MASTER SERVICE AGREEMENT
THIS MASTER SERVICE AGREEMENT (this "Agreement") is entered into as of the
14th day of October, 1996 (the "Effective Date") between ADVANCED RADIO TELECOM
CORP., a Delaware corporation with its principal place of business at 000-000xx
Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000 ("ART"), and NEXTLINK
COMMUNICATIONS LLC, a Washington limited liability company ("Purchaser"), with
its principal place of business at 000 000xx Xxxxxx X.X., 0xx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000.
RECITALS:
WHEREAS, ART provides broadband wireless local telecommunications services
in certain geographic areas throughout the United States, and its primary
service offering uses 38 GHz millimetric facilities;
WHEREAS, Purchaser desires to use the services provided by ART; and
WHEREAS, ART and Purchaser desire to enter into an agreement providing for
the furnishing of broadband wireless services by ART.
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants and agreements hereinafter set forth, ART
and Purchaser, intending to be legally bound, agree as follows:
1. Definitions
Definitions are contained in Attachment A.
2. Term of Agreement
The term of this Agreement shall begin on the Effective Date and shall continue
in effect for three (3) year(s) thereafter. The Agreement shall renew for
successive periods of one (1) year unless one of the parties gives written
notice not to renew no later than sixty (60) days prior to the scheduled date of
expiration of the initial period or any subsequent renewal period.
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3. Scope of Agreement
ART shall provide to Purchaser domestic interstate and intrastate Services
pursuant to this Agreement and, where applicable, to ART's tariffs ("Tariffs")
governing certain of the Services on file with the Federal Communications
Commission ("FCC") and various state regulatory commissions. This Agreement
incorporates the relevant Tariff provisions as they may be amended from time to
time in accordance with law. The Tariffs shall control the furnishing of service
under this Agreement in the event of any conflict between this Agreement and the
Tariffs but only to the extent that the Tariffs are required to control by
operation of law. Capitalized terms not otherwise defined in this Agreement
shall have the meanings assigned to them in the Tariffs.
4. Services Provided By Art
4.1 38 GHz Transmission Services
Subject to Section 10.3.2, ART shall provide transmission services over
authorized 38 GHz facilities in authorized areas, which services (the
"Services") shall consist of the Equipment, as defined below, and all aspects of
path engineering, spectrum usage, spectrum assignment, spectrum management,
frequency coordination, and network monitoring (collectively, "Spectrum
Services"). Purchaser may select either ART's Standard Service Option under
which ART shall own the Equipment or ART's Facilities Ownership Option under
which Purchaser shall own the Equipment. Purchaser may select the Facilities
Ownership Option only when Purchaser is required under existing contract with
Purchaser's Customer to own the Facilities. Additional services may be added,
from time to time, by amendment to this Agreement in the form of the Service
Order, the current version of which is attached hereto as Attachment B. Payment
by Purchaser for the Services shall be in accordance with Section 11.
4.2 Equipment
4.2.1 Equipment Supplied. In connection with the provision of Services
under this Agreement, it will be necessary for ART to install certain equipment
on the premises of Purchaser and/or other locations controlled by third parties
and related to the provision of the Services (collectively "Sites"). Equipment
to be installed on each Link includes Outdoor Units ("ODU's"), Indoor Units
("IDU's"), monitoring equipment, power supplies, associated hardware and
cabling, and other materials necessary to complete the installation process (the
"Equipment"). The Equipment for ART's Standard Service Option and ART's
Facilities Ownership Option are specified on Attachment D-1 and D-2,
respectively.
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4.2.2 Title and Interest.
(A) Standard Service Option. Under ART's Standard Service Option,
Purchaser acknowledges and agrees that the Equipment is, and at all times shall
remain, the property of ART, and that Purchaser shall have no right, title or
interest in or to the Equipment. The Equipment is, and at all times shall
remain, personal property notwithstanding that it may now be or hereafter become
in any manner embedded in, affixed or attached to real property or any building
thereon. Purchaser covenants and agrees to keep the Equipment free and clear of
all liens, charges, security interests and encumbrances (except any placed
thereon by or with the written consent of ART).
(B) Facilities Ownership Option. Under ART's Facilities Ownership
Option, ART shall transfer title to the Equipment specified in Attachment D-2 to
Purchaser concurrently with the delivery of a Completion Notice pursuant to a
xxxx of sale and such other documents as are reasonably necessary to accomplish
such transfer. In connection with the transfer of title to such Equipment, ART
shall assign to Purchaser, to the extent reasonably possible, any rights of ART
to manufacturer's warranties relating to the Equipment.
4.2.3 Risk of Loss.
(A) Standard Service Option. Under ART's Standard Service Option,
Purchaser shall take all appropriate measures to secure the Equipment on
premises it owns or controls from loss, destruction or damage, including but not
limited to: physical security, including, without limitation, barriers, limited
and locked access, posted warnings and training of those with access; electronic
security including without limit periodic audits of its telecommunications
systems and passwords; environmental controls; and suitable power supplies.
Purchaser shall bear the entire risk of loss, theft, destruction or damage of
the Equipment on premises it owns or controls or any portion of it from any
cause whatsoever (other than as caused by ART, its employees and agents). The
total or partial destruction of any Equipment or the total or partial loss of
use or possession by Purchaser shall not release or relieve Purchaser from the
duty to pay the charges provided herein.
(B) Facilities Ownership Option. Under ART's Facilities Ownership
Option, Purchaser, from and after the date of ART's delivery of a Completion
Notice, shall bear the entire risk of loss, theft, destruction or damage of the
Equipment or any portion of it from any cause whatsoever for the Equipment
covered by such Notice. The total or partial destruction of any Equipment or the
total or partial loss of use or possession by Purchaser shall not release or
relieve Purchaser from the duty to pay the charges provided herein. Purchaser
hereby agrees that as of the delivery of a Completion Notice, Purchaser assumes
all risks and liabilities arising from
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ownership of the Equipment, including without limitation, Equipment malfunctions
and injury to persons and property. Purchaser, its successors and assigns hereby
unconditionally release ART, ART's successors, assigns and their directors,
officers, shareholders, employees, agents, subcontractors, and affiliates
(collectively "ART Parties") from any and all claims, judgments, demands,
damages, obligations, lawsuits, causes of action, losses, liabilities (including
strict liability), costs or expenses, matured or unmatured, foreseeable or
unforeseeable, including without limitation, reasonable attorneys' fees and
costs (collectively, "Claims") arising from the Equipment from and after ART's
delivery of a Completion Notice. Purchaser, its successors and assigns agree to
indemnify, defend and reimburse and hold harmless ART Parties from and against
any and all Claims directly and indirectly arising from the Equipment from and
after ART's delivery of the Completion Notice.
4.2.4 Equipment Alterations. Under ART's Standard Service Option,
Purchaser acknowledges that notwithstanding the Equipment listed on Attachment
D-1 ART shall have complete discretion to furnish the Services using any
equipment it chooses, so long as the Services are designed to satisfy the
Performance Expectations. ART shall use reasonable efforts to notify Purchaser
of any changes in Equipment that appear likely to materially affect Purchaser's
equipment or services prior to making any such changes.
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5. Service Ordering Procedures
5.1 Service Order Processing
In order to initiate the processing of an order for the Services, Purchaser
shall submit to ART a Customer Service Request and written statement selecting
ART's Standard Service Option or Facilities Ownership Option. ART shall examine
the Customer Service Request for completeness and may return the Customer
Service Request to Purchaser for additional information. Purchaser shall
exercise reasonable efforts to complete and return the Customer Service Request
to ART within three (3) business days of receipt. Purchaser and ART shall
execute a Service Order, which shall become an integral part of this Agreement.
ART may elect to conduct a detailed site survey and shall deliver to Purchaser a
Firm Order Confirmation, including a mutually agreeable target schedule ("Target
Service Date"). ART shall exercise reasonable efforts to complete the detailed
site survey and the Firm Order Confirmation within ten (10) business days of
receipt of the completed Customer Service Request. The Target Service Date shall
be set forth in the Firm Order Confirmation, and may be amended from time to
time by mutually agreed upon amendments to the Firm Order Confirmation.
5.2 Service Order Modification or Cancellation
5.2.1 Standard Service Option. Under ART's Standard Service Option,
Purchaser may modify or cancel its Service Order at any time prior to the
Service Commencement Date, as hereinafter defined, provided that Purchaser shall
be responsible for all internal costs incurred by ART including, without
limitation, performance of additional Detailed Site Surveys, and for all direct
charges incurred to the date of cancellation that are payable to third parties.
The charges set forth in this Section 5.2 are subject to Section 5.3.
Cancellations and modifications by Purchaser will not be accepted unless
confirmed in writing by Purchaser and signed by an authorized representative of
Purchaser.
5.2.2 Facilities Ownership Option. Under ART's Facilities Ownership
Option, Purchaser may only modify its Service Order with respect to the location
of the Equipment and at any time prior to the Service Commencement Date, as
hereinafter defined, provided that Purchaser shall be responsible for all
internal costs incurred by ART, including, without limitation, performance of
additional Detailed Site Surveys, for direct costs incurred to the date of
cancellation that are payable to third parties and for recurring and
non-recurring charges relating to Site access at the new location. The charges
set forth in this Section 5.2 are subject to Section 5.3. Such modifications by
Purchaser will not be accepted unless confirmed in writing by Purchaser and
signed by an authorized representative of Purchaser.
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5.3 Timing
ART shall exercise reasonable efforts to install the Equipment and commence
delivering the Spectrum Services by the Target Service Date but only in
situations where arrangements to obtain access to and use of the Site have been
completed prior to execution of the Service Order. ART's Field Services
Department or subcontractors, at ART's sole option, shall perform all
installations in connection with this Agreement. The parties hereby acknowledge
that for Sites where Purchaser has obtained access to and use of the Site prior
to execution of the Service Order, time is of the essence with regard to this
Section 5; provided however, that notwithstanding the provisions of Section 5.2,
Purchaser, as its sole remedy for ART's failure to commence Spectrum Services by
the Target Service Date, may cancel a Service Order without incurring any
charges, following Notice to ART and ten (10) additional days to complete
installation.
5.4 Commencement of Service
The Spectrum Services shall commence and Purchaser shall be responsible for
Spectrum Services charges on the date that (i) ART installs the Equipment,
performs any testing ART deems necessary, and Notifies Purchaser (the
"Completion Notice") that ART is ready to commence the Spectrum Services, or
(ii) a later date mutually agreed upon in writing by ART and Purchaser (the
"Service Commencement Date").
5.5 Minimum Period of Service
The minimum period for the Services to be provided to Purchaser shall be one
year from the Service Commencement Date for each Link ordered by Purchaser and
installed by ART. Purchaser shall have the option to request ART to redeploy the
Link to any geographic area chosen by Purchaser for which ART holds a license as
a 38 GHz provider, provided: (i) Purchaser pays all costs to ART, including,
without limitation, a reasonable allocation of overhead, as determined by ART,
and all charges to third parties associated with deinstallation and
reinstallation of the Equipment at the new Link location ("Redeployment"); (ii)
the location chosen is completely suitable, in ART's sole discretion, for the
provision of the Services under the terms of this Agreement; (iii) Redeployment
at the location chosen does not interfere, as determined by ART, with existing
or planned services by ART or third parties, and (iv) that under the Facilities
Ownership Option, the Equipment is suitable, in ART's sole discretion, for the
provision of services at the new location.
6. Related Support Services Provided by ART
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ART shall supply certain services set forth in this Section 6 in support of the
Services (the "Related Support Services").
6.1 Site Surveys
Detailed Site Surveys (the "Detailed Site Surveys") shall be conducted by ART's
Field Services Department, ART's subcontractors, or, if mutually agreed,
Purchaser. The primary purpose of the Detailed Site Survey is to obtain
engineering information to validate the feasibility of using 38 GHz millimetric
wave circuits and the suitability of the Site and to identify in advance the
optimal installation methods to be used and the obstruction obstacles to be
overcome.
6.2 Frequency Coordination
It is necessary to "coordinate" the frequencies to be used on the paths to be
activated with other potentially interfering frequencies used either by ART or
by third parties, and engineer the path layouts, in order to optimize path
performance. ART's Engineering Department shall be responsible for all Spectrum
Services. In addition, ART shall maintain, or cause to be maintained, databases
and systems to support coordination with other 38 GHz service providers.
Frequency coordination information and engineering databases shall remain the
property of ART and shall be considered Confidential Information by Purchaser
and subject to the provisions of Section 16.
6.3 Maintenance and Restoral
6.3.1 Outage Restoral. Except as agreed otherwise, ART shall set goals
of, and exercise reasonable efforts to achieve: dispatch of field service
personnel within thirty (30) minutes and Service restoral within four (4) hours
or less; provided that Purchaser expressly acknowledges that it is not possible
for the Services to be restored within four (4) hours in all instances and that
it shall not be a breach of this Agreement for Outages to exceed four (4) hours
by any amount, except that, as its sole remedy, Purchaser shall be entitled to a
credit of one (1) month's Service for all Outages within a given month for a
given Circuit if the total Outages exceed four (4) hours. The Outage credit
under this Section 6.3.1. is in lieu of and not cumulative with the Outage
credits pursuant to Section 12.2. If ART responds to an Outage report by
Purchaser and no such Outage exists, then Purchaser shall not be entitled to an
Outage Credit and shall be responsible for all costs and charges for the
response to the service call at ART's then-current standard hourly rates.
6.3.2 Scheduled Maintenance. Under ART's Standard Service Option, ART
or its subcontractors, at ART's sole option, shall perform routine maintenance
and adds, moves,
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and changes at reasonable times to be chosen by ART, for which ART shall give
reasonable notice.
6.3.3 Limitations on ART's Obligation to Maintain and Restore. ART's
obligations under Section 6.3.1. exclude each of the following, as determined
solely by ART: (i) Service that would be unsafe or impractical because of
alterations to the Equipment not approved by ART, or its connection to equipment
or devices not furnished or approved by ART or which connection would for any
reason render Service impossible; (ii) Service using Equipment located in an
unsafe or hazardous environment; (iii) Service that cannot be restored because
of elements external to the Equipment and not under the control of ART,
including, but not limited to, adverse environmental conditions or inadequate
power that are not within the manufacturer's or ART's specifications; (iv)
Service resulting from any accident, neglect, alterations, improper use or
misuse of the Equipment by personnel not under the control of ART; (v) Service
in connection with relocation not approved by ART of any of the Equipment; and
(vi) the inability of ART to access the premises of Purchaser in order to
perform installation, maintenance and repair.
6.4 Network Operations Management
The ART Network Operations Center ("NOC") will provide the following services:
(i) Link alarm monitoring; (ii) Link performance monitoring; (iii) Link
performance reporting; (iv) Link performance data; (v) remote Link diagnosis;
(vi) Link restoral; and (vii) coordination and testing to the extent feasible
with operations centers operated by third parties. The NOC operates on a seven
(7) day per week, twenty-four (24) hour basis to monitor all ART Circuits. The
NOC provides continuous supervisory control and data acquisition ("SCADA"). The
NOC services to be provided under this Agreement are subject to change from time
to time without Notice and in the sole discretion of ART.
6.5 Customer Service Department
ART's Customer Service Department shall be available to assist Purchaser with
Service complaints and other problems without charge, provided that the requests
for assistance are reasonable. ART shall maintain a "help" desk twenty-four (24)
hours per day, seven (7) days per week. ART shall exercise reasonable efforts to
resolve all Purchaser service issues within twenty-four (24) hours. ART shall
establish a system of its own choosing for either reporting all inquiries to
Purchaser or enabling Purchaser to access an ART database, such as an electronic
bulletin board, to retrieve information concerning such inquiries and their
resolution.
7. Post Termination Support Services
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In the event of a termination of this Agreement by either party, ART shall, if
requested by Purchaser, continue to provide on-going service, support,
maintenance and restoral in accordance with the terms of this Agreement for all
Circuits in service pursuant to this Agreement and prior to its termination,
provided that Purchaser continues to pay the applicable charges, which charges
may be changed by ART following thirty (30) days Notice to Purchaser.
8. Use of Subcontractors
Purchaser expressly agrees that ART may use any subcontractor that it chooses
without prior approval for installation, maintenance, restoral and other field
service functions, and for any other ART obligations under this Agreement;
provided that the use of subcontractors shall not relieve ART of any of its
obligations hereunder.
9. Performance
9.1 Performance Expectations
Based upon its standard engineering evaluations, Link analysis, expected weather
patterns for the Link to be installed, manufacturer's Equipment specifications,
anticipated site environment and ART's experience, ART expects to provide the
Services, with a Bit Error Rate of better than 10-13 over each Circuit in
unfaded conditions, and Service over each Circuit that has an Availability of
better than 99.995% in the aggregate during each month. Purchaser expressly
acknowledges that: (i) this Section sets forth the parties' expectations only;
(ii) ART is not obligated to meet the Performance Expectations of this Section
9.1.; (iii) that such failure shall not constitute a breach of this Agreement,
provided that ART is exercising reasonable efforts to meet these expectations;
and (iv) Purchaser is entitled only to Outage credits as specified in Section 12
for any failure by ART to meet the Performance Expectations of this Section 9.1.
9.2 Limitations on ART's Duty to Perform
ART's obligation to meet the Performance Expectations in Section 9.1. shall not
require ART to provide Service or Related Support Services: (i) that would be
unsafe or impractical because of alterations to the Equipment not approved by
ART, or its connection to equipment or devices not furnished or approved by ART
or which connection would for any reason render Service impracticable; (ii) that
uses Equipment located in an unsafe or hazardous environment; (iii) that cannot
be restored because of elements external to the Equipment and not under the
control of ART, including, but not limited to, adverse environmental conditions
or inadequate power that are not within the manufacturer's or ART's
specifications; (iv) to restore service that was out due to any accident,
neglect, alterations, improper use or misuse of the Equipment by personnel not
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under the control of ART; and (v) in connection with a relocation not approved
by ART of any of the Equipment. In addition, ART shall not be liable for ART's
failure to meet the Performance Expectations in Section 9.1 in the event that
such failure is due to: (a) Purchaser's failure to follow procedures for use of
the Services and Equipment as provided by ART or the manufacturer from time to
time; (b) repair, modification, maintenance or relocation of the Equipment by
personnel other than ART personnel or ART-designated representatives, without
the express written consent of ART; (c) abuse, misuse, or negligence by
Purchaser or third parties affecting the Services and/or Equipment so as to
impede ART's ability to provide the Services; or (d) the inability of ART to
access the premises of Purchaser in order to perform installation, maintenance
and repair due to limitations or restrictions imposed by Purchaser due to any
violations of Section 10.4 of this Agreement.
10. Purchaser's Responsibilities
10.1 Payment
10.1.1 Facilities Ownership Option. As set forth in Section 11.2.1,
under the Facilities Ownership Option, Purchaser shall pay for all Equipment
within ten (10) days of receiving the Completion Notice.
10.1.2 Standard Service Option and Other Facilities Ownership Option
Payments. Other than the Equipment charges set forth in Section 11.2.1,
Purchaser shall pay all applicable charges and taxes under this Agreement in
accordance with Section 11.3.
10.2 Conduct
Purchaser shall not represent that it is an agent or otherwise a representative
of ART, without ART's prior written permission. Purchaser and ART each pledge to
each other that they will conduct their business affairs at all times with the
highest standards of honesty, fair dealing and ethics.
10.3 Sites
10.3.1 Site Acquisition and Access. Except as provided in Section
10.3.2 below, ART shall be responsible for access to Sites in connection with
the provision of the Services, including but not limited to (i) acquiring the
necessary zoning, permits and other municipal approvals for installation of the
Equipment and use of the Site, (ii) paying any taxes or fees associated
therewith and (iii) obtaining access during the normal business day for
installation and routine maintenance and twenty-four (24) hour emergency access
to the Site to
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maintain and restore the Services.
10.3.2 Site Use Charges. ART shall be responsible for all recurring
and non-recurring Site Use Charges to third parties for obtaining a Site;
provided, however, that ART may, in its sole discretion, decline to provide
Service for any requested Circuit if ART determines the Site Use Charge(s) is
not reasonable and customary for the service area and/or type of service
requested.
10.4 Access to Purchaser's Premises and Service-Related Equipment
During the term of this Agreement, Purchaser shall arrange for ART or its
representatives to have access to the Sites on premises owned or controlled by
Purchaser for the purpose of installation, testing, preventive maintenance and
Service restoral. Where the nature of the visit permits advance notice, ART
shall give reasonable advance notice and shall schedule the visits during
business hours. Where the nature of the visit does not permit an advance
scheduling, including but not limited to, emergency or restoral situations,
Purchaser shall arrange for ART or its representatives to have immediate access
to the Sites and all Equipment located therein, and fully assist and cooperate
with ART in remedying the emergency or Outage. In addition, Purchaser shall (i)
exercise reasonable efforts to protect the Site and equipment from damage or
loss; and to prevent any obstructions that would interfere with line of sight
along the Link and (ii) promptly report any developments including but not
limited to activities or planned activities, including without limitation new
antenna masts or buildings or other structures, that obstruct or might obstruct
line of sight along the Link.
10.5 Purchaser Point of Contact
Purchaser shall appoint a person, who shall be the primary point of contact for
ART, which person shall be reachable during the business day, from 8am until
6pm, using the time standard in effect at Purchaser address first listed above
and an emergency point of contact, if different. The initial contact person for
the business day by name and title shall be ______________________________. The
initial contact person for other than business hours by name and title shall be
_____________________________.
11. Pricing
11.1 Standard Service Option
11.1.1 Pricing. ART will from time to time establish its Pricing for
its Services ("Pricing"). ART shall have the option to increase or decrease its
Pricing at any time and with
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regard to any Service Area; provided that ART provides Notice of such change to
Purchaser thirty (30) days before the effective date of the price change;
provided further that any Pricing change shall not affect Circuits for which
Service Orders are fully executed and processed by ART prior to the ART
providing Notice. The Pricing in effect at the time of the execution of this
Agreement is set forth in Attachment C and shall remain in effect for the
purposes of this Agreement until further notice. The subsections immediately
following set forth the structure of the rates. The pricing set forth below and
on the Attachments does not include taxes, where applicable.
(A) Installation Charges. Installation is charged on a per DS-1
or DS-3 Circuit basis, with differing charges depending on the capacity and type
of the Equipment installed and the environment of the Site. The rate may be
decreased, at ART's sole option, for additional DS-1s for the same Purchaser
between the same two points. The charge for installation may vary by state and
by city. Purchaser shall pay a non-recurring charge, as set forth on Attachment
D-1, for a Standard Installation, which charge represents a portion of the
actual cost of installation. Such Standard Installation charge assumes
reasonable access to the Equipment locations and that the locations meet ART's
Minimal Acceptable Site Criteria. The Equipment that is part of a Standard
Installation is listed in Attachment D. If the installation takes longer than
one continuous eight hour period or the construction required is non-standard,
as determined by ART, due to circumstances beyond the reasonable control of ART,
Purchaser shall be responsible for all additional costs at ART's then current
standard hourly rates and the cost of the additional materials, including ART's
overhead.
(B) Service Charges
(1) Basic Charges
(i) Circuits which will range in capacity from DS-1s to
DS-3s shall be charged on a monthly basis. In some cases the monthly rate may
not be mileage sensitive and a single recurring rate element may apply. For
rates that are mileage sensitive the recurring charge shall include two rate
elements, the "first mile" and "additional miles". The rates may be decreased
for additional Circuits between the same two points of a Link for the same
Purchaser. The charge for Circuits may vary by state and by city.
(ii) If the rate is mileage sensitive, a "first mile"
rate element will be charged for each Circuit. Mileage is based on air miles
between the two XXXx. The "additional miles" rate element, if applicable, will
be charged per Circuit for each mile of the link or part of a mile after the
first mile.
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(2) Term Discounts. Term discounts for Circuits will be
provided based on the length of the commitment. The discounts shall be
applicable to a two year commitment and may increase for each year of commitment
up to five years. The amount of term discount may vary by state and by city. If
Purchaser terminates a Circuit other than in accordance with Section 17.1, then
Purchaser shall be liable for termination payments equal to the difference
between the charges that would have applied, calculating term discounts as of
the actual term elapsed, and the charges that Purchaser actually paid.
(3) Volume Discounts. Purchaser will be eligible for volume
purchase discounts based on projected quotas. The projected sales quotas and
applicable discounts are set forth in Attachment C. The discounts set forth
therein will apply to the first and each succeeding Link in the year in which
they are installed; provided, however, if the sales quotas are not met in any
year, then the discounts for the entire following year shall be based upon the
sales level actually achieved in such previous year. Volume purchase discounts
shall only apply to monthly recurring Circuit charges. Non-recurring charges
shall not be subject to discount. Non-recurring charges include, but are not
limited to, installation, de-installation, re-location, Site acquisition
support, frequency coordination, and other services. Volume discounts are
calculated based upon the anniversary of the Effective Date, not (unless
coinciding) a calendar year. The volume purchase discount level for the first
year of this Agreement shall be as set forth in Section 18.23.
11.1.2 Limited Right to Unused Radio Capacity. Under the Standard
Services Option, for any Service Order that Purchaser executes within six (6)
months of the date of this Agreement for DS-1 Service and which Service Order
results in unused capacity of the first installed 4/DS-1 or 8/DS-1 radio link,
Purchaser shall have exclusive right to purchase such unused capacity until six
(6) months from the date of this Agreement at the Pricing set forth herein.
11.2 Facilities Ownership Option
11.2.1 Equipment and Installation Charges. Within ten (10) days of
receiving the Completion Notice, Purchaser shall pay to ART the amount set forth
on Attachment D-2 (the "Facilities Ownership Payment") for the Equipment listed
on such Attachment based upon whether Purchaser selects a 4-DS1, 8-DS1, or DS-3
Installation Package. Except as otherwise set forth herein, the Facilities
Ownership Payment shall include installation of the Equipment. The pricing set
forth on the Attachments does not include taxes, where applicable.
11.2.2 Spectrum Services Charges. ART shall invoice Purchaser each
month for the applicable Spectrum Services charges, which charges, as currently
established, are set
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forth on Attachment D-2.
11.3 Timing of Payments
Except for Equipment and Installation charges set forth in Section 11.2.1 above,
ART shall invoice Purchaser each month for the applicable Non-Standard
Installation Costs, Spectrum Services charges and any other applicable charges
hereunder. All payments shall be due within twenty (20) days of the date of
receipt of the invoice. Payments shall be forwarded to the address stated on the
face of the invoice. ART shall have the option, without notice, to impose a late
payment charge of one and one-half percent (1.5%) per month or the maximum
amount allowable by law on any past due charges, whichever is higher. Purchaser
agrees to pay all costs, including reasonable attorney's fees, expended in
collecting past due charges. All invoices shall be conclusively presumed to be
accurate unless Purchaser gives Notice to ART to the contrary within twenty (20)
days of the receipt of the invoice, except where the incorrectness could not
have been discovered with due diligence within that period.
12. Outages
12.1 ART's Liability for Outages
All liability of ART for interruptions, errors, omissions, Outages or defects
occurring in the course of furnishing the Services and not caused by actions of
Purchaser or third parties shall be strictly limited to Outage credits against
sums paid or to be paid in an amount determined in accordance with Section 12.2
("Credit"). Credit for Outages shall be allowed only when Outages are caused by
or occur in the facilities or the Services provided by, operated or serviced by
ART. No Credit shall be allowed for Outages due to the failure of facilities,
services or equipment not provided, operated or serviced by ART or the acts or
omissions of Purchaser or third parties. No Credit shall be given for any
Outages caused by testing or emergency interruptions, or by routine maintenance
provided that ART has given Purchaser advance notice of such maintenance.
Purchaser must promptly Notify ART of any Outages and include details of such
Outages, including, without limitation, time the Outage occurred, duration and
cause, if known.
12.2 Determination of Outage Credits
Outages will be deemed to start upon the earlier of either the time upon which
ART receives Notice from Purchaser that an Outage has commenced or the time that
ART becomes aware of the Outage; provided that, if ART is informed or becomes
aware of the Outage within two hours of its commencement, the Outage will be
deemed to have commenced at the first of the Severely Errored Seconds. The
Outage will be deemed to cease when a Circuit performance demonstrates
14
ten (10) consecutive seconds of service with no Severely Errored Seconds. Outage
Credits will be given for each day ("Credit Day") during which there is greater
than thirty (30) Severely Errored Seconds. Credits will be given against the
monthly recurring charges on the basis of a thirty day assumed month, at the
rate of each Credit Day being 1/30th of the recurring charge. In any month in
which there are three successive Credit Days or five total Credit Days,
Purchaser shall be given credit for the entire month for that Circuit. Credits
will only be given on a Circuit by Circuit basis for a Circuit in which an
Outage occurs. In the event Purchaser experiences eight (8) or more Credit Days
within a sixty (60) day period, the Circuit may, at Purchaser's option, be
terminated by Notice to ART. Upon any such termination, Purchaser shall not be
liable for any Circuit Service charges from and after the date ART receives
Notice of termination.
13. Licensing & Regulatory Matters
13.1 License Authorization
ART shall be responsible for obtaining or for maintaining in good standing
appropriate authorizations from the Federal Communications Commission ("FCC")
(i) as a licensee in the millimetric wave frequencies at 38 GHz, and (ii) to
construct and operate (or permit others to construct and operate) radio
equipment necessary to provide service to Purchaser under this Agreement;
provided that nothing in this Agreement shall be construed to require ART to
continue to prosecute any pending authorization applications, file for any
additional authorizations after the Effective Date, or seek modifications in the
technical or other parameters of its Authorizations.
13.2 Common Carrier Authorizations
Subject to Section 13.1, ART and Purchaser each shall be responsible for
obtaining common carrier or other appropriate authorizations from the FCC and
state utility commissions and, to the extent required, to file tariffs wherever
necessary to provide the services contemplated by each under this Agreement;
provided that each party shall have complete discretion as to the terms and
conditions of its Authorizations and tariffs except to the extent compelled to
do otherwise by this Agreement.
14. Intellectual Property Rights
14.1 Trademarks, Tradenames and Branding
The execution of this Agreement does not waive either party's common law or
statutory rights in
15
its respective trademarks and tradenames. Each party shall request prior
approval for use of the other party's trademarks, tradenames, logos, logotype,
fictitious name and corporate name in any promotional, marketing, reporting,
materials, including but not limited to hard copy, video, and electronic media,
with a likelihood of public distribution. All Services sold by Purchaser
hereunder shall carry Purchaser's tradename, unless otherwise directed in
writing by Purchaser and agreed to in writing by ART.
14.2 Inventions, Patent Rights, Copyrights, Trade Secrets and Know-How
Each party shall retain all rights in patents, inventions, copyrights, trade
secrets, and technical know-how existing prior to the Effective Date or
independently developed after the Effective Date. Use, implementation, transfer
or other disclosure of either party's intellectual property in support of or in
connection with this Agreement, whether indirect or direct, shall not affect the
intellectual property rights of the originating party. Rights to mutually
developed intellectual property will be negotiated in good faith independent of
the terms and conditions of this Agreement.
14.3 Software and Firmware
Any software or firmware provided to Purchaser under this Agreement shall be
licensed to Purchaser to install and use on Equipment provided by ART under this
Agreement. Purchaser covenants and agrees to use such software or firmware
provided to it only for the purposes contemplated by this Agreement, and except
as otherwise expressly provided herein with respect to certain hardware under
the Facilities Ownership Option, Purchaser retains no right, implied or
otherwise, to use, transfer such software or firmware to any other equipment and
covenants and agrees not to permit such software or firmware to be copied or
disclosed to third parties without the express, prior written consent of ART.
Upon the termination of this Agreement, Purchaser agrees to return all copies of
such software and firmware to ART within thirty (30) days of such termination.
14.4 Indemnification by ART
ART hereby indemnifies Purchaser against, and hold Purchaser harmless from all
liabilities, demands, claims, damages, losses, demands, costs, judgments and
expenses (including reasonable attorneys' fees) arising out of or in connection
with the violation or infringement by the 38GHz Services provided by ART to
Purchaser hereunder of any copyright, trademark, United States patent, trade
secrets or other intellectual property of a third party.
15. Limitation of Liabilities
16
ART MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY OF THE EQUIPMENT,
SERVICES AND RELATED SUPPORT SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION. EXCEPT AS EXPRESSLY
PROVIDED THIS AGREEMENT, NEITHER ART NOR PURCHASER SHALL BE LIABLE FOR ANY
CLAIMS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ACTIONS, DAMAGES, DEMANDS,
JUDGMENTS, LOSSES, COSTS, EXPENSES, LIABILITIES, AND LOSS OF MONIES ARISING OUT
OF THIS AGREEMENT OR THE PERFORMANCE, WHETHER BASED ON CONTRACT, WARRANTY, TORT
INCLUDING NEGLIGENCE, MISTAKE, ERROR, MISCONDUCT, INTERRUPTION, DELAY, DEFECT OR
OTHERWISE OF ART, ITS EMPLOYEES, AGENTS, CONTRACTORS, OR SUB-CONTRACTORS, OR
AFFILIATED COMPANIES, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL,
CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF REVENUE OR
PROFIT, LOSS OF USE OF ANY PROPERTY, COST OF SUBSTITUTE PERFORMANCE, EQUIPMENT
OR SERVICES, COST OF CAPITAL DOWNTIME COSTS AND CLAIMS OF THE PURCHASER FOR
DAMAGES.
16. Confidentiality
In connection with this Agreement, each party may disclose or otherwise make
available certain data or information to the other party, which data or
information the disclosing party considers to be confidential and proprietary.
As used herein, "Confidential Information," means any non-public information,
including Vendor lists, business plans and proposals, financial information,
marketing information, problem solving methods, implementation steps, know-how,
technology, trade secrets and drawings and renderings related to each party's
ongoing and proposed businesses, products and services which is being provided
or which has been provided to the receiving party by the disclosing party, or
which is obtained by the receiving party from its meetings and contacts with the
disclosing party, or any information derived by receiving party from information
so provided or obtained. Confidential Information includes all written or
electronically recorded materials identified and marked as confidential or
proprietary or which on their face appear to be confidential or proprietary, and
oral disclosures of Confidential Information by the disclosing party which are
identified as confidential or proprietary at the time of such oral disclosure.
Confidential Information does not include any of the following: (a) information
that is in or becomes part of the public domain without violation of this
Agreement by the receiving Party; (b) information that was known to or in the
possession of the receiving party on a
17
non-confidential basis prior to the disclosure to the receiving party by the
disclosing party; (c) information that was developed independently by the
receiving party's employees, which employees have had no access to the
Confidential Information; (d) information that is disclosed to the receiving
party by a third party under no obligation of confidentiality to the disclosing
party and without violation of this Agreement by the receiving party; or (e) is
authorized by the disclosing party in writing for disclosure or release by the
receiving party.
The parties agree: (a) to treat and keep as confidential and proprietary all
Confidential Information disclosed by the other party; (b) to advise each
employee to whom any Confidential Information is to be made available of the
confidential nature of such Confidential Information and of the terms of this
Agreement; to promptly return to the disclosing party (or its designees), upon
the disclosing party's request, all Confidential Information and all copies
thereof and to delete from electronic memory such Confidential Information.
The parties agree to keep confidential the terms of this Agreement, including
but not limited to information relating to the prices charged and services
provided by ART. The parties further agree that any disclosures concerning this
Agreement or the terms and conditions shall require the mutual written consent
of ART and Purchaser, except as to such disclosures that may be required to
comply with securities laws, court order or similar order of an administrative
or regulatory agency, and in connection with relevant government agency
communications. Notwithstanding the foregoing, either party shall be entitled to
disclose this Agreement and the terms and conditions to its potential and actual
financing sources, and to its auditors, attorneys and other agents to the extent
necessary to enforce such party's right or perform its obligations pursuant to
this Agreement; provided that such financing sources, auditors, attorneys and
other agents keep such information confidential.
17. Termination
17.1 Termination for Default
Either party may terminate this Agreement immediately on the occurrence of any
of the following events: (i) failure to perform a material obligation under this
Agreement, or a material breach of this Agreement, and failure to cure such
breach within thirty (30) days following delivery of Notice to such defaulting
party of the breach; provided that (a) if the cause of such breach is a Force
Majeure condition as defined in Section 18.10, the period for remedying such
breach shall be extended by the time measured by any delay from the Force
Majeure condition, except that, notwithstanding the foregoing, either party may
terminate if the Force Majeure condition extends beyond ninety (90) days
following Notice and (b) if the breach by its nature cannot be cured within
thirty (30) days, the period for remedying such breach shall be extended
18
for ninety (90) days from Notice provided that the breaching party has exercised
its best efforts to cure the breach within thirty (30) days of the Notice; or
(ii) if the other party becomes insolvent or makes an assignment for the benefit
of its creditors, or if a committee of creditors or other representative is
appointed to represent its business, or if a voluntary or involuntary petition
under any section of a bankruptcy or similar act shall be filed by or against
such other party and that party fails within ninety (90) days following the
appointment of such committee or representative or the filing of any such
involuntary petition to cause the discharge of such committee or representative
or the dismissal of such involuntary petition.
17.2 Effect of Termination
17.2.1 Accrued Rights. No termination of this Agreement shall affect
any accrued rights or obligations of any party, including, without limitation,
those specified under Section 5.5, as of the effective date of such termination
nor shall it affect any rights or obligations of any party which are intended by
the parties to survive any such termination.
17.2.2 Not Exclusive Remedy. The right of any party to terminate this
Agreement is not an exclusive remedy, and any party shall be entitled,
alternatively or cumulatively, to other remedies permitted under the terms of
this Agreement or by law.
17.2.3 Return of Materials. Upon termination or expiration of this
Agreement, each party promptly shall: (a) remove and return to the other party,
or obliterate, at the providing party's option, any material supplied by that
party and provide the other party with access during business hours, or other
mutually agreeable times, to collect and retrieve any and all equipment, except
equipment purchased under the Facilities Ownership Option, installed pursuant to
this Agreement; (b) notify and arrange for all publishers and others who may
identify, list or publish the other party's name as a marketer, promoter or
supporter of Services including, but not limited to, publishers of telephone
directories, yellow pages, and other business directories, to discontinue these
listings within six months of the termination date of this Agreement or before
the publication of a subsequent version of the directory, whichever may occur
earliest; (c) describe in detail all work in process under this Agreement; and
(d) certify to the other party that the first party acted in accordance with
(a), (b) and (c) of this subsection.
17.2.4 Payments Due. Purchaser shall pay in full to ART any and all
amounts then due and owing within thirty (30) days of termination of this
Agreement, except that the payments due under Sections 11.1.1 and 11.2.2 shall
be due according to the terms of that Section.
18. General Provisions
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18.1 Assignment and Security Interest
18.1.1 Assignment by Purchaser. Purchaser may assign or transfer its
rights or obligations hereunder without the prior written consent of ART to any
party controlling, controlled by or under common control with Purchaser,
provided that Purchaser shall give ART Notice of any such assignment or
transfer. Purchaser shall not make any other assignment or transfer of any of
its rights or obligations hereunder without the prior written consent of ART,
which consent shall not be withheld if the assignee or transferee (i) expressly
assumes in writing the terms and conditions of this Agreement and (ii) satisfies
ART's requirements concerning the assignee's/transferee's human resources to
satisfy its obligations under this Agreement, financial condition,
creditworthiness and general business reputation. Any attempted assignment in
violation of the terms of this Section 18.1 will be void.
18.1.2 Assignment by ART. ART may assign its rights and obligations
under this Agreement (i) without notice or consent, to any Affiliate that agrees
in writing to be bound by the terms hereof or (ii) to any other entity that
expressly assumes in writing the terms and conditions of this Agreement upon
prior consent from Purchaser, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, ART may assign its rights and obligations under
this Agreement without notice or consent in connection with any sale, transfer,
conveyance or assignment of all or substantially all of ART's assets or stock.
ART may, without notice or consent, transfer or assign its interest hereunder,
or grant a security interest in all or any part of this Agreement, the Equipment
and/or sums payable hereunder as collateral security for any loans or advances
made or to be made to ART by a financing or other institution ("Secured Party").
In such event, Purchaser upon receipt of notice of any such transfer, assignment
or grant and instructions from ART, shall pay its obligations hereunder or
amounts equal thereto to such assignee or the Secured Party in the manner
specified in said instructions. In the event that ART notifies Purchaser of its
intention to transfer, assign, or grant a security interest in all or any part
of this Agreement, the Equipment and/or sums payable hereunder, as aforesaid,
Purchaser agrees to execute such documents as may be reasonably necessary to
secure and/or complete such transfer, assignment or grant and to perfect the
assignee's or Secured Parties interest therein.
18.2 Benefit/Binding Nature
This Agreement shall inure to the benefit of and shall be binding upon the
parties and their successors and assigns.
18.3 No Third Party Beneficiaries
20
This Agreement is made solely for the benefit of the parties hereto and their
respective successors and assigns.
18.4 Authority and Acknowledgment
Each party represents and warrants that it has full power and authority to enter
into and perform under this Agreement and that the person signing this Agreement
has been properly authorized to do so. Each party further acknowledges that it
has had an adequate opportunity to consult counsel, that it has carefully read
each provision of this Agreement and understands this Agreement and that it
agrees to be bound by all of its terms, conditions and provisions.
18.5 Controlling Law
All questions concerning the validity and operation of this Agreement and the
performance of the obligations imposed on the parties under this Agreement shall
be interpreted and construed in accordance with the domestic laws of the State
of Washington even if its choice of law provisions or statutes are in conflict
with this requirement.
18.6 Regulatory Approval
This Agreement is subject to any regulatory approvals which may be required and
may be terminated by either party if any governmental or regulatory agency
imposes rules or regulations materially affecting the relationship between the
parties, provided that the imposition of such rules or regulations shall not be
construed to relieve the party affected by such rules or regulations from any
duty under Sections 10.1, 10.2, 14 and 16 and from being considered in breach
for failure to carry out that obligation.
18.7 Dispute Resolution and Consent to Jurisdiction and Forum Selection
The parties agree that all disputes, claims or controversies between them
arising out of or relating to this Agreement shall be settled as set forth in
this Section 18.7. For the period of 15 days after Notice from either party, the
parties shall attempt in good faith to resolve the dispute by direct negotiation
of non-lawyer representatives of the parties. If the parties do not resolve the
dispute within such 15-day period, either party may submit the matter to a
professional mediation service selected by the parties. If the parties do not
resolve the dispute through mediation within an additional 30-day period, either
party may submit the dispute to binding arbitration with a professional
arbitration service selected by the parties. If the parties do not otherwise
agree on a mediation or arbitration service, such services shall be provided
pursuant to the J.A.M.S./ENDISPUTE Arbitration Rules and Procedures. The costs
of mediation and
21
arbitration, including the fees and expenses of the mediator and arbitrator,
shall be paid equally by the parties unless the arbitration award provides
otherwise. Each party shall bear the cost of preparing and presenting its case.
The parties agree that this paragraph and the arbitrator's authority to grant
relief shall be subject to the United States Arbitration Act, 9 U.S.C. Sections
1-16, et. seq., the provisions of this Agreement, and the ABA-AAA Code of Ethics
for Arbitrators in Commercial Disputes. The parties agree that the arbitrator
shall have no power or authority to make any award that provides for punitive or
exemplary damages. The arbitrator's decision shall be final and binding. The
award may be confirmed and enforced in any court of competent jurisdiction. All
post-award proceedings shall be governed by the United States Arbitration Act, 9
U.S.C. Sections 1-16, et. seq.
18.8 Relationship of the Parties; No Agency or Partnership
The relationship between the parties under this Agreement is solely that of
independent Purchaser and service provider. It is agreed and understood that
neither party is an agent, employee or legal representative of the other, and
has no authority to bind the other in any way. Nothing in this Agreement shall
be deemed to constitute ART and Purchaser as partners, joint venture partners,
or otherwise associated in or with the business of the other, and neither party
shall be liable for the debts, accounts, obligations or other liabilities of the
other party, its agents or employees. Neither party is authorized to incur debts
or other obligations of any kind on the part of or as agent for the other.
18.9 Publicity
Neither party shall make any press release or other public announcement of or
otherwise publicly disclose this Agreement, its contents, or the transactions
herein contemplated without the prior written approval of the other party unless
required by law, regulation, court order or rule of any securities exchange, in
which case the disclosing party shall promptly inform the other party of such
disclosure and shall permit it to intervene to object if such is permitted. The
foregoing shall not prohibit either party from disclosing this Agreement or its
contents to its attorneys, accountants or other advisors provided they are
informed of and bound by this Section 18.9 and Section 16.
18.10 Force Majeure
NEITHER PARTY SHALL BE LIABLE FOR DELAYS IN PERFORMANCE, OR FAILURE TO PERFORM
THIS AGREEMENT OR ANY OBLIGATIONS HEREUNDER, WHICH ARE ATTRIBUTABLE TO CAUSES
BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO, OBSTRUCTION OF LINE
OF SIGHT BETWEEN SITES, FIRE,
22
FLOOD, EPIDEMIC, EARTHQUAKE, ACT OF GOD, LIGHTNING, PUBLIC POWER FAILURE OR
SURGE, EXPLOSION, STRIKE OR OTHER LABOR DISPUTE, RIOT OR CIVIL DISTURBANCE, WAR
OR ARMED CONFLICT, OR ANY OTHER SIMILAR OCCURRENCE NOT WITHIN ITS CONTROL (AN
"EVENT OF FORCE MAJEURE"), PROVIDED HOWEVER, THAT UPON THE OCCURRENCE OF AN
EVENT OF FORCE MAJEURE, THE DELAYED PARTY SHALL SO NOTIFY THE OTHER PARTY
PROMPTLY.
18.11 Insurance
Upon request, either party shall provide proof of insurance or self-insurance
during the term of the Agreement for Worker's Compensation insurance and
comprehensive general liability. The liability insurance policies shall insure
against loss or damage on account of claims for bodily injuries, death or
property damage suffered by a person or persons in connection with each party's
performance of this Agreement and shall be in the combined limit amount of Two
Million Dollars ($2,000,000) for each occurrence. Each party shall cause to have
the other party named as an additional insured on all insurance policies under
this Section 18.11.
18.12 Indemnification
18.12.1 Indemnification of ART by Purchaser. Purchaser shall indemnify
ART against, and hold ART harmless from all liabilities, demands, claims,
damages, losses, demands, costs, judgments and expenses (including reasonable
attorneys' fees) arising out of or in connection with this Agreement for
personal injury or damage to tangible property of ART caused by the acts or
omissions of Purchaser or Purchaser's employees, agents or invitees. In no event
shall ART's employees, agents or invitees be deemed to be employees, agents or
invitees of Purchaser.
18.12.2 Indemnification of Purchaser by ART. ART shall indemnify
Purchaser against, and hold Purchaser harmless from all liabilities, demands,
claims, damages, losses, demands, costs, judgments and expenses (including
reasonable attorneys' fees) arising out of or in connection with this Agreement
for personal injury or damage to tangible property of Purchaser caused by the
acts or omissions of ART or ART's employees, agents or invitees. In no event
shall Purchaser's employees, agents or invitees be deemed to be employees,
agents or invitees of ART.
18.12.3 Duty to Notify and Assist. If it appears that the other party
may be obligated to provide indemnification as a result of such claim, the other
party, in its discretion, may settle or compromise the claim or retain counsel
of its own choosing and control and
23
prosecute the defense against such claim. In no event shall the party against
whom the claim is asserted have the right to pay, settle or compromise such
claim without the prior written consent of the party who may be obligated to
indemnify under this Section 18.12.3, and the parties hereto agree that they
will not unreasonably withhold consent to such payment, settlement or
compromise. The party against whom the claim is asserted shall provide the other
party such assistance as may be reasonable in the defense and disposition of
such claim. If any claim arises to which the provisions of this Section 18.12.3
may be applicable, the party against whom such claim is made shall notify the
other party immediately upon learning of the claim.
24
18.13 Notices
All notices, requests, demands and other communications under this Agreement
must be in writing and will be deemed duly given, unless otherwise expressly
indicated to the contrary in this Agreement, (i) when personally delivered, (ii)
upon receipt of a telephonic facsimile transmission with a confirmed telephonic
transmission answer back; provided that such notice, request, demand or other
communication is also sent by a nationally recognized overnight courier, (iii)
three (3) days after having been deposited in the United States mail, certified
or registered, return receipt requested, postage prepaid, or (iv) one (1)
business day after having been dispatched by a nationally recognized overnight
courier service, addressed to the parties or their permitted assigns at the
following addresses (or at such other address or number as is given in writing
by either party to the other) as follows:
If to ART: If to Purchaser:
Xxxxxx X. Xxxxxx Xxxx Xxxxxx
President Director, Business Development
000-000xx Xxx XX, Xxx. 0000 000 000xx Xxx. X.X., 0xx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
with copy to: with copy to:
General Counsel's Office Xxxx Xxxxxxx, Esq.
000-000xx Xxx. XX, Xxx. 0000 _____________________________
Xxxxxxxx, XX 00000 000 000xx Xxx. X.X., 0xx Xxxxx
Xxxx.: Xxxxxx X. Xxxxxx, Esq. Xxxxxxxx, XX 00000
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
18.14 Period of Limitation
Any claim arising from or in connection with this Agreement must be brought to
the attention of the other party in writing within ninety (90) days of the event
alleged as giving rise to an action, and any action arising from or in
connection with this Agreement must be brought within six (6) months after the
cause of action arises under this Agreement.
25
18.15 Section Headings
All Section Headings used in this Agreement are for convenience or reference
only and are not intended to define or limit the scope of any provisions of this
Agreement
26
18.16 Survival
Sections 7, 14, 15, 16, 18.7 and 18.12 of this Agreement that by their nature
and context are intended to survive the execution, delivery, performance and
termination of this Agreement, shall so survive and shall continue in force and
effect until the applicable limitations period has expired.
18.17 Waiver
No waiver of any right or remedy in respect to any occurrence or event on one
occasion shall be deemed a waiver of such right or remedy in respect of such an
occurrence or event on any other occasion.
18.18 Severability
If any portion of this Agreement is held to be invalid by a court of competent
jurisdiction, that provision shall become ineffective and unenforceable. The
parties agree that such invalidity shall not affect the validity of the
remaining portions of this Agreement and they further agree to substitute for
the invalid provision a valid provision that most closely approximates the
effect and intent of the invalid provision.
18.19 Interpretation
The words and phrases used herein shall have the meaning generally understood in
the telecommunications industry and the microwave radio industry. This Agreement
shall be construed in accordance with its fair meaning and not for or against
either party because of the identity of the party drafting or proposing a
provision.
18.20 Offsets
The payments required under this Agreement shall be due on time and any offset
made by a party shall be only for the specific amount in controversy and shall
be payable immediately upon resolution of such controversy.
18.21 Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall, when executed, be deemed to be an original, but all of which together
shall constitute one and the same
27
instrument. This Agreement may be executed and deemed effective and binding if
executed and exchanged by facsimile, provided that promptly thereafter original
signatures are exchanged.
18.22 Integration
This Agreement and all Attachments hereto constitute the entire agreement
between the parties hereto and supersedes all prior representations, agreements,
understandings and arrangements, oral or written, between the parties with
respect to the subject matter. This Agreement allocates the risks of loss among
the parties according to their express agreement, which allocation is reflected
in the charges and terms and conditions set forth herein. Except as otherwise
provided for herein, this Agreement may not be released, discharged, amended, or
modified in any way except by a writing that expressly refers to this Agreement
and is executed by all parties hereto.
18.23 First Year Discount Level
THE PARTIES HERETO AGREE THAT THE QUOTA DISCOUNT LEVEL FOR THE YEAR COMMENCING
AS OF THE EFFECTIVE DATE AND TERMINATING ONE YEAR THEREAFTER SHALL BE
________________________.
IN WITNESS WHEREOF, and intending to be legally bound, the undersigned parties
have duly executed this Agreement effective as of the date first above written.
ADVANCED RADIO TELECOM, NEXTLINK COMMUNICATIONS LLC
CORP., a Delaware Corporation a Washington limited liability company
By: /s/ Xxxx Xxxxxxxxxxx By: /s/ Xxxxx X. Voelkon
----------------------------- ------------------------------------
Name: Xxxx Xxxxxxxxxxx Name: Xxxxx X. Voelkon
Title: VP GM Western Region Title: President
28
ATTACHMENTS
A. Definitions
B. Current Form of Service Order
C. Standard Service Option -- DS-1 and DS-3 Pricing
D-1. Standard Service Option -- Standard Equipment and Materials
D-2. Facilities Ownership Option -- Equipment List and Pricing
29
ATTACHMENT A
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliates" shall mean any corporation or other entity which, directly or
indirectly, owns or controls, either de facto or de jure, the first entity, or
is directly or indirectly owned or controlled, either de facto or de jure, by
the first entity.
"Agreement" shall mean each initialed page of this agreement, each of its
Attachments and each amendments if executed by each party.
"Availability of 99.995%" shall mean a Circuit that, for a defined period of
time, the number of Severely Errored Seconds is less than .005% of the total
seconds in the period.
"Bit Error Rate" shall mean the number of bits unintentionally changed in the
course of transmission relative to a specific quantity of bits transmitted;
usually expressed as a number referenced to a power of 10.
"CAP" shall mean a Competitive Access Provider and is synonymous with the term
CLEC.
"Circuit" shall mean any individual XX-0, XX-0, XX-0 or other data transmission
service provided in total or in part by ART.
"CLEC" shall mean a company that is not the traditional LEC and furnishes local
exchange service pursuant to state authorization using primarily fiber optic
cable.
"Demarcation Point" shall mean the interface between the portion of a circuit
provided by ART and any portion of the circuit not provided by ART.
"DS-0" shall mean a Digital Signal Zero, which is a circuit with a bandwidth of
64 kilobits per second, which is the capacity necessary to carry a single voice
conversation.
"DS-1" shall mean Digital Signal One, which is a circuit with a bandwidth of
1.544 megabits per second, roughly 24 times that of DS-0. A DS-1 is also known
as a T-1.
"DS-3" shall mean Digital Signal Three, which is a circuit with a bandwidth of
45 megabits per
30
second. A D-3 is also known as a T-3.
"Force Majeure" shall mean the factors set forth in Section 18.10.
"IDU" shall mean the Indoor Unit, consisting of electronics that are part of the
ART-supplied 38 GHz radio transceiver, which is located typically within a
building on the Purchaser's Premises and is connected to the ODU by coaxial
cable, usually RG 8.
"Link" shall mean radio path between two transceivers. A radio path may consist
of one or more Links.
"Minimal Acceptable Site Criteria" shall mean 110 volts commercial power is
available, the Site is reasonably accessible, baseband cable runs can be
installed using no more than half a man-day in labor, and easy rooftop
installation for pipe-mounts or tripods.
"Notice" shall mean the notice provisions set forth in Section 18.13.
"ODU" shall mean the Outdoor Unit, consisting of an antenna, antenna mount or
mast and electronics that are part of the ART-supplied 38 GHz radio transceiver
and which is located typically on the roof of a building or tower, but which may
be mounted inside of a window and which is connected to the IDU by coaxial
cable, usually RG 8.
"Outage" shall mean service interruptions in excess of ten (10) consecutive
Severely Errored Seconds.
"POTS" shall mean Plain Old Telephone Service, which is an acronym for basic
voice telephone service, including dial tone.
"Preliminary Site Surveys" shall mean the initial survey of the Site.
"PT" shall mean either standard clock Pacific Time or daylight Pacific clock
Time whichever is applicable.
"Service Area" shall mean the area within which ART provides Service.
"Service Order" shall mean the order for Service executed by Purchaser in the
form of Attachment B.
"Severely Errored Seconds" shall mean those seconds in which the Bit Error Rate
is greater
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than 10^-3.
"Site" shall mean location of the IDU, ODU, the connecting cabling and ancillary
equipment to be used for furnishing Service to the Purchaser. Each Link shall
consist of two or more Sites.
"Site Use Charge" shall mean any non-recurring or recurring finder's, access,
rental, permit, approval or other fee, cost or charge associated with a Site.
"Site Surveys" shall mean the surveys of potential Sites for acceptability for
the location of Equipment and furnishing of Service.
"Standard Installation" shall mean an installation where both radios are roof
mounted, no core boring penetrations are necessary, access is unrestricted
during normal business hours, and the installation can be accomplished in one
concurrent eight (8) hour period.
"Tariff" shall mean the rates and related terms and conditions of Service filed
by ART with federal and state regulatory commissions and in effect at the time
of Service.
"Writing" shall mean any recordation whether on paper or its equivalent or in a
decipherable electronic medium, except that where a writing must be signed under
the terms of this Agreement it shall be on paper.
"38 GHz" shall mean the millimetric wave frequencies between 37.0 GHz and 40.0
GHz allocated to point-to-point and other services by the FCC.
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