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EXHIBIT 10.17
AMENDMENT NO. 1
SERVICE AGREEMENT
This Amendment No. 1 to Service Agreement (this "Amendment") is made as
of April 16, 1997 (the "Amendment Effective Date") by and among IXC CARRIER,
INC., a Nevada corporation ("Lessor") and CRL NETWORK SERVICES, a California
corporation ("Lessee").
BACKGROUND
This Amendment is made with reference to the following facts:
A. Lessee and Lessor are parties to that certain Service Agreement dated
as of April 22, 1996 (the "Agreement").
B. The parties desire to amend the Agreement pursuant to the terms set
forth below.
TERMS OF AMENDMENT
Accordingly, in consideration of the mutual promises set forth below,
the parties hereto hereby agree as follows:
1 Exhibit F attached to this Amendment is hereby added as Exhibit F to
the Agreement.
2. This Amendment is effective as of the Amendment Effective Date-
3. All other terms and conditions of the Agreement not specifically
amended herein shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment.
IXC CARRIER, INC. CRL NETWORK SERVICES
By: /s/ Xxxx X. Xxxxxxx By: /s/ X. Xxxxx
Name: Xxxx X. Xxxxxxx Name: J Couch
Title: Executive Vice President Title: President
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Certain portions of this document in the price information in Schedule B to
Exhibit F of Amendment 1 have been omitted and filed separately with the
Securities and Exchange Commission based on a request for confidential treatment
with respect to the omitted portions.
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EXHIBIT F
BROADBAND SERVICE ADDENDUM
This Broadband Service Addendum (this "Addendum") dated as of April 16,
1997 is attached to and made a part of that certain Service Agreement (the
"Agreement ) entered into by and between IXC CARRIER, INC. ("Lessor") and CRL
NETWORK SERVICES ("Lessee"), dated as of April 22, 1996.
1. Scope and Rates. Lessor, or an affiliate of Lessor, shall use
reasonable efforts (considering the needs of its other customers) to start the
provisioning of interstate data network service ("Broadband Service") described
in Schedule A attached to this Addendum to Lessee for which a written service
order ("Service Order") has been accepted. A form of Service Order is attached
hereto as Schedule B attached to this Addendum. The rates for the Broadband
Service are set forth in Schedule B, attached to this Addendum, unless otherwise
specified in the applicable Service Order.
2. Payments. Lessee shall pay Lessor each month within 30 days of
the date of invoice without demand or set off by Lessee: (i) the monthly charges
prorated for any partial month) based on the applicable rates set forth in the
applicable Service Order; and (ii) the charges for other services received. The
first invoice shall be for the first two months; each invoice thereafter shall
be for the following month. If any invoice is not paid when due: (i) a late
charge shall accrue equal to 1-1/2% (or the maximum legal rate, if less) of the
unpaid balance per month; and (ii) Lessor may suspend or terminate the Broadband
Service.
3. Term. The term hereof shall begin as of the date of this Addendum
and shall remain in force and effect until the date one (1) year from the date
of this Addendum, unless extended or earlier terminated pursuant to its terms.
If Broadband Service continues thereafter, the applicable rates will be equal to
120% of the rates hereunder and Broadband Service may be terminated by either
party upon 30 days' notice. Lessee may terminate any Broadband Service upon 90
days' notice; provided that if termination occurs: (i) prior to the date any
Broadband Service has been first made available to Lessee, Lessee shall
reimburse Lessor for all costs of the implementation of such Broadband Service;
and (ii) on or after such date, Lessee shall pay: (A) all charges for any
Broadband Service previously rendered; and (B) the amount due through the end of
the applicable monthly charges during the term for such Broadband Service
(Lessor shall try to re-lease such services for such term, refunding to Lessee
the amount so collected' if any). If Lessor: (i) fails to provide Broadband
Service within six months of the date requested by Lessee in the applicable
Service Order; or (ii) fails to cure a material breach hereof within 45 days of
notice from Lessee, Lessee may, as its only remedy, terminate the affected
service. To be effective, such written notice to Lessor must prominently contain
the following sentences in capital letters: "THIS IS FORMAL NOTICE OF A BREACH
OF CONTRACT. FAILURE TO CURE SUCH BREACH WILL HAVE SIGNIFICANT LEGAL
CONSEQUENCES." Notwithstanding anything herein to the contrary, no termination
of this Agreement or any affected Broadband Service shall affect or reduce
Lessee's obligation to make the take-or-pay commitment payments required by
Section 1 above.
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4. Limits of Liability. Lessor shall not be liable for any direct,
indirect, reliance or consequential damages, whether foreseeable or not, or for
any damage to property, loss of profits, cost of replacement services, or claims
of customers for service problems caused by any defect, delay in availability,
or failure in the Broadband Service or by any other cause. In no event shall
Lessor be liable in excess of the aggregate amount it has collected from Lessee
hereunder. Lessor shall give Lessee a credit in accordance with its then-current
outage policy for periods in which any Broadband Service loses continuity and
fails to comply with applicable specifications. Such credit shall be Lessee's
sole remedy with respect to such an event; provided, however, that no such
credits shall be allowed and Lessor shall not be liable for any Broadband
Service defect from causes outside its control, including accidents, cable cuts,
fires, floods, emergencies, government regulation, wars, or acts of God. LESSOR
DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO SERVICE, INCLUDING BUT
NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE. LESSEE HAS NOT RELIED ON ANY REPRESENT NOT SET FORTH HEREIN. LESSEE
SHALL INDEMNIFY LESSOR FROM ANY CLAIMS MADE BY ANY OF LESSEE'S CUSTOMERS.
5. All other terms and conditions of the Agreement not specifically
referred to in this Addendum shall apply to this Addendum.
To confirm their agreement to be bound hereby, the parties hereto have
executed this Addendum below:
IXC CARRIER, INC. CRL NETWORK SERVICES
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx
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Title: Executive Vice-President Title: President
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SCHEDULE A
BROADBAND SERVICES PRODUCTS
Company will provide ATM DS-3 Service with a Sustained Cell Rate Virtual Circuit
(SCR/VC) of 1 MHz and a Peak Cell Rate (PCR) of 10 Mb to CRL Network Services as
covered within this Agreement and reflected in the pricing in Schedule B. The
ATM DS-3 Service Trial is for a 60 day period after which Customer may elect
pursuant to Service Trial Agreement to retain Service at rates listed in
Schedule B. Furthermore, please see accompanying topology drawing for
clarification of design.
**Please be advised that any and all CUSTOMER PREMISE EQUIPMENT AND LOCAL
ACCESS facilities and charges are the Participant/Customer's responsibility.
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SCHEDULE B
CRL
ATM PRICING SUMMARY
WHOLESALE PRICING WITH 45mbps (ATM-UNI) PORT CONNECTIONS AND 15mbps (VBR) VIRTUAL CHANNEL
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TOTAL TOTAL
DESCRIPTION RECURRING NON-RECURRING
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SAN FRANCISCO
45mbps(DS3) ATM-UNI Port Connection [**] [**]
DALLAS, TX
45mbps(DS3) ATM-UNI Port Connection [**] [**]
15mbps (VBR) Virtual Channel DLLS-SNFC [**] [**]
WASHINGTON, DC
45mbps (DS3) ATM-UNI Port Connection [**] [**]
15mbps (VBR) Virtual Channel WASHDC-SNFC [**] [**]
----------------------------------------------------------------------------------------
TOTAL NETWORK [**] [**]
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WHOLESALE PRICING WITH 45mbps (ATM-UNI) PORT CONNECTIONS AND 10mbps (VBR) VIRTUAL CHANNEL
-----------------------------------------------------------------------------------------
TOTAL TOTAL
DESCRIPTION RECURRING NON-RECURRING
-----------------------------------------------------------------------------------------
SAN FRANCISCO
45mbps(DS3) ATM-UNI Port Connection [**] [**]
DALLAS, TX
45mbps(DS3) ATM-UNI Port Connection [**] [**]
10mbps (VBR) Virtual Channel DLLS-SNFC [**] [**]
WASHINGTON, DC
45mbps (DS3) ATM-UNI Port Connection [**] [**]
10mbps (VBR) Virtual Channel WASHDC-SNFC [**] [**]
----------------------------------------------------------------------------------------
TOTAL NETWORK [**] [**]
-----------------------------------------------
WHOLESALE PRICING WITH 45mbps (ATM-UNI) PORT CONNECTIONS AND 5mbps (VBR) VIRTUAL CHANNEL
-----------------------------------------------------------------------------------------
TOTAL TOTAL
DESCRIPTION RECURRING NON-RECURRING
-----------------------------------------------------------------------------------------
SAN FRANCISCO
45mbps(DS3) ATM-UNI Port Connection [**] [**]
DALLAS, TX
45mbps(DS3) ATM-UNI Port Connection [**] [**]
5mbps (VBR) Virtual Channel DLLS-SNFC [**] [**]
WASHINGTON, DC
45mbps (DS3) ATM-UNI Port Connection [**] [**]
5mbps (VBR) Virtual Channel WASHDC-SNFC [**] [**]
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TOTAL NETWORK [**] [**]
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NOTE:
1. All calls transmitted on greater than the standard call rate (VBR) will
have the Call Loss Priority (CLP) bit set to one (1) and the delivery
of such calls is not guaranteed.
2. All virtual circuits will have a Peak Call Rate set at 200% of the
Sustained Call Rate.
3. Prices do not include any local loop charges that may apply.
[**] Pursuant to a request for confidential treatment, price information in this
document has been omitted and separately filed with the Securities and
Exchange Commission.
