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Redacted portions have been marked with asterisks (****). Confidential treatment
has been requested for the redacted portions. The confidential redacted portions
have been filed separately with the Securities and Exchange Commission.
CONFIDENTIAL TREATMENT
EXHIBIT 10.28
CARRIER SERVICES AGREEMENT
(MULTIMEDIA)
Agreement No._________________
This Carrier Services Agreement (this "Agreement") is made this 5th day of
January, 1998, by and between Xxxxxxxx, Inc. d/b/a Xxxxxxxx Network, a Delaware
corporation ("Xxxxxxxx"), with its principal place of business at Xxx Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxxx 00000 and U S WEST Communications, Inc. a Colorado,
corporation ("USWC"), with its principal place of business at 0000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, XX 00000, for the provision of multimedia telecommunications
services, subject to this Agreement and as set forth in this Agreement.
1.0 SCHEDULES AND EXHIBITS.
The Schedules attached to this Agreement and made a part hereof are:
Schedule A - Xxxxxxxx Network Private Line Service Schedule including Pricing
and Specifications
Exhibit I - Pricing Schedule
Schedule B - Sample Service Order Form
2.0 DESCRIPTION OF SERVICES AND PRICING.
USWC may order from Xxxxxxxx multimedia transmission services ("Services"), the
terms and conditions of which and the charges for which are set forth in
Xxxxxxxx' Multimedia Transmission Service Schedule relating to such Services
(the "Service Schedule"). Current Service Schedules are attached to this
Agreement, labeled as consecutive Schedules and incorporated herein by this
reference. Xxxxxxxx offers such Services, as defined in the applicable Service
Schedule, upon the terms and conditions set forth in the Service Schedule, this
Agreement. All Services and "Ancillary Services," as defined in Section 5.3,
are subject to availability.
3.0 EFFECTIVE DATE, TERM, COMMITMENT AND MOST FAVORED CUSTOMER.
3.1 This Agreement shall become effective on the date on which Xxxxxxxx and
USWC signs the Agreement ("Effective Date").
3.2 The duration of the Agreement shall continue for a term of five (5) years
(the "Initial Term"). This Agreement shall thereafter automatically renew for
successive one-year periods (each, a "Renewal Term") unless canceled by either
party by giving written notice of such cancellation not less than sixty (60)
days before the end of the Initial Term or any Renewal Term. The pricing for
Services during the Renewal Term shall be the lower of (i) the existing pricing
under this Agreement
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with the continuation of the Year 5 Minimum Obligation or (ii) negotiated
pricing based upon then existing market prices.
3.3 Commencing six (6) months after the Effective Date, USWC shall be obligated
to purchase on-network Services in the minimum amounts set forth in the
schedule below during the time period indicated. All dollar amounts in this
Agreement shall be determined in accordance with Exhibit I to schedule A
hereto, "Pricing Exhibit," or other express provision of the Agreement,
inclusive of any discounts applicable to USWC but exclusive of any credits to
which USWC may be entitled, late payment penalties, taxes and other government
imposed surcharges. USWC's purchases of Services shall also not include
payments made by USWC to Xxxxxxxx to reimburse Xxxxxxxx for third party costs
paid to unaffiliated entities, including but not limited to, local access
charges, taxes, installation charges, off-network charges, one time fees and
other similar costs all of which shall be billed to USWC at cost or as
otherwise set forth herein.
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To the extent that, in any year during the Initial Term hereof (as measured at
the end of each of the one year periods set forth in the schedule above (a
"Commitment Year") and taking into account any credit for excess purchases from
another period during the Commitment Year only), USWC fails to purchase
Services from Xxxxxxxx greater than or equal to the Minimum Obligation for such
Commitment Year set forth in the schedule above, then, within thirty (30) days
after the completion of such year, USWC shall pay to Xxxxxxxx, as liquidated
damages for such failure, cash in an amount equal to the difference between the
Minimum Obligation for such Commitment Year and the amount of Services actually
purchased by USWC from Xxxxxxxx during such year. However, the dollar amount of
any "Equivalent Services" (as hereinafter defined), "Substitute Services"
and/or "Delayed Services" (as hereinafter defined) purchased by USWC shall
reduce dollar for dollar the Minimum Obligation for that Commitment Year. The
foregoing offset to USWC's Minimum Obligation shall be USWC's sole and
exclusive remedy in the event that USWC elects to purchase Equivalent Services,
Substitute Services or Delayed Services under this Agreement.
In any month of a Commitment Year during which USWC's actual usage of Services
meets another succeeding level of discounts set forth in the Commitment and
Pricing Matrix of Exhibit 1, (the "Next Level"), prices for Services shall, at
that point, be adjusted to those prices associated with the Next Level in the
Commitment and Pricing Matrix ("Next Level Pricing"). The Next Level Pricing
shall apply to Services through the end of the Commitment Year, even if USWC's
usage of Services in any month following the pricing adjustment Falls below the
monthly commitment amount associated with the Next Level Pricing ("Shortfall"),
subject always to the Minimum Obligation set forth in the schedule above for
that Commitment Year; provided, however, USWC shall pay to Xxxxxxxx within
thirty (30) days after the completion of the Commitment Year a deficiency
charge for each such month during the Commitment Year where a Shortfall occurs.
The deficiency charge for each such month shall be equal to the volume of
service in the month of the Shortfall multiplied by the absolute difference
between the rate applicable to the Next Level Pricing and the rate
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applicable to the discount level for which USWC has qualified for in that
Commitment Year. An example of this calculation is attached hereto.
3.4 Xxxxxxxx shall be USWC's primary provider of Services for the Term and any
Renewal Term, subject to the following three (3) exceptions ("Exceptions"):
Exception I - If, during the Term or any Renewal Term, the price charged by
Xxxxxxxx for the Services becomes higher than the price charged for Equivalent
Services from another provider, then the USWC shall send to Xxxxxxxx a written
summary of the material terms of the "competing offer" for the Equivalent
Services offered by the competing provider. Upon receipt of the summary,
Xxxxxxxx shall have five (5) days in which to determine whether there is a
competing offer is for Equivalent Services. If there is a competing offer is
for Equivalent Services, then at the end of such five (5) day period Xxxxxxxx
shall either match all the material terms of the competing offer or issue a
written statement that the USWC is free to contract with the competing provider
("Equivalent Services Contract"). Any competing offer shall be required to
contain specific monetary rates as the sole consideration and not involve
barter, exchange or lease of goods or services. Equivalent Services shall mean
communication services having similar performance characteristics as the
Services which services have reasonably equivalent or superior transport
reliability/security.
Exception II - If, during the Term or any Renewal Term, Xxxxxxxx has failed
to provide Services meeting or exceeding the specifications set forth in
Schedule A more than five (5) times during any one (1) month period
("Noncompliance Situation"), then USWC shall have the right to seek the
provision of communication services meeting the Agreement specifications for
Services from another carrier ("Substitute Services"). After the expiration of
the Substitute Services agreement, then Services shall again be provided under
this Agreement.
Exception III - If, during the Term or any Renewal Term, Xxxxxxxx is unable
to meet the Requested Start Date for any particular Service Order involving
on-network capacity, and does not commit and subsequently establish Service
with thirty (30) days of the Requested Start Date ("Delayed Services") USWC
shall have the right to obtain the Delayed Service from another carrier.
Nothing in this Section or in this Agreement shall be construed to require USWC
to terminate or modify any existing agreements with other entities.
In the case where Xxxxxxxx has declined to match a Competing Offer for
Equivalent Services or that USWC has elected to use Substitute Services,
Xxxxxxxx and USWC shall promptly make the necessary amendments to this
Agreement.
3.5 From the Effective Date until December 31, 2000, all Services shall be
priced on a "most favored customer" basis, which means that for so long as
USWC's total payments to Xxxxxxxx pursuant to this Agreement are equal to or
exceed USWC's Minimum Obligation set forth in Section 3.3 above, ****
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This provision shall not apply with respect to any lower charges by Xxxxxxxx
to: (i) entities, business organizations or enterprises affiliated with
Xxxxxxxx; or (ii) any department, branch or agency of a federal, state or
provincial government.
USWC and Xxxxxxxx shall meet on an annual basis to discuss, among other things,
compliance with Sections 3.4 and 3.5.
In consideration of the foregoing covenant, if this provision were to be
triggered resulting in an adverse effect on Xxxxxxxx, Xxxxxxxx shall be
entitled at any time at its convenience to terminate this Agreement upon sixty
(60) days prior written notice.
4.0 SERVICE ORDERS.
Services requested by USWC hereunder shall be requested on Xxxxxxxx' Service
Order forms in effect from time to time (an example of Xxxxxxxx' current form
is attached as Schedule C or on USWC's forms accepted in writing by Xxxxxxxx
("Service Orders"). Each Service Order shall reference this Agreement and its
respective Agreement number.
When a Service Order is placed, the USWC will indicate a requested start date
("Requested Start Date"). Xxxxxxxx will make best reasonable efforts to meet
the Requested Start Date. In the event that a Requested Start Date is altered,
the actual Start Date will be changed to reflect the number of days of delay or
advance, as appropriate.
This Agreement shall apply to all Services and Ancillary Services provided by
Xxxxxxxx to the USWC whether pursuant to a Service Order or otherwise.
Any conflicting, different or additional terms and conditions contained in
USWC's acknowledgment or Service Order or elsewhere are objected to by Xxxxxxxx
and shall not constitute part of this Agreement. No action by Xxxxxxxx
(including, without limitation, provision of Services or Ancillary Services to
USWC pursuant to such Service Order) shall be construed as binding or estopping
Xxxxxxxx with respect to such term or condition, unless the Service Order
containing said specific term or condition has been signed by an authorized
headquarters representative of Xxxxxxxx.
Xxxxxxxx shall make best reasonable efforts to provide Services within its
standard service implementation interval or on USWC's requested Start Date.
Services shall begin on the date Xxxxxxxx issues notice that service is
available (the "Start of Service Notice" or "SOSN"), indicating the service has
been tested by Xxxxxxxx in accordance with Xxxxxxxx' standard specifications
and that the service meets or exceeds those specifications.
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USWC may request a delay in the Start Date of an order, a move, or
rearrangement when Xxxxxxxx receives the delay request a minimum of thirty (30)
days prior to the due date and the requested delay does not exceed thirty ('30)
cumulative days from the Service Order's initial Start Date. When USWC has
delayed a Service Order for the maximum thirty (30) cumulative calendar days,
the order may not be delayed again by USWC. Once the maximum thirty (30) day
delay has been achieved, USWC has the option to (a) accept the billing for the
Service Order, or (b) cancel the Service Order and pay the applicable
cancellation charges for the facilities ordered. The billing or cancellation is
effective on the 30th cumulative calendar of the delay. If USWC elects to
accept billing, the installation will be completed as soon as reasonably
practical after USWC advises Xxxxxxxx that the installation can be completed.
Within six months of the Effective Date, Xxxxxxxx will have in place a system
to permit electronic delivery and processing of Service Orders.
5.0 LOCAL ACCESS AND ANCILLARY SERVICES.
5.1 Xxxxxxxx shall, on behalf and upon request of USWC, obtain
telecommunications facilities connecting USWC with an approved vendor of
Xxxxxxxx to a Xxxxxxxx Point of Presence ("POP"). USWC will execute a Letter of
Agency, on such form as provided by Xxxxxxxx, authorizing Xxxxxxxx to interact
directly with the provider(s) of these access telecommunications facilities.
When Xxxxxxxx acts as USWC's agent, USWC is responsible for charges, including
without limitation, monthly charges, usage charges, installation charges,
non-recurring charges, or applicable termination/cancellation liabilities, of
the provider(s) of telecommunications facilities to Xxxxxxxx POPs all of which
shall be billed to USWC at cost.
5.2 In doing so, Xxxxxxxx shall be responsible for provisioning and the initial
testing of an interconnection (reasonably coordinated with Start of Service)
between such interexchange service set forth in the Service Order and a USWC
designated termination point ("Local Access"). Charges to USWC for Local Access
Service administered on behalf of USWC by Xxxxxxxx shall not exceed charges
USWC would otherwise pay the same Local Access Provider for the relevant
interconnec tion and/or service.
5.3 Xxxxxxxx may also provide other extraordinary service to USWC for reasons
including but not limited to: (a) USWC's request to expedite Service
availability to a date earlier than Xxxxxxxx' published installation interval
or a previously accepted Start Date; (b) Service redesign or other activity
occasioned by receipt of inaccurate information from USWC; (c) reinstallation
charges following any suspension of the Service for cause by Xxxxxxxx; (d)
USWC's request for use of routes or facilities other than those selected by
Xxxxxxxx for provision of the Service; and (e) other circumstances in which
extraordinary costs and expenses are generated by USWC and reasonably incurred
by Xxxxxxxx (services under this subsection 5.3 are collectively referred to
herein as "Ancillary Services").
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5.4 In the event a Service Order designates origination or termination not
currently on the Xxxxxxxx network, Xxxxxxxx shall on behalf of and upon USWC's
request obtain off-net circuits with another approved telecommunications
carrier ("Off-Net Capacity"). USWC will execute any necessary letter of agency
when Xxxxxxxx acts as USWC's agent. USWC is responsible for charges, including
without limitation, monthly charges, usage charges, installation charges,
non-recurring charges, or applicable termination/cancellation liabilities, of
the provider(s) of telecommunications facilities to Xxxxxxxx, all of which
shall be billed to USWC at cost plus an administrative fee which administrative
fee shall be agreed upon by the parties within thirty days of the Effective
Date of this Agreement.
5.5 Recurring and nonrecurring charges to USWC for Local and Ancillary Services
as well as Off-Net Capacity shall be established as of Xxxxxxxx' acceptance of
the Service Order relevant thereto. RECURRING CHARGES FOR LOCAL ACCESS BILLING
ADMINISTERED BY SELLER AND CHARGED TO USWC SHALL BE SUBJECT TO ADJUSTMENT AT
SUCH TIMES AS SELLER SHALL DETERMINE, NOT TO EXCEED THE PREVAILING CHARGES OF
SUCH LOCAL ACCESS PROVIDERS AS WOULD OTHERWISE BE PAID DIRECTLY BY USWC FOR THE
RELEVANT INTERCONNECTION OR SERVICE.
6.0 CHANGES IN SERVICE PARAMETERS.
6.1 Cancellation of Services. USWC may cancel any Service or Ancillary Service
provided hereunder by providing written notification to Xxxxxxxx thereof thirty
(30) days in advance of the effective date of cancellation. In the event of
such cancellation, USWC shall pay to Xxxxxxxx a cancellation charge in an
amount equal to any nonrecurring payments not yet paid together with any
termination liability associated with Local Access. USWC agrees that the actual
damages in the event of such cancellation would be difficult or impossible to
ascertain, and that the cancellation charge in this Section 6.1 is intended,
therefore, to establish liquidated damages and is not intended as a penalty.
Notwithstanding the foregoing, and upon thirty (30) days' prior written notice
to the other party, either USWC or Xxxxxxxx shall have the right, without
cancellation charge or other liability to the other party, to cancel the
affected portion of any Service or Ancillary Service, if Xxxxxxxx is prohibited
by governmental authority from furnishing or USWC is prohibited from using such
portion, or if any material rate or term contained herein and relevant to the
affected portion of any Service or Ancillary Service is substantially changed
by order of the highest court of competent jurisdiction to adjudicate the
matter, the Federal Communications Commission, or other local, state or federal
government authority.
7.0 PAYMENT TERMS.
7.1 Due Date and Invoice. All amounts stated on each monthly invoice are due
and payable thirty (30) days from the date of receipt of the invoice ("Due
Date"). USWC agrees to remit payment to Xxxxxxxx at the remittance address. In
the event USWC fails to make full payment to the proper address by the Due Date
Xxxxxxxx will provide notice of such non-payment. If USWC does not pay within
thirty (30) days of such notice, USWC shall also pay a late fee in the amount
of the lesser of
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one and one-half percent (1-1/2%) of the unpaid balance per month or the
maximum lawful rate under applicable state law which shall accrue from the Due
Date except as to any amount subject to a bona fide dispute and under
negotiation by the parties ("Disputed Amounts"). USWC acknowl edges and
understands that all charges are computed exclusive of any applicable federal,
state or local use, excise, valued added, gross receipts, sales and privilege
taxes, duties, fees or similar liabilities (other than general income or
property taxes imposed on Xxxxxxxx), whether charged to or against Xxxxxxxx,
its suppliers or affiliates or USWC associated with the Service or Ancillary
Service provided to USWC ("Additional Charges"). Such Additional Charges shall
be paid by USWC in addition to all other charges provided for herein.
Payment for all prorated monthly recurring charges (charges for monthly Service
or Ancillary Service provided for less than a calendar month), installation and
other non-recurring charges shall be billed following the receipt of any such
Services or Ancillary Service. Payment for all monthly recurring charges for
full months during which Service or Ancillary Service are to be provided shall
be due in advance.
If USWC in good faith disputes any portion of an invoice it must pay the
undisputed portion on or before its Due Date. Unless USWC is in good faith
unable to do so in any particular case notice of any billing dispute by USWC
must be provided in writing to Xxxxxxxx within sixty (60) days of the Due Date
of the invoice and must include documentation substantiating the dispute.
USWC's failure to notify Xxxxxxxx of a dispute within a reasonable period of
time shall be deemed to be USWC's acceptance of such charges. The parties will
make a good faith effort to resolve billing disputes as expeditiously as
possible.
7.2 Suspension of Service. Except for non-payment of Disputed Amounts, in the
event payment in full is not received from USWC on or before sixty (60) days
following the Due Date, Xxxxxxxx shall have the right, after giving USWC ten
(10) days' notice, to suspend all or any portion of the Services or Ancillary
Service to USWC. If only a portion of the Services or Ancillary Service are
suspended and USWC does not cure within ten days of such partial suspension of
Service, Xxxxxxxx may suspend all or any additional portion of the Services or
Ancillary Service to USWC. Xxxxxxxx may continue suspension until such time as
USWC has paid in full all charges then due, including any late fees as
specified herein. Following such payment, Xxxxxxxx shall be required to
reinstitute Service or Ancillary Service to USWC only on the provision by USWC
of satisfactory assurance, in Xxxxxxxx' sole discretion, of USWC's ability to
pay for Service or Ancillary Service. If USWC fails to provide such
satisfactory assurance by a date determined by and acceptable to Xxxxxxxx, USWC
shall be deemed to have canceled the Services or Ancillary Service provided
under this Agreement effective on the date of such suspension and shall remain
liable for all cancellation charges as set forth in Section 6.1.
7.3 Taxes. If any sales taxes, valued added taxes or similar charges or
impositions are asserted against Xxxxxxxx after, or as a result of, USWC's use
of Services or Ancillary Service by any local, state, national, international,
public or quasi-public governmental entity or foreign government or its
political subdivision, including without limitation, any tax or charge levied
to support the
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Universal Service Fund contemplated by the Telecommunications Act of 1996, USWC
shall be solely responsible for such taxes, charges or impositions. USWC agrees
to pay any such taxes, charges or impositions and hold Xxxxxxxx harmless from
any liability or expense associated with such taxes, charges or impositions.
7.4 Adjustments. Xxxxxxxx may make billing adjustments for a period of one
hundred twenty (120) days after the Due Date of an invoice, or one hundred
twenty (120) days after the date a service is rendered, whichever is later.
8.0 GENERAL AGREEMENT.
8.1 Warranty and Disclaimer of Warranty. Xxxxxxxx warrants that Services or
Ancillary Service shall be provided to USWC in accordance with the technical
parameters set forth in the applicable Service Schedule. Xxxxxxxx shall use
commercially reasonable efforts under the circumstances to remedy any delays,
interruptions, omissions, mistakes, accidents or errors in the Services or
Ancillary Service and restore such Services or Ancillary Service to comply with
the terms hereof.
THE FOREGOING WARRANTY AND THE OUTAGE CREDITS REMEDY PROVIDED TO USWC AS SET
FORTH IN THE APPLICABLE SERVICE SCHEDULE FOR THE FAILURE TO COMPLY WITH THIS
WARRANTY ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR REMEDIES, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.2 Limitation of Liability. IN THE EVENT OF ANY BREACH OF THIS AGREEMENT OR
ANY FAILURE OF THE SERVICES OR THE ANCILLARY SERVICES, WHATSO EVER, NO PROVIDER
(AS DEFINED IN SECTION 8.3) SHALL BE LIABLE FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, SPECIAL, ACTUAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR
FOR ANY LOST PROFITS OF ANY KIND OR
NATURE WHATSOEVER.
NEITHER USWC NOR ANY PROVIDER SHALL BE LIABLE TO THE OTHER FOR ANY
CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR ANY OTHER SIMILAR DAMAGES, OR
FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO THIS
AGREEMENT OR FOR THE LOSS OR FAILURE OF THE SERVICES OR THE ANCILLARY SERVICES.
8.3 Customer Content and Indemnity. USWC shall make all arrangements with
copyright holders, music licensing organizations, performers' representatives
or other parties for necessary authorizations, clearances or consents with
respect to transmission contents ("Consents"). USWC shall indemnify and hold
harmless Xxxxxxxx and any third party or affiliated provider, operator or
maintenance/repair contractor of facilities employed in connection with the
provision of Services or Ancillary Service (all of which shall be referred to
as "Providers") against and from any court, administrative or agency action,
suit or similar proceeding, whether civil or criminal, private or
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public, brought against Providers arising out of or related to the contents
transmitted hereunder (over Xxxxxxxx' network or otherwise) including, but not
limited to, claims, actual or alleged, relating to any violation of copyright
law, export control laws, failure to procure Consents, failure to meet
governmental or other technical broadcast standards, or that such transmission
contents are libelous, slanderous, an invasion of privacy, pornographic, or
otherwise unauthorized or illegal. Xxxxxxxx may terminate or restrict any
transmissions over the network if, in its judgment, (a) such actions are
reasonably appropriate to avoid violation of applicable law; or (b) there is a
reasonable risk that criminal, civil or administrative proceedings or
investigations based upon the transmission contents shall be instituted against
Providers. USWC agrees not to use Services or Ancillary Service for any
unlawful purpose, including without limitation any use which constitutes or may
constitute a violation of any local, state or federal obscenity law.
8.4 a) USWC and Xxxxxxxx shall defend, indemnify and hold harmless the other
against and from any and all claims for physical property damage, physical
personal injury or wrongful death to the extent that such arises out of the
negligence or willful misconduct of the respective indemnifying party, its
employees, agents, or contractors in connection with the provision of Services,
Ancillary Services or other performance,
b) With respect to third parties that use Services or Ancillary Service through
USWC, USWC shall defend, indemnify and hold harmless Providers against any
claims by such third parties for damages arising or resulting from any defect
in or failure to provide Services or Ancillary Service.
c) USWC shall defend, indemnify and hold harmless Providers for any breach of
USWC's obligations under Section 8.3).
d) The indemnifying party agrees to defend the other against the claims as set
forth above and to pay all reasonable litigation costs, attorneys' fees, court
costs, settlement payments, and any damages awarded or resulting from any such
claims. The indemnified party shall promptly notify the indemnifying party in
writing of any such claims.
8.5 Force Majeure. If either party's performance of this Agreement or any
obligation (other than the obligation to make payments) hereunder is prevented,
restricted or interfered with by causes beyond its reasonable control
including, but not limited to, acts of God, fire, explosion, vandalism, cable
cut, power outage, storm or other similar occurrence including rain fade or
other atmospheric conditions, any law, order, regulation, direction, action or
request of the United States Government or state or local governments, or of
any department, agency, commission, court, bureau, corporation or other
instrumentality of any one or more said governments, or of any civil or
military authority, or by national emergencies, insurrections, riots, wars,
acts of terrorism, strikes, lockouts or work stoppages or other labor
difficulties, supplier failures, shortages, breaches or delays, then the
affected party shall be excused from such performance on a day-to-day basis to
the extent of such prevention, restriction or interference. The affected party
shall use commercially reasonable efforts under the circumstances to avoid and
remove such causes of non-performance and shall proceed to perform with
reasonable dispatch whenever such causes cease.
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8.6 Events of Default. If the quality of transmission provided under such
Service or Ancillary Service falls below the level of quality set forth in the
technical parameters applicable to such Service or Ancillary Service set forth
in the applicable Schedule, then USWC may terminate that Service or Ancillary
Service, provided that written notice is given to Xxxxxxxx setting forth the
specifics of a default and provided that Xxxxxxxx is unable to cure such
quality default within five (5) days after notice of the default is received by
Xxxxxxxx.
Either party may terminate this Agreement if the other is in default of any
material obligation contained herein, which default has not been cured within
fifteen (15) days following the receipt of notice of such default setting forth
the specifics of such default. Termination and receipt of any applicable refund
are USWCs remedies in the event of any such Xxxxxxxx' default.
8.7 Use of Services. Xxxxxxxx' obligation to provide Services or Ancillary
Service to USWC is subject to the following conditions: (a) Services or
Ancillary Service shall not be used for any unlawful purpose, (b) Services on
the limited-use portion of Xxxxxxxx network may be used only for multimedia
transmissions (i.e., video and radio transmission services and/or related
applications including, but not limited to, graphic, visual, imaging,
interactive and multimedia, frame relay services, ATM, LSS, and IP services)
and USWC agrees to identify when the Services it requests are multimedia ("Use
Representation"), (c) at least ten percent (10%) of the transmissions shall be
interstate transmissions, and (d) USWC further represents that this Agreement,
to the extent it is subject to FCC regulation, is an inter-carrier agreement
not subject to the filing requirements of Section 211(a) of the Communications
Act of 1934, as amended. Services on the full-use portion of the Xxxxxxxx
network are not subject to the limitation of subsection 8.7(b), and do not
require a "Use Representation."
To the extent USWC has made a Use Representation, Xxxxxxxx shall defend,
indemnify and hold harmless USWC from any claim, loss, suit, or other
proceeding by WorldCom, Inc., involving a challenge to the use of Xxxxxxxx'
network for such Service. USWC shall cooperate in the defense of any such
claim. In addition, if the challenge materially precludes Xxxxxxxx from
providing Services as requested by USWC or if USWC has not made a Use
Representation but Xxxxxxxx is unable to provide requested Services on its
full-use portion of its network either party shall be entitled to terminate
this Agreement with no further liability for either party on thirty (30) days
notice, which termination shall be the sole and exclusive remedy for liability
to provide the requested services.
8.8 Proprietary Information. USWC understands and agrees that the terms and
conditions of this Agreement and all documents referenced herein (including
invoices to USWC for Services or Ancillary Service provided hereunder) are
confidential as between USWC, Xxxxxxxx and its affiliates and shall not be
disclosed by USWC to any party other than the directors, officers, and
employees of USWC or agents of USWC who have specifically agreed to
nondisclosure of the terms and conditions hereof. Violation by USWC or its
agents of the foregoing provision shall entitle Xxxxxxxx, at its option, to
discontinue Services or Ancillary Service to USWC without further obligation or
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liability to USWC. USWC further agrees that any USWC generated press release,
advertisement or publication regarding this Agreement, Services or Ancillary
Service provided hereunder or in which Xxxxxxxx, or its affiliates are to be
mentioned, will be submitted to Xxxxxxxx for its written approval prior to
publication. USWC understands and agrees that Xxxxxxxx may disclose such
information as may be required under applicable law including, without
limitation, filing of tariffs.
Further, both parties agree that any confidential information (noted in writing
as being confidential) received from the other party pursuant to any activities
under this Agreement will be used only for the purposes of this Agreement and
will not be used for any other purposes on any other project(s) by either
party. Both parties agree that no confidential information will be transferred
to any person or entity on bound by the Nondisclosure Agreement dated October
22, 1997 (attached hereto as Schedule C), and incorporated into this Agreement
by reference. The terms of the October 22, 1997 Nondisclosure Agreement are
incorporated herein by reference and made applicable to this Agreement.
Any information exchanged between the parties which is confidential and which,
when disclosed, is noted in writing as being confidential, will be subject to
the terms of this Section and disclosed as permitted in the Nondisclosure
Agreement. Each party agrees that each of its employees receiving confidential
information will be informed that such information is subject to the
Nondisclosure Agreement and will be bound by Schedule C; that confidential
information will remain the property of the party disclosing it; that all
copies of confidential information will be returned upon request; that the
party receiving confidential information will treat it in the same degree of
care as it affords to its own confidential information of like character; and
that the receiving party will not reproduce confidential information except as
necessary to perform its duties under this Agreement or as otherwise
specifically authorized in writing. Further, the parties agree not to
disseminate confidential information to any employee or division not directly
involved in providing services under this Agreement. The provisions of the
Nondisclosure Agreement will survive the expiration of this Agreement for a
period of one year after the expiration or termination of this Agreement.
8.9 Intrastate Interexchange Services. USWC may use any interexchange Service
provided under this Agreement only if such interexchange Service is used for
carrying interstate telecommunications (i.e., telecommunications subject to the
jurisdiction of the Federal Communications Commission). Xxxxxxxx and its
affiliates shall not be obligated to make available interexchange Service on a
circuit with end points within a single state or service on a circuit which
originates/terminates at points both of which are situated within a single
state unless USWC represents in writing that such interexchange Service or
circuits shall be used to carry interstate telecommunications. If it is
determined at any time that such interexchange Service or circuit is subject to
state regulation, the interexchange Service or circuit may be provided by
Xxxxxxxx or its affiliates pursuant to applicable state laws, regulations and
applicable tariffs, or Xxxxxxxx and its affiliates may discontinue provision of
the affected interexchange Service or circuit.
8.10 Customer Responsibilities. USWC has sole responsibility for installation,
testing and operation of facilities, services and equipment ("USWC Facilities")
other than those specifically
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provided by Xxxxxxxx as part of the Service or Ancillary Service as described
in a Service Order. In no event will the untimely installation or nonoperation
of USWC Facilities relieve USWC of its obligation to pay charges for the
Service or Ancillary Service after the start of Services as set forth in the
Service Order.
9.0 MISCELLANEOUS PROVISIONS.
9.1 Title to Equipment. This Agreement shall not, and shall not be deemed to,
convey to USWC title of any kind to any of the transmission facilities, digital
encoder/decoders, telephone lines, microwave facilities or other facilities
utilized in connection with the Services or Ancillary Service. Any equipment
provided by USWC must be itemized on a schedule listing all such USWC-provided
equipment and appended to the Service Order to which use of that equipment
relates ("USWC Equipment Inventory"). Xxxxxxxx shall not be obligated to
provide any Services or Ancillary Service for USWC if USWC will be providing
any of its own equipment unless and until such equipment is itemized on the
applicable USWC Equipment Inventory.
9.2 NOTICE. All notices to be sent to a party pursuant to this Agreement shall
be in writing and deemed to be effective upon (i) personal delivery, (ii) three
days after mailing certified mail return receipt requested, (iii) on the day
when the notice has been telexed or telecopied if during business hours and
followed by express mail priority next-day delivery, or (iv) in the case of
invoices, upon the Due Date. In each case, the notice shall be sent to the
person identified in this Section at the Full Business Addresses of the parties
as they appear herein. The effective date for any notice under this Agreement
shall be the date of delivery of such notice, not the date of mailing.
The Full Business Address for purposes of notice under this Section as well as
telephone voice and facsimile numbers for reservation of services and
troubleshooting shall be:
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Contract Administration
USWC:
------------------------------------
------------------------------------
------------------------------------
Telephone:
------------------------
Fax:
--------------------------------
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9.3 Merger/Integration. This Agreement (including the attached Schedules, as
they may be modified from time to time) consists of all the terms and
conditions contained herein and in documents incorporated herein specifically
by reference. This Agreement constitutes the complete and exclusive statement
of the understanding between the parties and supersedes all proposals and prior
agreements (oral or written) between the parties relating to Services or
Ancillary Service provided hereunder.
9.4 Written Amendment. USWC agrees that any addition, deletion or modification
to this Agreement shall not be binding on Xxxxxxxx except by written agreement
executed by Xxxxxxxx.
9.5 No Venture. The provision of Services or Ancillary Service shall not create
a partnership or joint venture between the parties.
9.6 Conflict of Law. In addition to the nonpayment of any sum due hereunder,
Xxxxxxxx may immediately suspend Services or Ancillary Service in whole or part
if Xxxxxxxx determines that such Services or Ancillary Service violate the
Communications Act of 1934, as amended (including the Telecommunications Act of
1996), or that the imposition of any state or federal statute, or promulgation
of any rule, regulation, or order of the Federal Communications Commission
("FCC") or other governing body makes Xxxxxxxx'x performance commercially
impracticable, as such laws may be in effect from time to time.
9.7 Assignment. USWC shall not assign or otherwise transfer (including without
limitation, a transfer due to a "Change of Control") its rights or obligations
under this Agreement without the prior written consent of Xxxxxxxx, which shall
not be unreasonably withheld. Any such assignment or transfer of USWC's rights
or obligations without such consent shall entitle Xxxxxxxx to terminate the
Services or Ancillary Service provided hereunder at its option upon ten (10)
days' prior written notice to USWC. A "Change in Control" shall be deemed to be
an assignment, merger, sale of a controlling interest or other transfer of a
controlling ownership interest. Notwithstanding the foregoing, the parties
recognize that other parties may, upon the mutual agreement of Xxxxxxxx and
USWC, be included as additional customers of the Services and Ancillary
Services under this Agreement and be entitled to the discounts hereunder.
Notwithstanding the foregoing, USWC may freely assign or transfer any of its
rights or obligations hereunder, in whole or part, to any wholly-owned
affiliate of US West Communications Group, Inc.
9.8 Choice of Law. This Agreement shall be governed by the laws of the State of
New York without regard to choice of law principles.
9.9 Interpretation. No rule of construction requiring interpretation against
the draftsman hereof shall apply in the Interpretation of this Agreement.
9.10 No Third Party Beneficiary. The provisions of this Agreement are for the
benefit only of the parties hereto, and no third party may seek to enforce or
benefit from these provisions.
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9.11 Attorney's Fees. If a proceeding is brought for the enforcement of this
Agreement or because of any alleged or actual dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees
and other costs and expenses incurred in such action or proceeding in addition
to any other relief to which such party may be entitled.
9.12 Severability. In the event any provision of this Agreement conflicts with
any statute, rule or order of any governmental unit or regulatory body, or
tariff then, if required by law, such statute, rule, order or tariff shall
control.
9.13 No Waiver. The failure of either party to enforce any provision hereof
shall not constitute the permanent waiver of such provision.
9.14 Resolution of Disagreements Among Parties. No party to this Agreement
shall be entitled to take legal action with respect to any dispute relating to
this Agreement until it has complied in good faith with the following
alternative dispute resolution procedures. If a dispute, claim or controversy
arises with respect to or relates to any Section of this Agreement, then the
following dispute resolution procedures shall govern the parties' conduct:
(a) The parties shall attempt promptly and in good faith to
resolve any dispute arising out of or relating to this
Agreement through negotiations between representatives who
have authority to settle the controversy. Any party may give
the other party written notice of any such dispute not
resolved in the normal course of business. Negotiations
extending ten (10) days after the disputing party's notice
shall be deemed at an impasse, unless otherwise agreed by the
parties. If a negotiator intends to be accompanied at a
meeting by an attorney, the other negotiator(s) shall be
given at least two (2) working days notice of such intention
and may also be accompanied by an attorney. All negotiations
pursuant to this clause are confidential and shall be treated
as compromise and settlement negotiations for purposes of the
Federal and state Rules of Evidence.
(b) If a dispute is at an impasse (i.e., it has not been resolved
within ten (10) days of the disputing party's notice), the
dispute shall be settled by arbitration in Kansas City,
Missouri, administered by the American Arbitration
Association in accordance with the Commercial Arbitration
Rules of the American Arbitration Association in effect on
the date that such notice is given. If the parties are unable
to agree on a single arbitrator within ten (10) days from the
date of an impasse as set forth in Subsection (a), then USWC
and Xxxxxxxx shall each select one arbitrator within ten (10)
days and the two (2) arbitrators shall select a third
arbitrator within ten (10) days. If a party does not
designate an arbitrator or if the two appointed arbitrators
cannot agree on the final arbitrator within the foregoing
time periods, then the American Arbitration Association shall
select the arbitrator(s)upon request of either party. The
decision of the arbitrator(s) shall be final and binding upon
the parties and shall
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include written findings of law and fact, and judgment may be
obtained thereon by either party in a court of competent
jurisdiction. Each party shall bear the cost of preparing and
presenting its own case. The cost of the arbitration,
including the fees and expenses of the arbitrator(s), shall
be shared equally by the parties hereto unless the award
otherwise provides. The arbitrator(s) shall be instructed by
the parties to establish procedures such that a decision can
be rendered by the arbitrator(s) within sixty (60) days of
the date that the last arbitrator is selected.
(c) The obligation herein to arbitrate shall not be binding upon
any party with respect to requests for preliminary
injunctions, temporary restraining orders, specific
performance or other procedures in a court of competent
jurisdiction to obtain interim relief when deemed necessary
by such court to preserve the status quo or prevent
irreparable injury pending resolution by arbitration of the
actual dispute.
U S WEST COMMUNICATIONS, INC. VYVX, INC.
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------- ------------------------------
Title: Title:
------------------------------ ------------------------------
Date: Date:
------------------------------ ------------------------------
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Schedule A
Xxxxxxxx Network Private Line Service
SERVICES & PRICING
This Private Line Service Schedule ("PLSS") is made as of this 5th day of
January, 1998, and is subject to that Carrier Services Agreement No.
________________ (the "CSA") by and between Vyvx, Inc. d/b/a Xxxxxxxx Network,
a Delaware corporation ("Xxxxxxxx"), and U S West Communications, Inc., a
Colorado corporation ("USWC").
1. DESCRIPTION: Xxxxxxxx Network Private Line Service (the "Service")
provides domestic circuits operating in forms specified on the
attached Pricing Exhibit for the route(s) specified in a Service Order
and meeting the technical requirements defined in the "Technical
Specifications for Private Line Service" attached hereto.
2. RATES & CHARGES: Xxxxxxxx Network Private Line Service has three basic
rate elements; IXC Charges, Local Access Charges, and Non-recurring
Charges.
2.1 IXC. IXC rates are determined by reference to Exhibit 1 hereto and
will be set forth on the Service Order.
2.2 Local Access Charges. Local Access Charges are based on the cost of
transmission capacity provided by USWC or a third parry supplier to
extend the Services provided by Xxxxxxxx from a Xxxxxxxx Point of
Presence to any other location ("Local Access Services"). Xxxxxxxx
shall use reasonable efforts to order Local Access services on behalf
and upon request of USWC, provided that USWC provides Xxxxxxxx with a
letter of agency. Where available, and if requested by USWC, Xxxxxxxx
will use reasonable efforts to use USWC's requested Local Access
provider. If Xxxxxxxx places an order for USWC for Local Access
Services, Xxxxxxxx will xxxx USWC for such services and USWC shall
hold harmless and indemnify Xxxxxxxx from any loss or liability
incurred by Xxxxxxxx as a result of Xxxxxxxx ordering any such Local
Access Services from a third party. USWC may, upon Xxxxxxxx' prior
written approval, order its own local access services. If USWC orders
its own Local Access Services, USWC shall be billed directly by the
supplier of such services and Xxxxxxxx shall not be responsible for
billing any such charges.
2.3 Non-recurring charges are as specified on Exhibit 1.
2.3.2 Additional Installation/Maintenance/Engineering are as specified on
Exhibit 1.
2.3.3 Local Loop Billing Administration is as specified on Exhibit 1.
The above non-recurring charges are subject to change, upon thirty
(30) days prior written notice from Xxxxxxxx to XXXX.
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0. XXXX OF SERVICES:
3.1 Upon acceptance of a Service Order, Xxxxxxxx shall confirm USWC's
requested Start Date, or inform USWC of the estimated date for the
delivery of each service. Xxxxxxxx shall use best reasonable efforts
to install each such service on or before the Start Date, but the
inability of Xxxxxxxx to deliver a facility by such date shall not be
a Default under this Agreement. If Xxxxxxxx fails to make any facility
available within thirty (30) days after the Start Date, USWC's sole
remedy shall be to cancel the Service Order which pertains to such
Service by ten (10) calendar days prior written notice to Xxxxxxxx.
3.2 The effective date of each service (the "Service Effective Date")
shall begin on the date on which USWC accepts delivery of such
Service. If USWC fails to give written notice that the Service is in
material non-compliance with the applicable technical specifications,
as modified from time to time by Xxxxxxxx (the "Specifications")
within fifteen (15) business days after notification to USWC by
Xxxxxxxx that the Service is available, USWC shall be deemed to have
accepted such Service, and the Service Effective Date shall commence
as of the fifteenth (15th) business day following such notification by
Xxxxxxxx. Following notice by USWC of material non-compliance as set
forth above, Xxxxxxxx shall promptly take such reasonable action as is
necessary to correct any such non-compliance in the Service and shall,
upon correction, notify USWC of a new Service Effective Date.
4. CHANGE OF SERVICES:
4.1 Change of Service Date. If USWC desires to change the date on which
USWC has requested that Service be available, USWC may be charged a
Change of Service Date Charge. Such charge will not apply to USWC's
first change request, as long as such request is made within fifteen
(15) business days prior to the original Requested Service Date. If
USWC makes a second change, or such change is requested after fifteen
(15) days prior to the original Requested Service Date, USWC will be
charged Xxxxxxxx' then applicable Change of Service Date Charge. USWC
will also be charged for any charges incurred by Xxxxxxxx from third
party providers as a result of USWC's request for Change of Service
Date.
4.2 Change of Service Order. If USWC requests a modification to the
information contained in a Service Order (other than a Change of
Service Date) prior to completion of installation of the Service, USWC
will incur a Change of Service Order Charge. No charge will be
incurred if the change is to the IXC part of the Service Order and is
administrative in nature (i.e., billing address, contact information,
etc.). A charge will be incurred if the administrative change relates
to Local Access for which Xxxxxxxx is acting as agent.
Change of Service Order charges will be lower if the USWC requests
such change within five (5) business days after a Service Order has
been accepted by Xxxxxxxx ("pre-engineering") and will be higher if
such change is received after that time ("post-engineering"). Any
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expedited order will be considered to be in the post-engineering stage
two (2) business days after the Service Order is accepted by Xxxxxxxx.
4.3 Change of Service Charges. If USWC requests a change to Services after
such Services have been installed, USWC will incur a Change of Service
Charge. If such Change of Service is administrative in nature, USWC
will not incur a charge, unless such administrative change applies to
Local Access services which have been ordered by Xxxxxxx as agent for
USWC. In addition to the Change of Service Charge, USWC will be
responsible for any charges due to re-engineering which is required as
a result of USWC's request for Change of Service.
5. OUTAGE CREDITS:
5.1 USWC acknowledges the possibility of an unscheduled, continuous and/or
interrupted period of time when a Service or Services are
"unavailable" (as defined in the Specifications) (hereafter an
"Outage"). An Outage shall begin upon recognition by Xxxxxxxx that the
Service is interrupted. In the event of an Outage, USWC shall be
entitled to a credit (the "Outage Credit") as follows: (i) for an
Outage lasting continuously for one (1) hour or less, ten percent
(10%) of the monthly recurring charge (as stated on the applicable
Service Order), or (ii) for an Outage lasting continuously more than
one (1) hour, one hundred percent (100%) of the monthly recurring
charge (as stated on the applicable Service Order).
5.2 USWC shall not receive an Outage Credit if the interruptions, (a)
caused by the negligence or willful misconduct of USWC or others
authorized by USWC to use the services under this Agreement, (b) due
to the failure of power, facilities, equipment, systems or connection
not provided by Xxxxxxxx, (c) caused by the failure of access to
Xxxxxxxx' fiber optic network, except for Xxxxxxxx' giving
pass-through credits from the access provider as available, (d)
resultant from scheduled maintenance where USWC has been notified of
scheduled maintenance in advance, (e) due to a Force Majeure event as
defined in Section 8.5 of the CSA.
5.3 All Outage Credits shall be credited on the next monthly invoice for
the affected Service.
5.4 The Outage Credit described in this Section 5 of this PLSS shall be
the sole and exclusive remedy of USWC in the event of any Outage, and
under no circumstance shall an outage be deemed a Default under this
Agreement.
SIGNATURE PAGES TO FOLLOW
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IN WITNESS WHEREOF, the parties hereto have executed this Private Line Service
Schedule as of the day and year first above written.
-------------------------------------- -------------------------------------
U S WEST Communications, Inc.: VYVX, Inc.:
-------------------------------------- -------------------------------------
Signature of Authorized Representative Signature of Authorized Representative
-------------------------------------- -------------------------------------
Printed Name Printed Name
-------------------------------------- -------------------------------------
Title Title
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EXHIBIT I TO SCHEDULE A
PRICING EXHIBIT
COMMITMENT AND PRICING MATRIX (ON NETWORK)
****
ON NETWORK BANDWIDTH PRICING FOR NON-RECURRING CHARGES
****
COLLOCATE
****
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