]% ([**] percent).
1. AOLnet Averages
1.1. CONNECTION SUCCESS (GETTING CONNECTED TO THE AOL SERVICE)
1.1.1. War Dialer Percentages (excluding busies) (reporting provided
daily by AOL)
1.1.2. Call Blocking (reporting provided daily by AOL)
1.1.3. Training (reporting provided daily by Vendor within [**] days
of the Effective Date)
1.1.4. Ineffective (reporting provided daily by Vendor within [**]
days of the Effective Date)
1.1.5. AOL Member-Reported Problems (reporting provided weekly by
AOL)
1.2. CONNECTION QUALITY (STAYING CONNECTED)
1.2.1. Percentage of Abnormal Disconnects (reporting provided daily
by AOL)
1.2.2. Packet Loss (reporting provided daily by AOL)
1.2.3. Latency (reporting provided when available by AOL)
1.3. PROBLEM RESOLUTION
1.3.1. Simultaneous Access Availability (reporting provided monthly
by AOL)
1.3.2. Trouble Tickets (reporting provided monthly by AOL)
1.3.3. Service Down Time (reporting provided monthly by AOL)
1.4. ABILITY TO SATISFY PROVISIONING REQUIREMENTS
1.4.1. Simultaneous Access Plan (including detailed installation
plans within two weeks of each Simultaneous Access order)
1.4.2. Backbone and Backhaul Capacity Plan (reporting provided daily
by Vendor pursuant to the corresponding Section of Exhibit B)
2. OTHER
2.1 BUSIES. Vendor shall ensure Simultaneous Access Availability for a maximum
number of simultaneous users equal to the sum of (a) the then-current number of
Finally Accepted Simultaneous Accesses, and (b) the then-applicable Designated
Additional Simultaneous Access Amount. "SIMULTANEOUS ACCESS AVAILABILITY" means
that no AOL end-user attempting to access and use an AOL Information Service
through Vendor's Services receives a busy signal up to the indicated maximum
number of simultaneous users.
2.2 SERVICE OUTAGES. Without limiting the foregoing, Vendor shall ensure that
the Services in each city are available for [**]% of each calendar month,
calculated for each city in which Vendor provides services to AOL, excluding
PSTN.
D-1
3. PENALTIES
3.1 If Vendor fails to meet any of the service levels described
above in any particular month after [**] months of the
Effective Date, then:
3.1.1 Vendor shall indemnify AOL for damages incurred
due to failure by Vendor to meet the service level.
Notwithstanding any other provisions of this
agreement, Vendor shall not be responsible for any
indirect or consequential damages or claims arising
from any failure, interruption, or malfunction of
AOL's technology, or for any loss of profits,
incidental or consequential damages or personal
injury to any third party, caused by AOL or its
employees, representatives, agents or subcontractors;
and
3.1.2 IF Vendor does not cure the failure over the
course of the following [**] months after
identification of the failure to meet the service
levels, such that the particular service level is
satisfied when taken as an average over the [**]
month period (including the month in which the
service level was missed), then AOL may, at its sole
option, claim a pro-rata credit for each [**] (or
[**]) during which busies or service outages
occurred, according to the following formula:
D = 1*N*MV/1440
Where:
D = value of the discount
N = number of [**] minute periods of interruption
and/or busy signal. After the first [**] minute
period of interruption and/or busy signal, the last
fraction of the interruption period and/or busy
signal shall be considered as a [**] minute
interruption period and/or busy signal.
MV = value to be paid by the service.
3.2 If Vendor does not cure the failure over the course of the
following [**] months after identification of the failure to
meet the service levels, such that the particular service
level is satisfied when taken as an average over the [**]
month period (including the month in which the service level
was missed), then AOL may, at its sole option either (a)
terminate the definitive agreement for cause; or (b) terminate
the AOL Purchase Commitment in its entirety.
D-2
EXHIBIT E
PROVISIONING AND ACCEPTANCE
1. DEDICATED DIAL-UP ACCESS SERVICE PROVISIONING AND IMPLEMENTATION
1.1. PROVISIONING COMMITMENT. Vendor shall be required to make
available, for ordering by AOL, up to the number of
Simultaneous Accesses in the Initial Services Area, with
delivery dates no earlier than the corresponding earliest
delivery dates, as set forth in Exhibit E-2 hereto, so long as
AOL orders such Simultaneous Accesses with sufficient prior
notice as indicated in such exhibit (such earliest delivery
schedule and maximum number of Simultaneous Accesses, the
"PROVISIONING COMMITMENT").
1.2. ORDER PLACEMENT.
1.2.1 GENERALLY. To order Services, AOL shall submit to
Vendor an order for Services setting forth:
1.2.1.1 The total number of Simultaneous Accesses
that must be installed for each Service
Area;
1.2.1.2 The requested delivery date(s) for such
Simultaneous Accesses, and
1.2.1.3 The requested delivery location in each
Service Area of each such Simultaneous
Access;
(such information for each order described
in Subsections 1.2.1.1, 1.2.1.2 and 1.2.1.3
of this Section, the "Delivery Criteria").
Each order shall be clearly marked as such,
and shall be delivered by AOL via electronic
mail to such individuals designated in
writing from time to time by Vendor. An
e-mailed order shall be valid only if it is
submittedby the Senior Vice President of
Global Access Networks, the Director for
AOLnet Capacity Planning, or a designee of
either. Unless the Parties otherwise agree,
Customer's orders for Simultaneous Accesses
in a particular city shall be in increments
of [**] ([**]).
1.2.2 INITIAL ORDER; SUPPLEMENTAL ORDERS; OTHER ORDERS. AOL
hereby orders Simultaneous Accesses for delivery in
the Initial Service Area in accordance with the
Delivery Criteria set forth in Exhibit E-1 attached
hereto (such order the "Initial Order"). Any order
for Simultaneous Accesses corresponding to the
Provisioning Commitment (other than the Initial
Order) shall constitute a "Supplemental Order." Any
orders for Simultaneous Accesses which are neither an
Initial Order or a Supplemental Order shall
constitute an "Other Order."
1.3. VENDOR ACCEPTANCE OF ORDERS.
1.3.1 SUPPLEMENTAL ORDERS. Within [**] ([**]) days after
receipt of a Supplemental Order from AOL, Vendor
shall notify AOL of its acceptance of such order.
Vendor shall not reject any Supplemental Order.
1.3.2 OTHER ORDERS. Within [**] ([**]) days after receipt
of an Other Order from AOL, Vendor shall notify AOL
of its acceptance or rejection of such order. If
Vendor fails to provide AOL with an acceptance notice
within such ten-day period, then such order shall be
deemed accepted by Vendor as of the last day of such
ten-day period.
1.3.3 WRONGFUL REJECTION OF ORDERS. To the extent that
Vendor wrongfully rejects an order (or portion
thereof), the Purchase Commitment shall be reduced by
the number of Simultaneous Accesses corresponding to
the order(s) rejected by Vendor.
1.4 CANCELLATION OR MODIFICATION OF ORDERS.
1.4.1 Before acceptance or rejection of any order by
Vendor, AOL may rescind or modify, in whole or in
part in its sole discretion, such order. AOL shall
have no liability to Vendor for an order cancelled
pursuant to this Subsection 1.4.1.
1.4.2 After acceptance of an order by Vendor, AOL may
cancel or modify such order in whole or in part at
any time before the delivery date; provided that AOL
shall reimburse Vendor any incremental Out-of-Pocket
Expenses actually incurred as a result of such
cancellation or modification. AOL shall have no
liability to Vendor for an order cancelled pursuant
to this Subsection 1.4.2 other than payment to Vendor
of such Out-of-Pocket Expenses.
E-1
2. DELIVERY
2.1. DELIVERY OBLIGATIONS. Vendor shall deliver Simultaneous
Accesses corresponding to an order that is accepted or deemed
accepted by Vendor (any such order, an "ACCEPTED ORDER") in
accordance with the applicable Delivery Criteria and the terms
of this Agreement. Vendor shall deliver such Simultaneous
Accesses ratably during the [**]-day period preceding the
requested delivery date specified by AOL in such Accepted
Order; provided, however, that, with respect to an Accepted
Order that is an Other Order, to the extent that such delivery
date is less than [**] ([**]) days from Vendor's acceptance or
deemed acceptance of the applicable Other Order, Vendor shall
be obligated to deliver such Simultaneous Accesses no later
than (a) [**] ([**]) days following Vendor's acceptance or
deemed acceptance of such Other Order or (b) the shortest
period within which Vendor's wholesale provider is required by
regulation, agreement or otherwise to deliver capacity to
Vendor (the "SHORTEST PERIOD") (whichever is earlier). To the
extent Vendor is able to deliver any Simultaneous Access prior
to its designated delivery date (e.g., if Vendor's wholesale
provider is required by regulation to shorten its delivery
dates or if a Vendor customer terminates services or orders
and frees up capacity), then Vendor will notify AOL and at
AOL's request, the delivery date (and the order notice date,
as applicable) for such Simultaneous Access will be shortened.
Delivery dates for Additional Service Areas will be agreed by
the Parties, subject to the Shortest Period for such area,
following AOL's request to Vendor to provide Services in such
area.
2.2. FAILURE TO DELIVER. If Vendor fails to deliver Simultaneous
Accesses corresponding to an Accepted Order by the designated
delivery date (for causes other than a Force Majeure Event),
then, in addition to AOL's other rights and remedies, (a) AOL
may elect to reduce the Purchase Commitment (or if such
commitment is already fulfilled, any then-unfulfilled order)
by the number of undelivered Simultaneous Accesses and (b) AOL
may also elect to cancel, at no cost or liability to AOL, the
unfilled portion of the order for such Simultaneous Accesses.
If non-delivery of any Simultaneous Accesses persists more
than [**] ([**]) days after a designated delivery date, Vendor
will provide AOL with (i) a one-time credit equal to [**]
percent ([**]%) of [**] ([**]) days of Simultaneous Access
charges for such Simultaneous Accesses, and (ii) thereafter,
an ongoing daily credit equal to [**] percent ([**]%) of the
pro-rated daily Simultaneous Access charges that would have
applied to such Simultaneous Accesses, which credit will cease
when such Simultaneous Accesses are delivered. If non-delivery
of any Simultaneous Accesses exceeds [**] percent ([**]%) of
any order and persists more than [**] ([**]) days after a
designated delivery date, then, in addition to AOL's other
rights and remedies, AOL may, at no cost or liability to AOL,
terminate the Agreement upon written notice to Vendor. Vendor
shall remain obligated to perform its obligations hereunder
notwithstanding the remedies available to AOL under this
Section. 2.3
2.3 CALCULATION OF DELIVERY DATE. Upon delivery of any
Simultaneous Access (but no sooner than such delivery), Vendor
shall provide to AOL notification of such delivery by e-mail
to the Senior Vice President of Global Access Networks, the
Director for AOLnet Capacity Planning, or a designee of
either. For the purposes of this Agreement, delivery of any
Simultaneous Access shall be deemed made upon AOL's receipt of
such e-mail from Vendor. Notwithstanding the deemed delivery
date described in this Section 0, if any Simultaneous Access
delivered during a calendar month does not receive Final
Acceptance prior to the 15th day of the next calendar month,
then such Simultaneous Access shall be deemed not to have been
delivered during the first calendar month but, instead, shall
be deemed to have been delivered in the month in which such
Simultaneous Access does receive Final Acceptance.
3 ACCEPTANCE
3.1 ACCEPTANCE TESTING. AOL shall have a period of no longer than
[**] ([**]) business days after delivery of a Simultaneous
Access or related Service (the "ACCEPTANCE TEST PERIOD")
within which to test such Simultaneous Access or related
Service (which tests may include using the Simultaneous Access
for "live traffic"). AOL may test Simultaneous Access or
related Service by any method AOL deems appropriate in order
to determine whether such Simultaneous Access meet or exceed
any of the Rejection Criteria.
3.2 REJECTION CRITERIA. AOL shall have the option of rejecting a
Simultaneous Access if any one or more of the following
performance thresholds are met or exceeded (such thresholds
collectively the "REJECTION CRITERIA"):
E-2
3.2.1 greater than [**]% of user sessions terminate without
a user-initiated logoff sequence;
3.2.2 greater than [**]% of user calls fail to
connect (data demonstrating compliance with this
criterion shall be provided by Vendor on a daily
basis, and notwithstanding the foregoing, the
Acceptance Test Period shall be extended one business
day for each day that AOL does not receive such data
commencing with a Simultaneous Access activation or
move, as applicable); and
3.2.3 greater than [**]% of user calls which
successfully connect to the Simultaneous Access fail
to connect to the AOL front end.
3.3. REJECTION. If a Simultaneous Access meets or exceeds any of
the Rejection Criteria (each such failure a "NONCONFORMITY"),
AOL shall notify Vendor within the Acceptance Test Period (by
electronic mail), specifying the nature of the failure in
reasonable detail. Vendor shall remove rejected Simultaneous
Access from service pending further troubleshooting and
corrective action. At no additional charge to AOL, Vendor
shall repair, replace or otherwise correct the Nonconformity
(and any other problems of which it has knowledge) as soon as
reasonably practicable after receiving notice from AOL so that
the Simultaneous Accesses do not meet or exceed the Rejection
Criteria. Upon completion of such efforts and Vendor's
re-release of a Simultaneous Access to AOL, AOL shall have an
additional Acceptance Test Period to retest the re-delivered
Simultaneous Access to determine whether any previously
reported Nonconformities have been corrected and if such
Simultaneous Access otherwise then does not meet or exceed any
of the Rejection Criteria. This process shall be repeated as
necessary until all Nonconformities are corrected and such
Simultaneous Access do not meet or exceed the Rejection
Criteria. Notwithstanding the foregoing, if after [**] ([**])
attempts for curing a Nonconformity, Vendor has not delivered
a Simultaneous Access that does not meet or exceed the
applicable Rejection Criteria, then AOL may (a) cancel, in
whole or in part, at no cost or liability to AOL the portion
of the corresponding order that does not conform as of a date
specified in a written notice of cancellation issued by AOL,
and (b) cancel, in whole or in part, at no cost or liability
to AOL the unfilled portion of the corresponding order as of a
date specified in a written notice of cancellation issued by
AOL. AOL shall have no payment obligations to Vendor with
respect to any cancelled portion of an order.
3.4. FINAL ACCEPTANCE. Simultaneous Accesses ordered by AOL shall
be deemed to be accepted (such acceptance the "FINAL
ACCEPTANCE") only upon the earlier of: (i) receipt by Vendor
of written notice by AOL certifying that such Simultaneous
Accesses do not meet or exceed the applicable Rejection
Criteria; or (ii) the expiration of the Acceptance Test Period
for such Simultaneous Accesses without notice of rejection by
AOL. Notwithstanding anything to the contrary herein, Final
Acceptance of Simultaneous Accesses shall only occur in
accordance with the terms of this Section 0.
4. MOVE OF CAPACITY
4.1 In addition to AOL's rights to cancel Simultaneous Accesses
and related Services pursuant to Section 0 of Exhibit F,
Vendor shall de-install Simultaneous Access capacity from one
site and install such capacity at another site no later than
[**] ([**]) days (subject to the Shortest Period) following
AOL's request. If Vendor fails to comply, without limiting any
of AOL's other rights or remedies, AOL may elect to cease
making any further payments with respect to the Simultaneous
Accesses that have not been de-installed and relocated, and,
in such event, Vendor may cancel such Simultaneous Accesses.
Vendor shall not be required to de-install and relocate at
each calendar quarter more than [**] percent ([**]) of the
total Simultaneous Accesses installed at the beginning of such
quarter.
5 ADDITIONAL CAPACITY
5.1 If Vendor is able to provide, or may reasonably obtain,
Services or Simultaneous Accesses in addition to those ordered
by AOL ("ADDITIONAL CAPACITY"), then Vendor shall promptly
notify AOL and, before Vendor uses such Additional Capacity or
offers such Additional Capacity to any of its customers,
Vendor shall offer to provide AOL with such Additional
Capacity at the pricing and other terms of this Agreement, and
(b) and if AOL has not ordered such Additional Capacity within
[**] ([**]) days following Vendor's notice, Vendor may offer
it to other customers. To the extent AOL submits an order for
such Additional Capacity pursuant to this Section and Section
1.2 of this Exhibit E, Vendor shall be obligated to accept
such order.
E-3
6. NEW SERVICES
6.1 If Vendor is able to offer any new services that would permit
AOL to provide services to its customers in a manner similar
to that utilized in conjunction with AOL's use of the
Services, but (a) at a lower overall cost to AOL, or (b) at
the same cost to AOL but with increased or enhanced capacity,
features or functionality relative to the Services (each of
(a) and (b), a "NEW SERVICE"), then (i) Vendor shall promptly
notify AOL and, before Vendor uses such New Service or offers
such New Service to any of its customers, Vendor shall offer
to provide such New Service to AOL at such lower or same cost
to AOL; and (ii) Vendor shall permit AOL to transition all or
a portion of the Services, at AOL's discretion but only to the
extent that Vendor is able to make such New Service available
to AOL, to such New Service at no additional charge and AOL
will reimburse Vendor for Vendor's incremental Out-of-Pocket
Expenses actually incurred as a result of such transition;
provided that such expenses are distributed equitably among
Vendor's customers utilizing such New Service.
7. RESALE RESTRICTIONS
7.1 AOL agrees that it shall not resell a Service purchased from
[**] or a [**] to a customer. For the avoidance of doubt,
AOL's provision of a Service purchased from [**] or a [**] to
a customer, which Service is ancillary to, or bundled with,
some other product or service provided to such customer, shall
not be considered to be reselling such Service.
8. SCOPE OF USE AND PROVISIONING
8.1 Services provided under this Agreement may be utilized for any
lawful purpose, including in connection with any service or
product offering made available by AOL, its Affiliates,
partners or designees, providing access to an AOL information
service, providing the delivery of Internet access, and
providing subscriber-related services to end-users.
8.2 Vendor agrees to provide the Services on a priority
provisioning basis to AOL, its partners, Affiliates and
designees; provided, however, that (i) Services provided to
such entities pursuant to this Agreement shall be deemed to be
Services provided to AOL, (ii) AOL shall remain the single
point-of-contact with Vendor, and (iii) AOL shall remain
obligated to perform and comply with all obligations under the
Agreement including payment obligations with respect to any
Services provided by Vendor to such entities pursuant to this
Agreement.
E-4
EXHIBIT F
PURCHASE COMMITMENT, PRICING AND CANCELING OF SERVICES
1. PURCHASE COMMITMENT
1.1. So long as Vendor is in material compliance with the
Agreement, AOL shall purchase Simultaneous Accesses in
accordance with Exhibit F-1 (such commitment, as may be
reduced pursuant to this Agreement, the "PURCHASE
COMMITMENT"). AOL shall not be obligated to make any purchases
in excess of the Purchase Commitment.
1.2. Any purchases by AOL or its Affiliates of Simultaneous Access
services from Vendor or from any Affiliate of Vendor (as well
as purchases from any entity that becomes an Affiliate of
Vendor after execution of the Agreement that are made after
such entity becomes an Affiliate of Vendor) shall contribute
toward AOL's satisfaction of the Purchase Commitment. If (i)
(a) any entity becomes an Affiliate of Vendor after execution
of this Agreement, (b) all or substantially all of the assets
of any entity are acquired by or transferred to Vendor, (c)
all or substantially all of the assets of Vendor are acquired
by or transferred to any entity or (d) Vendor is merged with
or into any entity, and (ii) from such entity, or an Affiliate
of such entity, AOL has, at the time of such applicable event,
an obligation to purchase new or to continue paying for
existing, Simultaneous Access services (any such entity an
"AOL PROVIDER"), AOL may elect to terminate its purchase
obligations under either this Agreement or the Other
Provider's agreement, at AOL's choice, and may thereafter
elect to purchase Simultaneous Access services from Vendor
and/or the Other Provider, at AOL's choice, at the pricing
applicable under this Agreement. Any such termination and
purchase of Simultaneous Access services at such prices shall
be effective as of the date of such AOL notice (but in no
event sooner than the date of the applicable event set forth
in subsection (a), (b), (c) or (d) of this Section). In the
event AOL provides Vendor with such notice, Vendor shall take
all actions as are necessary to give effect to such
termination and such purchase of Simultaneous Access services
at the prices set forth in this Agreement.
2. PRICING
2.1. RECURRING CHARGE. Subject to adjustment pursuant to this
Agreement, the charge per calendar month for each Simultaneous
Access and related Services purchased by AOL in the Initial
Service Area shall be the applicable price set forth in the
table below:
F-1
----------------------------------------------- --------------------------------------------------
PRICE/SIMULTANEOUS ACCESS/MONTH
CUMULATIVE SIMULTANEOUS (R$)(2)
ACCESSES
IN A CALENDAR MONTH(1)
----------------------------------------------- --------------------------------------------------
[**] [**]
----------------------------------------------- --------------------------------------------------
----------------------------------------------- --------------------------------------------------
[**] [**]
----------------------------------------------- --------------------------------------------------
----------------------------------------------- --------------------------------------------------
[**] [**]
----------------------------------------------- --------------------------------------------------
----------------------------------------------- --------------------------------------------------
[**] [**]
----------------------------------------------- --------------------------------------------------
----------------------------------------------- --------------------------------------------------
[**] [**]
----------------------------------------------- --------------------------------------------------
----------------------------------------------- --------------------------------------------------
[**] [**]
----------------------------------------------- --------------------------------------------------
----------------------------------------------- --------------------------------------------------
[**] [**]
----------------------------------------------- --------------------------------------------------
----------------------------------------------- --------------------------------------------------
[**] [**]
----------------------------------------------- --------------------------------------------------
----------------------------------------------- --------------------------------------------------
[**] [**]
----------------------------------------------- --------------------------------------------------
--------------------------------------------------------------------------------------------------
(1) Until such time that the number of Finally Accepted Simultaneous Accesses exceeds [**]
([**]), the number of Cumulative Simultaneous Accesses for a given calendar month shall equal
the sum of (a) the number of Finally Accepted Simultaneous Accesses in such month, and (b) the
Peak Simultaneous Additional Port Usage for such month; provided that if Vendor's calculation
of Peak Simultaneous Additional Port Usage is greater than zero for any month, AOL shall have
the right to perform its own calculation of the Peak Simultaneous Additional Port Usage. If
AOL's calculation of the Peak Simultaneous Additional Port Usage is more than [**] percent ([**]%)
lower than Vendor's calculation, the Parties shall enter into discussions to determine the
appropriate calculation for such month. After the number of Finally Accepted Simultaneous
Accesses equals or exceeds [**] ([**]), the number of Cumulative Simultaneous
Accesses for a given calendar month shall equal the number of Finally Accepted Simultaneous
Accesses for such calendar month. Charges for Finally Accepted Simultaneous Accesses which
receive Final Acceptance during such calendar month shall be pro-rated based upon thirty and
forty-four hundredths (30.44) days for each calendar month.
--------------------------------------------------------------------------------------------------
(2) For the avoidance of doubt, once the number of Cumulative Simultaneous Accesses exceeds a
particular threshold in a calendar month, the relevant Simultaneous Access price corresponding
to that threshold applies (a) to all Simultaneous Accesses, not just the excess number of
Simultaneous Accesses above that threshold, and (b) for all Simultaneous Accesses for such
month.
--------------------------------------------------------------------------------------------------
2.2. NON-RECURRING CHARGE. In addition to the recurring charge
described in Section 0, AOL shall pay Vendor a one-time
installation charge equal to R$[**] for each Simultaneous
Access ordered and accepted by AOL in accordance with this
Agreement (such fee for any Simultaneous Access the "
Simultaneous Access INSTALL FEE"). For the purposes of (a)
comparing pricing under Section 3 of this Exhibit F, and (b)
adjusting the Market Price pursuant to this Section to the
pricing offered by, or committed by AOL to, an Other Provider
for comparable dedicated dial-up access services, an amortized
portion of the Simultaneous Access Install Fee (based upon
amortization over a forty-eight month period) shall be
included in such comparison or adjustment, as appropriate.
2.3. EXCLUDED CHARGES. Vendor will not charge AOL for any
Simultaneous Access that is used for signaling purposes. For
any Simultaneous Access to which calls are blocked, Vendor
will not charge AOL for such blocked Simultaneous Access
beginning on the following day and continuing until the
Simultaneous Access is no longer blocked. AOL will make daily
test phone calls, at its discretion, to the Simultaneous
Accesses provided to it by Vendor as part of the Services. If
such test phone calls show that a certain number of
Simultaneous Accesses were not available for use, even though
Vendor's reports showed that they were available, then those
Simultaneous Accesses shall be deemed blocked Simultaneous
Accesses. Upon discovering a blocked Simultaneous Access, AOL
shall raise a trouble ticket according to agreed procedures.
Vendor will not charge Customer for such blocked Simultaneous
Access from the beginning of the day following the day on
which AOL discovered it was blocked, until the port is no
longer blocked.
F-2
3. MOST FAVORED CUSTOMER
3.1 Neither Vendor nor TData-Controlled Affiliates will offer or
provide services comparable to the Services provided hereunder
("COMPARABLE SERVICES") to any customer, (a) [**] that are
[**] than those charged to AOL, or (b) pursuant to any terms
and conditions that are more favorable to such customer than
AOL's terms and conditions (each of (a) or (b), "MORE
FAVORABLE TERMS"). If Vendor or any TData-Controlled Affiliate
offers or provides Comparable Services on More Favorable Terms
to any customer, [**] to [**] to [**] on the [**] and [**] and
[**] to [**]. If Vendor or any TData-Controlled Affiliate
offers or provides Services to a customer that do NOT
constitute "comparable services" (any such services
"NON-COMPARABLE SERVICES"), then within [**] ([**]) days
following such offer or provision of such services, [**] to
[**] to [**] at the [**] to, and upon the [**] and [**] [**]
to, [**]. If applicable law or regulation changes such that
this most favored customer provision requires Vendor to act in
a manner that is not permitted under such changed law or
regulation, then this provision shall be deemed to be restated
to reflect as nearly as possible the original intentions of
the parties in accordance with applicable law and regulation.
Upon the request of AOL (which requests shall not be made more
frequently than [**]), Vendor's Chief Financial Officer will
certify in writing whether Vendor has satisfied its
obligations under this section. If, with respect to
Non-Comparable Services, AOL's service requirements would
necessitate changes to such terms and conditions, then the
Parties shall work in good faith to adjust such terms and
conditions as mutually agreed to satisfy such requirements. To
the extent that AOL accepts such offer from Vendor, any such
dial-up access services shall be deemed to be Services to
which this Agreement applies, and AOL may replace any
then-unfulfilled portion of the Purchase Commitment with an
equivalent commitment to order such services.
3.2 the event that Vendor violates an obligation described in
Subsection 3.1 of this Section, then, in addition to any other
rights or remedies available to AOL, pricing under this
Agreement shall be adjusted such that they are equal to or
less than corresponding prices offered to any other customer
(a) on a going-forward basis for all future applicable
purchases under this Agreement, and (b) retroactively to all
applicable purchases previously made back to the date such
prices were first offered to such other customer, and the
resulting adjustment in charges shall be provided to AOL, at
AOL's option, as either a credit for future purchases or in
the form of a lump-sum payment.
4 MARKET PRICE
4.1 From time to time, but no more frequently than once every [**]
months, AOL will be entitled to notify Vendor of a required
adjustment to pricing for the services provided hereunder in
order to reflect changes in the relevant Market Price in the
service area to which this agreement applies. "MARKET PRICE"
means, in each Service Area, the lower of (a) the [**] offered
to AOL by a vendor of Comparable Services, and (b) the direct
cost to AOL of provisioning such Comparable Services, [**];
provided, however, that if the [**] by a vendor of Comparable
Services under subpart (a) of this sentence is (i) a price
that is [**] for providing such Comparable Services, (ii) a
loss leader offer which is below such vendor's actual costs
for providing such Comparable Services, or (iii) [**] which is
intended to create a barrier for Vendor to enter the market
and is below such vendor's actual costs for providing such
Comparable Services, then such [**] shall not be deemed a
valid Market Price. Vendor will be entitled to confirm the
validity of a proposed new Market Price within the [**] ([**])
day period following AOL's notice of the new Market Price
pursuant to reasonable mutually agreed audit procedures;
provided that the third party auditor appointed by Vendor
shall be entitled to appoint an industry expert to assist it
in determining the validity of a proposed new Market Price. If
AOL notifies Vendor of a lower Market Price in any Service
Area, then Vendor may, within [**] ([**]) days after AOL's
notice of the new Market Price, provide AOL with written
notice of its rejection of the new Market Price, in which case
AOL may, by providing notice to Vendor and notwithstanding
anything to the contrary in this Agreement, immediately cancel
any or all services provided by Vendor without penalty or
liability. If Vendor does not provide AOL with notice within
such [**] ([**]) day period rejecting
F-3
the new Market Price, then AOL's pricing will automatically be
reduced, effective [**] ([**]) days after AOL's notice, to the
new Market Price for all existing Services and for all
Services purchased thereafter in such Service Area. Vendor's
exercise of its right to reject a new Market Price under this
Section shall not be deemed a breach of this Agreement. Vendor
shall not unreasonably dispute the validity of a new Market
Price. In addition, in connection with a valid Market Price
request that Vendor did not reject within such [**] ([**]) day
period, Vendor will meet the available bandwidth per Port
offered by the Market Price provider to AOL within [**] ([**])
days after AOL's notification for incremental ports and within
[**] ([**]) days after AOL's notification for then-existing
Ports.
5 NORMALIZATION
5.1 The pricing adjustments set forth in Sections 3 and 4 of this
Exhibit F may require comparison between pricing methodologies
for dial-up access (e.g., between hourly and monthly pricing).
In order to normalize differing pricing methods for such
comparison, the then-current Average Daily Simultaneous Access
Usage multiplied by 30.44 (number of days in a month) will be
deemed equivalent to one (1) port provided for any month under
the Agreement. "AVERAGE DAILY SIMULTANEOUS ACCESS USAGE" will
mean the average number of hours of usage per port per day
measured over the twelve-month period ending on the
immediately preceding September 30.
6 CANCELLATION OF SERVICES
6.1 At any time during the Term, AOL may cancel any installed
Simultaneous Access and related Services upon [**] ([**])
days' prior written notice to Vendor, provided that such
Simultaneous Access has been installed for at least [**]. In
any month beginning with the 18th month and ending with the
[**] month of the Term of this Agreement (such month, the
"CANCELLATION MONTH"), AOL may not cancel more Simultaneous
Accesses than the amount of Simultaneous Accesses [**] as of
the first day of such Cancellation Month, [**] of [**] between
(and including) the [**] and the 36th month of the Term of
this Agreement. Notwithstanding the foregoing, AOL may cancel
any or all installed Simultaneous Accesses and related
Services beginning on the date which is [**] ([**]) years
after the first day of the Term of this Agreement.
F-4
EXHIBIT F-1
PURCHASE COMMITMENT
AOL shall order Simultaneous Accesses and related Services in accordance with
Section 0 of Exhibit E so that the number of Finally Accepted Simultaneous
Accesses at the end of a calendar month is no less than the corresponding number
set forth in the table below:
--------------------------- ----------------------------------------------------
-------------------------- CUMULATIVE NUMBER OF FINALLY ACCEPTED SIMULTANEOUS
CALENDAR MONTH ACCESSES(1)
--------------------------- ----------------------------------------------------
--------------------------- ----------------------------------------------------
1 [**]
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2 [**]
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3 [**]
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4 [**]
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5 [**]
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6 [**]
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7 [**]
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8 [**]
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9 [**]
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10 [**]
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11 [**]
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12 [**]
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13 [**]
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14 [**]
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15 [**]
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16 [**]
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17 [**]
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18 [**]
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19 [**]
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20 [**]
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21 [**]
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22 [**]
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23 [**]
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24 [**]
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25 [**]
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26 [**]
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27 [**]
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28 [**]
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29 [**]
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30 [**]
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31 [**]
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32 [**]
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33 [**]
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34 [**]
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35 [**]
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36 [**]
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(1) In the event the Purchase Commitment is reduced pursuant to this
Agreement, each monthly commitment set forth in this column shall be
reduced by the amount of such reduction.
F-1
