Exhibit 10.12
TSA# 006
CITY UTILITIES
TELECOMMUNICATIONS SERVICE AGREEMENT
This Telecommunications Service Agreement ("TSA"), Service Description
("SD") and Service Level Agreement ("SLA"), (collectively referred to as the
"Agreement") between CITY UTILITIES OF SPRINGFIELD, MISSOURI, a municipal
utility with its office located at 000 Xxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000
("City Utilities") and XXXXXXXXX.XXX INC. with its principal offices located at
000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000 ("TravelNow"),
shall be effective as of the Start Date set forth in the SD.
PROVISIONS
1. PROVISION OF SERVICES. City Utilities shall provide telecommunication
services to TravelNow in accordance with the Agreement. City Utilities shall
install, maintain and operate facilities capable of providing the capacity, as
described in the SD and SLA, to transmit telecommunications signals between
points specified in the SD.
2. SERVICE DESCRIPTIONS. TravelNow by submission of this Agreement to City
Utilities does request the telecommunications services herein set forth. If City
Utilities agrees to provide the requested services, City Utilities shall sign
the SD and the SLA. City Utilities is under no obligation whatsoever to accept
any SD or SLA submitted by TravelNow; and City Utilities may, in its discretion,
reject any such SD or SLA.
3. EFFECTIVE DATE. This Agreement shall be effective between the parties as
of the Start Date set forth in the SD.
4. SERVICE PERIOD. City Utilities shall provide the telecommunications
services beginning on the Start Date and ending on the Expiration Date as stated
in the applicable SD.
5. TRAVELNOW RESPONSIBILITIES. TravelNow has sole responsibility for
installation, testing, and operation of TravelNow provided equipment other than
that specifically provided by City Utilities as set out in this Agreement or as
otherwise provided in the SD and/or the SLA. In no event will the untimely
installation or non- operation of TravelNow premises equipment relieve TravelNow
of its obligation to pay charges for services as of the Start Date.
6. TRAVELNOW INTERCONNECTIONS. City Utilities and TravelNow will agree on
the technical requirements for the requested services so that City Utilities can
provide the necessary facilities. City Utilities shall provide the interface
equipment and facilities, including cable splicing, if necessary. TravelNow
shall provide City Utilities with access to TravelNow's premises so that City
Utilities can make interconnections and maintain its facilities. Access will be
given at mutually agreeable times.
7. PAYMENT. Payment for all monthly charges shall be paid in arrears as
described in the attached SD. Payment for non-recurring service charges, if any,
shall be due on execution of the SD.
8. TAXES. Charges are exclusive of sales, use, privilege, excise, value
added and similar taxes, if any, arising as a result of any telecommunication
services provided to TravelNow by City Utilities which are lawfully assessed
directly against TravelNow by any taxing authority.
9. DEFAULT. If TravelNow fails to make any payment when due, City Utilities
may give TravelNow thirty (30) days notice of termination of this Agreement. If
TravelNow fails to cure such default within the thirty (30) day period, then
this Agreement shall terminate without further notice.
10. FORCE MAJEURE. If performance of this Agreement by either party or any
obligation hereunder (other than the payment of money) is prevented, restricted
or interfered with by causes beyond its reasonable control including, but not
limited to, acts of God, fire, explosion, vandalism, cable cut, storm or other
similar occurrence, any law, order, regulation, direction, action or request of
the United States government or state or local governments, or of any federal,
state or local department, agency, commission, court, bureau, corporation or
other government instrumentality, or of any civil or military authority, or by
national emergencies, insurrections, riots, wars, strikes, lockouts or work
stoppages or other labor difficulties, supplier failures or shortages, then such
party shall be excused from such performance on a day-to-day basis to the extent
of such prevention, restriction or interference. The party claiming force
majeure shall notify the other party and shall use reasonable efforts under the
circumstances to avoid or remove such force majeure. If the force majeure lasts
for more than thirty (30) days, either party may terminate this Agreement on
written notice.
11. NATURE OF AGREEMENT. This Agreement is in the nature of a license for
the capacity of service periods indicated in the SD. City Utilities shall at all
times retain ownership of its facilities subject only to TravelNow's rights to
utilize the capacity provided for in this Agreement. This Agreement does not
constitute an assignment or transfer by City Utilities to TravelNow of any
severable or identifiable component of the fiber optic cables or associated
equipment over which capacity will be provided. City Utilities reserves the
right, in its sole discretion, to apportion or reapportion the use of circuits
on its fiber optic network between and among its customers, including TravelNow,
subject only to its obligations to provide the services specified.
12. SERVICE WARRANTY. Service warranty shall be addressed individually
within the SLA.
13. NOTICES. Notices shall be in writing and mailed or delivered to the
following persons at the addresses listed below:
CITY UTILITIES: TravelNow:
Xxxx Xxxxxx Xxxxx Xxxx, CIO
Director-Telecommunications XxxxxxXxx.xxx Inc.
000 X. Xxxxxxx 000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
14. USE OF FACILITIES. City Utilities will provide the services over its
facilities and electronics to TravelNow upon the condition that such facilities
shall not be used for any unlawful purpose.
15. ASSIGNMENT. City Utilities reserves the right to assign all of its
rights, duties and obligations under this Agreement to an affiliate of City
Utilities at any time during the term of this Agreement, including any
extensions, without liability to TravelNow and without causing cancellation of
the Agreement. City Utilities shall notify TravelNow in writing of any such
assignment forty-five (45) days prior to the date of the assignment.
16. ENTIRE AGREEMENT. The contract consists of this Agreement and any
applicable SD and SLA. The Agreement can only be modified in writing signed by
the parties. In the event any provision of this Agreement conflicts with any
applicable law, regulation, tariff filed by City Utilities or order of any
regulatory body with jurisdiction, then such law, regulation, tariff or order
shall prevail.
17. GENERAL PROVISIONS.
A. The failure of either party to insist on or enforce, in any
instance, strict performance by the other of any of the terms of this
Agreement or to exercise any rights herein conferred shall not be construed
as a waiver or relinquishment of its right to assert or rely upon any such
terms or right on any future occasion.
B. City Utilities shall perform this Agreement as an independent
contractor and neither party shall be the agent, partner, or joint venturer
of the other.
C. TravelNow shall not assign this Agreement without the prior written
consent of City Utilities, which will not be unreasonably withheld. This
Agreement shall be binding upon and inure to the benefit of the successors
and assigns of the parties.
D. This Agreement shall be governed by the laws of the state of
Missouri and the venue for any action arising out of this Agreement shall
be Xxxxxx County, Missouri.
E. If any provision of this Agreement is invalid or unenforceable,
then the remainder of this Agreement shall not be affected by such
invalidation or unenforceability.
F. Provisions contained in this Agreement that by their sense and
context are intended to survive the performance of this Agreement shall so
survive the completion of performance and termination of this Agreement
including, without limitation, provisions for indemnification and the
making of any and all payments due under the terms of this Agreement.
G. This contract is not exclusive and the parties may contract with
others for similar services.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day of
September, 1999.
CITY UTILITIES OF SPRINGFIELD, XXXXXXXXX.XXX INC.
MISSOURI
By:________________________ By:_________________________________
General Manager Xxxx Xxxxxx, President
Date: _____________________ Date: _______________________
TSA # 006
SERVICE DESCRIPTION
City Utilities agrees to provide and TravelNow agrees to pay for the
services described below subject to the terms and conditions contained in City
Utilities Telecommunications Service Agreement with TravelNow, identified by TSA
#006 as more fully described and modified by this Service Description and the
Service Level Agreement. This Service Description shall not be effective until
signed by City Utilities.
Facilities Type/Ckt. Originating Point Terminating Point Start Date Expiration Date
--------------------- -------------------- ----------------- --------------- ---------------
NetLink - 10 Mbps XxXxxxxx Bldg. City Utilities October 1, 1999 Sept. 30, 2001
Burstable (XxxxxxXxx.xxx Inc.) General Office
--------------------- -------------------- ----------------- --------------- ---------------
Monthly Recurring Service Charges: - See Other Remarks section for detailed
explanation of monthly variable charges. Payment due ten (10) days after mailing
by City Utilities to TravelNow.
Installation Charge: - Waived. Two year contract.
Originating Point: Terminating Point:
------------------ ------------------
City: Springfield City: Springfield
-------------- --------------------- -------------- ---------------
Address: 000 Xxxx Xxxxxxx Xxxx Address: 000 X. Xxxxxxx
-------------- --------------------- -------------- ---------------
Bldg.: XxXxxxxx, Suite 306 Bldg.: General Office
-------------- --------------------- -------------- ---------------
Contact Name: Xxxxx Xxxx Contact Name: Xxxx Xxxxxx
-------------- --------------------- -------------- ---------------
Contact Phone: 000.000.0000 Contact Phone: 000.000.0000
-------------- --------------------- -------------- ---------------
Other Remarks:
TravelNow shall pay $_____ per Mbps per ASR per month, rounded to the
nearest dollar. The minimum Monthly Recurring Service Charge shall be ____
__________________________ This minimum charge assures a transfer rate of two
(2) megabits per second Average Sustained Rate (ASR) per month. The maximum
Monthly Recurring Service Charge is _________________________________ for ten
(10) megabit per second ASR usage. ASR is determined by the following method:
City Utilities continuously collects 5 minute averaged samples of
TravelNow's traffic during the calendar month. Utilizing the industry
standard "95th Percentile" model, the top 5 percent of these samples are
overlooked, i.e. not used in the calculation. The remaining highest sample
establishes the Average Sustained Rate (ASR).
If during the term of this Agreement additional NetLink 10 Mbps burstable
services are requested by TravelNow at the present location, above the current
NetLink 10 Mbps Burstable service specified in this SD, City Utilities will
provide the additional Net Link 10 Mbps Burstable services at the current
contract minimum monthly _________________________ and burstable rate of _____
_____________________________ per megabit per second per ASR per month within
twenty-four (24) business hours.
TravelNow acknowledges City Utilities' window for maintenance relative to
these services as being any Sunday between the hours of 3 a.m. and 6 a.m.
Notification by City Utilities will be given 3 business days prior to any
scheduled maintenance work.
IN WITNESS WHEREOF, the parties have executed this Service Description on
the day of September, 1999.
CITY UTILITIES OF SPRINGFIELD, XXXXXXXXX.XXX INC.
MISSOURI
By:_____________________________ By:_______________________________
Director - Telecommunications Xxxx Xxxxxx, President
Date: _____________________ Date: _______________________
TSA # 006
CITY UTILITIES OF SPRINGFIELD / TRAVELNOW
SERVICE LEVEL AGREEMENT
City Utilities warrants that it shall provide telecommunication services
and connectivity to TravelNow in accordance with the following provisions for
service and support:
City Utilities does not guarantee uninterrupted service but shall use its
best efforts to restore service whenever there is interruption. City Utilities
shall give notice to TravelNow within one (1) hour of any loss of connectivity
or service between TravelNow and the Internet. This notification shall include;
(a) actions City Utilities is taking to remedy the problem and (b) a possible
time frame when service and/or connectivity will be restored. In the unlikely
event that service is disrupted, the Monthly Recurring Service Charge shall be
reduced proportionally based on the time that the service is interrupted
beginning at the time TravelNow notifies City Utilities that the service is
interrupted and ending at the time the service is restored. The following are
examples of how the Monthly Recurring Service Charge would be reduced:
Example 1 - Thirty day month (720 hours), service disruption lasts 1 hour.
The ASR for that month is 2.5 Mbps and that month's charge would have been
______ (2.5 Mbps X _______). Due the 1 hour interruption, that month's
charge is ______ (2.5 Mbps X (719 hours/720 hours) X ______.)
Example 2 - Thirty day month (720 hours), service disruption lasts 1 hour.
The ASR for that month is 1.5 Mbps and that month's charge would have been
______ (2 Mbps X ______). Due the 1 hour interruption, that month's charge
is ______ (2 Mbps X (719 hours/720 hours) X ______.)
If City Utilities fails to restore connectivity and /or service within
twenty-four (24) hours following a complete service outage, TravelNow may
terminate this Agreement with written notice up to 5 days after the occurrence.
This remedy shall not apply to the extent the interruption in service is caused
by City Utilities' backbone Internet provider and or TravelNow, its agents or
employees.
Under no circumstances shall City Utilities be liable for any indirect,
consequential, or special damages or for any lost profits of any kind or nature
whatsoever. The foregoing warranty and remedies are exclusive and in lieu of any
other warranties or remedies, whether express, implied or statutory.
IN WITNESS WHEREOF, the parties have executed this Service Level Agreement
on the day of September, 1999.
CITY UTILITIES OF SPRINGFIELD, XXXXXXXXX.XXX INC.
MISSOURI
By:_________________________________ By:_________________________________
Director - Telecommunications Xxxx Xxxxxx, President
Date: _____________________ Date: _______________________
