EXHIBIT 10.11
CONFIDENTIAL MATERIALS HAVE BEEN OMMITTED FROM THIS AGREEMENT PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
NETWORK SERVICES AGREEMENT
This NETWORK SERVICES AGREEMENT (the "AGREEMENT") is effective as of
12:01 A.M. _________, 2000 (the "EFFECTIVE DATE"), between SAVVIS Communications
Corporation, a Missouri corporation ("SAVVIS"), and Bridge Information Systems,
Inc., a Missouri corporation ("BRIDGE").
RECITALS
A. Bridge is engaged in the business of collecting and distributing various
financial, news and other data.
B. SAVVIS is engaged in the business of providing Internet Protocol
backbone and other data transport services.
C. SAVVIS and certain of its subsidiaries have acquired from Bridge and
certain of its subsidiaries certain assets relating to the provision of Internet
Protocol backbone and other data transport services, and may in the future
acquire additional such assets from Bridge and certain of its subsidiaries, all
pursuant to a Master Establishment and Transition Agreement between SAVVIS'
corporate parent, SAVVIS Communications Corporation, a Delaware corporation, and
Bridge, of even date herewith (the "MASTER ESTABLISHMENT AND TRANSITION
AGREEMENT").
D. It is an obligation of the parties under the Master Establishment and
Transition Agreement to cause this Network Services Agreement to be entered into
between SAVVIS and Bridge, pursuant to which SAVVIS shall provide Internet
Protocol backbone and other data transport services to Bridge.
E. Together with this Agreement, the parties hereto are entering into a
Technical Services Agreement of even date herewith (the "TECHNICAL SERVICES
AGREEMENT") and an Administrative Services Agreement of even date herewith (the
"Administrative Services Agreement"), providing for the provision of certain
services to SAVVIS by Bridge. Certain subsidiaries of SAVVIS and certain
subsidiaries of Bridge are entering into, and may in the future enter into,
Local Transfer Agreements, Local Network Services Agreements (the "Local Network
Services Agreements"), Equipment Collocation Permits (the "Equipment Collocation
Permits"), and Local Administrative Services Agreements.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Network Services
Agreement by and between SAVVIS and Bridge, including all
addenda to this Agreement entered into in the manner set forth
herein (each an "ADDENDUM" and collectively the "ADDENDA").
This Agreement shall be interpreted wherever possible to avoid
conflicts between the Sections hereof and the Attachments,
provided that if such a conflict shall arise, the Attachments
shall control.
1.2. Whenever it is provided in this Agreement for a matter to
be mutually agreed upon by the parties and set forth in an
Addendum to this Agreement, either party may initiate the
process of determining such matter by submitting a proposed
outline or contents of such Addendum to the other party. Each
party shall appoint a primary contact and a secondary contact
for the completion of such Addendum, who shall be the contact
points for every issue concerning such Addendum and who shall
be informed of the progress of the project. The names of the
contacts will be exchanged in writing by the parties. Using
the contacts, the parties shall work together in good faith
with such diligence as shall be commercially reasonable under
the circumstances to complete such Addendum, provided,
however, that neither party shall be obligated to enter into
such an Addendum. Upon the completion of such Addendum, it
shall be set forth in a written document and executed by the
parties and shall become a part of this Agreement and shall be
deemed to be incorporated herein by reference.
1.3. Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined
terms shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included"
and "including" shall not be construed as terms of limitation.
Additional definitions are provided in Schedule 3.1 of this
Agreement. Capitalized terms not otherwise defined have the
meanings assigned to such terms in the Master Establishment
and Transition Agreement.
"ADDITIONAL NETWORK FACILITIES" means any assets and contracts
of SAVVIS for the provision of Internet Protocol backbone and
other data transport services other than the Acquired Network
Facilities.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" means a period of 12 months beginning on the
Effective Date and each subsequent anniversary thereof.
"AMERICAS" means Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx xxx Xxxxx
Xxxxxxx, including the Caribbean, but excluding the United
States.
"ASIA" means Australia, China, Hong Kong, India, Indonesia,
Japan, Korea, Macau, Malaysia, New Zealand, Philippines,
Singapore, Taiwan, and Thailand.
"BRIDGE" means Bridge Information Systems, Inc., a Missouri
corporation, and its successors and assigns.
"BRIDGE SUBSIDIARIES" has the meaning assigned to the term
"Seller Subsidiaries" in the Master Establishment and
Transition Agreement.
"CONFIDENTIAL INFORMATION" means all information concerning
the business of Bridge, SAVVIS or any third party doing
business with either of them that may be obtained from any
source (i) by SAVVIS by virtue of its performance under this
Agreement or (ii) by Bridge by virtue of its use of the
Networks. Such information shall also include the terms of
this Agreement (and negotiations and proposals from one party
to the other related directly thereto), network designs and
design recommendations, tools and programs, pricing, methods,
processes, financial data, software, research, development,
strategic plans or related information. All such information
disclosed prior to the execution of this Agreement shall also
be considered Confidential Information for purposes of this
Agreement.
Confidential Information shall not include information that:
(a) is already rightfully known to the receiving
party at the time it is obtained by such party,
free from any obligation to keep such
information confidential; or
(b) is or becomes publicly known through no wrongful
act of the receiving party; or
(c) is rightfully received by the receiving
party from a third party without restriction
and without breach of this Agreement.
"DISTRIBUTOR COUNTRY" means any country in which the products
and services of Bridge and Bridge Subsidiaries are provided
through third-party distributors.
"EFFECTIVE DATE" means the date set forth in the Preamble of
this Agreement.
"EUROPE" means Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Luxembourg,
Netherlands, Norway, Poland, Spain, Sweden, Switzerland,
Turkey and the United Kingdom.
"EVENT OF DEFAULT BY SAVVIS" has the meaning assigned to such
term in Section 7.1 of this Agreement.
"INITIAL TERM" means a period of ten consecutive Agreement
Years beginning on the Effective Date.
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"INSTALLATION SITE" means any facility of Bridge or a Bridge
Subsidiary or of vendors or customers of Bridge or a
BridgeSubsidiary at which one or more of the Networks is
installed. "MARKET HOURS" means, with respect to any
Installation Site, the period of time beginning two hours
before the time at which trading opens on the principal
securities exchange or automated quotation system designated
by Bridge in writing from time to time as being used by the
purchasers and sellers of securities at such Installation
Site, and ending two hours after the time at which such
trading ceases to be conducted.
"MINIMUM ANNUAL COMMITMENT" has the meaning assigned to such
term in Schedule 3.1 of this Agreement.
"NETWORK" and "NETWORKS" have the meaning assigned to such
terms in Section 2.1 of this Agreement.
"REPLACED ROUTERS" has the meaning assigned to such term in
Section 2.7 of this Agreement.
"QUALITY OF SERVICE STANDARDS" means the standards for the
performance of the Networks contained in Schedule 2.2 hereto
or an Addendum to this Agreement.
"SAVVIS" means SAVVIS Communications Corporation, a Missouri
corporation, and its successors and assigns.
"SAVVIS BACKBONE" means those facilities that are owned by, or
leased to, SAVVIS providing telecommunications utilizing the
Internet Protocol.
"SAVVIS PARENT" means SAVVIS Communications Corporation, a
Delaware corporation.
"SAVVIS SUBSIDIARIES" has the meaning assigned to the term
"Buyer Subsidiaries" in the Master Establishment and
Transition Agreement.
"Securities EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
"TELERATE" means Telerate Holdings, Inc., a Delaware
corporation.
"TELERATE NETWORK SERVICES AGREEMENT" means the network
services agreement pursuant to which SAVVIS shall provide
Internet Protocol backbone and other data transport services
to Telerate.
"TRANSITION PERIOD" has the meaning assigned to such term in
Section 6.3 of this Agreement.
2. THE NETWORKS AND QUALITY OF SERVICE STANDARDS
2.1. SAVVIS agrees to use the Acquired Network Facilities to
provide (or to cause the SAVVIS Subsidiaries to provide) to
Bridge and the Bridge Subsidiaries the following managed
packet-data transport networks, including the operation,
management and maintenance thereof:
(a) a global office-automation network, providing
connectivity between the offices of Bridge (the "OA
NETWORK"),
(b) a global data collection network (the "COLLECTION
NETWORK") and
(c) a global data distribution network (the "DISTRIBUTION
NETWORK"),
which shall be referred to in this Agreement collectively as
the "NETWORKS" and individually as a "NETWORK."
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2.2. Each Network shall be operated, managed and maintained by
SAVVIS. SAVVIS may, but shall not be obligated to, use
facilities of SAVVIS other than the Acquired Network
Facilities to provide all or any part of any Network.
Beginning on the first anniversary of the Effective Date and
thereafter, each Network shall be operated, managed and
maintained by SAVVIS according to the Quality of Service
Standards set forth in Schedule 2.2 hereof, and SAVVIS shall
be responsible for monitoring the performance of the Networks
with respect to the Quality of Service Standards and shall
provide Bridge with monthly reports of such performance. If
the Quality of Service Standards are not met with respect to a
particular Installation Site in any month, Bridge shall be
entitled to receive, upon written request by Bridge within 30
days of its receipt of the performance report for such
Installation Site for such month, a credit in the amount set
forth on Schedule 2.2 attached hereto, which amount shall be
deemed to be one month's charges applicable to such
Installation Site under this Agreement with respect to such
month; provided, however, that Bridge shall not be entitled to
such credit to the extent that the failure to meet the Quality
of Service Standards with respect to such Installation Site is
due to (i) an act or omission of Bridge or a Bridge Subsidiary
or a vendor or customer of Bridge or a Bridge Subsidiary or
(ii) equipment or software used by Bridge and not provided by
SAVVIS. Not more than one credit of one month's charges shall
be given for a particular Installation Site for a particular
month. The Quality of Service Standards shall not apply to the
provision of Local Access Facilities in countries in which the
products and services of Bridge and Bridge Subsidiaries are
provided through third-party distributors. For all purposes of
this Agreement, including without limitation the determination
of an Event of Default by SAVVIS, the Quality of Service
Standards applicable to a particular Installation Site in any
month shall be deemed to have been met unless Bridge, within
30 days of its receipt of the performance report for such
Installation Site for such month, requests in writing a credit
as set forth above with respect to such Installation Site for
such month.
2.3. SAVVIS agrees that, for the term of this Agreement, the
network operations centers for the Networks shall be managed
by Bridge under the Technical Services Agreement; provided,
however, that SAVVIS shall not be restricted from building,
managing and operating one or more network operations for such
portions of the SAVVIS Backbone or other operations of SAVVIS
that are not used to provide the Networks to Bridge.
2.4. [Intentionally omitted.]
2.5. In providing Additional Network Facilities, SAVVIS agrees to
use its best efforts to expedite the provisioning of the
circuits for such Additional Network Facilities in those
instances in which SAVVIS is responsible for provisioning such
circuits, and to use its best efforts to avoid single points
of failure in the engineering design of such Additional
Network Facilities, consistent with the level of redundancy
specified in the applicable Addendum.
2.6. Throughout the term of this Agreement, SAVVIS shall use its
reasonable best efforts to continue to meet the requests of
Bridge to enhance the total capacity, geographic extension and
performance quality of the Networks, and to maintain its
research and development effort at a level appropriate to
sustain the ability of Bridge to compete on the basis of the
quality of the Networks.
2.7. The parties acknowledge that SAVVIS intends to replace certain
existing routers among the Acquired Network Facilities (the
"REPLACED ROUTERS") with new equipment promptly after the
Effective Date. It is the intention of the parties that the
Replaced Routers will be re-deployed at Installation Sites at
which one or more 56 Kbps ports or 64 Kbps ports will be
provided by SAVVIS using Additional Network Facilities as set
forth in Section 3.1 hereof. SAVVIS agrees to manage the use
of its inventory of routers in order to re-deploy the maximum
number of Replaced Routers as is commercially reasonable. So
long as Replaced Routers are available for re-deployment
during the 18 months following the Effective Date, SAVVIS
agrees not to make any bulk purchases of additional routers
without the prior written consent of Bridge, which will not be
unreasonably withheld. Upon the expiration of 18 months
following the Effective Date, the parties shall determine the
number of Replaced Routers that the parties mutually agree are
likely to be so re-deployed within the succeeding 12 months.
All Replaced Routers that are not reasonably likely to be so
re-deployed within such 12-month period shall be purchased
from SAVVIS by Bridge at a price per Replaced Router equal to
the average net book value as of the Effective Date of all
routers included in the Acquired Network Facilities.
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3. RATES AND CHARGES
3.1. Bridge shall pay SAVVIS for the Networks using the Acquired
Network Facilities and Additional Network Facilities according
to the rates and charges set forth in Schedule 3.1 hereof.
3.2. The parties recognize that certain savings might be obtained
by consolidating the multiple Local Access Facilities that are
provided at such building locations on the Effective Date. In
the event that SAVVIS consolidates the multiple Local Access
Facilities at one or more of such building locations and
obtains cost savings as a result thereof, the parties will
mutually agree within 30 days following such consolidation on
the manner in which such savings shall be shared between
SAVVIS and Bridge. Any reduction pursuant to this Section
shall not affect the Minimum Annual Commitment.
3.3. For any Installation Site to which SAVVIS is providing
services both under this Agreement and the Telerate Network
Services Agreement, the rates and charges applicable to such
Installation Site under this Agreement shall be one-half of
the rates and charges that would otherwise be applicable to
such Installation Site under this Agreement.
4. STRATEGIC ADVISORY COMMITTEE
4.1. Within 30 days after the Effective Date, SAVVIS and Bridge
shall each appoint three senior executives to the "STRATEGIC
ADVISORY COMMITTEE," and one outside consultant shall be
jointly appointed by both parties. Any fees and expenses of
such outside consultant incurred in connection with service on
the Strategic Advisory Committee shall be shared equally by
SAVVIS and Bridge. Each party shall have the right to change
any or all of its representatives on the Strategic Advisory
Committee upon written notice to the other party. A quorum of
the Strategic Advisory Committee shall consist of four
members, provided that at least two members appointed by each
party are present. The Chair of the Strategic Advisory
Committee shall be designated by Bridge from among the seven
members of the Committee.
4.2. The mission of the Strategic Advisory Committee shall be to
review the performance of the Networks, to serve as forum for
the consideration and discussion of issues raised by either
SAVVIS or Bridge with respect to the Networks, and to discuss
issues related to the future development of the data transport
and Internet Protocol backbone operations of SAVVIS in the
context of the relationship of SAVVIS and Bridge.
4.3. The Strategic Advisory Committee shall meet with reasonable
frequency, at the call of the Chair.
4.4. The Strategic Advisory Committee shall have reasonable access
to the Chief Executive Officer and the Board of Directors of
SAVVIS to raise areas of concern to the Committee under this
Agreement.
4.5. SAVVIS agrees to use its commercially reasonable best efforts
to comply with the recommendations of the Strategic Advisory
Committee regarding performance issues arising under this
Agreement.
5. INVOICES
5.1. The amounts due to SAVVIS from Bridge for the installation,
operation, management and maintenance of the Networks shall be
billed monthly in advance. All items on invoices not the
subject of a bona fide dispute shall be payable by Bridge in
United States currency within 30 days from the date of receipt
of the invoice. All amounts not in dispute are subject to
interest charges of 1-1/2 percent that will accrue daily on
all amounts not paid within 30 days of the date of receipt of
the invoice.
5.2. At any time and from time to time, Bridge may, by written
notice to SAVVIS, have one or more Installation Sites removed
from the Networks. Each monthly invoice from SAVVIS to Bridge
shall reflect a reduction in the amount charged to Bridge for
the Networks resulting from any such removal of Installation
Sites. In the case of any Installation Site removed from the
Acquired Network Facilities, such reduction shall be the sum
of:
(a) the actual cost of the Local Access Facilities
connecting the Acquired Network Facilities to such
Installation Site, effective as of such time as
SAVVIS is no longer required to pay such costs, and
(b) the amounts set forth on Schedule 5.2 attached
hereto, which are deemed to be one month's charges
applicable to such Installation Site under this
Agreement with respect to such month during the first
Agreement Year, according to connection speed at such
Installation Site, effective as of such time as such
Installation Site is disconnected from the Networks.
5.3. Bridge shall pay any sales, use, federal excise, utility,
gross receipts, state and local surcharges, value added and
similar taxes, charges or levies lawfully levied by a duly
constituted taxing authority against or upon the Networks. In
the alternative, Bridge shall provide SAVVIS with a
certificate evidencing Bridge's exemption from payment of or
liability for such taxes. All other taxes, charges or levies,
including any ad valorem, income, franchise, privilege or
occupation taxes of SAVVIS shall be paid by SAVVIS.
5.4. Bona fide disputes concerning invoices shall be referred to
the parties' respective representatives who are authorized to
resolve such matters. Any amount to which Bridge is entitled
as a result of the resolution of a billing dispute shall be
credited promptly to Bridge's account. Any amount to which
SAVVIS is entitled as a result of the resolution of a billing
dispute shall be paid promptly to SAVVIS.
5.5. Against the amounts owed by Bridge to SAVVIS under this
Agreement, Bridge shall have the right to offset any amounts
owed by SAVVIS to Bridge under this Agreement, the Technical
Services Agreement, or otherwise, including without limitation
any amounts paid by Bridge on behalf of SAVVIS under
guarantees by Bridge of obligations of SAVVIS.
6. TERM AND EXTENSIONS
6.1. This Agreement shall commence on the Effective Date and shall
continue in full force and effect for the Initial Term unless
terminated or extended in accordance with the provisions
hereof.
6.2. The term of this Agreement may be extended by Bridge for one
additional five-year period by giving SAVVIS written notice
not less than one year before the scheduled expiration of the
Initial Term.
6.3. Upon the termination of this Agreement in accordance with its
scheduled expiration or by Bridge pursuant to Section 7,
SAVVIS will continue to provide the Networks in accordance
with the terms and conditions herein (excluding the Minimum
Annual Commitment) for a period of up to five years after the
effective date of termination (the "TRANSITION PERIOD").
During the Transition Period, Bridge shall pay SAVVIS for the
use of the Networks at the rates in effect at the effective
date of termination. If Bridge has not completely transitioned
from its use of the Networks after the Transition Period,
SAVVIS will provide the Networks at SAVVIS' then current list
rates. SAVVIS and its successor will cooperate with Bridge
until Bridge has completely migrated to another provider.
7. TERMINATION BY BRIDGE
7.1. An "EVENT OF DEFAULT BY SAVVIS" shall be deemed to occur if:
(a) SAVVIS has failed to a material degree to perform or
comply with or has violated to a material degree any
material representation, warranty, term, condition or
obligation of SAVVIS under this Agreement, and SAVVIS
has failed to cure such failure or violation within
60 days after receiving notice thereof from Bridge;
or
(b) SAVVIS becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(c) an Event of Default by SAVVIS occurs under the
Telerate Network Services Agreement.
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7.2. Bridge shall have the right to terminate this Agreement, with
no liability to SAVVIS other than for charges (less any
applicable credits) for the Networks provided prior to such
termination, if:
(a) Bridge provides written notice to SAVVIS, at any time
after the ninth anniversary of the Effective Date, of
Bridge's intent to terminate, such termination to be
effective not less than one year following the date
of such notice; or
(b) Bridge provides 10 days written notice of its intent
to terminate in the event that an Event of Default by
SAVVIS occurs.
7.3. For purposes of Section 7.1(a), if the Quality of Service
Standards are not met with respect to a particular
Installation Site in any month, SAVVIS shall be deemed to have
cured such failure within 60 days if the Quality of Service
Standards are met with respect to such Installation Site in
the following month. The parties acknowledge and agree that
the failure of the Quality of Service Standards to be met with
respect to one or more Installation Sites in one or more
months may, but does not necessarily, constitute a failure by
SAVVIS to a material degree to perform or comply with, or a
violation to a material degree of, any material
representation, warranty, term, condition or obligation of
SAVVIS under this Agreement.
7.4. As provided in Section 2.2, for all purposes of this
Agreement, including without limitation the determination of
an Event of Default by SAVVIS under this Section, the Quality
of Service Standards applicable to a particular Installation
Site in any month shall be deemed to have been met unless
Bridge, within 30 days of its receipt of the performance
report for such Installation Site for such month, requests in
writing a credit as set forth in Section 2.2 with respect to
such Installation Site for such month.
8. TERMINATION BY SAVVIS
8.1. SAVVIS shall have the right to terminate this Agreement if:
(a) Bridge has failed to pay any invoice that is not the
subject of a bona fide dispute within 60 days of the
date on which such payment is due and SAVVIS has
provided Bridge with written notice thereof, provided
that Bridge shall have a further 30 days from the
time it receives such notice from SAVVIS of
nonpayment to cure any such default;
(b) SAVVIS provides 10 days written notice of its intent
to terminate in the event that Bridge has failed to
perform or comply with or has violated any material
representation, warranty, term, condition or
obligation of Bridge under this Agreement, and Bridge
has failed to cure such failure or violation within
60 days after receiving notice thereof from SAVVIS;
(c) Bridge becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(d) SAVVIS becomes entitled to terminate the Telerate
Network Services Agreement pursuant to the terms
thereof.
8.2. Notwithstanding the provisions of Section 8.1(b) above, SAVVIS
shall not have the right to terminate this Agreement under
Section 8.1(b) solely for a failure by Bridge to perform or
comply with, a violation by Bridge of, the obligations of
Bridge under Section 15 (Confidentiality) of this Agreement,
without prejudice, however, to such rights as SAVVIS may have
pursuant to such Section and to such rights and remedies to
which SAVVIS may be entitled, at law or in equity, as the
result of an actual or threatened breach by Bridge of such
Section.
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9. ACCEPTANCE OF ADDITIONAL NETWORK FACILITIES
9.1. Upon the installation of Additional Network Facilities at any
Installation Site, SAVVIS shall conduct appropriate tests to
establish that such Additional Network Facilities perform in
accordance with mutually agreed upon acceptance criteria
("ACCEPTANCE CRITERIA") set forth in the applicable Addendum
entered into pursuant to Section 2.4, and shall promptly
inform Bridge of such test results. If test results show that
the Additional Network Facilities are performing in accordance
with the Acceptance Criteria, Bridge shall be deemed to accept
the Additional Network Facilities at the Installation Site
immediately.
9.2. If SAVVIS' tests establish that newly installed Additional
Network Facilities at the Installation Site do not perform in
accordance with the mutually agreed upon Acceptance Criteria,
then SAVVIS shall immediately and diligently exert its best
efforts to bring the Additional Network Facilities at such
Installation Site into compliance. SAVVIS shall not xxxx
Bridge for the Additional Network Facilities at such
Installation Site until the test results show that the
Additional Network Facilities are performing in accordance
with the Acceptance Criteria.
9.3. Upon repair or restoration of any part of the Networks, SAVVIS
shall conduct appropriate tests to establish that the Networks
perform in accordance with mutually agreed upon Acceptance
Criteria and shall promptly inform Bridge of such test
results.
10. RIGHTS AND OBLIGATIONS OF BRIDGE
10.1. SITE PREPARATION. For the installation of Additional Network
Facilities, Bridge shall, at its own expense, provide all
necessary preparations of each Installation Site in accordance
with the requirements to be mutually agreed upon by the
parties and set forth in an Addendum hereto, including inside
wiring, demarcation extension and rack mount accessories.
Bridge shall ensure that Bridge-provided equipment is on-site
by the scheduled installation date. If SAVVIS is required to
reschedule the installation of Bridge-provided equipment
because it is not on-site by the scheduled installation date,
Bridge shall pay SAVVIS to redispatch installation personnel.
10.2. PROPER USE OF NETWORKS.
10.2.1. Bridge shall use any equipment provided by SAVVIS in
connection with the Networks in accordance with its
documentation, which documentation shall be provided
by SAVVIS at no additional charge. Unless otherwise
provided herein, upon the termination of this
Agreement Bridge shall surrender to SAVVIS the
equipment provided by SAVVIS, in good working order,
ordinary wear and tear excepted.
10.2.2. Bridge shall be liable for damages to the Networks
caused by the negligence or willful acts or omissions
of Bridge's officers, employees, agents or
contractors, for loss through theft or vandalism of
the Networks at the Installation Site, and for
damages to the Networks caused by the use of
equipment or supplies not provided hereunder or not
otherwise authorized by SAVVIS.
10.2.3. Bridge shall neither permit nor assist others to use
the Networks for any purpose other than that for
which they are intended, nor fail to maintain a
suitable environment specified by SAVVIS in the
applicable schedule, nor alter, tamper with, adjust
or repair the Networks. Any such alteration,
tampering, adjustment or repair by Bridge shall
relieve SAVVIS from any liability or obligation
hereunder (including any warranty or indemnity
obligation) relating to the affected Network, and
Bridge shall be liable to SAVVIS for any documented
direct costs incurred by SAVVIS as a result of such
actions.
10.3. ABUSE OR FRAUDULENT USE OF NETWORKS. Bridge shall neither
permit nor assist others to abuse or fraudulently use the
Networks, or to use the Networks for any unauthorized or
illegal purposes, including:
(a) obtaining or attempting to obtain service by any
fraudulent means or device to avoid payment; or
(b) accessing, altering or destroying any information of
another party by any fraudulent means or device, or
attempting to do so; or
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(c) using the Networks so as to interfere with the use of
the SAVVIS network by other SAVVIS customers or
authorized users or in violation of law or in support
of any unlawful act; or
(d) using the Networks for voice communications over a
private network in jurisdictions where such use is
not allowed.
Notwithstanding the provisions of Section 8, upon the breach
of this Section 10.3 by Bridge, SAVVIS shall have the right to
terminate this Agreement immediately upon written notice to
Bridge.
10.4. COVENANT NOT TO COMPETE.
10.4.1. As an inducement to SAVVIS to enter into this
Agreement, which Bridge acknowledges is of benefit to
it, and in consideration of the promises and
representations of SAVVIS under this Agreement,
Bridge covenants and agrees that during the term of
this Agreement and for a period of five years
thereafter, neither Bridge nor any of its successors
or assigns will, directly or indirectly, engage in,
or have any interest in any other person, firm,
corporation or other entity engaged in, any business
activities anywhere in the world competitive with or
similar or related to the packet-data transport
network services provided by SAVVIS under this
Agreement; provided, however, that (i) Bridge and the
Bridge Subsidiaries shall be free to continue to use
the Call Assets and the satellite networks currently
used by Bridge, until such Call Assets or satellite
networks have been acquired by SAVVIS or the SAVVIS
Subsidiaries pursuant to the Master Establishment and
Transition Agreement, and (ii) Bridge shall be free
to make passive investments in securities of
companies that provide network services in
competition with SAVVIS which, in the case of any
such security, does not constitute more than ten
percent (10%) of the total outstanding amount of such
security.
10.4.2. If any court or tribunal of competent jurisdiction
shall refuse to enforce one or more of the covenants
in this Section 10.4 because the time limit
applicable thereto is deemed unreasonable, it is
expressly understood and agreed that such covenant or
covenants shall not be void but that for the purpose
of such proceedings such time limitation shall be
deemed to be reduced to the extent necessary to
permit the enforcement of such covenant or covenants.
10.4.3. If any court or tribunal of competent jurisdiction
shall refuse to enforce any or all of the covenants
in this Section 10.4 because, taken together, they
are more extensive (whether as to geographic area,
scope of business or otherwise) than is deemed to be
reasonable, it is expressly understood and agreed
between the parties hereto that such covenant or
covenants shall not be void but that for the purpose
of such proceedings the restrictions contained
therein (whether as to geographic area, scope of
business or otherwise) shall be deemed to be reduced
to the extent necessary to permit the enforcement of
such covenant or covenants.
10.4.4. Bridge specifically acknowledges and agrees that the
foregoing covenants are commercially reasonable and
reasonably necessary to protect the interests of
SAVVIS hereunder. Bridge hereby acknowledges that
SAVVIS and its successors and assigns will suffer
irreparable and continuing harm to the extent that
any of the foregoing covenants is breached and that
legal remedies would be inadequate in the event of
any such breach.
11. RIGHTS AND OBLIGATIONS OF SAVVIS
11.1. PROVISION OF THE NETWORKS. SAVVIS shall operate, maintain and
manage the Networks at the Installation Sites using the
8
Acquired Network Facilities in accordance with the Quality of
Service Standards and other terms of this Agreement, including
all Addenda hereto.
11.2. REPRESENTATIONS AND WARRANTIES.
11.2.1. [Intentionally omitted.]
11.2.2. SAVVIS hereby represents and warrants that the terms
hereof do not conflict in any respect whatsoever
with any SAVVIS tariff on file with the Federal
Communications Commission or other regulatory body.
If, during the term of this Agreement, SAVVIS shall
file a contract specific tariff governing the
Networks or any portion thereof, such tariff filing
shall be consistent in all respects with the terms
of this Agreement, and SAVVIS shall give Bridge 10
days advance written notice of making such a tariff
filing and of filing any subsequent modifications
thereto.
11.2.3. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
11.3. So long as Bridge is the beneficial owner of 20% of the
outstanding voting securities of SAVVIS Parent, SAVVIS Parent
shall not, without the prior written consent of Bridge, take
any action or otherwise enter into any agreement, arrangement
or understanding, including without limitation the creation or
issuance of any class of stock or other security, or any
agreement with any shareholder of SAVVIS Parent, the effect of
which would be to provide any shareholder of SAVVIS Parent
with any voting or registration rights superior to the voting
or registration rights of Bridge, other than as required by
law.
11.4. SAVVIS acknowledges that the occurrence of Event of Default by
SAVVIS, arising from either (i) a failure of the Networks to
meet Quality of Service Standards or (ii) a total loss to
Bridge of the use of the Networks, could cause irreparable
harm to Bridge, the amount of which may be difficult to
determine, thus potentially making any remedy at law or in
damages inadequate. SAVVIS, therefore, agrees that Bridge
shall have the right to apply to any court of competent
jurisdiction for injunctive relief upon the occurrence of an
Event of Default by SAVVIS or the occurrence of an event
which, with the passage of time or the giving of notice, could
become an Event of Default by SAVVIS and for any other
appropriate relief. This right shall be in addition to any
other remedy available to Bridge in law or equity. SAVVIS
further agrees that, upon the occurrence of an Event of
Default by SAVVIS, SAVVIS shall pay to Bridge, as liquidated
damages and not as a penalty, an amount equal to the lesser of
(a) the aggregate amounts paid by Bridge to SAVVIS under this
Agreement during the six months preceding such Event of
Default by SAVVIS or (b) $50,000,000; provided, however, that
Bridge may recover liquidated damages under this Section only
for an Event of Default by SAVVIS that occurs (i) prior to any
Event of Default by SAVVIS for which Bridge has claimed
liquidated damages under this Section or under any Local
Network Services, or (ii) more than 36 months following the
most recent Event of Default by SAVVIS for which Bridge has
claimed liquidated damages under this Section or under any
Local Network Services Agreement.
12. LIMITATIONS OF LIABILITY
12.1. Neither party shall be liable to the other for indirect,
incidental, consequential, exemplary, reliance or special
damages, including damages for lost profits, regardless of the
form of action whether in contract, indemnity, warranty,
strict liability or tort, including negligence of any kind
with respect to the Networks or other conduct under this
Agreement.
12.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, including fraud, or (b) injury or death, or damage
to tangible real or tangible personal property or the
environment, when proximately caused by SAVVIS' or Bridge's
negligence or that of their respective agents, subcontractors
or employees. Nothing contained in this Section shall limit
9
SAVVIS' intellectual property indemnification obligations
under Section 16.1 or Bridge's indemnification obligations
with respect to a breach of Section 10.3.
13. EQUIPMENT AND SOFTWARE NOT PROVIDED BY SAVVIS
13.1. SAVVIS shall not be responsible for the installation,
operation or maintenance of equipment or software not provided
by it under this Agreement, nor shall SAVVIS be responsible
for the transmission or reception of information by equipment
or software not provided by SAVVIS hereunder. In the event
that Bridge uses equipment or software not provided by SAVVIS
hereunder in a manner that impairs Bridge's use of the
Networks, Bridge shall not be excused from payment for such
use and SAVVIS shall not be responsible for any failure of the
Networks to meet the Quality of Service Standards resulting
from the use of such equipment or software by Bridge. Upon
notice from SAVVIS that the equipment or software not provided
by SAVVIS under this Agreement is causing or is likely to
cause hazard, interference or service obstruction, Bridge
shall eliminate the likelihood of such hazard, interference or
service obstruction.
13.2. Notwithstanding the foregoing, SAVVIS shall, at no additional
charge, provide all interface specifications for the Networks
reasonably requested by Bridge. SAVVIS shall, upon the receipt
of appropriate specifications from Bridge, inform Bridge of
the compatibility with the Networks of any equipment or
software that Bridge proposes to use in connection therewith,
the effects, if any, of the use of such equipment or software
on the quality, operating characteristics and efficiency of
the Networks, and the effects, if any, of the Networks on the
operating characteristics and efficiency of any such equipment
or software.
14. PROPRIETARY RIGHTS; LICENSE
14.1. SAVVIS hereby grants to Bridge a non-exclusive and
non-transferable license to use all programming and software
necessary for Bridge to use the Networks. Such license is
granted for the term of this Agreement for the sole purpose of
enabling Bridge to use the Networks.
14.2. All title and property rights (including intellectual property
rights) to the Networks (including associated programming and
software) are and shall remain with SAVVIS or the third-party
providers thereof to SAVVIS. Bridge shall not attempt to
examine, copy, alter, reverse engineer, decompile,
disassemble, tamper with or otherwise misuse the Networks,
programming and software.
15. CONFIDENTIALITY
15.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
15.2. Notwithstanding Section 15.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors or
managers of facilities or equipment used by such party) in
need of access to such information for purposes specifically
related to either party's responsibilities under this
Agreement, provided that any disclosure of Confidential
Information under clause (c) shall be made only upon prior
written approval of the other party and subject to the
appropriate assurances that the recipient of such information
shall hold it in strict confidence.
10
15.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the
other party with written certification of such destruction.
15.4. Either party may request in writing that the other party waive
all or any portion of the requesting party's responsibilities
relative to the other party's Confidential Information. Such
waiver request shall identify the affected information and the
nature of the proposed waiver. The recipient of the request
shall respond within a reasonable time and, if it determines,
in its sole discretion, to grant the requested waiver, it will
do so in writing over the signature of an employee authorized
to grant such request.
15.5. Bridge and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right to
apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Section
and for any other appropriate relief. This right shall be in
addition to any other remedy available in law or equity.
15.6. A party requested or ordered by a court or other governmental
authority of competent jurisdiction to disclose another
party's Confidential Information shall notify the other party
in advance of any such disclosure and, absent the other
party's consent to such disclosure, use its best efforts to
resist, and to assist the other party in resisting, such
disclosure. A party providing another party's Confidential
Information to a court or other governmental authority shall
use its best efforts to obtain a protective order or
comparable assurance that the Confidential Information so
provided will be held in confidence and not further disclosed
to any other person, absent the owner's prior consent.
15.7. The provisions of Section 15.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably necessary
in connection with the sale of securities or the performance
or enforcement of this Agreement or any of the obligations
hereof; provided, however, that if the receiving party would
otherwise be required to refer to or describe any aspect of
this Agreement in any of the preceding circumstances, the
receiving party shall use its reasonable efforts to take such
steps as are available under such circumstances (such as by
providing a summary or synopsis) to avoid disclosure of the
financial terms and conditions of this Agreement.
Notwithstanding any provisions of this Agreement to the
contrary, either party may disclose the terms and conditions
of this Agreement in the course of a due diligence review
performed in connection with prospective debt financing or
equity investment by, or a sale to, a third party, so long as
the persons conducting such due diligence review have agreed
to maintain the confidentiality of such disclosure and not to
use such disclosure for any purpose other such due diligence
review.
16. INDEMNIFICATIONS
16.1. SAVVIS shall defend, settle, or otherwise manage at its own
cost and expense any claim or action against Bridge or any of
its directors, officers, employees or assigns for actual or
alleged infringement by the Networks of any patent, copyright,
trademark, trade secret or similar proprietary right of any
third party, except to the extent that such actual or alleged
infringement arises from (i) such actual or alleged
infringement by the Acquired Network Facilities on the
Effective Date or (ii) an act or omission of Bridge or a
Bridge Subsidiary or a vendor or customer of Bridge or a
Bridge Subsidiary or (iii) equipment or software used by
11
Bridge and not provided by SAVVIS. Bridge shall notify SAVVIS
promptly in writing of any such claim or suit and shall
cooperate with SAVVIS in a reasonable way to facilitate the
settlement or defense thereof. SAVVIS further agrees to
indemnify and hold Bridge harmless from and against any and
all liabilities and damages (whether incurred as the result of
a judicial decree or a settlement), and the costs and expenses
associated with any claim or action of the type identified in
this Section (including reasonable attorneys' fees).
16.2. If, as a consequence of a claim or action of the kind
described in Section 16.1, SAVVIS' or Bridge's use of all or
part of any Network is enjoined, SAVVIS shall, at its option
and expense, either: (a) procure for Bridge the right to
continue using the affected Network; (b) modify such Network
so that they are non-infringing, provided that such
modification does not affect the intended use of the Network
as contemplated hereunder. If SAVVIS does not take any of the
actions described in clauses (a) or (b), then Bridge may
terminate the affected portion of such Network, and SAVVIS
shall refund to Bridge any prepaid charges therefor.
16.3. Subject to Section 12, Bridge will defend, indemnify and hold
harmless SAVVIS or any of its directors, officers, employees
or assigns from and against all loss, liability, damage and
expense, including reasonable attorneys' fees, caused by:
(a) claims for libel, slander, invasion of privacy or
infringement of copyright, and invasion and/or
alteration of private records or data arising from
any information, data or messages transmitted over
the Networks by Bridge; and
(b) claims for infringement of patents arising from the
use by Bridge of equipment and software, apparatus
and systems not provided hereunder in connection with
the Networks; and
(c) the violation of any representations, warranties
and covenants made by Bridge in this Agreement.
16.4. Subject to Section 12, SAVVIS will defend, indemnify and hold
harmless Bridge or any of its directors, officers, employees
or assigns from and against all loss, liability, damage and
expense, including reasonable attorneys' fees, caused by:
(a) claims for infringement of patents arising from the
use by SAVVIS of equipment and software, apparatus
and systems not provided by SAVVIS hereunder in
connection with the Networks (other than any Acquired
Network Facilities); and
(b) the violation of any representations, warranties
and covenants made by SAVVIS in this Agreement.
17. DISPUTES
17.1. Except as expressly provided in Schedule 4.1 of this
Agreement, the resolution of any and all disputes arising from
or in connection with this Agreement, whether based on
contract, tort, statute or otherwise, including disputes over
arbitrability and disputes in connection with claims by third
persons ("DISPUTES") shall be exclusively governed by and
settled in accordance with the provisions of this Section 17.
The foregoing shall not preclude recourse to judicial
proceedings to obtain injunctive, emergency or other equitable
relief to enforce the provisions of this Agreement, including
specific performance, and to decide such issues as are
required to be resolved in determining whether to grant such
relief. Resolution of Disputes with respect to claims by third
persons shall be deferred until any judicial proceedings with
respect thereto are concluded.
17.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a binding arbitration clause
under applicable law. Either party may serve process or notice
on the other in any arbitration or litigation in accordance
with the notice provisions hereof. The parties agree not to
disclose any information regarding any Dispute or the conduct
of any arbitration hereunder, including the existence of such
Dispute or such arbitration, to any person or entity other
than such employees or representatives of such party as have a
need to know.
17.3. Either party may commence proceedings hereunder by delivery of
written notice providing a reasonable description of the
Dispute to the other, including a reference to this provision
(the "DISPUTE NOTICE"). Either party may initiate arbitration
of a Dispute by delivery of a demand therefor (the
"ARBITRATION DEMAND") to the other party not sooner than 60
calendar days after the date of delivery of the Dispute Notice
but at any time thereafter. The arbitration shall be conducted
in St. Louis, Missouri.
12
17.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Bridge, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If an
Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
17.5. The arbitration shall be conducted pursuant to such procedures
as the parties may agree or, in the absence of or failing such
agreement, pursuant to the Rules. Notwithstanding the
foregoing, each party shall have the right to inspect the
books and records of the other party that are reasonably
related to the Dispute, and each party shall provide to the
other, reasonably in advance of any hearing, copies of all
documents which such party intends to present in such hearing
and the names and addresses of all witnesses whose testimony
such party intends to present in such hearing.
17.6. All hearings shall be conducted on an expedited schedule, and
all proceedings shall be confidential. Either party may at its
expense make a stenographic record thereof.
17.7. The Arbitrators shall complete all hearings not later than 90
calendar days after the Arbitrators' selection or appointment,
and shall make a final award not later than 30 calendar days
thereafter. The Arbitrators shall apportion all costs and
expenses of the Arbitration, including the Arbitrators' fees
and expenses of experts ("ARBITRATION COSTS") between the
prevailing and non-prevailing parties as the Arbitrators deem
fair and reasonable. In circumstances where a Dispute has been
asserted or defended against on grounds that the Arbitrators
deem manifestly unreasonable, the Arbitrators may assess all
Arbitration Costs against the non-prevailing party and may
include in the award the prevailing party's attorneys' fees
and expenses in connection with any and all proceedings under
this Section 17.
17.8. Either party may assert appropriate statutes of limitation as
a defense in arbitration; provided, that upon delivery of a
Dispute Notice any such statute shall be tolled pending
resolution hereunder.
17.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and SAVVIS shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Networks to
Bridge unless otherwise directed by Bridge. This Section shall
not apply where (a) Bridge is in default under this Agreement
or (b) the dispute or controversy between the parties relates
to harm to the Networks allegedly caused by Bridge and Bridge
does not immediately cease and desist from the activity giving
rise to the dispute or controversy.
18. FORCE MAJEURE
18.1. In no event shall either party be liable to the other for any
failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers (whether
of a party hereto or of others), casualties, accidents or
other causes to the extent that such failure and the
consequences thereof are reasonably beyond the control and
without the fault or negligence of the party claiming excuse.
Each party shall, with the cooperation of the other party, use
reasonable efforts to mitigate the extent of any failure to
perform and the adverse consequences thereof.
18.2. If SAVVIS cannot promptly provide a suitable temporary SAVVIS
alternative to all or part of a Network subject to an
interruption in connection with the existence of a force
majeure condition, Bridge may, at its option and at its own
cost, contract with one or more third parties for the affected
portion of the Network for the shortest commercially available
period likely to cover the reasonably expected duration of the
interruption, and may suspend SAVVIS' provision of such
affected portion for such period. SAVVIS shall not charge
Bridge for the affected portion thus suspended during the
period of suspension. SAVVIS shall resume provision of the
suspended portion of the Network upon the later of the
termination or expiration of Bridge's legally binding
commitments under contracts with third parties for alternative
services or the cessation or remedy of the force majeure
condition.
13
18.3. In the event that a force majeure condition shall continue for
more than 60 days, Bridge may cancel the affected portion of
the Network with no further liability to SAVVIS other than for
obligations incurred with respect to such affected portion
prior to the occurrence of the force majeure condition.
18.4. The consequences arising from existence and continuation of a
force majeure condition, including without limitation any
interruption of the Networks and the exercise by Bridge of its
rights under this Section 18, shall be deemed not to
constitute a breach by either party hereto of any
representations, warranties or covenants hereunder and shall
not be grounds for the exercise of any remedies under this
Agreement, including without limitation remedies under Section
2.2 or Section 7, other than those specified in this Section
18.
19. GENERAL PROVISIONS
19.1. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person or entity other than
the parties and their respective successors and permitted
assigns.
19.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior understandings,
agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to the
subject matter hereof.
19.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. No party
may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
approval of the other party, which consent shall not be
unreasonably withheld.
19.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
19.5. HEADINGS. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
19.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall
be deemed duly given if (and then two business days after) it
is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended
recipient as set forth below:
If to Bridge: Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President
and General Counsel
If to SAVVIS: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President
and General Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the
address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may
change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered
by giving the other party notice in the manner herein set
forth.
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19.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Missouri without giving effect to any choice or conflict of
law provision or rule (whether of the State of Missouri or any
other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Missouri.
19.8. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by SAVVIS and Bridge. No waiver by any party of any
default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent
such occurrence.
19.9. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
19.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
19.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
19.12. Addenda and Schedules. The Addenda and Schedules identified in
this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF,the parties hereto have caused this Network Services
Agreement to be executed as of the date first above written.
SAVVIS COMMUNICATIONS CORPORATION
By_________________________
Name:______________________
Title:_____________________
BRIDGE INFORMATION SYSTEMS, INC.
By_________________________
Name:______________________
Title:_____________________
15
SCHEDULE 2.2
QUALITY OF SERVICE STANDARDS
1. FOR THE COLLECTION NETWORK AND DISTRIBUTION NETWORK:
(a) Between any two Installation Sites on the Collection Network
and the Distribution Network that are connected by fully
redundant circuits provided with the Acquired Network
Facilities there shall be not less than 99.99% end-to-end
availability during each one-month period between such
Installation Sites during the Market Hours at such
Installation Sites.
(b) There shall be delivered not less than 99.99% of all data
packets offered to such Network during each one-month period.
(c) The average round-trip latency period for the Collection
Network and the Distribution Network using the Acquired
Network Facilities during each one-month period shall not
exceed:
(i) 150 milliseconds within each of the following geographic
regions: (i) the United States, (ii) the Americas, (iii)
Europe, and (iv) Asia; and
(ii) 250 millisecond between any two of such geographic
regions.
2. FOR THE OA NETWORK:
(a) Between any two Installation Sites on the OA Network that are
connected by circuits provided with the Acquired Network
Facilities there shall be not less than 99.90% end-to-end
availability during each one-month period between such
Installation Sites during the Market Hours at such
Installation Sites.
(b) There shall be delivered not less than 99.90% of all data
packets offered to the OA Network during each one-month
period.
(c) The average round-trip latency period for the OA Network using
the Acquired Network Facilities for each one-month period
shall not exceed:
(i) 150 milliseconds within each of the following geographic
regions: (i) the United States, (ii) the Americas,
(iii) Europe, and (iv) Asia; and
(ii) 250 millisecond between any two of such geographic
regions.
3. CREDIT AMOUNTS
Amounts to be credited if the Quality of Service Standards are not met
with respect to a particular Installation Site in any month shall be as
follows during the first Agreement Year, according to the connection
speed at such Installation Site:
CONNECTION SPEED MONTHLY CREDIT
T1 *
256 KBS *
128 KBS *
56 KBS *
ISDN *
E1 *
CONFIDENTIAL MATERIALS HAVE BEEN OMMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
16
SCHEDULE 3.1
PRICING
1. DEFINITIONS.
1.1. "BACKBONE LOCAL ACCESS FACILITIES" means the local access line
or other local communications circuit provided by a local
exchange carrier connecting long-haul circuits to a SAVVIS
POP.
1.2. "INITIAL POP THRESHOLD REVENUE" with respect to any
metropolitan area means an amount equal to 2.5 times the sum
of:
(a) (i) * if the POP is built by SAVVIS,
(ii) * if the POP is leased to SAVVIS, plus
(b) the actual cost to SAVVIS of extending two redundant
circuits of the SAVVIS long-haul circuits to a SAVVIS
POP in such metropolitan area, plus
(c) the actual cost to SAVVIS for Backbone Local Access
Facilities connecting the two redundant long-haul
circuits to such SAVVIS POP, plus
(d) the actual cost to SAVVIS of obtaining collocation
and power for such SAVVIS POP.
1.3. "INSTALLATION SITE" means any facility of Bridge or a Bridge
Subsidiary or of vendors or customers of Bridge or a Bridge
Subsidiary at which one or more of the Networks is installed.
1.4. "INSTALLATION SITE LOCAL ACCESS FACILITIES" means the local
access line or other local communications circuit provided by
a local exchange carrier connecting an Installation Site to a
SAVVIS POP.
1.5. "LOCAL ACCESS FACILITIES" means the local access line or other
local communications circuit provided by a local exchange
carrier.
1.6. "POP" means point-of-presence.
1.7. "SUBSEQUENT POP THRESHOLD REVENUE" with respect to any
metropolitan area means an amount equal to 2.5 times the sum
of:
(a) (i) * if the POP is built by SAVVIS, or
(ii) * if the POP is leased by SAVVIS, plus
(b) the actual cost to SAVVIS of connecting a second
switch to an existing switch in such metropolitan
area by means of a DS3 circuit, plus
(c) the actual cost to SAVVIS of obtaining collocation
and power for such second switch.
1.8. "POP SITE" means any Installation Site that accesses a SAVVIS
POP by means of Local Access Facilities.
1.9. "NON-POP SITE" means any Installation Site other than a POP
Site.
17
2. FIRST-YEAR PRICE FOR NETWORKS USING ACQUIRED NETWORK FACILITIES
2.1. For the first Agreement Year in the Initial Term of this
Agreement, Bridge and the Bridge Subsidiaries shall pay SAVVIS
and the SAVVIS Subsidiaries for the Networks using the
Acquired Network Facilities plus the Short-Term Call Assets in
the aggregate amount determined as follows, allocated between
this Agreement and the Local Network Services Agreements
substantially in the form attached as Exhibit A hereto:
(a) The sum of:
(i) the actual cost to Bridge of operating the
Networks as of October 31, 1999; plus
(ii) the actual cost to Bridge of the employees
transferred from Bridge to SAVVIS for the
operation of the Networks, determined on the
basis of the actual salaries of such
employees plus a benefits loading factor to
be mutually agreed upon;
(b) less the actual cost to Bridge of backbone circuits
removed or replaced subsequent to October 31, 1999;
(c) plus, (i) with respect to the Distribution Network, the
actual cost to SAVVIS as of the Effective Date of
backbone circuits added or substituted or used in part
by any party other than Bridge, subsequent to October
31, 1999, multiplied by the proportionate megabit usage
of such circuits by Bridge under this Agreement as of
the Effective Date, and further multiplied by 130%; or
(ii) with respect to the Collection Network and
the OA Network, the actual cost to SAVVIS as of
the Effective Date of backbone circuits added or
substituted subsequent to October 31, 1999,
multiplied by 130%;
(d) plus the actual cost to Bridge of the additional Local
Access Facilities associated with backbone circuits
added subsequent to October 31, 1999.
The pricing under the Local Network Services Agreement shall
be as set forth in this Schedule 3.1, according to the
geographic territory applicable to such Local Network Services
Agreement; provided that the pricing for Installation Sites in
Latin America shall be mutually agreed upon following an
analysis to be conducted by the parties of the costs
pertaining to such Installation Sites. Charges under each such
Local Network Services Agreement shall be billed locally, in
local currency.
3. FIRST-YEAR PRICES AT ADDITIONAL POP SITES
3.1. 3.1A. For the first Agreement Year in the Initial Term of this
Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities in the United States, as
follows:
(a) * per month for each T1 port, reflecting the cost
of equipment, hardware maintenance, the provision of
a diagnostic dial-up line, and the use of the SAVVIS
Backbone, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
3.2. 3.1B. For the first Agreement Year in the Initial Term of this
Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities in Europe, as follows:
(a) an amount per month to be determined on an individual
case basis for each T1 port, reflecting the cost of
equipment, hardware maintenance and the provision of
a diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
18
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
3.3. 3.1C. For the first Agreement Year in the Initial Term of this
Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities in Asia, as follows:
(a) an amount per month to be determined on an individual
case basis for each T1 port, reflecting the cost of
equipment, hardware maintenance and the provision of
a diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
3.4. In the event that Bridge wishes to attach any additional
servers to a router having a single T1 port, or any fraction
thereof, at any POP Site, SAVVIS will provide such service at
the rate of * per month for each such additional server for
the first Agreement Year in the Initial Term of this
Agreement.
3.5. Following the first Agreement Year in the Initial Term of this
Agreement, the rates and charges for the Networks using
Additional Network Facilities at any new POP Site shall be
mutually agreed upon by the parties from time to time and set
forth in an Addendum to this Agreement in the manner set forth
in Section 1.2 of this Agreement and Section 7.1 of this
Schedule. If the parties fail to reach agreement on any such
Addendum prior to the expiration of the Addendum then in
effect, the rates and charges shall be determined by binding
arbitration as provided below.
4. 4A. FIRST-YEAR PRICES FOR ADDITIONAL NON-POP SITES IN THE UNITED
STATES
4.1. 4A.1. 56 KBPS SITES. For the first Agreement Year in the
Initial Term of this Agreement, Bridge shall pay SAVVIS for
the Networks using Additional Network Facilities at any new
Non-POP Site in the United States at which one or more 56 Kbps
ports are provided, as follows:
(a) * per month for each 56 Kbps port, reflecting the
cost of equipment, hardware maintenance, the
provision of a diagnostic dial-up line, and the use
of the SAVVIS Backbone, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
4.2. 4A.2. 128 KBPS SITES. For the first Agreement Year in the
Initial Term of this Agreement, Bridge shall pay SAVVIS for
the Networks using Additional Network Facilities at any new
Non-POP Site at which one or more 128 Kbps ports are provided,
as follows:
(a) * per month for each 128 Kbps port, reflecting the
cost of equipment, hardware maintenance, the
provision of a diagnostic dial-up line, and the use
of the SAVVIS Backbone, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
19
4.3. 4A.3. 256 KBPS SITES. For the first Agreement Year in the
Initial Term of this Agreement, Bridge shall pay SAVVIS for
the Networks using Additional Network Facilities at any new
Non-POP Site at which one or more 256 Kbps ports are provided,
as follows:
(a) * per month for each 256 Kbps port, reflecting the
cost of equipment, hardware maintenance, the
provision of a diagnostic dial-up line, and the use
of the SAVVIS Backbone, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
4.4. 4A.4 ISDN BACK-UP LINE. In the event that Bridge wishes to use
an ISDN back-up line in lieu of full redundancy at any Non-POP
Site at which one or more 56 Kbps ports or 128 Kbps ports are
provided as Additional Network Facilities, SAVVIS will provide
such service at the following rate for the first Agreement
Year in the Initial Term of this Agreement:
(a) * per month for each ISDN line, reflecting the cost
of equipment and the use of the SAVVIS Backbone, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits, basic rate
interface or other means for connecting such
Installation Site to the SAVVIS POP, including
equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
5. 4B. FIRST-YEAR PRICES FOR ADDITIONAL NON-POP SITES IN EUROPE
5.1. 4B.1. 64 KBPS SITES. For the first Agreement Year in the
Initial Term of this Agreement, Bridge shall pay SAVVIS for
the Networks using Additional Network Facilities at any new
Non-POP Site in Europe at which one or more 64 Kbps ports are
provided, as follows:
(a) * per month (* per month in a Distributor
Country) for each 64 Kbps port, reflecting the cost
of equipment, hardware maintenance and the provision
of a diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
5.2. 4B.2. 128 KBPS SITES. For the first Agreement Year in the
Initial Term of this Agreement, Bridge shall pay SAVVIS for
the Networks using Additional Network Facilities at any new
Non-POP Site at which one or more 128 Kbps ports are provided,
as follows:
(a) * per month (* per month in a Distributor
Country) for each 128 Kbps port, reflecting the cost
of equipment, hardware maintenance and the provision
of a diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
20
5.3. 4B.3. 256 KBPS SITES. For the first Agreement Year in the
Initial Term of this Agreement, Bridge shall pay SAVVIS for
the Networks using Additional Network Facilities at any new
Non-POP Site at which one or more 256 Kbps ports are provided,
as follows:
(a) an amount per month to be determined on an individual
case basis for each 256 Kbps port, reflecting the
cost of equipment, hardware maintenance and the
provision of a diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
5.4. 4B.4. E1 SITES. For the first Agreement Year in the Initial
Term of this Agreement, Bridge shall pay SAVVIS for the
Networks using Additional Network Facilities at any new
Non-POP Site at which one or more E1 ports are provided, as
follows:
(a) * per month (* per month in a Distributor
Country) for each E1 port, reflecting the cost of
equipment, hardware maintenance and the provision of
a diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
5.5. 4B.5. ISDN BACK-UP LINE. In the event that Bridge wishes to
use an ISDN back-up line in lieu of full redundancy at any
Non-POP Site at which one or more 64 Kbps ports or 128 Kbps
ports are provided as Additional Network Facilities, SAVVIS
will provide such service at the following rate for the first
Agreement Year in the Initial Term of this Agreement:
(a) * per month (* per month in a Distributor
Country) for each ISDN line, reflecting the cost
of equipment, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits, basic rate
interface or other means for connecting such
Installation Site to the SAVVIS POP, including
equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
6. 4C. FIRST-YEAR PRICES FOR ADDITIONAL NON-POP SITES IN ASIA
6.1. 4C.1. 64 KBPS SITES. For the first Agreement Year in the
Initial Term of this Agreement, Bridge shall pay SAVVIS for
the Networks using Additional Network Facilities at any new
Non-POP Site in the United States at which one or more 64 Kbps
ports are provided, as follows:
(a) * per month ( * per month in a Distributor
Country) for each 64 Kbps port, reflecting the cost
of equipment, hardware maintenance and the provision
of a diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
21
6.2. 4C.2. 128 KBPS SITES. For the first Agreement Year in the
Initial Term of this Agreement, Bridge shall pay SAVVIS for
the Networks using Additional Network Facilities at any new
Non-POP Site at which one or more 128 Kbps ports are provided,
as follows:
(a) * per month ( * per month in a Distributor
Country) for each 128 Kbps port, reflecting the cost
of equipment, hardware maintenance and the provision
of a diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
6.3. 4C.3. 256 KBPS SITES. For the first Agreement Year in the
Initial Term of this Agreement, Bridge shall pay SAVVIS for
the Networks using Additional Network Facilities at any new
Non-POP Site at which one or more 256 Kbps ports are provided,
as follows:
(a) an amount per month to be determined on an individual
case basis for each 256 Kbps port, reflecting the
cost of equipment, hardware maintenance and the
provision of a diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
6.4. 0X.0 XXXX BACK-UP LINE. In the event that Bridge wishes to use
an ISDN back-up line in lieu of full redundancy at any Non-POP
Site at which one or more 56 Kbps ports or 128 Kbps ports are
provided as Additional Network Facilities, SAVVIS will provide
such service at the following rate for the first Agreement
Year in the Initial Term of this Agreement:
(a) * per month for each ISDN line, reflecting the cost
of equipment and the use of the SAVVIS Backbone, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits, basic rate
interface or other means for connecting such
Installation Site to the SAVVIS POP, including
equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
7. REDUNDANCY AND BANDWIDTH USAGE
7.1. The amount due to SAVVIS from Bridge for providing the
Networks using Additional Network Facilities at any new
Installation Site having full redundancy will be two times the
amount due under Sections 3.1, 4A, 4B or 4C above with respect
to a single port.
7.2. Bandwidth usage of any port provided to Bridge by SAVVIS under
this Agreement, including both the Acquired Network Facilities
and any Additional Network Facilities, shall not exceed 128
Kbps. In the event that Bridge wishes to obtain Bandwidth
usage in excess of 128 Kbps on any such port, such usage shall
be provided for in an Addendum hereto mutually agreed upon by
the parties in the manner set forth in Section 1.2 of the
Agreement.
8. CONVERSION TO POP SITES AND INSTALLATION OF SECOND SWITCH
8.1. In the event that the aggregate amount that would be paid by
Bridge to SAVVIS with respect to Non-POP Sites specified by
Bridge in a metropolitan area if such sites were converted to
POP Sites equals or exceeds the Initial POP Threshold Revenue
per month applicable to such metropolitan area, then, upon
written request from Bridge, SAVVIS shall (i) install a switch
in a SAVVIS POP in such metropolitan area capable of being
accessed by means of a connection using only Installation Site
Local Access Facilities, (ii) extend the SAVVIS Backbone to
such SAVVIS POP with two redundant circuits, and (iii) convert
such Non-POP Sites to POP Sites.
22
8.2. In the event that, following the installation by SAVVIS of a
switch and the conversion of Non-POP Sites to POP Sites
pursuant to Section 6.1 above, the aggregate amount that would
be paid by Bridge to SAVVIS with respect to additional Non-POP
Sites in a specified metropolitan area if such sites were
converted to POP Sites equals or exceeds the Subsequent POP
Threshold Revenue per month applicable to such metropolitan
area, then, upon written request from Bridge, SAVVIS shall (i)
install a second switch in a SAVVIS POP in such metropolitan
area capable of being accessed by means of a connection using
only Installation Site Local Access Facilities, (ii) connect
the two switches by means of a circuit having appropriate
transmission capacity, and (iii) convert such additional
Non-POP Sites to POP Sites.
9. DETERMINATION OF RATES AND CHARGES AFTER FIRST AGREEMENT YEAR
9.1. Following the first Agreement Year in the Initial Term of this
Agreement, the rates and charges for the Networks and any
Additional Network Facilities as shall be mutually agreed upon
by the parties from time to time in an Addendum to this
Agreement in the manner set forth in Section 1.2 of this
Agreement; provided that the charge for any backbone circuit
in the Distribution Network that is not used exclusively for
the carriage of Bridge traffic under this Agreement shall be
charged to Bridge according to the actual cost to SAVVIS of
such backbone circuit multiplied by the proportionate megabit
usage of such circuits by Bridge under this Agreement as of
the Effective Date, and further multiplied by *. If the
parties fail to reach agreement on any such Addendum prior to
the expiration of the Addendum then in effect, the rates and
charges shall be determined by binding arbitration, as
follows:
9.2. The arbitration shall be conducted by a single arbitrator
jointly selected by the parties, who shall be an attorney
experienced and knowledgeable in the tariffs and pricing of
telecommunications services (the "Arbitrator"). If the parties
are unable to agree on the selection of the Arbitrator within
30 days, either party may apply to the United States District
Court for the Eastern District of Missouri or to the Circuit
Court of St. Louis County for the appointment of the
Arbitrator.
(b) Within 10 days following the appointment of the
Arbitrator, each party shall submit to the Arbitrator
such party's best and final offer for the rates and
charges to be set forth in such Addendum.
(c) The Arbitrator must select the offer of one party or
the other as being closer to the Arbitrator's own
assessment of what an independent vendor would charge
for services similar in nature and volume to those to
be covered by such Addendum (the "INDEPENDENT VENDOR
PRICE").
(d) The decision of the Arbitrator shall be final and
binding on the parties and shall be incorporated in
this Agreement as an Addendum hereto.
(e) Each party shall bear its own costs in conducting the
arbitration, and the non-prevailing party shall pay
the fees and expenses of the Arbitrator.
9.3. At the time any Addendum is entered into with respect to the
rates and charges for any POP Site, the amount charged to
Bridge for the T-1 ports at such Installation Site shall be
not more than the Independent Vendor Price for providing such
ports at such Installation Site, as mutually agreed by the
parties or as determined by the Arbitrator under Section 8.1,
reduced by 75% of the excess, if any, of the Independent
Vendor Price for providing such ports over the actual cost to
SAVVIS of providing such ports at such Installation Site.
10. MINIMUM ANNUAL COMMITMENT
10.1. If the aggregate amounts paid by Bridge to SAVVIS for the
Networks hereunder for any Agreement Year during the Initial
Term of this Agreement, using not only the Acquired Network
Facilities but also any Additional Network Facilities, is less
than the Minimum Annual Commitment (as defined below), then
the amount of such deficiency shall be payable by Bridge to
SAVVIS upon the receipt by Bridge of an invoice therefor, in
accordance with Section 5 of the Agreement.
23
10.2. THE "MINIMUM ANNUAL COMMITMENT" shall mean:
(a) With respect to the first Agreement Year during the
Initial Term, the amount set forth in Section 2.1
of this Schedule 3.1;
(b) With respect to the second Agreement Year during the
Initial Term, 110% of the amount set forth in Section
2.1 of this Schedule 3.1;
(c) With respect to the third Agreement Year during the
Initial Term, 120% of the amount set forth in Section
2.1 of this Schedule 3.1;
(d) With respect to the fourth, fifth and sixth Agreement
Years during the Initial Term, an amount equal to 80%
of the total amount paid by Bridge and all Bridge
Subsidiaries during such Agreement Year to SAVVIS,
SAVVIS Subsidiaries and third parties for Internet
Protocol backbone and other data transport services;
(e) With respect to the seventh, eighth, ninth and tenth
Agreement Years during the Initial Term, an amount
equal to 60% of the total amount paid by Bridge and
all Bridge Subsidiaries during such Agreement Year to
SAVVIS, SAVVIS Subsidiaries and third parties for
Internet Protocol backbone and other data transport
services.
10.3. With respect to the fourth Agreement Year and each Agreement
Year thereafter, SAVVIS shall have the right, at reasonable
times and on reasonable notice, but not more often than once
during any Agreement Year, to audit the books and records of
Bridge and the Bridge Subsidiaries in order to determine the
total amount paid by Bridge and the Bridge Subsidiaries during
an Agreement Year to SAVVIS, SAVVIS Subsidiaries and third
parties for Internet Protocol backbone and other data
transport services. Such audits may be conducted either by
SAVVIS personnel or by outside auditors retained by SAVVIS for
such purpose, subject to the consent of Bridge to such outside
auditors, such consent not to be unreasonably withheld or
delayed. Such audits shall be conducted at the expense of
SAVVIS, including any additional cost to Bridge in obtaining
the cooperation of Bridge's outside auditors that may be
required; provided, that if the actual total amount paid by
Bridge and the Bridge Subsidiaries during an Agreement Year to
SAVVIS, SAVVIS Subsidiaries and third parties for Internet
Protocol backbone and other data transport services is
determined by such audit to be 105% or more of the amount
initially claimed by Bridge with respect to such Agreement
Year, then the cost of such audit shall be borne by Bridge.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
SCHEDULE 5.2
INSTALLATION SITE REMOVAL AMOUNTS
Amounts by which each monthly invoice from SAVVIS to Bridge shall be
reduced resulting from the removal of a particular Installation Site
shall be as follows during the first Agreement Year, according to the
connection speed at such Installation Site:
UNITED STATES:
INSTALLATION SITES INSTALLATION SITES
EXISTING ADDED AFTER
CONNECTION SPEED AS OF OCTOBER 31, 1999 OCTOBER 31, 1999
T1 * *
256 KBS * *
128 KBS * *
56 KBS * *
ISDN * *
EUROPE:
INSTALLATION SITES INSTALLATION SITES
AS OF OCTOBER 31, 1999 ADDED AFTER DISTRIBUTOR COUNTRY
CONNECTION SPEED OCTOBER 31, 1999
T1 * * *
256 KBS * * *
128 KBS * * *
64 KBS * * *
ISDN * * *
E1 * * *
24
ASIA:
INSTALLATION SITES INSTALLATION SITES
AS OF OCTOBER 31, 1999 ADDED AFTER DISTRIBUTOR COUNTRY
CONNECTION SPEED OCTOBER 31, 1999
T1 * * *
256 Kbs * * *
128 Kbs * * *
56 Kbs * * *
ISDN * * *
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
25
EXHIBIT A
FORM OF LOCAL
NETWORK SERVICES AGREEMENT
This LOCAL NETWORK SERVICES AGREEMENT (the "Agreement") is effective as
of ___________, 2000 (the "Effective Date") between [local SAVVIS entity], a
[limited liability company] incorporated under the laws of [country ] ("SAVVIS")
and [local Bridge/Telerate entity], a [limited liability company] incorporated
under the laws of [country] ("Customer").
RECITALS
A. Customer is engaged in the business of collecting and distributing
various financial, news and other data in [country] (the "JURISDICTION").
B. SAVVIS is engaged in the business of providing Internet Protocol
backbone and other data transport services in the Jurisdiction.
C. SAVVIS Parent and [Bridge Parent]/[Telerate Parent] have entered
into the Network Services Agreement for the provision and receipt of similar
services on a world-wide basis at the parent level as are being provided and
received by the parties to this Agreement within the Jurisdiction.
D. Together with this Agreement, the SAVVIS is entering into certain
other agreements with Customer, or Affiliates of the Customer, related to their
operations in the Jurisdiction, including Local Transfer Agreements, Equipment
Collocation Permits, and Local Administrative Services Agreements.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Local Network Services
Agreement by and between SAVVIS and Customer, including all
addenda to this Agreement entered into in the manner set forth
herein (each an "ADDENDUM" and collectively the "ADDENDA").
This Agreement shall be interpreted wherever possible to avoid
conflicts between the Sections hereof and the Attachments,
provided that if such a conflict shall arise, the Attachments
shall control.
1.2. Whenever it is provided in this Agreement for a matter to be
mutually agreed upon by the parties and set forth in an
Addendum to this Agreement, either party may initiate the
process of determining such matter by submitting a proposed
outline or contents of such Addendum to the other party. Each
party shall appoint a primary contact and a secondary contact
for the completion of such Addendum, who shall be the contact
points for every issue concerning such Addendum and who shall
be informed of the progress of the project. The names of the
contacts will be exchanged in writing by the parties. Using
the contacts, the parties shall work together in good faith
with such diligence as shall be commercially reasonable under
the circumstances to complete such Addendum, provided,
however, that neither party shall be obligated to enter into
such an Addendum. Upon the completion of such Addendum, it
shall be set forth in a written document and executed by the
parties and shall become a part of this Agreement and shall be
deemed to be incorporated herein by reference.
1.3. Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined
terms shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included"
and "including" shall not be construed as terms of limitation.
Capitalized terms not otherwise defined herein have the
meanings assigned to such terms in the Network Services
Agreement.
"ACQUIRED NETWORK FACILITIEs" means the assets and contracts
for the provision of Internet Protocol backbone and other data
transport services within the Jurisdiction to the extent
acquired by SAVVIS pursuant to the Local Transfer Agreement
between Customer, or Affiliates of the Customer, and SAVVIS.
"ADDITIONAL NETWORK FACILITIES" means any assets and contracts
of SAVVIS for the provision of Internet Protocol backbone and
other data transport services other than the Acquired Network
Facilities.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" means a period of 12 months beginning on the
Effective Date and each subsequent anniversary thereof.
["BRIDGE PARENT" means Bridge Information Systems, Inc.,
a Missouri corporation, and its successors and assigns.]
"CONFIDENTIAL INFORMATION" means all information concerning
the business of Customer, SAVVIS or any third party doing
business with either of them that may be obtained from any
source (i) by SAVVIS by virtue of its performance under this
Agreement or (ii) by Customer by virtue of its use of the
Networks. Such information shall also include the terms of
this Agreement (and negotiations and proposals from one party
to the other related directly thereto), network designs and
design recommendations, tools and programs, pricing, methods,
processes, financial data, software, research, development,
strategic plans or related information. All such information
disclosed prior to the execution of this Agreement shall also
be considered Confidential Information for purposes of this
Agreement.
Confidential Information shall not include information that:
(a) is already rightfully known to the receiving
party at the time it is obtained by such
party, free from any obligation to keep such
information confidential; or
(b) is or becomes publicly known through no
wrongful act of the receiving party; or
(c) is rightfully received by the receiving
party from a third party without restriction
and without breach of this Agreement.
"CUSTOMER" means [local Bridge/Telerate entity], a [limited
liability company] incorporated under the laws of [country],
and its successors and assigns.
"EFFECTIVE DATE" means the date set forth in the Preamble of
this Agreement.
"EVENT OF DEFAULT BY SAVVIS" has the meaning assigned to such
term in Section 7.1 of this Agreement.
"INITIAL TERM" means a period of ten consecutive Agreement
Years beginning on the Effective Date.
"INSTALLATION SITE" means any facility of Customer or of
vendors or customers of Customer at which one or more of the
Networks is installed.
"LOCAL EXCHANGE CARRIER" means the local telecommunications
provider(s) from which SAVVIS leases the lines it makes
available to Customer.
"LOCAL [TELERATE]/[Bridge] Network Services Agreement" means a
local network services agreement pursuant to which SAVVIS
shall provide Internet Protocol backbone and other data
transport services to an Affiliate of [Telerate
Parent]/[Bridge Parent] operating in the Jurisdiction.
"MARKET HOURS" means, with respect to any Installation Site,
the period of time beginning two hours before the time at
which trading opens on the principal securities exchange or
automated quotation system designated by Customer in writing
from time to time as being used by the purchasers and sellers
of securities at such Installation Site, and ending two hours
after the time at which such trading ceases to be conducted.
"NETWORK" and "NETWORKS" have the meaning assigned to such
terms in Section 2.1 of this Agreement.
"NETWORK SERVICES AGREEMENT" means the Network Services
Agreement between SAVVIS Parent and [Bridge Parent]/[Telerate
Parent], effective as of _________, 2000.
"POP" means point-of-presence.
"QUALITY OF SERVICE STANDARDS" means the standards for the
performance of the Networks contained in Schedule 2.2 hereto
or an Addendum to this Agreement.
"SAVVIS" means [local SAVVIS entity], a [limited liability
company] incorporated under the laws of [country ], and its
successors and assigns.
"SAVVIS PARENT" means SAVVIS Communications Corporation, a
Missouri corporation, its successors and assigns.
"SECURITIES EXCHANGE ACT" means the United States Securities
Exchange Act of 1934, as amended.
"TAIL CIRCUIT" means the access line or other communications
circuit from the SAVVIS POP to an Installation Site.
["TELERATE PARENT" means Telerate Holdings, Inc., a Delaware
corporation, and its successors and assigns.]
"TRANSITION PERIOD" has the meaning assigned to such term in
Section 6.3 of this Agreement.
2. THE NETWORKS AND QUALITY OF SERVICE STANDARDS
2.1. SAVVIS agrees to use the Acquired Network Facilities to
provide to Customer the following managed packet-data
transport networks, including the operation, management and
maintenance thereof:
(a) that portion of a global office-automation network
located in the Jurisdiction, providing connectivity
between the offices of Customer, Bridge Parent and
Affiliates of Bridge Parent (the "OA NETWORK"),
(b) that portion of a global data collection network
located in the Jurisdiction (the "COLLECTION
NETWORK") and
(c) that portion of a global data distribution network
located in the Jurisdiction (the "DISTRIBUTION
NETWORK"),
which shall be referred to in this Agreement
collectively as the "Networks" and individually as a
"Network."
2.2. Each Network shall be operated, managed and maintained by
SAVVIS. SAVVIS may, but shall not be obligated to, use
facilities of SAVVIS other than the Acquired Network
Facilities to provide all or any part of any Network.
Beginning on the first anniversary of the Effective Date and
thereafter, each Network shall be operated, managed and
maintained by SAVVIS according to the Quality of Service
Standards set forth in Schedule 2.2 hereof, and SAVVIS shall
be responsible for monitoring the performance of the Networks
with respect to the Quality of Service Standards and shall
provide Customer with monthly reports of such performance. If
the Quality of Service Standards are not met with respect to a
particular Installation Site in any month, Customer shall be
entitled to receive, upon written request by Customer within
30 days of its receipt of the performance report for such
Installation Site for such month, a credit in the amount set
forth on Schedule 2.2 attached hereto, which amount shall be
deemed to be one month's charges applicable to such
Installation Site under this Agreement with respect to such
month; provided, however, that Customer shall not be entitled
to such credit to the extent that the failure to meet the
Quality of Service Standards with respect to such Installation
Site is due to (i) an act or omission of Customer or a vendor
or customer of Customer or (ii) equipment or software used by
Customer and not provided by SAVVIS. Not more than one credit
of one month's charges shall be given for a particular
Installation Site for a particular month. For all purposes of
this Agreement, including without limitation the determination
of an Event of Default by SAVVIS, the Quality of Service
Standards applicable to a particular Installation Site in any
month shall be deemed to have been met unless Customer, within
30 days of its receipt of the performance report for such
Installation Site for such month, requests in writing a credit
as set forth above with respect to such Installation Site for
such month.
2.3. [Intentionally omitted.]
2.4. In providing Additional Network Facilities, SAVVIS agrees to
use its best efforts to expedite the provisioning of the
circuits for such Additional Network Facilities in those
instances in which SAVVIS is responsible for provisioning such
circuits, and to use its best efforts to avoid single points
of failure in the engineering design of such Additional
Network Facilities, consistent with the level of redundancy
specified in the applicable Addendum.
2.5. Throughout the term of this Agreement, SAVVIS shall use its
reasonable best efforts to continue to meet the requests of
Customer to enhance the total capacity, geographic extension
and performance quality of the Networks, and to maintain its
research and development effort at a level appropriate to
sustain the ability of Customer to compete on the basis of the
quality of the Networks.
3. RATES AND CHARGES
3.1. Customer shall pay SAVVIS for the Networks using the Acquired
Network Facilities and Additional Network Facilities according
to the rates and charges set forth in Schedule 3.1 of the
Network Services Agreement.
3.2. The parties recognize that certain savings might be obtained
by consolidating the multiple Local Access Facilities that are
provided at such building locations on the Effective Date. In
the event that SAVVIS consolidates the multiple Local Access
Facilities at one or more of such building locations and
obtains cost savings as a result thereof, the parties will
mutually agree within 30 days following such consolidation on
the manner in which such savings shall be shared as follows:
(a) between SAVVIS and Customer, if only
Customer uses those consolidated Local
Access Facilities; or
(b) between SAVVIS, Customer and the Affiliate
of [Telerate Parent]/[Bridge Parent] that is
a party to the Local [Telerate]/[Bridge]
Network Services Agreement, if both Customer
and such Affiliate use those consolidated
Local Access Facilities.
3.3. For any Installation Site to which SAVVIS is providing
services both under this Agreement and a Local
[Telerate]/[Bridge] Network Services Agreement, the rates and
charges applicable to such Installation Site under this
Agreement shall be one-half of the rates and charges that
would otherwise be applicable to such Installation Site under
this Agreement.
4. PROVISION OF TAIL CIRCUITS
4.1. SAVVIS shall use its reasonable efforts to provide a Tail
Circuit to Customer by contracting with the Local Exchange
Carrier for access to the Tail Circuit and causing the Tail
Circuit to be operated, managed, and maintained as necessary
to provide access thereto to Customer. SAVVIS does not
guarantee or warrant the performance of the Tail Circuit or
the performance by the Local Exchange Carrier of its
obligations under any contract between SAVVIS and the Local
Exchange Carrier, applicable laws and regulations, or
standards of the industry.
4.2. Customer shall not use the Tail Circuit in any way that might
cause SAVVIS to violate the terms and conditions under which
access to the Tail Circuit is provided by the Local Exchange
Carrier, whether such terms and conditions be contractual,
regulatory, or other.
4.3. Customer shall be responsible for only that portion of SAVVIS'
costs attributable to Customer's own access to and use of the
Tail Circuit. In the event that SAVVIS provides access to any
third party or parties, Customer and SAVVIS will follow the
procedure set forth in Section 1.2 above in order to establish
a mutually agreed upon method or formula for determining the
amount to be charged to Customer, generally based on a pro
rata allocation of SAVVIS' total costs among all its customers
and other relevant considerations and/or fair and reasonable
adjustments in light of the circumstances at that time.
5. INVOICES
5.1. The amounts due to SAVVIS from Customer for the installation,
operation, management and maintenance of the Networks shall be
billed monthly in advance. All items on invoices not the
subject of a bona fide dispute shall be payable by Customer in
[local currency] within 30 days from the date of receipt of
the invoice. All amounts not in dispute are subject to
interest charges of 1-1/2 percent that will accrue daily on
all amounts not paid within 30 days of the date of receipt of
the invoice.
5.2. At any time and from time to time, Customer may, by written
notice to SAVVIS, have one or more Installation Sites removed
from the Networks. Each monthly invoice from SAVVIS to
Customer shall reflect a reduction in the amount charged to
Customer for the Networks resulting from any such removal of
Installation Sites. In the case of any Installation Site
removed from the Acquired Network Facilities, such reduction
shall be the sum of:
(a) the actual cost of the Local Access Facilities
connecting the Acquired Network Facilities to such
Installation Site, effective as of such time as
SAVVIS is no longer required to pay such costs, and
(b) the amounts set forth on Schedule 5.2 of the Network
Services Agreement, which are deemed to be one
month's charges applicable to such Installation Site
under this Agreement with respect to such month
during the first Agreement Year, according to the
geographic location and connection speed at such
Installation Site, effective as of such time as such
Installation Site is disconnected from the Networks.
5.3. Customer shall pay any sales, use, federal excise, utility,
gross receipts, state and local surcharges, value added and
similar taxes, charges or levies lawfully levied by a duly
constituted taxing authority against or upon the Networks. In
the alternative, Customer shall provide SAVVIS with a
certificate evidencing Customer's exemption from payment of or
liability for such taxes. All other taxes, charges or levies,
including any ad valorem, income, franchise, privilege or
occupation taxes of SAVVIS shall be paid by SAVVIS.
5.4. Bona fide disputes concerning invoices shall be referred to
the parties' respective representatives who are authorized to
resolve such matters. Any amount to which Customer is entitled
as a result of the resolution of a billing dispute shall be
credited promptly to Customer's account. Any amount to which
SAVVIS is entitled as a result of the resolution of a billing
dispute shall be paid promptly to SAVVIS.
5.5. Against the amounts owed by Customer to SAVVIS under this
Agreement, Customer shall have the right to offset any amounts
owed by SAVVIS to Customer under this Agreement, or otherwise,
including without limitation any amounts paid by Bridge Parent
on behalf of SAVVIS under guarantees by Bridge Parent of
obligations of SAVVIS.
6. TERM AND EXTENSIONS
6.1. This Agreement shall commence on the Effective Date and shall
continue in full force and effect for the Initial Term unless
terminated or extended in accordance with the provisions
hereof.
6.2. The term of this Agreement may be extended by Customer for one
additional five-year period by giving SAVVIS written notice
not less than one year before the scheduled expiration of the
Initial Term.
6.3. Upon the termination of this Agreement in accordance with its
scheduled expiration or by Customer pursuant to Section 7,
SAVVIS will continue to provide the Networks in accordance
with the terms and conditions herein (excluding the Minimum
Annual Commitment) for a period of up to five years after the
effective date of termination (the "TRANSITION PERIOD").
During the Transition Period, Customer shall pay SAVVIS for
the use of the Networks at the rates in effect at the
effective date of termination. If Customer has not completely
transitioned from its use of the Networks after the Transition
Period, SAVVIS will provide the Networks at SAVVIS' then
current list rates. SAVVIS and its successor will cooperate
with Customer until Customer has completely migrated to
another provider.
6.4. The above provisions of this Section 6 notwithstanding, the
term of this Agreement, including the Initial Term and any
extension provided under Section 6.2, and the Transition
Period shall not extend beyond the term or the transition
period of the Network Services Agreement.
7. TERMINATION BY CUSTOMER
7.1. An "EVENT OF DEFAULT BY SAVVIS" shall be deemed to occur if:
(a) SAVVIS has failed to a material degree to perform or
comply with or has violated any material
representation, warranty, term, condition or
obligation of SAVVIS under this Agreement, and SAVVIS
has failed to cure such failure or violation within
60 days after receiving notice thereof from Customer;
or
(b) SAVVIS becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(c) an Event of Default by SAVVIS occurs under the Local
[Telerate]/[Bridge] Network Services Agreement or
SAVVIS Parent defaults under the terms of the Network
Services Agreement.
7.2. Customer shall have the right to terminate this Agreement,
with no liability to SAVVIS other than for charges (less any
applicable credits) for the Networks provided prior to such
termination, if:
(a) Customer provides written notice to SAVVIS, at any
time after the ninth anniversary of the Effective
Date, of Customer's intent to terminate, such
termination to be effective not less than one year
following the date of such notice; or
(b) Customer provides 10 days written notice of its
intent to terminate in the event that an Event
of Default by SAVVIS occurs.
7.3. For purposes of Section 7.1(a), if the Quality of Service
Standards are not met with respect to a particular
Installation Site in any month, SAVVIS shall be deemed to have
cured such failure within 60 days if the Quality of Service
Standards are met with respect to such Installation Site in
the following month. The parties acknowledge and agree that
the failure of the Quality of Service Standards to be met with
respect to one or more Installation Sites in one or more
months may, but does not necessarily, constitute a failure by
SAVVIS to a material degree to perform or comply with or a
violation to a material degree of any material representation,
warranty, term, condition or obligation of SAVVIS under this
Agreement.
7.4. As provided in Section 2.2, for all purposes of this
Agreement, including without limitation the determination of
an Event of Default by SAVVIS under this Section, the Quality
of Service Standards applicable to a particular Installation
Site in any month shall be deemed to have been met unless
Bridge, within 30 days of its receipt of the performance
report for such Installation Site for such month, requests in
writing a credit as set forth in Section 2.2 with respect to
such Installation Site for such month.
8. TERMINATION BY SAVVIS
8.1. SAVVIS shall have the right to terminate this Agreement if:
(a) Customer has failed to pay any invoice that is not
the subject of a bona fide dispute within 60 days of
the date on which such payment is due and SAVVIS has
provided Customer with written notice thereof,
provided that Customer shall have a further 30 days
from the time it receives such notice from SAVVIS of
nonpayment to cure any such default;
(b) SAVVIS provides 10 days written notice of its intent
to terminate in the event that Customer has failed to
perform or comply with or has violated any material
representation, warranty, term, condition or
obligation of Customer under this Agreement, and
Customer has failed to cure such failure or violation
within 60 days after receiving notice thereof from
SAVVIS; or
(c) Customer becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay debts when due; or
(d) SAVVIS becomes entitled to terminate the Local
[Telerate]/[Bridge] Network Services Agreement or
SAVVIS Parent becomes entitled to terminate the
Network Services Agreement.
8.2. Notwithstanding the provisions of Section 8.1(b) above, SAVVIS
shall not have the right to terminate this Agreement under
Section 8.1(b) solely for a failure by Customer to perform or
comply with, a violation by Customer of, the obligations of
Customer under Section 15 (Confidentiality) of this Agreement,
without prejudice, however, to such rights as SAVVIS may have
pursuant to such Section and to such rights and remedies to
which SAVVIS may be entitled, at law or in equity, as the
result of an actual or threatened breach by Customer of such
Section.
9. ACCEPTANCE OF ADDITIONAL NETWORK FACILITIES
9.1. Upon the installation of Additional Network Facilities at any
Installation Site, SAVVIS shall conduct appropriate tests to
establish that such Additional Network Facilities perform in
accordance with mutually agreed upon acceptance criteria
("ACCEPTANCE CRITERIA") set forth in the applicable Addendum
entered into pursuant to Section 2.4, and shall promptly
inform Customer of such test results. If test results show
that the Additional Network Facilities are performing in
accordance with the Acceptance Criteria, Customer shall be
deemed to accept the Additional Network Facilities at the
Installation Site immediately.
9.2. If SAVVIS' tests establish that newly installed Additional
Network Facilities at the Installation Site do not perform in
accordance with the mutually agreed upon Acceptance Criteria,
then SAVVIS shall immediately and diligently exert its best
efforts to bring the Additional Network Facilities at such
Installation Site into compliance. SAVVIS shall not xxxx
Customer for the Additional Network Facilities at such
Installation Site until the test results show that the
Additional Network Facilities are performing in accordance
with the Acceptance Criteria.
9.3. Upon repair or restoration of any part of the Networks, SAVVIS
shall conduct appropriate tests to establish that the Networks
perform in accordance with mutually agreed upon Acceptance
Criteria and shall promptly inform Customer of such test
results.
10. RIGHTS AND OBLIGATIONS OF CUSTOMER
10.1. SITE PREPARATION. For the installation of Additional Network
Facilities, Customer shall, at its own expense, provide all
necessary preparations of each Installation Site in accordance
with the requirements to be mutually agreed upon by the
parties and set forth in an Addendum hereto, including inside
wiring, demarcation extension and rack mount accessories.
Customer shall ensure that Customer-provided equipment is
on-site by the scheduled installation date. If SAVVIS is
required to reschedule the installation of Customer-provided
equipment because it is not on-site by the scheduled
installation date, Customer shall pay SAVVIS to redispatch
installation personnel.
10.2. PROPER USE OF NETWORKS.
10.2.1. Customer shall use any equipment provided by SAVVIS
in connection with the Networks in accordance with
its documentation, which documentation shall be
provided by SAVVIS at no additional charge. Unless
otherwise provided herein, upon the termination of
this Agreement Customer shall surrender to SAVVIS
the equipment provided by SAVVIS, in good working
order, ordinary wear and tear excepted.
10.2.2. Customer shall be liable for damages to the Networks
caused by the negligence or willful acts or
omissions of Customer's officers, employees, agents
or contractors, for loss through theft or vandalism
of the Networks at the Installation Site, and for
damages to the Networks caused by the use of
equipment or supplies not provided hereunder or not
otherwise authorized by SAVVIS.
10.2.3. Customer shall neither permit nor assist others to
use the Networks for any purpose other than that for
which they are intended, nor fail to maintain a
suitable environment specified by SAVVIS in the
applicable schedule, nor alter, tamper with, adjust
or repair the Networks. Any such alteration,
tampering, adjustment or repair by Customer shall
relieve SAVVIS from any liability or obligation
hereunder (including any warranty or indemnity
obligation) relating to the affected Network, and
Customer shall be liable to SAVVIS for any
documented direct costs incurred by SAVVIS as a
result of such actions.
10.3. ABUSE OR FRAUDULENT USE OF NETWORKS. Customer shall neither
permit nor assist others to abuse or fraudulently use the
Networks, or to use the Networks for any unauthorized or
illegal purposes, including:
(a) obtaining or attempting to obtain service by any
fraudulent means or device to avoid payment; or
(b) accessing, altering or destroying any information of
another party by any fraudulent means or device, or
attempting to do so; or
(c) using the Networks so as to interfere with the use of
the SAVVIS network by other SAVVIS customers or
authorized users or in violation of law or in support
of any unlawful act; or
(d) using the Networks for voice communications over a
private network in jurisdictions where such use is
not allowed.
Notwithstanding the provisions of Section 8, upon the breach
of this Section 10.3 by Customer, SAVVIS shall have the right
to terminate this Agreement immediately upon written notice to
Customer.
10.4. COVENANT NOT TO COMPETE.
10.4.1. As an inducement to SAVVIS to enter into this
Agreement, which Customer acknowledges is of benefit
to it, and in consideration of the promises and
representations of SAVVIS under this Agreement,
Customer covenants and agrees that during the term
of this Agreement and for a period of five years
thereafter, neither Customer nor any of its
successors or assigns will, directly or indirectly,
engage in, or have any interest in any other person,
firm, corporation or other entity engaged in, any
business activities anywhere in the world
competitive with or similar or related to the
packet-data transport network services provided by
SAVVIS under this Agreement; provided, however, that
(i) Customer shall be free to continue to use the
Call Assets and the satellite networks currently
used by Customer, until such Call Assets or
satellite networks have been acquired by SAVVIS,
SAVVIS Parent or Affiliates of SAVVIS Parent, and
(ii) Customer shall be free to make passive
investments in securities of companies that provide
network services in competition with SAVVIS which,
in the case of any such security, does not
constitute more than ten percent (10%) of the total
outstanding amount of such security.
10.4.2. If any court or tribunal of competent jurisdiction
shall refuse to enforce one or more of the covenants
in this Section 10.4 because the time limit
applicable thereto is deemed unreasonable, it is
expressly understood and agreed that such covenant
or covenants shall not be void but that for the
purpose of such proceedings such time limitation
shall be deemed to be reduced to the extent
necessary to permit the enforcement of such covenant
or covenants.
10.4.3. If any court or tribunal of competent jurisdiction
shall refuse to enforce any or all of the covenants
in this Section 10.4 because, taken together, they
are more extensive (whether as to geographic area,
scope of business or otherwise) than is deemed to be
reasonable, it is expressly understood and agreed
between the parties hereto that such covenant or
covenants shall not be void but that for the purpose
of such proceedings the restrictions contained
therein (whether as to geographic area, scope of
business or otherwise) shall be deemed to be reduced
to the extent necessary to permit the enforcement of
such covenant or covenants.
10.4.4. Customer specifically acknowledges and agrees that
the foregoing covenants are commercially reasonable
and reasonably necessary to protect the interests of
SAVVIS hereunder. Customer hereby acknowledges that
SAVVIS and its successors and assigns will suffer
irreparable and continuing harm to the extent that
any of the foregoing covenants is breached and that
legal remedies would be inadequate in the event of
any such breach.
11. RIGHTS AND OBLIGATIONS OF SAVVIS
11.1. PROVISION OF THE NETWORKS. SAVVIS shall operate, maintain and
manage the Networks at the Installation Sites using the
Acquired Network Facilities in accordance with the Quality of
Service Standards and other terms of this Agreement, including
all Addenda hereto.
11.2. REPRESENTATIONS AND WARRANTIES.
11.2.1. [Intentionally omitted.]
11.2.2. SAVVIS hereby represents and warrants that the terms
hereof do not conflict in any respect whatsoever
with any SAVVIS tariff on file with the Federal
Communications Commission or other regulatory body.
If, during the term of this Agreement, SAVVIS shall
file a contract specific tariff governing the
Networks or any portion thereof, such tariff filing
shall be consistent in all respects with the terms
of this Agreement, and SAVVIS shall give Customer 10
days advance written notice of making such a tariff
filing and of filing any subsequent modifications
thereto.
11.2.3. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
11.3. SAVVIS acknowledges that the occurrence of Event of Default by
SAVVIS, arising from either (i) a failure of the Networks to
meet Quality of Service Standards or (ii) a total loss to
Bridge of the use of the Networks, could cause irreparable
harm to Customer, the amount of which may be difficult to
determine, thus potentially making any remedy at law or in
damages inadequate. SAVVIS, therefore, agrees that Customer
shall have the right to apply to any court of competent
jurisdiction for injunctive relief upon the occurrence of an
Event of Default by SAVVIS or the occurrence of an event
which, with the passage of time or the giving of notice, could
become an Event of Default by SAVVIS and for any other
appropriate relief. This right shall be in addition to any
other remedy available to Customer in law or equity. SAVVIS
further agrees that, upon the occurrence of an Event of
Default by SAVVIS, SAVVIS shall pay to Customer, as liquidated
damages and not as a penalty, an amount equal to the lesser of
(a) the aggregate amounts paid by Customer to SAVVIS under
this Agreement during the six months preceding such Event of
Default by SAVVIS or (b) $50,000,000; provided, however, that
Customer may recover liquidated damages under this Section
only for an Event of Default by SAVVIS that occurs (i) prior
to any Event of Default by SAVVIS for which Customer has
claimed liquidated damages under this Section, or (ii) more
than 36 months following the most recent Event of Default by
SAVVIS for which Customer has claimed liquidated damages under
this Section.
12. LIMITATIONS OF LIABILITY
12.1. Neither party shall be liable to the other for indirect,
incidental, consequential, exemplary, reliance or special
damages, including damages for lost profits, regardless of the
form of action whether in contract, indemnity, warranty,
strict liability or tort, including negligence of any kind
with respect to the Networks or other conduct under this
Agreement.
12.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, including fraud, or (b) injury or death, or damage
to tangible real or tangible personal property or the
environment, when proximately caused by SAVVIS' or Customer's
negligence or that of their respective agents, subcontractors
or employees. Nothing contained in this Section shall limit
SAVVIS' intellectual property indemnification obligations
under Section 16.1 or Customer's indemnification obligations
with respect to a breach of Section 10.3.
13. EQUIPMENT AND SOFTWARE NOT PROVIDED BY SAVVIS
13.1. SAVVIS shall not be responsible for the installation,
operation or maintenance of equipment or software not provided
by it under this Agreement, nor shall SAVVIS be responsible
for the transmission or reception of information by equipment
or software not provided by SAVVIS hereunder. In the event
that Customer uses equipment or software not provided by
SAVVIS hereunder in a manner that impairs Customer's use of
the Networks, Customer shall not be excused from payment for
such use and SAVVIS shall not be responsible for any failure
of the Networks to meet the Quality of Service Standards
resulting from the use of such equipment or software by
Customer. Upon notice from SAVVIS that the equipment or
software not provided by SAVVIS under this Agreement is
causing or is likely to cause hazard, interference or service
obstruction, Customer shall eliminate the likelihood of such
hazard, interference or service obstruction.
13.2. Notwithstanding the foregoing, SAVVIS shall, at no additional
charge, provide all interface specifications for the Networks
reasonably requested by Customer. SAVVIS shall, upon the
receipt of appropriate specifications from Customer, inform
Customer of the compatibility with the Networks of any
equipment or software that Customer proposes to use in
connection therewith, the effects, if any, of the use of such
equipment or software on the quality, operating
characteristics and efficiency of the Networks, and the
effects, if any, of the Networks on the operating
characteristics and efficiency of any such equipment or
software.
14. PROPRIETARY RIGHTS; LICENSE
14.1. SAVVIS hereby grants to Customer a non-exclusive and
non-transferable license to use all programming and software
necessary for Customer to use the Networks. Such license is
granted for the term of this Agreement for the sole purpose of
enabling Customer to use the Networks.
14.2. All title and property rights (including intellectual property
rights) to the Networks (including associated programming and
software) are and shall remain with SAVVIS or the third-party
providers thereof to SAVVIS. Customer shall not attempt to
examine, copy, alter, reverse engineer, decompile,
disassemble, tamper with or otherwise misuse the Networks,
programming and software.
15. CONFIDENTIALITY
15.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
15.2. Notwithstanding Section 15.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors or
managers of facilities or equipment used by such party) in
need of access to such information for purposes specifically
related to either party's responsibilities under this
Agreement, provided that any disclosure of Confidential
Information under clause (c) shall be made only upon prior
written approval of the other party and subject to the
appropriate assurances that the recipient of such information
shall hold it in strict confidence.
15.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the
other party with written certification of such destruction.
15.4. Either party may request in writing that the other party waive
all or any portion of the requesting party's responsibilities
relative to the other party's Confidential Information. Such
waiver request shall identify the affected information and the
nature of the proposed waiver. The recipient of the request
shall respond within a reasonable time and, if it determines,
in its sole discretion, to grant the requested waiver, it will
do so in writing over the signature of an employee authorized
to grant such request.
15.5. Customer and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right to
apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Section
and for any other appropriate relief. This right shall be in
addition to any other remedy available in law or equity.
15.6. A party requested or ordered by a court or other governmental
authority of competent jurisdiction to disclose another
party's Confidential Information shall notify the other party
in advance of any such disclosure and, absent the other
party's consent to such disclosure, use its best efforts to
resist, and to assist the other party in resisting, such
disclosure. A party providing another party's Confidential
Information to a court or other governmental authority shall
use its best efforts to obtain a protective order or
comparable assurance that the Confidential Information so
provided will be held in confidence and not further disclosed
to any other person, absent the owner's prior consent.
15.7. The provisions of Section 15.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably necessary
in connection with the sale of securities or the performance
or enforcement of this Agreement or any of the obligations
hereof; provided, however, that if the receiving party would
otherwise be required to refer to or describe any aspect of
this Agreement in any of the preceding circumstances, the
receiving party shall use its reasonable efforts to take such
steps as are available under such circumstances (such as by
providing a summary or synopsis) to avoid disclosure of the
financial terms and conditions of this Agreement.
Notwithstanding any provisions of this Agreement to the
contrary, either party may disclose the terms and conditions
of this Agreement in the course of a due diligence review
performed in connection with prospective debt financing or
equity investment by, or a sale to, a third party, so long as
the persons conducting such due diligence review have agreed
to maintain the confidentiality of such disclosure and not to
use such disclosure for any purpose other such due diligence
review.
16. INDEMNIFICATIONS
16.1. SAVVIS shall defend, settle, or otherwise manage at its own
cost and expense any claim or action against Customer or any
of its directors, officers, employees or assigns for actual or
alleged infringement by the Networks of any patent, copyright,
trademark, trade secret or similar proprietary right of any
third party, except to the extent that such actual or alleged
infringement arises from (i) such actual or alleged
infringement by the Acquired Network Facilities on the
Effective Date or (ii) an act or omission of Customer or a
vendor or customer of Customer or (iii) equipment or software
used by Customer and not provided by SAVVIS. Customer shall
notify SAVVIS promptly in writing of any such claim or suit
and shall cooperate with SAVVIS in a reasonable way to
facilitate the settlement or defense thereof. SAVVIS further
agrees to indemnify and hold Customer harmless from and
against any and all liabilities and damages (whether incurred
as the result of a judicial decree or a settlement), and the
costs and expenses associated with any claim or action of the
type identified in this Section (including reasonable
attorneys' fees).
16.2. If, as a consequence of a claim or action of the kind
described in Section 16.1, SAVVIS' or Customer's use of all or
part of any Network is enjoined, SAVVIS shall, at its option
and expense, either: (a) procure for Customer the right to
continue using the affected Network; (b) modify such Network
so that they are non-infringing, provided that such
modification does not affect the intended use of the Network
as contemplated hereunder. If SAVVIS does not take any of the
actions described in clauses (a) or (b), then Customer may
terminate the affected portion of such Network, and SAVVIS
shall refund to Customer any prepaid charges therefor.
16.3. Subject to Section 12, Customer will defend, indemnify and
hold harmless SAVVIS or any of its directors, officers,
employees or assigns from and against all loss, liability,
damage and expense, including reasonable attorneys' fees,
caused by:
(a) claims for libel, slander, invasion of privacy or
infringement of copyright, and invasion and/or
alteration of private records or data arising from
any information, data or messages transmitted over
the Networks by Customer;
(b) claims for infringement of patents arising from the
use by Customer of equipment and software, apparatus
and systems not provided hereunder in connection with
the Networks; and
(c) the violation of any representations, warranties and
covenants made by Customer in this Agreement.
16.4. Subject to Section 12, SAVVIS will defend, indemnify and hold
harmless Customer or any of its directors, officers, employees
or assigns from and against all loss, liability, damage and
expense, including reasonable attorneys' fees, caused by:
(a) claims for infringement of patents arising from the
use by SAVVIS of equipment and software, apparatus
and systems not provided by SAVVIS hereunder in
connection with the Networks (other than any Acquired
Network Facilities); and
(b) the violation of any representations, warranties and
covenants made by SAVVIS in this Agreement.
17. DISPUTES
17.1. Except as expressly provided in Schedule 4.1 of this
Agreement, the resolution of any and all disputes arising from
or in connection with this Agreement, whether based on
contract, tort, statute or otherwise, including disputes over
arbitrability and disputes in connection with claims by third
persons ("DISPUTES") shall be exclusively governed by and
settled in accordance with the provisions of this Section 17.
The foregoing shall not preclude recourse to judicial
proceedings to obtain injunctive, emergency or other equitable
relief to enforce the provisions of this Agreement, including
specific performance, and to decide such issues as are
required to be resolved in determining whether to grant such
relief. Resolution of Disputes with respect to claims by third
persons shall be deferred until any judicial proceedings with
respect thereto are concluded.
17.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a binding arbitration clause
under applicable law. Either party may serve process or notice
on the other in any arbitration or litigation in accordance
with the notice provisions hereof. The parties agree not to
disclose any information regarding any Dispute or the conduct
of any arbitration hereunder, including the existence of such
Dispute or such arbitration, to any person or entity other
than such employees or representatives of such party as have a
need to know.
17.3. Either party may commence proceedings hereunder by delivery of
written notice providing a reasonable description of the
Dispute to the other, including a reference to this provision
(the "DISPUTE NOTICE"). Either party may initiate arbitration
of a Dispute by delivery of a demand therefor (the
"ARBITRATION DEMAND") to the other party not sooner than 60
calendar days after the date of delivery of the Dispute Notice
but at any time thereafter. The arbitration shall be conducted
in St. Louis, Missouri.
17.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Customer, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If an
Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
17.5. The arbitration shall be conducted pursuant to such procedures
as the parties may agree or, in the absence of or failing such
agreement, pursuant to the Rules. Notwithstanding the
foregoing, each party shall have the right to inspect the
books and records of the other party that are reasonably
related to the Dispute, and each party shall provide to the
other, reasonably in advance of any hearing, copies of all
documents which such party intends to present in such hearing
and the names and addresses of all witnesses whose testimony
such party intends to present in such hearing.
17.6. All hearings shall be conducted on an expedited schedule, and
all proceedings shall be confidential. Either party may at its
expense make a stenographic record thereof.
17.7. The Arbitrators shall complete all hearings not later than 90
calendar days after the Arbitrators' selection or appointment,
and shall make a final award not later than 30 calendar days
thereafter. The Arbitrators shall apportion all costs and
expenses of the Arbitration, including the Arbitrators' fees
and expenses of experts ("ARBITRATION COSTS") between the
prevailing and non-prevailing parties as the Arbitrators deem
fair and reasonable. In circumstances where a Dispute has been
asserted or defended against on grounds that the Arbitrators
deem manifestly unreasonable, the Arbitrators may assess all
Arbitration Costs against the non-prevailing party and may
include in the award the prevailing party's attorneys' fees
and expenses in connection with any and all proceedings under
this Section 17.
17.8. Either party may assert appropriate statutes of limitation as
a defense in arbitration; provided, that upon delivery of a
Dispute Notice any such statute shall be tolled pending
resolution hereunder.
17.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and SAVVIS shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Networks to
Customer unless otherwise directed by Customer. This Section
shall not apply where (a) Customer is in default under this
Agreement or (b) the dispute or controversy between the
parties relates to harm to the Networks allegedly caused by
Customer and Customer does not immediately cease and desist
from the activity giving rise to the dispute or controversy.
18. FORCE MAJEURE
18.1. In no event shall either party be liable to the other for any
failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers (whether
of a party hereto or of others), casualties, accidents or
other causes to the extent that such failure and the
consequences thereof are reasonably beyond the control and
without the fault or negligence of the party claiming excuse.
Each party shall, with the cooperation of the other party, use
reasonable efforts to mitigate the extent of any failure to
perform and the adverse consequences thereof.
18.2. If SAVVIS cannot promptly provide a suitable temporary SAVVIS
alternative to all or part of a Network subject to an
interruption in connection with the existence of a force
majeure condition, Customer may, at its option and at its own
cost, contract with one or more third parties for the affected
portion of the Network for the shortest commercially available
period likely to cover the reasonably expected duration of the
interruption, and may suspend SAVVIS' provision of such
affected portion for such period. SAVVIS shall not charge
Customer for the affected portion thus suspended during the
period of suspension. SAVVIS shall resume provision of the
suspended portion of the Network upon the later of the
termination or expiration of Customer's legally binding
commitments under contracts with third parties for alternative
services or the cessation or remedy of the force majeure
condition.
18.3. In the event that a force majeure condition shall continue for
more than 60 days, Customer may cancel the affected portion of
the Network with no further liability to SAVVIS other than for
obligations incurred with respect to such affected portion
prior to the occurrence of the force majeure condition.
18.4. The consequences arising from existence and continuation of a
force majeure condition, including without limitation any
interruption of the Networks and the exercise by Customer of
its rights under this Section 18, shall be deemed not to
constitute a breach by either party hereto of any
representations, warranties or covenants hereunder and shall
not be grounds for the exercise of any remedies under this
Agreement, including without limitation remedies under Section
2.2 or Section 7, other than those specified in this Section
18.
19. GENERAL PROVISIONS
19.1. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person or entity other than
the parties and their respective successors and permitted
assigns.
19.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior understandings,
agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to the
subject matter hereof.
19.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. No party
may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
approval of the other party, which consent shall not be
unreasonably withheld.
19.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
19.5. HEADINGS. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
19.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall
be deemed duly given if (and then two business days after) it
is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended
recipient as set forth below:
If to Customer: [Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President
and General Counsel]
[Use same address for
Telerate entities?]
If to SAVVIS: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President and
General Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the
address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may
change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered
by giving the other party notice in the manner herein set
forth.
19.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Missouri in the United States of America, without giving
effect to any choice or conflict of law provision or rule
(whether of the State of Missouri or any other jurisdiction)
that would cause the application of the laws of any
jurisdiction other than the State of Missouri.
19.8. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by SAVVIS and Customer. No waiver by any party of
any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder
or affect in any way any rights arising by virtue of any prior
or subsequent such occurrence.
19.9. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
19.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
19.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
19.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified in
this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Network
Services Agreement to be executed as of the date first above written.
[local SAVVIS entity]
By_________________________
Name:______________________
Title:_____________________
[local Bridge/Telerate entity].
By_________________________
Name:______________________
Title:_____________________
SCHEDULE 2.2
QUALITY OF SERVICE STANDARDS
1. FOR THE COLLECTION NETWORK AND DISTRIBUTION NETWORK:
(a) Between any two Installation Sites on the Collection Network
and the Distribution Network that are connected by fully
redundant circuits provided with the Acquired Network
Facilities there shall be not less than 99.99% end-to-end
availability during each one-month period between such
Installation Sites during the Market Hours at such
Installation Sites.
(b) There shall be delivered not less than 99.99% of all
data packets offered to such Network during each one-month
period.
(c) The average round-trip latency period for the Collection
Network and the Distribution Network using the Acquired
Network Facilities during each one-month period shall not
exceed:
(i) 150 milliseconds within each of the following geographic
regions: (i) the United States, (ii) the Americas, (iii)
Europe, and (iv) Asia; and
(ii) 250 millisecond between any two of such geographic
regions.
2. FOR THE OA NETWORK:
(a) Between any two Installation Sites on the OA Network that are
connected by circuits provided with the Acquired Network
Facilities there shall be not less than 99.90% end-to-end
availability during each one-month period between such
Installation Sites during the Market Hours at such
Installation Sites.
(b) There shall be delivered not less than 99.90% of all
data packets offered to the OA Network during each one-month
period.
(c) The average round-trip latency period for the OA Network using
the Acquired Network Facilities for each one-month period
shall not exceed:
(i) 150 milliseconds within each of the following geographic
regions: (i) the United States, (ii) the Americas, (iii)
Europe, and (iv) Asia; and
(ii) 250 millisecond between any two of such geographic
regions.
3. Credit Amounts
Amounts to be credited if the Quality of Service Standards are not met
with respect to a particular Installation Site in any month shall be as
follows during the first Agreement Year, according to the connection
speed at such Installation Site:
CONNECTION SPEED MONTHLY CREDIT MONTHLY CREDIT MONTHLY CREDIT
[EUROPE] [ASIA] [AMERICAS]
T1 * * *
256 KBS * * *
128 KBS * * *
64 KBS * * *
ISDN * * *
E1 * * *
CONFIDENTIAL MATERIALS HAVE BEEN OMMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
