Exhibit 10.12
NETWORK SERVICES AGREEMENT
This NETWORK SERVICES AGREEMENT (the "AGREEMENT") is effective as of
12:01 A.M. February 14, 2000 (the "EFFECTIVE DATE"), between SAVVIS
Communications Corporation, a Missouri corporation ("SAVVIS"), and Bridge
Information Systems, Inc., a Missouri corporation ("BRIDGE").
RECITALS
A. Bridge is engaged in the business of collecting and distributing
various financial, news and other data.
B. SAVVIS is engaged in the business of providing Internet Protocol
backbone and other data transport services.
C. SAVVIS and certain of its subsidiaries have acquired from Bridge and
certain of its subsidiaries certain assets relating to the provision of Internet
Protocol backbone and other data transport services, and may in the future
acquire additional such assets from Bridge and certain of its subsidiaries, all
pursuant to a Master Establishment and Transition Agreement between SAVVIS'
corporate parent, SAVVIS Communications Corporation, a Delaware corporation, and
Bridge, of even date herewith (the "MASTER ESTABLISHMENT AND TRANSITION
AGREEMENT").
D. It is an obligation of the parties under the Master Establishment
and Transition Agreement to cause this Network Services Agreement to be entered
into between SAVVIS and Bridge, pursuant to which SAVVIS shall provide Internet
Protocol backbone and other data transport services to Bridge.
E. Together with this Agreement, the parties hereto are entering into a
Technical Services Agreement of even date herewith (the "TECHNICAL SERVICES
AGREEMENT") and an Administrative Services Agreement of even date herewith (the
"ADMINISTRATIVE SERVICES AGREEMENT"), providing for the provision of certain
services to SAVVIS by Bridge. Certain SAVVIS Subsidiaries and certain Bridge
Subsidiaries are entering into, and may in the future enter into, Local Transfer
Agreements, Local Network Services Agreements substantially in the form of
Exhibit A hereto (the "LOCAL NETWORK SERVICES AGREEMENTS"), Equipment
Collocation Permits (the "EQUIPMENT COLLOCATION PERMITS"), and Local
Administrative Services Agreements.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Network Services Agreement
by and between SAVVIS and Bridge, including all addenda to this
Agreement entered into in the manner set forth herein (each an
"ADDENDUM" and collectively the "ADDENDA"). This Agreement shall
be interpreted wherever possible to avoid conflicts between the
Sections hereof and the Addenda, provided that if such a conflict
shall arise, the Addenda shall control.
1.2. Whenever it is provided in this Agreement for a matter to be
mutually agreed upon by the parties and set forth in an Addendum
to this Agreement, either party may initiate the process of
determining such matter by submitting a proposed outline or
contents of such Addendum to the other party. Each party shall
appoint a primary contact and a secondary contact for the
completion of such Addendum, who shall be the contact points for
every issue concerning such Addendum and who shall be informed of
the progress of the project. The names of the contacts will be
exchanged in writing by the parties. Using the contacts, the
parties shall work together in good faith with such diligence as
shall be commercially reasonable under the circumstances to
complete such Addendum, provided, however, that neither party
shall be obligated to enter into such an Addendum. Upon the
completion of such Addendum, it shall be set forth in a written
document and executed by the parties and shall become a part of
this Agreement and shall be deemed to be incorporated herein by
reference.
1.3. Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined terms
shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included" and
"including" shall not be construed as terms of limitation.
Additional definitions are provided in Schedule 3.1 of this
Agreement. Capitalized terms not otherwise defined have the
meanings assigned to such terms in the Master Establishment and
Transition Agreement.
"ADDITIONAL NETWORK FACILITIES" means any assets and contracts of
SAVVIS for the provision of Internet Protocol backbone and other
data transport services other than the Acquired Network
Facilities.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" means a period of 12 months beginning on the
Effective Date and each subsequent anniversary thereof.
"AMERICAS" means Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx xxx Xxxxx
Xxxxxxx, including the Caribbean, but excluding the United
States.
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"ASIA" means Australia, China, Hong Kong, India, Indonesia,
Japan, Korea, Macau, Malaysia, New Zealand, Philippines,
Singapore, Taiwan, and Thailand.
"BRIDGE" means Bridge Information Systems, Inc., a Missouri
corporation, and its successors and assigns.
"BRIDGE SUBSIDIARIES" has the meaning assigned to the term
"Seller Subsidiaries" in the Master Establishment and Transition
Agreement.
"CONFIDENTIAL INFORMATION" means all information concerning the
business of Bridge, SAVVIS or any third party doing business with
either of them that may be obtained from any source (i) by SAVVIS
by virtue of its performance under this Agreement or (ii) by
Bridge by virtue of its use of the Networks. Such information
shall also include the terms of this Agreement (and negotiations
and proposals from one party to the other related directly
thereto), network designs and design recommendations, tools and
programs, pricing, methods, processes, financial data, software,
research, development, strategic plans or related information.
All such information disclosed prior to the execution of this
Agreement shall also be considered Confidential Information for
purposes of this Agreement. Confidential Information shall not
include information that:
(a) is already rightfully known to the receiving party at
the time it is obtained by such party, free from any
obligation to keep such information confidential; or
(b) is or becomes publicly known through no wrongful act of
the receiving party; or
(c) is rightfully received by the receiving party from a
third party without restriction and without breach of
this Agreement.
"DISTRIBUTOR COUNTRY" means any country in which the products and
services of Bridge and Bridge Subsidiaries are provided through
third-party distributors.
"EFFECTIVE DATE" means the date set forth in the Preamble of this
Agreement.
"EUROPE" means Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Luxembourg,
Netherlands, Norway, Poland, Spain, Sweden, Switzerland, Turkey
and the United Kingdom.
"EVENT OF DEFAULT BY SAVVIS" has the meaning assigned to such
term in Section 7.1 of this Agreement.
"INITIAL TERM" means a period of ten consecutive Agreement Years
beginning on the Effective Date.
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"INSTALLATION SITE" means any facility of Bridge or a Bridge
Subsidiary or of vendors or customers of Bridge or a Bridge
Subsidiary at which one or more of the Networks is installed.
"MARKET HOURS" means, with respect to any Installation Site, the
period of time beginning two hours before the time at which
trading opens on the principal securities exchange or automated
quotation system designated by Bridge in writing from time to
time as being used by the purchasers and sellers of securities at
such Installation Site, and ending two hours after the time at
which such trading ceases to be conducted.
"MINIMUM ANNUAL COMMITMENT" has the meaning assigned to such term
in Schedule 3.1 of this Agreement.
"NETWORK" and "NETWORKS" have the meaning assigned to such terms
in Section 2.1 of this Agreement.
"REPLACED ROUTERS" has the meaning assigned to such term in
Section 2.7 of this Agreement.
"QUALITY OF SERVICE STANDARDS" means the standards for the
performance of the Networks contained in Schedule 2.2 hereto or
an Addendum to this Agreement.
"SAVVIS" means SAVVIS Communications Corporation, a Missouri
corporation, and its successors and assigns.
"SAVVIS BACKBONE" has the meaning set forth in Schedule 3.1
hereto.
"SAVVIS PARENT" means SAVVIS Communications Corporation, a
Delaware corporation.
"SAVVIS SUBSIDIARIES" has the meaning assigned to the term "Buyer
Subsidiaries" in the Master Establishment and Transition
Agreement.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
"TELERATE" means Telerate Holdings, Inc., a Delaware corporation.
"TELERATE LOCAL NETWORK SERVICES AGREEMENTS" means the local
network services agreements between certain SAVVIS Subsidiaries
and certain Telerate Subsidiaries, substantially in the form of
Exhibit A to the Telerate Network Services Agreement.
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"TELERATE NETWORK SERVICES AGREEMENT" means the network services
agreement pursuant to which SAVVIS shall provide Internet
Protocol backbone and other data transport services to Telerate,
substantially in the form of Exhibit B hereto.
"TELERATE SUBSIDIARIES" means the direct and indirect
subsidiaries of Telerate which will be involved in the operation
or ownership of the Acquired Network Facilities.
"TRANSITION PERIOD" has the meaning assigned to such term in
Section 6.3 of this Agreement.
2. THE NETWORKS AND QUALITY OF SERVICE STANDARDS
2.1. SAVVIS agrees to use the Acquired Network Facilities to provide
(or to cause the SAVVIS Subsidiaries to provide) to Bridge,
Affiliates of Bridge or any party making use of the Networks
through Bridge the following managed packet-data transport
networks, including the operation, management and maintenance
thereof:
(a) a global office-automation network, providing
connectivity between the offices of Bridge (the "OA
NETWORK"),
(b) a global data collection network (the "COLLECTION
NETWORK") and
(c) a global data distribution network (the "DISTRIBUTION
NETWORK"), such description being given without
limitation on Bridge's use of such network services as
are provided by SAVVIS, which shall be referred to in
this Agreement collectively as the "NETWORKS" and
individually as a "NETWORK."
2.2. Each Network shall be operated, managed and maintained by SAVVIS.
SAVVIS may, but shall not be obligated to, use facilities of
SAVVIS other than the Acquired Network Facilities to provide all
or any part of any Network. Beginning on the first anniversary of
the Effective Date and thereafter, each Network shall be
operated, managed and maintained by SAVVIS according to the
Quality of Service Standards set forth in Schedule 2.2 hereof,
and SAVVIS shall be responsible for monitoring the performance of
the Networks with respect to the Quality of Service Standards and
shall provide Bridge with monthly reports of such performance. If
the Quality of Service Standards are not met with respect to a
particular Installation Site in any month, Bridge shall be
entitled to receive, upon written request by Bridge within 30
days of its receipt of the performance report for such
Installation Site for such month, a credit in the amount set
forth on Schedule 2.2 attached hereto, which amount shall be
deemed to be one month's charges applicable to such Installation
Site under this Agreement with respect to such month; provided,
however, that Bridge shall not be entitled to such credit to the
extent that the failure to meet the Quality of Service Standards
with respect to such Installation Site is due to (i) an act or
omission of Bridge or a Bridge Subsidiary or a vendor or customer
of Bridge
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or a Bridge Subsidiary or (ii) equipment or software used by
Bridge and not provided by SAVVIS. Not more than one credit of
one month's charges shall be given for a particular Installation
Site for a particular month. The Quality of Service Standards
shall not apply to the provision of Local Access Facilities in
countries in which the products and services of Bridge and Bridge
Subsidiaries are provided through third-party distributors. For
all purposes of this Agreement, including without limitation the
determination of an Event of Default by SAVVIS, the Quality of
Service Standards applicable to a particular Installation Site in
any month shall be deemed to have been met unless Bridge, within
30 days of its receipt of the performance report for such
Installation Site for such month, requests in writing a credit as
set forth above with respect to such Installation Site for such
month.
2.3. SAVVIS agrees that, for the term of this Agreement, the network
operations centers for the Networks shall be managed by Bridge
under the Technical Services Agreement; provided, however, that
SAVVIS shall not be restricted from building, managing and
operating one or more network operations centers for such
portions of the SAVVIS Backbone or other operations of SAVVIS
that are not used to provide the Networks to Bridge.
2.4. [Intentionally omitted.]
2.5. Unless otherwise mutually agreed by the parties, each Addendum
providing for the provision of Additional Network Facilities
shall have a term of three years. Such Addendum may also include
provisions with respect to the level of redundancy to be provided
and the Quality of Service Standards to apply to such Additional
Network Facilities. In providing Additional Network Facilities,
SAVVIS agrees to use its best efforts to expedite the
provisioning of the circuits for such Additional Network
Facilities in those instances in which SAVVIS is responsible for
provisioning such circuits.
2.6. Throughout the term of this Agreement, SAVVIS shall use its
commercially reasonable best efforts to continue to meet the
requests of Bridge to enhance the total capacity, geographic
extension and performance quality of the Networks, and to
maintain its research and development effort at a level
appropriate to sustain the ability of Bridge to compete on the
basis of the quality of the Networks.
2.7. The parties acknowledge that SAVVIS intends to replace certain
existing routers among the Acquired Network Facilities (the
"REPLACED ROUTERS") with new equipment promptly after the
Effective Date. It is the intention of the parties that the
Replaced Routers will be re-deployed at Installation Sites at
which one or more 56 Kbps ports or 64 Kbps ports will be provided
by SAVVIS using Additional Network Facilities as set forth in
Section 3.1 hereof. SAVVIS agrees to manage the use of its
inventory of routers in order to re-deploy the maximum
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number of Replaced Routers as is commercially reasonable. So long
as Replaced Routers are available for re-deployment during the 18
months following the Effective Date, SAVVIS agrees not to make
any bulk purchases of additional routers without the prior
written consent of Bridge, which will not be unreasonably
withheld. Upon the expiration of 18 months following the
Effective Date, the parties shall determine the number of
Replaced Routers that the parties mutually agree are likely to be
so re-deployed within the succeeding 12 months. All Replaced
Routers that are not reasonably likely to be so re-deployed
within such 12-month period shall be purchased from SAVVIS by
Bridge at a price per Replaced Router equal to the average net
book value as of the Effective Date of all routers included in
the Acquired Network Facilities.
3. RATES AND CHARGES
3.1. Bridge shall pay SAVVIS for the Networks using the Acquired
Network Facilities and Additional Network Facilities according to
the rates and charges set forth in Schedule 3.1 hereof.
3.2. The parties recognize that certain savings might be obtained by
consolidating the multiple Local Access Facilities that are
provided at such building locations on the Effective Date. In the
event that SAVVIS consolidates the multiple Local Access
Facilities at one or more of such building locations and obtains
cost savings as a result thereof, the parties will mutually agree
within 30 days following such consolidation on the manner in
which such savings shall be shared between SAVVIS and Bridge. Any
reduction pursuant to this Section shall not affect the Minimum
Annual Commitment.
3.3. For any Installation Site to which SAVVIS is providing services
both under this Agreement and the Telerate Network Services
Agreement, the rates and charges applicable to such Installation
Site under this Agreement shall be one-half of the rates and
charges that would otherwise be applicable to such Installation
Site under this Agreement.
4. STRATEGIC ADVISORY COMMITTEE
4.1. Within 30 days after the Effective Date, SAVVIS and Bridge shall
each appoint three senior executives to the "STRATEGIC ADVISORY
COMMITTEE," and one outside consultant shall be jointly appointed
by both parties. Any fees and expenses of such outside consultant
incurred in connection with service on the Strategic Advisory
Committee shall be shared equally by SAVVIS and Bridge. Each
party shall have the right to change any or all of its
representatives on the Strategic Advisory Committee upon written
notice to the other party. A quorum of the Strategic Advisory
Committee shall consist of four members, provided that at least
two members appointed by each party are present. The Chair of the
Strategic Advisory Committee shall be designated by Bridge from
among the seven members of the Committee.
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4.2. The mission of the Strategic Advisory Committee shall be to
review the performance of the Networks, to serve as forum for the
consideration and discussion of issues raised by either SAVVIS or
Bridge with respect to the Networks, and to discuss issues
related to the future development of the data transport and
Internet Protocol backbone operations of SAVVIS in the context of
the relationship of SAVVIS and Bridge.
4.3. The Strategic Advisory Committee shall meet with reasonable
frequency, at the call of the Chair.
4.4. The Strategic Advisory Committee shall have reasonable access to
the Chief Executive Officer and the Board of Directors of SAVVIS
to raise areas of concern to the Committee under this Agreement.
4.5. SAVVIS agrees to use its commercially reasonable best efforts to
comply with the recommendations of the Strategic Advisory
Committee regarding performance issues arising under this
Agreement.
5. INVOICES
5.1. The amounts due to SAVVIS from Bridge for the installation,
operation, management and maintenance of the Networks shall be
billed monthly in advance. All items on invoices not the subject
of a bona fide dispute shall be payable by Bridge in United
States currency within 30 days from the date of receipt of the
invoice. All amounts not in dispute are subject to interest
charges of 1-1/2 percent that will accrue daily on all amounts
not paid within 30 days of the date of receipt of the invoice.
5.2. At any time and from time to time, Bridge may, by written notice
to SAVVIS, have one or more Installation Sites removed from the
Networks. Each monthly invoice from SAVVIS to Bridge shall
reflect a reduction in the amount charged to Bridge for the
Networks resulting from any such removal of Installation Sites.
In the case of any Installation Site removed from the Acquired
Network Facilities, such reduction shall be the sum of:
(a) the actual cost of the Local Access Facilities
connecting the Acquired Network Facilities to such
Installation Site, effective as of such time as SAVVIS
is no longer required to pay such costs, and
(b) the amounts set forth on Schedule 5.2 attached hereto,
which are deemed to be one month's charges applicable
to such Installation Site under this Agreement with
respect to such month during the first Agreement Year,
according to connection speed at such Installation
Site, effective as of such time as such Installation
Site is disconnected from the Networks.
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5.3. Bridge shall pay any sales, use, federal excise, utility, gross
receipts, state and local surcharges, value added and similar
taxes, charges or levies lawfully levied by a duly constituted
taxing authority against or upon the Networks. In the
alternative, Bridge shall provide SAVVIS with a certificate
evidencing Bridge's exemption from payment of or liability for
such taxes. All other taxes, charges or levies, including any ad
valorem, income, franchise, privilege or occupation taxes of
SAVVIS shall be paid by SAVVIS.
5.4. Bona fide disputes concerning invoices shall be referred to the
parties' respective representatives who are authorized to resolve
such matters. Any amount to which Bridge is entitled as a result
of the resolution of a billing dispute shall be credited promptly
to Bridge's account. Any amount to which SAVVIS is entitled as a
result of the resolution of a billing dispute shall be paid
promptly to SAVVIS.
5.5. Against the amounts owed by Bridge to SAVVIS under this
Agreement, Bridge shall have the right to offset any amounts owed
by SAVVIS to Bridge under this Agreement, the Technical Services
Agreement, or otherwise, including without limitation any amounts
paid by Bridge on behalf of SAVVIS under guarantees by Bridge of
obligations of SAVVIS.
6. TERM AND EXTENSIONS
6.1. This Agreement shall commence on the Effective Date and shall
continue in full force and effect for the Initial Term unless
terminated or extended in accordance with the provisions hereof.
6.2. The term of this Agreement may be extended by Bridge for one
additional five-year period by giving SAVVIS written notice not
less than one year before the scheduled expiration of the Initial
Term.
6.3. Upon the termination of this Agreement in accordance with its
scheduled expiration or by Bridge pursuant to Section 7, SAVVIS
will continue to provide the Networks in accordance with the
terms and conditions herein (excluding the Minimum Annual
Commitment) for a period of up to five years after the effective
date of termination (the "TRANSITION PERIOD"). During the
Transition Period, Bridge shall pay SAVVIS for the use of the
Networks at the rates in effect for third party customers of
SAVVIS at the effective date of termination. If Bridge has not
completely transitioned from its use of the Networks after the
Transition Period, SAVVIS will provide the Networks at SAVVIS'
then current list rates. SAVVIS and its successor will cooperate
with Bridge until Bridge has completely migrated to another
provider.
7. TERMINATION BY BRIDGE
7.1. An "EVENT OF DEFAULT BY SAVVIS" shall be deemed to occur if:
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(a) SAVVIS has failed to a material degree to perform or
comply with or has violated to a material degree any
material representation, warranty, term, condition or
obligation of SAVVIS under this Agreement, and SAVVIS
has failed to cure such failure or violation within 60
days after receiving notice thereof from Bridge; or
(b) SAVVIS becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(c) an Event of Default by SAVVIS occurs under the Telerate
Network Services Agreement.
7.2. Bridge shall have the right to terminate this Agreement, with no
liability to SAVVIS other than for charges (less any applicable
credits) for the Networks provided prior to such termination, if:
(a) Bridge provides written notice to SAVVIS, at any time
after the ninth anniversary of the Effective Date, of
Bridge's intent to terminate, such termination to be
effective not less than one year following the date of
such notice; or
(b) Bridge provides 10 days written notice of its intent to
terminate in the event that an Event of Default by
SAVVIS occurs.
7.3. For purposes of Section 7.1(a), if the Quality of Service
Standards are not met with respect to a particular Installation
Site in any month, SAVVIS shall be deemed to have cured such
failure within 60 days if the Quality of Service Standards are
met with respect to such Installation Site in the following
month. A failure of the Quality of Service Standards to be met
shall not constitute an Event of Default or give Bridge the right
to terminate this Agreement to the extent that such failure is
due to (i) an act or omission of Bridge or a Bridge Subsidiary or
a vendor or customer of Bridge or a Bridge Subsidiary or (ii)
equipment or software used by Bridge and not provided by SAVVIS.
The parties acknowledge and agree that the failure of the Quality
of Service Standards to be met with respect to one or more
Installation Sites in one or more months may, but does not
necessarily, constitute a failure by SAVVIS to a material degree
to perform or comply with, or a violation to a material degree
of, any material representation, warranty, term, condition or
obligation of SAVVIS under this Agreement.
7.4. As provided in Section 2.2, for all purposes of this Agreement,
including without limitation the determination of an Event of
Default by SAVVIS under this Section, the Quality of Service
Standards applicable to a particular Installation Site in any
month shall be deemed to have been met unless Bridge, within 30
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days of its receipt of the performance report for such
Installation Site for such month, requests in writing a credit as
set forth in Section 2.2 with respect to such Installation Site
for such month.
8. TERMINATION BY SAVVIS
8.1. SAVVIS shall have the right to terminate this Agreement if:
(a) Bridge has failed to pay any invoice that is not the
subject of a bona fide dispute within 60 days of the
date on which such payment is due and SAVVIS has
provided Bridge with written notice thereof, provided
that Bridge shall have a further 30 days from the time
it receives such notice from SAVVIS of nonpayment to
cure any such default;
(b) SAVVIS provides 10 days written notice of its intent to
terminate in the event that Bridge has failed to
perform or comply with or has violated any material
representation, warranty, term, condition or obligation
of Bridge under this Agreement, and Bridge has failed
to cure such failure or violation within 60 days after
receiving notice thereof from SAVVIS;
(c) Bridge becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(d) SAVVIS becomes entitled to terminate the Telerate
Network Services Agreement pursuant to the terms
thereof.
8.2. Notwithstanding the provisions of Section 8.1(b) above, SAVVIS
shall not have the right to terminate this Agreement under
Section 8.1(b) solely for a failure by Bridge to perform or
comply with, a violation by Bridge of, the obligations of Bridge
under Section 15 (Confidentiality) of this Agreement, without
prejudice, however, to such rights as SAVVIS may have pursuant to
such Section and to such rights and remedies to which SAVVIS may
be entitled, at law or in equity, as the result of an actual or
threatened breach by Bridge of such Section.
9. ACCEPTANCE OF ADDITIONAL NETWORK FACILITIES
9.1. Upon the installation of Additional Network Facilities at any
Installation Site, SAVVIS shall conduct appropriate tests to
establish that such Additional Network Facilities perform in
accordance with mutually agreed upon acceptance criteria
("ACCEPTANCE CRITERIA") set forth in the applicable Addendum
entered into pursuant to Section 2.4, and shall promptly inform
Bridge of such test results. If test results show that the
Additional Network Facilities are performing in accordance with
the Acceptance Criteria, Bridge shall be deemed to accept the
Additional Network Facilities at the Installation Site
immediately.
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9.2. If SAVVIS' tests establish that newly installed Additional
Network Facilities at the Installation Site do not perform in
accordance with the mutually agreed upon Acceptance Criteria,
then SAVVIS shall immediately and diligently exert its best
efforts to bring the Additional Network Facilities at such
Installation Site into compliance. SAVVIS shall not xxxx Bridge
for the Additional Network Facilities at such Installation Site
until the test results show that the Additional Network
Facilities are performing in accordance with the Acceptance
Criteria.
9.3. Upon repair or restoration of any part of the Networks, SAVVIS
shall conduct appropriate tests to establish that the Networks
perform in accordance with mutually agreed upon Acceptance
Criteria and shall promptly inform Bridge of such test results.
10. RIGHTS AND OBLIGATIONS OF BRIDGE
10.1. SITE PREPARATION. For the installation of Additional Network
Facilities, Bridge shall, at its own expense, provide all
necessary preparations of each Installation Site in accordance
with the requirements to be mutually agreed upon by the
parties and set forth in an Addendum hereto, including inside
wiring, demarcation extension and rack mount accessories.
Bridge shall ensure that Bridge-provided equipment is on-site
by the scheduled installation date. If SAVVIS is required to
reschedule the installation of Bridge-provided equipment
because it is not on-site by the scheduled installation date,
Bridge shall pay SAVVIS to redispatch installation personnel.
10.2. PROPER USE OF NETWORKS.
10.2.1. Bridge shall use any equipment provided by SAVVIS in
connection with the Networks in accordance with its
documentation, which documentation shall be provided
by SAVVIS at no additional charge. Unless otherwise
provided herein, upon the termination of this
Agreement Bridge shall surrender to SAVVIS the
equipment provided by SAVVIS, in good working order,
ordinary wear and tear excepted.
10.2.2. Bridge shall be liable for damages to the Networks
caused by the negligence or willful acts or omissions
of Bridge's officers, employees, agents, contractors
or customers, for loss through theft or vandalism of
the Networks at the Installation Site, and for
damages to the Networks caused by the use of
equipment or supplies not provided hereunder or not
otherwise authorized by SAVVIS.
10.2.3. Bridge shall neither permit nor assist others to use
the Networks for any purpose other than that for
which they are intended, nor fail to maintain a
suitable environment specified by SAVVIS in the
applicable schedule, nor alter, tamper with, adjust
or repair the Networks. Any such alteration,
tampering, adjustment or repair by Bridge shall
relieve SAVVIS from any
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liability or obligation hereunder (including any
warranty or indemnity obligation) relating to the
affected Network, and Bridge shall be liable to
SAVVIS for any documented direct costs incurred by
SAVVIS as a result of such actions.
10.3. ABUSE OR FRAUDULENT USE OF NETWORKS. Bridge shall not abuse or
fraudulently use the Networks or use the Networks for any
unauthorized or illegal purposes, and shall neither permit nor
assist others to do so, including but not limited to:
(a) obtaining or attempting to obtain service by any
fraudulent means or device to avoid payment; or
(b) accessing, altering or destroying any information of
another party by any fraudulent means or device, or
attempting to do so; or
(c) using the Networks so as to interfere with the use of the
SAVVIS network by other SAVVIS customers or authorized
users or in violation of law or in support of any
unlawful act;
(d) using the Networks for voice communications over a
private network in jurisdictions where such use is not
allowed; or
(e) using the Networks in a manner contrary to or
inconsistent with such acceptable use policies as SAVVIS
may adopt and publish from time to time consistent with
industry standards.
Notwithstanding the provisions of Section 8, upon the breach
of this Section 10.3 by Bridge, SAVVIS shall have the right to
terminate this Agreement with respect to all or part of the
Networks immediately upon written notice to Bridge.
10.4. COVENANT NOT TO COMPETE.
10.4.1. As an inducement to SAVVIS to enter into this
Agreement, which Bridge acknowledges is of benefit to
it, and in consideration of the promises and
representations of SAVVIS under this Agreement,
Bridge covenants and agrees that during the term of
this Agreement and for a period of five years
thereafter, neither Bridge nor any of its successors
or assigns will, directly or indirectly, engage in,
or have any interest in any other person, firm,
corporation or other entity engaged in, any business
activities anywhere in the world competitive with or
similar or related to the packet-data transport
network services provided by SAVVIS under this
Agreement; provided, however, that (i) Bridge and the
Bridge Subsidiaries shall be free to continue to use
the Call Assets and the satellite networks currently
used by Bridge, until such Call Assets or satellite
networks have been acquired by SAVVIS or the SAVVIS
Subsidiaries pursuant to the Master Establishment and
Transition
13
Agreement, and (ii) Bridge shall be free to make
passive investments in securities of companies that
provide network services in competition with SAVVIS
which, in the case of any such security, does not
constitute more than ten percent (10%) of the total
outstanding amount of such security.
10.4.2. If any court or tribunal of competent jurisdiction
shall refuse to enforce one or more of the covenants
in this Section 10.4 because the time limit
applicable thereto is deemed unreasonable, it is
expressly understood and agreed that such covenant or
covenants shall not be void but that for the purpose
of such proceedings such time limitation shall be
deemed to be reduced to the extent necessary to
permit the enforcement of such covenant or covenants.
10.4.3. If any court or tribunal of competent jurisdiction
shall refuse to enforce any or all of the covenants
in this Section 10.4 because, taken together, they
are more extensive (whether as to geographic area,
scope of business or otherwise) than is deemed to be
reasonable, it is expressly understood and agreed
between the parties hereto that such covenant or
covenants shall not be void but that for the purpose
of such proceedings the restrictions contained
therein (whether as to geographic area, scope of
business or otherwise) shall be deemed to be reduced
to the extent necessary to permit the enforcement of
such covenant or covenants.
10.4.4. Bridge specifically acknowledges and agrees that the
foregoing covenants are commercially reasonable and
reasonably necessary to protect the interests of
SAVVIS hereunder. Bridge hereby acknowledges that
SAVVIS and its successors and assigns will suffer
irreparable and continuing harm to the extent that
any of the foregoing covenants is breached and that
legal remedies would be inadequate in the event of
any such breach.
11. RIGHTS AND OBLIGATIONS OF SAVVIS
11.1. PROVISION OF THE NETWORKS. SAVVIS shall operate, maintain and
manage the Networks at the Installation Sites using the
Acquired Network Facilities in accordance with the Quality of
Service Standards and other terms of this Agreement, including
all Addenda hereto.
11.2. REPRESENTATIONS AND WARRANTIES.
11.2.1. [Intentionally omitted.]
11.2.2. SAVVIS hereby represents and warrants that the terms
hereof do not conflict in any respect whatsoever with
any SAVVIS tariff on file with the Federal
Communications Commission or other regulatory body.
If, during the term of this Agreement, SAVVIS shall
file a contract specific tariff
14
governing the Networks or any portion thereof, such
tariff filing shall be consistent in all respects
with the terms of this Agreement, and SAVVIS shall
give Bridge 10 days advance written notice of making
such a tariff filing and of filing any subsequent
modifications thereto.
11.2.3. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
11.3. So long as Bridge is the beneficial owner of 20% of the
outstanding voting securities of SAVVIS Parent, SAVVIS Parent
shall not, without the prior written consent of Bridge, take
any action or otherwise enter into any agreement, arrangement
or understanding, including without limitation the creation or
issuance of any class of stock or other security, or any
agreement with any shareholder of SAVVIS Parent, the effect of
which would be to provide any shareholder of SAVVIS Parent
with any voting or registration rights superior to the voting
or registration rights of Bridge, other than as required by
law.
11.4. SAVVIS acknowledges that the occurrence of Event of Default by
SAVVIS, arising from either (i) a failure of the Networks to
meet Quality of Service Standards or (ii) a total loss to
Bridge of the use of the Networks, could cause irreparable
harm to Bridge, the amount of which may be difficult to
determine, thus potentially making any remedy at law or in
damages inadequate. SAVVIS, therefore, agrees that Bridge
shall have the right to apply to any court of competent
jurisdiction for injunctive relief upon the occurrence of an
Event of Default by SAVVIS or the occurrence of an event
which, with the passage of time or the giving of notice, could
become an Event of Default by SAVVIS and for any other
appropriate relief. This right shall be in addition to any
other remedy available to Bridge in law or equity. SAVVIS
further agrees that, upon the occurrence of an Event of
Default by SAVVIS, SAVVIS shall pay to Bridge, as liquidated
damages and not as a penalty, an amount equal to the lesser of
(a) the aggregate amounts paid by Bridge to SAVVIS under this
Agreement during the six months preceding such Event of
Default by SAVVIS or (b) $50,000,000; provided, however, that
Bridge may recover liquidated damages under this Section only
for an Event of Default by SAVVIS that occurs (i) prior to any
Event of Default by SAVVIS for which Bridge or Telerate or any
Bridge Subsidiary or any Telerate Subsidiary has claimed
liquidated damages under this Section or under the Telerate
Network Services Agreement or under any Local Network Services
Agreement or under any Telerate Local Network Services
Agreement, or (ii) more than 36 months following the most
recent Event of Default by SAVVIS for which Bridge or Telerate
or any Bridge Subsidiary or any Telerate Subsidiary has
claimed liquidated damages under this Section or under the
Telerate Network Services Agreement or under any Local Network
Services Agreement or under any Telerate Local Network
Services Agreement.
15
12. LIMITATIONS OF LIABILITY
12.1. Subject to Section 11.4, neither party shall be liable to the
other for indirect, incidental, consequential, exemplary,
reliance or special damages, including damages for lost
profits, regardless of the form of action whether in contract,
indemnity, warranty, strict liability or tort, including
negligence of any kind with respect to the Networks or other
conduct under this Agreement.
12.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, including fraud, or (b) injury or death, or damage
to tangible real or tangible personal property or the
environment, when proximately caused by SAVVIS' or Bridge's
negligence or that of their respective agents, subcontractors
or employees. Nothing contained in this Section shall limit
SAVVIS' intellectual property indemnification obligations
under Section 16.1 or Bridge's indemnification obligations
with respect to a breach of Section 10.3.
13. EQUIPMENT AND SOFTWARE NOT PROVIDED BY SAVVIS
13.1. SAVVIS shall not be responsible for the installation,
operation or maintenance of equipment or software not provided
by it under this Agreement, nor shall SAVVIS be responsible
for the transmission or reception of information by equipment
or software not provided by SAVVIS hereunder. In the event
that Bridge uses equipment or software not provided by SAVVIS
hereunder in a manner that impairs Bridge's use of the
Networks, Bridge shall not be excused from payment for such
use and SAVVIS shall not be responsible for any failure of the
Networks to meet the Quality of Service Standards resulting
from the use of such equipment or software by Bridge. Upon
notice from SAVVIS that the equipment or software not provided
by SAVVIS under this Agreement is causing or is likely to
cause hazard, interference or service obstruction, Bridge
shall eliminate the likelihood of such hazard, interference or
service obstruction.
13.2. Notwithstanding the foregoing, SAVVIS shall, at no additional
charge, provide all interface specifications for the Networks
reasonably requested by Bridge. SAVVIS shall, upon the receipt
of appropriate specifications from Bridge, inform Bridge of
the compatibility with the Networks of any equipment or
software that Bridge proposes to use in connection therewith,
the effects, if any, of the use of such equipment or software
on the quality, operating characteristics and efficiency of
the Networks, and the effects, if any, of the Networks on the
operating characteristics and efficiency of any such equipment
or software.
14. PROPRIETARY RIGHTS; LICENSE
14.1. SAVVIS hereby grants to Bridge and the Bridge Subsidiaries a
non-exclusive and non-transferable license to use all
programming and software necessary for Bridge and the Bridge
Subsidiaries to use the Networks. Such license is granted
16
for the term of this Agreement for the sole purpose of
enabling Bridge and the Bridge Subsidiaries to use the
Networks.
14.2. All title and property rights (including intellectual property
rights) to the Networks (including associated programming and
software) are and shall remain with SAVVIS or the third-party
providers thereof to SAVVIS. Bridge shall not (except as
permitted by applicable law) attempt to examine, copy, alter,
reverse engineer, decompile, disassemble, tamper with or
otherwise misuse the Networks, programming and software.
15. CONFIDENTIALITY
15.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
15.2. Notwithstanding Section 15.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors or
managers of facilities or equipment used by such party) in
need of access to such information for purposes specifically
related to either party's responsibilities under this
Agreement, provided that any disclosure of Confidential
Information under clause (c) shall be made only upon prior
written approval of the other party and subject to the
appropriate assurances that the recipient of such information
shall hold it in strict confidence.
15.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the
other party with written certification of such destruction.
15.4. Either party may request in writing that the other party waive
all or any portion of the requesting party's responsibilities
relative to the other party's Confidential Information. Such
waiver request shall identify the affected information and the
nature of the proposed waiver. The recipient of the request
shall respond within a
17
reasonable time and, if it determines, in its sole discretion,
to grant the requested waiver, it will do so in writing over
the signature of an employee authorized to grant such request.
15.5. Bridge and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right to
apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Section
and for any other appropriate relief. This right shall be in
addition to any other remedy available in law or equity.
15.6. A party requested or ordered by a court or other governmental
authority of competent jurisdiction to disclose another
party's Confidential Information shall notify the other party
in advance of any such disclosure and, absent the other
party's consent to such disclosure, use its best efforts to
resist, and to assist the other party in resisting, such
disclosure. A party providing another party's Confidential
Information to a court or other governmental authority shall
use its best efforts to obtain a protective order or
comparable assurance that the Confidential Information so
provided will be held in confidence and not further disclosed
to any other person, absent the owner's prior consent.
15.7. The provisions of Section 15.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably necessary
in connection with the sale of securities or the performance
or enforcement of this Agreement or any of the obligations
hereof; provided, however, that if the receiving party would
otherwise be required to refer to or describe any aspect of
this Agreement in any of the preceding circumstances, the
receiving party shall use its reasonable efforts to take such
steps as are available under such circumstances (such as by
providing a summary or synopsis) to avoid disclosure of the
financial terms and conditions of this Agreement.
Notwithstanding any provisions of this Agreement to the
contrary, either party may disclose the terms and conditions
of this Agreement in the course of a due diligence review
performed in connection with prospective debt financing or
equity investment by, or a sale to, a third party, so long as
the persons conducting such due diligence review have agreed
to maintain the confidentiality of such disclosure and not to
use such disclosure for any purpose other such due diligence
review.
18
16. INDEMNIFICATIONS
16.1. SAVVIS shall defend, settle, or otherwise manage at its own
cost and expense any claim or action against Bridge or any of
its directors, officers, employees or assigns for actual or
alleged infringement by the Networks of any patent, copyright,
trademark, trade secret or similar proprietary right of any
third party, except to the extent that such actual or alleged
infringement arises from (i) such actual or alleged
infringement by the Acquired Network Facilities on or prior to
the Effective Date or (ii) an act or omission of Bridge or a
Bridge Subsidiary or a vendor or customer of Bridge or a
Bridge Subsidiary or (iii) equipment or software used by
Bridge and not provided by SAVVIS or (iv) services or
equipment provided by or on behalf of Bridge under the
Technical Services Agreement. Bridge shall notify SAVVIS
promptly in writing of any such claim or suit and shall
cooperate with SAVVIS in a reasonable way to facilitate the
settlement or defense thereof. SAVVIS further agrees to
indemnify and hold Bridge harmless from and against any and
all liabilities and damages (whether incurred as the result of
a judicial decree or a settlement), and the costs and expenses
associated with any claim or action of the type identified in
this Section (including reasonable attorneys' fees).
16.2. If, as a consequence of a claim or action of the kind
described in Section 16.1, SAVVIS' or Bridge's use of all or
part of any Network is enjoined, SAVVIS shall, at its option
and expense, either: (a) procure for Bridge the right to
continue using the affected Network; (b) modify such Network
so that they are non-infringing, provided that such
modification does not affect the intended use of the Network
as contemplated hereunder. If SAVVIS does not take any of the
actions described in clauses (a) or (b), then Bridge may
terminate the affected portion of such Network, and SAVVIS
shall refund to Bridge any prepaid charges therefor.
16.3. Subject to Section 12, Bridge will defend, indemnify and hold
harmless SAVVIS or any of its directors, officers, employees
or assigns from and against all loss, liability, damage and
expense, including reasonable attorneys' fees, caused by:
(a) claims for libel, slander, invasion of privacy or
infringement of copyright, and invasion and/or
alteration of private records or data arising from any
information, data or messages transmitted over the
Networks by Bridge; and
(b) claims for infringement of patents arising from the use
by Bridge of equipment and software, apparatus and
systems not provided hereunder in connection with the
Networks; and
(c) the violation of any representations, warranties and
covenants made by Bridge in this Agreement.
19
16.4. Subject to Section 12, SAVVIS will defend, indemnify and hold
harmless Bridge or any of its directors, officers, employees
or assigns from and against all loss, liability, damage and
expense, including reasonable attorneys' fees, caused by:
(a) claims for infringement of patents arising from the use
by SAVVIS of equipment and software, apparatus and
systems not provided by SAVVIS hereunder in connection
with the Networks (other than any Acquired Network
Facilities); and
(b) the violation of any representations, warranties and
covenants made by SAVVIS in this Agreement.
17. DISPUTES
17.1. Except as expressly provided in Schedule 4.1 of this
Agreement, the resolution of any and all disputes arising from
or in connection with this Agreement, whether based on
contract, tort, statute or otherwise, including disputes over
arbitrability and disputes in connection with claims by third
persons ("DISPUTES") shall be exclusively governed by and
settled in accordance with the provisions of this Section 17.
The foregoing shall not preclude recourse to judicial
proceedings to obtain injunctive, emergency or other equitable
relief to enforce the provisions of this Agreement, including
specific performance, and to decide such issues as are
required to be resolved in determining whether to grant such
relief. Resolution of Disputes with respect to claims by third
persons shall be deferred until any judicial proceedings with
respect thereto are concluded.
17.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a binding arbitration clause
under applicable law. Either party may serve process or notice
on the other in any arbitration or litigation in accordance
with the notice provisions hereof. The parties agree not to
disclose any information regarding any Dispute or the conduct
of any arbitration hereunder, including the existence of such
Dispute or such arbitration, to any person or entity other
than such employees or representatives of such party as have a
need to know.
17.3. Either party may commence proceedings hereunder by delivery of
written notice providing a reasonable description of the
Dispute to the other, including a reference to this provision
(the "DISPUTE NOTICE"). Either party may initiate arbitration
of a Dispute by delivery of a demand therefor (the
"ARBITRATION DEMAND") to the other party not sooner than 60
calendar days after the date of delivery of the Dispute Notice
but at any time thereafter. The arbitration shall be conducted
in St. Louis, Missouri.
20
17.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Bridge, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If an
Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
17.5. The arbitration shall be conducted pursuant to such procedures
as the parties may agree or, in the absence of or failing such
agreement, pursuant to the Rules. Notwithstanding the
foregoing, each party shall have the right to inspect the
books and records of the other party that are reasonably
related to the Dispute, and each party shall provide to the
other, reasonably in advance of any hearing, copies of all
documents which such party intends to present in such hearing
and the names and addresses of all witnesses whose testimony
such party intends to present in such hearing.
17.6. All hearings shall be conducted on an expedited schedule, and
all proceedings shall be confidential. Either party may at its
expense make a stenographic record thereof.
17.7. The Arbitrators shall complete all hearings not later than 90
calendar days after the Arbitrators' selection or appointment,
and shall make a final award not later than 30 calendar days
thereafter. The Arbitrators shall apportion all costs and
expenses of the Arbitration, including the Arbitrators' fees
and expenses of experts ("ARBITRATION COSTS") between the
prevailing and non-prevailing parties as the Arbitrators deem
fair and reasonable. In circumstances where a Dispute has been
asserted or defended against on grounds that the Arbitrators
deem manifestly unreasonable, the Arbitrators may assess all
Arbitration Costs against the non-prevailing party and may
include in the award the prevailing party's attorneys' fees
and expenses in connection with any and all proceedings under
this Section 17.
17.8. Either party may assert appropriate statutes of limitation as
a defense in arbitration; provided, that upon delivery of a
Dispute Notice any such statute shall be tolled pending
resolution hereunder.
17.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and SAVVIS shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Networks to
Bridge unless otherwise directed by Bridge. This Section shall
not apply where (a) Bridge is in default under this Agreement
or (b) the dispute or controversy between the parties relates
to harm to the Networks allegedly caused by Bridge and Bridge
does not immediately cease and desist from the activity giving
rise to the dispute or controversy.
21
18. FORCE MAJEURE
18.1. In no event shall either party be liable to the other for any
failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers (whether
of a party hereto or of others), casualties, accidents or
other causes to the extent that such failure and the
consequences thereof are reasonably beyond the control and
without the fault or negligence of the party claiming excuse.
Each party shall, with the cooperation of the other party, use
reasonable efforts to mitigate the extent of any failure to
perform and the adverse consequences thereof.
18.2. If SAVVIS cannot promptly provide a suitable temporary SAVVIS
alternative to all or part of a Network subject to an
interruption in connection with the existence of a force
majeure condition, Bridge may, at its option and at its own
cost, contract with one or more third parties for the affected
portion of the Network for the shortest commercially available
period likely to cover the reasonably expected duration of the
interruption, and may suspend SAVVIS' provision of such
affected portion for such period. SAVVIS shall not charge
Bridge for the affected portion thus suspended during the
period of suspension. SAVVIS shall resume provision of the
suspended portion of the Network upon the later of the
termination or expiration of Bridge's legally binding
commitments under contracts with third parties for alternative
services or the cessation or remedy of the force majeure
condition.
18.3. In the event that a force majeure condition shall continue for
more than 60 days, Bridge may cancel the affected portion of
the Network with no further liability to SAVVIS other than for
obligations incurred with respect to such affected portion
prior to the occurrence of the force majeure condition.
18.4. The consequences arising from existence and continuation of a
force majeure condition, including without limitation any
interruption of the Networks and the exercise by Bridge of its
rights under this Section 18, shall be deemed not to
constitute a breach by either party hereto of any
representations, warranties or covenants hereunder and shall
not be grounds for the exercise of any remedies under this
Agreement, including without limitation remedies under Section
2.2 or Section 7, other than those specified in this Section
18.
19. GENERAL PROVISIONS
19.1. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person or entity other than
the parties and their respective successors and permitted
assigns.
19.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior
22
understandings, agreements, or representations by or between
the parties, written or oral, to the extent they related in
any way to the subject matter hereof.
19.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. No party
may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
approval of the other party, which consent shall not be
unreasonably withheld.
19.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
19.5. HEADINGS. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
19.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall
be deemed duly given if (and then two business days after) it
is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended
recipient as set forth below:
If to Bridge: Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President and General
Counsel
If to SAVVIS: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President and General Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the
address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may
change the address to which notices, requests, demands,
claims, and other
23
communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
19.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Missouri without giving effect to any choice or conflict of
law provision or rule (whether of the State of Missouri or any
other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Missouri.
19.8. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by SAVVIS and Bridge. No waiver by any party of any
default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent
such occurrence.
19.9. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
19.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
19.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
19.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified in
this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Network
Services Agreement to be executed as of the date first above written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
SAVVIS COMMUNICATIONS CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and General Counsel
24
BRIDGE INFORMATION SYSTEMS, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
25
SCHEDULE 2.2
QUALITY OF SERVICE STANDARDS
1. Starting one year from the Effective Date, the Acquired Network
Facilities and Additional Network Facilities that are connected to the
St. Louis hub where Bridge houses the data distributed over the
Distribution Network (the "ST. LOUIS HUB") by fully redundant paths
shall be covered by Quality of Service Standards outlined below. These
provisions shall be applicable to Installation Sites performing within
the bandwidth limitations set forth in Section 7.2 of Schedule 3.1 or,
with respect to the SAVVIS Backbone, to be agreed upon, and shall be
measured in performance relative to the St. Louis Hub.
2. For the SAVVIS Backbone supporting the Collection Network and
Distribution Network:
(a) There shall not be less than 99.99% availability to any SAVVIS POP
supporting Installation Sites during each one month period during
the Market Hours applicable to the POP connected to the St. Louis
Hub.
(b) The average round-trip terrestrial latency period to SAVVIS POP
locations supporting Installation Sites during each one-month
period shall not exceed:
(i) 75 milliseconds within the United States,
(ii) 250 milliseconds to Australia, Eastern Asia, Europe, and
North America,
(iii) 425 milliseconds to all other areas, including Xxxxx
Xxxxxxx, Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxxx and India.
3. For Installation Sites, network availability shall be measured in terms
of server upstream connectivity during Market Hours for each one-month
period. Resultant availability to the Installation Sites shall be not
less than 99.99% based on the following criteria:
(a) All server disconnects will be considered as potential network
outages.
(b) Disconnects which are attributed to bandwidth limitations, process
failures, and server faults will be eliminated from the sample
population.
(c) Remaining disconnects that reflect total outage conditions on both
redundant pieces of the network shall be considered a network
outage to the Installation Site. The time duration of the network
outage shall be used to determine the availability percentage.
26
3. SAVVIS will continue to monitor performance of the acquired Bridge OA
Network. Performance problems with specific OA sites will be resolved
jointly by Bridge and SAVVIS.
4. CREDIT AMOUNTS
Amounts to be credited if the Quality of Service Standards are not met
with respect to a particular Installation Site in any month shall be as
follows, plus (other than in Distributor Countries) the actual charges
for Installation Site Local Access Facilities, permanent virtual
circuits or other means for connecting such Installation Site to the
SAVVIS POP:
CONNECTION MONTHLY MONTHLY MONTHLY MONTHLY CREDIT
SPEED CREDIT CREDIT CREDIT [DISTRIBUTOR
[UNITED STATES] [EUROPE] [ASIA] [COUNTRIES]
T1 [*] [*] [*] [*]
E1 [*] [*] [*] [*]
256 KBS [*] [*] [*] [*]
128 KBS [*] [*] [*] [*]
64 KBS [*] [*] [*] [*]
56 KBS [*] [*] [*] [*]
ISDN [*] [*] [*] [*]
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
27
SCHEDULE 3.1
PRICING
1. DEFINITIONS.
1.1. "BACKBONE LOCAL ACCESS FACILITIES" means the local access line or
other local communications circuit provided by a local exchange
carrier connecting long-haul circuits to a SAVVIS POP.
1.2. "INITIAL POP THRESHOLD REVENUE" with respect to any metropolitan
area means an amount equal to 2.5 times the sum of:
(a) (i) [*] if the POP is built by SAVVIS,
(ii) [*] if the POP is leased to SAVVIS, plus
(b) the actual cost to SAVVIS of extending two redundant circuits
of the SAVVIS long-haul circuits to a SAVVIS POP in such
metropolitan area, plus
(c) the actual cost to SAVVIS for Backbone Local Access
Facilities connecting the two redundant long-haul circuits to
such SAVVIS POP, plus
(d) the actual cost to SAVVIS of obtaining collocation and power
for such SAVVIS POP.
1.3. "INSTALLATION SITE" means any facility of Bridge or a Bridge
Subsidiary or of vendors or customers of Bridge or a Bridge
Subsidiary at which one or more of the Networks is installed.
1.4. "INSTALLATION SITE LOCAL ACCESS FACILITIES" means the local access
line or other local communications circuit provided by a local
exchange carrier connecting an Installation Site to a SAVVIS POP.
1.5. "LOCAL ACCESS FACILITIES" means the local access line or other
local communications circuit provided by a local exchange carrier.
1.6. "POP" means point-of-presence.
1.7. "SAVVIS BACKBONE" means the collection of long-haul circuits,
Backbone Local Access Facilities and POPS, including switching and
routing equipment, that are owned by, or leased to, SAVVIS
providing telecommunications utilizing the Internet Protocol,
excluding any Installation Site Local Access Facilities.
28
1.8. "SUBSEQUENT POP THRESHOLD REVENUE" with respect to any
metropolitan area means an amount equal to 2.5 times the sum of:
(a) (i) [*] if the POP is built by SAVVIS, or
(ii) [*] if the POP is leased by SAVVIS, plus
(b) the actual cost to SAVVIS of connecting a second switch to
an existing switch in such metropolitan area by means of a
DS3 circuit, plus
(c) the actual cost to SAVVIS of obtaining collocation and power
for such second switch.
1.9. "POP SITE" means any Installation Site that accesses a SAVVIS POP
by means of Local Access Facilities.
1.10. "NON-POP SITE" means any Installation Site other than a POP Site.
2. FIRST-YEAR PRICE FOR NETWORKS USING ACQUIRED NETWORK FACILITIES
2.1. For the first Agreement Year in the Initial Term of this
Agreement, Bridge and the Bridge Subsidiaries shall pay SAVVIS and
the SAVVIS Subsidiaries for the Networks using the Acquired
Network Facilities plus the Short-Term Call Assets in the
aggregate amount determined as follows, but in any event not less
than [*] per month from the Effective Date, such amount to be
allocated between this Agreement and the Local Network Services
Agreements substantially in the form attached as Exhibit A hereto:
(a) The sum of:
(i) the actual cost to Bridge of operating the Networks as
of October 31, 1999, as set forth in Schedule 3.1-A
hereto; plus
(ii) the actual cost to Bridge of the employees transferred
from Bridge to SAVVIS for the operation of the
Networks, determined on the basis of the actual
salaries of such employees, as set forth in Schedule
3.1-A hereto, plus a benefits loading factor to be
mutually agreed upon;
(b) less the actual cost to Bridge of backbone circuits and
associated Backbone Local Access Facilities removed or
replaced subsequent to October 31, 1999, and prior to the
Effective Date;
(c) plus, (i) with respect to the Distribution Network, the
actual cost to SAVVIS as of the Effective Date of backbone
circuits and associated Backbone Local Access added or
substituted or used in part by any party other than Bridge,
subsequent to October 31, 1999, multiplied by the
29
proportionate megabit reserved usage of such circuits as
ordered by Bridge under this Agreement as of the Effective
Date, and further multiplied by [ * ]; or
(ii) with respect to the Collection Network and the OA
Network, the actual cost to SAVVIS as of the Effective Date
of backbone circuits and associated Backbone Local Access
Facilities added or substituted subsequent to October 31,
1999, and prior to the Effective Date, multiplied by [*];
(d) plus the actual cost to Bridge of the additional
Installation Site Local Access Facilities added subsequent
to October 31, 1999, and prior to the Effective Date.
The pricing under the Local Network Services Agreement shall be
as set forth in this Schedule 3.1, according to the geographic
territory applicable to such Local Network Services Agreement;
provided that the pricing for Installation Sites in Latin America
and Installation Sites connected to the Networks by satellite
shall be mutually agreed upon following an analysis to be
conducted by the parties of the costs pertaining to such
Installation Sites. Such pricing shall be determined in a manner
reasonably consistent with the pricing for other Installation
Sites. In the event that the parties are unable to reach
agreement on such pricing after exercising good faith efforts to
do so over a reasonable period of time, such pricing shall be
determined by binding arbitration as provided below. Charges
under each such Local Network Services Agreement shall be billed
locally, in local currency.
3. FIRST-YEAR PRICES AT ADDITIONAL POP SITES
3.1. For the first Agreement Year in the Initial Term of this
Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities in the United States, as follows:
(a) [*] per month for each T1 port, reflecting the cost of
equipment, hardware maintenance, the provision of a
diagnostic dial-up line, and the use of the SAVVIS Backbone,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
30
3.2. For the first Agreement Year in the Initial Term of this
Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities in Europe, as follows:
(a) an amount per month to be determined on an individual case
basis for each E1 port, reflecting the cost of equipment,
hardware maintenance and the provision of a diagnostic
dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
3.3. For the first Agreement Year in the Initial Term of this
Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities in Asia, as follows:
(a) an amount per month to be determined on an individual case
basis for each E1 port, reflecting the cost of equipment,
hardware maintenance and the provision of a diagnostic
dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
3.4. In the event that Bridge wishes to attach any additional servers
to a router having a single E1 port, or any fraction thereof, at
any POP Site, SAVVIS will provide such service at the rate of [*]
per month for each such additional server for the first Agreement
Year in the Initial Term of this Agreement.
3.5. Following the first Agreement Year in the Initial Term of this
Agreement, the rates and charges for the Networks using
Additional Network Facilities at any new POP Site shall be
mutually agreed upon by the parties from time to time and set
forth in an Addendum to this Agreement in the manner set forth in
Section 1.2 of this Agreement and Section 9.1 of this Schedule.
If the parties fail to reach agreement on any such Addendum prior
to the expiration of the Addendum then in effect, the rates and
charges shall be determined by binding arbitration as provided
below.
31
4. FIRST-YEAR PRICES FOR ADDITIONAL NON-POP SITES IN THE UNITED STATES
4.1. 56 KBPS SITES. For the first Agreement Year in the Initial Term
of this Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities at any new Non-POP Site in the
United States at which one or more 56 Kbps ports are provided, as
follows:
(a) [*] per month for each 56 Kbps port, reflecting the cost of
equipment, hardware maintenance, the provision of a
diagnostic dial-up line, and the use of the SAVVIS Backbone,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
4.2. 128 KBPS SITES. For the first Agreement Year in the Initial Term
of this Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities at any new Non-POP Site at which one
or more 128 Kbps ports are provided, as follows:
(a) [*] per month for each 128 Kbps port, reflecting the cost of
equipment, hardware maintenance, the provision of a
diagnostic dial-up line, and the use of the SAVVIS Backbone,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
4.3. 256 KBPS SITES. For the first Agreement Year in the Initial Term
of this Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities at any new Non-POP Site at which one
or more 256 Kbps ports are provided, as follows:
(a) [*] per month for each 256 Kbps port, reflecting the cost of
equipment, hardware maintenance, the provision of a
diagnostic dial-up line, and the use of the SAVVIS Backbone,
plus
32
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
4.4. ISDN BACK-UP LINE. In the event that Bridge wishes to use an ISDN
back-up line in lieu of full redundancy at any Non-POP Site at
which one or more 56 Kbps ports or 128 Kbps ports are provided as
Additional Network Facilities, SAVVIS will provide such service at
the following rate for the first Agreement Year in the Initial
Term of this Agreement:
(a) [*] per month for each ISDN line, reflecting the cost of
equipment and the use of the SAVVIS Backbone, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits, basic rate interface
or other means for connecting such Installation Site to the
SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
5. FIRST-YEAR PRICES FOR ADDITIONAL NON-POP SITES IN EUROPE
5.1. 64 KBPS SITES. For the first Agreement Year in the Initial Term of
this Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities at any new Non-POP Site in Europe at
which one or more 64 Kbps ports are provided, as follows:
(a) [*] per month ([*] per month in a Distributor Country) for
each 64 Kbps port, reflecting the cost of equipment,
hardware maintenance and the provision of a diagnostic
dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
5.2. 128 KBPS SITES. For the first Agreement Year in the Initial Term
of this Agreement, Bridge shall pay SAVVIS for the Networks using
Additional
33
Network Facilities at any new Non-POP Site at which one or
more 128 Kbps ports are provided, as follows:
(a) [*] per month ([*] per month in a Distributor Country) for
each 128 Kbps port, reflecting the cost of equipment,
hardware maintenance and the provision of a diagnostic
dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
5.3. 256 KBPS SITES. For the first Agreement Year in the Initial Term
of this Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities at any new Non-POP Site at which one
or more 256 Kbps ports are provided, as follows:
(a) an amount per month to be determined on an individual case
basis for each 256 Kbps port, reflecting the cost of
equipment, hardware maintenance and the provision of a
diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
5.4. E1 SITES. For the first Agreement Year in the Initial Term of this
Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities at any new Non-POP Site at which one
or more E1 ports are provided, as follows:
(a) [*] per month ([*] per month in a Distributor Country) for
each E1 port, reflecting the cost of equipment, hardware
maintenance and the provision of a diagnostic dial-up line,
plus
34
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
5.5. ISDN BACK-UP LINE. In the event that Bridge wishes to use an ISDN
back-up line in lieu of full redundancy at any Non-POP Site at
which one or more 64 Kbps ports or 128 Kbps ports are provided as
Additional Network Facilities, SAVVIS will provide such service at
the following rate for the first Agreement Year in the Initial
Term of this Agreement:
(a) [*] per month ([*] per month in a Distributor Country) for
each ISDN line, reflecting the cost of equipment, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits, basic rate interface
or other means for connecting such Installation Site to the
SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
6. FIRST-YEAR PRICES FOR ADDITIONAL NON-POP SITES IN ASIA
6.1. 64 KBPS SITES. For the first Agreement Year in the Initial Term of
this Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities at any new Non-POP Site in the
United States at which one or more 64 Kbps ports are provided, as
follows:
(a) [*] per month ([*] per month in a Distributor Country) for
each 64 Kbps port, reflecting the cost of equipment,
hardware maintenance and the provision of a diagnostic
dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
6.2. 128 KBPS SITES. For the first Agreement Year in the Initial Term
of this Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities at any new Non-POP Site at which one
or more 128 Kbps ports are provided, as follows:
35
(a) [*] per month ([*] per month in a Distributor Country) for
each 128 Kbps port, reflecting the cost of equipment,
hardware maintenance and the provision of a diagnostic
dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
6.3. 256 KBPS SITES. For the first Agreement Year in the Initial Term
of this Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities at any new Non-POP Site at which one
or more 256 Kbps ports are provided, as follows:
(a) an amount per month to be determined on an individual case
basis for each 256 Kbps port, reflecting the cost of
equipment, hardware maintenance and the provision of a
diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
6.4. ISDN BACK-UP LINE. In the event that Bridge wishes to use an ISDN
back-up line in lieu of full redundancy at any Non-POP Site at
which one or more 56 Kbps ports or 128 Kbps ports are provided as
Additional Network Facilities, SAVVIS will provide such service at
the following rate for the first Agreement Year in the Initial
Term of this Agreement:
(a) [*] per month for each ISDN line, reflecting the cost of
equipment and the use of the SAVVIS Backbone, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits, basic rate interface
or other means for connecting such Installation Site to the
SAVVIS POP, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
36
7. REDUNDANCY AND BANDWIDTH USAGE
7.1. The amount due to SAVVIS from Bridge for providing the Networks
using Additional Network Facilities at any new Installation Site
having full redundancy will be two times the amount due under
Sections 3.1, 3.2, 3.3, 4, 5 or 6 above with respect to a single
port.
7.2. Bandwidth usage of any port provided to Bridge by SAVVIS under
this Agreement, including both the Acquired Network Facilities and
any Additional Network Facilities, shall not exceed 128 Kbps. In
the event that Bridge wishes to obtain bandwidth usage in excess
of 128 Kbps on any such port, such usage shall be provided for in
an Addendum hereto mutually agreed upon by the parties in the
manner set forth in Section 1.2 of the Agreement.
8. CONVERSION TO POP SITES AND INSTALLATION OF SECOND SWITCH
8.1. In the event that the aggregate amount that would be paid by
Bridge to SAVVIS with respect to Non-POP Sites specified by Bridge
in a metropolitan area if such sites were converted to POP Sites
equals or exceeds the Initial POP Threshold Revenue per month
applicable to such metropolitan area, then, upon written request
from Bridge, SAVVIS shall (i) install a switch in a SAVVIS POP in
such metropolitan area capable of being accessed by means of a
connection using only Installation Site Local Access Facilities,
(ii) extend the SAVVIS Backbone to such SAVVIS POP with two
redundant circuits, and (iii) convert such Non-POP Sites to POP
Sites.
8.2. In the event that, following the installation by SAVVIS of a
switch and the conversion of Non-POP Sites to POP Sites pursuant
to Section 8.1 above, the aggregate amount that would be paid by
Bridge to SAVVIS with respect to additional Non-POP Sites in a
specified metropolitan area if such sites were converted to POP
Sites equals or exceeds the Subsequent POP Threshold Revenue per
month applicable to such metropolitan area, then, upon written
request from Bridge, SAVVIS shall (i) install a second switch in a
SAVVIS POP in such metropolitan area capable of being accessed by
means of a connection using only Installation Site Local Access
Facilities, (ii) connect the two switches by means of a circuit
having appropriate transmission capacity, and (iii) convert such
additional Non-POP Sites to POP Sites.
9. DETERMINATION OF RATES AND CHARGES AFTER FIRST AGREEMENT YEAR
9.1. For each Agreement Year following the first Agreement Year of this
Agreement, the rates and charges for the Networks and any
Additional Network Facilities shall be mutually agreed upon by the
parties from time to time in an Addendum to this Agreement in the
manner set forth in Section 1.2 of this Agreement; provided that,
in Europe or Asia where the Additional Network Facilities charge
does not include a Backbone component, the charge for any Backbone
circuit in
37
the Distribution Network that is not used exclusively for the
carriage of Bridge traffic under this Agreement shall be charged
to Bridge according to the actual cost to SAVVIS of such backbone
circuit multiplied by the proportionate megabit usage of such
circuits by Bridge under this Agreement as of the Effective Date,
and further multiplied by [*]. If the parties fail to reach
agreement on any such Addendum prior to the expiration of the
Addendum then in effect, the rates and charges shall be determined
by binding arbitration, as follows:
9.2. The arbitration shall be conducted by a single arbitrator jointly
selected by the parties, who shall be an attorney experienced and
knowledgeable in the tariffs and pricing of telecommunications
services (the "ARBITRATOR"). If the parties are unable to agree on
the selection of the Arbitrator within 30 days, either party may
apply to the United States District Court for the Eastern District
of Missouri or to the Circuit Court of St. Louis County for the
appointment of the Arbitrator.
(b) Within 10 days following the appointment of the Arbitrator,
each party shall submit to the Arbitrator such party's best
and final offer for the rates and charges to be set forth in
such Addendum.
(c) The Arbitrator must select the offer of one party or the
other as being closer to the Arbitrator's own assessment of
what an independent vendor would charge for services similar
in nature and volume to those to be covered by such Addendum
(the "INDEPENDENT VENDOR PRICE").
(d) The decision of the Arbitrator shall be final and binding on
the parties and shall be incorporated in this Agreement as
an Addendum hereto.
(e) Each party shall bear its own costs in conducting the
arbitration, and the non-prevailing party shall pay the fees
and expenses of the Arbitrator.
9.3. At the time any Addendum is entered into with respect to the rates
and charges for any POP Site, the amount charged to Bridge for the
T-1 ports at such Installation Site shall be not more than the
Independent Vendor Price for providing such ports at such
Installation Site, as mutually agreed by the parties or as
determined by the Arbitrator under Sections 9.1 and 9.2, reduced
by [*]of the excess, if any, of the Independent Vendor Price for
providing such ports over the actual cost to SAVVIS of providing
such ports at such Installation Site.
10. MINIMUM ANNUAL COMMITMENT
10.1.If the aggregate amounts paid by Bridge and the Bridge
Subsidiaries to SAVVIS and the SAVVIS Subsidiaries for the
Networks hereunder for any Agreement Year during the Initial Term
of this Agreement, using not only the Acquired Network Facilities
but also any Additional Network Facilities, is less than the
Minimum Annual Commitment (as defined below), then the amount of
such
38
deficiency shall be payable by Bridge to SAVVIS upon the receipt
by Bridge of an invoice therefor, in accordance with Section 5 of
the Agreement.
10.2. The "MINIMUM ANNUAL COMMITMENT" shall mean:
(a) With respect to the first Agreement Year during the Initial
Term, the amount set forth in Section 2.1 of this Schedule
3.1;
(b) With respect to the second Agreement Year during the Initial
Term, 110% of the amount set forth in Section 2.1 of this
Schedule 3.1;
(c) With respect to the third Agreement Year during the Initial
Term, 120% of the amount set forth in Section 2.1 of this
Schedule 3.1;
(d) With respect to the fourth, fifth and sixth Agreement Years
during the Initial Term, an amount equal to 80% of the total
amount paid by Bridge and all Bridge Subsidiaries during
such Agreement Year to SAVVIS, SAVVIS Subsidiaries and third
parties for Internet Protocol backbone and other data
transport services;
(e) With respect to the seventh, eighth, ninth and tenth
Agreement Years during the Initial Term, an amount equal to
60% of the total amount paid by Bridge and all Bridge
Subsidiaries during such Agreement Year to SAVVIS, SAVVIS
Subsidiaries and third parties for Internet Protocol
backbone and other data transport services.
10.3. With respect to the fourth Agreement Year and each Agreement Year
thereafter, SAVVIS shall have the right, at reasonable times and
on reasonable notice, but not more often than once during any
Agreement Year, to audit the books and records of Bridge and the
Bridge Subsidiaries in order to determine the total amount paid
by Bridge and the Bridge Subsidiaries during an Agreement Year to
SAVVIS, SAVVIS Subsidiaries and third parties for Internet
Protocol backbone and other data transport services. Such audits
may be conducted either by SAVVIS personnel or by outside
auditors retained by SAVVIS for such purpose, subject to the
consent of Bridge to such outside auditors, such consent not to
be unreasonably withheld or delayed. Such audits shall be
conducted at the expense of SAVVIS, including any additional cost
to Bridge in obtaining the cooperation of Bridge's outside
auditors that may be required; provided, that if the actual total
amount paid by Bridge and the Bridge Subsidiaries during an
Agreement Year to SAVVIS, SAVVIS Subsidiaries and third parties
for Internet Protocol backbone and other data transport services
is determined by such audit to be 105% or more of the amount
initially claimed by Bridge with respect to such Agreement Year,
then the cost of such audit shall be borne by Bridge.
39
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
40
SCHEDULE 3.1-A
ACTUAL COST AMOUNTS
1. The parties agree that the actual cost to Bridge of operating the
Networks as of October 31, 1999, is $10,100,000.
2. The parties agree that the actual cost to Bridge of the employees
transferred from Bridge to SAVVIS for the operation of the
Networks, determined on the basis of the actual salaries of such
employees, is $562,614.
3. SAVVIS shall have the right, at reasonable times and on
reasonable notice, to audit the books and records of Bridge in
order to verify the amounts set forth in paragraphs 1 and 2
above. Such audits shall be conducted within 120 days after the
Effective Date, and may be conducted either by SAVVIS personnel
or by outside auditors retained by SAVVIS for such purpose,
subject to the consent of Bridge to such outside auditors, such
consent not to be unreasonably withheld or delayed. Such audits
shall be conducted at the expense of SAVVIS, including any
additional cost to Bridge in obtaining the cooperation of
Bridge's outside auditors that may be required.
41
SCHEDULE 5.2
INSTALLATION SITE REMOVAL AMOUNTS
Amounts by which each monthly invoice from SAVVIS to Bridge shall be
reduced resulting from the removal of a particular Installation Site
shall be as follows during the first Agreement Year, according to the
connection speed at such Installation Site, plus (other than in
Distributor Countries) the actual charges for Installation Site Local
Access Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP:
UNITED STATES:
INSTALLATION SITES INSTALLATION SITES
EXISTING AS OF ADDED AFTER
CONNECTION SPEED THE EFFECTIVE DATE THE EFFECTIVE DATE
T1 [*] [*]
256 KBS [*] [*]
128 KBS [*] [*]
56 KBS [*] [*]
ISDN [*] [*]
EUROPE:
INSTALLATION SITES INSTALLATION SITES
AS OF ADDED AFTER DISTRIBUTOR
CONNECTION SPEED EFFECTIVE DATE EFFECTIVE DATE COUNTRY
256 KBS [*] [*] [*]
128 KBS [*] [*] [*]
64 KBS [*] [*] [*]
ISDN [*] [*] [*]
E1 [*] [*] [*]
42
ASIA:
INSTALLATION SITES INSTALLATION SITES
AS OF ADDED AFTER DISTRIBUTOR
CONNECTION SPEED EFFECTIVE DATE EFFECTIVE DATE COUNTRY
256 KBS [*] [*] [*]
128 KBS [*] [*] [*]
64 KBS [*] [*] [*]
ISDN [*] [*] [*]
E1 [*] [*] [*]
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
43
EXHIBIT A
TO NETWORK SERVICES AGREEMENT
FORM OF LOCAL
NETWORK SERVICES AGREEMENT
This LOCAL NETWORK SERVICES AGREEMENT (the "Agreement") is effective as
of ___________, 2000 (the "Effective Date") between [local SAVVIS entity], a
[limited liability company] incorporated under the laws of [country ] ("SAVVIS")
and [local Bridge/Telerate entity], a [limited liability company] incorporated
under the laws of [country] ("Customer").
RECITALS
A. Customer is engaged in the business of collecting and distributing
various financial, news and other data in [country] (the "JURISDICTION").
B. SAVVIS is engaged in the business of providing Internet Protocol
backbone and other data transport services in the Jurisdiction.
C. SAVVIS Communications and [Bridge Parent]/[Telerate Parent] have
entered into the Network Services Agreement for the provision and receipt of
similar services on a world-wide basis at the parent level as are being provided
and received by the parties to this Agreement within the Jurisdiction.
D. Together with this Agreement, SAVVIS is entering into certain other
agreements with Customer, or Affiliates of the Customer, related to their
operations in the Jurisdiction, including Local Transfer Agreements, Equipment
Collocation Permits, and Local Administrative Services Agreements.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Local Network Services
Agreement by and between SAVVIS and Customer, including all
addenda to this Agreement entered into in the manner set forth
herein (each an "ADDENDUM" and collectively the "ADDENDA"). This
Agreement shall be interpreted wherever possible to avoid
conflicts between the Sections hereof and the Addenda, provided
that if such a conflict shall arise, the Addenda shall control.
1.2. Whenever it is provided in this Agreement for a matter to be
mutually agreed upon by the parties and set forth in an Addendum
to this Agreement, either party
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may initiate the process of determining such matter by
submitting a proposed outline or contents of such Addendum to
the other party. Each party shall appoint a primary contact
and a secondary contact for the completion of such Addendum,
who shall be the contact points for every issue concerning
such Addendum and who shall be informed of the progress of the
project. The names of the contacts will be exchanged in
writing by the parties. Using the contacts, the parties shall
work together in good faith with such diligence as shall be
commercially reasonable under the circumstances to complete
such Addendum, provided, however, that neither party shall be
obligated to enter into such an Addendum. Upon the completion
of such Addendum, it shall be set forth in a written document
and executed by the parties and shall become a part of this
Agreement and shall be deemed to be incorporated herein by
reference.
1.3. Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined
terms shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included"
and "including" shall not be construed as terms of limitation.
Capitalized terms not otherwise defined herein have the
meanings assigned to such terms in the Network Services
Agreement.
"ACQUIRED NETWORK FACILITIES" means the assets and contracts
for the provision of Internet Protocol backbone and other data
transport services within the Jurisdiction to the extent
acquired by SAVVIS pursuant to the Local Transfer Agreement
between Customer, or Affiliates of the Customer, and SAVVIS.
"ADDITIONAL NETWORK FACILITIES" means any assets and contracts
of SAVVIS for the provision of Internet Protocol backbone and
other data transport services other than the Acquired Network
Facilities.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" means a period of 12 months beginning on the
Effective Date and each subsequent anniversary thereof.
["BRIDGE PARENT" means Bridge Information Systems, Inc., a
Missouri corporation, and its successors and assigns.]
"CONFIDENTIAL INFORMATION" means all information concerning
the business of Customer, SAVVIS or any third party doing
business with either of them that may be obtained from any
source (i) by SAVVIS by virtue of its performance under this
Agreement or (ii) by Customer by virtue of its use of the
Networks. Such information shall also include the terms of
this Agreement (and negotiations and proposals from one party
to the other related directly thereto), network designs and
design recommendations, tools and programs, pricing, methods,
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processes, financial data, software, research, development,
strategic plans or related information. All such information
disclosed prior to the execution of this Agreement shall also
be considered Confidential Information for purposes of this
Agreement. Confidential Information shall not include
information that:
(a) is already rightfully known to the receiving party
at the time it is obtained by such party, free
from any obligation to keep such information
confidential; or
(b) is or becomes publicly known through no wrongful
act of the receiving party; or
(c) is rightfully received by the receiving party from
a third party without restriction and without
breach of this Agreement.
"CUSTOMER" means [local Bridge/Telerate entity], a [limited
liability company] incorporated under the laws of [country],
and its successors and assigns.
"DISTRIBUTOR COUNTRY" means any country in which the products
and services of Bridge and Bridge Subsidiaries are provided
through third-party distributors.
"EFFECTIVE DATE" means the date set forth in the Preamble of
this Agreement.
"EVENT OF DEFAULT BY SAVVIS" has the meaning assigned to such
term in Section 7.1 of this Agreement.
"INITIAL TERM" means a period of ten consecutive Agreement
Years beginning on the Effective Date.
"INSTALLATION SITE" means any facility of Customer or of
vendors or customers of Customer at which one or more of the
Networks is installed.
"LOCAL EXCHANGE CARRIER" means the local telecommunications
provider(s) from which SAVVIS leases the lines it makes
available to Customer.
"LOCAL [TELERATE]/[BRIDGE] NETWORK SERVICES AGREEMENT" means a
local network services agreement pursuant to which SAVVIS
shall provide Internet Protocol backbone and other data
transport services to an Affiliate of [Telerate
Parent]/[Bridge Parent] operating in the Jurisdiction.
"MARKET HOURS" means, with respect to any Installation Site,
the period of time beginning two hours before the time at
which trading opens on the principal securities exchange or
automated quotation system designated by Customer in writing
from time to time as being used by the purchasers and sellers
of securities at such Installation Site, and ending two hours
after the time at which such trading ceases to be conducted.
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"NETWORK" and "NETWORKS" have the meaning assigned to such
terms in Section 2.1 of this Agreement.
"NETWORK SERVICES AGREEMENT" means the Network Services
Agreement between SAVVIS Communications and [Bridge
Parent]/[Telerate Parent], effective as of February 14, 2000.
"POP" means point-of-presence.
"QUALITY OF SERVICE STANDARDS" means the standards for the
performance of the Networks contained in Schedule 2.2 hereto
or an Addendum to this Agreement.
"SAVVIS" means [local SAVVIS entity], a [limited liability
company] incorporated under the laws of [country ], and its
successors and assigns.
"SAVVIS COMMUNICATIONS" means SAVVIS Communications
Corporation, a Missouri corporation, its successors and
assigns.
"SECURITIES EXCHANGE ACT" means the United States Securities
Exchange Act of 1934, as amended.
"TAIL CIRCUIT" means the access line or other communications
circuit from the SAVVIS POP to an Installation Site.
["TELERATE PARENT" means Telerate Holdings, Inc., a Delaware
corporation, and its successors and assigns.]
"TRANSITION PERIOD" has the meaning assigned to such term in
Section 6.3 of this Agreement.
2. THE NETWORKS AND QUALITY OF SERVICE STANDARDS
2.1. SAVVIS agrees to use the Acquired Network Facilities to
provide to Customer the following managed packet-data
transport networks, including the operation, management and
maintenance thereof:
(a) that portion of a global office-automation network
located in the Jurisdiction, providing connectivity
between the offices of Customer, Bridge Parent and
Affiliates of Bridge Parent (the "OA NETWORK"),
(b) that portion of a global data collection network
located in the Jurisdiction (the "COLLECTION
NETWORK") and
(c) that portion of a global data distribution network
located in the Jurisdiction (the "DISTRIBUTION
NETWORK"),
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which shall be referred to in this Agreement
collectively as the "NETWORKS" and individually as a
"NETWORK."
2.2. Each Network shall be operated, managed and maintained by
SAVVIS. SAVVIS may, but shall not be obligated to, use
facilities of SAVVIS other than the Acquired Network
Facilities to provide all or any part of any Network.
Beginning on the first anniversary of the Effective Date and
thereafter, each Network shall be operated, managed and
maintained by SAVVIS according to the Quality of Service
Standards set forth in Schedule 2.2 hereof, and SAVVIS shall
be responsible for monitoring the performance of the Networks
with respect to the Quality of Service Standards and shall
provide Customer with monthly reports of such performance. If
the Quality of Service Standards are not met with respect to a
particular Installation Site in any month, Customer shall be
entitled to receive, upon written request by Customer within
30 days of its receipt of the performance report for such
Installation Site for such month, a credit in the amount set
forth on Schedule 2.2 attached hereto (or, in the case of a
Distributor Country, as set forth on Schedule 2.2 to the
Network Services Agreement), which amount shall be deemed to
be one month's charges applicable to such Installation Site
under this Agreement with respect to such month; provided,
however, that Customer shall not be entitled to such credit to
the extent that the failure to meet the Quality of Service
Standards with respect to such Installation Site is due to (i)
an act or omission of Customer or a vendor or customer of
Customer or (ii) equipment or software used by Customer and
not provided by SAVVIS. Not more than one credit of one
month's charges shall be given for a particular Installation
Site for a particular month. The Quality of Service Standards
shall not apply to the provision of Local Access Facilities in
countries in which the products and services of Bridge and
Bridge Subsidiaries are provided through third-party
distributors. For all purposes of this Agreement, including
without limitation the determination of an Event of Default by
SAVVIS, the Quality of Service Standards applicable to a
particular Installation Site in any month shall be deemed to
have been met unless Customer, within 30 days of its receipt
of the performance report for such Installation Site for such
month, requests in writing a credit as set forth above with
respect to such Installation Site for such month.
2.3. [Intentionally omitted.]
2.4. In providing Additional Network Facilities, SAVVIS agrees to
use its best efforts to expedite the provisioning of the
circuits for such Additional Network Facilities in those
instances in which SAVVIS is responsible for provisioning such
circuits, and to use its best efforts to avoid single points
of failure in the engineering design of such Additional
Network Facilities, consistent with the level of redundancy
specified in the applicable Addendum.
2.5. Throughout the term of this Agreement, SAVVIS shall use its
reasonable best efforts to continue to meet the requests of
Customer to enhance the total capacity,
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geographic extension and performance quality of the Networks,
and to maintain its research and development effort at a level
appropriate to sustain the ability of Customer to compete on
the basis of the quality of the Networks.
3. RATES AND CHARGES
3.1. Customer shall pay SAVVIS for the Networks using the Acquired
Network Facilities and Additional Network Facilities according
to the rates and charges set forth in Schedule 3.1 of the
Network Services Agreement.
3.2. The parties recognize that certain savings might be obtained
by consolidating the multiple Local Access Facilities that are
provided at such building locations on the Effective Date. In
the event that SAVVIS consolidates the multiple Local Access
Facilities at one or more of such building locations and
obtains cost savings as a result thereof, the parties will
mutually agree within 30 days following such consolidation on
the manner in which such savings shall be shared as follows:
(a) between SAVVIS and Customer, if only Customer uses
those consolidated Local Access Facilities; or
(b) between SAVVIS, Customer and the Affiliate of
[Telerate Parent]/[Bridge Parent] that is a party to
the Local [Telerate]/[Bridge] Network Services
Agreement, if both Customer and such Affiliate use
those consolidated Local Access Facilities.
3.3. For any Installation Site to which SAVVIS is providing
services both under this Agreement and a Local
[Telerate]/[Bridge] Network Services Agreement, the rates and
charges applicable to such Installation Site under this
Agreement shall be one-half of the rates and charges that
would otherwise be applicable to such Installation Site under
this Agreement.
4. PROVISION OF TAIL CIRCUITS
4.1. SAVVIS shall use its reasonable efforts to provide a Tail
Circuit to Customer by contracting with the Local Exchange
Carrier for access to the Tail Circuit and causing the Tail
Circuit to be operated, managed, and maintained as necessary
to provide access thereto to Customer. SAVVIS does not
guarantee or warrant the performance of the Tail Circuit or
the performance by the Local Exchange Carrier of its
obligations under any contract between SAVVIS and the Local
Exchange Carrier, applicable laws and regulations, or
standards of the industry.
4.2. Customer shall not use the Tail Circuit in any way that might
cause SAVVIS to violate the terms and conditions under which
access to the Tail Circuit is provided by the Local Exchange
Carrier, whether such terms and conditions be contractual,
regulatory, or other.
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4.3. Customer shall be responsible for only that portion of SAVVIS'
costs attributable to Customer's own access to and use of the
Tail Circuit. In the event that SAVVIS provides access to any
third party or parties, Customer and SAVVIS will follow the
procedure set forth in Section 1.2 above in order to establish
a mutually agreed upon method or formula for determining the
amount to be charged to Customer, generally based on a pro
rata allocation of SAVVIS' total costs among all its customers
and other relevant considerations and/or fair and reasonable
adjustments in light of the circumstances at that time.
5. INVOICES
5.1. The amounts due to SAVVIS from Customer for the installation,
operation, management and maintenance of the Networks shall be
billed monthly in advance. All items on invoices not the
subject of a bona fide dispute shall be payable by Customer in
legal currency of [jurisdiction] within 30 days from the date
of receipt of the invoice. All amounts not in dispute are
subject to interest charges of 1-1/2 percent that will accrue
daily on all amounts not paid within 30 days of the date of
receipt of the invoice.
5.2. At any time and from time to time, Customer may, by written
notice to SAVVIS, have one or more Installation Sites removed
from the Networks. Each monthly invoice from SAVVIS to
Customer shall reflect a reduction in the amount charged to
Customer for the Networks resulting from any such removal of
Installation Sites. In the case of any Installation Site
removed from the Acquired Network Facilities, such reduction
shall be the sum of:
(a) the actual cost of the Local Access Facilities
connecting the Acquired Network Facilities to such
Installation Site, effective as of such time as
SAVVIS is no longer required to pay such costs, and
(b) the amounts set forth on Schedule 5.2 of the Network
Services Agreement, which are deemed to be one
month's charges applicable to such Installation Site
under this Agreement with respect to such month
during the first Agreement Year, according to the
geographic location and connection speed at such
Installation Site, effective as of such time as such
Installation Site is disconnected from the Networks.
5.3. Customer shall pay any sales, use, federal excise, utility,
gross receipts, state and local surcharges, value added and
similar taxes, charges or levies lawfully levied by a duly
constituted taxing authority against or upon the Networks. In
the alternative, Customer shall provide SAVVIS with a
certificate evidencing Customer's exemption from payment of or
liability for such taxes. All other taxes, charges or levies,
including any ad valorem, income, franchise, privilege or
occupation taxes of SAVVIS shall be paid by SAVVIS.
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5.4. Bona fide disputes concerning invoices shall be referred to
the parties' respective representatives who are authorized to
resolve such matters. Any amount to which Customer is entitled
as a result of the resolution of a billing dispute shall be
credited promptly to Customer's account. Any amount to which
SAVVIS is entitled as a result of the resolution of a billing
dispute shall be paid promptly to SAVVIS.
5.5. Against the amounts owed by Customer to SAVVIS under this
Agreement, Customer shall have the right to offset any amounts
owed by SAVVIS to Customer under this Agreement, or otherwise,
including without limitation any amounts paid by Bridge Parent
on behalf of SAVVIS under guarantees by Bridge Parent of
obligations of SAVVIS.
6. TERM AND EXTENSIONS
6.1. This Agreement shall commence on the Effective Date and shall
continue in full force and effect for the Initial Term unless
terminated or extended in accordance with the provisions
hereof.
6.2. The term of this Agreement may be extended by Customer for one
additional five-year period by giving SAVVIS written notice
not less than one year before the scheduled expiration of the
Initial Term.
6.3. Upon the termination of this Agreement in accordance with its
scheduled expiration or by Customer pursuant to Section 7,
SAVVIS will continue to provide the Networks in accordance
with the terms and conditions herein (excluding the Minimum
Annual Commitment) for a period of up to five years after the
effective date of termination (the "TRANSITION PERIOD").
During the Transition Period, Customer shall pay SAVVIS for
the use of the Networks at the rates in effect at the
effective date of termination. If Customer has not completely
transitioned from its use of the Networks after the Transition
Period, SAVVIS will provide the Networks at SAVVIS' then
current list rates. SAVVIS and its successor will cooperate
with Customer until Customer has completely migrated to
another provider.
6.4. The above provisions of this Section 6 notwithstanding, the
term of this Agreement, including the Initial Term and any
extension provided under Section 6.2, and the Transition
Period shall not extend beyond the term or the transition
period of the Network Services Agreement.
7. TERMINATION BY CUSTOMER
7.1. An "EVENT OF DEFAULT BY SAVVIS" shall be deemed to occur if:
(a) SAVVIS has failed to a material degree to perform or
comply with or has violated any material
representation, warranty, term, condition or
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obligation of SAVVIS under this Agreement, and SAVVIS
has failed to cure such failure or violation within
60 days after receiving notice thereof from Customer;
or
(b) SAVVIS becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(c) an Event of Default by SAVVIS occurs under the Local
[Telerate]/[Bridge] Network Services Agreement or
SAVVIS Communications defaults under the terms of the
Network Services Agreement.
7.2. Customer shall have the right to terminate this Agreement,
with no liability to SAVVIS other than for charges (less any
applicable credits) for the Networks provided prior to such
termination, if:
(a) Customer provides written notice to SAVVIS, at any
time after the ninth anniversary of the Effective
Date, of Customer's intent to terminate, such
termination to be effective not less than one year
following the date of such notice; or
(b) Customer provides 10 days written notice of its
intent to terminate in the event that an Event of
Default by SAVVIS occurs.
7.3. For purposes of Section 7.1(a), if the Quality of Service
Standards are not met with respect to a particular
Installation Site in any month, SAVVIS shall be deemed to have
cured such failure within 60 days if the Quality of Service
Standards are met with respect to such Installation Site in
the following month. The parties acknowledge and agree that
the failure of the Quality of Service Standards to be met with
respect to one or more Installation Sites in one or more
months may, but does not necessarily, constitute a failure by
SAVVIS to a material degree to perform or comply with or a
violation to a material degree of any material representation,
warranty, term, condition or obligation of SAVVIS under this
Agreement.
7.4. As provided in Section 2.2, for all purposes of this
Agreement, including without limitation the determination of
an Event of Default by SAVVIS under this Section, the Quality
of Service Standards applicable to a particular Installation
Site in any month shall be deemed to have been met unless
Customer, within 30 days of its receipt of the performance
report for such Installation Site for such month, requests in
writing a credit as set forth in Section 2.2 with respect to
such Installation Site for such month.
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8. TERMINATION BY SAVVIS
8.1. SAVVIS shall have the right to terminate this Agreement if:
(a) Customer has failed to pay any invoice that is not
the subject of a bona fide dispute within 60 days of
the date on which such payment is due and SAVVIS has
provided Customer with written notice thereof,
provided that Customer shall have a further 30 days
from the time it receives such notice from SAVVIS of
nonpayment to cure any such default;
(b) SAVVIS provides 10 days written notice of its intent
to terminate in the event that Customer has failed to
perform or comply with or has violated any material
representation, warranty, term, condition or
obligation of Customer under this Agreement, and
Customer has failed to cure such failure or violation
within 60 days after receiving notice thereof from
SAVVIS; or
(c) Customer becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(d) SAVVIS becomes entitled to terminate the Local
[Telerate]/[Bridge] Network Services Agreement or
SAVVIS Communications becomes entitled to terminate
the Network Services Agreement.
8.2. Notwithstanding the provisions of Section 8.1(b) above, SAVVIS
shall not have the right to terminate this Agreement under
Section 8.1(b) solely for a failure by Customer to perform or
comply with, a violation by Customer of, the obligations of
Customer under Section 15 (Confidentiality) of this Agreement,
without prejudice, however, to such rights as SAVVIS may have
pursuant to such Section and to such rights and remedies to
which SAVVIS may be entitled, at law or in equity, as the
result of an actual or threatened breach by Customer of such
Section.
9. ACCEPTANCE OF ADDITIONAL NETWORK FACILITIES
9.1. Upon the installation of Additional Network Facilities at any
Installation Site, SAVVIS shall conduct appropriate tests to
establish that such Additional Network Facilities perform in
accordance with mutually agreed upon acceptance criteria
("ACCEPTANCE CRITERIA") set forth in the applicable Addendum
entered into pursuant to Section 2.4, and shall promptly
inform Customer of such test results. If test results show
that the Additional Network Facilities are performing in
accordance with the Acceptance Criteria, Customer shall be
deemed to accept the Additional Network Facilities at the
Installation Site immediately.
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9.2. If SAVVIS' tests establish that newly installed Additional
Network Facilities at the Installation Site do not perform in
accordance with the mutually agreed upon Acceptance Criteria,
then SAVVIS shall immediately and diligently exert its best
efforts to bring the Additional Network Facilities at such
Installation Site into compliance. SAVVIS shall not xxxx
Customer for the Additional Network Facilities at such
Installation Site until the test results show that the
Additional Network Facilities are performing in accordance
with the Acceptance Criteria.
9.3. Upon repair or restoration of any part of the Networks, SAVVIS
shall conduct appropriate tests to establish that the Networks
perform in accordance with mutually agreed upon Acceptance
Criteria and shall promptly inform Customer of such test
results.
10. RIGHTS AND OBLIGATIONS OF CUSTOMER
10.1. SITE PREPARATION. For the installation of Additional Network
Facilities, Customer shall, at its own expense, provide all
necessary preparations of each Installation Site in accordance
with the requirements to be mutually agreed upon by the
parties and set forth in an Addendum hereto, including inside
wiring, demarcation extension and rack mount accessories.
Customer shall ensure that Customer-provided equipment is
on-site by the scheduled installation date. If SAVVIS is
required to reschedule the installation of Customer-provided
equipment because it is not on-site by the scheduled
installation date, Customer shall pay SAVVIS to redispatch
installation personnel.
10.2. PROPER USE OF NETWORKS.
10.2.1. Customer shall use any equipment provided by SAVVIS
in connection with the Networks in accordance with
its documentation, which documentation shall be
provided by SAVVIS at no additional charge. Unless
otherwise provided herein, upon the termination of
this Agreement Customer shall surrender to SAVVIS the
equipment provided by SAVVIS, in good working order,
ordinary wear and tear excepted.
10.2.2. Customer shall be liable for damages to the Networks
caused by the negligence or willful acts or omissions
of Customer's officers, employees, agents or
contractors, for loss through theft or vandalism of
the Networks at the Installation Site, and for
damages to the Networks caused by the use of
equipment or supplies not provided hereunder or not
otherwise authorized by SAVVIS.
10.2.3. Customer shall neither permit nor assist others to
use the Networks for any purpose other than that for
which they are intended, nor fail to maintain a
suitable environment specified by SAVVIS in the
applicable schedule, nor alter, tamper with, adjust
or repair the Networks. Any such alteration,
tampering, adjustment or repair by Customer shall
relieve
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SAVVIS from any liability or obligation hereunder
(including any warranty or indemnity obligation)
relating to the affected Network, and Customer shall
be liable to SAVVIS for any documented direct costs
incurred by SAVVIS as a result of such actions.
10.3. ABUSE OR FRAUDULENT USE OF NETWORKS. Customer shall neither
permit nor assist others to abuse or fraudulently use the
Networks, or to use the Networks for any unauthorized or
illegal purposes, including:
(a) obtaining or attempting to obtain service by any
fraudulent means or device to avoid payment; or
(b) accessing, altering or destroying any information of
another party by any fraudulent means or device, or
attempting to do so; or
(c) using the Networks so as to interfere with the use of
the SAVVIS network by other SAVVIS customers or
authorized users or in violation of law or in support
of any unlawful act; or
(d) using the Networks for voice communications over a
private network in jurisdictions where such use is
not allowed.
Notwithstanding the provisions of Section 8, upon the breach
of this Section 10.3 by Customer, SAVVIS shall have the right
to terminate this Agreement immediately upon written notice to
Customer.
10.4. COVENANT NOT TO COMPETE.
10.4.1. As an inducement to SAVVIS to enter into this
Agreement, which Customer acknowledges is of benefit
to it, and in consideration of the promises and
representations of SAVVIS under this Agreement,
Customer covenants and agrees that during the term of
this Agreement and for a period of five years
thereafter, neither Customer nor any of its
successors or assigns will, directly or indirectly,
engage in, or have any interest in any other person,
firm, corporation or other entity engaged in, any
business activities anywhere in the world competitive
with or similar or related to the packet-data
transport network services provided by SAVVIS under
this Agreement; provided, however, that (i) Customer
shall be free to continue to use the Call Assets and
the satellite networks currently used by Customer,
until such Call Assets or satellite networks have
been acquired by SAVVIS, SAVVIS Communications or
Affiliates of SAVVIS Communications, and (ii)
Customer shall be free to make passive investments in
securities of companies that provide network services
in competition with SAVVIS which, in the case of any
such security, does not constitute more than ten
percent (10%) of the total outstanding amount of such
security.
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10.4.2. If any court or tribunal of competent jurisdiction
shall refuse to enforce one or more of the covenants
in this Section 10.4 because the time limit
applicable thereto is deemed unreasonable, it is
expressly understood and agreed that such covenant or
covenants shall not be void but that for the purpose
of such proceedings such time limitation shall be
deemed to be reduced to the extent necessary to
permit the enforcement of such covenant or covenants.
10.4.3. If any court or tribunal of competent jurisdiction
shall refuse to enforce any or all of the covenants
in this Section 10.4 because, taken together, they
are more extensive (whether as to geographic area,
scope of business or otherwise) than is deemed to be
reasonable, it is expressly understood and agreed
between the parties hereto that such covenant or
covenants shall not be void but that for the purpose
of such proceedings the restrictions contained
therein (whether as to geographic area, scope of
business or otherwise) shall be deemed to be reduced
to the extent necessary to permit the enforcement of
such covenant or covenants.
10.4.4. Customer specifically acknowledges and agrees that
the foregoing covenants are commercially reasonable
and reasonably necessary to protect the interests of
SAVVIS hereunder. Customer hereby acknowledges that
SAVVIS and its successors and assigns will suffer
irreparable and continuing harm to the extent that
any of the foregoing covenants is breached and that
legal remedies would be inadequate in the event of
any such breach.
11. RIGHTS AND OBLIGATIONS OF SAVVIS
11.1. PROVISION OF THE NETWORKS. SAVVIS shall operate, maintain and
manage the Networks at the Installation Sites using the
Acquired Network Facilities in accordance with the Quality of
Service Standards and other terms of this Agreement, including
all Addenda hereto.
11.2. REPRESENTATIONS AND WARRANTIES.
11.2.1. [Intentionally omitted.]
11.2.2. SAVVIS hereby represents and warrants that the terms
hereof do not conflict in any respect whatsoever with
any SAVVIS tariff on file with the Federal
Communications Commission or other regulatory body.
If, during the term of this Agreement, SAVVIS shall
file a contract specific tariff governing the
Networks or any portion thereof, such tariff filing
shall be consistent in all respects with the terms of
this Agreement, and SAVVIS shall give Customer 10
days advance written notice of making such a tariff
filing and of filing any subsequent modifications
thereto.
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11.2.3. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
11.3. SAVVIS acknowledges that the occurrence of Event of Default by
SAVVIS, arising from either (i) a failure of the Networks to
meet Quality of Service Standards or (ii) a total loss to
Customer of the use of the Networks, could cause irreparable
harm to Customer, the amount of which may be difficult to
determine, thus potentially making any remedy at law or in
damages inadequate. SAVVIS, therefore, agrees that Customer
shall have the right to apply to any court of competent
jurisdiction for injunctive relief upon the occurrence of an
Event of Default by SAVVIS or the occurrence of an event
which, with the passage of time or the giving of notice, could
become an Event of Default by SAVVIS and for any other
appropriate relief. This right shall be in addition to any
other remedy available to Customer in law or equity. SAVVIS
further agrees that, upon the occurrence of an Event of
Default by SAVVIS, SAVVIS shall pay to Customer, as liquidated
damages and not as a penalty, an amount equal to the lesser of
(a) the aggregate amounts paid by Customer to SAVVIS under
this Agreement during the six months preceding such Event of
Default by SAVVIS or (b) $50,000,000; provided, however, that
Customer may recover liquidated damages under this Section
only for an Event of Default by SAVVIS that occurs (i) prior
to any Event of Default by SAVVIS for which Customer or
[Bridge Parent]/[Telerate Parent] or any customer of [Bridge
Parent]/[Telerate Parent] has claimed liquidated damages under
this Section or under a Network Services Agreement or any
Local [Telerate]/[Bridge] Network Services Agreement, or (ii)
more than 36 months following the most recent Event of Default
by SAVVIS for which Customer or [Bridge Parent]/[Telerate
Parent] or any customer of [Bridge Parent]/[Telerate Parent]
has claimed liquidated damages under this Section or under a
Network Services Agreement or any Local [Telerate]/[Bridge]
Network Services Agreement.
12. LIMITATIONS OF LIABILITY
12.1. Subject to Section 11.4, neither party shall be liable to the
other for indirect, incidental, consequential, exemplary,
reliance or special damages, including damages for lost
profits, regardless of the form of action whether in contract,
indemnity, warranty, strict liability or tort, including
negligence of any kind with respect to the Networks or other
conduct under this Agreement.
12.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, including fraud, or (b) injury or death, or damage
to tangible real or tangible personal property or the
environment, when proximately caused by SAVVIS' or Customer's
negligence or that of their respective agents, subcontractors
or employees. Nothing contained in this
14
Section shall limit SAVVIS' intellectual property
indemnification obligations under Section 16.1 or Customer's
indemnification obligations with respect to a breach of
Section 10.3.
13. EQUIPMENT AND SOFTWARE NOT PROVIDED BY SAVVIS
13.1. SAVVIS shall not be responsible for the installation,
operation or maintenance of equipment or software not provided
by it under this Agreement, nor shall SAVVIS be responsible
for the transmission or reception of information by equipment
or software not provided by SAVVIS hereunder. In the event
that Customer uses equipment or software not provided by
SAVVIS hereunder in a manner that impairs Customer's use of
the Networks, Customer shall not be excused from payment for
such use and SAVVIS shall not be responsible for any failure
of the Networks to meet the Quality of Service Standards
resulting from the use of such equipment or software by
Customer. Upon notice from SAVVIS that the equipment or
software not provided by SAVVIS under this Agreement is
causing or is likely to cause hazard, interference or service
obstruction, Customer shall eliminate the likelihood of such
hazard, interference or service obstruction.
13.2. Notwithstanding the foregoing, SAVVIS shall, at no additional
charge, provide all interface specifications for the Networks
reasonably requested by Customer. SAVVIS shall, upon the
receipt of appropriate specifications from Customer, inform
Customer of the compatibility with the Networks of any
equipment or software that Customer proposes to use in
connection therewith, the effects, if any, of the use of such
equipment or software on the quality, operating
characteristics and efficiency of the Networks, and the
effects, if any, of the Networks on the operating
characteristics and efficiency of any such equipment or
software.
14. PROPRIETARY RIGHTS; LICENSE
14.1. SAVVIS hereby grants to Customer a non-exclusive and
non-transferable license to use all programming and software
necessary for Customer to use the Networks. Such license is
granted for the term of this Agreement for the sole purpose of
enabling Customer to use the Networks.
14.2. All title and property rights (including intellectual property
rights) to the Networks (including associated programming and
software) are and shall remain with SAVVIS or the third-party
providers thereof to SAVVIS. Customer shall not (except as
permitted by applicable law) attempt to examine, copy, alter,
reverse engineer, decompile, disassemble, tamper with or
otherwise misuse the Networks, programming and software.
15
15. CONFIDENTIALITY
15.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
15.2. Notwithstanding Section 15.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors or
managers of facilities or equipment used by such party) in
need of access to such information for purposes specifically
related to either party's responsibilities under this
Agreement, provided that any disclosure of Confidential
Information under clause (c) shall be made only upon prior
written approval of the other party and subject to the
appropriate assurances that the recipient of such information
shall hold it in strict confidence.
15.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the
other party with written certification of such destruction.
15.4. Either party may request in writing that the other party waive
all or any portion of the requesting party's responsibilities
relative to the other party's Confidential Information. Such
waiver request shall identify the affected information and the
nature of the proposed waiver. The recipient of the request
shall respond within a reasonable time and, if it determines,
in its sole discretion, to grant the requested waiver, it will
do so in writing over the signature of an employee authorized
to grant such request.
15.5. Customer and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right to
apply to any court of competent jurisdiction
16
for an order restraining any breach or threatened breach of
this Section and for any other appropriate relief. This right
shall be in addition to any other remedy available in law or
equity.
15.6. A party requested or ordered by a court or other governmental
authority of competent jurisdiction to disclose another
party's Confidential Information shall notify the other party
in advance of any such disclosure and, absent the other
party's consent to such disclosure, use its best efforts to
resist, and to assist the other party in resisting, such
disclosure. A party providing another party's Confidential
Information to a court or other governmental authority shall
use its best efforts to obtain a protective order or
comparable assurance that the Confidential Information so
provided will be held in confidence and not further disclosed
to any other person, absent the owner's prior consent.
15.7. The provisions of Section 15.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably necessary
in connection with the sale of securities or the performance
or enforcement of this Agreement or any of the obligations
hereof; provided, however, that if the receiving party would
otherwise be required to refer to or describe any aspect of
this Agreement in any of the preceding circumstances, the
receiving party shall use its reasonable efforts to take such
steps as are available under such circumstances (such as by
providing a summary or synopsis) to avoid disclosure of the
financial terms and conditions of this Agreement.
Notwithstanding any provisions of this Agreement to the
contrary, either party may disclose the terms and conditions
of this Agreement in the course of a due diligence review
performed in connection with prospective debt financing or
equity investment by, or a sale to, a third party, so long as
the persons conducting such due diligence review have agreed
to maintain the confidentiality of such disclosure and not to
use such disclosure for any purpose other such due diligence
review.
16. INDEMNIFICATIONS
16.1. SAVVIS shall defend, settle, or otherwise manage at its own
cost and expense any claim or action against Customer or any
of its directors, officers, employees or assigns for actual or
alleged infringement by the Networks of any patent, copyright,
trademark, trade secret or similar proprietary right of any
third party, except to the extent that such actual or alleged
infringement arises from (i) such actual or alleged
infringement by the Acquired Network Facilities on the
Effective Date or (ii) an act or omission of Customer or a
vendor or customer of Customer or (iii) equipment or software
used by Customer and not provided by SAVVIS. Customer shall
notify SAVVIS promptly in writing of any such claim or suit
and shall cooperate with SAVVIS in a reasonable way to
facilitate the
17
settlement or defense thereof. SAVVIS further agrees to
indemnify and hold Customer harmless from and against any and
all liabilities and damages (whether incurred as the result of
a judicial decree or a settlement), and the costs and expenses
associated with any claim or action of the type identified in
this Section (including reasonable attorneys' fees).
16.2. If, as a consequence of a claim or action of the kind
described in Section 16.1, SAVVIS' or Customer's use of all or
part of any Network is enjoined, SAVVIS shall, at its option
and expense, either: (a) procure for Customer the right to
continue using the affected Network; (b) modify such Network
so that they are non-infringing, provided that such
modification does not affect the intended use of the Network
as contemplated hereunder. If SAVVIS does not take any of the
actions described in clauses (a) or (b), then Customer may
terminate the affected portion of such Network, and SAVVIS
shall refund to Customer any prepaid charges therefor.
16.3. Subject to Section 12, Customer will defend, indemnify and
hold harmless SAVVIS or any of its directors, officers,
employees or assigns from and against all loss, liability,
damage and expense, including reasonable attorneys' fees,
caused by:
(a) claims for libel, slander, invasion of privacy or
infringement of copyright, and invasion and/or
alteration of private records or data arising from
any information, data or messages transmitted over
the Networks by Customer;
(b) claims for infringement of patents arising from the
use by Customer of equipment and software, apparatus
and systems not provided hereunder in connection with
the Networks; and
(c) the violation of any representations, warranties and
covenants made by Customer in this Agreement.
16.4. Subject to Section 12, SAVVIS will defend, indemnify and hold
harmless Customer or any of its directors, officers, employees
or assigns from and against all loss, liability, damage and
expense, including reasonable attorneys' fees, caused by:
(a) claims for infringement of patents arising from the
use by SAVVIS of equipment and software, apparatus
and systems not provided by SAVVIS hereunder in
connection with the Networks (other than any Acquired
Network Facilities); and
(b) the violation of any representations, warranties and
covenants made by SAVVIS in this Agreement.
18
17. DISPUTES
17.1. Except as expressly provided in Schedule 4.1 of this
Agreement, the resolution of any and all disputes arising from
or in connection with this Agreement, whether based on
contract, tort, statute or otherwise, including disputes over
arbitrability and disputes in connection with claims by third
persons ("DISPUTES") shall be exclusively governed by and
settled in accordance with the provisions of this Section 17.
The foregoing shall not preclude recourse to judicial
proceedings to obtain injunctive, emergency or other equitable
relief to enforce the provisions of this Agreement, including
specific performance, and to decide such issues as are
required to be resolved in determining whether to grant such
relief. Resolution of Disputes with respect to claims by third
persons shall be deferred until any judicial proceedings with
respect thereto are concluded.
17.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a binding arbitration clause
under applicable law. Either party may serve process or notice
on the other in any arbitration or litigation in accordance
with the notice provisions hereof. The parties agree not to
disclose any information regarding any Dispute or the conduct
of any arbitration hereunder, including the existence of such
Dispute or such arbitration, to any person or entity other
than such employees or representatives of such party as have a
need to know.
17.3. Either party may commence proceedings hereunder by delivery of
written notice providing a reasonable description of the
Dispute to the other, including a reference to this provision
(the "DISPUTE NOTICE"). Either party may initiate arbitration
of a Dispute by delivery of a demand therefor (the
"ARBITRATION DEMAND") to the other party not sooner than 60
calendar days after the date of delivery of the Dispute Notice
but at any time thereafter. The arbitration shall be conducted
in St. Louis, Missouri.
17.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Customer, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If an
Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
17.5. The arbitration shall be conducted pursuant to such procedures
as the parties may agree or, in the absence of or failing such
agreement, pursuant to the Rules. Notwithstanding the
foregoing, each party shall have the right to inspect the
books and records of the other party that are reasonably
related to the Dispute, and each party shall provide to the
other, reasonably in advance of any hearing, copies of all
19
documents which such party intends to present in such hearing
and the names and addresses of all witnesses whose testimony
such party intends to present in such hearing.
17.6. All hearings shall be conducted on an expedited schedule, and
all proceedings shall be confidential. Either party may at its
expense make a stenographic record thereof.
17.7. The Arbitrators shall complete all hearings not later than 90
calendar days after the Arbitrators' selection or appointment,
and shall make a final award not later than 30 calendar days
thereafter. The Arbitrators shall apportion all costs and
expenses of the Arbitration, including the Arbitrators' fees
and expenses of experts ("ARBITRATION COSTS") between the
prevailing and non-prevailing parties as the Arbitrators deem
fair and reasonable. In circumstances where a Dispute has been
asserted or defended against on grounds that the Arbitrators
deem manifestly unreasonable, the Arbitrators may assess all
Arbitration Costs against the non-prevailing party and may
include in the award the prevailing party's attorneys' fees
and expenses in connection with any and all proceedings under
this Section 17.
17.8. Either party may assert appropriate statutes of limitation as
a defense in arbitration; provided, that upon delivery of a
Dispute Notice any such statute shall be tolled pending
resolution hereunder.
17.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and SAVVIS shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Networks to
Customer unless otherwise directed by Customer. This Section
shall not apply where (a) Customer is in default under this
Agreement or (b) the dispute or controversy between the
parties relates to harm to the Networks allegedly caused by
Customer and Customer does not immediately cease and desist
from the activity giving rise to the dispute or controversy.
18. FORCE MAJEURE
18.1. In no event shall either party be liable to the other for any
failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers (whether
of a party hereto or of others), casualties, accidents or
other causes to the extent that such failure and the
consequences thereof are reasonably beyond the control and
without the fault or negligence of the party claiming excuse.
Each party shall, with the cooperation of the other party, use
reasonable efforts to mitigate the extent of any failure to
perform and the adverse consequences thereof.
18.2. If SAVVIS cannot promptly provide a suitable temporary SAVVIS
alternative to all or part of a Network subject to an
interruption in connection with the existence of a force
majeure condition, Customer may, at its option and at its own
20
cost, contract with one or more third parties for the affected
portion of the Network for the shortest commercially available
period likely to cover the reasonably expected duration of the
interruption, and may suspend SAVVIS' provision of such
affected portion for such period. SAVVIS shall not charge
Customer for the affected portion thus suspended during the
period of suspension. SAVVIS shall resume provision of the
suspended portion of the Network upon the later of the
termination or expiration of Customer's legally binding
commitments under contracts with third parties for alternative
services or the cessation or remedy of the force majeure
condition.
18.3. In the event that a force majeure condition shall continue for
more than 60 days, Customer may cancel the affected portion of
the Network with no further liability to SAVVIS other than for
obligations incurred with respect to such affected portion
prior to the occurrence of the force majeure condition.
18.4. The consequences arising from existence and continuation of a
force majeure condition, including without limitation any
interruption of the Networks and the exercise by Customer of
its rights under this Section 18, shall be deemed not to
constitute a breach by either party hereto of any
representations, warranties or covenants hereunder and shall
not be grounds for the exercise of any remedies under this
Agreement, including without limitation remedies under Section
2.2 or Section 7, other than those specified in this Section
18.
19. GENERAL PROVISIONS
19.1. NO THIRD-PARTY BENEFICIARIES. [This Agreement shall not confer
any rights or remedies upon any person or entity other than
the parties and their respective successors and permitted
assigns.] [Except as expressly provided in this Agreement,
nothing in this Agreement will create or confer any rights or
other benefits on or in favor of any person who is not a party
to this Agreement whether pursuant to the Contracts (Rights of
Third Parties) Act, 1999 or otherwise.]
19.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior understandings,
agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to the
subject matter hereof.
19.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. No party
may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
approval of the other party, which consent shall not be
unreasonably withheld.
19.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
21
19.5. HEADINGS. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
19.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall
be deemed duly given if (and then two business days after) it
is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended
recipient as set forth below:
If to Customer: Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President and
General Counsel
If to SAVVIS: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President and General Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the
address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may
change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered
by giving the other party notice in the manner herein set
forth.
19.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Missouri in the United States of America, without giving
effect to any choice or conflict of law provision or rule
(whether of the State of Missouri or any other jurisdiction)
that would cause the application of the laws of any
jurisdiction other than the State of Missouri.
19.8. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by SAVVIS and Customer. No waiver by any party of
any default, misrepresentation, or breach of
22
warranty or covenant hereunder, whether intentional or not,
shall be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder
or affect in any way any rights arising by virtue of any prior
or subsequent such occurrence.
19.9. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
19.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
19.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
19.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified in
this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Network
Services Agreement to be executed as of the date first above written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
[local SAVVIS entity]
By
----------------------------------
Name: Xxxxxx X. Xxxxxxx
[local Bridge/Telerate entity].
By
----------------------------------
Name:
-------------------------------
23
SCHEDULE 2.2
QUALITY OF SERVICE STANDARDS
1. Starting one year from the Effective Date, the Acquired Network
Facilities and Additional Network Facilities that are connected to the
St. Louis hub where [Bridge Parent]/[Telerate Parent] houses the data
distributed over the Distribution Network (the "ST. LOUIS HUB") by
fully redundant paths shall be covered by Quality of Service Standards
outlined below. These provisions shall be applicable to Installation
Sites performing within the bandwidth limitations set forth in Section
7.2 of Schedule 3.1 to the Network Services Agreement or, with respect
to the SAVVIS Backbone, to be agreed upon, and shall be measured in
performance relative to the St. Louis Hub.
2. For the SAVVIS Backbone supporting the Collection Network and
Distribution Network:
(a) There shall not be less than 99.99% availability to any SAVVIS
POP supporting Installation Sites during each one month period
during the Market Hours applicable to the POP connected to the
St. Louis Hub.
(b) The average round-trip terrestrial latency period to SAVVIS
POP locations supporting Installation Sites during each
one-month period shall not exceed:
(i) 75 milliseconds within the United States,
(ii) 250 milliseconds to Australia, Eastern Asia, Europe,
and North America,
(iii) 425 milliseconds to all other areas, including Xxxxx
Xxxxxxx, Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxxx and India.
3. For Installation Sites, network availability shall be measured in terms
of server upstream connectivity during Market Hours for each one-month
period. Resultant availability to the Installation Sites shall be not
less than 99.99% based on the following criteria:
(a) All server disconnects will be considered as potential network
outages.
(b) Disconnects which are attributed to bandwidth limitations,
process failures, and server faults will be eliminated from
the sample population.
(c) Remaining disconnects that reflect total outage conditions on
both redundant pieces of the network shall be considered a
network outage to the Installation Site. The time duration of
the network outage shall be used to determine the availability
percentage.
24
3. SAVVIS will continue to monitor performance of the acquired Customer OA
Network. Performance problems with specific OA sites will be resolved
jointly by Customer and SAVVIS.
4. CREDIT AMOUNTS
Amounts to be credited if the Quality of Service Standards are not met
with respect to a particular Installation Site in any month shall be as
follows during the first Agreement Year, according to the connection
speed at such Installation Site:
CONNECTION SPEED MONTHLY CREDIT MONTHLY CREDIT MONTHLY
[EUROPE] [ASIA] CREDIT
[AMERICAS]
T1 [*] [*] [*]
256 KBS [*] [*] [*]
128 KBS [*] [*] [*]
64 KBS [*] [*] [*]
56 KBS [*] [*] [*]
ISDN [*] [*] [*]
E1 [*] [*] [*]
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
25
EXHIBIT B
TO NETWORK SERVICES AGREEMENT
TELERATE NETWORK SERVICES AGREEMENT
NETWORK SERVICES AGREEMENT
This NETWORK SERVICES AGREEMENT (the "AGREEMENT") is effective as of
___________________, 2000 (the "EFFECTIVE DATE"), between SAVVIS Communications
Corporation, a Missouri corporation ("SAVVIS"), and Telerate Holdings, Inc., a
Delaware corporation ("TELERATE").
RECITALS
A. Telerate is engaged in the business of collecting and distributing
various financial, news and other data. Bridge Information Systems, Inc., a
Missouri corporation ("BRIDGE") is the ultimate parent of Telerate, and is also
engaged in the business of collecting and distributing various financial, news
and other data.
B. SAVVIS is engaged in the business of providing Internet Protocol
backbone and other data transport services.
C. SAVVIS and certain of its subsidiaries have acquired from Bridge and
certain of its subsidiaries certain assets relating to the provision of Internet
Protocol backbone and other data transport services, and may in the future
acquire additional such assets from Bridge and certain of its subsidiaries, all
pursuant to a Master Establishment and Transition Agreement between SAVVIS'
corporate parent, SAVVIS Communications Corporation, a Delaware corporation, and
Bridge, of even date herewith (the "MASTER ESTABLISHMENT AND TRANSITION
AGREEMENT").
D. It is an obligation of Bridge and SAVVIS under the Master
Establishment and Transition Agreement to cause this Agreement to be entered
into between SAVVIS and Telerate, and the Bridge Network Services Agreement to
be entered into between SAVVIS and Bridge, pursuant to which SAVVIS shall
provide Internet Protocol backbone and other data transport services to Telerate
and Bridge.
E. In conjunction with this Agreement, SAVVIS and Bridge are entering
into a Technical Services Agreement of even date herewith (the "TECHNICAL
SERVICES AGREEMENT") and an Administrative Services Agreement of even date
herewith (the "ADMINISTRATIVE SERVICES AGREEMENT"), providing for the provision
of certain services to SAVVIS by Bridge. Certain SAVVIS Subsidiaries and certain
Bridge Subsidiaries are entering into, and may in the future enter into, Local
Transfer Agreements, Local Network Services Agreements substantially in the form
of Exhibit A hereto (the "LOCAL NETWORK SERVICES AGREEMENTS"), Equipment
Collocation
Permits (the "EQUIPMENT COLLOCATION PERMITS"), and Local Administrative Services
Agreements.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Network Services
Agreement by and between SAVVIS and Telerate, including all
addenda to this Agreement entered into in the manner set forth
herein (each an "ADDENDUM" and collectively the "ADDENDA").
This Agreement shall be interpreted wherever possible to avoid
conflicts between the Sections hereof and the Addenda,
provided that if such a conflict shall arise, the Addenda
shall control.
1.2. Whenever it is provided in this Agreement for a matter to be
mutually agreed upon by the parties and set forth in an
Addendum to this Agreement, either party may initiate the
process of determining such matter by submitting a proposed
outline or contents of such Addendum to the other party. Each
party shall appoint a primary contact and a secondary contact
for the completion of such Addendum, who shall be the contact
points for every issue concerning such Addendum and who shall
be informed of the progress of the project. The names of the
contacts will be exchanged in writing by the parties. Using
the contacts, the parties shall work together in good faith
with such diligence as shall be commercially reasonable under
the circumstances to complete such Addendum, provided,
however, that neither party shall be obligated to enter into
such an Addendum. Upon the completion of such Addendum, it
shall be set forth in a written document and executed by the
parties and shall become a part of this Agreement and shall be
deemed to be incorporated herein by reference.
1.3. Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined
terms shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included"
and "including" shall not be construed as terms of limitation.
Additional definitions are provided in Schedule 3.1 of this
Agreement. Capitalized terms not otherwise defined have the
meanings assigned to such terms in the Master Establishment
and Transition Agreement.
"ADDITIONAL NETWORK FACILITIES" means any assets and contracts
of SAVVIS for the provision of Internet Protocol backbone and
other data transport services other than the Acquired Network
Facilities.
2
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" means a period of 12 months beginning on the
Effective Date and each subsequent anniversary thereof.
"AMERICAS" means Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx xxx Xxxxx
Xxxxxxx, including the Caribbean, but excluding the United
States.
"ASIA" means Australia, China, Hong Kong, India, Indonesia,
Japan, Korea, Macau, Malaysia, New Zealand, Philippines,
Singapore, Taiwan, and Thailand.
"BRIDGE" means Bridge Information Systems, Inc., a Missouri
corporation, and its successors and assigns.
"BRIDGE LOCAL NETWORK SERVICES AGREEMENTS" means the local
network services agreements between certain SAVVIS
Subsidiaries and certain Bridge Subsidiaries, as provided for
in the Bridge Network Services Agreement.
"BRIDGE NETWORK SERVICES AGREEMENT" means the network services
agreement pursuant to which SAVVIS shall provide Internet
Protocol backbone and other data transport services to Bridge.
"BRIDGE SUBSIDIARIES" has the meaning assigned to the term
"Seller Subsidiaries" in the Master Establishment and
Transition Agreement.
"CONFIDENTIAL INFORMATION" means all information concerning
the business of Telerate, SAVVIS or any third party doing
business with either of them that may be obtained from any
source (i) by SAVVIS by virtue of its performance under this
Agreement or (ii) by Telerate by virtue of its use of the
Networks. Such information shall also include the terms of
this Agreement (and negotiations and proposals from one party
to the other related directly thereto), network designs and
design recommendations, tools and programs, pricing, methods,
processes, financial data, software, research, development,
strategic plans or related information. All such information
disclosed prior to the execution of this Agreement shall also
be considered Confidential Information for purposes of this
Agreement. Confidential Information shall not include
information that:
(a) is already rightfully known to the receiving party
at the time it is obtained by such party, free
from any obligation to keep such information
confidential; or
(b) is or becomes publicly known through no wrongful
act of the receiving party; or
3
(c) is rightfully received by the receiving party from
a third party without restriction and without
breach of this Agreement.
"DISTRIBUTOR COUNTRY" means any country in which the products
and services of Telerate and Telerate Subsidiaries are
provided through third-party distributors.
"EFFECTIVE DATE" means the date set forth in the Preamble of
this Agreement.
"EUROPE" means Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Luxembourg,
Netherlands, Norway, Poland, Spain, Sweden, Switzerland,
Turkey and the United Kingdom.
"EVENT OF DEFAULT BY SAVVIS" has the meaning assigned to such
term in Section 7.1 of this Agreement.
"INITIAL TERM" means a period of ten consecutive Agreement
Years beginning on the Effective Date.
"INSTALLATION SITE" means any facility of Telerate or a
Telerate Subsidiary or of vendors or customers of Telerate or
a Telerate Subsidiary at which one or more of the Networks is
installed.
"MARKET HOURS" means, with respect to any Installation Site,
the period of time beginning two hours before the time at
which trading opens on the principal securities exchange or
automated quotation system designated by Telerate in writing
from time to time as being used by the purchasers and sellers
of securities at such Installation Site, and ending two hours
after the time at which such trading ceases to be conducted.
"MINIMUM ANNUAL COMMITMENT" has the meaning assigned to such
term in Schedule 3.1 of this Agreement.
"NETWORK" and "NETWORKS" have the meaning assigned to such
terms in Section 2.1 of this Agreement.
"REPLACED ROUTERS" has the meaning assigned to such term in
Section 2.7 of this Agreement.
"QUALITY OF SERVICE STANDARDS" means the standards for the
performance of the Networks contained in Schedule 2.2 hereto
or an Addendum to this Agreement.
"SAVVIS" means SAVVIS Communications Corporation, a Missouri
corporation, and its successors and assigns.
"SAVVIS BACKBONE" means those facilities that are owned by, or
leased to, SAVVIS providing telecommunications utilizing the
Internet Protocol.
4
"SAVVIS PARENT" means SAVVIS Communications Corporation, a
Delaware corporation.
"SAVVIS SUBSIDIARIES" has the meaning assigned to the term
"Buyer Subsidiaries" in the Master Establishment and
Transition Agreement.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
"TELERATE" means Telerate Holdings, Inc., a Delaware
corporation.
"TELERATE SUBSIDIARIES" means the direct and indirect
subsidiaries of Telerate which will be involved in the
operation or ownership of the Acquired Network Facilities.
"TRANSITION PERIOD" has the meaning assigned to such term in
Section 6.3 of this Agreement.
2. THE NETWORKS AND QUALITY OF SERVICE STANDARDS
2.1. SAVVIS agrees to use the Acquired Network Facilities to
provide (or to cause the SAVVIS Subsidiaries to provide) to
Telerate, Affiliates of Telerate or any party making use of
the Networks through Telerate the following managed
packet-data transport networks, including the operation,
management and maintenance thereof:
(a) a global office-automation network, providing
connectivity between the offices of Telerate and Bridge
(the "OA NETWORK"),
(b) a global data collection network (the "COLLECTION
NETWORK") and
(c) a global data distribution network (the "DISTRIBUTION
NETWORK"),
such description being given without limitation on Telerate's
use of such network services as are provided by SAVVIS, which
shall be referred to in this Agreement collectively as the
"NETWORKS" and individually as a "NETWORK."
2.2. Each Network shall be operated, managed and maintained by
SAVVIS. SAVVIS may, but shall not be obligated to, use
facilities of SAVVIS other than the Acquired Network
Facilities to provide all or any part of any Network.
Beginning on the first anniversary of the Effective Date and
thereafter, each Network shall be operated, managed and
maintained by SAVVIS according to the Quality of Service
Standards set forth in Schedule 2.2 hereof, and SAVVIS shall
be responsible for monitoring the performance of the Networks
with respect to the Quality of Service Standards and shall
provide Telerate with monthly reports of such performance. If
the Quality of Service Standards are not met with respect to a
particular Installation Site in any month, Telerate shall be
entitled to receive, upon written request by Telerate within
5
30 days of its receipt of the performance report for such
Installation Site for such month, a credit in the amount set
forth on Schedule 2.2 attached hereto, which amount shall be
deemed to be one month's charges applicable to such
Installation Site under this Agreement with respect to such
month; provided, however, that Telerate shall not be entitled
to such credit to the extent that the failure to meet the
Quality of Service Standards with respect to such Installation
Site is due to (i) an act or omission of Telerate or a
Telerate Subsidiary or a vendor or customer of Telerate or a
Telerate Subsidiary or (ii) equipment or software used by
Telerate and not provided by SAVVIS. Not more than one credit
of one month's charges shall be given for a particular
Installation Site for a particular month. The Quality of
Service Standards shall not apply to the provision of Local
Access Facilities in countries in which the products and
services of Telerate and Telerate Subsidiaries are provided
through third-party distributors. For all purposes of this
Agreement, including without limitation the determination of
an Event of Default by SAVVIS, the Quality of Service
Standards applicable to a particular Installation Site in any
month shall be deemed to have been met unless Bridge, within
30 days of its receipt of the performance report for such
Installation Site for such month, requests in writing a credit
as set forth above with respect to such Installation Site for
such month.
2.3. SAVVIS agrees that, for the term of this Agreement, the
network operations centers for the Networks shall be managed
by Bridge under the Technical Services Agreement; provided,
however, that SAVVIS shall not be restricted from building,
managing and operating one or more network operations centers
for such portions of the SAVVIS Backbone or other operations
of SAVVIS that are not used to provide the Networks to
Telerate.
2.4. [Intentionally omitted.]
2.5. Unless otherwise mutually agreed by the parties, each Addendum
providing for the provision of Additional Network Facilities
shall have a term of three years. Such Addendum may also
include provisions with respect to the level of redundancy to
be provided and the Quality of Service Standards to apply to
such Additional Network Facilities. In providing Additional
Network Facilities, SAVVIS agrees to use its best efforts to
expedite the provisioning of the circuits for such Additional
Network Facilities in those instances in which SAVVIS is
responsible for provisioning such circuits.
2.6. Throughout the term of this Agreement, SAVVIS shall use its
commercially reasonable best efforts to continue to meet the
requests of Telerate to enhance the total capacity, geographic
extension and performance quality of the Networks, and to
maintain its research and development effort at a level
appropriate to sustain the ability of Telerate to compete on
the basis of the quality of the Networks.
6
2.7. The parties acknowledge that SAVVIS intends to replace certain
existing routers among the Acquired Network Facilities (the
"REPLACED ROUTERS") with new equipment promptly after the
Effective Date. It is the intention of the parties that the
Replaced Routers will be re-deployed at Installation Sites at
which one or more 56 Kbps ports or 64 Kbps ports will be
provided by SAVVIS using Additional Network Facilities as set
forth in Section 3.1 hereof. SAVVIS agrees to manage the use
of its inventory of routers in order to re-deploy the maximum
number of Replaced Routers as is commercially reasonable. So
long as Replaced Routers are available for re-deployment
during the 18 months following the Effective Date, SAVVIS
agrees not to make any bulk purchases of additional routers
without the prior written consent of Telerate, which will not
be unreasonably withheld. Upon the expiration of 18 months
following the Effective Date, the parties shall determine the
number of Replaced Routers that the parties mutually agree are
likely to be so re-deployed within the succeeding 12 months.
3. RATES AND CHARGES
3.1. Telerate shall pay SAVVIS for the Networks using the Acquired
Network Facilities and Additional Network Facilities according
to the rates and charges set forth in Schedule 3.1 hereof.
3.2. The parties recognize that certain savings might be obtained
by consolidating the multiple Local Access Facilities that are
provided at such building locations on the Effective Date. In
the event that SAVVIS consolidates the multiple Local Access
Facilities at one or more of such building locations and
obtains cost savings as a result thereof, the parties will
mutually agree within 30 days following such consolidation on
the manner in which such savings shall be shared between
SAVVIS and Telerate, if only Telerate or Telerate Subsidiaries
use those consolidated Local Access Facilities, or between
SAVVIS, Telerate and Bridge, if both Telerate or Telerate
Subsidiaries and Bridge or any subsidiaries of Bridge use
those consolidated Local Access Facilities. Any reduction
pursuant to this Section shall not affect the Minimum Annual
Commitment.
3.3. For any Installation Site to which SAVVIS is providing
services both under this Agreement and the Bridge Network
Services Agreement, the rates and charges applicable to such
Installation Site under this Agreement shall be one-half of
the rates and charges that would otherwise be applicable to
such Installation Site under this Agreement.
7
4. STRATEGIC ADVISORY COMMITTEE
4.1. According to the Bridge Network Services Agreement, within 30
days after the Effective Date, SAVVIS and Bridge will each
appoint three senior executives to the "STRATEGIC ADVISORY
COMMITTEE," and one outside consultant will be jointly
appointed by both parties.
4.2. The mission of the Strategic Advisory Committee will be to
review the performance of the Networks, to serve as forum for
the consideration and discussion of issues raised by either
SAVVIS or Bridge with respect to the Networks, and to discuss
issues related to the future development of the data transport
and Internet Protocol backbone operations of SAVVIS in the
context of the relationship of SAVVIS, Telerate and Bridge.
5. INVOICES
5.1. The amounts due to SAVVIS from Telerate for the installation,
operation, management and maintenance of the Networks shall be
billed monthly in advance. All items on invoices not the
subject of a bona fide dispute shall be payable by Telerate in
United States currency within 30 days from the date of receipt
of the invoice. All amounts not in dispute are subject to
interest charges of 1-1/2 percent that will accrue daily on
all amounts not paid within 30 days of the date of receipt of
the invoice.
5.2. At any time and from time to time, Telerate may, by written
notice to SAVVIS, have one or more Installation Sites removed
from the Networks. Each monthly invoice from SAVVIS to
Telerate shall reflect a reduction in the amount charged to
Telerate for the Networks resulting from any such removal of
Installation Sites. In the case of any Installation Site
removed from the Acquired Network Facilities, such reduction
shall be the sum of:
(a) the actual cost of the Local Access Facilities
connecting the Acquired Network Facilities to such
Installation Site, effective as of such time as
SAVVIS is no longer required to pay such costs, and
(b) the amounts set forth on Schedule 5.2 attached
hereto, which are deemed to be one month's charges
applicable to such Installation Site under this
Agreement with respect to such month during the first
Agreement Year, according to connection speed at such
Installation Site, effective as of such time as such
Installation Site is disconnected from the Networks.
5.3. Telerate shall pay any sales, use, federal excise, utility,
gross receipts, state and local surcharges, value added and
similar taxes, charges or levies lawfully levied by a duly
constituted taxing authority against or upon the Networks. In
the alternative, Telerate shall provide SAVVIS with a
certificate evidencing Telerate's exemption from payment of or
liability for such taxes. All other taxes, charges or levies,
including any ad valorem, income, franchise, privilege or
occupation taxes of SAVVIS shall be paid by SAVVIS.
5.4. Bona fide disputes concerning invoices shall be referred to
the parties' respective representatives who are authorized to
resolve such matters. Any amount to which Telerate is entitled
as a result of the resolution of a billing dispute shall be
credited promptly to Telerate's account. Any amount to which
SAVVIS is
8
entitled as a result of the resolution of a billing dispute
shall be paid promptly to SAVVIS.
5.5. Against the amounts owed by Telerate to SAVVIS under this
Agreement, Telerate shall have the right to offset any amounts
owed by SAVVIS to Telerate under this Agreement, and against
any amounts owed by SAVVIS to Bridge under the Bridge Network
Services Agreement, the Technical Services Agreement, or
otherwise, including without limitation any amounts paid by
Bridge on behalf of SAVVIS under guarantees by Bridge of
obligations of SAVVIS.
6. TERM AND EXTENSIONS
6.1. This Agreement shall commence on the Effective Date and shall
continue in full force and effect for the Initial Term unless
terminated or extended in accordance with the provisions
hereof.
6.2. The term of this Agreement may be extended by Telerate for one
additional five-year period by giving SAVVIS written notice
not less than one year before the scheduled expiration of the
Initial Term.
6.3. Upon the termination of this Agreement in accordance with its
scheduled expiration or by Telerate pursuant to Section 7,
SAVVIS will continue to provide the Networks in accordance
with the terms and conditions herein (excluding the Minimum
Annual Commitment) for a period of up to five years after the
effective date of termination (the "TRANSITION PERIOD").
During the Transition Period, Telerate shall pay SAVVIS for
the use of the Networks at the rates in effect for third party
customers of SAVVIS at the effective date of termination. If
Telerate has not completely transitioned from its use of the
Networks after the Transition Period, SAVVIS will provide the
Networks at SAVVIS' then current list rates. SAVVIS and its
successor will cooperate with Telerate until Telerate has
completely migrated to another provider.
7. TERMINATION BY TELERATE
7.1. An "EVENT OF DEFAULT BY SAVVIS" shall be deemed to occur if:
(a) SAVVIS has failed to a material degree to perform or
comply with or has violated to a material degree any
material representation, warranty, term, condition or
obligation of SAVVIS under this Agreement, and SAVVIS
has failed to cure such failure or violation within
60 days after receiving notice thereof from Telerate;
or
(b) SAVVIS becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
9
(c) an Event of Default by SAVVIS occurs under the Bridge
Network Services Agreement.
7.2. Telerate shall have the right to terminate this Agreement,
with no liability to SAVVIS other than for charges (less any
applicable credits) for the Networks provided prior to such
termination, if:
(a) Telerate provides written notice to SAVVIS, at any
time after the ninth anniversary of the Effective
Date, of Telerate's intent to terminate, such
termination to be effective not less than one year
following the date of such notice; or
(b) Telerate provides 10 days written notice of its
intent to terminate in the event that an Event of
Default by SAVVIS occurs.
7.3. For purposes of Section 7.1(a), if the Quality of Service
Standards are not met with respect to a particular
Installation Site in any month, SAVVIS shall be deemed to have
cured such failure within 60 days if the Quality of Service
Standards are met with respect to such Installation Site in
the following month. A failure of the Quality of Service
Standards to be met shall not constitute an Event of Default
or give Telerate the right to terminate this Agreement to the
extent that such failure is due to (i) an act or omission of
Telerate or a Telerate Subsidiary or a vendor or customer of
Telerate or a Telerate Subsidiary or (ii) equipment or
software used by Telerate and not provided by SAVVIS. The
parties acknowledge and agree that the failure of the Quality
of Service Standards to be met with respect to one or more
Installation Sites in one or more months may, but does not
necessarily, constitute a failure by SAVVIS to a material
degree to perform or comply with, or a violation to a material
degree of, any material representation, warranty, term,
condition or obligation of SAVVIS under this Agreement.
7.4. As provided in Section 2.2, for all purposes of this
Agreement, including without limitation the determination of
an Event of Default by SAVVIS under this Section, the Quality
of Service Standards applicable to a particular Installation
Site in any month shall be deemed to have been met unless
Telerate, within 30 days of its receipt of the performance
report of such Installation Site for such month, requests in
writing a credit as set forth in Section 2.2 with respect to
such Installation Site for such month.
8. TERMINATION BY SAVVIS
8.1. SAVVIS shall have the right to terminate this Agreement if:
(a) Telerate has failed to pay any invoice that is not
the subject of a bona fide dispute within 60 days of
the date on which such payment is due and SAVVIS has
provided Telerate with written notice thereof,
provided that
10
Telerate shall have a further 30 days from the time
it receives such notice from SAVVIS of nonpayment to
cure any such default;
(b) SAVVIS provides 10 days written notice of its intent
to terminate in the event that Telerate has failed to
perform or comply with or has violated any material
representation, warranty, term, condition or
obligation of Telerate under this Agreement, and
Telerate has failed to cure such failure or violation
within 60 days after receiving notice thereof from
SAVVIS;
(c) Telerate becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(d) SAVVIS becomes entitled to terminate the Bridge
Network Services Agreement pursuant to the terms
thereof.
8.2. Notwithstanding the provisions of Section 8.1(b) above, SAVVIS
shall not have the right to terminate this Agreement under
Section 8.1(b) solely for a failure by Telerate to perform or
comply with, a violation by Telerate of, the obligations of
Telerate under Section 15 (Confidentiality) of this Agreement,
without prejudice, however, to such rights as SAVVIS may have
pursuant to such Section and to such rights and remedies to
which SAVVIS may be entitled, at law or in equity, as the
result of an actual or threatened breach by Telerate of such
Section.
9. ACCEPTANCE OF ADDITIONAL NETWORK FACILITIES
9.1. Upon the installation of Additional Network Facilities at any
Installation Site, SAVVIS shall conduct appropriate tests to
establish that such Additional Network Facilities perform in
accordance with mutually agreed upon acceptance criteria
("ACCEPTANCE CRITERIA") set forth in the applicable Addendum
entered into pursuant to Section 2.5, and shall promptly
inform Telerate of such test results. If test results show
that the Additional Network Facilities are performing in
accordance with the Acceptance Criteria, Telerate shall be
deemed to accept the Additional Network Facilities at the
Installation Site immediately.
9.2. If SAVVIS' tests establish that newly installed Additional
Network Facilities at the Installation Site do not perform in
accordance with the mutually agreed upon Acceptance Criteria,
then SAVVIS shall immediately and diligently exert its best
efforts to bring the Additional Network Facilities at such
Installation Site into compliance. SAVVIS shall not xxxx
Telerate for the Additional Network Facilities at such
Installation Site until the test results show that the
Additional Network Facilities are performing in accordance
with the Acceptance Criteria.
9.3. Upon repair or restoration of any part of the Networks, SAVVIS
shall conduct appropriate tests to establish that the Networks
perform in accordance with
11
mutually agreed upon Acceptance Criteria and shall promptly
inform Telerate of such test results.
10. RIGHTS AND OBLIGATIONS OF TELERATE
10.1. SITE PREPARATION. For the installation of Additional Network
Facilities, Telerate shall, at its own expense, provide all
necessary preparations of each Installation Site in accordance
with the requirements to be mutually agreed upon by the
parties and set forth in an Addendum hereto, including inside
wiring, demarcation extension and rack mount accessories.
Telerate shall ensure that Telerate-provided equipment is
on-site by the scheduled installation date. If SAVVIS is
required to reschedule the installation of Telerate-provided
equipment because it is not on-site by the scheduled
installation date, Telerate shall pay SAVVIS to redispatch
installation personnel.
10.2. PROPER USE OF NETWORKS.
10.2.1. Telerate shall use any equipment provided by SAVVIS
in connection with the Networks in accordance with
its documentation, which documentation shall be
provided by SAVVIS at no additional charge. Unless
otherwise provided herein, upon the termination of
this Agreement Telerate shall surrender to SAVVIS the
equipment provided by SAVVIS, in good working order,
ordinary wear and tear excepted.
10.2.2. Telerate shall be liable for damages to the Networks
caused by the negligence or willful acts or omissions
of Telerate's officers, employees, agents or
customers, for loss through theft or vandalism of the
Networks at the Installation Site, and for damages to
the Networks caused by the use of equipment or
supplies not provided hereunder or not otherwise
authorized by SAVVIS.
10.2.3. Telerate shall neither permit nor assist others to
use the Networks for any purpose other than that for
which they are intended, nor fail to maintain a
suitable environment specified by SAVVIS in the
applicable schedule, nor alter, tamper with, adjust
or repair the Networks. Any such alteration,
tampering, adjustment or repair by Telerate shall
relieve SAVVIS from any liability or obligation
hereunder (including any warranty or indemnity
obligation) relating to the affected Network, and
Telerate shall be liable to SAVVIS for any documented
direct costs incurred by SAVVIS as a result of such
actions.
10.3. ABUSE OR FRAUDULENT USE OF NETWORKS. Telerate shall not abuse
or fraudulently use the Networks, or use the Networks for any
unauthorized or illegal purposes, and shall neither permit nor
assist others to do so, including but not limited to:
12
(a) obtaining or attempting to obtain service by any
fraudulent means or device to avoid payment; or
(b) accessing, altering or destroying any information of
another party by any fraudulent means or device, or
attempting to do so; or
(c) using the Networks so as to interfere with the use of
the SAVVIS network by other SAVVIS customers or
authorized users or in violation of law or in support
of any unlawful act; or
(d) using the Networks for voice communications over a
private network in jurisdictions where such use is
not allowed; or
(e) using the Networks in a manner contrary to or
inconsistent with such acceptable use policies as
SAVVIS may adopt and publish from time to time
consistent with industry standards.
Notwithstanding the provisions of Section 8, upon the breach
of this Section 10.3 by Telerate, SAVVIS shall have the right
to terminate this Agreement with respect to all or part of the
Networks immediately upon written notice to Telerate.
10.4. COVENANT NOT TO COMPETE.
10.4.1. As an inducement to SAVVIS to enter into this
Agreement, which Telerate acknowledges is of benefit
to it, and in consideration of the promises and
representations of SAVVIS under this Agreement,
Telerate covenants and agrees that during the term of
this Agreement and for a period of five years
thereafter, neither Telerate nor any of its
successors or assigns will, directly or indirectly,
engage in, or have any interest in any other person,
firm, corporation or other entity engaged in, any
business activities anywhere in the world competitive
with or similar or related to the packet-data
transport network services provided by SAVVIS under
this Agreement; provided, however, that (i) Telerate
and the Telerate Subsidiaries shall be free to
continue to use the Call Assets and the satellite
networks currently used by Telerate, until such Call
Assets or satellite networks have been acquired by
SAVVIS or the SAVVIS Subsidiaries pursuant to the
Master Establishment and Transition Agreement, and
(ii) Telerate shall be free to make passive
investments in securities of companies that provide
network services in competition with SAVVIS which, in
the case of any such security, does not constitute
more than ten percent (10%) of the total outstanding
amount of such security.
10.4.2. If any court or tribunal of competent jurisdiction
shall refuse to enforce one or more of the covenants
in this Section 10.4 because the time limit
applicable thereto is deemed unreasonable, it is
expressly understood and agreed that such covenant or
covenants shall not be void but that for the
13
purpose of such proceedings such time limitation
shall be deemed to be reduced to the extent necessary
to permit the enforcement of such covenant or
covenants.
10.4.3. If any court or tribunal of competent jurisdiction
shall refuse to enforce any or all of the covenants
in this Section 10.4 because, taken together, they
are more extensive (whether as to geographic area,
scope of business or otherwise) than is deemed to be
reasonable, it is expressly understood and agreed
between the parties hereto that such covenant or
covenants shall not be void but that for the purpose
of such proceedings the restrictions contained
therein (whether as to geographic area, scope of
business or otherwise) shall be deemed to be reduced
to the extent necessary to permit the enforcement of
such covenant or covenants.
10.4.4. Telerate specifically acknowledges and agrees that
the foregoing covenants are commercially reasonable
and reasonably necessary to protect the interests of
SAVVIS hereunder. Telerate hereby acknowledges that
SAVVIS and its successors and assigns will suffer
irreparable and continuing harm to the extent that
any of the foregoing covenants is breached and that
legal remedies would be inadequate in the event of
any such breach.
11. RIGHTS AND OBLIGATIONS OF SAVVIS
11.1. PROVISION OF THE NETWORKS. SAVVIS shall operate, maintain and
manage the Networks at the Installation Sites using the
Acquired Network Facilities in accordance with the Quality of
Service Standards and other terms of this Agreement, including
all Addenda hereto.
11.2. REPRESENTATIONS AND WARRANTIES.
11.2.1. [Intentionally omitted.]
11.2.2. SAVVIS hereby represents and warrants that the terms
hereof do not conflict in any respect whatsoever with
any SAVVIS tariff on file with the Federal
Communications Commission or other regulatory body.
If, during the term of this Agreement, SAVVIS shall
file a contract specific tariff governing the
Networks or any portion thereof, such tariff filing
shall be consistent in all respects with the terms of
this Agreement, and SAVVIS shall give Telerate 10
days advance written notice of making such a tariff
filing and of filing any subsequent modifications
thereto.
11.2.3. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
14
11.3. So long as Bridge is the beneficial owner of 20% of the
outstanding voting securities of SAVVIS Parent, SAVVIS Parent
shall not, without the prior written consent of Bridge, take
any action or otherwise enter into any agreement, arrangement
or understanding, including without limitation the creation or
issuance of any class of stock or other security, or any
agreement with any shareholder of SAVVIS Parent, the effect of
which would be to provide any shareholder of SAVVIS Parent
with any voting or registration rights superior to the voting
or registration rights of Bridge, other than as required by
law.
11.4. SAVVIS acknowledges that the occurrence of Event of Default by
SAVVIS, arising from either (i) a failure of the Networks to
meet Quality of Service Standards or (ii) a total loss to
Telerate of the use of the Networks, could cause irreparable
harm to Telerate, the amount of which may be difficult to
determine, thus potentially making any remedy at law or in
damages inadequate. SAVVIS, therefore, agrees that Telerate
shall have the right to apply to any court of competent
jurisdiction for injunctive relief upon the occurrence of an
Event of Default by SAVVIS or the occurrence of an event
which, with the passage of time or the giving of notice, could
become an Event of Default by SAVVIS and for any other
appropriate relief. This right shall be in addition to any
other remedy available to Telerate in law or equity. SAVVIS
further agrees that, upon the occurrence of an Event of
Default by SAVVIS, SAVVIS shall pay to Telerate, as liquidated
damages and not as a penalty, an amount equal to the lesser of
(a) the aggregate amounts paid by Telerate to SAVVIS under
this Agreement during the six months preceding such Event of
Default by SAVVIS or (b) $50,000,000; provided, however, that
Telerate may recover liquidated damages under this Section
only for an Event of Default by SAVVIS that occurs (i) prior
to any Event of Default by SAVVIS for which Telerate or Bridge
or any Telerate Subsidiary or any Bridge Subsidiary has
claimed liquidated damages under this Section or under the
Bridge Network Services Agreement or under any Local Network
Services Agreement or under any Bridge Local Network Services
Agreement, or (ii) more than 36 months following the most
recent Event of Default by SAVVIS for which Telerate or Bridge
or any Telerate Subsidiary or any Bridge Subsidiary has
claimed liquidated damages under this Section or under the
Bridge Network Services Agreement or under any Local Network
Services Agreement or under any Telerate Local Network
Services Agreement.
12. LIMITATIONS OF LIABILITY
12.1. Subject to Section 11.4, neither party shall be liable to the
other for indirect, incidental, consequential, exemplary,
reliance or special damages, including damages for lost
profits, regardless of the form of action whether in contract,
indemnity, warranty, strict liability or tort, including
negligence of any kind with respect to the Networks or other
conduct under this Agreement.
15
12.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, including fraud, or (b) injury or death, or damage
to tangible real or tangible personal property or the
environment, when proximately caused by SAVVIS' or Telerate's
negligence or that of their respective agents, subcontractors
or employees. Nothing contained in this Section shall limit
SAVVIS' intellectual property indemnification obligations
under Section 16.1 or Telerate's indemnification obligations
with respect to a breach of Section 10.3.
13. EQUIPMENT AND SOFTWARE NOT PROVIDED BY SAVVIS
13.1. SAVVIS shall not be responsible for the installation,
operation or maintenance of equipment or software not provided
by it under this Agreement, nor shall SAVVIS be responsible
for the transmission or reception of information by equipment
or software not provided by SAVVIS hereunder. In the event
that Telerate uses equipment or software not provided by
SAVVIS hereunder in a manner that impairs Telerate's use of
the Networks, Telerate shall not be excused from payment for
such use and SAVVIS shall not be responsible for any failure
of the Networks to meet the Quality of Service Standards
resulting from the use of such equipment or software by
Telerate. Upon notice from SAVVIS that the equipment or
software not provided by SAVVIS under this Agreement is
causing or is likely to cause hazard, interference or service
obstruction, Telerate shall eliminate the likelihood of such
hazard, interference or service obstruction.
13.2. Notwithstanding the foregoing, SAVVIS shall, at no additional
charge, provide all interface specifications for the Networks
reasonably requested by Telerate. SAVVIS shall, upon the
receipt of appropriate specifications from Telerate, inform
Telerate of the compatibility with the Networks of any
equipment or software that Telerate proposes to use in
connection therewith, the effects, if any, of the use of such
equipment or software on the quality, operating
characteristics and efficiency of the Networks, and the
effects, if any, of the Networks on the operating
characteristics and efficiency of any such equipment or
software.
14. PROPRIETARY RIGHTS; LICENSE
14.1. SAVVIS hereby grants to Telerate and the Telerate Subsidiaries
a non-exclusive and non-transferable license to use all
programming and software necessary for Telerate and the
Telerate Subsidiaries to use the Networks. Such license is
granted for the term of this Agreement for the sole purpose of
enabling Telerate and the Telerate Subsidiaries to use the
Networks.
14.2. All title and property rights (including intellectual property
rights) to the Networks (including associated programming and
software) are and shall remain with SAVVIS or the third-party
providers thereof to SAVVIS. Telerate shall not (except as
permitted by applicable law) attempt to examine, copy, alter,
reverse
16
engineer, decompile, disassemble, tamper with or otherwise
misuse the Networks, programming and software.
15. CONFIDENTIALITY
15.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
15.2. Notwithstanding Section 15.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors or
managers of facilities or equipment used by such party) in
need of access to such information for purposes specifically
related to either party's responsibilities under this
Agreement, provided that any disclosure of Confidential
Information under clause (c) shall be made only upon prior
written approval of the other party and subject to the
appropriate assurances that the recipient of such information
shall hold it in strict confidence.
15.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the
other party with written certification of such destruction.
15.4. Either party may request in writing that the other party waive
all or any portion of the requesting party's responsibilities
relative to the other party's Confidential Information. Such
waiver request shall identify the affected information and the
nature of the proposed waiver. The recipient of the request
shall respond within a reasonable time and, if it determines,
in its sole discretion, to grant the requested waiver, it will
do so in writing over the signature of an employee authorized
to grant such request.
15.5. Telerate and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
17
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right to
apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Section
and for any other appropriate relief. This right shall be in
addition to any other remedy available in law or equity.
15.6. A party requested or ordered by a court or other governmental
authority of competent jurisdiction to disclose another
party's Confidential Information shall notify the other party
in advance of any such disclosure and, absent the other
party's consent to such disclosure, use its best efforts to
resist, and to assist the other party in resisting, such
disclosure. A party providing another party's Confidential
Information to a court or other governmental authority shall
use its best efforts to obtain a protective order or
comparable assurance that the Confidential Information so
provided will be held in confidence and not further disclosed
to any other person, absent the owner's prior consent.
15.7. The provisions of Section 15.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably necessary
in connection with the sale of securities or the performance
or enforcement of this Agreement or any of the obligations
hereof; provided, however, that if the receiving party would
otherwise be required to refer to or describe any aspect of
this Agreement in any of the preceding circumstances, the
receiving party shall use its reasonable efforts to take such
steps as are available under such circumstances (such as by
providing a summary or synopsis) to avoid disclosure of the
financial terms and conditions of this Agreement.
Notwithstanding any provisions of this Agreement to the
contrary, either party may disclose the terms and conditions
of this Agreement in the course of a due diligence review
performed in connection with prospective debt financing or
equity investment by, or a sale to, a third party, so long as
the persons conducting such due diligence review have agreed
to maintain the confidentiality of such disclosure and not to
use such disclosure for any purpose other such due diligence
review.
16. INDEMNIFICATIONS
16.1. SAVVIS shall defend, settle, or otherwise manage at its own
cost and expense any claim or action against Telerate or any
of its directors, officers, employees or assigns for actual or
alleged infringement by the Networks of any patent, copyright,
trademark, trade secret or similar proprietary right of any
third party, except to the extent that such actual or alleged
infringement arises from (i) such actual or alleged
infringement by the Acquired Network Facilities on the
Effective Date or (ii) an act or omission of Telerate or a
Telerate Subsidiary or a vendor or customer of Telerate or a
Telerate Subsidiary or (iii) equipment or
18
software used by Telerate and not provided by SAVVIS or (iv)
services or equipment provided by or on behalf of Bridge under
the Technical Services Agreement. Telerate shall notify SAVVIS
promptly in writing of any such claim or suit and shall
cooperate with SAVVIS in a reasonable way to facilitate the
settlement or defense thereof. SAVVIS further agrees to
indemnify and hold Telerate harmless from and against any and
all liabilities and damages (whether incurred as the result of
a judicial decree or a settlement), and the costs and expenses
associated with any claim or action of the type identified in
this Section (including reasonable attorneys' fees).
16.2. If, as a consequence of a claim or action of the kind
described in Section 16.1, SAVVIS' or Telerate's use of all or
part of any Network is enjoined, SAVVIS shall, at its option
and expense, either: (a) procure for Telerate the right to
continue using the affected Network; (b) modify such Network
so that they are non-infringing, provided that such
modification does not affect the intended use of the Network
as contemplated hereunder. If SAVVIS does not take any of the
actions described in clauses (a) or (b), then Telerate may
terminate the affected portion of such Network, and SAVVIS
shall refund to Telerate any prepaid charges therefor.
16.3. Subject to Section 12, Telerate will defend, indemnify and
hold harmless SAVVIS or any of its directors, officers,
employees or assigns from and against all loss, liability,
damage and expense, including reasonable attorneys' fees,
caused by:
(a) claims for libel, slander, invasion of privacy or
infringement of copyright, and invasion and/or
alteration of private records or data arising from
any information, data or messages transmitted over
the Networks by Telerate; and
(b) claims for infringement of patents arising from the
use by Telerate of equipment and software, apparatus
and systems not provided hereunder in connection with
the Networks; and
(c) the violation of any representations, warranties and
covenants made by Bridge in this Agreement.
16.4. Subject to Section 12, SAVVIS will defend, indemnify and hold
harmless Telerate or any of its directors, officers, employees
or assigns from and against all loss, liability, damage and
expense, including reasonable attorneys' fees, caused by:
(a) claims for infringement of patents arising from the
use by SAVVIS of equipment and software, apparatus
and systems not provided by SAVVIS hereunder in
connection with the Networks (other than any Acquired
Network Facilities); and
19
(b) the violation of any representations, warranties and
covenants made by SAVVIS in this Agreement.
17. DISPUTES
17.1. Except as expressly provided in Schedule 4.1 of this
Agreement, the resolution of any and all disputes arising from
or in connection with this Agreement, whether based on
contract, tort, statute or otherwise, including disputes over
arbitrability and disputes in connection with claims by third
persons ("DISPUTES") shall be exclusively governed by and
settled in accordance with the provisions of this Section 17.
The foregoing shall not preclude recourse to judicial
proceedings to obtain injunctive, emergency or other equitable
relief to enforce the provisions of this Agreement, including
specific performance, and to decide such issues as are
required to be resolved in determining whether to grant such
relief. Resolution of Disputes with respect to claims by third
persons shall be deferred until any judicial proceedings with
respect thereto are concluded.
17.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a binding arbitration clause
under applicable law. Either party may serve process or notice
on the other in any arbitration or litigation in accordance
with the notice provisions hereof. The parties agree not to
disclose any information regarding any Dispute or the conduct
of any arbitration hereunder, including the existence of such
Dispute or such arbitration, to any person or entity other
than such employees or representatives of such party as have a
need to know.
17.3. Either party may commence proceedings hereunder by delivery of
written notice providing a reasonable description of the
Dispute to the other, including a reference to this provision
(the "DISPUTE NOTICE"). Either party may initiate arbitration
of a Dispute by delivery of a demand therefor (the
"ARBITRATION DEMAND") to the other party not sooner than 60
calendar days after the date of delivery of the Dispute Notice
but at any time thereafter. The arbitration shall be conducted
in St. Louis, Missouri.
17.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Telerate, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If an
Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
17.5. The arbitration shall be conducted pursuant to such procedures
as the parties may agree or, in the absence of or failing such
agreement, pursuant to the Rules.
20
Notwithstanding the foregoing, each party shall have the right
to inspect the books and records of the other party that are
reasonably related to the Dispute, and each party shall
provide to the other, reasonably in advance of any hearing,
copies of all documents which such party intends to present in
such hearing and the names and addresses of all witnesses
whose testimony such party intends to present in such hearing.
17.6. All hearings shall be conducted on an expedited schedule, and
all proceedings shall be confidential. Either party may at its
expense make a stenographic record thereof.
17.7. The Arbitrators shall complete all hearings not later than 90
calendar days after the Arbitrators' selection or appointment,
and shall make a final award not later than 30 calendar days
thereafter. The Arbitrators shall apportion all costs and
expenses of the Arbitration, including the Arbitrators' fees
and expenses of experts ("ARBITRATION COSTS") between the
prevailing and non-prevailing parties as the Arbitrators deem
fair and reasonable. In circumstances where a Dispute has been
asserted or defended against on grounds that the Arbitrators
deem manifestly unreasonable, the Arbitrators may assess all
Arbitration Costs against the non-prevailing party and may
include in the award the prevailing party's attorneys' fees
and expenses in connection with any and all proceedings under
this Section 17.
17.8. Either party may assert appropriate statutes of limitation as
a defense in arbitration; provided, that upon delivery of a
Dispute Notice any such statute shall be tolled pending
resolution hereunder.
17.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and SAVVIS shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Networks to
Telerate unless otherwise directed by Bridge. This Section
shall not apply where (a) Telerate is in default under this
Agreement or (b) the dispute or controversy between the
parties relates to harm to the Networks allegedly caused by
Telerate and Telerate does not immediately cease and desist
from the activity giving rise to the dispute or controversy.
18. FORCE MAJEURE
18.1. In no event shall either party be liable to the other for any
failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers (whether
of a party hereto or of others), casualties, accidents or
other causes to the extent that such failure and the
consequences thereof are reasonably beyond the control and
without the fault or negligence of the party claiming excuse.
Each party shall, with the cooperation of the other party, use
reasonable efforts to mitigate the extent of any failure to
perform and the adverse consequences thereof.
21
18.2. If SAVVIS cannot promptly provide a suitable temporary SAVVIS
alternative to all or part of a Network subject to an
interruption in connection with the existence of a force
majeure condition, Telerate may, at its option and at its own
cost, contract with one or more third parties for the affected
portion of the Network for the shortest commercially available
period likely to cover the reasonably expected duration of the
interruption, and may suspend SAVVIS' provision of such
affected portion for such period. SAVVIS shall not charge
Telerate for the affected portion thus suspended during the
period of suspension. SAVVIS shall resume provision of the
suspended portion of the Network upon the later of the
termination or expiration of Telerate's legally binding
commitments under contracts with third parties for alternative
services or the cessation or remedy of the force majeure
condition.
18.3. In the event that a force majeure condition shall continue for
more than 60 days, Telerate may cancel the affected portion of
the Network with no further liability to SAVVIS other than for
obligations incurred with respect to such affected portion
prior to the occurrence of the force majeure condition.
18.4. The consequences arising from existence and continuation of a
force majeure condition, including without limitation any
interruption of the Networks and the exercise by Telerate of
its rights under this Section 18, shall be deemed not to
constitute a breach by either party hereto of any
representations, warranties or covenants hereunder and shall
not be grounds for the exercise of any remedies under this
Agreement, including without limitation remedies under Section
2.2 or Section 7, other than those specified in this Section
18.
19. GENERAL PROVISIONS
19.1. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person or entity other than
the parties and their respective successors and permitted
assigns.
19.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior understandings,
agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to the
subject matter hereof.
19.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. No party
may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
approval of the other party, which consent shall not be
unreasonably withheld.
19.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
22
19.5. HEADINGS. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
19.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall
be deemed duly given if (and then two business days after) it
is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended
recipient as set forth below:
If to Telerate: Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President and
General Counsel
If to SAVVIS: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President and General
Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the
address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may
change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered
by giving the other party notice in the manner herein set
forth.
19.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Missouri without giving effect to any choice or conflict of
law provision or rule (whether of the State of Missouri or any
other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Missouri.
19.8. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by SAVVIS and Telerate. No waiver by any party of
any default, misrepresentation, or breach of
23
warranty or covenant hereunder, whether intentional or not,
shall be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder
or affect in any way any rights arising by virtue of any prior
or subsequent such occurrence.
19.9. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
19.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
19.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
19.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified in
this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Network
Services Agreement to be executed as of the date first above written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
SAVVIS COMMUNICATIONS CORPORATION
By
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and General Counsel
TELERATE HOLDINGS, INC.
By
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Operating Officer
24
EXHIBIT A TO THE TELERATE NETWORK SERVICES AGREEMENT
FORM OF LOCAL
NETWORK SERVICES AGREEMENT
This LOCAL NETWORK SERVICES AGREEMENT (the "Agreement") is effective as
of ___________, 2000 (the "Effective Date") between [local SAVVIS entity], a
[limited liability company] incorporated under the laws of [country ] ("SAVVIS")
and [local Bridge/Telerate entity], a [limited liability company] incorporated
under the laws of [country] ("Customer").
RECITALS
A. Customer is engaged in the business of collecting and distributing
various financial, news and other data in [country] (the "JURISDICTION").
B. SAVVIS is engaged in the business of providing Internet Protocol
backbone and other data transport services in the Jurisdiction.
C. SAVVIS Communications and [Bridge Parent]/[Telerate Parent] have
entered into the Network Services Agreement for the provision and receipt of
similar services on a world-wide basis at the parent level as are being provided
and received by the parties to this Agreement within the Jurisdiction.
D. Together with this Agreement, the SAVVIS is entering into certain
other agreements with Customer, or Affiliates of the Customer, related to their
operations in the Jurisdiction, including Local Transfer Agreements, Equipment
Collocation Permits, and Local Administrative Services Agreements.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1 This Agreement shall consist of this Local Network Services
Agreement by and between SAVVIS and Customer, including all
addenda to this Agreement entered into in the manner set forth
herein (each an "ADDENDUM" and collectively the "ADDENDA").
This Agreement shall be interpreted wherever possible to avoid
conflicts between the Sections hereof and the Addenda,
provided that if such a conflict shall arise, the Addenda
shall control.
1.2 Whenever it is provided in this Agreement for a matter to be
mutually agreed upon by the parties and set forth in an
Addendum to this Agreement, either party may initiate the
process of determining such matter by submitting a proposed
25
outline or contents of such Addendum to the other party. Each
party shall appoint a primary contact and a secondary contact
for the completion of such Addendum, who shall be the contact
points for every issue concerning such Addendum and who shall
be informed of the progress of the project. The names of the
contacts will be exchanged in writing by the parties. Using
the contacts, the parties shall work together in good faith
with such diligence as shall be commercially reasonable under
the circumstances to complete such Addendum, provided,
however, that neither party shall be obligated to enter into
such an Addendum. Upon the completion of such Addendum, it
shall be set forth in a written document and executed by the
parties and shall become a part of this Agreement and shall be
deemed to be incorporated herein by reference.
1.3 Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined
terms shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included"
and "including" shall not be construed as terms of limitation.
Capitalized terms not otherwise defined herein have the
meanings assigned to such terms in the Network Services
Agreement.
"ACQUIRED NETWORK FACILITIES" means the assets and contracts
for the provision of Internet Protocol backbone and other data
transport services within the Jurisdiction to the extent
acquired by SAVVIS pursuant to the Local Transfer Agreement
between Customer, or Affiliates of the Customer, and SAVVIS.
"ADDITIONAL NETWORK FACILITIES" means any assets and contracts
of SAVVIS for the provision of Internet Protocol backbone and
other data transport services other than the Acquired Network
Facilities.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" means a period of 12 months beginning on the
Effective Date and each subsequent anniversary thereof.
["BRIDGE PARENT" means Bridge Information Systems, Inc., a
Missouri corporation, and its successors and assigns.]
"CONFIDENTIAL INFORMATION" means all information concerning
the business of Customer, SAVVIS or any third party doing
business with either of them that may be obtained from any
source (i) by SAVVIS by virtue of its performance under this
Agreement or (ii) by Customer by virtue of its use of the
Networks. Such information shall also include the terms of
this Agreement (and negotiations and proposals from one party
to the other related directly thereto), network designs and
design recommendations, tools and programs, pricing, methods,
processes, financial data, software, research, development,
strategic plans or
26
related information. All such information disclosed prior to
the execution of this Agreement shall also be considered
Confidential Information for purposes of this Agreement.
Confidential Information shall not include information that:
(a) is already rightfully known to the receiving party
at the time it is obtained by such party, free
from any obligation to keep such information
confidential; or
(b) is or becomes publicly known through no wrongful
act of the receiving party; or
(c) is rightfully received by the receiving party from
a third party without restriction and without
breach of this Agreement.
"CUSTOMER" means [local Bridge/Telerate entity], a [limited
liability company] incorporated under the laws of [country],
and its successors and assigns.
"DISTRIBUTOR COUNTRY" means any country in which the products
and services of Bridge and Bridge Subsidiaries are provided
through third-party distributors.
"EFFECTIVE DATE" means the date set forth in the Preamble of
this Agreement.
"EVENT OF DEFAULT BY SAVVIS" has the meaning assigned to such
term in Section 7.1 of this Agreement.
"INITIAL TERM" means a period of ten consecutive Agreement
Years beginning on the Effective Date.
"INSTALLATION SITE" means any facility of Customer or of
vendors or customers of Customer at which one or more of the
Networks is installed.
"LOCAL EXCHANGE CARRIER" means the local telecommunications
provider(s) from which SAVVIS leases the lines it makes
available to Customer.
"LOCAL [TELERATE]/[BRIDGE] NETWORK SERVICES AGREEMENT" means a
local network services agreement pursuant to which SAVVIS
shall provide Internet Protocol backbone and other data
transport services to an Affiliate of [Telerate
Parent]/[Bridge Parent] operating in the Jurisdiction.
"MARKET HOURS" means, with respect to any Installation Site,
the period of time beginning two hours before the time at
which trading opens on the principal securities exchange or
automated quotation system designated by Customer in writing
from time to time as being used by the purchasers and sellers
of securities at such Installation Site, and ending two hours
after the time at which such trading ceases to be conducted.
27
"NETWORK" and "NETWORKS" have the meaning assigned to such
terms in Section 2.1 of this Agreement.
"NETWORK SERVICES AGREEMENT" means the Network Services
Agreement between SAVVIS Communications and [Bridge
Parent]/[Telerate Parent], effective as of February 14, 2000.
"POP" means point-of-presence.
"QUALITY OF SERVICE STANDARDS" means the standards for the
performance of the Networks contained in Schedule 2.2 hereto
or an Addendum to this Agreement.
"SAVVIS" means [local SAVVIS entity], a [limited liability
company] incorporated under the laws of [country ], and its
successors and assigns.
"SAVVIS COMMUNICATIONS" means SAVVIS Communications
Corporation, a Missouri corporation, its successors and
assigns.
"SECURITIES EXCHANGE ACT" means the United States Securities
Exchange Act of 1934, as amended.
"TAIL CIRCUIT" means the access line or other communications
circuit from the SAVVIS POP to an Installation Site.
["TELERATE PARENT" means Telerate Holdings, Inc., a Delaware
corporation, and its successors and assigns.]
"TRANSITION PERIOD" has the meaning assigned to such term in
Section 6.3 of this Agreement.
2. THE NETWORKS AND QUALITY OF SERVICE STANDARDS
2.1 SAVVIS agrees to use the Acquired Network Facilities to
provide to Customer the following managed packet-data
transport networks, including the operation, management and
maintenance thereof:
(a) that portion of a global office-automation network
located in the Jurisdiction, providing connectivity
between the offices of Customer, Bridge Parent and
Affiliates of Bridge Parent (the "OA NETWORK"),
(b) that portion of a global data collection network
located in the Jurisdiction (the "COLLECTION
NETWORK") and
(c) that portion of a global data distribution network
located in the Jurisdiction (the "DISTRIBUTION
NETWORK"),
28
which shall be referred to in this Agreement collectively as
the "NETWORKS" and individually as a "NETWORK."
2.2 Each Network shall be operated, managed and maintained by
SAVVIS. SAVVIS may, but shall not be obligated to, use
facilities of SAVVIS other than the Acquired Network
Facilities to provide all or any part of any Network.
Beginning on the first anniversary of the Effective Date and
thereafter, each Network shall be operated, managed and
maintained by SAVVIS according to the Quality of Service
Standards set forth in Schedule 2.2 hereof, and SAVVIS shall
be responsible for monitoring the performance of the Networks
with respect to the Quality of Service Standards and shall
provide Customer with monthly reports of such performance. If
the Quality of Service Standards are not met with respect to a
particular Installation Site in any month, Customer shall be
entitled to receive, upon written request by Customer within
30 days of its receipt of the performance report for such
Installation Site for such month, a credit in the amount set
forth on Schedule 2.2 attached hereto (or, in the case of a
Distributor Country, as set forth on Schedule 2.2 to the
Network Services Agreement), which amount shall be deemed to
be one month's charges applicable to such Installation Site
under this Agreement with respect to such month; provided,
however, that Customer shall not be entitled to such credit to
the extent that the failure to meet the Quality of Service
Standards with respect to such Installation Site is due to (i)
an act or omission of Customer or a vendor or customer of
Customer or (ii) equipment or software used by Customer and
not provided by SAVVIS. Not more than one credit of one
month's charges shall be given for a particular Installation
Site for a particular month. The Quality of Service Standards
shall not apply to the provision of Local Access Facilities in
countries in which the products and services of Telerate and
Telerate Subsidiaries are provided through third-party
distributors. For all purposes of this Agreement, including
without limitation the determination of an Event of Default by
SAVVIS, the Quality of Service Standards applicable to a
particular Installation Site in any month shall be deemed to
have been met unless Customer, within 30 days of its receipt
of the performance report for such Installation Site for such
month, requests in writing a credit as set forth above with
respect to such Installation Site for such month.
2.3 [Intentionally omitted.]
2.4 In providing Additional Network Facilities, SAVVIS agrees to
use its best efforts to expedite the provisioning of the
circuits for such Additional Network Facilities in those
instances in which SAVVIS is responsible for provisioning such
circuits, and to use its best efforts to avoid single points
of failure in the engineering design of such Additional
Network Facilities, consistent with the level of redundancy
specified in the applicable Addendum.
2.5 Throughout the term of this Agreement, SAVVIS shall use its
reasonable best efforts to continue to meet the requests of
Customer to enhance the total capacity,
29
geographic extension and performance quality of the Networks,
and to maintain its research and development effort at a level
appropriate to sustain the ability of Customer to compete on
the basis of the quality of the Networks.
3. RATES AND CHARGES
3.1 Customer shall pay SAVVIS for the Networks using the Acquired
Network Facilities and Additional Network Facilities according
to the rates and charges set forth in Schedule 3.1 of the
Network Services Agreement.
3.2 The parties recognize that certain savings might be obtained
by consolidating the multiple Local Access Facilities that are
provided at such building locations on the Effective Date. In
the event that SAVVIS consolidates the multiple Local Access
Facilities at one or more of such building locations and
obtains cost savings as a result thereof, the parties will
mutually agree within 30 days following such consolidation on
the manner in which such savings shall be shared as follows:
(a) between SAVVIS and Customer, if only
Customer uses those consolidated Local
Access Facilities; or
(b) between SAVVIS, Customer and the Affiliate
of [Telerate Parent]/[Bridge Parent] that is
a party to the Local [Telerate]/[Bridge]
Network Services Agreement, if both Customer
and such Affiliate use those consolidated
Local Access Facilities.
3.3 For any Installation Site to which SAVVIS is providing
services both under this Agreement and a Local
[Telerate]/[Bridge] Network Services Agreement, the rates and
charges applicable to such Installation Site under this
Agreement shall be one-half of the rates and charges that
would otherwise be applicable to such Installation Site under
this Agreement.
4. PROVISION OF TAIL CIRCUITS
4.1 SAVVIS shall use its reasonable efforts to provide a Tail
Circuit to Customer by contracting with the Local Exchange
Carrier for access to the Tail Circuit and causing the Tail
Circuit to be operated, managed, and maintained as necessary
to provide access thereto to Customer. SAVVIS does not
guarantee or warrant the performance of the Tail Circuit or
the performance by the Local Exchange Carrier of its
obligations under any contract between SAVVIS and the Local
Exchange Carrier, applicable laws and regulations, or
standards of the industry.
4.2 Customer shall not use the Tail Circuit in any way that might
cause SAVVIS to violate the terms and conditions under which
access to the Tail Circuit is provided by the Local Exchange
Carrier, whether such terms and conditions be contractual,
regulatory, or other.
30
4.3 Customer shall be responsible for only that portion of SAVVIS'
costs attributable to Customer's own access to and use of the
Tail Circuit. In the event that SAVVIS provides access to any
third party or parties, Customer and SAVVIS will follow the
procedure set forth in Section 1.2 above in order to establish
a mutually agreed upon method or formula for determining the
amount to be charged to Customer, generally based on a pro
rata allocation of SAVVIS' total costs among all its customers
and other relevant considerations and/or fair and reasonable
adjustments in light of the circumstances at that time.
5. INVOICES
5.1 The amounts due to SAVVIS from Customer for the installation,
operation, management and maintenance of the Networks shall be
billed monthly in advance. All items on invoices not the
subject of a bona fide dispute shall be payable by Customer in
legal currency of [jurisdiction] within 30 days from the date
of receipt of the invoice. All amounts not in dispute are
subject to interest charges of 1-1/2 percent that will accrue
daily on all amounts not paid within 30 days of the date of
receipt of the invoice.
5.2 At any time and from time to time, Customer may, by written
notice to SAVVIS, have one or more Installation Sites removed
from the Networks. Each monthly invoice from SAVVIS to
Customer shall reflect a reduction in the amount charged to
Customer for the Networks resulting from any such removal of
Installation Sites. In the case of any Installation Site
removed from the Acquired Network Facilities, such reduction
shall be the sum of:
(a) the actual cost of the Local Access Facilities
connecting the Acquired Network Facilities to such
Installation Site, effective as of such time as
SAVVIS is no longer required to pay such costs, and
(b) the amounts set forth on Schedule 5.2 of the Network
Services Agreement, which are deemed to be one
month's charges applicable to such Installation Site
under this Agreement with respect to such month
during the first Agreement Year, according to the
geographic location and connection speed at such
Installation Site, effective as of such time as such
Installation Site is disconnected from the Networks.
5.3 Customer shall pay any sales, use, federal excise, utility,
gross receipts, state and local surcharges, value added and
similar taxes, charges or levies lawfully levied by a duly
constituted taxing authority against or upon the Networks. In
the alternative, Customer shall provide SAVVIS with a
certificate evidencing Customer's exemption from payment of or
liability for such taxes. All other taxes, charges or levies,
including any ad valorem, income, franchise, privilege or
occupation taxes of SAVVIS shall be paid by SAVVIS.
31
5.4 Bona fide disputes concerning invoices shall be referred to
the parties' respective representatives who are authorized to
resolve such matters. Any amount to which Customer is entitled
as a result of the resolution of a billing dispute shall be
credited promptly to Customer's account. Any amount to which
SAVVIS is entitled as a result of the resolution of a billing
dispute shall be paid promptly to SAVVIS.
5.5 Against the amounts owed by Customer to SAVVIS under this
Agreement, Customer shall have the right to offset any amounts
owed by SAVVIS to Customer under this Agreement, or otherwise,
including without limitation any amounts paid by Bridge Parent
on behalf of SAVVIS under guarantees by Bridge Parent of
obligations of SAVVIS.
6. TERM AND EXTENSIONS
6.1 This Agreement shall commence on the Effective Date and shall
continue in full force and effect for the Initial Term unless
terminated or extended in accordance with the provisions
hereof.
6.2 The term of this Agreement may be extended by Customer for one
additional five-year period by giving SAVVIS written notice
not less than one year before the scheduled expiration of the
Initial Term.
6.3 Upon the termination of this Agreement in accordance with its
scheduled expiration or by Customer pursuant to Section 7,
SAVVIS will continue to provide the Networks in accordance
with the terms and conditions herein (excluding the Minimum
Annual Commitment) for a period of up to five years after the
effective date of termination (the "TRANSITION PERIOD").
During the Transition Period, Customer shall pay SAVVIS for
the use of the Networks at the rates in effect at the
effective date of termination. If Customer has not completely
transitioned from its use of the Networks after the Transition
Period, SAVVIS will provide the Networks at SAVVIS' then
current list rates. SAVVIS and its successor will cooperate
with Customer until Customer has completely migrated to
another provider.
6.4 The above provisions of this Section 6 notwithstanding, the
term of this Agreement, including the Initial Term and any
extension provided under Section 6.2, and the Transition
Period shall not extend beyond the term or the transition
period of the Network Services Agreement.
7. TERMINATION BY CUSTOMER
7.1 An "EVENT OF DEFAULT BY SAVVIS" shall be deemed to occur if:
(a) SAVVIS has failed to a material degree to perform or
comply with or has violated any material
representation, warranty, term, condition or
32
obligation of SAVVIS under this Agreement, and SAVVIS
has failed to cure such failure or violation within
60 days after receiving notice thereof from Customer;
or
(b) SAVVIS becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(c) an Event of Default by SAVVIS occurs under the Local
[Telerate]/[Bridge] Network Services Agreement or
SAVVIS Communications defaults under the terms of the
Network Services Agreement.
7.2 Customer shall have the right to terminate this Agreement,
with no liability to SAVVIS other than for charges (less any
applicable credits) for the Networks provided prior to such
termination, if:
(a) Customer provides written notice to SAVVIS, at any
time after the ninth anniversary of the Effective
Date, of Customer's intent to terminate, such
termination to be effective not less than one year
following the date of such notice; or
(b) Customer provides 10 days written notice of its
intent to terminate in the event that an Event of
Default by SAVVIS occurs.
7.3 For purposes of Section 7.1(a), if the Quality of Service
Standards are not met with respect to a particular
Installation Site in any month, SAVVIS shall be deemed to have
cured such failure within 60 days if the Quality of Service
Standards are met with respect to such Installation Site in
the following month. The parties acknowledge and agree that
the failure of the Quality of Service Standards to be met with
respect to one or more Installation Sites in one or more
months may, but does not necessarily, constitute a failure by
SAVVIS to a material degree to perform or comply with or a
violation to a material degree of any material representation,
warranty, term, condition or obligation of SAVVIS under this
Agreement.
7.4 As provided in Section 2.2, for all purposes of this
Agreement, including without limitation the determination of
an Event of Default by SAVVIS under this Section, the Quality
of Service Standards applicable to a particular Installation
Site in any month shall be deemed to have been met unless
Customer, within 30 days of its receipt of the performance
report for such Installation Site for such month, requests in
writing a credit as set forth in Section 2.2 with respect to
such Installation Site for such month.
33
8. TERMINATION BY SAVVIS
8.1 SAVVIS shall have the right to terminate this Agreement if:
(a) Customer has failed to pay any invoice that is not
the subject of a bona fide dispute within 60 days of
the date on which such payment is due and SAVVIS has
provided Customer with written notice thereof,
provided that Customer shall have a further 30 days
from the time it receives such notice from SAVVIS of
nonpayment to cure any such default;
(b) SAVVIS provides 10 days written notice of its intent
to terminate in the event that Customer has failed to
perform or comply with or has violated any material
representation, warranty, term, condition or
obligation of Customer under this Agreement, and
Customer has failed to cure such failure or violation
within 60 days after receiving notice thereof from
SAVVIS; or
(c) Customer becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(d) SAVVIS becomes entitled to terminate the Local
[Telerate]/[Bridge] Network Services Agreement or
SAVVIS Communications becomes entitled to terminate
the Network Services Agreement.
8.2 Notwithstanding the provisions of Section 8.1(b) above, SAVVIS
shall not have the right to terminate this Agreement under
Section 8.1(b) solely for a failure by Customer to perform or
comply with, a violation by Customer of, the obligations of
Customer under Section 15 (Confidentiality) of this Agreement,
without prejudice, however, to such rights as SAVVIS may have
pursuant to such Section and to such rights and remedies to
which SAVVIS may be entitled, at law or in equity, as the
result of an actual or threatened breach by Customer of such
Section.
9. ACCEPTANCE OF ADDITIONAL NETWORK FACILITIES
9.1. Upon the installation of Additional Network Facilities at any
Installation Site, SAVVIS shall conduct appropriate tests to
establish that such Additional Network Facilities perform in
accordance with mutually agreed upon acceptance criteria
("ACCEPTANCE CRITERIA") set forth in the applicable Addendum
entered into pursuant to Section 2.4, and shall promptly
inform Customer of such test results. If test results show
that the Additional Network Facilities are performing in
accordance with the Acceptance Criteria, Customer shall be
deemed to accept the Additional Network Facilities at the
Installation Site immediately.
34
9.2 If SAVVIS' tests establish that newly installed Additional
Network Facilities at the Installation Site do not perform in
accordance with the mutually agreed upon Acceptance Criteria,
then SAVVIS shall immediately and diligently exert its best
efforts to bring the Additional Network Facilities at such
Installation Site into compliance. SAVVIS shall not xxxx
Customer for the Additional Network Facilities at such
Installation Site until the test results show that the
Additional Network Facilities are performing in accordance
with the Acceptance Criteria.
9.3 Upon repair or restoration of any part of the Networks, SAVVIS
shall conduct appropriate tests to establish that the Networks
perform in accordance with mutually agreed upon Acceptance
Criteria and shall promptly inform Customer of such test
results.
10. RIGHTS AND OBLIGATIONS OF CUSTOMER
10.1 SITE PREPARATION. For the installation of Additional Network
Facilities, Customer shall, at its own expense, provide all
necessary preparations of each Installation Site in accordance
with the requirements to be mutually agreed upon by the
parties and set forth in an Addendum hereto, including inside
wiring, demarcation extension and rack mount accessories.
Customer shall ensure that Customer-provided equipment is
on-site by the scheduled installation date. If SAVVIS is
required to reschedule the installation of Customer-provided
equipment because it is not on-site by the scheduled
installation date, Customer shall pay SAVVIS to redispatch
installation personnel.
10.2. PROPER USE OF NETWORKS.
10.2.1. Customer shall use any equipment provided by SAVVIS
in connection with the Networks in accordance with
its documentation, which documentation shall be
provided by SAVVIS at no additional charge. Unless
otherwise provided herein, upon the termination of
this Agreement Customer shall surrender to SAVVIS the
equipment provided by SAVVIS, in good working order,
ordinary wear and tear excepted.
10.2.2. Customer shall be liable for damages to the Networks
caused by the negligence or willful acts or omissions
of Customer's officers, employees, agents or
contractors, for loss through theft or vandalism of
the Networks at the Installation Site, and for
damages to the Networks caused by the use of
equipment or supplies not provided hereunder or not
otherwise authorized by SAVVIS.
10.2.3. Customer shall neither permit nor assist others to
use the Networks for any purpose other than that for
which they are intended, nor fail to maintain a
suitable environment specified by SAVVIS in the
applicable schedule, nor alter, tamper with, adjust
or repair the Networks. Any such alteration,
tampering, adjustment or repair by Customer shall
relieve
35
SAVVIS from any liability or obligation hereunder (including
any warranty or indemnity obligation) relating to the affected
Network, and Customer shall be liable to SAVVIS for any
documented direct costs incurred by SAVVIS as a result of such
actions.
10.3. ABUSE OR FRAUDULENT USE OF NETWORKS. Customer shall neither
permit nor assist others to abuse or fraudulently use the
Networks, or to use the Networks for any unauthorized or
illegal purposes, including:
(a) obtaining or attempting to obtain service by any
fraudulent means or device to avoid payment; or
(b) accessing, altering or destroying any information of
another party by any fraudulent means or device, or
attempting to do so; or
(c) using the Networks so as to interfere with the use of
the SAVVIS network by other SAVVIS customers or
authorized users or in violation of law or in support
of any unlawful act; or
(d) using the Networks for voice communications over a
private network in jurisdictions where such use is
not allowed.
Notwithstanding the provisions of Section 8, upon the breach
of this Section 10.3 by Customer, SAVVIS shall have the right
to terminate this Agreement immediately upon written notice to
Customer.
10.4. COVENANT NOT TO COMPETE.
10.4.1. As an inducement to SAVVIS to enter into this
Agreement, which Customer acknowledges is of benefit
to it, and in consideration of the promises and
representations of SAVVIS under this Agreement,
Customer covenants and agrees that during the term of
this Agreement and for a period of five years
thereafter, neither Customer nor any of its
successors or assigns will, directly or indirectly,
engage in, or have any interest in any other person,
firm, corporation or other entity engaged in, any
business activities anywhere in the world competitive
with or similar or related to the packet-data
transport network services provided by SAVVIS under
this Agreement; provided, however, that (i) Customer
shall be free to continue to use the Call Assets and
the satellite networks currently used by Customer,
until such Call Assets or satellite networks have
been acquired by SAVVIS, SAVVIS Communications or
Affiliates of SAVVIS Communications, and (ii)
Customer shall be free to make passive investments in
securities of companies that provide network services
in competition with SAVVIS which, in the case of any
such security, does not constitute more than ten
percent (10%) of the total outstanding amount of such
security.
36
10.4.2. If any court or tribunal of competent jurisdiction
shall refuse to enforce one or more of the covenants
in this Section 10.4 because the time limit
applicable thereto is deemed unreasonable, it is
expressly understood and agreed that such covenant or
covenants shall not be void but that for the purpose
of such proceedings such time limitation shall be
deemed to be reduced to the extent necessary to
permit the enforcement of such covenant or covenants.
10.4.3. If any court or tribunal of competent jurisdiction
shall refuse to enforce any or all of the covenants
in this Section 10.4 because, taken together, they
are more extensive (whether as to geographic area,
scope of business or otherwise) than is deemed to be
reasonable, it is expressly understood and agreed
between the parties hereto that such covenant or
covenants shall not be void but that for the purpose
of such proceedings the restrictions contained
therein (whether as to geographic area, scope of
business or otherwise) shall be deemed to be reduced
to the extent necessary to permit the enforcement of
such covenant or covenants.
10.4.4. Customer specifically acknowledges and agrees that
the foregoing covenants are commercially reasonable
and reasonably necessary to protect the interests of
SAVVIS hereunder. Customer hereby acknowledges that
SAVVIS and its successors and assigns will suffer
irreparable and continuing harm to the extent that
any of the foregoing covenants is breached and that
legal remedies would be inadequate in the event of
any such breach.
11. RIGHTS AND OBLIGATIONS OF SAVVIS
11.1. PROVISION OF THE NETWORKS. SAVVIS shall operate, maintain and
manage the Networks at the Installation Sites using the
Acquired Network Facilities in accordance with the Quality of
Service Standards and other terms of this Agreement, including
all Addenda hereto.
11.2. REPRESENTATIONS AND WARRANTIES.
11.2.1. [Intentionally omitted.]
11.2.2. SAVVIS hereby represents and warrants that the terms
hereof do not conflict in any respect whatsoever with
any SAVVIS tariff on file with the Federal
Communications Commission or other regulatory body.
If, during the term of this Agreement, SAVVIS shall
file a contract specific tariff governing the
Networks or any portion thereof, such tariff filing
shall be consistent in all respects with the terms of
this Agreement, and SAVVIS shall give Customer 10
days advance written notice of making such a tariff
filing and of filing any subsequent modifications
thereto.
37
11.2.3. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
11.3. SAVVIS acknowledges that the occurrence of Event of Default by
SAVVIS, arising from either (i) a failure of the Networks to
meet Quality of Service Standards or (ii) a total loss to
Customer of the use of the Networks, could cause irreparable
harm to Customer, the amount of which may be difficult to
determine, thus potentially making any remedy at law or in
damages inadequate. SAVVIS, therefore, agrees that Customer
shall have the right to apply to any court of competent
jurisdiction for injunctive relief upon the occurrence of an
Event of Default by SAVVIS or the occurrence of an event
which, with the passage of time or the giving of notice, could
become an Event of Default by SAVVIS and for any other
appropriate relief. This right shall be in addition to any
other remedy available to Customer in law or equity. SAVVIS
further agrees that, upon the occurrence of an Event of
Default by SAVVIS, SAVVIS shall pay to Customer, as liquidated
damages and not as a penalty, an amount equal to the lesser of
(a) the aggregate amounts paid by Customer to SAVVIS under
this Agreement during the six months preceding such Event of
Default by SAVVIS or (b) $50,000,000; provided, however, that
Customer may recover liquidated damages under this Section
only for an Event of Default by SAVVIS that occurs (i) prior
to any Event of Default by SAVVIS for which Customer or
[Bridge Parent]/[Telerate Parent] or any customer of [Bridge
Parent]/[Telerate Parent] has claimed liquidated damages under
this Section or under a Network Services Agreement or any
Local [Telerate]/[Bridge] Network Services Agreement, or (ii)
more than 36 months following the most recent Event of Default
by SAVVIS for which Customer or [Bridge Parent]/[Telerate
Parent] or any customer of [Bridge Parent]/[Telerate Parent]
has claimed liquidated damages under this Section or under a
Network Services Agreement or any Local [Telerate]/[Bridge]
Network Services Agreement.
12. LIMITATIONS OF LIABILITY
12.1. Subject to Section 11.4, neither party shall be liable to the
other for indirect, incidental, consequential, exemplary,
reliance or special damages, including damages for lost
profits, regardless of the form of action whether in contract,
indemnity, warranty, strict liability or tort, including
negligence of any kind with respect to the Networks or other
conduct under this Agreement.
12.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, including fraud, or (b) injury or death, or damage
to tangible real or tangible personal property or the
environment, when proximately caused by SAVVIS' or Customer's
negligence or that of their respective agents, subcontractors
or employees. Nothing contained in this
38
Section shall limit SAVVIS' intellectual property
indemnification obligations under Section 16.1 or Customer's
indemnification obligations with respect to a breach of
Section 10.3.
13. EQUIPMENT AND SOFTWARE NOT PROVIDED BY SAVVIS
13.1. SAVVIS shall not be responsible for the installation,
operation or maintenance of equipment or software not provided
by it under this Agreement, nor shall SAVVIS be responsible
for the transmission or reception of information by equipment
or software not provided by SAVVIS hereunder. In the event
that Customer uses equipment or software not provided by
SAVVIS hereunder in a manner that impairs Customer's use of
the Networks, Customer shall not be excused from payment for
such use and SAVVIS shall not be responsible for any failure
of the Networks to meet the Quality of Service Standards
resulting from the use of such equipment or software by
Customer. Upon notice from SAVVIS that the equipment or
software not provided by SAVVIS under this Agreement is
causing or is likely to cause hazard, interference or service
obstruction, Customer shall eliminate the likelihood of such
hazard, interference or service obstruction.
13.2. Notwithstanding the foregoing, SAVVIS shall, at no additional
charge, provide all interface specifications for the Networks
reasonably requested by Customer. SAVVIS shall, upon the
receipt of appropriate specifications from Customer, inform
Customer of the compatibility with the Networks of any
equipment or software that Customer proposes to use in
connection therewith, the effects, if any, of the use of such
equipment or software on the quality, operating
characteristics and efficiency of the Networks, and the
effects, if any, of the Networks on the operating
characteristics and efficiency of any such equipment or
software.
14. PROPRIETARY RIGHTS; LICENSE
14.1. SAVVIS hereby grants to Customer a non-exclusive and
non-transferable license to use all programming and software
necessary for Customer to use the Networks. Such license is
granted for the term of this Agreement for the sole purpose of
enabling Customer to use the Networks.
14.2. All title and property rights (including intellectual property
rights) to the Networks (including associated programming and
software) are and shall remain with SAVVIS or the third-party
providers thereof to SAVVIS. Customer shall not (except as
permitted by applicable law) attempt to examine, copy, alter,
reverse engineer, decompile, disassemble, tamper with or
otherwise misuse the Networks, programming and software.
39
15. CONFIDENTIALITY
15.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
15.2. Notwithstanding Section 15.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors or
managers of facilities or equipment used by such party) in
need of access to such information for purposes specifically
related to either party's responsibilities under this
Agreement, provided that any disclosure of Confidential
Information under clause (c) shall be made only upon prior
written approval of the other party and subject to the
appropriate assurances that the recipient of such information
shall hold it in strict confidence.
15.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the
other party with written certification of such destruction.
15.4. Either party may request in writing that the other party waive
all or any portion of the requesting party's responsibilities
relative to the other party's Confidential Information. Such
waiver request shall identify the affected information and the
nature of the proposed waiver. The recipient of the request
shall respond within a reasonable time and, if it determines,
in its sole discretion, to grant the requested waiver, it will
do so in writing over the signature of an employee authorized
to grant such request.
15.5. Customer and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right to
apply to any court of competent jurisdiction
40
for an order restraining any breach or threatened breach of
this Section and for any other appropriate relief. This right
shall be in addition to any other remedy available in law or
equity.
15.6. A party requested or ordered by a court or other governmental
authority of competent jurisdiction to disclose another
party's Confidential Information shall notify the other party
in advance of any such disclosure and, absent the other
party's consent to such disclosure, use its best efforts to
resist, and to assist the other party in resisting, such
disclosure. A party providing another party's Confidential
Information to a court or other governmental authority shall
use its best efforts to obtain a protective order or
comparable assurance that the Confidential Information so
provided will be held in confidence and not further disclosed
to any other person, absent the owner's prior consent.
15.7. The provisions of Section 15.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably necessary
in connection with the sale of securities or the performance
or enforcement of this Agreement or any of the obligations
hereof; provided, however, that if the receiving party would
otherwise be required to refer to or describe any aspect of
this Agreement in any of the preceding circumstances, the
receiving party shall use its reasonable efforts to take such
steps as are available under such circumstances (such as by
providing a summary or synopsis) to avoid disclosure of the
financial terms and conditions of this Agreement.
Notwithstanding any provisions of this Agreement to the
contrary, either party may disclose the terms and conditions
of this Agreement in the course of a due diligence review
performed in connection with prospective debt financing or
equity investment by, or a sale to, a third party, so long as
the persons conducting such due diligence review have agreed
to maintain the confidentiality of such disclosure and not to
use such disclosure for any purpose other such due diligence
review.
16. INDEMNIFICATIONS
16.1. SAVVIS shall defend, settle, or otherwise manage at its own
cost and expense any claim or action against Customer or any
of its directors, officers, employees or assigns for actual or
alleged infringement by the Networks of any patent, copyright,
trademark, trade secret or similar proprietary right of any
third party, except to the extent that such actual or alleged
infringement arises from (i) such actual or alleged
infringement by the Acquired Network Facilities on the
Effective Date or (ii) an act or omission of Customer or a
vendor or customer of Customer or (iii) equipment or software
used by Customer and not provided by SAVVIS. Customer shall
notify SAVVIS promptly in writing of any such claim or suit
and shall cooperate with SAVVIS in a reasonable way to
facilitate the
41
settlement or defense thereof. SAVVIS further agrees to
indemnify and hold Customer harmless from and against any and
all liabilities and damages (whether incurred as the result of
a judicial decree or a settlement), and the costs and expenses
associated with any claim or action of the type identified in
this Section (including reasonable attorneys' fees).
16.2. If, as a consequence of a claim or action of the kind
described in Section 16.1, SAVVIS' or Customer's use of all or
part of any Network is enjoined, SAVVIS shall, at its option
and expense, either: (a) procure for Customer the right to
continue using the affected Network; (b) modify such Network
so that they are non-infringing, provided that such
modification does not affect the intended use of the Network
as contemplated hereunder. If SAVVIS does not take any of the
actions described in clauses (a) or (b), then Customer may
terminate the affected portion of such Network, and SAVVIS
shall refund to Customer any prepaid charges therefor.
16.3. Subject to Section 12, Customer will defend, indemnify and
hold harmless SAVVIS or any of its directors, officers,
employees or assigns from and against all loss, liability,
damage and expense, including reasonable attorneys' fees,
caused by:
(a) claims for libel, slander, invasion of privacy or
infringement of copyright, and invasion and/or
alteration of private records or data arising from
any information, data or messages transmitted over
the Networks by Customer;
(b) claims for infringement of patents arising from the
use by Customer of equipment and software, apparatus
and systems not provided hereunder in connection with
the Networks; and
(c) the violation of any representations, warranties and
covenants made by Customer in this Agreement.
16.4. Subject to Section 12, SAVVIS will defend, indemnify and hold
harmless Customer or any of its directors, officers, employees
or assigns from and against all loss, liability, damage and
expense, including reasonable attorneys' fees, caused by:
(a) claims for infringement of patents arising from the
use by SAVVIS of equipment and software, apparatus
and systems not provided by SAVVIS hereunder in
connection with the Networks (other than any Acquired
Network Facilities); and
(b) the violation of any representations, warranties and
covenants made by SAVVIS in this Agreement.
42
17. DISPUTES
17.1. Except as expressly provided in Schedule 4.1 of this
Agreement, the resolution of any and all disputes arising from
or in connection with this Agreement, whether based on
contract, tort, statute or otherwise, including disputes over
arbitrability and disputes in connection with claims by third
persons ("DISPUTES") shall be exclusively governed by and
settled in accordance with the provisions of this Section 17.
The foregoing shall not preclude recourse to judicial
proceedings to obtain injunctive, emergency or other equitable
relief to enforce the provisions of this Agreement, including
specific performance, and to decide such issues as are
required to be resolved in determining whether to grant such
relief. Resolution of Disputes with respect to claims by third
persons shall be deferred until any judicial proceedings with
respect thereto are concluded.
17.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a binding arbitration clause
under applicable law. Either party may serve process or notice
on the other in any arbitration or litigation in accordance
with the notice provisions hereof. The parties agree not to
disclose any information regarding any Dispute or the conduct
of any arbitration hereunder, including the existence of such
Dispute or such arbitration, to any person or entity other
than such employees or representatives of such party as have a
need to know.
17.3. Either party may commence proceedings hereunder by delivery of
written notice providing a reasonable description of the
Dispute to the other, including a reference to this provision
(the "DISPUTE NOTICE"). Either party may initiate arbitration
of a Dispute by delivery of a demand therefor (the
"ARBITRATION DEMAND") to the other party not sooner than 60
calendar days after the date of delivery of the Dispute Notice
but at any time thereafter. The arbitration shall be conducted
in St. Louis, Missouri.
17.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Customer, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If an
Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
17.5. The arbitration shall be conducted pursuant to such procedures
as the parties may agree or, in the absence of or failing such
agreement, pursuant to the Rules. Notwithstanding the
foregoing, each party shall have the right to inspect the
books and records of the other party that are reasonably
related to the Dispute, and each party shall provide to the
other, reasonably in advance of any hearing, copies of all
43
documents which such party intends to present in such hearing
and the names and addresses of all witnesses whose testimony
such party intends to present in such hearing.
17.6. All hearings shall be conducted on an expedited schedule, and
all proceedings shall be confidential. Either party may at its
expense make a stenographic record thereof.
17.7. The Arbitrators shall complete all hearings not later than 90
calendar days after the Arbitrators' selection or appointment,
and shall make a final award not later than 30 calendar days
thereafter. The Arbitrators shall apportion all costs and
expenses of the Arbitration, including the Arbitrators' fees
and expenses of experts ("ARBITRATION COSTS") between the
prevailing and non-prevailing parties as the Arbitrators deem
fair and reasonable. In circumstances where a Dispute has been
asserted or defended against on grounds that the Arbitrators
deem manifestly unreasonable, the Arbitrators may assess all
Arbitration Costs against the non-prevailing party and may
include in the award the prevailing party's attorneys' fees
and expenses in connection with any and all proceedings under
this Section 17.
17.8. Either party may assert appropriate statutes of limitation as
a defense in arbitration; provided, that upon delivery of a
Dispute Notice any such statute shall be tolled pending
resolution hereunder.
17.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and SAVVIS shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Networks to
Customer unless otherwise directed by Customer. This Section
shall not apply where (a) Customer is in default under this
Agreement or (b) the dispute or controversy between the
parties relates to harm to the Networks allegedly caused by
Customer and Customer does not immediately cease and desist
from the activity giving rise to the dispute or controversy.
18. FORCE MAJEURE
18.1. In no event shall either party be liable to the other for any
failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers (whether
of a party hereto or of others), casualties, accidents or
other causes to the extent that such failure and the
consequences thereof are reasonably beyond the control and
without the fault or negligence of the party claiming excuse.
Each party shall, with the cooperation of the other party, use
reasonable efforts to mitigate the extent of any failure to
perform and the adverse consequences thereof.
18.2. If SAVVIS cannot promptly provide a suitable temporary SAVVIS
alternative to all or part of a Network subject to an
interruption in connection with the existence of a force
majeure condition, Customer may, at its option and at its own
44
cost, contract with one or more third parties for the affected
portion of the Network for the shortest commercially available
period likely to cover the reasonably expected duration of the
interruption, and may suspend SAVVIS' provision of such
affected portion for such period. SAVVIS shall not charge
Customer for the affected portion thus suspended during the
period of suspension. SAVVIS shall resume provision of the
suspended portion of the Network upon the later of the
termination or expiration of Customer's legally binding
commitments under contracts with third parties for alternative
services or the cessation or remedy of the force majeure
condition.
18.3. In the event that a force majeure condition shall continue for
more than 60 days, Customer may cancel the affected portion of
the Network with no further liability to SAVVIS other than for
obligations incurred with respect to such affected portion
prior to the occurrence of the force majeure condition.
18.4. The consequences arising from existence and continuation of a
force majeure condition, including without limitation any
interruption of the Networks and the exercise by Customer of
its rights under this Section 18, shall be deemed not to
constitute a breach by either party hereto of any
representations, warranties or covenants hereunder and shall
not be grounds for the exercise of any remedies under this
Agreement, including without limitation remedies under Section
2.2 or Section 7, other than those specified in this Section
18.
19. GENERAL PROVISIONS
19.1. NO THIRD-PARTY BENEFICIARIES. [This Agreement shall not confer
any rights or remedies upon any person or entity other than
the parties and their respective successors and permitted
assigns.] [Except as expressly provided in this Agreement,
nothing in this Agreement will create or confer any rights or
other benefits on or in favor of any person who is not a party
to this Agreement whether pursuant to the Contracts (Rights of
Third Parties) Act, 1999 or otherwise.]
19.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior understandings,
agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to the
subject matter hereof.
19.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. No party
may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
approval of the other party, which consent shall not be
unreasonably withheld.
19.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
45
19.5. HEADINGS. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
19.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall
be deemed duly given if (and then two business days after) it
is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended
recipient as set forth below:
If to Customer: Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President
and General Counsel
If to SAVVIS: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President and General
Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the
address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may
change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered
by giving the other party notice in the manner herein set
forth.
19.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Missouri in the United States of America, without giving
effect to any choice or conflict of law provision or rule
(whether of the State of Missouri or any other jurisdiction)
that would cause the application of the laws of any
jurisdiction other than the State of Missouri.
19.8. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by SAVVIS and Customer. No waiver by any party of
any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default,
misrepresentation, or breach of
46
warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
19.9. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
19.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
19.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
19.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified in
this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Network
Services Agreement to be executed as of the date first above written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
[local SAVVIS entity]
By
--------------------------------
Name: Xxxxxx X. Xxxxxxx
[local Bridge/Telerate entity].
By
-------------------------------
Name:
-----------------------------
Title:
----------------------------
47
