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EXHIBIT 10.16
BILATERAL PEERING AGREEMENT
In this Agreement made as of 5/19/97 ("Effective Date") VERIO Inc. with a
principal place of business at Suite 400, 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000 ("VERIO"), and AT&T Corp., with a principal place of business at
000 X. Xxxxx Xxx., Xxxxxxx Xxxxx, Xxx Xxxxxx 00000 ("AT&T"), agree as follow:
RECITALS
A. Each of VERIO and AT&T operates an Internet Network, as defined below;
and
B. The parties wish to provide for the interconnection of, and exchange
of traffic between, their respective Internet Networks on the terms and
conditions herein.
1. DEFINITIONS
a. "Affiliate" means a corporation or other entity that controls,
is controlled by, or is under common control with another corporation or
entity, but only while that control relationship exists; "control" means (i)
the direct or indirect ownership or control of more than 50% of the stock or
other equity interest entitled to vote for the election of directors or
equivalent governing body, or (ii) VERIO's or AT&T's ownership of an option to
acquire direct or indirect ownership or control of more than 50% of the stock
or other equity interest entitled to vote for the election of directors or
equivalent governing body.
b. "Internet Network" means a communications network running the
TCP/IP and other Internet protocols.
c. "Interconnection Point" means any interconnection point at
which the parties agree to connect their respective Internet Networks under
this Agreement. A description of all Interconnection Points, together with all
direct interconnections agreed to by the parties, is set forth in Schedule 1
attached hereto, and Schedule 1 shall be amended by the agreement of VERIO and
AT&T in the event of any changes.
2. EXCHANGE OF TRAFFIC
a. Each party agrees to exchange digital communications traffic
with the other party over its Internet Network at the Interconnection Points
and/or in one or more direct interconnections, subject to the terms and
conditions set forth in this Agreement. Each party shall provide, at its own
expense, a connection from its Internet Network to the Interconnection Points
or direct interconnections hereunder, upon a schedule to be mutually agreed.
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b. The data rate at which the parties will connect hereunder is
set forth in Schedule 1. The exchange of digital communications traffic at each
Interconnection Point will begin on or about the date specified in Schedule 1,
or as the parties otherwise agree.
c. Each party agrees not to restrict traffic flowing through the
Interconnection Points to and from the other party based on the subject matter
of the traffic unless required to do so by court order or applicable law. Each
party shall retain its prior rights to impose usage restrictions on its own
customers and/or to assist its customers in imposing customer requested usage
restrictions on traffic flowing to and from the requesting customer.
d. There will be no restrictions on the ability of VERIO or AT&T
to collect data and create statistics associated with data moving through its
own Internet Network and traffic moving through the Interconnection Point.
Each party shall keep all data it monitors or captures concerning the
Interconnection Points confidential in accordance with the Non-Disclosure
Agreement described in Section 19, and shall use such data solely for the
purposes of operating and managing its Internet Network. Except as otherwise
agreed between the parties, statistics itemized by the following criteria may
not be provided to third parties: service provider, company or other entity,
and/or IP address. Notwithstanding the foregoing, each party may provide any
of its customers with statistical data associated with such customer's traffic.
e. Neither party will establish a route of last resort directed
toward the other party's Internet Network. Instead, the parties will fully
exchange explicit routes comprising public Internet service destinations of
entities to whom either party is contractually obligated to handle traffic.
3. PAYMENTS
The parties agree that during the 12 month period immediately following the
Effective Date they shall work together to define the data and operational
characteristics of interconnection with a view toward agreeing upon appropriate
financial arrangements for interconnection of their respective Internet
Networks should that mutually be deemed necessary or desirable. Immediately
upon the parties' agreement to such financial arrangements, the parties shall
implement such arrangements by amending this Agreement to provide for
settlement or other payments between the parties. Until such financial
arrangements are finalized, no settlement or other charges of any kind for data
transmission will be paid by either party to the other hereunder. Each party
shall bear its own costs and expenses incurred in connection with this
Agreement.
4. TERM AND TERMINATION
This Agreement shall have an initial term ending one year after the Effective
Date. Either party may terminate this Agreement: (a) upon 90 calendar days'
written notice to the other
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within the six month period following the Effective Date; (b) upon 60 calendar
days' written notice to the other at any time after that six month period; (c)
upon one week's notice if the other party is not prepared to interconnect at at
least one of the Interconnection Points within 30 days after the earliest date
specified in Schedule 1; or (d) upon 15 days' notice if the other party is not
prepared to interconnect at all of the Interconnection Points within 30 days
after the latest date specified in Schedule 1. If neither party terminates this
Agreement upon expiration of the initial term, this Agreement shall continue on
its present terms and conditions, until a party terminates it by 60 calendar
days written notice to the other. Sections 2(d) (Data Collection), 8
(Liability, Consequential Damages), 19 (Confidentiality), and 20 (Disputes)
shall survive termination of this Agreement for any reason.
5. TECHNICAL AND OPERATIONAL MATTERS
a. Each party represents that the Interconnection Points set
forth in Schedule 1 are, and during the term of this Agreement shall be,
connected as part of an internal network architecture comprised of multiple,
cross-country circuits of at least DS3 (45 Mbps) speed.
b. Neither party is obligated to accept third party routes from
the other party. For purposes of this paragraph, any entity that peers with
one party hereto but not with the other shall be considered a "third party." If
third party routes are detected by either party, that party has the right to
block the routes. The foregoing restriction shall not apply to routes of (i)
Affiliates of a party, or (ii) customers whose transit traffic is carried by
the other party or the other party's Affiliates. For purposes of this
Agreement, "transit traffic" is traffic that a party agrees to transport to its
final destination.
c. Both parties shall maintain a consistent routing announcement.
Both parties will present the same autonomous system number at the
Interconnection Points listed in Schedule 1.
(i) The parties will work together during the term of
this Agreement to establish mutually agreed performance objectives and
operational procedures to enable each party to provide the highest practical
quality of service over its Internet Network and the interconnections provided
hereunder, in a cost-effective fashion. In connection therewith, the parties
shall make reasonable efforts to achieve a minimum end-to-end one-way packet
delay.
(ii) Each of the parties will make reasonable efforts to
achieve a mean time to repair of four hours or less for all outages at the
Interconnection Points set forth on Schedule 1. The parties will cooperate with
each other in each party's efforts under this paragraph 5.c.
(iii) Each of the parties will develop scheduled
maintenance procedures that provide for notification by one party to the other
of all scheduled maintenance that could cause end-to-end connectivity loss for
any user of more than five minutes. Each party
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agrees to give the other three calendar days' advance notice for scheduled
maintenance that is expected to result in 30 minutes or more of end-to-end
connectivity loss.
d. Each party agrees to maintain a fully staffed network
operations center ("NOC") that operates on a 24 hour/day, 7 days/week schedule.
(i) Each party will, at its own expense and on a
reasonable efforts basis, provide NOC support in cooperation with the other to
maintain the smooth operational procedures for the interworking of their
respective Internet Networks, including without limitation inter-NOC problem
management information exchanges (eg, trouble ticket tracking), and NOC
escalation procedures for addressing unscheduled outages or emergency
maintenance.
(ii) Each of the parties will provide the other with
certain limited access to data for the purpose of operational monitoring and
the diagnosis of end-to-end connectivity problems. The determination of the
extent of this limited access to data and definition of this data shall be by
the mutual consent of both parties' engineering organizations. The parties
will use their reasonable efforts to develop procedures to govern the timing
and other terms and conditions upon which this access will be provided.
e. Each of the parties shall make reasonable efforts to secure
their respective Internet Networks and traffic through the Interconnection
Points from unauthorized access, transmission, or use; furthermore, the parties
shall cooperate to address security issues and develop security procedures.
6. CUSTOMER AND AFFILIATE RELATIONS
Each party will be responsible for communicating with its own customers
and Affiliates with respect to its Internet Network. Each party shall be
responsible to screen the traffic of its own customers and Affiliates not
desiring public Internet access from distribution across the Interconnection
Points. Each party will independently establish the charges to its own
customers and Affiliates for the services provided in connection with this
Agreement.
7. NONEXCLUSIVITY
This Agreement shall not prohibit or restrain either party's entry
into any separate similar or dissimilar contract or agreement with one or more
third parties.
8. LIABILITY; CONSEQUENTIAL DAMAGES
a. EACH PARTY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS
AND IMPLIED, CONCERNING OR RELATING TO THE
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EXCHANGE OF TRAFFIC OR OTHER ACTIVITIES UNDER THIS AGREEMENT, INCLUDING ANY
REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, OR PERTAINING TO THE SECURITY OR DELIVERY OF TRAFFIC, OR THAT ANY
ROUTING INFORMATION OR OTHER INFORMATION PROVIDED IS ACCURATE AND COMPLETE AND
DOES NOT INFRINGE ANY PATENT, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT.
b. Neither party shall be liable to the other for any loss or
damage arising from: (i) any failure in or breakdown of any facilities or
services hereunder, whatsoever the cause and however long it shall last; (ii)
any interruption of service; (iii) such party's submitting traffic to or
accepting traffic from the other party hereunder; or (iv) any other
circumstance relating to this Agreement except for breaches of Sections 2(d)
(Data Collection) or 19 (Confidentiality).
c. IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH
THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN INFORMED IN ADVANCE OF THE
POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
Each party's liability for direct damages in connection with this Agreement
shall be limited to an aggregate of US$50,000. This Section 8(c) shall not
apply to breaches of Sections 2.d (Data Collection) or 19 (Confidentiality).
d. Each party is responsible for assessing its own need for
property, casualty, and liability insurance and each shall obtain such
insurance as each sees fit. Each party shall bear the risk of loss and damage
with respect to its own equipment and agrees not to make any claims against the
other, or assign any such claims to third parties, for any property loss or
damage.
9. AUTHORIZATIONS
All undertakings and obligations assumed hereunder by either party are
subject to all applicable existing and future laws, rules, and regulations, and
are further subject to the issuance and continuance of all necessary
governmental licenses, waivers, consents, registrations, permissions, and
approvals.
10. FORCE MAJEURE
No failure or omission by either party to carry out or observe any of
the terms and conditions of this Agreement shall give rise to any claim against
the party in question or be deemed to be a breach of this Agreement if such
failure or omission arises from any cause reasonably beyond the control of that
party (a "Force Majeure Event"). Each party shall
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give the other notice in the event it experiences a failure or delay due to a
Force Majeure Event. Upon such notice, the party affected by the Force Majeure
Event may delay performance hereunder during the pendency of such Force Majeure
Event, and shall have no liability for such delay.
11. RELATIONSHIP OF PARTIES
In their performance hereunder the parties are acting as independent
contractors, and
nothing contained herein shall be construed to create a partnership, joint
venture, or other agency relationship between the parties.
12. REGULATORY APPROVAL
The parties acknowledge that this Agreement, and any or all of the
terms hereof, may become subject to regulatory approval by various local,
state, or federal agencies. Should such approval be required from time to
time, or at any time, the parties shall cooperate, to the extent reasonable and
lawful, in providing such information as is necessary to complete any required
filing.
13. ASSIGNMENT
Except as this Section 13 provides, neither party may assign or
otherwise transfer this Agreement, or any of their respective rights or
obligations under this Agreement, to any third party without the other party's
prior written consent, which the other party may grant or withhold in its
discretion. Either party may at any time, on written notice to the other,
assign this Agreement and all of the assigning party's rights and obligations
under this Agreement to any Affiliate (except an Affiliate which is an
Affiliate solely by virtue of a control relationship described in Section
1(a)(ii)). Notwithstanding any such assignment, the assigning party will
remain responsible for its financial obligations to the other outstanding as of
the effective date of the assignment. This Agreement will be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns.
14. NOTICES
All notices required or permitted under this Agreement and all
requests for approvals, consents, and waivers must be in writing and must be
delivered by a method providing for proof of delivery (including express
courier, and facsimile or email if receipt is acknowledged by the recipient).
Any notice or request will be deemed to have been given on the date of receipt.
Notices and requests must be delivered to the addresses set forth on the
signature page of this Agreement until a different address has been designated
by notice to the other.
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15. ENTIRE AGREEMENT
This Agreement represents the entire understanding between the parties
regarding the subject matter hereof and supersedes all other prior and
contemporaneous agreements, understandings, negotiations, and discussions
between the parties with respect to such subject matter.
16. SEVERABILITY
If any provision of this agreement is held by an arbitrator or a court
of competent jurisdiction to be contrary to law, the remaining provisions of
this Agreement will remain in full force and effect.
17. AMENDMENT
This Agreement may be modified only by a written amendment signed by
both parties.
18. NO THIRD PARTY BENEFICIARIES
Nothing contained in this Agreement shall be deemed to confer any
rights in any third party not a signatory to this Agreement.
19. CONFIDENTIALITY
AT&T and VERIO will enter into a separate mutually agreed to
Non-Disclosure Agreement concurrent with the signing of this Agreement. Such
agreement is attached hereto as Schedule 2. Neither party shall issue any press
release or make any statement to the public or the press about this Agreement
or about the parties' relationship under this Agreement without the prior
consent of the other party, except that VERIO may, without the consent of AT&T,
make such statements in disclosure documents used in its capital raising
efforts so long as the statements are accurate and not misleading.
Notwithstanding the foregoing, the parties acknowledge that they intend to
disclose the technical objectives and certain technical terms and conditions
contemplated herein to the public, in a form and manner and at a time or times
to be mutually agreed by the parties.
20. DISPUTES
The parties agree that resolving disputes as promptly and efficiently
as possible will best serve their respective interests. If the parties cannot
resolve through negotiation a dispute regarding any matter under or relating to
this Agreement, the dispute shall be referred to officers of the parties, who
will attempt to resolve the dispute within 10 business
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days of the referral. If those officers are unable to resolve the dispute
within that 10 business day period, the parties shall further seek to resolve
the dispute pursuant to nonbinding mediation conducted in New York City by the
CPR Institute for Dispute Resolution ("CPR") in accordance with CPR's
then-current "Model Mediation Procedure for Business Disputes" and the
procedures of this Section. Each party shall bear its own expenses in connection
with the mediation, and shall share equally the fees and expenses of CPR and the
mediator. All disputes which cannot be amicably resolved as described above
shall be settled exclusively by binding arbitration in accordance with CPR's
then-current "Non-Administered Arbitration Rules". The arbitration shall be
held in New York City and shall be conducted by a single neutral arbitrator who
shall be familiar with the business of Internet service providers. The
arbitrator shall be bound by and shall strictly enforce the terms of the
Agreement and may not limit, expand, or otherwise modify the terms of this
Agreement. The arbitrator shall not have the power to award damages in excess
the limits set forth herein or to award punitive damages or any damages that are
excluded under Section 9 of this Agreement, and each party irrevocably waives
any claim thereto. The arbitrator shall not have the power to order pre-hearing
discovery of documents or the taking of depositions. The arbitrator shall
render a written and reasoned decision within six months after being selected,
which decision shall be final and binding upon the parties and may be enforced
by either party in any court of competent jurisdiction. Each party will bear
its own expenses in connection with the arbitration, and will share equally the
fees and expenses of the CPR and the arbitrator, unless the award otherwise
provides. This Section shall not be construed to prohibit either party from
seeking preliminary or permanent injunctive relief in any court of competent
Jurisdiction however, the arbitrator hearing the dispute to which the injunction
pertains will have the power to modify or dissolve any such injunction, or to
order additional injunctive relief, in connection with the final arbitration
award. The parties, their representatives, other participants, and the mediator
and arbitrator shall hold the existence, content, and result of any mediation
and arbitration in confidence except to the extent necessary to enforce a final
settlement agreement or to obtain and secure enforcement of or a judgment on an
arbitration decision and award. The United States Arbitration Act, 9 U.S.C.
Sections 1-14, governs the interpretation and enforcement of this Section 20;
New York law (excluding its choice of law rules to the extent such rules would
require application of the laws of a Jurisdiction other than New York, and laws
concerning arbitration) governs all other substantive matters pertaining to the
interpretation and enforcement of the other terms of this Agreement. If court
proceedings to stay litigation or compel arbitration under this Section are
necessary, the party who unsuccessfully opposes such proceedings shall pay all
associated costs, expenses, and attorneys' fees that the other party reasonably
incurs in connection with such court proceedings.
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Accepted:
AT&T CORP. VERIO Inc.
Signed:/s/ XXXX X. XXXXXXXXXXX Signed:/s/ XXXXX XXXXXXXX
--------------------------------- -----------------------------
Printed: Xxxx X. Xxxxxxxxxx Printed: Xxxxx XxXxxxxx
-------------------------------- ----------------------------
Title: Network and Access Vice President Title: CTO
--------------------------------- ------------------------------
Date: May 19, 1997 Date: May 28, 1997
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Notice Address: Notice Address:
AT&T WorldNet Service VERIO Inc.
00 Xxxxxxxxx Xxxxx 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 Suite 400
Attn: VP - WorldNet Network and Access Xxxxxxxxx, Xxxxxxxx 00000
Fax: 000 000-0000 Attn: Xxxxx Xxxx
Email:xxxxxxxxxxxx@xxxxxxx.xxx Email: xxxxx@xxxxx.xxx
with a courtesy copy to: with a courtesy copy to:
AT&T Law Division VERIO Inc., Legal Dept.
000 X. Xxxxx Xxx. 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000 Suite 400
Attn: Chief Counsel - AT&T WorldNet Xxxxxxxxx, Xxxxxxxx 00000
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