IRU AGREEMENT
THIS IRU AGREEMENT (the "Agreement") is made and entered into as of
this 30th day of September 1999 ("Effective Date"), by and between QWEST
COMMUNICATIONS CORPORATION, a Delaware corporation ("Qwest"), and E.VOLVE
TECHNOLOGIES, a Nevada corporation ("Customer").
RECITALS:
WHEREAS, Qwest owns and operates a fiber optic telecommunications network
between various points in the United States;
WHEREAS, Customer desires to obtain certain indefeasible rights of use to
certain telecommunications capacity to be provided by means of Qwest's domestic
fiber optic telecommunications network; and
WHEREAS, Qwest desires to hereby grant and Customer desires to be granted
certain indefeasible rights of use to such capacity as more fully set forth
herein;
NOW THEREFORE, in consideration of the mutual promises set forth below, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. DEFINITIONS
The following terms shall have the meanings set forth in this Article when used
in this Agreement, unless explicitly stated to the contrary:
1.1 "Affiliate" means any person, which directly or indirectly controls or is
controlled by, or is under common control with, a party hereto.
1.2 "Capacity" means the digital transmission capability of a given portion of
the Qwest Network designed to transmit digital signals at a stated rate and
otherwise perform in accordance with the specifications applicable to the
portion of the Qwest Network utilized to provide the Capacity. All Capacity
shall be provided by Qwest Network facilities inclusive of all electronics and
other equipment necessary for the intended operation of the Capacity; provided,
however. that interruptions, outages, or degradations in the actual transmission
capability of the Capacity may occur from time to time.
1.3 "Cross-connect Panel" means the piece of equipment designated by Qwest in a
Qwest POP at which the IRU is terminated and at which location Customer may have
access to and interconnect with the IRU through use of Local Distribution
Facilities or other facilities acceptable to Qwest.
1.4 "Delivery" of an IRU means that the applicable IRU will be available for use
at the Cross-connect Panels designated by Qwest hereunder.
1.5 "Impositions" means all taxes, fees, levies, imposts, duties, charges or
withholdings of any nature (including, without limitation, gross receipts taxes
and franchise, license and permit fees), together with any penalties, fines, or
interest thereon arising out of the transactions contemplated by this Agreement
and/or imposed upon either party hereto by any federal, state or local
government or other public taxing authority of any country.
1.6 "Indefeasible Right of Use" or "IRU" means an indefeasible right of use, "as
is and where is," for the purposes described herein, in the amount of Capacity
on the Qwest Network for each User Route set forth herein; provided, that the
applicable IRU(s) granted hereunder do not provide Customer with any ownership
interest in or other rights to physical access to, control of, modification of,
encumbrance in any manner of, or other use of the Qwest Network except as
expressly set forth herein.
1.7 "Local Distribution Facilities" means those telecommunications transmission
facilities which interconnect with the applicable IRU at a Cross-connect Panel
and extend each User Route of the applicable IRU to a location outside of the
Qwest POP. Unless otherwise specified herein, such Local Distribution Facilities
shall be separately acquired by Customer and may be provided by a local
telephone company or other third party, and must comply with Qwest's applicable
engineering and operations requirements. Local Distribution Facilities are not
part of the IRU(s) acquired by Customer hereunder, and Customer's acceptance of
each IRU granted hereunder may not be conditioned upon the availability of such
Local Distribution Facilities.
1.8 "OC-12" means a dedicated, point to point, high capacity, full duplex
channel along the Qwest Network with a line speed of approximately 622.08
million bits per second synchronous serial data.
1.9 "POP" means the Qwest terminal facility (point of presence) where the
Capacity subject to an IRU is delivered to Customer.
1.10 "Qwest Network" means the fiber optic telecommunications network operated
by Qwest in the United States, including at the election of Qwest such
telecommunications capacity as Qwest may obtain from another network provider
and integrate into its own network for purposes of providing services or
Capacity to its Customers. Although Qwest possesses telecommunications network
facilities and capacity in locations other than the United States, such network
facilities and capacity are not part of the Qwest Network for purposes of this
Agreement.
1.11 "User Route" means the route along which each digital private line circuit
is placed by Qwest on the Qwest Network, as more particularly described in
Exhibit A hereto. For operational and maintenance purposes only, Qwest reserves
the right to alter temporarily each applicable User Route, provided that such
alterations do not result in changes to the endpoints (POPs) of the applicable
User Route.
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1.12 "V&H Miles" is a measurement of the length in miles between the termination
points of a User Route using airline miles and determined based on the vertical
and horizontal geographic coordinates of the locations of the termination
points.
2. GRANT OF IRU(S) IN QWEST NETWORK
2.1 For each of the User Routes set forth in Exhibit A hereto, Qwest hereby
grants to Customer an IRU to OC-12 Capacity.
2.2 The IRU(s) described above shall be delivered to Customer at a Cross-connect
Panel located in each of the Qwest POPs in the cities identified in Exhibit A.
Unless Customer has separately arranged for collocation space in any such Qwest
POP (as evidenced by a collocation agreement substantially in the form appended
hereto as Exhibit B and executed by both parties to this Agreement), it shall be
the responsibility of Customer to obtain any required Local Distribution
Facilities to interconnect with each of the IRU(s) granted herein.
3. CONSIDERATION FOR GRANT OF THE IRU(S)
3.1 See Exhibit C1
3.3 For the Term (as defined below) of the granted IRU(s), Customer shall also
pay to Qwest a monthly recurring operation and maintenance charge calculated at
the rate of $25,000 per month which will be due beginning on January 1, 2000 and
each month thereafter.
4. DELIVERY AND ACCEPTANCE TESTING OF CUSTOMER CAPACITY
4.1. Qwest will use commercially reasonable efforts to Deliver each User Route
of the granted lRU(s) within ninety (90) days following the Effective Date.
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4.2 At Delivery, each applicable IRU shall comply with the specifications set
forth in Exhibit B hereto (the "IRU Specifications and Acceptance Testing").
Qwest shall test each IRU in accordance with the procedures specified in Exhibit
B to verify that the applicable IRU is operating in accordance with the IRU
Specifications and Acceptance Testing. Qwest shall provide Customer with
reasonable advance notice of the date and time of each applicable IRU acceptance
test (each of which shall take place during normal business hours) such that
Customer shall have the right, but not the obligation, to have a person or
persons present to observe the tests.
4.3. In the event the results of any applicable IRU acceptance test shows that
the granted LRU is not operating within the parameters of the applicable IRU
Specifications and Acceptance Testing, Qwest shall expeditiously take such
action as shall be commercially reasonably necessary, with respect to such
portion of the IRU as does not operate within the parameters of the applicable
IRU Specifications and Acceptance Testing, to bring the operating standards of
such portion of the applicable IRU within such parameters. In no event shall the
unavailability, incompatibility, delay in installation, or other impairment of
any of Customer's (including Customer's suppliers (e.g., a local access
telephone service provider)) interconnection facilities be used as a basis for
rejecting any Capacity or IRU provided hereunder.
4.4 If and when Qwest notifies Customer that the test results of an IRU
acceptance test are within the parameters of the IRU Specifications and
Acceptance Testing with respect to the tested IRU, Customer shall provide Qwest
with a written notice accepting such IRU. Such written notice shall specify the
Qwest "Circuit ID" number associated with each specific IRU granted hereunder.
If Customer fails to notify Qwest of its acceptance or rejection of the final
test results with respect to the tested IRU within ten (10) days after its
receipt of notice of such test results, Customer shall be deemed to have
accepted the tested IRU. The date of such notice of acceptance (or deemed
acceptance) of the Capacity shall be the "Acceptance Date" for that particular
IRU.
5. TERM
5.1 The term of this Agreement (the "Term") shall begin on the Effective Date
(provided that the grant of each IRU hereunder shall not become effective until
the Acceptance Date for that particular IRU and each such IRU User Route granted
hereunder shall last for a period of no more than twenty (20) years from the
Acceptance Date of each such IRU User Route); and shall continue, unless
expressly stated to the contrary herein, until the earlier of:
(a) Twenty (20) years from the Acceptance Date of the last IRU
granted hereunder; or
(b) the date on which Customer notifies Qwest in writing that all
IRU(s) subject to this Agreement have, in Customer's
determination, reached the end of their economically useful
life and that Customer desires to not retain its Indefeasible
Right of Use in such IRU(s).
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5.2 Upon the expiration of the Term hereof, all of Customer's rights to the use
of each of the granted IRU(s) described herein shall revert to Qwest without
reimbursement by Qwest of any fees or other payments previously made with
respect thereto, and from and after such time Customer shall have no further
rights or obligations (excepting such obligations as shall have arisen prior to
the date of expiration of the Term) with respect to the granted IRU(s).
6. OPERATIONS AND MAINTENANCE OF CUSTOMER CAPACITY AND OUTAGE CREDITS
6.1 The granted IRU(s) do not provide Customer with any right to control any
network or service configuration or design, routing configuration, regrooming,
rearrangement or consolidation of channels or circuits or any similar or related
functions with regard to the Qwest Network. The granted IRU(s) are subject to
and shall be implemented in accordance with Qwest's network operations and
maintenance procedures and policies, as these may be modified from time to time
by Qwest.
6.1 Qwest will use reasonable commercial efforts to provide the maintenance
services described in this Article. All operating and maintenance charges are
set forth in Exhibit A, if not included in the applicable IRU Fee(s) set forth
in Article 3. Such maintenance, however, does not ensure that each IRU granted
hereunder will perform during the Term continuously in accordance with the IRU
Specifications and Acceptance Testing
6.2 Customer acknowledges the possibility of an unscheduled, continuous and/or
interrupted period of time when any IRU, or a portion thereof, is "unavailable"
(as defined in the IRU Specifications and Acceptance Testing) (hereafter an
"Outage"). In the event of an Outage, Customer shall be entitled to a credit
(the "Outage Credit") against those charges set forth in Section 6.2.4 below
determined in accordance with the following formula:
OUTAGE CREDIT = HOURS OF OUTAGE = 2 HOURS x EQUIVALENT MONTHLY PRICE OF AFFECTED CAPACITY
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720 hours
6.2.1 The "Equivalent Monthly Price of Affected Capacity" shall be the
IRU Fee applicable to the IRU User Route affected by the Outage, as specified in
Exhibit A, divided by 240.
6.2.2 The length of each Outage shall be calculated in hours and shall
include fractional portions thereof. An Outage shall be deemed to have commenced
upon verifiable notification thereof by Customer to Qwest, or, when indicated by
network control information actually known to Qwest network personnel operating
the Network at the time of the Outage, whichever is earlier. Each Outage shall
be deemed to terminate upon restoration of the affected IRU User Route, as
evidenced by appropriate network tests by Qwest. Qwest shall give notice to
Customer of any scheduled or planned maintenance that will result in an outage
as early as is practicable, and any such scheduled or planned maintenance shall
under no circumstance be viewed as an Outage hereunder.
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6.2.3 No Outage Credit shall be granted if the malfunction of any
end-to-end capacity or circuit is due to an Outage or other Defect occurring in
Customer's Local Distribution Facilities.
6.2.4 Subject to the terms and conditions in this Article 6 and upon
Customer's written request, all Outage Credits shall be credited towards any
future invoice from Qwest to Customer whether or not such invoice is made
pursuant to this Agreement, or in any other agreement between Customer and
Qwest.
6.3 The Outage Credit described in this Article 6 is the sole and exclusive
remedy of Customer in the event of any Outage, and under no circumstance shall
an Outage be deemed a default under this Agreement.
7. ACCESS TO QWEST POPS
7.1 Customer and its designees (such as local telecommunications providers)
shall have access to each of the Qwest POPs specified in Exhibit A, and the
right to interconnect with, each granted IRU, according to the access and
interconnection standards and procedures regularly established by Qwest, as
these may be modified by it from time to time.
8. USE OF CUSTOMER CAPACITY
8.1 Customer represents and warrants that its use of each IRU granted hereunder
shall comply with all applicable laws, ordinances, rules, regulations and
restrictions.
8.2 Customer agrees and acknowledges that this Agreement grants no right to use
any element of the Qwest Network other than the IRU(s) granted herein. Customer
shall keep any and all of the Qwest Network, other than the IRU(s), free from
any liens, rights or claims of any third party attributable to Customer.
8.3 Customer shall be responsible for its own configuration and use of each IRU;
including the provisioning of all Local Distribution Facilities, interconnection
facilities, network equipment, testing equipment and procedures, maintenance,
and other facilities or actions necessary to utilize each IRU. Customer shall
conduct all such operations and use of the IRU(s) in manner which does not
interfere with the operations of the Qwest Network or the use thereof by any
other customer of Qwest. Customer shall comply at all times with the operating
procedures and interconnection requirements of Qwest.
8.4 Customer shall include in each customer agreement or tariff covering any
service that utilizes any portion of the granted IRU(s) to any third party, a
provision which limits the liability of Customer thereunder for interruptions,
failures, or degradation of service to the charges received by Customer for such
service.
8.5 Customer and Qwest each agree to cooperate with and support the other in
complying with any requirements applicable to their respective rights and
obligations hereunder imposed by any governmental or regulatory agency or
authority.
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9. INDEMNIFICATION
9.1 Customer hereby releases and agrees to indemnify, defend, protect and hold
harmless Qwest, its employees, officers, directors, agents, shareholders and
affiliates, from and against, and assumes liability for:
(a) Any injury, loss or damage to any person, tangible property or
facilities of any third person or entity (including reasonable
attorneys' fees and costs) to the extent arising out of or
resulting from either: (i) the acts or omissions, negligent or
otherwise, of Customer, its officers, employees, servants,
affiliates, agents, contractors, licensees, invitees or
vendors; or (ii) other acts and omissions of Customer
constituting a default under this Agreement;
(b) Any claims, liabilities or damages arising out of any
violation by Customer of any regulation, rule, statute or
court order of any local, state or federal governmental
agency, court or body in connection with its use of the
granted IRU(s) hereunder;
(c) Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of any third
party as a result of Customer's use of any IRU granted
hereunder not in accordance with the provisions of this
Agreement; and
(d) The use, resale, sharing or modification of the Capacity by
Customer and/or its users.
9.2 Nothing contained herein shall operate as a limitation on Qwest to bring an
action for damages against any third party, including indirect, special or
consequential damages, based on any acts or omissions of such third party as
such acts or omissions may affect the construction, operation or use of the
granted IRU(s) or the Qwest Network; provided, however, that Customer shall
assign such rights or claims, execute such documents and do whatever else may be
reasonably necessary to enable Qwest to pursue any such action against such
third party.
10. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES
10.1 With the exception of Customer's obligation to indemnify Qwest hereunder,
neither party shall be liable to the other party for any special, incidental,
indirect, punitive or consequential damages (whether or not such damages were
foreseeable or a party was notified of the possibility thereof) arising out of
or in connection with such party's failure to perform its respective obligations
hereunder, including, but not limited to, damage or loss of property or
equipment, loss of profits or revenue (whether arising out of Outages,
transmission interruptions or problems, any interruption or degradation of the
functioning of the granted IRU(s) or otherwise), cost of capital, cost of
replacement services, or claims of customers, whether occasioned by any
construction, reconstruction, relocation, repair or maintenance performed by, or
failed to be performed by, the other party or any other cause whatsoever,
including, without limitation, breach of contract, breach of warranty,
negligence, or strict liability, all claims for which damages are hereby
specifically waived.
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10.2 EXCEPT AS EXPRESSLY SET FORTH HEREIN, QWEST DISCLAIMS ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER CAPACITY AND THE
GRANTED IRU(s), INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
11. INSURANCE
11.1 During the term of this Agreement, Customer shall obtain and maintain, at
its expense, an appropriate insurance policy with terms and coverage thresholds
equal to or greater than the total IRU Fee associated with the granted IRU(s)
and provide Qwest with a copy of such policy upon request.
12. PAYMENT
12.1 Other than the payment schedule outlined in Exhibit C1, all other payments
due hereunder, if any, shall be due thirty (30) days after the date of Qwest's
invoice. If any amount due under this Agreement is not received by its
respective due date, in addition to its other available remedies, Qwest may in
its sole discretion impose a late payment charge pursuant to Section 12.2.
Notwithstanding anything in this Agreement to the contrary, no payment due
hereunder is subject to reduction, set-off or adjustment of any nature by
Customer. All disputes or requests for billing adjustments must be submitted in
writing by the due date and submitted with payment of undisputed amounts due.
Any amounts which are determined by Qwest to be in error or not in compliance
with Agreement shall be adjusted on the next month's invoice. Any disputed
amounts which are deemed by Qwest to be correct as billed and in compliance with
this Agreement, shall be due and payable by Customer, upon notification and
demand by Qwest, along with any late payment charges which Qwest may impose
pursuant to Section 12.2. Disputes shall not be cause for Customer to delay
payment of the undisputed balance to Qwest according to the terms outlined in
this Article. Invoices submitted to Customer by Qwest shall conform to Qwest's
standard billing format and content, as modified by Qwest from time to time.
12.2 In the event a party shall fail to make any payment under this Agreement
when due, such amounts shall accrue interest, from the date such payment is due
until paid, including accrued interest, at an annual rate equal to 7.5% simple
interest. In addition, Qwest may offset any amounts not paid when due from any
amounts that Qwest owes to Customer under any other agreements between the
parties.
13. CHARACTERIZATION OF TRANSACTION
13.1 The parties intend that each IRU granted in this Agreement does not provide
Customer with any ownership or other possessory interests in any real property,
conduit, fiber, or equipment in or on the Qwest Network or along the User Route
of the Qwest Network. Further, it is not the intention of the parties to create
a loan or other financing arrangement between the parties. However, in case the
express intent of the panics is not given legal effect and that any portion of
the transaction is deemed to constitute a loan or other financing arrangement,
or that
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any rights in the IRU(s) granted herein are deemed to be the property of
Customer, Customer hereby grants to Qwest, as security for the payment of all
amounts due from Customer and the performance of all other obligations of
Customer hereunder, a first-priority security interest in and continuing lien
upon all of Customer's right (including any right Customer may have to convey
title thereto), title and interest in (i) the granted IRU(s), (ii) all rights of
Customer under this Agreement, and (iii) any and all income, proceeds, products
and profits of any of the foregoing, all payment thereon, and any and all
additions thereto.
13.2 Simultaneously with the execution of this Agreement, and at any subsequent
time during the Term of this Agreement upon request of Qwest, Customer will
execute and deliver to Qwest such financing statements and continuation
statements as Qwest may require for purposes of perfecting and continuing the
perfection of each security interest and continuing lien.
14. TAXES, FEES AND OTHER GOVERNMENTAL IMPOSITIONS
14.1 Customer shall be independently responsible for any Impositions properly
payable with respect to the granted IRU(s). The parties agree that they will
cooperate with each other and coordinate their mutual efforts concerning audits,
or other such inquiries, filings, reports, etc., as may relate solely to the
activities or transactions arising from or under this Agreement, which may be
required or initiated from or by any duly authorized governmental tax authority.
14.2 The parties agree that the payment(s) set forth in Article 3 will be
allocated to rental periods as detailed in the Payment Allocation Schedule,
Exhibit C, attached hereto. It is understood and agreed between Qwest and
Customer that the grant of the IRU in the Qwest Capacity hereunder shall be
treated for federal, state, and local tax purposes as the lease of the Qwest
Capacity hereto pursuant to Section 467 of the Internal Revenue Code of 1986 and
according to the schedule set forth on Exhibit C. The parties further agree to
file their respective income and other tax returns and reports on such basis
and, except as otherwise required by law, not to take any positions inconsistent
therewith.
15. NOTICE
15.1 Unless otherwise provided herein, all notices and communications concerning
this Agreement shall be in writing and addressed to the other party as follows:
If to Qwest: Qwest Communications Corporation
Attention: Senior Vice President -- Wholesale Markets
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to: Qwest Communications Corporation
Attention: Executive Vice President & General Counsel
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
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Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Customer: E.Volve Technologies
Attention: Xxxxxx Xxxxxxx
1 Evertrust Plaza, 8th Fl.
Xxxxxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or at such other address as either party may designated from time to time in
writing to the other party.
15.2 Unless otherwise provided herein, notices shall be hand delivered, sent by
registered or certified U.S. mail, postage prepaid, or by commercial overnight
delivery service, or transmitted by facsimile, and shall be deemed served or
delivered to the addressee or its office when received at the address for notice
specified above when hand delivered, upon confirmation of sending when sent by
fax, on the day after being sent when sent by overnight delivery service, or
three (3) days after deposit in the mail when sent by U.S. mail.
16. CONFIDENTIALITY
16.1 Qwest and Customer hereby agree that if either party (the "Disclosing
Party") provides confidential or proprietary information to the other party
("Proprietary Information") to the other party (the "Recipient Party"), such
Proprietary Information shall be held in confidence, and the Recipient Party
shall afford such Proprietary Information the same care and protection as it
affords generally to its own confidential and proprietary information (which in
any case shall be not less than reasonable care) in order to avoid disclosure to
or unauthorized use by any third party. This Agreement, including its existence
and all of the terms, conditions and provisions hereof, constitutes Proprietary
Information, and all information disclosed by either party to the other in
connection with or pursuant to this Agreement shall be deemed to be Proprietary
Information, provided that written information is clearly marked in a
conspicuous place as confidential or proprietary, and verbal information is
indicated as being confidential or proprietary when given or promptly confirmed
in writing as such thereafter. All Proprietary Information, unless otherwise
specified in writing, shall remain the property of the Disclosing Party, shall
be used by the Recipient Party only for the intended purpose, and such written
Proprietary Information, including all copies thereof, shall be returned to the
Disclosing Party or destroyed after the Recipient Party's need for it has
expired or upon the request of the Disclosing Party. Proprietary Information
shall not be reproduced except to the extent necessary to accomplish the
purposes and intent of this Agreement, or as otherwise may be permitted in
writing by the Disclosing Party.
16.2 The foregoing provisions of Section 16.1 shall not apply to any Proprietary
Information which: (i) becomes publicly available other than through the
Recipient Party; (ii) is required to be disclosed by a governmental or judicial
law, order, rule or regulation; (iii) is independently developed by the
Recipient Party; (iv) becomes available to the Recipient Party without
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restriction from a third party; or (v) becomes relevant to the settlement of any
dispute or enforcement of either party's rights under this Agreement and in
accordance with its terms and conditions. If any Proprietary Information is
required to be disclosed pursuant to the foregoing clause, the party required to
make such disclosure shall promptly inform the other party of the requirements
of such disclosure and take all reasonable protective measures to preserve the
confidentiality of such Proprietary Information as fully as possible in the
context of such permitted disclosure.
16.3 Notwithstanding Sections 16.1 and 16.2, either party may disclose
Proprietary Information to its employees, agents, and legal, financial, and
accounting advisors and providers (including its lenders and other financiers)
to the extent necessary or appropriate in connection with the negotiation
and/or performance of this Agreement or its obtaining of financing, provided
that each such party is notified of the confidential and proprietary nature of
such Proprietary Information and is subject to or agrees to be bound by similar
restrictions on its use and disclosure.
16.4 The provisions of this Article 16 shall survive for a period of two (2)
years from the date of the expiration or termination of this Agreement.
17. DEFAULT
17.1 A party shall be in default under this Agreement thirty (30) days after the
non-defaulting party shall have given written notice of such default unless the
defaulting party shall have cured such default or such default is otherwise
waived by the non-defaulting party within such thirty (30) days; provided,
however, that where any such default other than the payment of money cannot
reasonably be cured within such 30-day period, if the defaulting party shall
proceed promptly to cure the same and prosecute such cure with due diligence,
the time for curing such default shall be extended for such period of time not
to exceed ninety (90) days as may be necessary to complete such cure.
17.2 Events of default also shall include, but not be limited to, the following:
(i) failure to make any payment when due hereunder; (ii) breach of any material
provision hereof not cured within thirty (30) days following written notice by
the non-defaulting party; (iii) the making by either party of a general
assignment for the benefit of its creditors; or (iv) the filing of a voluntary
petition in bankruptcy or the filing of a petition in bankruptcy or other
insolvency protection against either party which is not dismissed within ninety
(90) days thereafter, or the filing by either party of any petition or answer
seeking, consenting to, or acquiescing in reorganization, arrangement,
adjustment, composition, liquidation, dissolution, or similar relief.
17.3 In addition to the specific remedies provided hereunder, upon any
non-payment or other default by Customer, Qwest may: (i) take such action as it
determines, in its sole discretion, to be necessary to correct the default;
and/or (ii) pursue any other legal remedies it may have under applicable law or
principles of equity relating to such default, provided that appropriate notice
has been given under this section. Notwithstanding the above, if the defaulting
party certifies in good faith to the non-defaulting party in writing that a
default has been cured, such default shall
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be deemed to be cured unless the non-defaulting party otherwise notifies the
defaulting party in writing within fifteen (15) days of receipt of such notice.
18. TERMINATION
18.1 Either party may terminate this Agreement upon the failure of the other
party to cure an event of default as required by Article 17. In the event
Customer terminates this Agreement or any User Route provided hereunder as a
result of a default by Qwest under Article 17, Customer's sole and exclusive
remedy shall be to receive a pro-rata refund of any unused portion of the IRU
Fee applicable to the terminated IRU User Route(s).
18.2 Notwithstanding the foregoing, no termination or expiration of this
Agreement shall affect the rights or obligations of any party hereto with
respect to any then existing defaults or the obligation to make any payment
hereunder for services rendered prior to the date of termination or expiration.
19. FORCE MAJEURE
19.1 Neither party shall be in default under this Agreement if and to the extent
that any delay in such party's performance of one or more of its obligations
hereunder is caused by any of the following conditions, and such party's
performance of such obligation or obligations shall be excused and extended for
and during the period of any such delay: act of God; fire; flood; fiber cut,
material shortages or unavailability or other delay in delivery not resulting
from the responsible party's failure to timely place orders therefor; lack of or
delay in transportation; government codes, ordinances, laws, rules, regulations
or restrictions (collectively, "Regulations"); war or civil disorder; failure of
a third party to grant a required right-of-way permit, easement, or other
required authorization for use of the intended right-of-way, or any other cause
beyond the commercially reasonable control of such party. The party claiming
relief under this Article shall notify the other in writing of the existence of
the event relied on and the cessation or termination of said event.
20. ARBITRATION
20.1 Any dispute or disagreement arising between Qwest and Customer in
connection with this Agreement which is not settled to the mutual satisfaction
of Qwest and Customer within thirty (30) days from the date that either party
informs the other in writing that such dispute or disagreement exists, shall be
settled by arbitration in Washington, D.C. in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in effect on the date
that such notice is given. If the parties are unable to agree on a single
arbitrator within fifteen (15) days from the commencement of any such
arbitration, each party shall select an arbitrator and the two (2) arbitrators
shall mutually select a third arbitrator, the three of whom shall serve as an
arbitration panel. The decision of the arbitrator(s) shall be final and binding
upon the parties and shall include written findings of law and fact, and
judgment may be obtained thereon by either party in a court of competent
jurisdiction. Each party shall bear the cost of preparing and presenting its
own case. The cost of the arbitration, including the fees and expenses of the
arbitrator(s) shall be shared equally by the parties hereto unless the award
otherwise provides.
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20.2 The obligation herein to arbitrate shall not be binding upon any party with
respect to requests for preliminary injunctions, temporary restraining orders or
other similar temporary procedures in a court of competent jurisdiction to
obtain interim relief when deemed necessary by such court to preserve the status
quo or prevent irreparable injury pending resolution by arbitration of the
actual dispute. It is not the intention of the parties that such injunctive
procedures shall be in lieu of, or cause substantial delay to, any arbitration
proceeding commenced under Section 20.1 above.
21. WAIVER
21.1 The failure of either party hereto to enforce any of the provisions of this
Agreement, or the waiver thereof in any instance, shall not be construed as a
general waiver or relinquishment on its part of any such provision, but the same
shall nevertheless be and remain in full force and effect.
22. GOVERNING LAW
22.1 This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of
New York, without reference to its choice of law
principles.
23. RULES OF CONSTRUCTION
23.1 The captions or headings in this Agreement are strictly for convenience and
shall not be considered in interpreting this Agreement or as amplifying or
limiting any of its content. Words in this Agreement which import the singular
connotation shall be interpreted as plural, and words which import the plural
connotation shall be interpreted as singular, as the identity of the parties or
objects referred to may require.
23.2 Unless expressly defined herein, words having well known technical or trade
meanings shall be so construed. All listing of items shall not be taken to be
exclusive, but shall include other items, whether similar or dissimilar to those
listed, as the context reasonably requires.
23.3 Except as set forth to the contrary herein, any right or remedy of Customer
or Qwest shall be cumulative and without prejudice to any other right or remedy,
whether contained herein or not.
23.4 This Agreement has been fully negotiated between and jointly drafted by the
parties.
23.5 In the event of a conflict between the provisions of this Agreement and
those of any Exhibit, the provisions of this Agreement shall prevail and such
Exhibit shall be corrected accordingly.
23.6 All actions, activities, consents, approvals and other undertakings of the
parties in this Agreement shall be performed in a reasonable and timely manner,
it being expressly acknowledged and understood that time is of the essence in
the performance of obligations required to be performed by a date expressly
specified herein. Except as specifically set forth
13
herein, for the purpose of this Article the normal standards of performance
within the telecommunications industry in the relevant market shall be the
measure of whether a party's performance is reasonable and timely.
24. REPRESENTATIONS AND WARRANTIES
24.1 Each party represents and warrants that:
(a) It has the full right and authority to enter into, execute,
deliver and perform its obligations under this Agreement;
(b) It has taken all requisite corporate action to approve the
execution, delivery and performance of this Agreement;
(c) This Agreement constitutes a legal, valid and binding
obligation enforceable against such party in accordance with
its terms, subject to bankruptcy, insolvency, creditors'
rights and general equitable principles; and
(d) Its execution of and performance under this Agreement shall
not violate any applicable existing regulations, rules,
statutes or court orders of any local, state or federal
government agency, court or body of any country or any
contract or other agreement the party is subject to.
25. PUBLICITY
25.1 No publicity regarding the existence and/or terms of this Agreement may
occur without Qwest's prior express written consent. The content and timing of
any press releases and all other publicity regarding the subject matter of this
Agreement or Customer's relationship with Qwest, if authorized, shall be
mutually agreed upon by the parties.
26. ASSIGNMENT
26.1 This Agreement shall be binding on Customer and its respective affiliates,
successors, and assigns. Customer shall not assign, sell or transfer this
Agreement or the right to receive the granted Capacity hereunder, whether by
operation of law or otherwise, without the prior written consent of Qwest, which
consent shall not be unreasonably withheld. Any attempted assignment in
violation hereof shall be null and void.
27. NO PERSONAL LIABILITY
27.1 Each action or claim against any party arising under or relating to this
Agreement shall be made only against such party as a corporation, and any
liability relating thereto shall be enforceable only against the corporate
assets of such party. No party shall seek to xxxxxx the corporate veil or
otherwise seek to impose any liability relating to, or arising from, this
Agreement against any shareholder, employee, officer or director of the other
party. Each of
14
such persons is an intended beneficiary of the mutual promises set forth in this
Article and shall be entitled to enforce the obligations of this Article.
28. RELATIONSHIP OF THE PARTIES
28.1 The relationship between Customer and Qwest shall not be that of partners,
agents, or joint venturers for one another, and nothing contained in this
Agreement shall be deemed to constitute a partnership or agency agreement
between them for any purposes, including but not limited to federal income tax
purposes. Customer and Qwest, in performing any of their obligations hereunder,
shall be independent contractors or independent parties and shall discharge
their contractual obligations at their own risk.
29. SEVERABILITY
29.1 If any term, covenant or condition contained herein shall, to any extent,
be invalid or unenforceable in any respect under the laws governing this
Agreement, the remainder of this Agreement shall not be affected thereby, and
each term, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
30. COUNTERPARTS
30.1 This Agreement may be executed in one or more counterparts, all of which
taken together shall constitute one and the same instrument.
31. ENTIRE AGREEMENT; AMENDMENT
31.1 This Agreement constitutes the entire and final agreement and understanding
between the parties with respect to the subject matter hereof and supersedes all
prior agreements relating to the subject matter hereof, which are of no further
force or effect. The Appendices and Exhibits referred to herein are integral
parts hereof and are hereby made a part of this Agreement. This Agreement may
only be modified or supplemented by an instrument in writing executed by a duly
authorized representative of each party.
15
In confirmation of their consent and agreement to the terms and conditions
contained in this
IRU Agreement and intending to be legally bound hereby, the
parties have executed this
IRU Agreement as of the date first above written.
QWEST COMMUNICATIONS CORPORATION
SVP - Wholesale Mkts
By: /s/ XXXX X. XXXXXX (for Xxxx Xxxxx)
------------------------------------
Name: Xxxx X. Xxxxxx
----------------------------------
Title: Sr. Director, ICO
---------------------------------
E.VOLVE TECHNOLOGIES
By: /s/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: CFO
---------------------------------
16
EXHIBIT A:
DESCRIPTION OF CUSTOMER IRU(S)
AND LOCATION OF QWEST POPS
CUSTOMER IRU(S)
XX-00 XXXXXXXX
XXXXXXX
XXXXX XXXXX V&H RECURRING O&M
POP A POP B MILES IRU FEE FEE
----- ----- ----- ------- -------------
New York Los Angeles 2,441 $15,000,000.00 $25,000 per month
commencing 1/1/2000.
EXHIBIT B: TECHNICAL SPECIFICATIONS AND ACCEPTANCE TESTS
I. TECHNICAL SPECIFICATIONS
1. INTERCONNECT SPECIFICATIONS:
1.1 The customer interconnection point of DS-1 & DS-3 signals at the Qwest
(SPT) location will be at an industry standard (DSX-1) & (DSX-3)
digital cross-connect panels and will be referred to as Qwest Network
Interface in this document.
1.2 The DS-1 & DS-3 signals terminating at the Qwest digital cross-connect
panels will meet the electrical specifications as defined in AT&T
Compatibility Bulletin (CB) Xx. 000, Xxxxx 0, Xxxxxxx, 0000.
1.3 The Qwest Digital Network will be compatible with the Xxxx System
hierarchical clock synchronization methods and stratum levels as
described in Bellcore Technical Advisory (GR436-Core).
1.4 ICON equipment must also meet the interconnect specifications listed
above and shall comply with jitter requirements of AT&T Technical
Reference PUB 63411.
2. PERFORMANCE OBJECTIVES:
2.1 DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and OC-48c circuit
performance will be measured using two parameters: Availability and
Error-Free Seconds.
The following assumptions apply to the derived data:
o The circuits originate and terminate on the SONET OC-48
backbone
o MTTR for SONET equipment: 2 hours
o MTTR for fiber optic cable: 12 hours (Bellcore Standard)
o Cable cut rate: 4.39/year/1,000 sheath miles (Bellcore
Standard) The system includes three (3) DCS in Los Angeles,
Sacramento, and San Xxxx (although not all circuits are
routed through the DCS, they are included in all the
calculations)
2.2 Availability is a measure of the relative amount of time during which
the circuit is available for use. According to CCITT and ANSI
definitions, unavailability begins when the Bit Error Ratio (BER) in
each second is worse than 1.0 E-3 for a period of 10 consecutive
seconds.
INTER OFFICE CHANNEL (IOC): An Inter Office Channel refers to the Qwest
Communications network between the points of presence (POP).
OPTICAL CARRIER LEVEL 1 (OC-1): The optical signal that results from an
optical conversion of an electrical STS-1 signal (51.840 Mb/s). This
signal forms the basis of the interface.
OC-3: Optical Carrier level 3 signal operating at 155.520 Mb/s.
OC-12: Optical Carrier level 12 signal transmitting at 622.080 Mb/s.
OC-48: Optical Carrier level 48 signal transmitting at 2488.32 Mb/s.
POINT OF PRESENCE (POP): A physical location where a long distance
carrier terminates lines before connecting to the local exchange
carrier, another carrier, or directly to a customer.
2.3 The availability objective for all circuits between Qwest Network
Interface points specified above is to provide performance levels over
any consecutive 12 month period as follows:
V&H XXXXX XX0, XX0, XX-0, XX-00,
XX-00, XX-0x, OC-12c,
AND OC-48c
0-2500 99.999%
2501-4000 99.998%
This excludes any Customer provided access links to the Qwest digital
network.
2.4 Outages attributable to incidental damage to or severage of outside
fiber optic cable plant, or scheduled maintenance is excluded from the
performance objective stated above.
2.5 Error-Free Seconds (EFS) and Error Seconds (ES) are the primary measure
of error performance. An Error-Free Second is defined as any second in
which no bit errors are received. Conversely, an Error Second is any
second in which one or more bit errors are received.
3. SONET: Synchronous Optical Network is a family of optical transmission
rates and interface standards allowing internetworking of products from
different vendors. Base optical rate is 51.840 Mb/s. Higher rates are
direct multiples.
SONET TRANSPORT: Services associated with carrying OC-l or higher level
signals.
SYNCHRONOUS TRANSPORT SIGNAL LEVEL 1 (STS-1): The basic logical
building block electrical signal with a rate of 51.840 Mb/s.
2
SYNCHRONOUS TRANSPORT SIGNAL LEVEL N (STS-N): This electrical signal is
obtained by byte interleaving N STS-1 signals together. The rate of the
STS-N is N times 51.840 Mb/s.
TERMINATING MULTIPLEX (TM): Provides the multiplex functions for
multiplexing and demultiplexing between the DS1 or higher signal level
and the SONET OC-N level.
II. ACCEPTANCE TESTING
2. ACCEPTANCE CRITERIA.
The acceptance criteria for DS1, DS3, OC-3, OC-12, OC-48, OC-3c,
OC-12c, and OC-48c circuits between Qwest Network Interface points is to provide
the performance levels shown below during a 60 minute test period. If no errors
are observed during the first 15 minutes of the test, the facility may be
considered acceptable. Access connections to customer location will be tested
in accordance with Xxxx Publication 62508.
o The tables below are based on QCC owned fiber optic network
only and on the Bellcore Specifications of the SONET
delivery of DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and
OC-48c directly off the SONET Backbone.
o If the DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and
OC-48c service is delivered at the STS1 level then the
general performance objectives fall into the industry
standard.
DS1, DS3
The table below defines the general performance objectives for DS1
service operating at 1.544 Mb/s, and the general performance objectives
for DS3 service operating at 45 Mb/s.
----------- ------- ---------
V&H MILES EFS BER
----------- ------- ---------
0 - 250 99.988% 10(12)
251 - 500 99.983% 10(12)
501 - 1000 99.971% 10(12)
1001 - 1500 99.959% 10(12)
1501 - 2000 99.948% 10(12)
3
EXHIBIT C: PAYMENT ALLOCATION SCHEDULE
For tax purposes only, the IRU Fee paid hereunder shall be allocated one
twentieth (1/20) per annual period beginning with the Effective Date.
EXHIBIT C1: PAYMENT SCHEDULE
* The payment schedule for the OC-12 will be paid over 24 months - 10/1/99
through 9/30/2001.
* The 2 years will be broken out in 4 equal time periods of 6 months each.
Payments will occur as follows:
- Period 1 (10/1/1999 - 3/31/2000): Payment of $3.75 million to be made
upon acceptance of the circuit.
- Period 2 (4/1/2000 - 9/3/2000) Payment of $4.5 million to be made.
- Period 3 (10/1/2000 - 3/31/2001) Payment of $3 million to be made.
- Period 4 (4/1/2001 - 9/30/2001) Payment of $3.75 million to be made.
* All payments can be made in cash (plus interest) or in an offset of
minutes. The interest rate is 7.5% simple interest as defined in Section
12.2.
4
-------------- ---------- ------
V&H MILES EFS BER
-------------- ---------- ------
2001 - 2500 99.936% 10(12)
2501 - 3000 99.925% 10(12)
3001 - 3500 99.913% 10(12)
3501 - 4000 99.902% 10(12)
OC-3, 12, 48; OC3c, 12c, 48c
The table below defines the general performance objectives for XX-0, XX-00,
XX-00, XX-0x, XX-00x, and OC-48c.
--------------- --------- -------
V&H MILES EFS BER
--------------- --------- -------
0 - 250 99.989% 10(12)
251 - 500 99.984% 10(12)
501 - 1000 99.974% 10(12)
1001 - 1500 99.964% 10(12)
1501 - 2000 99.954% 10(12)
2001 - 2500 99.944% 10(12)
2501 - 3000 99.933% 10(12)
3000 - 3500 99.923% 10(12)
3501 - 4000 99.913% 10(12)
5
