EXHIBIT 10.1
JOINT MARKETING AND SERVICES AGREEMENT
This JOINT MARKETING AND SERVICES AGREEMENT (this "Agreement") is made
and entered into as of the 22nd day of July 1997 (the "Effective Date"), by and
between IXC Internet Services, Inc., a Delaware corporation ("IXC"), and PSINet
Inc., a New York corporation ("PSINet").
WHEREAS, IXC and PSINet have entered into an IRU and Stock Purchase
Agreement of even date herewith (the "IRU Agreement"), pursuant to which IXC
will provide to PSINet the right to use certain fibers and capacity on IXC's
fiber optic telecommunications system and PSINet will exchange therefor shares
of its stock;
WHEREAS, PSINet is in the business of providing, on a dial and dedicated
basis to wholesale and end user customers, Internet connectivity and related
services;
WHEREAS, IXC desires to create and market various service offerings to
customers incorporating or consisting entirely of an Internet services
component; and
WHEREAS, PSINet is willing to provide such Internet services, and IXC is
willing to purchase such Internet services, on the terms and subject to the
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of this Agreement, the Parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, certain terms have been defined
below and elsewhere in this Agreement (including the attached Schedules) to
encompass meanings that may differ from, or be in addition to, the normal
connotation of the defined word. Unless the context clearly indicates
otherwise, any term defined or used in the singular shall include the plural. A
defined word intended to convey its special meaning is capitalized when used.
"AFFILIATE" has the meaning set forth in Section 19.1 of the IRU
Agreement.
"AGREEMENT" has the meaning set forth in the preamble.
*
"CLAIM" means any pending or threatened claim, action, proceeding or suit
by any Third Party.
"CONFIDENTIAL INFORMATION" has the meaning set forth in Section 10.1.
"CURE PERIOD" has the meaning set forth in Section 9.2.1.
"DAMAGES" means any loss, debt, liability, damage, obligation, claim,
demand, judgment or settlement of any nature or kind, known or unknown,
liquidated or unliquidated, including without limitation all reasonable costs
and expenses incurred (legal, accounting or otherwise).
* Confidential material has been omitted and filed separately with the
Securities and Exchange Commission
"DOCUMENTATION" shall mean Reseller Documentation and End User
Documentation.
"EFFECTIVE DATE" has the meaning set forth in the preamble.
"END USER DOCUMENTATION" shall mean all documentation provided by PSINet
for use by end users of its services in connection with the use and operation
of the materials describing such services, as such documentation may be
amended, modified or supplemented from time to time.
"INDEMNIFYING PARTY" has the meaning set forth in Section 13.1.
"INFRASTRUCTURE" has the meaning set forth in Section 6.1.
"INTELLECTUAL PROPERTY RIGHTS" shall mean all intangible property rights
protectible by law throughout the world including all copyrights (including,
without limitation, the exclusive right to reproduce, distribute copies of,
display and perform the copyrighted work and to prepare derivative works),
copyright registrations and applications, trademark rights (including trade
dress), trademark registrations and applications, service xxxx rights, service
xxxx registrations and applications, patent rights (including the right to
apply therefor), patent applications therefor (including the right to claim
priority under applicable international conventions) and all patents issuing
thereon, and inventions, whether or not patentable, together with all utility
and design, know-how, specifications, trade names, mask-work rights, trade
secrets, moral right, author's rights, algorithms, rights in packaging,
goodwill and other intangible property rights, as may exist now and/or
hereafter come into existence, and all renewals and extensions thereof,
regardless of whether any of such rights arise under the laws of the United
States or of any other state, country or jurisdiction.
"INTERNET" has the meaning set forth in Section 19.1 of the IRU
Agreement.
"IRU AGREEMENT" has the meaning set forth in the recitals of this
Agreement.
"IXC" has the meaning set forth in the preamble.
"IXC CUSTOMER" means any purchaser of a service offering that includes
Services provided by PSINet under this Agreement. As used in this Agreement, an
"IXC Customer" shall include (i) any party with which IXC enters into an
agreement relating to the sale of services that include Services, (ii) any
party that purchases Services for which billing is provided by IXC, (iii) any
party that purchases Value-Added Services from IXC pursuant to Section 5.1.1,
and (iv) any purchaser of services that include Services from an IXC Reseller.
In cases where IXC uses Services provided by PSINet under this Agreement for
its own internal purposes, IXC shall be deemed an "IXC Customer" for purposes
of this Agreement.
"IXC CUSTOMER INFORMATION" shall mean all information relating to each
IXC Customer collected in connection with the provision of Services to such IXC
Customer, including without limitation the name, address, usage, features and
services purchased, locations served, payment history and all other information
identifiable to a particular customer.
"IXC DOCUMENTS" has the meaning set forth in Section 5.1.4.
"IXC INTERNET SERVICES" means those Services offered by IXC to IXC
Customers.
"IXC RESELLERS" has the meaning set forth in Section 5.1.1.
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"IXC SALES SUPPORT GROUP" has the meaning set forth in Section 3.2.
"MANAGED CONNECTIVITY SERVICES" or "MCS" has the meaning set forth in
Section 2.1.1.
"MARKS" shall mean trade names, logos, trademarks, trade devices, trade
dress, service marks, symbols, abbreviations or registered marks, or
contractions or simulations thereof, or any other indicia or origin.
"MATERIAL PROVISION" shall mean any provision of this Agreement
(including, without limitation, payment provisions) the breach of which by one
Party is determined by an arbitration pursuant to Section 15.18 to constitute a
material adverse effect on the use and enjoyment by the other Party of the
benefits of this Agreement.
"MULTIPLE END-USER RESTRICTIONS" has the meaning set forth in Section
5.1.2.
"OPPORTUNITY CONSULTING SERVICES" or "OCS" has the meaning set forth in
Section 2.1.3.
"PARTY" means IXC, individually, or PSINet, individually.
"PARTIES" means IXC and PSINet, collectively.
"PERSON" has the meaning set forth in Section 19.1 of the IRU Agreement.
"PSINET" has the meaning set forth in the preamble.
"PSINET DOCUMENTS" has the meaning set forth in Section 7.4.
"PSINET MARKS" shall mean the PSINet Primary Marks, the PSINet VAS Marks,
such other Marks as are used by PSINet to promote, advertise and market the
Services, and such other Marks as the Parties shall agree upon in writing.
"PSINET POINT OF PRESENCE" shall mean one of the points of presence
representing a point of interconnection on the PSINet network. The initial
PSINet Points of Presence are listed in Schedule 6.2 to this Agreement, and
PSINet shall promptly update such schedule during the Term on reasonable notice
to IXC. At any time during the term of this Agreement, PSINet Points of
Presence could be collocated with points of presence on the IXC network
pursuant to Section 6.1.
"PSINET PRIMARY MARKS" shall mean the Marks "PSINet" and "PSINet" and
logo types thereof all as the same may be changed from time to time.
"PSINET VAS MARKS" shall mean such Marks as are used by PSINet to
promote, advertise and market Value Added Services.
"RELEASING PARTY" has the meaning set forth in Section 12.2.
"RESELLER DOCUMENTATION" shall mean all documentation made available by
PSINet for use by any reseller or distributor of services of the type
comprising the Services to describe the methods and procedures used by PSINet
in the provisioning and support of users of services of the type comprising any
of the Services provided under this Agreement, as such documentation may be
amended, modified or supplemented from time to time.
"SALES SUPPORT SERVICES" has the meaning set forth in Section 3.1.
"SERVICES" means Managed Connectivity Services, Value Added Services and
Opportunity Consulting Services.
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"TERM" has the meaning set forth in Section 9.1.
"THIRD PARTY" means an entity other than a Party or any Affiliate of a
Party.
"TRANSACTION DOCUMENTS" has the meaning set forth in Section 19.1 of the
IRU Agreement.
"VALUE ADDED SERVICES" or "VAS" has the meaning set forth in Section
2.1.2.
2. SERVICE DESCRIPTION(S).
2.1 INITIAL DESCRIPTION OF SERVICES PROVIDED BY PSINET. From and after
the Effective Date, on the terms and subject to the conditions set forth in
this Agreement, PSINet shall provide to IXC, and IXC shall have the right to
purchase from PSINet, the following services:
2.1.1 Managed Connectivity Services ("MCS"), which consist of the
provision of dial-up and dedicated access to the Internet via the PSINet
network to customers and all related products and services now or hereafter
offered or provided by PSINet that deliver or facilitate such access. The
initial Managed Connectivity Services shall comply with the applicable
descriptions set forth on Schedule 2.2, for PSINet's Intranet, LAN-on-Demand,
InterMAN, InterFrame, Wholesale Dial and InterRamp services, including, without
limitation, the functional, technical and performance requirements set forth in
such Schedule. From time to time, the Parties may agree on such modifications
to the functional, technical and performance requirements for MCS as are
necessary to address requirements of IXC Customers. At such times as PSINet
provides enhanced versions of MCS, PSINet shall make such enhanced versions of
MCS available to IXC, and the Parties may agree, for purposes of this
Agreement, upon the functional, technical and performance requirements for such
services, which requirements shall, at a minimum, ensure that such services
comply with the applicable minimum requirements in Section 2.2.
2.1.2 Value Added Services ("VAS"), consisting of the following
services and products now or hereafter offered by PSINet or a controlled United
States Affiliate: (i) InternetPaper, (ii) Internet Security Services, (iii)
PSIWeb, (iv) any other services or products developed jointly by the Parties,
and (v) any other services or products now or hereafter marketed or offered by
PSINet as a generally available service or product offering other than MCS
which are not subject to exclusive marketing relationships with Third Parties.
The initial Value Added Services shall comply with the applicable descriptions
set forth on Schedule 2.2. From time to time, the Parties may agree on such
modifications to the functional, technical and performance requirements for VAS
as are necessary to address requirements of IXC Customers. At such times as
PSINet provides enhanced versions of VAS, PSINet shall make such enhanced
versions of VAS available to IXC, and the Parties may agree, for purposes of
this Agreement, upon the functional, technical and performance requirements for
such services, which requirements shall, at a minimum, ensure that such
services comply with the applicable minimum requirements in Section 2.2.
2.1.3 Opportunity Consulting Services ("OCS"), will consist of
pre-sales technical support and post-sales development and/or implementation
support to address specific IXC-identified market opportunities. At such times
as the situation warrants, the Parties may agree, for purposes of this
Agreement, upon the functional, technical and performance requirements for such
services, which requirements shall, at a minimum, ensure that such services
comply with the applicable minimum requirements in Section 2.2. Certain joint
teaming efforts of the Parties shall be conducted in accordance with Schedule
2.1.3 hereto.
2.1.4 IXC shall have the right and option to have any other PSINet
services included under this Agreement on terms and conditions reasonably
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consistent herewith. In addition, upon such time that PSINet discontinues a
service generally among its customers, PSINet may remove such service from this
Agreement, but only after providing IXC with at least 30 days' prior written
notice of its intention to do so. If PSINet so removes a service, PSINet will
continue to honor all existing IXC and IXC Reseller service agreements with end
customers by continuing to make such service available to IXC Customers through
the shorter of (i) the end of the term of their respective service agreements,
and (ii) the end of the two-year period commencing on the expiration of
PSINet's 30-day notice period.
2.1.5 Notwithstanding anything to the contrary contained herein,
PSINet reserves the right to modify, alter, improve or change any and all of
the PSINet services comprising the Services covered by this Agreement, and this
Agreement will cover the sales of Services as they may be modified, altered,
improved or changed by PSINet from time to time. Subject to Section 2.1.4, in
all cases where such modification, alteration or change will reduce the
functionality of any PSINet service component comprising the IXC Internet
Services, PSINet will not effect such modifications, alterations or changes
without IXC's specific written approval. Such approval will not be unreasonably
withheld, delayed or conditioned.
2.2 MINIMUM REQUIREMENTS. The MCS, VAS and OCS provided by PSINet under
this Agreement, as described in Schedule 2.2, shall at all times meet the
following minimum requirements:
2.2.1 The MCS, Internet Security Services and PSIWeb services
provided by PSINet under this Agreement shall be offered and provided with
features and a level of quality that, on average and taken as a whole, equal or
exceed that provided by other leading providers of Internet services offering
comparable services in a substantial portion of the geographic area in which
Services are available pursuant to this Agreement. The Parties agree to work
together on a broader range of service offerings as needed to address market
demand. For purposes of this Agreement, Services shall be deemed to be
available to IXC in any geographic area in which PSINet provides services to
customers or, subject to the last sentence of Section 2.7, in which PSINet has
an Affiliate, strategic partner or other cooperating provider providing
services in such area of the type made available to IXC under this Agreement.
2.2.2 The MCS and VAS provided by PSINet under this Agreement shall
be offered and provided with features and an overall level of quality that
equals or exceeds that which PSINet offers or provides any other customer.
2.2.3 The MCS and VAS provided by PSINet under this Agreement shall
comply with all Documentation relating to the MCS and VAS offered or provided
by PSINet as of the Effective Date and as updated from time to time provided
that no such update may operate to have a material adverse impact on (i) any
MCS or VAS (including without limitation the level or quality of service
provided to IXC Customers), taken as a whole, without the prior written consent
of IXC (which shall not be unreasonably withheld, delayed or conditioned),
except to the extent necessary to deal with network emergencies and other
circumstances beyond the control of PSINet, in which case PSINet shall consult
with IXC concerning such change as soon as reasonably practicable, or (ii) any
other Services without providing IXC with advance written notice of such
changes as soon as reasonably practicable.
2.2.4 PSINet shall not make any changes (i) to any MCS or VAS that
may reasonably be expected to have a material adverse impact on such Service
(including without limitation the level or quality of service provided to IXC
Customers), taken as a whole, without the prior written consent of IXC, except
to the extent necessary to deal with network emergencies and other
circumstances beyond the control of PSINet, in which case PSINet shall consult
with IXC concerning such change as soon as reasonably practicable, or (ii) to
any OCS
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Services provided IXC without providing IXC with advance written notice of such
changes as soon as reasonably practicable.
2.2.5 The OCS provided to IXC by PSINet shall be performed by
PSINet employees or its subcontractors as deemed by PSINet to be best qualified
and available to perform the task at hand as identified by IXC. Under no
circumstances may PSINet change subcontract relationships in effect at the time
of proposal submission without IXC's specific written approval. Such approval
shall not be unreasonably withheld, delayed or conditioned. PSINet officers
supervising the performance of the services will be empowered to commit the
resources of PSINet to the extent and scope of such officer's authority.
2.2.6 In the event that Services, as defined herein, or portions of
Services, are provided to IXC by PSINet via a contractual relationship with a
Third Party, PSINet is obligated to maintain such a relationship to the extent
practicable. Should such relationship require that IXC enter into a similar
agreement with the Third Party, PSINet shall use commercially reasonable
efforts to assist IXC in establishing the relationship and securing rates and
levels of service of at least those provided to PSINet by the Third Party.
2.3 DOCUMENTATION. PSINet represents that (i) Schedule 2.3 contains a
true and complete list of all Documentation relating to the MCS and VAS offered
or provided by PSINet as of the Effective Date, and (ii) true and complete
copies of all such Documentation have been provided to IXC prior to the
Effective Date. In the event PSINet amends, modifies or supplements any such
Documentation, or creates new Documentation in connection with enhanced
versions of MCS or additional VAS added pursuant to Section 1.1, PSINet shall
as soon as practicable provide IXC with written notice of any such amendments,
modifications, supplements or new Documentation, including copies of the
foregoing.
2.4 LICENSE TO DOCUMENTATION AND OTHER INTELLECTUAL PROPERTY RIGHTS.
2.4.1 PSINet grants IXC and IXC Resellers a limited, non-exclusive,
royalty-free, license, in the geographic area in which Services are available
to IXC pursuant to this Agreement, throughout the Term, to (i) copy, but not
modify sales literature and product descriptions (Schedule 2.3 list) in any
form, (ii) integrate the Documentation, or any part thereof, into IXC's
catalogs, price lists, brochures and related sales materials, and (iii)
demonstrate, market, distribute and solicit orders for the Services and
warrants that it has such right to grant. The grant of the foregoing license
shall not entitle or in any way be construed to entitle IXC to (a) use PSINet
Marks in connection with IXC's sales, advertisements and promotion of the
Services, except in materials provided (or approved by PSINet prior to IXC's
use thereof) by PSINet; (b) distribute any Services outside the United States
of America in violation of any United States export restrictions; (c)
distribute any Services outside of the geographic areas in which Services are
then available to IXC pursuant to this Agreement; (d) sublicense any of its
rights under this Agreement, except as expressly permitted by this Agreement;
or (e) make any agreement or incur any liability for or on behalf of PSINet
except as expressly contemplated by this Agreement.
2.4.2 Except for the limited license specifically granted to IXC in
this Agreement, PSINet shall at all times retain full and exclusive right,
title and ownership interest in and to the Services, the PSINet network, all
PSINet Marks and any and all other Intellectual Property Rights or trade secret
rights related thereto. IXC shall notify PSINet of any action by any Third
Party known or suspected by IXC to constitute an infringement of PSINet's
proprietary rights. IXC shall honor all reasonable requests by PSINet, other
than engaging as a party in litigation, to perfect and protect, at PSINet's
expense, any rights of PSINet in the Services, the PSINet network or such
Intellectual Property Rights or trade secret rights.
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2.4.3 PSINet represents that no further licenses to Intellectual
Property Rights are needed by IXC to market, offer, provision or use the IXC
Internet Services as contemplated by this Agreement, in the geographic area in
which Services are available to IXC pursuant to this Agreement.
2.5 PSINET LIABILITY FOR AFFILIATE OBLIGATIONS. To the extent that
PSINet's performance of its obligations hereunder causes PSINet to assign or
delegate all or part of its liabilities, obligations and commitments hereunder
to any of its Affiliates, PSINet covenants and agrees that it shall use its
reasonable efforts to cause any such Affiliate to perform such liabilities,
obligations and commitments in accordance with the terms and provisions hereof.
In the event of such an assignment or delegation, PSINet shall remain liable
for all of its liabilities, obligations and commitments hereunder.
2.6 FORECASTS. The Parties agree to coordinate in estimating the level
and location of demand and traffic for Services during the term of this
Agreement. In that connection, no later than the 15th day of the first month of
each calendar quarter during the term of this Agreement, IXC will provide
PSINet with its projected requirements for each Service, indicating amounts,
types and location during each of the following four calendar months. In the
event that there should be a material change in IXC's proposed requirements as
set forth in the most recent forecast, IXC, as promptly as practicable, shall
update such forecast in order to reflect such change. These forecasts shall be
used for the planning convenience of PSINet and shall not be binding upon IXC,
but PSINet intends to use the forecasts to estimate needed staffing, network
provisioning and product levels for its performance of the terms of this
Agreement and shall only be responsible for using commercially reasonable
efforts to satisfy demand to the extent it materially exceeds such forecasts.
IXC shall provide its initial projected requirements for Services within 15
business days after the Effective Date. All forecasts provided under this
Section 2.6 shall be treated as Confidential Information of IXC pursuant to
Section 10.
2.7 GEOGRAPHIC SCOPE. It is the intent of the Parties that IXC be
permitted to provide the IXC Internet Services to the IXC Customers, on the
terms and subject to the conditions of this Agreement, in all of the geographic
areas in which PSINet is now, or at anytime during the Term is then, providing
services to its customers. Notwithstanding the foregoing, IXC acknowledges and
understands that PSINet is not now capable of independently providing certain
services in certain geographic areas outside of the continental United States
of America. To the extent that IXC desires to provide IXC Internet Services to
IXC Customers situated in such geographic areas and PSINet has an Affiliate,
strategic partner or cooperating provider offering services therein, IXC may
request that PSINet obtain a quote from such Affiliate, strategic partner or
cooperating provider for such IXC Internet Services. Within five business days
after such request, PSINet shall contact the appropriate Affiliate, strategic
partner or cooperating provider for purposes of obtaining such quote. The
provision of services under this Section 2.7 by such Affiliate, strategic
partner or cooperating partner to PSINet shall be the subject of negotiation
and, if reached by such parties, agreement.
In the event that such an Affiliate, strategic partner or cooperating provider
to provide services under this Section 2.7, PSINet shall use its
reasonable efforts to cause any such Affiliate, strategic partner or
cooperating provider to provide such services to PSINet at a cost
no more than that which such services are typically provided to PSINet
by such Affiliate, strategic partner or cooperating provider
to PSINet. Notwithstanding anything in
Section 7 to the contrary, PSINet shall make such services availabe
to IXC at PSINet's cost of obtaining the service from the Affiliate,
strategic parter or cooperating provider. Notwithstanding anything in this
Agreement to the contrary, PSINet shall not be obligated to provide Services to
an IXC Customer or Third Party in those geographic areas in which PSINet is not
offering services unless (i) it has an Affiliate, strategic partner or
cooperating provider in a particular geographic area, and (ii) such Affiliate,
strategic partner or cooperating provider agrees to provide such services on
terms and conditions to Texas' satisfaction.
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2.8 SERVICES PROVIDED BY IXC. PSINet shall be presented with the
opportunity to execute IXC's standard reseller agreement for IXC service, on
the terms and subject to the conditions set forth in such agreement.
3. SALES SUPPORT SERVICES.
3.1 PRE-SALE SUPPORT AND POST-SALE IMPLEMENTATION SUPPORT.
From the Effective Date, PSINet shall offer and provide pre-sale
support and post-sale implementation support services ("Sales
Support Services") to IXC sales and technical personnel as
specified in Schedule 3.1.
3.2 IXC SALES SUPPORT DEPARTMENT. PSINet shall create and
manage an IXC sales support group ("IXC Sales Support Group")
exclusively for the purpose of providing Sales Support Services under
Section 3.1. PSINet shall adequately staff the IXC Sales Support Group
with knowledgeable, experienced and trained Internet professionals
capable of providing support to IXC sales and techincal personnel and
customer care to IXC Customers consistent with Schedule 3.1.
3.3 FUNDING THE SALES SUPPORT GROUP.
During the Term, PSINet shall staff the IXC Sales Support Group
with three (3) full-time professionals at no charge to IXC.
Any additional support requested by IXC shall be considered as
Opportunity Consulting Services as defined in Section 2.1.3.
IXC shall reimburse PSINet for reasonable travel and other out-
of-pocket expenses incurred in connection with Sales Support
Services requested by IXC, provided that PSINet shall use good
business judgment to minimize such expenses.
4. CUSTOMER SUPPORT SERVICES.
4.1 PSINet will provide customer support through its customer support
group or through a Third Party (as determined by PSINet in its sole discretion)
for the Services (other than InterRamp Remote Access services) sold to IXC
Customers as contemplated by this Agreement; provided that PSINet will not be
responsible for providing customer support to any IXC Customer purchasing
Services under a private label which exceeds the level of support which PSINet
is obligated to provide to its customers pursuant to PSINet's service
agreements for the applicable Services, as such agreements may be amended from
time to time. PSINet also may assist IXC with making arrangements for the
provision of customer support with respect to the InterRamp Remote Access
services to be sold to IXC Customers pursuant to this Agreement. IXC
acknowledges, however, that IXC is solely responsible for the provision of such
customer support and PSINet shall have no liability with respect thereto.
4.2 Notwithstanding the foregoing, IXC shall be responsible for all
pricing and service plans, billing and collections with respect to IXC
Customers.
5. IXC RIGHTS AND RESPONSIBILITIES.
5.1 IXC USE AND SALES OF SERVICES.
5.1.1 IXC may use the Services made available to it pursuant to
this Agreement, on the terms and subject to the conditions hereof, (i) for its
own account, (ii) subject to Section 5.1.2, for resale to IXC Customers, or
(iii) subject to Section 5.1.2, for resale to Third Parties for further resale
or distribution (such Third Parties which, notwithstanding the definition of
"Third Parties" herein, include, without limitation, IXC Customers (including
those which are Affiliates of IXC) are referred to herein as "IXC Resellers"),
either alone or in combination with any other products and services. Services
offered by IXC that incorporate MCS and VAS made available to it pursuant to
this Agreement shall, at IXC's discretion, be branded exclusively as IXC
services or otherwise as IXC shall determine. IXC shall specify the design of
any user interface associated with any MCS or VAS, consistent with the
preceding sentence.
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IXC will have complete discretion to determine the prices to be charged to IXC
Customers for the Services provided under this Agreement and IXC shall be
solely responsible for establishing and collecting customer charges for
services it or its customers offer through the PSINet network and for preparing
and mailing invoices to IXC Customers. In addition, IXC shall be responsible
for payment of the total amounts invoiced it by PSINet (except for any amounts
disputed by IXC in good faith) regardless of whether IXC is paid by its
customers. Subject to the provisions of Section 5.4, IXC shall also have
complete discretion to determine the other terms and conditions on which IXC
makes such Services available to IXC Customers; provided that neither IXC nor
its customers may offer warranties or representations for the Services that
would obligate or otherwise bind PSINet beyond those stated in the applicable
service agreements.
Except as otherwise provided in this Agreement, except as reasonably necessary
for PSINet to assist IXC during the introduction of IXC Internet Services under
this Agreement, IXC shall provide the primary interface to IXC Customers in
connection with the marketing, offering or provision of IXC services that
incorporate the Services, including (a) providing first tier support for
non-MCS and non-VAS IXC services and (b) handling communications to and
business relations with IXC Customers related to contractual agreements,
handling invoicing and payment matters, and handling inquiries and questions
from IXC Customers about Services.
5.1.2 Subject to Section 2.7, IXC acknowledges and agrees that it
may not offer for sale or distribution to any IXC Customer or IXC Reseller any
Services until such Services are made generally available by PSINet in the
applicable geographic area. Without limiting the generality of the foregoing,
IXC acknowledges and agrees that no Service may be offered for sale or
distribution by IXC to any IXC Customer or IXC Reseller for multiple end-user
use in any particular geographic area until such Service is made generally
available by PSINet for multiple end-user use in such geographic area (the
"Multiple End-User Restrictions"). IXC will use reasonable efforts to cause
each IXC Reseller to include a provision in its agreements with its customers
that such customer will not engage in any conduct that would violate any of the
Multiple End-User Restrictions.
5.1.3 Notwithstanding anything in Section 5.1.1 to the contrary,
the Parties agree that the determination of customer interfaces, marketing,
provisioning and delivery for jointly developed new product or services
offerings incorporating IXC services or Services as described herein will be
determined by mutual agreement.
5.1.4 PERIODIC AUDIT RIGHTS. PSINet shall have the right, upon
reasonable notice and at a date and time mutually agreed upon by the Parties,
to enter the premises of IXC for the purpose of auditing any of IXC's books of
accounts, documents, records (in any media), papers and files (the "IXC
Documents") relating to its compliance with the provisions of this Agreement.
PSINet shall bear the expense of the audit unless the audit reveals that (i)
the amounts collected by PSINet from IXC hereunder are more than two (2)
percent less than that which should have been paid by IXC to PSINet, or (ii)
IXC has not complied with either or both of the first two sentences of Section
5.1.2, in which case, the entire cost of the audit shall be borne by IXC.
Payment of any amounts found due and owing PSINet shall be made promptly by IXC
upon demand by PSINet.
5.2 USE OF MARKS. Except as provided herein or by advance written
consent of the other Party, each of IXC and PSINet agrees not to (i) display or
use, in advertising or otherwise, any of the other's Marks, (ii) permit any
Affiliate to display or use any of the other's Marks, or (iii) give permission
to display or use any of the other's Marks to any Third Party. Any use by one
Party of any of the other's Marks shall be subject to such other Party's
advance approval in writing, in its discretion, subject to compliance with
guidelines provided by it.
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Neither Party shall claim ownership or any other rights in any of the other's
Marks. Upon termination or expiration of this Agreement, any and all rights or
privileges granted by IXC or PSINet to use any Marks shall immediately expire
and each Party shall immediately discontinue the use of such Marks. Nothing
herein shall preclude either Party from making factual references to the other
in government filings, disclosure documents and other public statements, except
as otherwise set forth in the IRU Agreement.
5.3 INTRODUCTORY MARKETING CAMPAIGN. IXC shall have complete discretion
regarding its marketing of the Services provided that neither IXC nor its
customers may offer warranties or representations for the Services that would
obligate or otherwise bind PSINet beyond those stated in the applicable service
agreements or to make any other warranties, promises or representations with
respect to the Services or the PSINet network. In connection with such
marketing activities, IXC shall prominently mention PSINet's role in the
provision of such services in an introductory press release, the content of
which shall be mutually agreed to by the Parties in accordance with Section
19.11 of the IRU Agreement.
5.4 PROVISIONS APPLICABLE TO END USERS.
5.4.1 IXC'S USE OF SERVICES. IXC's use of Services in IXC's
capacity as end user of Services for its own account shall be governed by
Schedule 5.4.1 and the terms and conditions of this Agreement generally.
5.4.2 AGREEMENTS WITH IXC CUSTOMERS OTHER THAN IXC. IXC's
agreements with IXC Customers (other than IXC) to provision Services shall
comply with Schedule 5.4.2.
6. INFRASTRUCTURE.
6.1 USE OF IXC EQUIPMENT AND FACILITIES. Except as otherwise agreed to
by the Parties, in providing the Services to IXC under this Agreement, PSINet
may, in its sole discretion, purchase infrastructure, equipment, facilities and
services necessary for the transmission of data (collectively,
"Infrastructure") from IXC provided (i) PSINet is not restricted from
purchasing such Infrastructure from IXC under contractual obligations binding
on PSINet at the time the purchase decision is being considered, (ii) such
Infrastructure meets PSINet's reasonable functional, technical and performance
requirements, and (iii) IXC offers such Infrastructure to PSINet at a price and
on terms and conditions that, on average or taken as a whole, are competitive
as compared to those offered to PSINet in good faith by other leading providers
of infrastructure, equipment, facilities and services similar to the
Infrastructure at the time IXC makes its offer.
6.2 PROVISIONING OF CUSTOMERS. In connection with the provision of MCS
hereunder, it is the intention of the Parties that IXC shall assume
responsibility for providing, at IXC's expense or the expense of the IXC
Customer, connectivity between the IXC Customer's premises and any PSINet Point
of Presence listed in Schedule 6.2 (as such schedule may be modified or
supplemented from time to time) that is selected by IXC, subject to Section
6.3. PSINet shall assume responsibility for providing and conditioning Customer
premises equipment, consistent with Section 2 herein. Notwithstanding the
foregoing, the Parties acknowledge that the articulation of procedures to
accomplish coordinated provisioning of Services involving a dedicated access
component by the Parties may not be in place for a period after the Effective
Date. During this period, PSINet shall assume this responsibility and shall be
paid at the rates as indicated in Schedule 7.1. IXC shall notify PSINet of its
readiness to transition this responsibility.
6.3 INTERCONNECTION WITH PSINET FACILITIES. IXC and PSINet shall
coordinate with respect to (i) the definition of the interfaces between the IXC
network and the PSINet network at the PSINet Points of Presence, (ii) the
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management of traffic routed by PSINet from the premises of IXC Customers to
PSINet Points of Presence, and (iii) access by PSINet to the IXC network for
the purposes of providing Services under this Agreement. PSINet shall be
responsible for the day-to-day management of the PSINet network relating to the
provision of Services, including monitoring and taking actions necessary to
remedy problems with, or disruption of, the Services, establishment and
maintenance of routing tables and routing policies at Points of Presence, and
establishment and maintenance of peering points with the global Internet.
6.4 CUSTOMER TRANSFERS. At any time, IXC shall have the right to
migrate IXC Customers to such services as provided by IXC or on IXC's behalf by
a Third Party. PSINet shall provide all reasonable cooperation in support, to
the extent practicable, of a seamless, minimally disruptive migration of such
IXC Customers in connection with such services (including without limitation
all IXC Customer Information and, to the extent practicable, any necessary
transfer of customer addresses).
6.5 INTERFACES. The Parties shall develop methods, procedures and
associated interfaces for cooperating on a "seamless" basis in all areas
relating to the marketing and provision of the Services, including without
limitation order processing, customer care, network monitoring and maintenance,
and problem escalation and resolution; PROVIDED, HOWEVER, that PSINet shall in
no event be obligated to provide services or support of any kind to IXC or IXC
Customers which exceeds that which it is required to provide to its own
customers pursuant to PSINet's service agreements for the applicable comparable
services, as such agreements may be amended from time to time. The Parties
shall use commercially reasonable efforts to agree on an initial plan to
accomplish the foregoing, including appropriate training of each other's
employees, by no later than 30 days after the Effective Date. At any time
during the Term, PSINet will cooperate in good faith with IXC in connection
with inquiries concerning potential problems affecting any aspect of the
provision of Services.
7. PRICING AND PAYMENT.
7.1 MOST FAVORED NATION PRICING.
PSINet shall at all times make sure that all fees and other
charges charged to IXC for each of the individual service components comprising
the Services, as represented in Schedule 2.2, are the lowest then
offered by PSINet to any Person.
7.2 INDEPENDENT END-CUSTOMER PRICING. Each of the Parties will have
complete discretion regarding the prices that it charges to its customers for
its services.
7.3 BENCHMARK PRICES.
7.3.1 INITIAL. The term "Benchmark Price" is defined as
the lowest prevailing price charged by PSINet for any individual
service components comprising the Services. The initial Benchmark Prices
are set forth in Appendix 1 to Schedule 7.1. PSINet represents and
warrants to IXC that the initial Benchmark Prices are competitive,
on average and taken as a whole, as compared to prices charged by other
leading providers of Internet services. At such times as enhancements
to existing Services or additional Services are added by agreement of the
Parties pursuant to Section 2.1, the Parties shall also agree upon the
initial Benchmark Prices to be applicable to IXC's purchase of such
services.
7.3.2 MFN ASSURANCE.
At all times during the Term, in the event PSINet or any
of its Affiliates enters into a new or renewal agreement or understanding
pursuant to which PSINet charges any customer a lower price for any
of the individual service components comprising the Services
than the then-current Benchmark Price
under this Agreement (i) PSINet shall notify IXC promptly of such
event, and (ii) Appendix 1 to Schedule 7.1 shall automatically
and retroactively be modified as of the effective date of any such lower price
to reflect such lower Benchmark Price. Such lower Benchmark Price
shall be in effect only for so long as that price is in effect
or offered to any customer and, subject to Section 7.3.1, the
Benchmark Price shall return to its immediately previous rate upon
termination of such period. Nothwithstanding anything in this
Agreement to the contrary, in the event that there should be an
increase in a Benchmark Price due to the expiration or termination
of a lower Benchmark Price, such incresed Benchmark Price shall not
be effective against IXC unitl PSINet has provided IXC with at least
60 days' prior written notice of such increase.
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