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EXHIBIT 10.10
CONFIDENTIAL TREATMENT REQUESTED
HIGH SPEED DATA SERVICES
MARKETING AGREEMENT
THIS HIGH SPEED DATA SERVICES MARKETING AGREEMENT (this
"Agreement") is entered into as of the 9th day of July, 1999 (the "Effective
Date"), by and between I3S, Inc., a Texas corporation, with a place of business
at 0000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxxx 00000 ("I3S"); and AvalonBay Communities,
Inc., a Maryland corporation, with a place of business at 0000 Xxxxxxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Xx. Xxx Xxxxxxxx, Vice
President-Ancillary Services ("AVALONBAY"). I3S and AVALONBAY are hereinafter
sometimes individually referred to as a "party", and collectively as the
"parties."
RECITALS:
WHEREAS, AVALONBAY currently owns and manages a multiple
dwelling unit community (an "MDU") known as the Toscana Apartments located at
0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx ("Toscana Apartments");
WHEREAS, I3S provides broadband Internet protocol network
services, including, without limitation, high speed data services, and related
support services, as more specifically described below in this Agreement and in
Exhibits D and E attached hereto and incorporated herein by reference
(collectively, the "Service"), to multiple system franchise cable operators
("MSO's"), private cable operators ("PCO's"), and real estate investment trusts
("REIT's"), nationwide; and
WHEREAS, AVALONBAY desires that I3S provide the Service to
Toscana Apartments and the residents thereof, subject to and upon the terms and
conditions set forth below in this Agreement;
NOW, THEREFORE, the parties hereto hereby covenant and agree
as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
1.1 Representations and Warranties of AVALONBAY.
Authority. To AVALONBAY's actual knowledge, (a) this Agreement
has been duly authorized, executed and delivered by AVALONBAY and constitutes a
valid
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and legally binding Agreement of AVALONBAY, and (b) neither the execution and
delivery of nor the performance of the provisions of this Agreement shall
conflict with or result in (i) a breach, violation or default under the
Certificate of Incorporation and Bylaws of AVALONBAY, or any material agreement
that is currently binding on AVALONBAY that would affect its obligations
hereunder, or (ii) the breach or violation of any law, order, rule, ordinance,
regulation, judgement or decree of an governmental authority having jurisdiction
over the Toscana Apartments or AVALONBAY.
Survival of Representations and Warranties. All
representations and warranties made by or on behalf of AVALONBAY shall survive
the execution and delivery of this Agreement, and any investigation at any time
made by or on behalf of I3S shall not diminish its rights to rely thereon.
1.2 Representations; Warranties and Covenants of I3S.
Authority. To I3S' actual knowledge, (a) this Agreement has
been duly authorized, executed and delivered by I3S and constitutes a valid and
legally binding Agreement of I3S, and (b) neither the execution and delivery of
nor the performance of the provisions of this Agreement shall conflict with or
result in (i) a breach, violation or default under the Certificate of
Incorporation and Bylaws of I3S, if applicable; or any material agreement
binding on I3S that would affect its obligations hereunder; or (ii) the breach
or violation of any law, order, rule, ordinance, regulation, judgement or decree
of an governmental authority having jurisdiction over the Toscana Apartments or
I3S.
Permits, Licenses, Etc. I3S possesses all material permits,
licenses, franchises rights, trademarks, trademark rights, trade names, trade
name rights and copyrights and all other rights, approvals and consents which
are required to conduct the business of the Service at the Toscana Apartments in
conformity with the terms and provisions of this Agreement. Prior to the
performance of any installation work for the System or any component thereof at
the Toscana Apartments, I3S shall, at its sole cost and expense, obtain all
applicable permits, approvals and licenses therefor, if any, and provide copies
of the same to AVALONBAY.
I3S Licenses. I3S possesses all material permits, approvals,
consents and licenses from third parties necessary to provide the Service to the
Toscana Apartments and its residents in conformity with the terms and provisions
of this Agreement.
Survival of Representations and Warranties. All
representations and warranties made by or on behalf of I3S shall survive the
execution and delivery of this Agreement, and any investigation at any time made
by or on behalf of AVALONBAY shall not diminish its rights to rely thereon.
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ARTICLE 2
TERM
2.1 Term. This Agreement shall have a term of three (3) years from
the Effective Date (the "Initial Term"). The Initial Term shall automatically be
extended for additional one (1) year periods following the expiration thereof
(the "Extension Terms"); provided that, at any time during the Extension Terms,
either party may terminate this Agreement upon no less than one hundred twenty
(120) days' written notice to the other party hereto.
2.2 Termination. In addition to (but not in limitation of) any
other termination rights that may be specified in this Agreement, AVALONBAY
shall have the right to terminate this Agreement (the "AVALONBAY Termination
Right") in the event that AVALONBAY shall elect to sell the Toscana Apartments
and the prospective purchaser thereof requests that AVALONBAY exercise the
AVALONBAY Termination Right, or in the event that AVALONBAY shall undergo a
"Change in Control." The AVALONBAY Termination Right shall be exercisable by
AVALONBAY upon 30 days prior written notice to I3S, which written notice shall
be accompanied by a termination payment in an amount equal to the product of (a)
the number of months then remaining in the Initial Term or any applicable
Extension Term; multiplied by (b) the monthly Subscriber revenues reflected in
the most recent monthly collections report that is provided by I3S to AVALONBAY
in accordance with Exhibit E attached (exclusive of all "Miscellaneous Charges"
(as defined below in Section 8.1) discounted back to the date of termination at
a discount rate of three percent (3%).
As used in this Agreement, the term "Change of Control" shall
mean (a) if any person shall become the beneficial owner, directly or
indirectly, of securities of AVALONBAY representing 50% or more of either the
combined voting power of AVALONBAY's then outstanding securities having the
right to vote in an election of AVALONBAY's directors or of the then outstanding
shares of common stock of AVALONBAY; or (b) if persons who, as of the date of
this Agreement, constitute AVALONBAY's Board of Directors (the "Incumbent
Directors") cease for any reason to constitute at least a majority of
AVALONBAY's Board of Directors, provided that, any person becoming a director of
AVALONBAY subsequent to the date of this Agreement whose election or nomination
for election was approved by a vote of at least a majority of the Incumbent
Directors shall, for purposes of this Agreement, be considered an Incumbent
Director; or (c) if the stockholders of AVALONBAY shall approve any (1)
consolidation or merger of AVALONBAY or any of its subsidiaries where the
stockholders of AVALONBAY, immediately prior to the consolidation or merger,
would not, immediately after the consolidation or merger, beneficially own,
directly or indirectly, shares representing in the aggregate fifty percent (50%)
of the voting shares of the corporation or other entity issuing cash or
securities in the consolidation or merger (or of its ultimate parent corporation
or other entity, if any); (2) any sale, lease, exchange or other transfer (in
one transaction or a series of transactions contemplated or arranged by any
party as a single plan) of all or substantially all of the assets of AVALONBAY;
or (3) any plan or proposal for the liquidation or dissolution of AVALONBAY.
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ARTICLE 3
EXCLUSIVITY
3.1 Exclusivity. I3S expressly acknowledges and agrees that
AVALONBAY may not, pursuant to the terms of this Agreement, be precluded from
allowing parties providing U.S. Federal Communications Commission tariffed
telecommunications or municipal franchise cable television services to the
Toscana Apartments to deliver high speed Internet access service to the Toscana
Apartments in the event that said party possesses a specific federal or state
statutory, municipal ordinance, or regulatory right to do so. Notwithstanding
the foregoing, AVALONBAY shall not accept commissions or other forms of
compensation or benefits for the marketing of such other parties' Internet
access service at the Toscana Apartments, except as provided herein for the
Service or as otherwise agreed to in writing between AVALONBAY and I3S, and,
except as otherwise required by applicable law, rules and regulations, as in
effect from time to time during the term of this Agreement (collectively,
"Applicable Laws"), AVALONBAY shall not knowingly provide, allow or support, or
knowingly cause to be provided, allowed or supported, on-premise marketing
support or efforts for such other parties' Internet access service. Further,
except as otherwise required by Applicable Laws, during the term of this
Agreement, neither I3S nor AVALONBAY shall knowingly provide, market or support,
or cause to be provided, marketed or supported, directly or indirectly, to the
Toscana Apartments any service that is competitive with the Service to be
provided by I3S pursuant to the terms hereof. Subject to the terms of this
Agreement and the requirements of Applicable Laws, I3S shall have the sole and
exclusive right to market, promote and sell the Service at the Toscana
Apartments during the term of this Agreement. Notwithstanding anything to the
contrary set forth in this Agreement, AVALONBAY shall have the right to charge
such rentals, utility fees, charges and other fees to the residents of the
Toscana Apartments, as may be determined by AVALONBAY in its sole discretion,
except that AVALONBAY shall not charge residents fees for the Service in
addition to the fees charged therefor by I3S, other than pass through charges
for the Service that may be provided to the common areas of the Toscana
Apartments.
ARTICLE 4
AFFIRMATIVE OBLIGATIONS OF AVALONBAY
4.1 General Obligations. In consideration of the mutual agreements
of the parties contained herein, AVALONBAY covenants and agrees to comply with
the covenants and obligations set forth below in this Section 4.1.
(i) Subject to the terms and provisions of this Agreement,
AVALONBAY hereby grants to I3S access or a right of entry to the Toscana
Apartments to provide the Service to the residents thereof; and
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(ii) to the extent required for the provision of the Service
by I3S to the Toscana Apartments, AVALONBAY shall, at its own expense, grant I3S
access to the equivalent of at least two (2) video channels worth of bandwidth
on the cable distribution facilities, or sufficient bandwidth on the
telecommunications distribution system (the "System") at the Toscana Apartments
to provide the Service to the residents; and
(iii) subject to the requirements of Applicable Laws and
privacy policies implemented by AVALONBAY, AVALONBAY shall use all commercially
reasonable efforts (excluding the payment of money) to assist I3S in securing
access to all occupied and unoccupied units as necessary to provide the Service
so long as I3S shall not enter an occupied unit without the resident's express
approval and I3S shall not enter any occupied unit unless resident or an adult
representative of the resident is present; and
(iv) subject to the terms of this Agreement and the
requirements of Applicable Laws, the employees, agents, or contractors of I3S
shall have reasonable access, at no charge, to the Toscana Apartments and
facilities of AVALONBAY in connection with and to perform any and all work
reasonably necessary to provide the Service at the Toscana Apartments,
including, but not limited to installation, inspection, maintenance, repair or
removal of equipment, or to facilitate the provision of the Service to I3S
customers; provided that, such access shall be at reasonable times during normal
business hours and, if requested by AVALONBAY, when such employees, agents or
contractors of I3S are accompanied by an AVALONBAY representative; and,
provided, further, that, all work to be performed by such I3S employees, agents
and contractors shall be completed in a manner so as to not unreasonably
interfere with the residents of the Toscana Apartments or the operations of
AVALONBAY thereon; and
(v) any and all maintenance or other problems with respect
to the Service will be reported directly to I3S to the point of contact
designated in writing by I3S (the "Contact"); and
(vi) AVALONBAY will promptly inform the Contact of any
material or recurring maintenance problems about which they may obtain actual
knowledge, together with the name and address of the subscriber, if any, who
made the complaint; and
(vii) AVALONBAY will direct the residents to call the Contact
regarding any complaints or technical problems concerning the Service; and
(viii) AVALONBAY will provide a secure air-conditioned space
(the "Equipment Cabinet"), at no charge, to I3S for the storage of all equipment
reasonably necessary to provide the Service at the Toscana Apartments, which
space shall be of such size, in such location, and served with such equipment,
as may be approved by AVALONBAY in its reasonable discretion; provided that, all
equipment and other items that are installed and/or stored within the Equipment
Cabinet shall be at I3S' sole risk, and AVALONBAY shall have no obligation or
liability whatsoever, if such equipment or other items shall be damaged,
destroyed or stolen (with the exception of damages thereto
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or loss thereof resulting from AVALONBAY's negligence or intentional
misconduct), I3S shall be responsible, at its sole cost and expense, for the
installation and removal of such equipment and other items into and out of the
Equipment Cabinet; and
(ix) AVALONBAY will, at its cost and expense, arrange for the
provision of electricity necessary to power the I3S equipment located in the
Equipment Cabinet; provided that, (a) all such equipment shall be low voltage,
shall not consume excessive amounts of electricity and the use of electricity by
such equipment shall not at any time exceed the capacity of any of the
electrical conductors and equipment currently serving the Toscana Apartments,
(b) I3S shall pay for the cost of any additional wiring and other work which may
be required for the operation by I3S of any equipment requiring excessive
electricity, (c) I3S shall notify AVALONBAY whenever I3S shall connect any
equipment to the Toscana Apartments electrical distribution system, and (d) if
such equipment shall consume excessive amounts of electricity, as determined by
AVALONBAY, in its reasonable discretion, AVALONBAY shall have the right to
require I3S to pay or reimburse AVALONBAY for the third party costs for such
excessive electricity; and
(x) I3S may record a memorandum of this Agreement that is in
form and substance acceptable to AVALONBAY (the "Memorandum"), provided that
such memorandum shall be subject and subordinate to any and all leases,
mortgages, deeds or trusts that encumber the Toscana Apartments at any time
during the terms hereof, and provided, further, that I3S shall provide such
certificates or other statements as AVALONBAY may request in writing from time
to time to acknowledge the subordination of the Memorandum, and provided,
further, that the Memorandum shall contain provisions specifying that the
Memorandum automatically expires, without the need for any further actions by
AVALONBAY or I3S upon the expiration or sooner termination of this Agreement and
I3S shall be obligated to execute and record at its sole cost and expense any
documents or instruments that may be required to release the Memorandum of
record upon the expiration or earlier termination of this Agreement; and
(xi) AVALONBAY is excused from performance under this
Agreement due to force majeure, as defined below in Section 14.8.
4.2 MDU Survey. Promptly after the full execution of this
Agreement, AVALONBAY shall use all commercially reasonable efforts (excluding
the payment of money) to complete and submit an MDU Survey for the Toscana
Apartments, in the form attached hereto as Exhibit A, (or otherwise provide
substantially the same information described in the MDU Survey) and deliver it
to I3S for review and approval, and I3S and AVALONBAY will use all commercially
reasonable efforts (excluding the payment of money) to establish criteria
pursuant to which I3S will be obligated to provide the Service to AVALONBAY for
the Toscana Apartments based on the information therefor that is contained in
the MDU Survey (the "Toscana Apartments Service Criteria"). The Toscana
Apartments Service Criteria shall be specified in the rider to this Agreement to
be entered into by AVALONBAY and I3S.
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4.3 Marketing. Attached hereto as Exhibit B is the initial
marketing strategy for the promotion of the Service at the Toscana Apartments
that has been jointly developed and agreed to by AVALONBAY and I3S.
ARTICLE 5
AFFIRMATIVE COVENANTS OF I3S
5.1 General Obligations. In consideration of the mutual agreements
of the parties contained herein, I3S covenants and agrees to do and perform, or
cause to be done and performed, the following:
(i) I3S possesses and shall maintain for the term of this
Agreement any and all property, right, title or interest necessary to lawfully
provide the Service as contemplated in this Agreement and to otherwise perform
I3S' obligations hereunder, and all such property, right, title and interest
shall remain free and clear of any adverse claims, interests and liens, other
than liens incurred by I3S in the ordinary course of business; and
(ii) I3S possesses and shall maintain in full force and
effect for the term of this Agreement, all material permits, licenses, consents,
approvals, franchise rights, trademarks, trademark rights, trade names, trade
name rights and copyrights which are required to provide the Service and to
otherwise perform I3S' obligations hereunder; and
(iii) With respect to performance hereunder, I3S agrees to
maintain, at all times during the term of this Agreement, as a minimum,
commercial general liability insurance with minimum limits of $1,000,000 per
occurrence for bodily injury (or death) and property damage liability with
limits of at least $1,000,000 per occurrence [Personal Injury and $1,000,000
General Policy Aggregate (applicable to Commercial General Liability Policies)]
and any additional insurance and/or bonds required by law. Prior to providing
the Service to the Toscana Apartments, I3S shall agrees to furnish certificates
or other acceptable proof of the foregoing insurance coverage for the same and
I3S shall cause AVALONBAY to be named as an additional insured on such insurance
policies. AVALONBAY shall be provided with at least thirty (30) days' prior
notice of the cancellation of any insurance coverage that is required hereunder.
I3S warrants that it meets or exceeds all insurance requirements stated herein
and those that are required by the laws in the state where the applicable
Property is located; and
(iv) I3S's employees, contractors, and agents will, while on
the Toscana Apartments, comply with all Applicable Laws and any reasonable
written rules or regulations of AVALONBAY applicable to the Toscana Apartments
and provided in advance to I3S; and
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(v) I3S shall provide the Service to the residents of the
Toscana Apartments and I3S shall collect revenues directly from its subscribers;
and
(vi) As more specifically described in Exhibits D and E
attached hereto and incorporated herein by reference, I3S shall assume and pay
all operating and capital costs and expenses associated with the provision of
the Service to the Toscana Apartments, including, but not limited to, any and
all:
Monthly recurring private Internet exchange points
Monthly recurring switch maintenance
Monthly recurring POP transport
Monthly recurring Dallas network operations center costs
(including installation costs)
Customer support IP technicians and engineers (NOC, Help Desk
and field personnel)
I3S-specific training
Insurance on I3S capital equipment
I3S-specific travel and entertainment
Switch site equipment (including installation costs)
Peering point routers
Private Internet exchange point hardware (including
installation costs)
I3S network infrastructure equipment
Transport facilities
Backbone transport facilities
Monthly recurring local loop costs
Monthly recurring property maintenance (Lce, Router, DSU/CSU)
Monthly recurring IP headend maintenance
CSR platform and services
Internet browser platform user license
MDU property IP equipment (Lce, Router, DSU/CSU)
IP master headend equipment
Non-recurring local loop transport costs
Customer billing and collections; and
(vii) All revenue sharing, commissions, compensation or other
payments to be paid to AVALONBAY for granting I3S access to the Toscana
Apartments in conformity with the terms of this Agreement shall be the sole and
exclusive responsibility of I3S; and
(viii) I3S shall remove the existing fire wall located at the
Toscana Apartments; and
(ix) I3S is excused from performance under this Agreement
due to force majeure, as defined below in Section 14.8.
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ARTICLE 6
DESCRIPTION OF THE SERVICE
6.1 Description of the Service. During the term of this
Agreement, I3S shall provide, or cause to be provided to the residents of the
Toscana Apartments, the Service, more particularly described and set forth in
Exhibits D and E attached hereto and incorporated herein by reference.
Notwithstanding anything to the contrary set forth in this Agreement, (a) I3S
shall have no rights under or pursuant to this Agreement (whether exclusive or
non-exclusive) to provide analog cable television, digital cable television or
circuit switched telephony service of any nature to the Toscana Apartments
without AVALONBAY's prior written consent; and (b) at all times during the term
of this Agreement, the Service that is required to be provided by I3S to the
Toscana Apartments and its residents shall conform to and be consistent with the
highest comparable standards and capabilities for the Service that are then
generally prevailing throughout the high speed data services industry as the
same may be modified, improved and upgraded from time to time.
ARTICLE 7
DEFINITION OF SERVICE LEVEL STANDARDS
7.1 Definition of Service Level Standards. Subject to the
conditions, qualifications and limitations set forth herein, including, without
limitation, those set forth in Exhibit D and E attached hereto and incorporated
herein by reference, during the term of this Agreement, I3S shall offer, or
cause to be offered, the service level standards pertaining to various aspects
of the Service, as more particularly described and set forth in Exhibits D and E
attached hereto and incorporated herein by reference.
ARTICLE 8
REVENUE ALLOCATION; CUSTOMER ACCESS PRICING; BRANDING
8.1 Revenue Allocation. Internet access revenue (the "Revenue")
generated by I3S subscribers at the Toscana Apartments will be paid directly to
I3S and AVALONBAY shall have no responsibility or liabilities for the failure of
any subscriber to pay such internet access fees; provided, however, that, by the
twenty-fifth day of each month I3S shall pay AVALONBAY a revenue sharing fee
(the "Revenue Sharing Fee") calculated as a percentage of Revenue for the
Toscana Apartments, prepaid or not, (exclusive of installation charges, customer
service charges, customer equipment sales or leases, other reasonable and
customary charges that are "passed through" on a no-markup basis and collected
by I3S, and comparable charges [collectively, the "Miscellaneous Charges"])
actually collected by or on behalf of I3S during the immediately preceding month
("Commissionable Revenues") in accordance with the following tables:
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Penetration Revenue Share
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10% or below *
15% or below *
20% or below *
30% or below *
40% or below *
50% or below *
Greater than 50% *
"Penetration" means the total number of I3S subscribers at the
Toscana Apartments divided by the total number of units available for rent at
the Toscana Apartments. Under no circumstances shall I3S increase any of the
Miscellaneous Charges above a level that is usual and customary in the industry
or for the purpose of enabling I3S to reduce the Commissionable Revenues for the
Toscana Apartments. At the option of AVALONBAY, exercisable by at least ten (10)
days prior written notice to I3S, on or after the dates that are twenty-four
(24) months and forty-eight (48) months after the date of execution of this
Agreement, the parties agree to renegotiate the Revenue Sharing Fee and the
definition of Commissionable Revenues in good faith in accordance with the then
current market standards, such that the Revenue Sharing Fee shall be increased
or decreased, and the scope and type of revenue to be included within the
definition of Commissionable Revenues shall be expanded, to be consistent with
then-prevailing market standards. I3S shall obtain AVALONBAY's prior written
approval for any increase or decrease in internet access fees in excess of a
twenty-five percent (25%) variation from the then-current fees for internet
access.
8.2 Restructuring of Payments to AVALONBAY. Each of AVALONBAY and
I3S acknowledge that I3S is the party solely responsible for providing the
Service to the Toscana Apartments pursuant to this Agreement. Notwithstanding
the foregoing, in the event that a determination ("Determination") is made by
either tax counsel to AVALONBAY, or the Internal Revenue Service, with respect
to any taxable year of AVALONBAY that:
(a) with respect to the Toscana Apartments, the payments to
AVALONBAY pursuant to Section 8.1 of this Agreement exceed one percent (1%) of
the gross revenues received by AVALONBAY from all sources with respect to the
Toscana Apartments,
(b) such payments are characterized as income described in
Section 856(d)(7) of the Internal Revenue Code of 1986, as amended, (the "Code")
and,
(c) the sum of(l) the amounts described in (a) above, plus (2)
all other amounts which fail to qualify as income described in Section 856(c)(2)
of the Code exceed ninety-five percent (95%) of the AVALONBAY's gross income
from all sources for such taxable year, then, an amount equal the difference
between (X) the amount described in (a) above and (Y) the maximum amount which
could have been received from I3S pursuant to Section 8.1 above which would not
have exceeded one percent (1%) of AVALONBAY's
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gross revenues with respect to the Toscana Apartments for such taxable year (the
"Excess") shall be treated as having been advanced to AVALONBAY by I3S as a loan
pursuant to a binding agreement that such Excess be repaid to I3S, with interest
at the rate of 6%, compounded semi-annually, within 30 days of the date of such
Determination.
8.3 Customer Access Pricing. With the intent to increase Service
penetration at the Toscana Apartments, I3S, in consultation with AVALONBAY shall
establish the price at which access to the Service is made available to
subscribers. Prior to the provision of the Service, I3S shall provide to
AVALONBAY for AVALONBAY's review the proposed pricing structure and service
quality and content standards for the Service to the Toscana Apartments, which
Service shall be consistent with the requirements therefor, as specified in this
Agreement.
8.4 Branding. With respect to the Service, and the promotion
thereof, I3S shall establish the brand names, logos, labels, trademarks, service
marks and other such identifying promotional characteristics pertaining to the
same throughout the term of this Agreement. At AVALONBAY's request, I3S agrees
to "co-brand" with AVALONBAY's trademarks and service marks; provided that, in
such event, AVALONBAY, shall agree to indemnify I3S from and against losses
incurred by I3S resulting from any trademark or service xxxx infringement claims
arising in connection therewith, the terms and provisions of such indemnity to
be mutually and reasonably agreed upon by AVALONBAY and I3S.
ARTICLE 9
SPECIFIC SOFTWARE WARRANTIES
9.1 Ownership; Authority. I3S represents and warrants that the
software and other programs, products and items utilized by I3S to provide the
Service and perform its obligations hereunder (collectively, the "Products") are
free and clear of all liens and encumbrances, other than those incurred in the
ordinary course of business, and that it has full power, license and authority
to utilize the rights granted to it with respect to such Products without the
consent of any other person or that such consent has been obtained, and that, to
the knowledge of I3S, the Products utilized hereunder will not infringe or
violate any copyright, trade secret, trademark, patent or other intellectual
property rights of any third party.
9.2 Compliance With Applicable Laws. I3S represents and warrants
that the provision of the Service pursuant to this Agreement shall be in
compliance with all applicable federal and state laws, rules and regulations.
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ARTICLE 10
INDEMNIFICATION
10.1 Intellectual Property Rights Indemnification. I3S shall
defend, indemnify and hold harmless AVALONBAY, its directors, officers,
shareholders, employees and agents and its successors and assigns, from and
against any and all claims, demands, actions, liabilities, losses, damages and
expenses, including, without limitation, settlement costs and reasonable
attorneys' fees, disbursements and litigation costs, arising out of or relating
to any actual or alleged infringement of any third party's trade secrets,
trademark, service xxxx, copyright, patent or other intellectual property rights
(the "Intellectual Property Rights") in connection with the use of said
Intellectual Property Rights hereunder. I3S's obligation pursuant to the
immediately preceding sentence is subject to the following conditions: (i)
AVALONBAY shall give I3S prompt written notice of all actions, claims or threats
against AVALONBAY, about which AVALONBAY obtains actual knowledge, of
infringement or violation of Intellectual Property Rights; (ii) AVALONBAY shall
permit I3S to elect to assume complete control of such claims at its sole
discretion and expense; and (iii) AVALONBAY shall reasonably cooperate with I3S
in defending against claims, including making known or available to the
indemnifying party, upon reimbursement of all costs associated with provision or
reproduction of, all records and document pertaining to claims, excluding
information, records and documents that are confidential or proprietary to
AVALONBAY. Notwithstanding the foregoing, (a) AVALONBAY's failure to promptly
notify about any such actions, claims or threats shall not impair I3S's
indemnification obligations under this Section 10.1 unless I3S is materially
prejudiced thereby; (b) under no circumstances shall I3S have the right to enter
into any settlement of any such action, claim or threat against AVALONBAY
without AVALONBAY's prior consent thereto unless pursuant to such settlement,
AVALONBAY shall be fully and completely released from any and all liabilities
associated with the subject of such action, claim or threat, AVALONBAY does not
have any ongoing obligations with respect thereto, and AVALONBAY has no
obligations to pay any sums to any party in connection therewith; and (c)
AVALONBAY shall have the right to participate in the defense of such action,
claim or threat with its own counsel at its own expense.
10.2. Indemnification. In addition to the indemnification specified
above in Section 10.1, each party shall indemnify the other (and its directors,
officers, shareholders, employees and agents and its successors and assigns)
against all claims, demands, actions, liabilities, losses, damages, and
expenses, including, without limitation, settlement costs and reasonable
attorneys' fees, disbursements and litigation costs resulting from injury to or
death of any person (including injury to or death of their employees), loss of
or damage to tangible real or tangible personal property (including damage to
their property) or the environment, or other loss, cost or expense, but only to
the extent that such claims, demands, actions, liabilities, losses, damages or
expenses were proximately caused by its breach of this Agreement or by any
negligent act or omission, willful misconduct or violation of law on the part of
the party from whom indemnity is sought (the "Indemnitor"), its agents,
employees, subcontractors or assignees. Indemnitor shall have the right to
assume defense of the claim with counsel
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reasonably acceptable to the indemnitee. The indemnitee shall be entitled to
participate in the defense of the claim with its own counsel at its sole
expense. The obligations of the Indemnitor pursuant to the immediately preceding
sentence are subject to the following conditions: (i) the indemnitee shall give
the Indemnitor prompt written notice of all actions, claims or threats against
the indemnitee that are covered by the foregoing indemnitee; (ii) the indemnitee
shall permit the Indemnitor to elect to assume complete control of such claims
at its sole discretion and expense; and (iii) the indemnitee shall reasonably
cooperate with the Indemnitor in defending against claims, including making
known or available to the indemnifying party, upon reimbursement of all costs
associated with provision or reproduction of, all records and document
pertaining to claims, excluding information, records and documents that are
confidential or proprietary to the indemnitee. Notwithstanding the foregoing,
(a) the indemnitee's failure to promptly notify about any such actions, claims
or threats shall not impair the Indemnitor's indemnification obligations under
this Section 10.2 unless the Indemnitor is materially prejudiced thereby; (b)
under no circumstances shall the Indemnitor have the right to enter into any
settlement of any such action, claim or threat against the indemnitee without
the indemnitee's prior consent thereto unless pursuant to such settlement, the
indemnitee shall be fully and completely released from any and all liabilities
associated with the subject of such action, claim or threat, the indemnitee does
not have any ongoing obligations with respect thereto, and the indemnitee has no
obligations to pay any sums to any party in connection therewith; and (c) the
indemnitee shall have the right to participate in the defense of such action,
claim or threat with its own counsel at its own expense.
ARTICLE 11
PROTECTION OF PROPRIETARY RIGHTS
11.1 Confidential Information. Information to be held in confidence
shall be clearly marked "Proprietary" or "Confidential." Information which is
conveyed orally shall be deemed confidential only if prior to disclosure it is
indicated as being confidential and written confirmation identifying the
confidential or proprietary information is provided to the receiving party
within ten (10) business days after it was discussed orally. I3S expressly
acknowledges that all information concerning the residents at the Toscana
Apartments shall be deemed confidential and proprietary to AVALONBAY, unless
AVALONBAY otherwise so specifies in writing.
11.2 Restrictions. Each party shall use all commercially reasonable
efforts to maintain the confidentiality of such Confidential Information and not
show or otherwise disclose such Confidential Information to any third parties,
including, but not limited to, independent contractors and consultants, without
the prior written consent of the disclosing party.
11.3 Authorized Disclosures. Notwithstanding the obligations
described in Section 11.2 above, neither party shall have any obligation to
maintain the confidentiality of any Confidential Information which: (i) is or
becomes publicly available by other than
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unauthorized disclosure by the receiving party; (ii) is independently developed
by the receiving party; or (iii) is received from a third party who has lawfully
obtained such Confidential Information without a confidentiality restriction and
except that each party shall have the right to disclose the Confidential
Information (a) to the extent required by Applicable Laws (including, without
limitation, securities laws or the rules of the exchange where AVALONBAY's
securities are listed or traded), (b) to the extent required in connection with
the performance by any party of its obligations under this Agreement or to
pursue its rights and remedies under this Agreement, (c) to any party's lenders,
investors, principals, officers, directors, underwriters, placement agents or
third party consultants(and any person who is being furnished Confidential
Information because he or she may prospectively secure a transaction),
including, without limitation, attorneys and accountants; or (d) by AVALONBAY,
to any prospective purchaser of the Toscana Apartments. Except as otherwise
permitted by this Section 11.3, each party shall use the Confidential
Information solely for purpose of performing its obligations under this
Agreement. If required by any court of competent jurisdiction or other
governmental authority, the receiving party may disclose to such authority,
data, information or material involving or pertaining to Confidential
Information to the extent required by such order, provided that the receiving
party shall first have used all commercially reasonable efforts to obtain a
protective order reasonably satisfactory to the disclosing party sufficient to
maintain the confidentiality of such data, information or materials.
11.4 Limited Access. Each party shall use all commercially
reasonable efforts to limit the use and access of Confidential Information to
such party's bona-fide employees or agents (including attorneys and accountants)
who have a need to know such information for purposes of conducting the
receiving party's business. Each party shall notify all employees and agents and
all persons listed in Section 11.3(c) who have access to Confidential
Information or to whom disclosure is made that the Confidential Information is
the confidential, proprietary property of the disclosing party and shall
instruct such employees and agents to maintain the Confidential Information in
confidence.
11.5 Continuing Obligations. Each party's obligations under this
Article 11 shall survive the termination of this Agreement for two (2) years
thereafter.
11.6 Confidentiality of Terms. Unless approved in advance by the
non-disclosing party, except for the existence of this Agreement, the terms and
provisions of this Agreement shall remain strictly confidential and shall not be
disclosed to any third party other than a party's attorneys, accountants, other
professional advisers, potential purchasers of the Toscana Apartments or of
AVALONBAY; provided that, the foregoing limitations shall not apply to
disclosures of the terms of this Agreement that are required by applicable law
or in order for any party hereto to enforce the terms hereof or to pursue its
rights or remedies hereunder.
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ARTICLE 12
DEFAULT; TERMINATION
12.1 Default. Upon the occurrence of any of the following events, a
party shall be deemed to be in default under this Agreement:
(a) Material breach of any warranty or misrepresentation by
the defaulting party;
(b) Material failure to perform the defaulting party's
obligations hereunder, including, but not limited to, with respect to I3S, its
failure to (i) provide the Service in accordance with the requirements hereof
and to maintain the service standards set forth in Section 7.1 hereof, and (ii)
make the payments to AVALONBAY set forth in Section 8.1 hereof.
(c) The defaulting party's ceasing to conduct business in the
normal course, insolvency, the making of a general assignment for the benefit of
its creditors, suffering or permitting the appointment of a receiver or similar
officer for its business or assets or availing itself of, or becoming subject
to, any proceeding under the United States Federal Bankruptcy Laws or any
federal or state statute relating to solvency or the protection of the rights of
creditors; or
(d) Making of any warranty, representation, statement or
response in connection with this Agreement which was untrue in any material
respect on the date it was made by the defaulting party.
12.2 Remedies. In the event the defaulting party fails to cure any
default set forth hereunder within thirty (30) days, except for defaults
pursuant to Section 12.1(b)(ii), which shall have a cure period of ten (10)
business days and defaults pursuant to Section 12.1(c), which shall have a cure
period of thirty (30) days, after written notice of such default by the
non-defaulting party specifying the acts or omissions constituting the default
with reference to the sections of this Agreement which have allegedly been
breached, the non-defaulting party may terminate this Agreement without further
obligation on the part of the non-defaulting party (except for I3S' obligations
to pay to AVALONBAY all sums that are due from I3S pursuant to Section 8.1),
and/or pursue claims at law or in equity against the defaulting party, including
without limitation, the remedy of specific performance, the parties hereby
agreeing that the remedy of specific performance is appropriate hereunder
because the remedies available at law may be inadequate to fully and effectively
make the non-defaulting party hereunder whole.
12.3 Failure to Exercise Remedy. The remedies set forth above are
cumulative, but the non-defaulting party is under no obligation to exercise any
such remedy. The exercise of, or failure to exercise, any such remedies shall
not prevent any future exercise of the same or any other remedies or release the
defaulting party from its obligations under this Agreement.
12.4 Effect of Termination. Termination of this Agreement shall not
impair either party's then accrued rights, obligations, liabilities or remedies
hereunder.
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ARTICLE 13
NOTICE; PUBLIC DISCLOSURES
13.1 Notice. All notices pursuant to this Agreement shall be in
writing and may be personally delivered or sent by overnight courier or by
Certified or Registered mail. All notices personally delivered shall be deemed
delivered at the time of such delivery. All notices sent by Certified or
Registered mail shall be deemed delivered five (5) days after deposited in the
US mail. All notices sent by overnight courier shall be deemed made one (1)
business day after delivery to such courier service. Any party may designate a
change of address upon ten (10) days written notice.
If to I(3)S, to:
I(3)S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx 00000
Attn: Mr. Xxx Xxxxx, CEO
with a copy to:
I(3)S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx 00000
Attn: Xxxx Xxxxxxxx, President
If to AVALONBAY, to:
AvalonBay Communities
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxx Xxxxxxxx,
Vice President-Ancillary Services
with a copy to:
AvalonBay Communities
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.,
General Counsel
13.2 Public Disclosures. All media releases, public announcements,
and public disclosures by either party of its employees, agents or
representatives relating to this Agreement or the subject matter hereof,
excluding any announcement beyond the control of this disclosing party, will be
subject to the reasonable approval by the non-disclosing party in writing prior
to release.
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ARTICLE 14
MISCELLANEOUS
14.1 Entire Agreement. This Agreement, together with the recitals,
schedules, attachments and exhibits attached hereto or referred to herein,
constitutes the entire Agreement and understanding among the parties hereto with
respect to the provision of the Service at the Toscana Apartments and is the
final expression of their Agreement on that subject and no evidence of oral or
other prior written promises shall be binding. All other prior agreements or
understandings related to the subject hereof among the parties, whether written
or oral, shall be null and void and of no further force and effect upon the
execution of this Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
14.2 Incorporation by Reference. The recitals, schedules, exhibits
and attachments referred to herein or attached hereto are hereby incorporated in
and to this Agreement and made a part hereof by this reference.
14.3 Amendment; Modification. This Agreement may not be
supplemented, amended, modified or otherwise altered except by written
instrument executed by all the parties hereto and no course of dealing or trade
usage among or between the parties shall be effective to supplement, amend,
modify or alter this Agreement.
14.4 Waiver. The failure to enforce or to require the performance
at any time of any of the provisions of this Agreement herein shall in no way be
construed to be a waiver of such provisions, and shall not affect either the
validity of this Agreement, any part hereof or the right of any party thereafter
to enforce each and every provision in accordance with the terms of this
Agreement.
14.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITh THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD
TO ITS CONFLICTS OR CHOICE OF LAWS.
14.6 Continuity of Contract. If any severable provision of this
Agreement is deemed invalid or unenforceable by any judgment of a court of
competent jurisdiction, the remainder of this Agreement shall not be affected by
such judgment, and this Agreement shall be carried out as nearly as possible
according to its original terms and intent, unless to do so would substantially
impair the underlying purposes of this Agreement.
14.7 Captions. The captions appearing in this Agreement are
included solely for convenience of reference and shall not be construed or
interpreted to affect the meaning or interpretation of this Agreement.
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14.8 Force Majeure. Neither party shall be responsible for any
failure to comply with or for any delay in performance of the terms of this
Agreement, including, but not limited to, delays in delivery, where such failure
or delay is directly or indirectly caused by or results from events of force
majeure beyond the control of either party. These events shall include, but not
be limited to, fire, flood, earthquake, accident, civil disturbance, war, acts
of God, or acts or government.
14.9 Hiring Prohibited. During the term of this Agreement and for a
period of one (1) year thereafter, neither party shall solicit for hire any
employee of the other party who has performed services under this Agreement.
14.10 Dispute Resolution Procedures. Except for disputes, claims or
controversies pertaining to Article 11, in the event of any dispute, claim or
controversy arising out of or relating to the provisions of this Agreement and
their interpretation or implementation (a "Dispute"), the following procedures
(the "Dispute Resolution Procedures") shall be the exclusive procedures used by
the parties to resolve such Dispute:
(a) Negotiations. The parties will attempt in good faith to
resolve the Dispute through negotiation. Any party may initiate negotiations
with regard to a Dispute by providing Notice (an "Initiation Notice") in letter
form to the other party, setting forth in reasonable detail the subject of the
Dispute and the relief requested. The party receiving such notice shall respond
within five (5) business days with a written statement of such party's position
on, and recommended solution to, the Dispute. If the Dispute is not resolved by
this exchange of correspondence, then representatives of each party (who shall
be senior officers of the parties, and who shall have either full settlement
authority or full authority to negotiate the terms of a settlement and to
present such terms to such party's Board of Directors for approval), will meet
at a mutually agreeable time and place within five (5) business days of the date
of the Initiation Notice in order to exchange relevant information and
perspectives, and to attempt to resolve the Dispute.
(b) Mediation. In the event that any Dispute is not resolved
within fifteen (15) days from the date an Initiation Notice with respect thereto
is first given, then any party may thereafter commence mediation with respect to
such Dispute and any related Disputes that have become the subject of such
negotiations by providing to J.A.M.S/ENDISPUTE and the other party a written
request for mediation, setting forth the subject of the Dispute(s) and the
relief requested. The parties will cooperate with J.A.M.S/DISPUTE and with one
another in selecting a mediator from J.A.M.S/ENDISPUTE's panel of neutrals, and
in scheduling the mediation proceedings. The parties covenant that they will
participate in the mediation in good faith, and that the parties will share
equally in its costs (exclusive of such party's own legal fees and other costs).
(c) Confidential and Privileged Information. All offers,
promises, and statements, whether oral or written, by any of the parties, their
agents, employees, experts and attorneys, and by the mediator and any
J.A.M.S/ENDISPUTE employees, made in
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the course of the negotiations initiated pursuant to Section 14.10(a) above or
the mediation provided in Section 14.10(b) above, are confidential, privileged
and inadmissible for any purpose, including impeachment, in any arbitration,
litigation or other proceeding involving the parties, provided that evidence
that is otherwise admissible or discoverable shall not be rendered inadmissible
or non-discoverable as a result of its use in such negotiations or mediation.
(d) Binding Arbitration.
(i) The parties shall have the right, following the
initial mediation session initiated pursuant to Section 14.10(b) above, to
submit to J.A.M.S/ENDISPUTE, or its successor, for final and binding arbitration
pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq., any
Dispute that has been submitted for mediation pursuant to Section 14.10(b)
above, and that has not been resolved by the 45th day after the date of the
Initiation Notice giving rise to negotiations or mediation with respect to such
Dispute. The mediation proceedings may continue after the commencement of
arbitration if the parties so desire. Unless otherwise agreed by the parties,
the mediator shall be disqualified from serving as an arbitrator in the case.
(ii) A demand for arbitration pursuant to Section
14.10(d)(i) shall be made by a party by filing a written demand with
J.A.M.S/ENDISPUTE with a copy to the other parties. The arbitration will be
conducted in accordance with the provisions of J.A.M.S/ENDISPUTE's Comprehensive
Arbitration Rules and Procedures in effect at the time of filing of the demand
for arbitration. The parties will cooperate with J.A.M.S/ENDISPUTE and with one
another in selecting an arbitrator from J.A.M.S/ENDISPUTE's panel of neutrals,
and in scheduling the arbitration proceedings. Each party covenants that it will
participate in the arbitration in good faith, and that it will share equally in
the costs of arbitration (exclusive of such party's own legal fees and other
costs).
(iii) The award of the arbitrator shall upon
application of any party, with Notice thereof to the party, be entered as a
final and conclusive judgment in any state or federal court with jurisdiction.
The provisions of this Section 14.10(d) may be enforced by any court of
competent jurisdiction, and the party seeking enforcement shall be entitled to
an award of all costs, fees and expenses, including attorneys fees, to be paid
by the party against whom enforcement is ordered.
(iv) By executing this Agreement, the parties have
expressly agreed to (A) have all Disputes that cannot be resolved pursuant to
Sections 14.10(a) and/or 14.10(b) above decided by neutral arbitration; (B)
waive any rights they might possess to have those matters litigated in a court
or jury trial; (C) waive their judicial rights to discovery and appeal, except
to the extent that they are specifically provided for under this Agreement. Any
party that refuses to submit to arbitration in conformity with this Section
14.10(d) may be compelled to arbitrate under federal or state law. Each party
hereby acknowledges and agrees that they are voluntarily, and with advice of
counsel, agreeing to the arbitration provisions set forth in this Section
14.10(d).
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Notwithstanding the foregoing, the party secured by any deed of trust shall have
the right to recognize this Agreement. In the event of any foreclosure sale
under such deed of trust, this Agreement shall continue in full force and effect
at the option of the party secured by such deed of trust or the purchaser under
any such foreclosure sale. I3S covenants that it will, at the written request of
the party secured by any such deed of trust, execute, acknowledge and deliver
any instrument that has for its purpose and effect the subordination to said
deed of trust of the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
I3S, Inc. AvalonBay Communities, Inc.
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXX XXXXXXXX
-------------------------- ----------------------------------
Xxxxxxx Xxxxxxxx Xxx Xxxxxxxxx
President Vice President Ancillary Services
Date: 6/26/99 Date: July 9, 1999
------------------------ --------------------------------
LIST OF EXHIBITS
EXHIBIT A: MDU Survey
EXHIBIT B. Marketing Strategy
EXHIBIT C: Sample Memorandum of this Agreement
EXHIBIT D: Description of High Speed Data Services Provided by I3S
EXHIBIT E: Service Level Agreement
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EXHIBIT A - MDU SURVEY
OPERATOR
NAME
--------------------------------------------------------------------------
CONTACT PERSON
----------------------------------------------------------------
ADDRESS
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
TELEPHONE NO.
------------------------------------------------------------------
FAX NO.
------------------------------------------------------------------------
E-MAIL ADDRESS
-----------------------------------------------------------------
OWNER
NAME
--------------------------------------------------------------------------
CONTACT PERSON
----------------------------------------------------------------
ADDRESS
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
TELEPHONE NO.
------------------------------------------------------------------
FAX NO.
-----------------------------------------------------------------------
E-MAIL ADDRESS
----------------------------------------------------------------
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EXHIBIT A - MDU SURVEY
PROPERTY
CONTACT PERSON
----------------------------------------------------------------
ADDRESS
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
TELEPHONE NO.
------------------------------------------------------------------
FAX NO.
-----------------------------------------------------------------------
E-MAIL ADDRESS
----------------------------------------------------------------
NUMBER OF UNITS
----------------------------------------------------------------
NUMBER OF BUILDINGS
-----------------------------------------------------------
AGE OF BUILDINGS
-------------------------------------------------------------
CURRENT OCCUPANCY
-------------------------------------------------------------
MONTHLY RENTAL FOR ONE BEDROOM
------------------------------------------------
MONTHLY RENTAL FOR TWO BEDROOM
------------------------------------------------
MONTHLY RENTAL FOR THREE BEDROOM
----------------------------------------------
FULL LEGAL DESCRIPTION OF THE PROPERTY SUFFICIENT TO RECORD MEMORANDUM OF RIGHT
OF ENTRY AGREEMENT:
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EXHIBIT A - MDU SURVEY
CATV/MATV SITE SURVEY INFORMATION
HOW LONG HAVE YOU BEEN PROVIDING SERVICE AT THIS LOCATION
-------------------------------------------------
CHANNEL LINE UP AND PRICING
-------------------------------------------------
BASIC PENETRATION
-------------------------------------------------
PAY PENETRATION
-------------------------------------------------
AGE OF CABLE DISTRIBUTION PLANT
-------------------------------------------------
MANUFACTURER AND TYPE OF CABLE
-------------------------------------------------
MANUFACTURER AND TYPE OF SPLITTERS AND OTHER CONNECTORS
-------------------------------------------------
LOOP THROUGH OR HOME RUN WIRING
-------------------------------------------------
REMAINING TERM ON CONTRACT TO SERVE THE PROPERTY
-------------------------------------------------
ANY CLAIMS OF BREACH OR DEFAULT ON THE CONTRACT
-------------------------------------------------
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EXHIBIT A - MDU SURVEY
Certification
I certify that, to my actual knowledge (without duty of
inquiry), the statements made in this survey are true and correct in all
material respects.
------------------------------------------
Name:
Title:
Company:
Date:
------------------------------------
Certification
I3S certifies that prior to making any investment at the
above-described Property, I3S shall conduct such investigations and due
diligence studies at the Toscana Apartments (subject to the Owner's prior
approval thereof) as I3S shall deem necessary or appropriate to satisfy itself
that such investment is prudent for I3S, and I3S is not relying on the foregoing
survey information in making such determination to invest at the referenced
Property.
I3S, Inc.
By:
----------------------------------------
Xxxxxxx Xxxxxxxx
President
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EXHIBIT B - INITIAL MARKETING STRATEGY
a) I3S shall be allowed limited access to the Toscana
Apartments, including the multipurpose room and lobby on the Toscana Apartments,
to solicit residents in order to market Services subject to all applicable laws
and ordinances regarding solicitation, subject to approval by Owner. AVALONBAY's
representatives shall reasonably cooperate with I3S in its advertising and
promotional efforts including Main Lobby demonstrations, displays, and
distribution of materials. I3S shall receive permission from AVALONBAY's
representative prior to all solicitation in the multi-purpose room or lobby.
Direct solicitation, including door to door, will not be allowed.
b) AVALONBAY agrees to display I3S collateral material
(provided that I3S provides such material to AVALONBAY and such material does
not violate any of AVALONBAY's applicable laws and ordinances regarding
collateral material) in high-visibility locations on the Toscana Apartments,
including the leasing and management office as reasonably approved by
AVALONBAY.
c) AVALONBAY agrees to include I3S marketing materials in
literature provided to all new Residents (provided that I3S provides such
material to AVALONBAY and such material does not violate any of AVALONBAY's
applicable laws and ordinances regarding marketing material). Such material to
include programming guides, available services, user guides and customer service
information.
d) Subject to limitations of applicable laws or regulations:
upon request by I3S, AVALONBAY will provide via facsimile to I3S's sales and
installation specialist referenced described below), the addresses of new
move-ins on a monthly basis. If AVALONBAY requests, I3S will provide a list of
those units that have subscribed for services with I3S via facsimile or regular
mail.
e) I3S will provide the staff of the Toscana Apartments with
marketing materials to promote Services to current residents and to prospective
residents. I3S will assign a sales and installation specialist from its staff to
assist AVALONBAY in the marketing of I3S's Services to residents of the Toscana
Apartments.
f) AVALONBAY will provide an on-site leasing staff to
introduce I3S's services to all new Residents, using marketing and enrollment
material (provided such material does not violate any of AVALONBAY's applicable
laws and ordinances regarding marketing and enrollment material) provided by
I3S. Training of the leasing staff is to be conducted by I3S during normal
business hours.
g) If AVALONBAY becomes aware of any illegal access of I3S's
services, AVALONBAY agrees to advise I3S about residents who are illegally
obtaining Service. If access to an individual unit is needed to confirm such
illegal use, AVALONBAY will shall cooperate to the extent permitted by State,
Federal or any Landlord Laws governing the access to an individual unit.
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h) I3S shall provide Service at no cost or expense to one
employee per every 100 apartments located at the Toscana Apartments to the
extent such employees live and work on-site to help promote the Service
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EXHIBIT C - MEMORANDUM OF AGREEMENT
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxxxx Xxxxxxxx
President
I3S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
MEMORANDUM OF EXISTENCE OF AGREEMENT
A revocable license has been granted by Avalon Bay Communities,
("Grantor"), the owner of record of the premises located at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxx, XX 00000 to I3S ("Grantee") under a certain Master High Speed Data
Services Marketing Agreement dated July 9th, 1999 by and between Grantor and
Grantee (the "Agreement"). Subject to the terms and provisions of the
Agreement, the license permits Grantee, among other things, to provide high
speed data services, as described in the Agreement, and to engage in other
activities contemplated by the Agreement at the Property described herein. This
Agreement runs with the land and terminates on the earlier of (i) three (3)
years after the above date, or (ii) any termination of the Agreement in
conformity with the terms and provisions thereof. Such earlier termination may
be evidenced by the recording of an Affidavit executed by Grantor stating that
such termination has occurred. Which Affidavit shall have the effect of
vacating this Memorandum of record without the need for any further action by
the Grantor or the Grantee. As used in the Agreement, the term "Property" means
that the real property consisting of approximately 709 units located in the
city/town/village of Sunnyvale, County of__________, State of California, at the
address commonly known as the Toscana Apartments, 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxx. Whose legal description is as follows:
In the event of any conflict between the terms and conditions of this Memorandum
of Existence and the terms and conditions of the Agreement, the Agreement shall
govern and control. The parties agree that the sole purpose of this Memorandum
is to provide notice of the Agreement.
The undersigned personally warrants and represents that he/she has the authority
to execute this Memorandum on behalf of the Grantor and the information stated
in this Memorandum is true and accurate in all material respects.
Executed this ______ day of _______________,199__.
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GRANTOR:
--------------------------------------------
A
----------------------------------------------
BY:
-------------------------------------------------
NAME:
------------------------------------------------
TITLE:
----------------------------------------------
STATE OF
---------------
COUNTY OF
---------------
On ___________, 199 , before me, ________________, personally appeared
________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies) and that by his/her/their signature(s)
on the instrument and the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
------------------------------------(seal)
GRANTEE: I3S, Inc.
A Texas corporation
BY:
---------------------------
NAME:
------------------------------------
TITLE:
------------------------------------
STATE OF
---------------
COUNTY OF
---------------
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On _________________ 199 , before me, ____________, personally
appeared ________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies) and that by his/her/their signature(s)
on the instrument and the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
------------------------(seal)
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EXHIBIT B
MARKETING STRATEGY
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EXHIBIT D
DESCRIPTION OF HIGH SPEED DATA SERVICES PROVIDED BY I3S
The I3S HSDS is a data network service that provides transport and peering
functions of Internet Protocol (IP) data traffic, including, without limitation:
Broadband access networks on MDU properties composed of one or more
broadband access technologies including but not limited to coaxial or hybrid
fiber coaxial (HFC) cable television distribution systems, twisted-pair
copper-wire-based telephone distribution systems, twisted-pair copper-wire-based
local area network distribution systems and fiber-optic-based local area network
distribution systems;
Local loop networks that connects the broadband access networks on each MDU
property to the I3S regional points-of-presence (POPs) in each metropolitan area
served by I3S;
Regional point-of-presence networks that connects the POPs to the X0X.xxx
national IP backbone;
A national IP backbone consisting of broadband communication facilities for
the transport of data among I3S POPs and public and private Exchange Points
where data and Internet routing information will be exchanged with other
networks peered with X0X.xxx as part of the global Internet;
A national Network Operations Center (NOC).
Computer services to be agreed to by AVALONBAY and I3S that include, without
limitation:
Membership system for user authentication and authorities;
Personalization services for customizing content to user preferences;
Internet mail (SMTP and POP3);
Internet newsgroups (NNTP) composed of approximately 25,000 or more
newsgroups;
Internet World Wide Web (HTTP) services;
Internet chat (IRC and MIRC);
Conferencing and collaboration bridges;
Streaming multimedia services such as Microsoft's NetShow and Progressive
Network's RealMedia;
A branded suite of client software that include:
Web browse;
Mail reader;
News reader;
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Chat client;
Conferencing and collaboration client;
Appropriate plug-ins and ActiveX controls.
Customer service functions to be agreed upon by AVALONBAY and I3S that
include, without limitation:
A National Customer Care Center;
A telephone and network-based customer help desk;
A Trouble Reporting facility;
A customer billing system.
Multimedia-rich content that showcases the capabilities of HSDS to be agreed
upon by AVALONBAY and I3S that include, without limitation:
Original content created by I3S;
Aggregated content created by others but licensed by I3S and improved for
uses in a HSDS system;
Aggregated content created by others but licensed by I3S and used
unimproved.
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Requirements
Related to Broadband Access Networks
Utilizing Multiple Broadband Access Technologies (mBAT)
AVALONBAY's Responsibilities (AVALONBAY shall use all commercially reasonable
efforts to perform these responsibilities.)
Provide, or cause to be provided, as mutually agreed between the parties,
suitable physical-layer coaxial-cable, twisted-pair copper-wire, or fiber-optic
distribution plant on each AVALONBAY property that will meet or exceed I3S
specifications;
I3S Responsibilities:
Provide technical specifications for suitable physical-layer distribution plants
for I3S's HSDS;
Inspect and accept or reject, according to the mutually agreed specifications,
physical-layer distribution plants proposed by AVALONBAY as suitable for I3S's
HSDS;
Maintain, or cause to be maintained, physical layer distribution plants built
and owned by AVALONBAY that are used for I3S's HSDS;
Install, maintain and operate data delivery equipment for each property offering
HSDS (including, without limitation, replacement of existing equipment, should
the same cease to function or require repair). Installation and maintenance will
meet or exceed manufacturer's specifications and the requirements set forth in
the Agreement. Through itself or its agents, AVALONBAY will assist I3S with
pre-installation engineering planning and site survey questionnaires;
Integrate all data delivery equipment for each property into the I3S Element
Management System portion of its Network Management Platform using SNMP and/or
RMON. I3S will monitor all data delivery equipment twenty-four hours per day,
seven day per week (24x7);
Assume the cost (or replacement cost) of the acquisition of all data
communication equipment necessary to provide HSDS and to provide termination and
delivery of HSDS between the Subscriber and the I3S POP in each Market;
Without limitation on the foregoing or the attached SLA, both parties
acknowledge that the end to end performance of HSDS is probabilistic and subject
to anomalous short lived usage patterns by Subscribers which will affect both
the utilization of the local loop circuits and the X0x.xxx national backbone
from time to time;
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Configure and operate all data delivery equipment to efficiently integrate with
the rest of the X0x.xxx network;
Subscribers will not be required by I3S to install or operate a custom web
browser; and
Subject to all applicable laws and regulations, Subscribers will have voluntary
access to all public Internet sites and services.
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ADDITIONAL REQUIREMENTS
RELATED TO BROADBAND ACCESS NETWORKS
UTILIZING CABLE TELEVISION DISTRIBUTION SYSTEMS
AVALONBAY's Responsibilities (These responsibilities apply only to the extent
HSDS is to be provided by I3S by means of an interconnection to a third party's
CATV distribution plant on an applicable property. AVALONBAY shall use all
commercially reasonable efforts to perform these responsibilities.):
Cause CATV infrastructure to comply with FCC requirements;
Upgrade, or cause to be upgraded, property CATV infrastructure to provide
bi-directional cable delivery to all subscribers;
Cause the upgraded bi-directional CATV infrastructure to exceed the minimal
operational requirements of the I3S cable modem system, which are:
Minimum Cable Television Network Requirements for x0x.xxx HSDS
Value
Amplitude variations inband
Forward channel
Return channel
5 dB total
5 dB total
Group delay variation inband
Forward channel
Return channel
60 nsec/MHz, 240 nsec total
200 nsec/MHz, 800 nsec total
Maximum tap to tap variation
27dB
Dynamic range on receiver
-15 dBmV to +15 dBmV
Maximum return/upstream loss
49 DB
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Minimum carrier to noise
22 dB
Minimum carrier to interference
25 dB
Provide, or cause to be provided, two (2) six MHz video channels within the CATV
infrastructure bandwidth on Internet served properties; one (1) in the spectrum
from 54 MHz to 750 MHz and one (1) in the 5MHz to 50 MHz spectrum; and
reserve another two (2) additional video channels, in the same spectrums for
future expansion as Subscriber penetration on the property increases; and
Designate, or cause to be designated, an engineering point of contact for each
cable company operating the cable television distribution system for I3S Network
Operations Center (NOC) to report problems or failures related to the cable
television distribution system twenty-four hours per day, seven days per week
(24x7).
I3S Responsibilities:
Use the cable modem system, and certain network management features that it
provides, to monitor the availability and quality of AVALONBAY's property
network (its CATV plant) and the Equipment;
Report to AVALONBAY's designated engineering point of contact any problems
observed by the I3S NOC in the course of operating the cable modem system
network management features; and
Report to AVALONBAY's designated engineering point of contact any problems
determined by Subscriber contact in the course of operating the Subscriber Help
Desk.
Local Loop Characteristics
AVALONBAY's Responsibilities
Provide, or cause to be provided, proper space, security and power for Local
Loop termination and transmission equipment necessary to provide Internet
delivery and other data services on the property.
I3S Responsibilities:
Install, maintain and operate local loop termination and transmission equipment
necessary for each property offering HSDS. Installation and maintenance will
meet or exceed manufacturer's specifications and the requirements set forth in
the Agreement.
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Through itself or its agents, AVALONBAY will assist I3S with pre-installation
engineering planning and site survey questionnaires;
Integrate all local loop termination and transmission equipment equipment for
each property into the I3S Element Management System portion of its Network
Management Platform using SNMP and/or RMON. I3S will monitor all local loop
termination and transmission equipment twenty-four hours per day, seven day per
week (24x7);
Assume the cost of the acquisition of all local loop termination and
transmission equipment necessary to provide HSDS and to provide termination and
delivery of HSDS between the Property and the I3S POP in each Market;
Order, provision, install and maintain local loop communications links between
each property and I3S POP in each Market with a bandwidth of not less than 1.544
mb/s (T1). In addition, as the number of Subscribers on each property increases,
scale the local loop bandwidth so that each simultaneously active user averages
approximately 1 mb/s ninety eight percent (98%) of the time;
Without limitation on the foregoing or the attached SLA, both parties
acknowledge that the end to end performance of HSDS is probabilistic and subject
to anomalous short lived usage patterns by Subscribers which will affect both
the utilization of the local loop circuits and the X0X.xxx national backbone
from time to time; and
Configure and operate all local loop termination and transmission equipment to
efficiently integrate with the rest of the X0x.xxx network.
Point of Presence
Features and Establishment Requirements
I3S Responsibilities:
Acquire, install and maintain data communication equipment at each POP for the
termination and transmission of HSDS from properties to the x0x.xxx national
network backbone;
I3S will determine the location of its main presence in each Market to be
consistent with its own operational practices (which currently include
co-locating within its carrier's central offices in each Market);
Acquire, install, maintain and operate Internet peering relationships at public
and private Internet Exchange Points (EP) with other Tier 1 Internet backbone
networks throughout the United States;
Acquire, install, maintain and operate computers and software to provide Network
Management and provide Internet services for Subscribers. To provide these
functions,
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I3S will employ a combination of locally-distributed-to-the-POP servers as well
as globally centralized servers consistent with its overall network design and
operational practices; and
Order, provision, install, maintain and operate data transport/carriage pathways
from each POP, EP and/or NOC with a bandwidth not less than 45 mb/s (DS-3)
interconnection. In addition, as the number of Subscribers on Market increases,
scale the bandwidth so that each simultaneously active user averages
approximately 1 mb/s ninety eight percent (98%) of the time.
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I3S INFORMATION OPERATIONS
CONTENT PRODUCTION; AVALONBAY/BROADBAND NOW!TM LAUNCH PAGE
I3S operates, and shall operate for the term of this Agreement, an information
content operation for creating original content or aggregating content created
by others and licensed to I3S for inclusion in the I3S body of content. This
material will consist of but not limited to informational, educational,
recreational, entertainment and business content. This body of content will be
offered to Subscribers of the HSDS product. AVALONBAY shall have the right to
create original content or provide content created by others which also will be
offered to Subscribers of the HSDS product.
Without limitation on paragraph 1 above, I3S will create content as creative
and/or business opportunities present themselves. The I3S content will be
updated as I3S, using its editorial judgment, sees fit, but in no event less
frequently than the highest industry practice.
Certain portions of this content will be offered to all HSDS Subscribers free of
charge (Basic Content). Other portions of the content may be offered to HSDS
Subscribers on an optional fee basis for unlimited access to a fixed package of
content (Premium Content). Another certain portion of the content may be offered
to HSDS Subscribers on an optional fee basis for access to a specific
time-limited event (Pay-Per-View Content).
In addition to the fees charged customers for content (which shall be subject to
the limitations set forth in the Master Agreement), I3S may solicit and sell
advertising and other revenue-producing transaction opportunities that will
appear on certain portions of the content.
All fees for premium content, pay-per-view content, advertising and
revenue-producing transactions shall be determined by I3S, subject to the terms
and provisions of the Master Agreement.
The potential revenue set forth here for content shall not be subject to other
provisions in the Agreement (including attachments) regarding revenue sharing,
fees and pricing, except as otherwise set forth herein.
I3S, or its content partners, will design, produce and update, as necessary, all
content and be responsible for all such costs.
I3S shall initially design, produce and update, as necessary, a customized
launch page (the "Launch Page") for HSDS Subscribers, which can be used to
market and promote the HSDS, and, on I3S's standard time and materials rates (or
as otherwise agreed by the parties), AVALONBAY's other services. In addition,
the Launch Page will include hyperlinks to AVALONBAY's corporate web sites as
directed by AVALONBAY, which web sites will be separately established and
maintained by AVALONBAY, except as
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otherwise agreed to in writing between I3S and AVALONBAY. The Launch Page shall
meet the technical, functional and appearance requirements specified by I3S. I3S
shall from time to time update the Launch Page throughout the Term in accordance
with the terms of this Agreement. I3S may offer HSDS Subscribers Launch Pages
that are personalized (by property) and that, in addition to the features
described above, may promote the I3S content offerings and provide direct
hyperlinks to the I3S content.
In no event, at any time during the term of this Agreement, shall I3S knowingly
permit or use any (i) content in the AVALONBAY/Broadband Now! web site or within
its information content operations which contains obscene material, sexually
explicit adult programming, or indecent material as defined in Section 47 C.F.R.
76.701(g); (ii) material in the AVALONBAY Broadband Now! web site soliciting or
promoting unlawful conduct; or (iii) programming in the AVALONBAY/Broadband Now!
web site that may or could have been subject to the Telecommunications Act of
1996, Section 641, relating to the scrambling of sexually-explicit adult video
service programming.
Customer Care Center Features
I3S Responsibilities
Provide a toll free number for:
Inquiries about the HSDS supplied by I3S
Ordering and scheduling installation of HSDS products
Billing inquiries
Initial technical support inquires
Technical support for all HSDS issues
Technical support for Subscriber CPE issues related to HSDS
Answer toll free line consistent with the AVALONBAY/I3S service co-brand.
Operate 24x7 customer care call center operation.
Maintain sufficient customer service staff and call center capacity to connect
to Subscribers within 1 minutes of call entering processing operation.
Develop and publish escalation procedure for Customer Service Representatives
related to network issues.
Resolve billing issues within 24 hours 95% of time, on a monthly basis.
Resolve property network issues within 24 hours 95% of time, on a monthly basis.
Resolve technical issues within 24 hours if a phone call is required 95% of
time, on a monthly basis.
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Resolve technical issues within 48 hours if a truck roll is required 95% of
time, on a monthly basis.
Develop and publish escalation procedures for AVALONBAY to contact regarding
technical issues related to the network.
Subscribers' Hardware and Software Installation
Specifications and Installation Requirements
I3S shall:
Verify that potential Subscribers' personal computers meet the I3S-established
minimum requirements for the supplied software and the HSDS service;
Make an appointment with each new Subscriber to meet the installation personnel
for the installation of the HSDS in the Subscriber's unit;
Collect the Subscriber information required to install, provision and complete
the set up of Subscribers' HSDS service. I3S will develop an appropriate
paper-form-based system or automated system to facilitate this process;
Provide, or cause to be provided, coaxial connection to the Subscriber's
specified location;
Verify, or cause to be verified, that the coaxial connection completed to the
Subscriber's specified location exceeds the minimum operational requirements for
the I3S-supplied CPE and the I3S HSDS service;
Verify, or cause to be verified, and if necessary, promptly (but not more than a
reasonable time frame set by AVALONBAY) perform repairs such that all access
network services function properly (and to not less than the standards
pre-existing I3S HSDS operations) after I3S completes installation and
throughout the provision of HSDS;
Maintain a sufficient inventory of CPE for each Market and develop procedures
to restock CPE as used in Subscriber installations;
Issue and install the required CPE for the service requested by the Subscriber;
Meet the Subscriber at the Subscribers location at the scheduled time within the
tolerances and limits as defined in the I3S Service Level Agreement;
Install the required cable modems(s) and have HSDS operational in the
Subscriber's unit within the number of days of a Subscriber's request set forth
in Section 6.4 of the Agreement;
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Install any required network interface cards (NICs), TCP/IP protocols and
Internet software suite in the Subscriber's personal computer;
Offer the Subscriber a brief introduction to the HSDS to be performed at the
time of installation. This introduction will include how to launch the service,
how to find the training material on the x0X.xxx Web site, how to find the
Subscriber Support Section on the x0X.xxx Web site and how to call for technical
assistance or support;
Obtain signatures required to verify that each Subscriber installation was
executed properly and to the satisfaction of the Subscriber; and
Provide AVALONBAY with a copy of the installation transaction documentation
verifying that the completed installation is ready for billing. This
documentation will include the CPE delivery receipt, the ISP contract and the
completed work order.
HSDS Initial Subscriber Rates, Service Levels
And Installation and Equipment Charges
The following table outlines the various levels of service available to Personal
Service subscribers:
Personal Service Level Price per
Month Downstream Transmission Speed Upstream Transmission Speed % of
Time Subscriber is Guaranteed Downstream and
Upstream Speeds
BBNow!(TM) Lite $29.95 64 Kbps 64 Kbps 98%
BBNow!(TM) Standard $49.95 1.0 Mbps 1.0 Mbps 98%
BBNow!(TM) Max $79.95 1.5 Mbps 1.5 Mbps 98%
The following table outlines the various levels of service available to Home
Office Service subscribers:
Home Office Service Level Price per
Month Minimum Downstream Transmission Speed Minimum Upstream
Transmission Speed
Home Office - Level 1 $199 1.5 Mbps 128 Kbps
Home Office - Level 2 $299 1.5 Mbps 512 Kbps
Home Office - Level 3 $499 1.5 Mbps 1.0 Mbps
Home Office - Level 4 $699 1.5 Mbps 1.5 Mbps
Vanity DNS hosting $100.00 per month
Installation fee $49.95 non-recurring
Network interface card (NIC) market price (not to exceed $60)
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CPE (cable modem, xDSL modem or other
broadband access device) purchase market price
Monthly rental of CPE market price*
*The decision to purchase or rent the CPE necessary for the provision of HSDS
shall be at the sole discretion of each resident subscribing to HSDS.
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EXHIBIT E
Service Level Agreement
This Service Level Agreement is attached and made a part of the Master High
Speed Data Services Access and Right of Entry Agreement by and between I3S, Inc.
and AVALONBAY (the "Agreement").
Introduction
This Exhibit entitled "Service Level Agreement" ("SLA") sets out operation
specifications and requirements for HSDS provided by I3S for the residents or
customers of the Toscana Apartments (as defined in the Agreement). The SLA shall
encompass data services originating and terminating within the I3S internetwork
("x0x.xxx").
Subject to the terms and provisions of the Agreement, the HSDS provided by I3S
shall meet the operations specification and requirements stated herein, which
are generally stated in terms of events or outcomes, rather than terms of
specific hardware, software or procedural requirements. For the purposes of the
SLA, x0x.xxx shall relate to that portion of the global Internet operated by
I3S, originating within end users' customer premises and terminating within I3S
computers or transported and peered at a public or private Internet Exchange
Point.
For the purposes of the SLA, a "Trouble" or "Trouble Report" shall relate to
x0x.xxx or I3S provided services (or resold services) and the Equipment and
I3S-maintained facilities, but shall exclude customer error, defects in Customer
Premises Equipment ("CPE"), defects in customers' computers, defects in property
cable or wiring plants, defects in fiber optic distribution systems, defects in
cable television distribution systems and network problems experienced by
destination networks at or beyond Internet Exchange Points.
The terms and conditions of this SLA do not limit I3S's obligations set forth
elsewhere in the Agreement, but if there is a conflict with respect to service
obligations between this SLA and the Agreement, the Agreement shall govern and
control.
Performance Requirements
Percent Customer Service Order Beginning Commitment Dates Timely Met
This parameter is generally indicative of the timely beginning of work on orders
from customers for new service or orders to make changes in their existing
service.
The timely beginning parameter is calculated by dividing the total Customer
Service Orders begun on or before the date and clock hour promised to the
customer that the
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service order would be started by the total number of service orders initiated
in each calendar month and multiplying by 100.
I3S shall exhibit greater than 90% Customer Service Order Beginning Commitment
Dates Timely Met per month.
Percent Customer Service Order Completion Commitment Dates Timely Met
This parameter is generally indicative of the timely completion of work on
orders from customers for new service or orders to make changes in their
existing service and the timely completion of those service orders.
The timely completion parameter is calculated by dividing the total Customer
Service Orders completed on or before the date and clock hour promised to the
customer that the service order would be completed by the total number of
service orders initiated in each calendar month and multiplying by 100.
I3S shall exhibit greater than 90% Customer Service Order Completion Commitment
Dates Timely Met per month.
Percent of Network Availability
This parameter is generally indicative of the availability of the network to
transport and peer customer data at an Internet Exchange Point, or, in the event
that the customer data is to be fulfilled by computers within x0x.xxx, generally
indicative of the availability of to transport data to the I3S servers and the
availability of the servers.
This parameter is calculated by dividing the number of seconds that the network
is available for each customer by the total number of customer-seconds in each
calendar month and multiplying by 100.
Specifically excluded from the Network Availability calculation shall be
regularly scheduled maintenance windows or ad hoc maintenance windows scheduled
and announced 24 hours in advance in the x0x.xxx Customer Support Web Site.
Specifically excluded from the Network Availability calculation shall be periods
of time where the access distribution plant (operated by AVALONBAY or its
designated third party operator) exceed the operational standards set by I3S for
each type of broadband access technology.
I3S shall exhibit greater than 98% Network Availability per month.
Percent Customer Calls Answered within 45 Seconds by I3S Personnel
This parameter is based upon the number of customers calls answered within 15
seconds by a human operator or by an ACD queue greeting during the hours of
operation of the
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I3S National Customer Care Center and thereafter to be answered by a human
customer representative within 30 seconds. At a minimum, the I3S National
Customer Care Center shall operate from 8:00 a.m. to 5:00 p.m. Central Time,
Monday through Friday exclusive of holidays.
This parameter is calculated by dividing the number of calls answered with 45
seconds by the total number of Customer Care Center calls answered in each
calendar month and multiplying by 100.
I3S shall exhibit greater than 90% of Customer Calls Answered within 45 Seconds
per month.
Percent of Trouble Reports Resolved Timely
This parameter is related to the number of Trouble Reports resolved within the
following windows:
For Trouble Reports received by I3S at the I3S National Customer Care Center
prior to 2:00 p.m. Central Time, Monday through Friday, excepting holidays, will
be cleared by the end of the next business day.
This parameter is calculated by dividing the total trouble reports cleared on or
before the date and clock hour promised to the customer the total number of
Trouble Tickets cleared in each calendar month and multiplying by 100.
I3S shall exhibit greater than 90% Trouble Reports Cleared Timely per month,
according to the terms of this section for trouble that can be resolved by I3S
alone.
Percent Customer Repair Visit Appointments Met
This parameter is related to the customer commitments made by the I3S National
Customer Care Center for repairs that require a repair visit to customers' sites
or premises.
This parameter is calculated by dividing the total Customer Repair Visits
Appointments met on or before the date and clock hour promised to the customer
by the total number of Customer Repair Visit Appointments initiated in each
calendar month and multiplying by 100.
I3S shall exhibit greater than 90% Customer Repair Commitment Met per month.
Percent of Customer Bills Prepared Timely
This parameter is related to the generation of Customer Bills for delivery to
customers by mail, electronic mail or credit card billing.
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This parameter is calculated by dividing the number of Customer Bills generated
and sent to customers within twenty (20) business days of the end of the billing
cycle by the total number Customer Bills generated in each calendar month and
multiplying by 100.
I3S shall exhibit greater than 95% Customer Bills Prepared Timely per month.
Percent of Customer Bills Prepared Accurately
This parameter is related to the accuracy of Customer Bills for delivery to
customers by mail, electronic mail or credit card billing.
This parameter is calculated by dividing the number of Customer Bills generated
that do not require an adjustment due to a billing error caused I3S by the total
number Customer Bills generated in each calendar month and multiplying by 100.
I3S shall exhibit greater than 95% Customer Bills Prepared Accurately per month.
Reports
I3S shall provide to AVALONBAY reports within twenty (20) business days of the
end of each calendar month, the reports listed below in this section, each of
which may be provided separately or provided on a consolidated basis:
A report depicting total subscribers, gross new customers and gross customers
terminated separated by product tier and property.
New service orders, Trouble Reports opened and closed or cleared as appropriate
separated by date and property.
Aggregate I3S National Customer Care Center data depicting the distribution of
call waiting time in general and the percent calls answered and calls abandoned
respectively.
Billing summaries describing the date(s) bills were sent to customers, and the
billed revenue disaggregating major categories of service.
Holidays
New Years Day
Memorial Day
Memorial Day
Independence Day
Labor Day
Thanksgiving
Day after Thanksgiving
Christmas
Any other national or state holiday recognized by I3S
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