MASTER SERVICE AGREEMENT
ADVANCED RADIO TELECOM
&
PUBLIC INTEREST NETWORK
OCTOBER 1, 1996
MASTER SERVICE AGREEMENT
THIS MASTER SERVICE AGREEMENT (this "Agreement") is entered into as of the
1st day of October 1996 (the "Effective Date") between ADVANCED RADIO TELECOM
CORP., a Delaware corporation with its principal place of business at 000-000xx
Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000 ("ART"), and Public
Interest Network (PIN), ("Purchaser"), with its principal place of business at
00 X x0xx Xxxxxx, XX, XX.
RECITALS:
WHEREAS, ART provides broadband wireless local telecommunications services
in certain geographic areas throughout the United States, and its primary
service offering uses 38 GHz millimetric facilities;
WHEREAS, Purchaser desires to use the services provided by ART, and
WHEREAS, ART and Purchaser desire to enter into an agreement providing for
the furnishing of broadband wireless services by ART.
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants and agreements hereinafter set forth, ART
and Purchaser, intending to be legally bound, agree as follows:
1. Definitions
Definitions are contained in Attachment A.
2. Term of Agreement
The term of this Agreement shall begin on the effective Date and shall continue
in effect for three (3) year(s) thereafter. The Agreement shall renew for
successive periods of one (1) year unless one of the parties gives written
notice not to renew no later than sixty (60) days prior to the scheduled date of
expiration of the initial period or any subsequent renewal period.
3. Scope of Agreement
ART shall provide to Purchaser domestic interstate and interstate Services
pursuant to this Agreement and, where applicable, to ART's tariffs ("Tariffs")
governing certain of the Services on file with the Federal Communications
Commission ("FCC") and various regulatory commissions. This Agreement
incorporates the relevant Tariff provisions as they may be amended from time to
time in accordance with law. The Tariffs shall control the furnishing of service
under this Agreement in the event of any conflict between this Agreement and the
Tariffs but to the extent that the Tariffs are required to control by operation
of law. Capitalized terms not otherwise defined in this Agreement shall have the
meanings assigned to them in the Tariffs.
4. Services Provided By Art
4.1 38 GHz Transmission Services
ART shall provide transmission services over authorized 38 GHz facilities in
authorized areas, which services (the "Services") shall consist of the
Equipment, as defined below, and all aspects of path engineering, spectrum
usage, spectrum assignment, spectrum management, frequency coordination, and
network monitoring (collectively, "Spectrum Services"). Additional services may
be added, from time to time, by amendment to this Agreement in the form of the
Service Order, the current version of which is attached hereto as Attachment B.
Payment by Purchaser for the Services shall be in accordance with Section 11.
4.2 Equipment
4.2.1 Equipment Supplied. In connection with the provision of Services
under this Agreement, it will be necessary for ART to install certain equipment
on the premises of Purchaser and/or other locations controlled by third parties
and related to the provision of the Services (collectively "Sites"). Equipment
to be installed on each Link includes Outdoor Units ("ODU's"), Indoor Units
("IDU's"), monitoring equipment, power supplies, associated hardware and
cabling, and other materials necessary to complete the installation process (the
"Equipment").
4.2.2 Title and Interest. Purchaser acknowledges and agrees that the
Equipment is, and at all times shall remain, the property of ART, and that
Purchaser shall have no right, title or interest in or to the Equipment. The
Equipment is, and at all times shall remain, personal property notwithstanding
that it may now be or hereafter become in any manner embedded in, affixed or
attached to real property or any building thereon. Purchaser covenants and
agrees to maintain the Equipment free and clear of all liens, charges, security
interests and encumbrances (except any placed thereon by or with the written
consent of ART).
4.2.3 Security of Equipment. Reseller and its End Users shall take all
appropriate measures to secure the equipment on premises that it owns or
controls from loss, destruction or damage including but not limited to: physical
security, including without limit barriers, limited and locked access, posted
warning and training of those with access; electronic security including without
limit periodic audits of its telecommunications systems and passwords;
environmental controls; and suitable power supplies.
4.2.4 Equipment Alternations. Purchaser acknowledges that ART shall
have complete discretion to furnish the Services using any equipment it chooses,
so long as the Services are designed to satisfy the Performance Expectations.
ART shall use reasonable efforts to notify Purchaser of any changes in
Equipment that appear likely or materially affect Purchaser's equipment or
services prior to making any such changes.
5. Service Ordering Procedures
5.1 Service Order Processing
In order to initiate the processing of an order for the Services, Art and
Purchaser shall develop a Pre-Qualification Work Sheet ("Work Sheet"). ART shall
examine the Work Sheet for completeness and will
work with the Purchaser for any additional information. Purchaser shall exercise
reasonable efforts to work with ART to complete the Work Sheet with ART within
three (3) business days of receipt of order. Purchaser and ART shall execute a
Service Order, which shall become an integral part of this Agreement. ART may
elect to conduct a detailed site survey and shall deliver to Purchaser a Firm
Order Confirmation, including a mutually agreeable target schedule ("Target
Service Date"). ART shall exercise reasonable efforts to complete the detailed
site survey and the Firm Order Confirmation within ten (10) business days of
receipt of the completed Work Sheet. The Target Service Date shall be set forth
in the Firm Order Confirmation, and may be amended from time to time by
amendments to the Firm Order Confirmation.
5.2 Service Order Modification or Cancellation
Purchaser may modify or cancel its Service Order at any time prior to the
Service Commencement Date, as hereinafter defined, provided that Purchaser shall
be responsible for all internal costs incurred by ART, including, without
limitation, performance of additional Detailed Site Surveys, and for all direct
charges incurred to the date of cancellation that are payable to third parties.
The charges Set forth in this Section 5.2 are subject to Section 5.3.
Cancellations and modifications by Purchaser will not be accepted unless
confirmed in writing by Purchaser and signed by an authorized representative of
Purchaser.
5.3 Timing
ART shall exercise reasonable efforts to install the Equipment and commence
delivering the Services by the Target Service Date but only in situations where
arrangements to obtain access to and use of the Site have been completed prior
to execution of the Service Order. ART's Field Services Department or
subcontractors, at ART's sole option, shall perform all installations in
connection with this Agreement. Purchaser expressly acknowledges that time is
not of the essence with regard to this Section 5 and that it shall not be
considered a breach of this Agreement if ART fails to commence Spectrum Services
by the Target Service Date or fails to expeditiously process an order, provided
that, notwithstanding the provisions of Section 5.2, Purchaser, as its sole
remedy for ART's failure to commence Spectrum Services by the Target Service
Date, may cancel a Service Order without incurring any charges, following Notice
to ART and ten (10) additional days to complete installation.
5.4 Commencement of Service
The Spectrum Services shall commence and Purchaser shall be responsible for
charges for the Services on the date that (i) ART installs the Equipment,
performs any testing ART deems necessary, and Notifies Purchaser (the
"Completion Notice") that ART is ready to commence the Spectrum Services, or
(ii) a later date mutually agreed upon in writing by ART and Purchaser (the
"Service Commencement Date").
5.5 Minimum Period of Service
The minimum period for the Services to be provided to Purchaser shall be one
year from the Service Commencement Date for each Link ordered by Purchaser and
installed by ART. Purchaser shall have the option to request ART to redeploy the
Link to any geographic area chosen by Purchaser for which ART holds a license as
a 38 GHz provider, provided: (i) Purchaser pays all costs to ART, including,
without limitation, a reasonable allocation of overhead, as determined by ART,
and all charges to third parties associated with deinstallation and
reinstallation of the Equipment at the new Link location ("Redeployment"); (ii)
the location chosen is completely suitable, in ART's sole discretion, for the
provision of the Services under the terms of this Agreement, and (iii)
Redeployment at the location chosen
does not interfere, as determined by ART, with existing or planned services by
ART or third parties.
6. Related Support Services Provided by ART
ART shall supply certain services set forth in this Section 6 in support of the
Services (the "Related Support Services"). Except as expressly provided herein
or in the event ART completes the Pre-Qualification Work Sheet and/or obtains
Site access rights, there shall be no additional charges for the Related Support
Services and they shall be included in the charges for the Services as set forth
in Section 11.
6.1 Site Surveys
As set forth in Section 10.3.1, Purchaser shall, as part of completing the Work
Sheet, conduct a Preliminary Site Survey with Art staff, if required. Detailed
Site Surveys (the "Detailed Site Surveys") shall be conducted by ART's Field
Services Department, ART's subcontractors, or, if mutually agreed, Purchaser.
The primary purpose of the Detailed Site Survey is to obtain engineering
information to validate the feasibility of using 38 GHz millimetric wave
circuits and the suitability of the Site and to identify in advance the optimal
installation methods to be used and the obstruction obstacles to be overcome.
6.2 Frequency Coordination
It is necessary to "coordinate" the frequencies to be used on the paths to be
activated with other potentially interfering frequencies used either by ART or
by third parties, and engineer the path layouts, in order to optimize path
performance. ART's Engineering Department shall be responsible for all Spectrum
Semces. In addition, ART shall maintain, or cause to be maintained, databases
and systems to support coordination with other 38 GHz service providers.
Frequency coordination information and engineering databases shall remain the
property of ART and shall be considered Confidential Information by Purchaser
and subject to the provisions of Section 6.
6.3 Maintenance and Restoral
6.3.1 Outage Restoral. Except as agreed otherwise, ART shall set goals
of and exercise reasonable efforts to achieve dispatch of field service
personnel within thirty (30) minutes and Service restoral within four (4) hours
or less, provided that Purchaser expressly acknowledges that it is not possible
for the Services to be restored within four (4) hours in all instances and that
it shall not be a breach of this Agreement for Outages to exceed four (4) hours
by any amount, except that, as its sole remedy, Purchaser shall be entitled to a
credit of one (1) month's Service for all Outages within a given month for a
given Circuit if the total Outages exceed four (4) hours. The Outage credit
under this Section 6.3.1. is in lieu of and not cumulative with the Outage
credits pursuant to Section 12.2. If ART determines that the cause for an Outage
is not within the control of ART or if ART responds to an Outage report by
Purchaser and no such Outage exists, then Purchaser shall not be entitled to an
Outage Credit and shall be responsible for all costs and charges for the
response to the service call at ARTs then current standard hourly rates.
6.3.2 Scheduled Maintenance. ART or its subcontractors, at ART's sole
option, shall perform routine maintenance and adds moves and changes at
reasonable times to be chosen by ART, for which ART shall give reasonable notice
6.3.3 Limitations on ART's Obligation to Maintain and Restore. ART's
obligations under Section 6.3.1. exclude each of the following as determined
solely by ART; (i) Service that would be unsafe or impractical because of
alterations to the Equipment not approved by ART, or its connection to equipment
or devices not furnished or approved by ART or which connection would for any
reason render Service impossible; (ii) Service using Equipment located in an
unsafe or hazardous environment, (iii) Service that cannot be restored because
of elements external to the Equipment and not under the control of ART
including, but not limited to, adverse environmental conditions or inadequate
power that are not within the manufacturer's or ART's specifications; (iv)
Service resulting from any accident, neglect, alterations improper use or misuse
of the Equipment by personnel not under the control of ART; (v) Service in
connection with relocation not approved by ART of any of the Equipment; and (vi)
the inability of ART to access the premises of Purchaser in order to perform
installation, maintenance and repair.
6.4 Network Operations Management
The ART Network Operations Center ("NOC") will provide the following services:
(i) Link alarm monitoring; (ii) Link performance monitoring; (iii) Link
performance reporting; (iv) Link performance data; (v) remote Link diagnosis;
(vi) Link restoral; and (vii) coordination and testing to the extent feasible
with operations centers operated by third parties. The NOC operates on a seven
(7) day per week, twenty-four (24) hour basis to monitor all ART Circuits. The
NOC provides continuous supervisory control and data acquisition ("SCADA"). The
NOC services to be provided under this Agreement are subject to change from time
to time without Notice and in the sole discretion of ART.
6.5 Customer Service Department
ART's Customer Service Department shall be available to assist Purchaser with
Service complaints and other problems without charge, provided that the requests
for assistance are reasonable. ART shall maintain a "help" desk twenty-four (24)
hours per day seven 7 days per week. ART shall exercise reasonable efforts to
resolve all Purchaser service issues with twenty-four (24) hours. ART shall
establish a system of its own choosing for either reporting all inquiries to
Purchaser or enabling Purchaser to access an ART database, such as an electronic
bulletin board to retrieve information concerning such inquiries and their
resolution.
6.6 ART Point of Contact
ART shall assign a person as a primary point of contact for inquiries and
customer support for Purchaser, which person shall be reachable during the
business day, 8am until 6pm PT, and shall provide an escalation procedure for
resolving differences. The initial contact person shall be Xxxx Xxxxx.
7. Post Termination Support Services
In the event of a termination of this Agreement by either party ART shall, if
requested by Purchaser, continue to provide on-going service, support,
maintenance and restoral in accordance with the terms of this Agreement for all
Circuits in service pursuant to this Agreement and prior to its termination,
provided that Purchaser continues to pay the applicable charges, which charges
may be changed by ART following thirty (30) days Notice to Purchaser.
8. Use of Subcontractors
Purchaser expressly agrees that ART may use any subcontractor that it chooses
without prior approval for installation, maintenance, restoral and other field
service functions, and for any other ART obligations under this Agreement;
provided that the use of subcontractors shall not relieve ART of any of its
obligations hereunder.
9. Performance
9.1 Performance Expectations
Based upon its standard engineering evaluations, Link analysis, expected weather
patterns for the Link to be installed, manufacturer's Equipment specifications,
anticipated site environment and ART's experience, ART expects to provide the
Services, with a Bit Error Rate of better than 10-13 over each Circuit in
unfaded conditions, and Service over each Circuit that has an Availability of
better than 99.995% in the aggregate during each month: Purchaser expressly
acknowledges that: (i) this Section sets forth the parties' expectations only;
(ii) ART is not obligated to meet the Performance Expectations of this Section
9.1.; (iii) that such failure shall not constitute a breach of this Agreement,
provided that ART is exercising reasonable efforts to meet these expectations;
and (iv) Purchaser is entitled only to Outage credits as specified in Section 12
for any failure by ART to meet the Performance Expectations of this Section 9.1.
9.2 Limitations on ART's Duty to Perform
ART's obligation to meet the Performance Expectations in Section 9.1. shall not
require ART to provide Service or Related Support Services: (i) that would be
unsafe or impractical because of alterations to the Equipment not approved by
ART, or its connection to equipment or devices not furnished or approved by ART
or which connection would for any reason render Service impracticable; (ii) that
uses Equipment located in an unsafe or hazardous environment; (iii) that cannot
be restored because of elements external to the Equipment and not under the
control of ART, including, but not limited to, adverse environmental conditions
or inadequate power that are not within the manufacturer's or ART's
specifications; (iv) to restore service that was out due to any accident,
neglect, alterations, improper use or misuse of the Equipment by personnel not
under the control of ART; and (v) in connection with a relocation not approved
by ART of any of the Equipment. In addition, ART shall not be liable for ART's
failure to meet the Performance Expectations in Section 9.1 in the event that
such failure is due to: (a) Purchaser's failure to follow procedures for use of
the Services and Equipment as provided by ART or the manufacturer from time to
time; b) repair, modification, maintenance or relocation of the Equipment by
personnel other than ART personnel or ART-designated representatives, without
the express written consent of ART; (c) abuse, misuse, or negligence by
Purchaser or third parties affecting the Services and/or Equipment so as to
impede ART's ability to provide the Services; or (d) the inability of ART to
access the premises of Purchaser in order to perform installation, maintenance
and repair due to limitations or restrictions imposed by Purchaser due to any
violations of Section 10.4 of this Agreement.
10. Purchaser's Responsibilities
10.1 Payment
Purchaser shall pay all applicable charges and taxes in accordance with Section
11.2.
10.2 Conduct
Purchaser shall not represent that it is an agent or otherwise a representative
of ART, without ART's prior written permission Purchaser and ART each pledge to
each other that they will conduct their business affairs at all times with the
highest standards of honesty, fair dealing and ethics.
10.3 Sites
10.3.1 Pre-Qualification Work Sheet and Preliminary Site Survey. The
primary purpose of the Preliminary Site Survey is to provide preliminary
technical and administrative information so that ART Field Services and
Engineering can make an initial determination of whether a proposed radio link
is feasible and whether a Detailed Site Survey is required. A Preliminary Site
Survey shall be performed by Purchaser or ART personnel or agents as part of the
Work Sheet, when such personnel or agents are authorized and certified by ART to
perform such surveys. ART or Purchaser shall bear the entire expense of such
Preliminary Site Survey, including, without limitation, direct and indirect
personnel expenses. Purchaser's designated Site Survey persons shall undertake
training and certification at reasonable times and places chosen by ART. The
personnel performing the Preliminary Site Survey shall properly complete and
promptly forward to ART the results of the Survey in such form as ART shall
designate from time to time. In the event that the information on the
Preliminary Site Survey is incorrect and that inaccuracy causes ART to expend
additional resources in correcting the information or in taking action on the
basis of incorrect information, Purchaser shall be responsible for paying all
costs, including personnel costs at ART's then current standard hourly charges.
10.3.2 Site Acquisition and Access. Purchaser shall be responsible for
all Site Use Charges related to originating or terminating locations, associated
with acquisition of Sites for the installation of the Equipment, use of the
Sites by ART for the provision of the Services and access to those Sites in
connection therewith including but not limited to (i) acquiring the necessary
zoning, permits and other municipal approvals for installation of the Equipment
and use of the Site, (ii) paying any taxes or fees associated therewith and
(iii) obtaining access during the normal business day for installation and
routine maintenance and twenty-four (24) hour emergency access to the Site to
maintain and restore the Services.
10.4 Access to Purchaser's Premises and Service-Related Equipment
During the term of this Agreement, Purchaser shall arrange for ART or its
representatives to have access to the Sites for the purpose of installation,
testing, preventive maintenance and Service restoral. Where the nature of the
visit permits advance notice, ART shall give reasonable advance notice and shall
schedule the visits during business hours. Where the nature of the visit does
not permit an advance scheduling, including but not limited to, emergency or
restoral situations, Purchaser shall arrange for ART or its representatives to
have immediate access to the Sites and all Equipment located therein, and fully
assist and cooperate with ART in remedying the emergency or Outage. In addition,
Purchaser shall (i) exercise reasonable efforts to protect the Site and
equipment from damage or loss; and to prevent any obstructions that would
interfere with line of sight along the Link and (ii) promptly report any
developments including but not limited to activities or planned activities,
including without limitation new antenna masts or buildings or other structures,
that obstruct or might obstruct line of sight along the Link.
10.5 Purchaser Point of Contact
Purchaser shall appoint a person, who shall be the primary point of contact for
ART, which person shall be reachable during the Purchaser's normal business day
(9AM-5PM) using the time standard in effect at
Purchaser address first listed above and an emergency point of contact, if
different. The initial contact person for the business day by name and title
shall be Xxx Xxxxxxx. The initial contact person for other than business hours
by name and title shall be Xxxxx Xxxxxx.
11. Pricing
11.1 Wholesale Pricing
ART will from time to time establish its Standard Price List for Service at
retail rates ("Retail Pricing"). Purchaser shall pay ART at the Retail Pricing
in effect at the time of the Services minus a wholesale discount based on volume
purchasing and the length of the term ("Wholesale Pricing") as set forth in
Section 11.1.2(B) and (C) below. ART shall have the option to increase or
decrease its Retail Pricing at any time and with regard to any Service Area;
provided that ART provides Notice of such change to Purchaser thirty (30) days
before the effective date of the price change. The Retail Pricing in effect at
the time of the execution of this Agreement are set forth in Attachment D and
shall remain in effect for PIN for the term of this Agreement. Price increases
for circuits ordered and installed during the tern of the Agreement are limited
to increases based upon a COLA (Cost of Living Adjustment) which shall only be
applied after the end of this Agreement. The subsections immediately following
set forth the structure of the Retail Rates. The pricing set forth below and on
the Attachments does not include taxes, where applicable.
11.1.1 Installation Charges. Installation is charged on a per DS-1 or
DS-3 Circuit basis, with differing charges depending on the capacity and type of
the Equipment installed and the environment of the Site. The rate may be
decreased, at ART's sole option, for additional DS-1's is for the same
Purchaser between the same two points. The charge for installation may vary by
state and by city. Purchaser shall pay a non-recurring charge, as set forth on
Attachment D, for a Standard Installation, which charge represents a portion of
the actual cost of installation. Such Standard Installation charge assumes
reasonable access to the Equipment locations and that the locations meet ART's
Minimal Acceptable Site Criteria. The Equipment that is part of a Standard
Installation is listed in Attachment E. On a case-by-case basis, ART will quote
Installation and any special construction charges to PIN. If the installation
takes longer than one continuous eight hour period or the construction required
is non-standard, as determined by ART, due to circumstances beyond the
reasonable control of ART, either ART or the Purchaser shall be responsible for
all additional costs at ART's then current standard hourly rates and the cost of
the additional materials. PIN shall have, at all times, the option to procede
with or cancel an order based upon quoted charges.
11.1.2 Service Charges
(A) Basic Charges
(1) Circuits which will range in capacity from DS-1s to
DS-3s shall be charged on a monthly basis. In some cases the monthly rate may
not be mileage sensitive and a single recurring rate element may apply. For
rates that are mileage sensitive the recurring charge shall include two rate
elements, the "first mile" and "additional miles". The rates may be decreased
for additional Circuits between the same two points of a Link for the same
Purchaser. The charge for Circuits may vary by state and by city. Purchaser must
provide an unrestricted POTS line either near the IDU at one end of the link or
at one mutually-agreeable point in a network of connected links at no charge to
ART.
(2) If the rate is mileage sensitive, a "first mile" rate
element will be
charged for each Circuit. Mileage is based on air miles between the two XXXx.
The "additional miles" rate element, if applicable, will be charged per Circuit
for each mile of the link or part of a mile after the first mile.
(B) Term Discounts. Term discounts for Circuits will be provided
based on the length of the commitment. The discounts shall be applicable to a
two year commitment and may increase for each year of commitment up to five
years. The amount of term discount may vary by state and by city. If Purchaser
terminates a Circuit other than in accordance with Section 17.1, then Purchaser
shall be liable for termination payments equal to the difference between the
charges that would have applied, calculating term discounts as of the actual
term elapsed, and the charges that Purchaser actually paid.
(C) Volume Discounts. Purchaser will be eligible for volume
purchase discounts based on projected "target" quotas. The projected sales
quotas and applicable discounts are set forth in Attachment C. The Level 1
discounts set forth therein will apply to the first and each succeeding Link in
the year in which they are installed for the term of the Agreement; provided
however, if the Level 1 "target" sales quotas are exceeded in any year, then the
discounts for the entire following year shall be based upon the sales level
actually achieved in such previous year. Volume purchase discounts shall only
apply to monthly recurring Circuit charges. Non-recurring charges shall not be
subject to discount. Non-recurring charges include, but are not limited to,
installation, de-installation, re-location, Site acquisition support, frequency
coordination, and other services. Volume discounts are calculated based upon the
anniversary of the Effective Date, not (unless coinciding) a calendar year. The
volume purchase discount level for the first year of this Agreement shall be as
set forth in Section 18.23.
(D) Special Pricing. Both parties may, at times, consider the
development of special pricing or customized pricing structures on a case-by-
case basis to meet the needs of the market or address a technical requirement.
Nothing in this Agreement precludes or limits the parties from developing
special pricing that may be used in lieu of ART Basic Charges. The terms of such
special pricing may conform to or vary from the terms of this Agreement, as may
be agreed to at the time of the special pricing by ART and PIN.
11.2 Timing of Payments
Except for recurring Site Use Charges and other similar costs which Purchaser
shall assume and be responsible for ART shall invoice Purchaser each month for
applicable recurring Site Use Charges and other similar costs which have not yet
been assumed by Purchaser, non-recurring Site Use Charges, Non-Standard
installation Costs, Spectrum Services charges and any other applicable charges
hereunder. All payments shall be due within thirty (30) days of the date of
receipt of the invoice. Payments shall be forwarded to the address stated on the
face of the invoice. ART shall have the option, without notice, to impose a late
payment charge of one and one-half percent (.5%) per month or the maximum amount
allowable by law on any past due charges, whichever is higher Purchaser agrees
to pay all costs, including reasonable attorney's fees, expended in collecting
past due charges. All invoices shall be conclusively presumed to be accurate
unless Purchaser gives Notice to ART to the contrary. Purchaser shall attempt
to give Notice to Art within thirty (30) days of the receipt of any accurate
invoice, except where the incorrectness could not have been discovered with due
diligence within that period.
12. Outages
12.1 ART's Liability for Outages
All liability of ART for interruptions, errors, omissions, Outages or defects
occurring in the course of furnishing the Services and not caused by actions of
Purchaser or third parties shall be strictly limited to Outage credits against
sums paid or to be paid in an amount determined in accordance with Section 12.2
("Credit"). Credit for Outages shall be allowed only when Outages are caused by
or occur in the facilities or the Services provided by, operated or serviced by
ART. No Credit shall be allowed for Outages due to the failure of facilities,
services or equipment not provided, operated or serviced by ART or the acts or
omissions of Purchaser or third parties. No Credit shall be given for any
Outages caused by testing or emergency interruptions, or by routine maintenance
provided that ART has given Purchaser advance notice of such maintenance.
Purchaser must promptly notify ART of any Outages and include details of such
Outages, including, without limitation, time the Outage occurred, duration and
cause, if known.
12.2 Determination of Outage Credits
Outages will be deemed to start upon the earlier of either the time upon which
ART receives Notice from Purchaser that an Outage has commenced or the time that
ART becomes aware of the Outage, provided that, if ART is informed or becomes
aware of the Outage within two hours of its commencement, the Outage will be
deemed to have commenced at the first of the Severely Errored Seconds. The
Outage will be deemed to cease when a Circuit performance demonstrates ten (10)
consecutive seconds of service with no Severely Errored Seconds. Outage Credits
will be given for each day ("Credit Day") during which there is greater than
thirty (30) Severely Errored Seconds. Credits will be given against the monthly
recurring charges on the basis of a thirty day assumed month, at the rate of
each Credit Day being l/3Oth of the recurring charge. In any month in which
there are three successive Credit Days or five total Credit Days, Purchaser
shall be given credit for the entire month for that Circuit. Credits will only
be given on a Circuit by Circuit basis for a Circuit in which an Outage occurs.
13. Licensing & Regulatory Matters
13.1 License Authorization
ART shall be responsible for obtaining or for maintaining in good standing
appropriate authorizations from the Federal Communications Commission ("FCC")
(i) as a licensee in the millimetric wave frequencies at 38 Ghz, and (ii) to
construct and operate (or permit others to construct and operate) radio
equipment necessary to provide service to Purchaser under this Agreement;
provided that nothing in this Agreement shall be construed to require ART to
continue to prosecute any pending authorization applications file for any
additional authorizations after the Effective Data or seek modifications in the
technical or other parameters of its Authorizations.
13.2 Common Carrier Authorizations
Subject to Section 13.1, ART and Purchaser each shall be responsible for
obtaining common carrier or other appropriate authorizations from the FCC and
state utility commissions and, to the extent required, to file tariffs wherever
necessary to provide the services contemplated by each under this Agreement;
provided that each party shall have complete discretion as to the terms and
conditions of its Authorizations and tariffs except to the extent compelled to
do otherwise by this Agreement.
13.3 Municipal and Local Government Regulatory Compliance
ART and Purchaser shall be responsible for complying with zoning, environmental,
and other rules and regulations imposed by municipal or other local governmental
agencies with respect to the Services and Equipment. Purchaser shall be
responsible for ensuring that the location of the Equipment is suitable for
ART's operations and that there are no impediments to full, continuous and safe
operation of ART's Equipment.
14. Intellectual Property Rights
14.1 Trademarks, Tradenames and Branding
The execution of this Agreement does not waive either party's common law or
statutory rights in its respective trademarks and tradenames. Each party shall
request prior approval for use of the other party's trademarks, tradenames,
logos, logotype, fictitious name and corporate name in any promotional,
marketing, reporting, materials, including but not limited to hard copy, video,
and electronic media, with a likelihood of public distribution. All Services
sold by Purchaser hereunder shall carry Purchaser's tradename, unless otherwise
directed in writing by Purchaser and agreed to in writing by ART.
14.2 Inventions, Patent Rights, Copyrights, Trade Secrets and Know-How
Each party shall retain all rights in patents, inventions, copyrights, trade
secrets, and technical know-how existing prior to the Effective Date or
independently developed after the Effective Date. Use, implementation, transfer
or other disclosure of either party's intellectual property in support of or in
connection with this Agreement, whether indirect or direct, shall not affect the
intellectual property rights of the originating party. Rights to mutually
developed intellectual property will be negotiated in good faith independent of
the terms and conditions of this Agreement.
14.3 Software and Firmware
Any software or firmware provided to Purchaser under this Agreement shall be
licensed to Purchaser to install and use on Equipment provided by ART under this
Agreement: Purchaser covenants and agrees to use such software or firmware
provided to it only for the purposes contemplated by this Agreement, and
Purchaser retains no right; implied or otherwise, to use, transfer such software
or firmware to any other equipment and covenants and agrees not to permit such
software or firmware to be copied or disclosed to third parties without the
express, prior written consent of ART. Upon the termination of this Agreement,
Purchaser agrees to return all copies of such software and firmware to ART
within thirty (30) days of such termination.
15. Limitation of Liabilities
ART MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY OF THE EQUIPMENT,
SERVICES AND RELATED SUPPORT SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, ART SHALL NOT BE LIABLE FOR ANY CLAIMS OF ANY KIND, INCLUDING,
BUT NOT LIMITED TO, ACTIONS, DAMAGES, DEMANDS, JUDGMENTS, LOSSES, COSTS,
EXPENSES, LIABILITIES, AND LOSS OF MONIES ARISING OUT OF THIS
AGREEMENT OR THE PERFORMANCE, WHETHER BASED ON CONTRACT, WARRANTY, TORT
INCLUDING NEGLIGENCE, MISTAKE, ERROR, MISCONDUCT INTERRUPTION, DELAY, DEFECT OR
OTHERWISE OF ART, ITS EMPLOYEES, AGENTS, CONTRACTORS, OR SUB-CONTRACTORS, OR
AFFILIATED COMPANIES, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL,
CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF REVENUE OR
PROFIT, LOSS OF USE OF ANY PROPERTY, COST OF SUBSTITUTE PERFORMANCE EQUIPMENT OR
SERVICES, COST OF CAPITAL DOWNTIME COSTS AND CLAIMS OF THE PURCHASER FOR
DAMAGES.
16. Confidentiality
In connection with this Agreement, each party may disclose or otherwise make
available certain data or information to the other party, which data or
information the disclosing party considers to be confidential and proprietary.
As used herein, "Confidential Information," means any non-public information,
including Vendor lists, business plans and proposals financial information,
marketing information, problem solving methods, implementation steps, know-how,
technology, trade secrets and drawings and renderings related to each party's
ongoing and proposed businesses, products and services which is being provided
or which has been provided to the receiving party by the disclosing party, or
which is obtained by the receiving party from its meetings and contacts with the
disclosing party, or any information derived by receiving party from information
so provided or obtained. Confidential Information includes all written or
electronically recorded materials identified and marked as confidential or
proprietary or which on their face appear to be confidential or proprietary, and
oral disclosures of Confidential Information by the disclosing party which are
identified as confidential or proprietary at the time of such oral disclosure.
Confidential Information does not include any of the following: (a) information
that is in or becomes part of the public domain without violation of this
Agreement by the receiving Party; (b) information that was known to or in the
possession of the receiving party on a non-confidential basis prior to the
disclosure to the receiving party by the disclosing party; (c) information that
was developed independently by the receiving party's employees, which employees
have had no access to the Confidential Information; (d) information that is
disclosed to the receiving party by a third party under no obligation of
confidentiality to the disclosing party and without violation of this Agreement
by the receiving party; or (e) is authorized by the disclosing party in writing
for disclosure or release by the receiving party.
The parties agree: (a) to treat and keep as confidential and proprietary all
Confidential Information disclosed by the other party; (b) to advise each
employee to whom any Confidential Information is to be made available of the
confidential nature of such Confidential Information ion and of the terms of
this Agreement; to promptly return to the disclosing party (Or its designees),
upon the disclosing party's request, all Confidential Information and all copies
thereof and to delete from electronic memory such Confidential Information.
The parties agree to keep confidential the terms of this Agreement, including
but not limited to information relating to the prices charged and services
provided by ART. The parties further agree that any disclosures concerning this
Agreement or the terms and conditions shall require the mutual written consent
of ART and Purchaser, except as to such disclosures that may be required to
comply with securities laws, court order or similar order of an administrative
or regulatory agency, and in connection with relevant government agency
communications. Notwithstanding the foregoing, either party shall be entitled to
disclose this Agreement and the terms and conditions to its potential and actual
financing sources, and to its auditors, attorneys and other agents to the extent
necessary to enforce such party's right or perform its obligations pursuant to
this Agreement; provided that such financing sources, auditors, attorneys and
other agents keep such information confidential.
17. Termination
17.1 Termination for Default
Either party may terminate this Agreement immediately on the occurrence of any
of the following events; (i) failure to perform a material obligation under this
Agreement, or a material breach of this Agreement, and failure to cure such
breach within thirty (30) days following delivery of Notice to such defaulting
party of the breach; provided that (a) if the cause of such breach is a Force
Majeure condition as defined in Section 18.10, the period for remedying such
breach shall be extended by the time measured by any delay from the Force
Majeure condition, except that, notwithstanding the foregoing, either party may
terminate if the Force Majeure condition extends beyond ninety (90) days
following Notice and (b) if the breach by its nature cannot be cured within
thirty (30) days, the period for remedying such breach shall be extended for
ninety (90) days from Notice provided that the breaching party has exercised its
best efforts to cure the breach within thirty (30) days of the Notice; or (ii)
if the other party becomes insolvent or makes an assignment for the benefit of
its creditors, or if a committee of creditors or other representative is
appointed to represent its business, or if a voluntary or involuntary petition
under any section of a bankruptcy or similar act shall be filed by or against
such other party and that party fails within ninety (90) days following the
appointment of such committee or representative or the filing of any such
involuntary petition to cause the discharge of such committee or representative
or the dismissal of such involuntary petition.
17.2 Effect of Termination
17.2.1 Accrued Rights. No termination of this Agreement shall affect
any accrued rights or obligations of any party, including, without limitation,
those specified under Section 5.5, as of the effective date of such termination
nor shall it affect any rights or obligations of any party which are intended by
the parties to survive any such termination.
17.2.2 Not Exclusive Remedy. The right of any party to terminate this
Agreement is not an exclusive remedy, and any party shall be entitled,
alternatively or cumulatively, to other remedies permitted under the terms of
this Agreement or by law.
17.2.3 Return of Materials. Upon termination or expiration of this
Agreement, each party promptly shall: (a) remove and return to the other party,
or obliterate, at the providing party's option, any material supplied by that
party and provide the other party with access during business hours, or other
mutually agreeable times, to collect and retrieve any and all equipment
installed pursuant to this Agreement; (b) notify and arrange for all
publishers and others who may identify, list or publish the other party's name
as a marketer, promoter or supporter of Services including, but not limited to,
publishers of telephone directories, yellow pages, and other business
directories, to discontinue these listings within six months of the termination
date of this Agreement or before the publication of a subsequent version of the
directory, whichever may occur earliest; (c) describe in detail all work in
process under this Agreement; and (d) certify' to the other party that the first
party acted in accordance with (a), (b) and (c) of this subsection.
17.2.4 Payments Due. Purchaser shall pay in full to ART any and all
amounts then due and owing within thirty (30) days of termination of this
Agreement.
18. General Provisions
18.1 Assignment and Security Interest
18.1.1 Assignment by Purchaser. Purchaser shall not assign or transfer
any of its rights or obligations hereunder without the prior written consent of
ART, which consent shall not be withheld if the assignee or transferee (i)
expressly assumes in writing the terms and conditions of this Agreement and (ii)
satisfies ART's requirements concerning the assignee's/transferee's human
resources to satisfy' its obligations under this Agreement, financial condition,
creditworthiness and general business reputation. Any attempted assignment in
violation of the terms of this Section 18.1 will be void
18.1.2 Assignment by ART. ART may assign its rights and obligations
under this Agreement (i) without notice or consent, to any Affiliate that agrees
in writing to be bound by the terms hereof or (ii) to any other entity that
expressly assumes in writing the terms and conditions of this Agreement upon
prior consent from Purchaser, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, ART may assign its rights and obligations under
this Agreement without notice or consent in connection with any sale, transfer,
conveyance of assignment of all or substantially all of ART's assets or stock.
ART may, without notice or consent, transfer or assign its interest hereunder,
or grant a security interest in all or any part of this Agreement, the Equipment
and/or sums payable hereunder as collateral security for any loans or advances
made or to be made to ART by a financing or other institution ("Secured Party").
In such event, Purchaser upon receipt of notice of any such transfer, assignment
or grant and instructions from ART, shall pay its obligations hereunder or
amounts equal thereto to such assignee or the Secured Party in the manner
specified in said instructions. In the event that ART notifies Purchaser of its
intention to transfer, assign, or grant a security interest in all or any part
of this Agreement, the Equipment and/or sums payable hereunder, as aforesaid,
Purchaser agrees to execute such documents as may be reasonably necessary to
secure and/or complete such transfer, assignment or grant and to perfect the
assignee's or Secured Parties interest therein.
18.2 Benefit/Binding Nature
This Agreement shall inure to the benefit of and shall be binding upon the
parties and their successors and assigns.
18.3 No Third Party Beneficiaries
This Agreement is made solely for the benefit of the parties hereto and their
respective successors and assigns.
18.4 Authority and Acknowledgment
Each party represents and warrants that it has full power and authority to enter
into and perform under this Agreement and that the person signing this Agreement
has been properly authorized to do so. Each party further acknowledges that it
has had an adequate opportunity to consult counsel, that it has carefully read
each provision of this Agreement and understands this Agreement and that it
agrees to be bound by all of its terms, conditions and provisions.
18.5 Controlling Law
All questions concerning the validity and operation of this Agreement and the
performance of the
obligations imposed on the parties under this Agreement shall be interpreted and
construed in accordance with the domestic laws of the New York State even if its
choice of law provisions or statutes are in conflict with this requirement.
18.6 Regulatory Approval
This Agreement is subject to any regulatory approvals which may be required and
may be terminated by either party if any governmental or regulatory agency
imposes rules or regulations materially affecting the relationship between the
parties, provided that the imposition of such rules or regulations shall not be
construed to relieve the party affected by such rules or regulations from any
duty under Sections 10.1, 10.2, 14 and 16 and from being considered in breach
for failure to carry out that obligation.
18.7 Dispute Resolution and Consent to Jurisdiction and Forum Selection
The parties agree that all disputes, claims or controversies between them
arising out of or relating to this Agreement shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). Decisions of the arbitration panel shall be based upon New
York State law. The Site of such arbitration shall be in New York, New York, or
the closest other site agreed to by the parties. This choice of venue is
intended by the parties to be mandatory and permissive in nature and each party
waives any right it has to assert the doctrine of forum non-convenience or
similar doctrine or otherwise object to venue as stated herein. The arbitration
panel shall consist of three arbitrators, one arbitrator to be selected by each
party and the third arbitrator to be selected by the other two arbitrators. Any
decision rendered by the arbitration panel pursuant to this provision shall be
concurred in by a majority of the members of the panel. Judgment may be entered
by any court of competent jurisdiction. Arbitration pursuant to this section
shall be the exclusive means of resolving any dispute, claim or disagreement
arising hereunder. The prevailing party in the arbitration shall be entitled to
reimbursement from the other party for all costs of the arbitration including
but not limited to fees and expenses paid to the AAA and its own reasonable
attorneys fees and costs.
18.8 Relationship of the Parties; No Agency or Partnership
The relationship between the parties under this Agreement is solely that of
independent Purchaser and service provider. It is agreed and understood that
neither party is an agent, employee or legal representative of the other, and
has no authority to bind the other in any way. Nothing in this Agreement shall
be deemed to constitute ART and Purchaser as partners, joint venture partners,
or otherwise associated in or with the business of the other, and neither party
shall be liable for the debts, accounts, obligations or other liabilities of the
other party, its agents or employees. Neither party is authorized to incur debts
or other obligations of any kind on the part of or as agent for the other.
18.9 Publicity
Neither party shall make any press release or other public announcement of or
otherwise publicly disclose this Agreement, its contents, or the transactions
herein contemplated without the prior written approval of the other party unless
required by law, regulation, court order or rule of any securities exchange, in
which case the disclosing party shall promptly inform the other party of such
disclosure and shall permit it to intervene to object if such is permitted. The
foregoing shall not prohibit either party from disclosing this Agreement or its
contents to its attorneys, accountants or other advisors provided they are
informed of and bound by this Section 18.9 and Section 16.
18.10 Force Majeure
NEITHER PARTY SHALL BE LIABLE FOR DELAYS IN PERFORMANCE, OR FAILURE TO PERFORM
THIS AGREEMENT OR ANY OBLIGATIONS HEREUNDER, WHICH ARE ATTRIBUTABLE TO CAUSES
BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO, OBSTRUCTION OF LINE
OF SIGHT BETWEEN SITES, FIRE, FLOOD, EPIDEMIC, EARTHQUAKE, ACT OF GOD,
LIGHTNING, PUBLIC POWER FAILURE OR SURGE, EXPLOSION, STRIKE OR OTHER LABOR
DISPUTE, RIOT OR CIVIL DISTURBANCE, WAR OR ARMED CONFLICT, OR ANY OTHER SIMILAR
OCCURRENCE NOT WITHIN ITS CONTROL (AN "EVENT OF FORCE MAJEURE"), PROVIDED
HOWEVER, THAT UPON THE OCCURRENCE OF AN EVENT OF FORCE MAJEURE, THE DELAYED
PARTY SHALL SO NOTIFY THE OTHER PARTY PROMPTLY.
18.11 Insurance
Upon request, either party shall provide proof of insurance or self-insurance
during the term of the Agreement for Worker's Compensation insurance and
comprehensive general liability. The liability insurance policies shall insure
against loss or damage on account of claims for bodily injuries, death or
property damage suffered by a person or persons in connection with each party's
performance of this Agreement and shall be in the combined limit amount of Two
Million Dollars ($2,000,000) for each occurrence. Each party shall cause to have
the other party named as an additional insured on all insurance policies under
this Section 18.11.
18.12 Indemnification
18.12.1 Indemnification of ART by Purchaser. Purchaser shall indemnify
ART against, and hold ART harmless from all liabilities, demands, claims,
damages, losses, demands, costs, judgments and expenses (including reasonable
attorneys' fees) arising out of or in connection with this Agreement for
personal injury or damage to tangible property of ART caused by the acts or
omissions of Purchaser or Purchaser's employees, agents or invitees. In no event
shall ART's employees, agents or invitees be deemed to be employees, agents or
invitees of Purchaser.
18.12.2 Indemnification of Purchaser by ART. ART shall indemnify
Purchaser against, and hold Purchaser harmless from all liabilities, demands,
claims, damages, losses, demands, costs, judgments and expenses (including
reasonable attorneys' fees) arising out of or in connection with this Agreement
for personal injury or damage to tangible property of Purchaser caused by the
acts or omissions of ART or ART's employees, agents or invitees. In no event
shall Purchaser's employees, agents or invitees be deemed to be employees,
agents or invitees of ART
18.12.3 Duty to Notify and Assist. If it appears that the other party
may be obligated to provide indemnification as a result of such claim, the other
party, in its discretion, may settle or compromise the claim or retain counsel
of its own choosing and control and prosecute the defense against such claim. In
no event shall the party against whom the claim is asserted have the right to
pay, settle or compromise such claim without the prior written consent of the
party who may be obligated to indemnify under this Section 18.12.3, and the
parties hereto agree that they will not unreasonably withhold consent to such
payment, settlement or compromise. The party against whom the claim is asserted
shall provide the other party such assistance as may be reasonable in the
defense and disposition of such claim. If any claim arises to which the
provisions of this Section 18.12.3 may be applicable, the party against
whom such claim is made shall notify the other party immediately upon learning
of the claim.
18.13 Notices
All notices, requests, demands and other communications under this Agreement
must be in writing and will be deemed duly given, unless otherwise expressly
indicated to the contrary in this Agreement, (i) when personally delivered, (ii)
upon receipt of a telephonic facsimile transmission with a confirmed telephonic
transmission answer back; provided that such notice, request, demand or other
communication is also sent by a nationally recognized overnight courier, (iii)
three (3) days after having been deposited in the United States mail, certified
or registered, return receipt requested, postage prepaid, or (iv) one (1)
business day after having been dispatched by a nationally recognized overnight
courier service, addressed to the parties or their permitted assigns at the
following addresses (or at such other address or number as is given in writing
by either party to the other) as follows:
If to ART: If to Purchaser:
Xxxxxx X. Xxxxxx Xxxxx Xxxxxx
President President
000-000xx Xxx. XX, Xxx. 0000 00 X 00xx Xxxxxx
Xxxxxxxx, XX 00000 Xxx Xxxx, XX
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
with copy to: with copy to
General Counsel's Office ___________________
000-000xx Xxx. XX, Xxx. 0000 ___________________
Xxxxxxxx, XX 00000 ___________________
Attn.: Xxxxxx X. Xxxxxx, Esq. ___________________
Tel: 000-000-0000 ___________________
Fax: 000-000-0000 ___________________
18.14 Period of Limitation
Any claim arising from or in connection with this Agreement must be brought to
the attention of the other party in writing within ninety (90) days of the event
alleged as giving rise to an action, and any action arising from or in
connection with this Agreement must be brought within six (6) months after the
cause of action arises under this Agreement.
18.15 Section Headings
All Section Headings used in this Agreement are for convenience or reference
only and are not intended to define or limit the scope of any provisions of this
Agreement
18.16 Survival
Sections 7, 14, 15, 16, 18.7 and 18.12 of this Agreement that by their nature
and context are intended to survive the execution, delivery, performance and
termination of this Agreement, shall so survive and shall continue in force and
effect until the applicable limitations period has expired.
18.17 Waiver
No waiver of any right or remedy in respect to any occurrence or event on one
occasion shall be deemed a waiver of such right or remedy in respect of such an
occurrence or event on any other occasion.
18.18 Severability
If any portion of this Agreement is held to be invalid by a court of competent
jurisdiction that provision shall become ineffective and unenforceable. The
parties agree that such invalidity shall not affect the validity of the
remaining portions of this Agreement and they further agree to substitute for
the invalid provision a valid provision that most closely approximates the
effect and intent of the invalid provision.
18.19 Interpretation
The words and phrases used herein shall have the meaning generally understood in
the telecommunications industry and the microwave radio industry. This Agreement
shall be construed in accordance with its fair meaning and not for or against
either party because of the identity of the party drafting or proposing a
provision.
18.20 Offsets
The payments required under this Agreement shall be due on time and neither
party may offset any such payment because of any claim hereunder.
18.21 Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall, when executed, be deemed to be an an original, but all of which together
shall constitute one and the same instrument. This Agreement may be executed and
deemed effective and binding if executed and exchanged by facsimile, provided
that promptly thereafter original signatures are exchanged.
18.22 Integration
This Agreement and all Attachments hereto constitute the entire agreement
between the parties hereto and supersedes all prior representations, agreements,
understandings and arrangements, oral or written, between the parties with
respect to the subject matter. This Agreement allocates the risks of loss among
the parties according to their express agreement, which allocation is reflected
in the charges and terms and conditions set forth herein. Except as otherwise
provided for herein, this Agreement may not be released, discharged, amended, or
modified in any way except by a writing that expressly refers to this Agreement
and is executed by all parties hereto.
18.23 First Year Discount Level
THE PARTIES HERETO AGREE THAT THE "TARGET" QUOTA DISCOUNT LEVEL FOR THE 1st YEAR
COMMENCING AS OF THE EFFECTIVE DATE AND TERMINATING THREE YEARS THEREAFTER SHALL
BE Level I.
IN WITNESS WHEREOF, and intending to be legally bound, the undersigned parties
have duly executed this Agreement effective as of the date first above written
ADVANCED RADIO TELECOM, PUBLIC INTEREST NETWORK SERVICES, INC.
CORP., a Delaware Corporation a New York Corporation
By: /s/ [illegible] By: /s/ Xxxxx Xxxxxx
------------------- -------------------
Name: /s/ [illegible] Name: /s/ Xxxxx Xxxxxx
----------------- -----------------
Title: /s/ [illegible] Title: /s/ President
---------------- ----------------
10/21/96 10/22/96
ATTACHMENTS
A. Definitions
B. Current Form of Service Order
C. Quota Discount Structure
D. DS-1 and DS-3 Retail Pricing
E. Standard Equipment and Materials
ATTACHMENT A
Definitions
ATTACHMENT A
As used in this Agreement, the following terms shall have the following
meanings.
"Affiliates" shall mean any corporation or other entity which, directly or
indirectly, owns or controls, either de facto or de jure, the first entity, or
is directly or indirectly owned or controlled, either de facto or de jure, by
the first entity.
"Agreement" shall mean each initialed page of this agreement, each of its
Attachments and each amendments if executed by each party.
"Availability of 99.995%" shall mean a Circuit that, for a defined period of
time, the number of Severely Errored Seconds is less than .005% of the total
seconds in the period.
"Bit Error Rate" shall mean the number of bits unintentionally changed in the
course of transmission relative to a specific quantity of bits transmitted,
usually expressed as a number referenced to a power of 10.
"CAP" shall mean a Competitive Access Provider and is synonymous with the term
CLEC.
"Circuit" shall mean any individual XX-0, XX-0, XX-0 or other data transmission
service provided in total or in part by ART.
"CLEC" shall mean a company that is not the traditional LEC and furnishes local
exchange service pursuant to state authorization using primarily fiber optic
cable
"Demarcation Point" shall mean the interface between the portion of a circuit
provided by ART and any portion of the circuit not provided by ART.
"DS-0" shall mean a Digital Signal Zero, which is a circuit with a bandwidth of
64 kilobits per second, which is the capacity necessary to carry a single voice
conversation.
"DS-1" shall mean Digital Signal One, which is a circuit with a bandwidth of
1.544 megabits per second, roughly 24 times that of DS-0. ADS-i is also known as
a T-i.
"DS-3" shall mean Digital Signal Three, which is a circuit with a bandwidth of
45 megabits per second. A D-3 is also known as a T-3.
"Force Majeure" shall mean the factors set forth in Section 18.10.
"IDU" shall mean the Indoor Unit, consisting of electronics that are part of
the ART-supplied 38 GHz radio transceiver, which is located typically within a
building on the Purchaser's Premises and is connected to the ODU by coaxial
cable, usually RG 8.
"Link" shall mean radio path between two transceivers A radio path may consist
of one or more Links.
"Minimal Acceptable Site Criteria" shall mean 110 volts commercial power is
available, the Site is reasonably accessible, baseband cable runs can be
installed using no more than half a man-day in labor,
and easy rooftop installation for pipe-mounts or tripods.
"Notice" shall mean the notice provisions set forth in Section 18.13.
"ODU" shall mean the Outdoor Unit, consisting of an antenna, antenna mount or
mast and electronics that are part of the ART-supplied 38 GHz radio transceiver
and which is located typically on the roof of a building or tower, but which may
be mounted inside of a window and which is connected to the IDU by coaxial
cable, usually RG 8.
"Outage" shall mean service interruptions in excess often (JO) consecutive
Severely Errored Seconds.
"POTS" shall mean Plain Old Telephone Service, which is an acronym for basic
voice telephone service, including dial tone.
"Preliminary Site Surveys" shall mean the initial survey of the Site.
"PT" shall mean either standard clock Pacific Time or daylight Pacific clock
Time whichever is applicable.
"Service Area" shall mean the area within which ART provides Service.
"Service Order" shall mean the order for Service executed by Purchaser in the
form of Attachment B.
"Severely Errored Seconds" shall mean those seconds in which the Bit Error Rate
is greater than
"Site" shall mean location of the IDU, ODU, the connecting cabling and ancillary
equipment to be used for furnishing Service to the Purchaser. Each Link shall
consist of two or more Sites.
"Site Use Charge" shall mean any non-recurring or recurring finder's, access,
rental, permit, approval or other fee, cost or charge associated with a Site.
"Site Surveys" shall mean the surveys of potential Sites for acceptability for
the location of Equipment and furnishing of Service.
"Standard Installation" shall mean an installation where both radios are roof
mounted, no core boring penetrations are necessary, access is unrestricted
during normal business hours, and the installation can be accomplished in one
concurrent eight (8) hour period.
Tariff shall mean the rates and related terms and conditions of Service filed by
ART with federal and state regulatory commissions and in effect at the time of
Service.
"Writing" shall mean any recordation whether on paper or its equivalent or in a
decipherable electronic medium, except that where a writing must be signed under
the terms of this Agreement it shall be on paper.
"38 GHz" shall mean the millimetric wave frequencies between 37.0 GHz and 40.0
GHz allocated to point-to-point and other services by the FCC.
