MCI
MCI Telecommunications
Corporation
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
FIRST AMENDMENT TO MCI
CORPORATE SERVICE PLAN
THIS FIRST AMENDMENT TO MCI CORPORATE SERVICE PLAN (hereinafter
referred to as the "Amendment") is entered into as of the dates set forth below,
by and between MCI Telecommunications Corporation ("MCI") and ▇▇▇▇▇▇ Group, Inc.
and its wholly owned subsidiaries (identified in Exhibit A, attached hereto and
incorporated herein) ("collectively, the Customer "), effective as of the first
day of the fire full month after the tariff governing the offering under this
First Amendment becomes effective or the first day of the month if the tariff
effective date is the same date (such date is hereinafter referred to as the
"First Amendment Effective Date").
WITNESSETH:
WHEREAS, heretofore, Customer and MCI entered into that certain MCI
Corporate Service Plan dated December 5, 1994 (the "Agreement") with respect to
certain services to be provided to Customer by MCI, as more particularly
described therein; and
WHEREAS, Customer and MCI wish to amend the Agreement to reflect
certain changes;
NOW, THEREFORE, in consideration of the premises, the terms and
conditions stated herein, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as follows:
1. Definitions. All capitalized terms used herein and not expressly
defined herein shall have the respective meanings given to such terms
in the Agreement.
2. CSP Definitions. Section I of the Agreement is hereby amended by adding
the following:
"For purposes of this Agreement, the collective term "Customer" shall
also include (i) ▇▇▇▇▇▇ Group, Inc. and (ii) ▇▇▇▇▇▇ Group, Inc.'s
wholly owned subsidiaries identified in Exhibit A. The monthly
recurring usage charges for Representatives of ▇▇▇▇▇▇ Drive Away who
chose to participate under this Agreement pursuant to Section 22 below
("Representatives") shall be included in the calculation of the Annual
Minimum under this Agreement."
3. Term. The Agreement is hereby amended by deleting Section 5 in its
entirety and replacing it with the following new Section 5:
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"5. The initial term of this Agreement shall be for a period of
thirty (30) months commencing on the First Amendment Effective
Date. After the initial term, this Agreement shall remain in
effect on a month to month basis, unless terminated by ▇▇▇▇▇▇
Group, Inc. or MCI on thirty (30) days prior written notice;
provided, however, that during the period of usage following
the initial service term ▇▇▇▇▇▇ Group, Inc. shall not receive
any discounts or credits in any month in which Customer's use
of MCI services does not equal or exceed one-twelfth (1/12th)
of the Annual Minimum ("Monthly Minimum"). In the event ▇▇▇▇▇▇
Group, Inc.'s usage meets the Monthly Minimum during the each
month following the initial service term, ▇▇▇▇▇▇ Group, Inc.
shall be entitled to receive the rates and discounts provided
pursuant to this Agreement."
4. Annual Minimum. The Agreement is hereby amended by deleting Section 6
in its entirety and replacing it with the following new Section 6:
"6. ANNUAL MINIMUM. (a) Customer agrees that during each
consecutive twelve (12) month period of the initial term
("Annual Period"), Customer will purchase from MCI at least
Nine Hundred Thousand Dollars ($900,000), or a pro rata
portion thereof for any partial Annual Period ("Annual
Minimum") in the MCI services set forth in Attachments I and 2
(as more fully time elect to convert the balance remaining in
the Fund to invoice credits. Such credits will be applied
within two (2) invoices following Customer's request.
(e) In the event Customer's MCI account is in arrears at any time
during the initial term of this Agreement, MCI may elect in
its sole discretion to convert Customer's outstanding Fund
balance, at any time, into invoice credits in order to offset
amounts owed to MCI, including without limitation
underutilization charges and charges arising from early
termination. In the event this Agreement is terminated
pursuant to Section 7 hereof, any credit balances remaining in
the Fund at the date of early termination will be forfeited,
and any amount which was used towards participating vendor
products or MCI invoice credits will be charged back to
Customer.
(f) The Fund balance will be unavailable to Customer during any
period in which Customer has failed to comply with any payment
arrangement pursuant to the Tariff, or has failed to pay
invoices in a timely manner.
6. Representatives Program. The Agreement is hereby amended by adding the
following new Section 22:
"22. (a) in order to remain eligible to participate under this
Agreement, each ▇▇▇▇▇▇ Drive Away Representative must fulfill
all the requirements to be considered a Representative
according to ▇▇▇▇▇▇ Drive Away's terms and conditions. The
parts of this agreement that relate to the provision of
telecommunications services and any
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related discounts and credits to Representatives shall
constitute the "Program." ▇▇▇▇▇▇ Drive Away shall notify MCI
in a mutually agreed upon manner of the Representatives which
elect to participate under this Agreement. ▇▇▇▇▇▇ Drive Away
shall make reasonable efforts to notify MCI on or before the
tenth (10th) day of each month of the term of this Agreement
of any changes, modifications or alterations to the
Representatives participating under this Agreement for such
month. Such changes, alterations, or modifications shall be
effective on the first day of the next month. Any changes,
modifications or alterations received by MCI after the
fifteenth (15th) day of a month shall be effective on the
first day of the second full billing month after the date of
the written or electronic notification to MCI.
(b) ▇▇▇▇▇▇ Group, Inc. agrees to actively promote participation
under this Agreement to the ▇▇▇▇▇▇ Drive Away Representatives.
▇▇▇▇▇▇ Group, Inc. will not during the term of this Agreement
enter into or promote participation with any other programs
for the provision of interstate, intrastate, or international
telecommunications services. This provision shall not apply to
any existing written arrangements currently in place at the
time of execution of this First Amendment."
7. Payment. The Agreement is hereby amended by adding the following new
Section 23:
"23. Payment.
(a) ▇▇▇▇▇▇ Group, Inc. Services.
For any MCI Services purchased by ▇▇▇▇▇▇ Group, Inc.
during the Service term, ▇▇▇▇▇▇ Group, Inc. shall pay
MCI the total invoiced amount for such MCI Service(s)
within twenty-five (25) days of the MCI invoice date.
(b) ▇▇▇▇▇▇ Drive Away Representatives' Services.
In addition to Paragraph 23(a) above, ▇▇▇▇▇▇ Group,
Inc. assumes responsibility for payment of MCI's
invoices to Representatives. Notwithstanding the
foregoing, MCI shall directly ▇▇▇▇ the
Representatives who participate in the Program. MCI
will attempt to collect the invoiced amounts directly
from such Representatives in accordance with its
standard business practices. In the event that MCI is
unable to collect any of such invoiced amounts within
thirty (30) days from the MCI invoice date, MCI will
invoice ▇▇▇▇▇▇ Group, Inc. for the unpaid invoice
amounts. ▇▇▇▇▇▇ Group, Inc. shall pay MCI the total
amounts invoiced to ▇▇▇▇▇▇ Group, Inc. under this
Paragraph within twenty-five (25) days of the MCI
invoice date."
8. The Agreement is hereby amended by adding the following new Section 24:
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"24. Commencing on the First Amendment Effective Date and through
expiration of the initial term:
(a) Customer shall have no less than ten (10) locations purchasing
MCI Vision Services pursuant to this Agreement. If Customer
fails to meet the requirement identified in this Section
24(a), Customer shall pay standard tariff rates for MCI Vision
Services, excluding any discount provided herein;
(b) No less than 9% of Customer's total outbound Vision usage
(excluding access/egress charges, feature charges, tax and tax
related surcharges), as measured in minutes, shall occur
during OFF-Peak hours (as defined in the Tariff). If
Customer's actual outbound Vision usage is less than the 9%
threshold, Customer shall be charged a per minute surcharge of
$0.03 on each minute below the 9% threshold;
(c) No less than 25% of Customer's total usage of MCI Services
provided herein (excluding access/egress charges, feature
charges, tax and tax related surcharges), as measured in
minutes, shall originate via dedicated access facilities. If
Customer's actual usage of MCI Services provided herein
originating via dedicated access facilities is less than the
25% threshold, Customer shall be charged a per minute
surcharge of $0.03 on each minute below the 25% threshold;
(d) No less than 50% of Customer's total MCI Vision usage
(excluding access/egress charges, feature charges, tax and tax
related surcharges), as measured in minutes, shall be
interstate usage. If Customer's actual usage of interstate MCI
Vision Service is less than the 50% threshold, Customer shall
be charged a per minute surcharge of $0.03 on each minute
below the 50% threshold."
9. Pricing/Discounts. The Agreement is hereby amended by deleting Section
2.A.(I) in its entirety and replacing it with the following new Section
2.A.(l):
"2.A. MCI Vision Service and MCI Vision 800 Service.
(1) ▇▇▇▇▇▇ Group, Inc. shall receive the rates and charges on
MCI Vision Service and MCI Vision 800 Service associated with
the Vision Value Insurance Plan Plus ("Vision VIP Plus"), a
and the discounts below. ▇▇▇▇▇▇ Group, Inc. will receive the
rates and charges associated with the thirty-six (36) month
Vision VIP Plus at the Four Hundred Eighty Thousand Dollar
($480,000) commitment level, but minimum volume and term
requirements in MCI Tariff FCC No. 1 ("Tariff') will not
apply.
In addition, the following discounts will apply to domestic
interstate charges only.
MCI Vision Service 29%
MCI Vision 800 Service 29%
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No other discounts shall apply to domestic MCI Vision and MCI Vision 800
services. ▇▇▇▇▇▇ Drive Away Representatives shall not be eligible for the
discounts identified in this Section 2.A(l). "
10. Credits. Attachment 1 of the Agreement is hereby amended by deleting
subsections 2.F(l), 2.F.(2) and 2.F.(3) in their entirety and replacing
them with the following new subsections 2.F.(I) and 2.F. (2):
"F. (1) Domestic Intrastate Vision Service. For domestic intrastate
Vision Service, ▇▇▇▇▇▇ Group, Inc. shall pay standard tariffed rates.
In addition, ▇▇▇▇▇▇ Group, Inc. shall receive a monthly credit in an
amount equal to thirty-three percent (331/6) times ▇▇▇▇▇▇ Group, Inc.'s
domestic intrastate Vision monthly usage charges (exclusive of taxes,
surcharges, pass-through access/egress or related charges) at standard
tariffed rates after application of applicable tariffed discounts based
on ▇▇▇▇▇▇ Group, Inc.'s domestic intrastate Vision usage charges. The
resulting credit shall be applied to ▇▇▇▇▇▇ Group, Inc.'s domestic
interstate usage charges (excluding taxes, surcharges and pass-through
access/egress or related charges). ▇▇▇▇▇▇ Drive Away Representatives
shall not be eligible for the discounts identified in this Section 2.F.
(2) Domestic Intrastate Vision 800 Service. For domestic intrastate
Vision 800 Service, ▇▇▇▇▇▇ Group, Inc. shall pay standard tariffed
rates. In addition, ▇▇▇▇▇▇ Group, Inc. shall receive a monthly credit
in an amount equal to thirty-two percent (32%) times ▇▇▇▇▇▇ Group,
Inc.'s domestic intrastate Vision 800 monthly usage charges (exclusive
of taxes, surcharges, pass-through access/egress or related charges) at
standard tariffed rates after application of applicable tariffed
discounts based on ▇▇▇▇▇▇ Group, Inc.'s domestic intrastate Vision 800
usage charges. The resulting credit shall be applied to ▇▇▇▇▇▇ Group
Inc.'s domestic interstate usage charges (excluding taxes, surcharges
and pass-through access/egress or related charges). ▇▇▇▇▇▇ Drive Away
Representatives shall not be eligible for the discounts identified in
this Section 2.F."
11. Dedicated Leased Line Services. Attachment 1 of the Agreement is hereby
amended by adding the following new Section 2.H.:
"H. For each type of MCI Dedicated Leased Line Service, ▇▇▇▇▇▇
Group, Inc. shall receive the discounts associated with a
corresponding three (3) year Twenty Five Thousand Dollar
($25,000) Network Pricing Plan (NPP). ▇▇▇▇▇▇ Drive Away
Representatives shall not be eligible for the discounts
identified in this Section 2.H."
12. Rate Stabilization. Attachment 1 of the Agreement is hereby amended by
adding the following new Section 2.1.:
"I. To the extent that the effective tariffed rates for MCI Vision
Service and/or MCI Vision 800 Service subscribed to by ▇▇▇▇▇▇
Group), Inc, increase during the initial service term of this
Agreement, ▇▇▇▇▇▇ Group, Inc, will be subject to any
applicable tariff increase,
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provided, however, that ▇▇▇▇▇▇ Group, Inc. will only be subject to a
maximum increase of four percent (4%) for MCI Vision Service and four
percent (4%) for MCI Vision 800 Service during each year of the initial
service term. For purposes of this Section 2.1. of Attachment 1, the
term "effective tariffed rate" shall mean the tariffed base rate in
effect on the First Amendment Effective Date."
13. Representative Pricing and Discounts. Attachment 1 of the Agreement is
hereby amended by adding the following new Section 3:
"3. Rates and Discounts for MCI Services Provided to ▇▇▇▇▇▇ Drive
Away Representatives. The rates identified below are in lieu
of all other rates and discounts provided by MCL Except as
provided in this Section 3 of Attachment ▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Away
Representatives shall not be eligible for any other services,
rates or discounts provided in this Agreement.
(a) MCI Vision Service.
For domestic MCI Vision Service, Representatives will
receive the following postalized per minute rates for
switched interstate usage:
Switched/Interstate $0.145
(b) MCI Vision 800 Service.
For domestic MCI Vision 800 Service, Representatives
will receive the following postalized per minute
rates for switched interstate usage:
Switched/Interstate $0.1625
14. Revenue Achievement Credits. Attachment 1 of the Agreement is hereby
amended by adding the following new Section 4:
"4. Revenue Achievement Credits. ▇▇▇▇▇▇ Group, Inc. shall receive the
applicable one- time credit in the event it meets the following
requirements. ▇▇▇▇▇▇ Group, Inc. shall notify MCI in writing, within
thirty days such requirements are met, of the option it selects.
Option Number 1:
(a) In the event Customer's usage (excluding tax and tax-related
surcharges), attributable to end-users participating in the ▇▇▇▇▇▇
Drive Away Representatives Program. equals or exceeds One Hundred
Thousand ($100,000) in either the first six (6) month period or second
six (6) month period of the first Annual Period of the initial term
commencing on the First Amendment Effective Date, ▇▇▇▇▇▇ Group, Inc.
shall receive a credit equal to Twelve
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Thousand Five Hundred Dollars ($12,500), which shall be applied to
▇▇▇▇▇▇ Group, Inc.'s sixth monthly invoice following the applicable
period in which such credit is earned; provided however, if the credit
earned is due after expiration of the initial term, such amount shall
be added to the Customer's final invoice.
(b) In the event Customer's usage (excluding tax and tax-related
surcharges), attributable to end-users participating in the ▇▇▇▇▇▇
Drive Away Representatives Program, equals or exceeds One Hundred Fifty
Thousand ($150,000) in either the first six (6) month period or second
six (6) month period of the second Annual Period of the initial term,
commencing on the First Amendment Effective Date, ▇▇▇▇▇▇ Group, Inc.
shall receive a credit equal to Seventeen Thousand Five Hundred Dollars
($17,500), which shall be applied to ▇▇▇▇▇▇ Group, Inc.'s sixth monthly
invoice following the applicable period in which such credit is earned;
provided however, if the credit earned is due after expiration of the
initial term, such amount shall be added to the Customer's final
invoice.
or
Option Number 2:
(a) In the event Customer's usage (excluding tax and tax-related
surcharges), attributable to end-users participating in the ▇▇▇▇▇▇
Drive Away Representatives Program, equals or exceeds One Hundred
Thousand ($100,000) in either the first six (6) month period or second
six (6) month period of the first Annual Period of the initial term
commencing on the First Amendment Effective Date, ▇▇▇▇▇▇ Group, Inc.
shall receive a discount in the form of a credit equal to 1.75% on
Customer's total domestic interstate usage for MCI Services purchased
hereunder. Such credit shall be applied to ▇▇▇▇▇▇ Group, Inc.'s sixth
monthly invoice following the applicable period in which such credit is
earned; provided however, if the credit earned is due after expiration
of the initial term, such amount shall be added to the Customer's final
invoice.
(b) In the event Customer's usage (excluding tax and tax-related
surcharges) , attributable to end-users participating in the ▇▇▇▇▇▇
Drive Away Representatives Program, equals or exceeds One Hundred Fifty
Thousand ($150,000) in either the first six (6) month period or second
six (6) month period of the second Annual Period of the initial term,
commencing on the First Amendment Effective Date, ▇▇▇▇▇▇ Group, Inc.
shall receive a discount in the form of a credit equal to 2.25% on
Customer's total domestic interstate usage for MCI Services purchased
hereunder. Such credit shall be applied to ▇▇▇▇▇▇ Group, Inc.'s sixth
monthly invoice following the applicable period in which such credit is
earned; provided however, if the credit earned is due after expiration
of the initial term, such amount shall be added to the Customer's final
invoice.
In the event Customer meets the requirements identified in this Section
4 of Attachment 1, ▇▇▇▇▇▇ Group, Inc. shall not be entitled to the
credits set forth in both options. ▇▇▇▇▇▇
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Group, Inc. shall only be entitled to one (1) credit per sixth month
period if Customer meets the applicable requirements. The discount in
Option Number 2 shall only apply to usage charges for domestic
interstate traffic (excluding access/egress charges, non-recurring
charges, taxes or tax-related surcharges)."
15. HyperStream Frame Relay Services. The Agreement is hereby amended by
adding the following new Section 25:
"25. Commencing on the First Amendment Effective Date and through
expiration of the initial term, during each monthly billing period of
the initial tern, Customer shall purchase no less than Ten Thousand
Dollars ($10,000) of monthly recurring port and PVC charges associated
with MCI HyperStream Frame Relay Service, as more fully described in
the Tariff, ("HyperStream Subminimum"), in accordance with the terms
and conditions, including, but not limited to any underutilization and
early termination charges, set forth in Attachment 2. For purposes of
calculating the Annual Minimum, monthly recurring port and PVC charges
associated with basic HyperStream Frame Relay Service shall be included
in such calculation, however, any charges for Customer Premise
Equipment associated with HyperStream Frame Services shall not
contribute to the Annual Minimum or HyperStream Subminimum identified
herein. In addition, monthly recurring charges associated with
HyperStream Frame Relay Service shall in no way contribute to the
Revenue Achievement Credits identified in Section 4 of Attachment 1."
16. Entire Agreement. Except as expressly modified by this Amendment, the
Agreement shall be and remain in full force and effect in accordance
with its terms and shall constitute the legal, valid, binding and
enforceable obligations of Customer and MCI. This Amendment, including
the Agreement and the applicable MCI tariffs, is the complete agreement
of the parties and supersedes any prior agreements of representations,
whether oral or written, with respect thereto.
17. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the successors and permitted assigns of the parties
hereto.
18. Section References. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreements among the parties
hereto evidenced hereby.
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IN WITNESS WHEREOF, MCI and Customer have caused this Amendment to be duly
executed by their authorized representatives as of the dates set forth below,
effective as of the Effective Date.
MCI Telecommunications Corporation
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, Director
Date: May 7, 1996
▇▇▇▇▇▇ Group, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CFO
Date: April 11, 1996
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EXHIBIT A
Customer's Wholly Owned Subsidiaries
The following entities shall be eligible for the ▇▇▇▇▇▇ Group, Inc. rates and
discounts identified herein:
TDI, Inc.
▇▇▇▇▇▇ Drive Away
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ATTACHMENT 2
HyperStream(sm) Frame Relay services
MCI will furnish the HyperStream(sm) Frame Relay services (the "Services") to
▇▇▇▇▇▇ Group, Inc. pursuant to the terms set forth in MCI Tariff F.C.C. No. 1
("Tariff"), as revised from time to time. This HyperStream(sm) Frame Relay
Attachment incorporates by reference the Tariff, as it may be amended or
modified from time to time. In the event of any inconsistency between the terms
of the Tariff and this Attachment 2, the Tariff shall be deemed controlling. MCI
will furnish the service to Customer pursuant to the terms of this Attachment 2
and the Tariff, and any other applicable interstate, international or state
tariffs, of MCI and its affiliates.
Rates and Charges. Schedules 2 and 3 to this Agreement, which are incorporated
herein by reference, contain the applicable rates and charges for the Services
provided hereunder. Revisions of the applicable rates and charges may become
effective upon revisions of any applicable tariff provisions. Any other service
customer orders from MCI or any of its affiliates will not be subject to the
terms of this Attachment 2.
SCHEDULE 1
HyperStream Frame Relay Service Description
Overview
HyperStream Frame Relay Service is a packet-oriented interLATA data transport
service. At the originating customer premises Motorola provided equipment
(equipment provided pursuant to a separate agreement) places the data into
packets and gives each packet a terminating address. MCI routes the packets over
the MCI network to the terminating address. HyperStream Frame Relay is available
at speeds up to 1.544Mbps (where clear channel access is available).
Technical Description
HyperStream Frame Relay operates at layer two of the OSI model and is designed
to conform to the ANSI T1.617 Annex D Standard.
Access
Customers obtain access to HyperStream Frame Relay via dedicated digital
facilities, only. MCI will provide access under the terms of its filed and
effective tariffs or customer may obtain access via alternate access vendors.
Availability
HyperStream Frame Relay is available between cities listed in MCI Tariff FCC No.
1, Section C.12, Table IV, Part A, as amended from time to time, or any
successor tariff.
Performance Criteria
MCI shall provide Customer certain performance criteria for domestic HyperStream
Frame Relay Service as identified in Schedule 4, hereto attached and
incorporated by reference.
SCHEDULE 2
DOMESTIC HYPERSTREAM FRAME RELAY RATES AND CHARGES
HYPERSTREAM FRAME RELAY DOMESTIC PRICING
A. RATES AND CHARGES: Basic Month-to-Month Rates and Charges.
1. Installation Changes.
(a) Access Lines -- Per Tariff (if MCI provided)
or alternate access vendor
(b) Per Port (each location) -- $300.00
(c) Per Permanent Virtual Circuit (PVC) -- $15
simplex
2. Reconfiguration Charges.
(a) Access Lines -- Per Tariff (if MCI provided)
or alternate vendor
(b) Per Port (each Location) -- $300.00
(c) Per PVC - $1 5.00 simplex
3. Monthly Recurring Charges.
(a) Access line charges -- Per Tariff (if MCI
provided) or alternate vendor
(b) Port Charges -- All port charges are
applicable per port (per location). Port
charges depend upon the port speed selected
by you.
Port Speed Selected Rate/Month
56/64 Kbps $ 180.00
112/128 Kbps $ 336.00
224/256 Kbps $ 394.00
336/384 Kbps $ 578.00
448/512 Kbps $ 735.00
672/768 Kbps $ 946.00
896/1024 Kbps $1,178.00
1344/1536 Kbps $1,470.00
(c) PVC Charges -- PVC rates are either fixed or
usage based. Usage based charges are either
on a committed information rate (CIR) or
zero CIR basis.
(1) Fixed CIR PVC Rates. You select the
fixed CIR per simplex PVC and pay
one monthly usage charge per PVC.
CIR Speed Selected Rate/Month
16 Kbps $ 37.00
32 Kbps $ 57.00
48 Kbps $ 77.00
64 Kbps $ 97.00
128 Kbps $ 177.00
192 Kbps $ 257.00
256 Kbps $ 337.00
320 Kbps $ 417.00
384 Kbps $ 497.00
448 Kbps $ 577.00
512 Kbps $ 657.00
576 Kbps $ 729.00
640 Kbps $ 801.00
704 Kbps $ 873.00
768 Kbps $ 945.00
832 Kbps $1,010.00
896 Kbps $1,075.00
960 Kbps $1,140.00
1,024 Kbps $1,205.00
(2) Usage-based PVC Rates. All
usage-based rates are per delivered
megabyte.
(i) CIR Usage-based PVC Rates.
(a) You select the CIR for each PVC to
be rated. Frames within the CIR
selected will be rated at the CIR
Usage rate of Forty-one Cents
($0.4100) per megabyte of delivered
data. Frames in excess of the CIR
selected by you will be discarded
eligible (DE) and rated at the DE
Usage rate of Twenty-one Cents
($0.21 00) per megabyte of
delivered data. Sampling intervals
for measuring bandwidth usage will
be 0.4 seconds for CIR at or below
256 Kbps and 1.5 seconds for CIR
over 256 Kbps. MCI
reserves the right to revise the
sampling intervals.
Rates are simplex based.
(b) Cost Capping. CIR Usage-based PVC
rates are capped at one hundred
percent (1 00%) of the
corresponding Fixed CIR PVC rates
that are set forth in Section
A.3.c.1 above.
(c) CIR Usage-based PVC Monthly
Minimum. If your usage charges for
a PVC in a month are less than
forty percent (40%) of the Fixed
CIR PVC rate selected from the
chart set forth in Section A.3.c.1
above, your charge for said PVC
will be forty percent (40%) of the
Fixed CIR PVC rate (which charges
are set forth below). Minimums
count toward HyperStream Network
Pricing Plan Monthly Minimums (see
B below).
CIR Speed Selected Minimum Rate/Month
16 Kbps $ 15.00
32 Kbps $ 23.00
48 Kbps $ 31.00
64 Kbps $ 39.00
128 Kbps $ 71.00
192 Kbps $103.00
256 Kbps $135.00
320 Kbps $167.00
384 Kbps $199.00
448 Kbps $231.00
512 Kbps $263.00
576 Kbps $292.00
640 Kbps $320.00
704 Kbps $349.00
768 Kbps $378.00
832 Kbps $404.00
896 Kbps $430.00
960 Kbps $456.00
1,024 Kbps $482.00
(iii) Zero CIR PVC Rates. All
frames will be marked DE. All usage
is at the rate of Three Cents
($0.0300) per megabyte of delivered
data. Monthly minimum
charges per simplex PVC will
be Seven Dollars ($7.00).
There will be no usage charge cap.
B. TERM AND VOLUME COMMITMENTS
RATE PLANS: You may select from the following rate plans:
1. Month to Month. No term or volume commitments will
apply, except PVC monthly minimums. or 2. HyperStream
Pricing Plan.
(a) if you order HS-FR under the HyperStream
Pricing Plan, you will receive discounts on
certain HS-FR service elements as follows:
Monthly
HyperStream Term (years)
Subminimum 1 2 3 4 5
---------- --- --- --- ---- ---
$ 2,000 5% 6% 7% 8% 9%
$ 5,000 8% 10% 12% 14% 16%
X $ 10,000 12% 14% 17% 19% 21%
$ 25,000 14% 17% 20% 23% 25%
$ 50,000 16% 19% 22% 25% 27%
$100,000 18% 21% 24% 27% 30%
X identified above in bold determines Customer's term
and volume commitment (i.e.2 year-14% discount).
(b) If a HyperStream Pricing Plan is selected,
then commencing with the seventh full
monthly billing cycle if your monthly usage
charges for the HS-FR recurring charges fall
below the HyperStream Subminimum, then you
will pay an underutilization charge equal to
one hundred percent (1 00%) of the
difference between the amount you purchased
in such month and the HyperStream
Subminimum.
(c) The discount applies to basic month to month
charges for the following recurring HS-FR
service elements: PVC charges and Port
charges (excludes access charges, access
coordination charges, taxes and- tax related
surcharges). Taxes, tax-related surcharges,
access charges, and access coordination
charges do not count toward the HyperStream
Subminimum.
(d) Under the HyperStream Pricing Plan, the
start of the term is from implementation of
the first service element and lasts through
the end
of the term selected. The HS-FR term
commitment is independent of the terms
committed to in individual Access Pricing
Plans.
(e) In addition to any other early termination
charges identified in this Agreement, if you
terminate this Agreement before the end of
the term selected under the HyperStream
Pricing Plan, you will pay an early
termination charge equal to a portion of the
discounts from the month-to-month basic
rates provided to you under this Attachment
2, as follows: For a three (3) year term,
100% of the discount if you terminate in the
first year, 75% if you terminate in the
second year, or 50% if you terminate in the
third year. For a two (2) year term, 1 00%
of the discount if you terminate in the
first year, 50% if you terminate in the
second year. For a one (1) year term, 50% of
the discount if you terminate in the first
year.
SCHEDULE 3
MCI HyperStream(sm) Frame Relay
SATISFACTION GUARANTEE
If for any reason Customer is not completely satisfied with HyperStream(sm)
Frame Relay at any time before the completion of three (3) full billing months,
Customer may:
o Discontinue HyperStream(sm) Frame Relay with MCI without
liability for termination charges;
o Receive a credit or refund for HyperStream(sm) Frame Relay and
associated MCI installation charges; and
o Receive a credit for or refund of recurring usage charges for
HyperStream(sm) Frame Relay and associated service Customer
incurred during the Satisfaction Guarantee three 13) month
period in an amount up to the amount of reasonable
re-installation charges Customer may incur from another
carrier for re-installation of the service that Customer had
replaced with HyperStream(sm) Frame Relay.
Covered MCI Charges:
o Installation charges:
o Installation of access circuits associated with
HyperStream(sm) Frame Relay
o Recurring charges:
o HyperStream(sm) Frame Relay Ports
o HyperStream(sm) Frame Relay Permanent Virtual Circuits (PVCs)
o Access coordination
To exercise Customer's rights under this Satisfaction Guarantee, please notify
Customer's MCI account representative in writing not later than the close of the
third full billing month after initial installation of HyperStream(sm) Frame
Relay.
MCI's offer of Satisfaction Guarantee expires if not exercised on or prior to
the earlier of (i) three full billing months after initial installation of
HyperStream(sm) Frame Relay or (ii) July 31, 1996.
Other than the rights expressly granted in this Satisfaction Guarantee, this
Satisfaction Guarantee shall not be construed to create any rights or remedies
not otherwise expressly provided for nor expand MCI's obligations under the
Attachment 2 for HyperStream(sm) Frame Relay to which this Satisfaction
Guarantee is attached.
SCHEDULE 4
HyperStream Frame Relay
Service Level Guarantee
MCI is committed to providing its customers with quality Domestic HyperStream
Frame Relay services. This document defines the specific quality of service
levels MCI will seek to maintain while providing Domestic HyperStream Frame
Relay Services to ▇▇▇▇▇▇ Group, Inc.; herein referred to as Customer. In the
event MCI's HyperStream Frame Relay Services fail to perform to the quality of
the applicable service levels as defined herein, MCI's sole and exclusive
obligations, and Customer's sole and exclusive remedies, shall be as set forth
in this Schedule 4.
1.0 Definition
A Service Level Guarantee (SLG) is a commitment on the part of MCI to
attempt to meet specific network and service performance levels.
2.0 Network Availability
2.1 Description
The HyperStream(sm) Frame Relay (HSFR) network
availability measurement is equal to the total number
of minutes in a calendar month during which core
network PVC routes are available to exchange data
between the two network infrastructure node end
points divided by the total number of minutes in a
calendar month ("Network Availability Time"). Network
Availability Time is calculated commencing with the
date on which the trouble ticket is opened by the
customer and ending upon confirmation of resolution
with the customer.
For purposes of measuring Network Availability Time,
the PVC route referenced above includes the HSFR
network infrastructure connectivity from
infrastructure port to infrastructure port, excluding
Customer Premise Equipment and local access lines.
2.2 Network Availability Objective
MCI will attempt to achieve a Network Availability Time of
99.5 % for networks designed with all of the following:
o fully meshed network topology or a star network
topology in which each remote site has PVCs connected
to at least two network hubs engineered to separate
infrastructure node , and
o 10 or more customer sites are involved in the network
MCI will attempt to achieve a Network Availability Time of 99%
for any networks not meeting the above requirements.
2.3 Exclusions
Network Availability Time measurements exclude HSFR
unavailability resulting in whole or in part from one or more
of the following causes:
o Any act or omission on the part of Customer, customer
contractors, and customer vendors (including, but not
limited to Motorola)
o Scheduled maintenance
o Labor strikes
o Natural disasters
o Force majeure events beyond the reasonable control of
MCI (i.e. acts of God, government regulation,
national emergency, etc.)
2.4 Calculation
Customer HSFR Network Availability Time is calculated on a
monthly basis
Monthly Network Availability Time (%) = 1 - [Total minutes of
PVC downtime per month or "Unavailability Percentage"]
Total # PVCs x #days in month x 24 hrs x 60min
2.5 Components of Calculation
Total minutes in month, total minutes available, total minutes
unavailable, total minutes unavailable due to exclusions,
unavailable minutes due to excluded causes, broken down by
occurrence (exception) category.
2.6 Credits
o In the event MCI is unable to satisfy the HSFR
Availability Time objective of 99.5% for two (2)
consecutive months, during the service term, Customer
will receive a credit equal to five percent (5%)
multiplied by the fixed rates for all Port and PVC
charges for both the first(1st) and the second (2nd )
month.
o In the event MCI in unable to satisfy the HSFR
Availability Time objective of 99.5 % for a third
(3rd) consecutive month, during the service term.
Customer will receive a credit equal to ten percent
(10%) multiplied by the fixed rates for all Port and
PVC charges for the given month.
o In the event MCI is unable to satisfy the HSFR
Network Availability Time objective of 99.5% for a
fourth (4th) consecutive month, Customer will have
the option to discontinue MCI Service on the Service
Element that has failed to satisfy the HSFR
Availability Time objective and MCI will reduce the
HyperStream. Subminimum by the amount of charges
associated with the discontinued Service Element.
3.0 Frame Delivery
3.1 Description
The HyperStream(sm) Frame Relay Frame Delivery is the
percentage of frames which are successfully delivered. HSFR
Frame Delivery encompasses the successful delivery of frames
through the network based on certain factors. The calculations
are based on total frames sent through the network according
to the following parameters:
The percentage of all non-CIR frames that are successfully
delivered.
The percentage of all CIR frames that are successfully
delivered.
3.2 Frame Delivery Objective
99.99% of all frames that do not exceed the Committed
Information Rate (CIR) are targeted to be successfully
delivered. End to end CIR packet delivery only applies to
frames not marked discard eligible.
99% of all non-CIR frames are targeted to be successfully
delivered. Non-CIR packet delivery only applies to frames
marked discard eligible, (i.e.; traffic exceeding the
subscribed CIR and all zero CIR PVC traffic).
3.3 Frequency of Calculation
HSFR Frame Delivery is calculated monthly based upon the frame
delivery statistics as stated in the HyperScope reports minus
any applicable exclusions below.
3.4 Exclusions
HyperStream(sm) Frame Relay Service frame delivery
measurements exclude:
o Frames dropped at the infrastructure egress due to
improper customer specification of customer's port
speeds
o Local access and CPE (CPE-upon contract execution
provided by Motorola)
o Force majeure events beyond the reasonable control of
MCI (i.e. acts of God, government regulation,
national emergency, etc.)
3.5 Credits
o In the event MCI is unable to satisfy the HSFR Frame
Delivery objective for two (2) consecutive months,
during the service term, Customer will receive a
credit equal to five percent (5%) multiplied by the
fixed rates for all Port and PVC charges for both the
first(1st) and the second (2nd ) month.
o In the event MCI in unable to satisfy the HSFR Frame
Delivery objective for a third (31) consecutive
month, during the service term. Customer will receive
a credit equal to ten percent (10%) multiplied by the
fixed rates for all Port and PVC charges for the
given month.
o In the event MCI is unable to satisfy the HSFR Frame
Delivery objective for a fourth (41) consecutive
month, Customer will have the option to discontinue
MCI Service on the Service Element that has failed to
satisfy the HSFR MTTR objective and MCI will reduce
the HyperStream Subminimum by the amount of charges
associated with the discontinued Service Element.
4.0 Mean Time To Restore (MTTR)
4.1 Description
Mean-Time-To-Restore ("MTTR") is the period of time commencing
on the date customer opens on trouble ticket and ending on the
date of service restoration (closing of a trouble ticket),
calculated as an average of all trouble tickets having the
same severity level (as set forth below).
MTTR measurements are reported based on the percentage of
trouble tickets closed within specific time intervals, grouped
by severity level.
MCI will assign each trouble ticket a severity level based
upon the impact of the service issue on the customer's
business:
Severity 1 - System down or degraded (limited or no ability to
conduct business)
Severity 4 - Problem circumvented / Inquiries (no impact to
customer business)
4.2 MTTR Objective
HyperStream(sm) Frame Relay MTTR objectives are based upon the
severity level of the trouble ticket and proximity to an MCI
terminal or field service point of presence "POP" broken down
by ticket severity as follows:
Severity 1 -MTTR Objective is 4 hrs if within 50-mile radius
of MCI terminal and field service POP,
or
24 hrs or best-effort basis if outside 50-mile radius of MCI
terminal and field service POP
Severity 4 - not measured
4.3 Frequency of Calculation
Customer network MTTR will be calculated on a monthly basis.
4.4 Exclusions
MTTR measurements will exclude the following:
o Trouble tickets associated with new installations
(before new service acceptance by the customer)
o Trouble tickets that are not associated with
MCI-provided service
o Required customer premise access is not available
o Required customer circuit release for testing is
disallowed o Trouble tickets opened by customer for
circuit monitoring purposes only o Force majeure
events beyond the reasonable control of MCI (i.e.
acts of God, government regulation, national
emergency, etc.)
4.5 Calculation
Monthly MTTR Average = Sum of minutes between opening and
closing of Severity 1 trouble tickets within 30 days Total
number of trouble tickets per month
4.6 Components for Calculations
Total number of trouble tickets, total time between opening of
trouble tickets and applicable service restoration, with total
time of opened trouble tickets subtracting total time of each
exclusion category.
4.7 Credits
o In the event MCI is unable to satisfy the HSFR MTTR
objective for two (2) consecutive months, during the
service term, Customer will receive a credit equal to
five percent (5 %) multiplied by the fixed rates for
all Port and PVC charges for the given month.
o In the event MCI in unable to satisfy the HSFR MTTR
objective for a third (3rd) consecutive month, during
the service term. Customer will receive a credit
equal to ten percent (10%) multiplied by the fixed
rates for all Port and PVC charges for the given
month.
o In the event MCI is unable to satisfy the HSFR MTTR
objective for a fourth (4th) consecutive month,
Customer will have the option to discontinue MCI
Service on the Service Element that has failed to
satisfy the HSFR MTTR objective and MCI will reduce
the HyperStream Subminimum by the amount of charges
associated with the discontinued Service Element.
5.0 Network Transit Delay
5.1 Description
The HyperStream(sm) Frame Relay Network Transit Delay measures
one-way delay between the origination and destination
infrastructure ports. It is defined as the time between the
LAST bit of a ping packet being sent from the origination
infrastructure port to the FIRST bit of the packet received by
the destination infrastructure port, in other words between
the two MCI HyperStream frame relay points of presence.
5.2 Network Transit Delay Guarantee
Average HSFR one way network transit delay of 70 milliseconds
or less in the domestic U.S. and 250 milliseconds or less
internationally.
5.3 Frequency of Calculation
Customer gateway to customer gateway network transit delay is
tested monthly by MCI as part of standard performance
monitoring and capacity planning methodologies. Any customer
incident where network transit delay is measured or suspected
to be greater than the levels stated above will be considered
an abnormal situation and will be addressed through
established trouble handling procedures (e.g., a ticket opened
and technicians work through the problem until the performance
is back to acceptable levels).
5.4 Exclusions
The network transit delay parameters are not guaranteed during
disaster situations where a major network component such as a
backbone link or gateway switch is down hard and the network
is in an emergency reroute configuration. Also, HyperStream
Network Transit Delay measurements exclude ping packets that
are not
returned, and ports over which the transit delay is measured
can not be more than 5% utilized during any hour over which
transit delay measurements are taken.
Customer calculations of end to end network transit delay must
exclude access serialization delay (calculated as defined
below), access circuit propagation delay, any delay induced by
congestion on the access link, and any CPE induced delay such
as that caused by high router utilization levels. The frame
size for the test must be no more than two hundred (200) bytes
in length, including protocol overhead. Customer tests must
also consist of a minimum of 60 ping tests evenly distributed
over a 6 hour period.
5.5 Components for Calculations
If you are attempting to calculate cpe to cpe delay, the
following are components you will have to consider in addition
to the MCI published network delay:
o access/egress link utilization
o cpe nodal processing time at each end.
o local loop propagation factor = .008 ms/mile
o backhaul (mci pop to frame switch) = .008 ms/mile
o INGRESS/EGRESS SERIAL DELAY (ms) =
(Packet size in bytes)x8xI000
------------------------------
Access speed in bps
5.6 Credits
o In the event MCI is unable to satisfy the HSFR
Transit Delay objective for two (2) consecutive
months, during the service term, Customer will
receive a credit equal to five percent (5%)
multiplied by the fixed rates for all Port and PVC
charges for the given month.
o In the event MCI in unable to satisfy the HSFR
Transit Delay objective for a third (3rd) consecutive
month, during the service term. Customer will receive
a credit equal to ten percent (10%) multiplied by the
fixed rates for all Port and PVC charges for the
given month.
o In the event MCI is unable to satisfy the HSFR
Transit Delay objective for a fourth (4th)
consecutive month, Customer will have the option to
discontinue MCI Service on the Service Element that
has failed to satisfy the HSFR MTTR objective and MCI
will reduce the HyperStream Subminimum by the amount
of charges associated with the discontinued Service
Element.
6.0 Credit Limitation
In the event the customer experiences network or service
performance for HSFR at levels below stated MCI objectives for
Network Availability Time, MTTR, Network Transit Delay, or
HSFR Frame Delivery during the same month, customer shall only
be entitled to receive credits, if any, pursuant to one (1) of
the applicable credit sections.
networkMCI ONE SPECIAL CUSTOMER ARRANGEMENT
This networkMCI ONE Special Customer Arrangement together with all Attachments
hereto (this "Agreement") is made by and between MCI TELECOMMUNICATIONS
CORPORATION ("MCI") and ▇▇▇▇▇▇ DRIVE AWAY, INC. ("Customer"), is binding on
Customer upon execution and delivery of this Agreement by Customer to MCI (the
"Effective Date"). Provided that this Agreement is subsequently accepted by MCI,
the rates, discounts, charges and credits set forth herein shall be effective
the first day of the second billing cycle following the Effective Date (the
"Commencement Date"). All capitalized terms used in this Agreement and not
defined herein will have the meaning ascribed to them in MCI Tariff FCC No. 1.
1. Service Provisioning and Receipt. MCI will provide to Customer
international, interstate, intrastate and local
telecommunications "service(s)" (as hereinafter defined)
pursuant to the applicable tariffs and price lists of MCI and
its U.S.-based affiliates (individuals, a "Tariff" and
collectively, the "Tariffs"), each as supplemented by this
Agreement to the extent permitted by law. This Agreement
incorporates by reference the terms of each such Tariff. MCI
may modify its Tariff from time to time in accordance with law
and thereby affect the services furnished to Customer. This
Agreement is a "Specialized Customer Arrangement" as defined
in Section B-17.03 of the Tariff.
If prior to the expiration of the "Term" (as hereinafter
defined) of this Agreement, MCI voluntarily or involuntarily
as a result of government or judicial action cancels, in whole
or in part, any tariff on file with the Federal Communications
Commission ("FCC"), where the affected provisions prior to
such cancellation applied to any service(s) MCI provides under
this Agreement, then effective on such cancellation and for
the remainder of the Term, this Agreement shall consist of the
following, in order of precedence from (a) through (c):
(a) MCI Tariff provisions that remain in effect
("Effective Tariffs"), as MCI may amend from time to
time in accordance with law, and
(b) Specific provisions contained in this Agreement that
expressly apply in lieu of, or that apply in addition
to, provisions contained in Effective Tariffs and/or
in MCI's standard Guide to Services and Pricing
("Price Guide"), and
(c) Provisions contained in the Price Guide to the extent
that (a) and (b) above are not applicable. MCI may
amend the Price Guide from time to time and will
maintain the Price Guide open for public inspection
at one or more offices during normal business hours.
Immediately prior to the cancellation of any tariff
provisions applicable to service(s) provided under
this Agreement, MCI shall incorporate such provisions
into the Price Guide and if MCI fails to incorporate
any such provisions, such provisions shall be deemed
incorporated
-1-
into this Agreement as if MCI had so incorporated such
provisions in the Price Guide.
In all events, the applicable rates and rate schedules shall
continue to be subject to any discounts, waivers, credits, of
restrictions on rate changes that may be contained in this
Agreement. Where rate and/or discount adjustments would have
been made by reference to any canceled tariff rate, rate
schedule, discount and/or discount schedule, these adjustments
shall instead be made by reference to the Price Guide. To the
extent that any adjustment to tariffed rates, rate schedules,
discounts and/or discount schedules is permitted under this
Agreement, such adjustment may be made by MCI to its Price
Guide.
2. Tariff Option. MCI shall, if required, file a Tariff option (a
"Tariff Option") consistent with the terms of Attachment A,
which is incorporated into this Agreement by this reference,
and applicable regulatory authority.
3. Confidential Information. Customer will not disclose to any
third party during the Term, or during the three (3) year
period after expiration or termination of this Agreement, any
of the terms and conditions of this Agreement unless such
disclosure is lawfully required by any federal governmental
agency or is otherwise required to be disclosed by law or is
necessary in any legal proceeding establishing rights and
obligations under this Agreement. MCI reserves the right to
terminate this Agreement by giving written notice to Customer
in the event of any unpermitted disclosure hereunder.
4. Governing Law. This Agreement, and all causes of action
arising out of this Agreement, will be subject to the
Communications Act of 1934, as amended (the "Act"), or, if any
part of this Agreement is not governed by the Act, by the
domestic law of the State of New York without regard to its
choice of law principles.
5. Waiver. No waiver of any of the provisions of this Agreement
shall be binding unless it is in writing and signed by the
party making the waiver. No waiver shall be deemed, or shall
constitute, a waiver of any other provision, whether or not
similar, and no waiver shall be deemed, or shall constitute, a
continuing waiver.
6. Notices. All notices, requests, or other communications
(excluding invoices) hereunder will be in writing and either
transmitted via facsimile, overnight courier, hand delivery or
certified or registered mail, postage prepaid and return
receipt requested to the parties at the addresses below or
such other addresses as may be specified by written notice.
All notices will be effective when received.
7. Severability. All provisions of this Agreement are severable,
and the unenforceability or invalidity of any of the
provisions will not affect the validity or enforceability of
the
-2-
remaining provisions. The remaining provisions will be
construed in such a manner as to carry out the full intention
of the parties. Section titles or references used in this
Agreement will not have substantive meaning or content and are
not a part of this Agreement.
8. Entire Agreement. This Agreement, together with the Tariffs,
the Attachments to this Agreement, and any optional cellular,
paging HyperStream Frame Relay, an Local Service agreements
entered into by Customer, constitutes the entire agreement
between the parties with respect to its subject matter and
supersedes all other representations, understandings or
agreements which are not expressed herein, whether oral or
written. No amendment to this Agreement will be valid unless
in writing and signed by both parties.
9. Optional Cellular and Paging Services. Should Customer choose
to order networkMCI Cellular Service or networkMCI Paging
Service, subject to availability and Customer's enrollment
under an MCI approved and accepted month to month cellular or
paging term plan agreement, Customer shall receive during the
term of this Agreement only (and in lieu of all other
discounts): (i) a discount equal to ten percent (10%) on all
paging service elements eligible for discount under the terms
of MCI's paging agreement, and (ii) a discount equal to ten
percent (10%) on all cellular service elements eligible for
discount under the terms of MCI's cellular agreement. Separate
credit and payment terms may apply.
10. Domestic MCI HyperStream Frame Relay Service.
(a) During each month of the Term, the Customer agrees to
purchase not less than the amount identified in
Section 3.1 below of MCI HyperStream Frame Relay
Service.
(b) During each month of the Term, the Customer shall
receive a discount equal to seventeen percent (17%)
which will be applied to Customer's recurring MCI
HyperStream Frame Relay Service port and PVC usage
charges (exclusive of applicable taxes, surcharges,
access/egress (or related) charges).
11. Optional MCI Local Service. Where MCI has received applicable
regulatory approval and filed the necessary tariff(s), and
Customer elects to enroll in an MCI Local Service Term Plan,
Customer will receive a 10%, 15%, or 20% discount (based upon
the length of the Term herein) on its eligible monthly charges
for MCI facilities based on local exchange service. MCI Local
Service is provided by MCImetro Access Transmission Services,
Inc., and is subject to the terms and conditions of the MCI
Local Service Term Plan program set forth in the applicable
tariffs or price lists.
-3-
12. Acceptance Deadline. This Agreement shall be of no force and
effect and the offer contained herein shall be withdrawn
unless this Agreement is executed by Customer and delivered to
MCI on or before September 30, 1997.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the dates set forth below.
▇▇▇▇▇▇ DRIVE MCI TELECOMMUNICATIONS
AWAY, INC. CORPORATION
▇▇▇▇ ▇.▇. ▇▇ West, P.O. Box ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, Vice President
September 30, 1997
Date Date
-4-
ATTACHMENT A TO AGREEMENT
This Attachment A to the Agreement contains the rates, discounts and certain
other provisions applicable to the Services provided to Customer pursuant to the
Agreement.
1. Term; Ramp Period; Contract Year. The "Term" will begin on the
Effective Date and end two (2) years following the Commencement Date.
Each consecutive twelve (12) month period of the Term commencing on the
Commencement Date and on each anniversary thereof will be a "Contract
Year".
2. Selected Definitions.
2.1 "Base Rates" shall mean the rates as reduced by the discounts
(if any) provided to Customer pursuant to this Agreement or
for "Services" (as hereinafter defined) not specifically set
forth herein, the rates set forth in the Tariffs following
application of all applicable tariffed discounts.
2.2 "Postalized Rates" shall refer to per minute rates for
Services that are nondistance- sensitive.
2.3 "Services" shall refer to any one or more of those
telecommunications services provided to Customer pursuant to
the Tariffs.
2.4 "Usage Charges" shall mean Customer's recurring usage charges
for the Services calculated at Base Rates. Usage Charges do
not include the following: (i) taxes and tax related
surcharges; (ii) charges for any non-Tariffed services; (iii)
charges for equipment and collocation; and (iv) charges
incurred where MCI or an MCI affiliate acts as agent for
Customer in the acquisition of goods or services.
3. Annual Minimum. During each Contract Year, Customer's Usage Charges
must equal or exceed Eight Hundred Forty Thousand Dollars ($840,000)
(the "Annual Minimum").
3.1 During each month of the Contract Years, Customer's MCI
HyperStream Frame Relay port and PVC Usage Charges must equal
or exceed Ten Thousand Dollars ($10,000) (the "Monthly
HyperStream Subminimum").
4. Rates and Discounts for the Services. Except as expressly provided to
the contrary, the rates, charges, discounts and/or credits set forth
herein are in lieu of, and not in addition to, any other rates,
charges, discounts and/or credits (tariffed or otherwise). For Services
not specifically set forth herein, Customer will be charged MCI's
standard Tariffed rates. References in this Attachment A to standard
Tariffed rates and/or discounts refer to the corresponding standard
rates and/or discounts set forth in the applicable Tariffs for such
Service(s) and in the event that MCI voluntarily or involuntarily as a
result of government or judicial action cancels in whole or in part any
tariff on file with the Federal Communications Commission, such
references shall refer to the corresponding, rates and/or discounts set
forth
-1-
in the Price Guide for such Service(s). All references to "intrastate"
and "interstate" contained herein shall refer to domestic Services
only.
4.1 networkMCI One Service. Customer will pay the following rates
for networkMCI One Service:
4.1.1 Interstate networkMCI One Service. Customer will pay
the following Postalized Rates for networks One
Outbound Service, including interstate networkMCI One
Card Service, based on call type. These Postalized
Rates will be adjusted on the first day of each
January during each calendar year of the Term by an
amount equal to the same percentage by which standard
Tariffed interstate networkMCI One Service rates were
adjusted during the immediately preceding calendar
year. These Postalized Rates will fluctuate with
changes in the Tariff, not to exceed a maximum
increase or decrease of three percent (3%) per annual
period. Such adjustments shall be made on a
prospective basis only. No retroactive adjustments
will be made to previous years during the Term of
this Agreement.
Call Type Rate Per Minute
Dedicated/Dedicated $0.0870
Switched/Dedicated $0.1070
Dedicated/Switched $0.1070
Switched/Switched $0.1570
4.1.1.1 Customer will receive a fixed discount of
thirty seven percent (37%) off the
Postalized Rates described in Section 4.1.1
above to be applied to Customer's monthly
Usage Charges for said Service.
4.1.2 Customer will pay the following Postalized
Rates for networkMCI One Toll Free Service,
based on termination type. These Postalized
Rates will be adjusted on the first day of
each January during each calendar year of
the Term by an amount equal to the same
percentage by which standard Tariffed
interstate networkMCI One Service rates were
adjusted during the immediately preceding
calendar year. These Postalized Rates will
fluctuate with changes in the Tariff, not to
exceed a maximum increase or decrease of
three percent (3%) per annual period. Such
adjustments shall be made on a prospective
basis only. No retroactive adjustments will
be made to previous years during the Term of
this Agreement.
Termination Rate Per Minute
Direct Access Line $0.1070
Business Line $0.1570
-2-
4.1.2.1 Customer will receive a fixed discount of
thirty seven percent (37%) off the
Postalized Rates described in Section 4.1.2
above and off Dynamic Routing Charges as
described in the Tariff, to be applied to
Customer's monthly Usage Charges for said
Service.
4.1.3 International networkMCI One and networkMCI One Toll
Free Service. For international [toll free and/or
outbound] networkMCI One Service, including
international networkMCI One Card Service, Customer
will pay standard Tariffed rates less a fixed ten
percent (10%) discount off standard Tariffed rates,
including Canada.
4.1.4 Intrastate networkMCI One and networkMCI One Toll
Free Service. For intrastate [toll free and/or
outbound] networkMCI One Service, including
intrastate networkMCI One Card Service, Customer will
pay standard Tariffed rates without application of
any discounts (tariffed or otherwise).
except as described in Section 5.2 below.
4.1.5 networkMCI One Card Surcharge. Notwithstanding
anything herein to the contrary, Customer will pay a
thirty five cent ($0.35) per call surcharge for all
networkMCI One Card calls.
4.2 networkMCI Audio Conferencing. Customer will pay the following
rates for networkMCI Audio Conferencing Service.
In lieu of standard Tariffed rates, for all
networkMCI Audio Conferencing Service, Customer will
be charged the following, per-minute per bridge port
rates (with rounding to the next higher full minute).
In addition, MCI will waive per bridge port set-up
fees.
Service Rate
Attended Meet-Me Service* $.3500
Unattended Meet-Me Service $.3400
Attended Toll Meet-Me Service $.2300
Unattended Toll Meet-Me Service $.2100
* includes Dial-Out Service, Personal Toll
Free Meet-Me Service, and Toll Free Meet-Me
Service
4.3 Dedicated Access Services. Customer subscribes to and will
receive the discounts off local loop charges only for
channelized and unchannelized T-1 access, DSO access and DDS
access and analog access provided pursuant to MCI's three (3)
year Access Pricing Plan ("APP").
-3-
4.3.1 In addition to the discount described in Section 4.3 above,
the Customer will receive a thirty percent (30%) discount on
its MCI monthly recurring charges under this Agreement for up
to ten (10) MCI provided T-1 digital access channels and
associated access coordination and central office connection
charges, provided such channels are installed for use with MCI
Services and are billed on MCI invoices. This monthly discount
will be applied to Customer's T-1 carrier charges for domestic
interstate service (as long as Customer makes payment pursuant
to this Agreement). Customer shall also be eligible for the
T-1 Digital Access Install Waiver Promotion, pursuant to the
Tariff.
4.4 Dedicated Leased Line Services. For MCI Dedicated Leased Line
Services, Customer will pay standard Tariffed rates less the
discounts associated with the three (3) year and Fifty
Thousand Dollar ($50,000) Network Pricing Plan as set forth in
the Tariff. The standard term and volume commitments set forth
in the Tariff will not apply.
4.5 Charges Not Eligible For Discount. The rates and discounts set
forth in this Section 4 do not apply to the following: charges
for MCI Services other than those set forth in Section 4;
non-Tariffed products; access or egress (or related) charges
imposed by third parties; standard Tariffed non-recurring
charges, calling card surcharges and taxes or tax-like
surcharges.
5. Credits.
5.1 Installation Credit. Customer shall receive credits in the
aggregate of up to Forty Five Thousand Dollars ($45,000)
Dollars for the one-time installation and other one-time,
nonrecurring, standard (non-expedite) charges associated with
the implementation of domestic Services under this Agreement.
Such credits will be issued from time to time throughout the
Term as MCI services are installed by Customer and shall be
applied following, application of all standard Tariffed
installation promotions.
5.2 Interstate Service Credits. Customer will receive a monthly
recurring credit (the "Interstate Service Credit") to be
applied to Customer's interstate Usage Charges of Services
hereunder equal to the sum of. (i) the product of a fixed
twenty five percent (25%) discount multiplied by Customer's
intrastate networkMCI One Usage Charges for the immediately
preceding month at standard Tariffed rates plus (ii) a fixed
discount of twenty five percent (25%) multiplied by Customer's
intrastate networkMCI One Toll Free Usage Charges for the
immediately preceding month at standard Tariffed rates.
Notwithstanding the foregoing, in no event shall the amount of
any such Interstate Service Credit exceed Customer's
interstate Usage Charges for the month in which such credit is
to be applied.
-4-
5.3 Revenue Stimulation Credits. At the end of each Contract Year,
the Customer will receive a one-time credit for that year that
corresponds to the Annual Usage Amounts* identified below.
Such credit shall be applied in the form of a dollar amount to
Customer's domestic interstate Usage Charges (exclusive of
applicable taxes, surcharges, access/egress (or related)
charges) in the thirteenth (13th) and twenty fifth (25th)
months of the Term.
Annual Usage
Amounts Credit Amount
------- -------------
125% of Annual Minimum 1% of annual usage
140% of Annual Minimum 1.75% of annual usage
*For purposes of this Section 5.3, only revenue that counts
towards the satisfaction of the Annual Minimum will be
measured.
6. Underutilization. If in any Contract Year, Customer's Usage Charges are
less than the applicable Annual Minimum, then Customer will pay: (1)
all accrued but unpaid usage and other charges incurred by Customer;
and (2) an underutilization charge (which Customer agrees is
reasonable) equal to one hundred percent, (100%) of the difference
between Customer's Usage Charges during such Contract Year and the
applicable Annual Minimum.
6.1 HyperStream Underutilization. If in any month of the Contract
Years, Customer's MCI HyperStream Frame Relay Usage Charges
are less than the applicable Monthly HyperStream Subminimum,
then Customer will pay: (1) all accrued but unpaid usage and
other charges incurred by Customer; and (2) an
underutilization charge (which Customer agrees is reasonable)
equal to one hundred percent (100%) of the difference between
Customer's MCI HyperStream Frame Relay Usage Charges during
such month of the Contract Year and the applicable Monthly
HyperStream Subminimum.
7. Termination Liability. If (1) Customer terminates this Agreement during
the Term, for reasons other than (i) for "Cause" (as hereinafter
defined) or (ii) to take service under another arrangement with MCI
having equal or greater term and volume requirements or (2) MCI
terminates this Agreement for Cause, Customer will pay within thirty
(30) days after such termination: (a) all accrued but unpaid usage and
other charges incurred through the date of such termination (b) an
amount equal to one hundred percent (100%) of the aggregate of the
Annual Minimum(s) (or pro rata portion thereof for partial Contract
Year) that would have been applicable for the remaining unexpired
portion of the Term on the date of such termination and (c) any and all
credits received by Customer hereunder (exclusive of credits for the
Interstate Service Credits), in full, without setoff or deduction. As
used herein, "Cause" shall mean a failure of the other party to perform
a material obligation under this Agreement which failure is not
remedied by the defaulting party within thirty (30) days after receipt
of written notice thereof.
-5-
8. Payment Arrangements. Customer is required to pay MCI for Services
within twenty-five (25) days after Customer's receipt of MCI's invoice.
9. Exclusivity Requirement.
9.1 Customer agrees it shall use MCI exclusively as its
interexchange carrier ("IXC") during the Term hereof for
ninety five percent (95%) of all IXC services for which
Customer is not contractually committed at the execution of
this Agreement [including, without limitation, inbound toll
free services, outbound voice services, conference calling
services, domestic and international outbound, and domestic
and international data services.] Compliance with the
foregoing exclusivity covenant shall be measured on a monthly
basis based on Customer's dollar usage of all IXC services.
9.2 After the Effective Date of this Agreement, but not more than
once annually, MCI may request, and Customer shall provide to
MCI in writing, Customer records, data and invoices pertaining
to its total IXC service usage for the most recent twelve (12)
month period preceding the request. MCI may review this
information for the sole purpose of determining Customer's
compliance with the exclusivity covenant set forth in this
Section.
10. MCI Local Service.
(i) From time to time during the Term, MCI or an MCI affiliate may
offer local access or local exchange telephone services
(collectively, "Local Service"). As of the Effective Date,
Local Service is provided by MCImetro Access Transmission
Services, Inc. "Local Service Charges" (as defined below) will
contribute to Customer's Annual Minimum, but will not be
eligible to receive any discounts under this Agreement unless
otherwise expressly stated. For purposes of this Agreement,
"Local Service Charges" means MCI's tariffed or standard rates
and charges for Local Service, net of associated credits or
discounts, and includes applicable monthly usage and monthly
recurring, charges, local line charges, analog and digital
trunk charges, and Direct-Inward Dialing analog, digital and
number charges. Local Service Charges do not include charges
for ▇▇▇▇ Operating Company resold local exchange services
within the meaning of Section 251(c)(4) of the
Telecommunications Act of 1996, Directory Assistance charges
and surcharges, charges for enhanced services (such as charges
for voice mail or call manager), non-recurring charges,
Operator Services charges and surcharges, access/egress (or
related) charges imposed by a third party other than MCI or an
MCI affiliate, applicable sales, use, excise, utility, and
gross receipts taxes and other similar tax-like surcharges.
(ii) Where MCI has received the applicable regulatory approval and
filed the necessary tariff(s), Customer will be automatically
enrolled in an MCI Local Service Term Plan and will receive a
twenty percent (20%) discount on its eligible monthly charges
for
-6-
MCI facilities-based local exchange service. Enrollment in the
MCI Local Service Term Plan is subject to the terms and
conditions of the MCI Local Service Term Plan program set
forth in the applicable tariffs or price lists.
11. Quality Assurance. Notwithstanding the provisions of Section 7
("Termination Liability") above, Customer shall be permitted to
terminate during the Term, without liability or further obligation,
except for charges incurred up to the date of termination, a circuit
that experiences "MCI-caused" quality deficiencies that are
demonstrated by Customer to affect adversely and materially Customer's
telecommunications applications (such a termination under this clause
shall constitute a "Termination for Quality Assurance"). As used
herein, "MCI-caused" shall mean MCI acts or omissions regarding the
provision of a circuit to Customer. A Termination for Quality Assurance
shall not be effective unless Customer has reported troubles on a
circuit-specific, ANI basis to (and received a corresponding trouble
ticket number from) MCI's Support Center and a period of not less than
thirty (30) days after receipt of Customer's written notice of
termination has elapsed during which time MCI fails to correct such
MCI-caused quality deficiencies for such circuit. Such thirty (30) day
period shall commence upon MCI's receipt of Customer's written notice
and will not re-commence if the same MCI-caused quality deficiencies
occur again for such circuit during said thirty (30) day period.
12. Provisions for Service Interruptions.
(a) Credit Allowance for Service Interruptions.
Customer shall be entitled to Credit Allowances for Service
Interruptions in accordance with Section B.15 of the Tariff. A
Service Interruption begins when Customer reports the
interruption to MCI and releases the "Service Element" (as
hereinafter defined) for testing and repair and ends when MCI
retenders the Service Element to Customer. For the purpose of
determining compliance with the Annual Minimum, MCI will not
reduce monthly charges by the amount of Credit Allowances
applied. For purposes of this Agreement, "Service Element"
refers to the specific MCI service affected at the specific
geographic Customer location affected.
(b) Partial Discontinuance without Liability.
Customer may discontinue receipt of service on a Service
Element at any time without liability except as otherwise
expressly provided for in the applicable Tariff or this
Agreement (an example of such a provision might be where a
private line installation charge is waived but is to be
assessed if the line is not in place for a minimum period). If
Customer discontinues receipt of service on a Service Element
having chronic Service Interruptions and does not take
substitute service from MCI, the Annual Minimum for purposes
of assessing underutilization charges shall be reduced by the
average monthly charges for the discontinued Service Element
measured over the last
-7-
three (3) billing months prior to discontinuation multiplied
by twelve (12). A Service Element with chronic Service
Interruptions is one on which there have been three (3) or
more Service Interruptions, each consisting of thirty (30) or
more minutes, totaling twenty-four (24) or more hours within
three (3) consecutive calendar months.
13. Technology Upgrade.
(a) In the event that: (i) Customer is unable to satisfy the
Annual Minimum solely as a result of a Customer's migration
from Services to enhanced services of MCI which are not
includable in determining Customer's compliance with the
Annual Minimum ("MCI Enhanced Services") and (ii) Customer
certifies to MCI in writing that: (x) it has not substituted
services provided by other vendors in place of the Services
and (y) it is not able to substitute for such migrated usage
other telecommunications services provided to Customer by
other vendors, then MCI agrees to reduce the Annual Minimum by
the Customer's minimum volume requirement, calculated on an
annual basis, for such MCI Enhanced Service(s) pursuant to its
agreement with MCI governing such usage.
(b) Following the establishment by MCI of a revised Annual Minimum
as set forth above in Section 13(a), the revised Annual
Minimum shall replace the Annual Minimum throughout this
Agreement and Customer shall remain liable for charges
pursuant to this Agreement, including, without limitation,
those charges set forth in Sections 6 and 7 hereof, based on
the revised Annual Minimum. Notwithstanding anything herein to
the contrary, in the event of the establishment of a revised
Annual Minimum, MCI may increase the rates provided and/or
lower the discounts to Customer hereunder by sending at least
thirty (30) days' prior written notice thereof to Customer.
14. Business Downturn.
(a) In the event that Customer is unable to meet the Annual
Minimum, notwithstanding Customer's best efforts to do so, or
anticipates that it will be unable to meet the Annual Minimum,
notwithstanding Customer's best efforts to do so, and Customer
establishes the foregoing to MCI's satisfaction and such
failure results solely from a business downturn beyond
Customer's control, which materially and permanently reduces
the size or scope of Customer's operations and the volume of
Services required by Customer hereunder, then MCI agrees to
reduce the Annual Minimum by the product of the average
monthly demonstrated purchases displaced by such business
downturn multiplied by twelve (12). By way of illustration and
not by limitation, business downturn shall not include a
change in Customer's usage of Services hereunder resulting
from a decision by Customer to: (i) reduce its overall use of
telecommunications services; (ii) alter its telecommunications
network architecture; or (iii) transfer portions of its
telecommunications traffic or projected
-8-
growth to carriers other than MCI. This Section 14(a) shall
also not apply during the first Contract Year of the Term, and
thereafter, may only be used one (1) time during the Tenn.
Customer shall give MCI immediate notice of the conditions it
believes will require the application of this Section 14(a)
and provide copies of documentation and/or data demonstrating
the resulting decrease in usage of Services hereunder.
(b) Following the establishment by MCI of a revised Annual Minimum
as set forth above in Section 14(a), the revised Annual
Minimum shall replace the Annual Minimum throughout this
Agreement and Customer shall remain liable for charges
pursuant to this Agreement, including, without limitation,
those charges set forth in Sections 6 and 7 hereof, based on
the revised Annual Minimum. Notwithstanding anything herein to
the contrary, in the event of the establishment of a revised
Annual Minimum, MCI may increase the rates and/or lower the
discounts provided to Customer hereunder by sending at least
thirty (30) days' prior written notice thereof to Customer.
15. Business Divestiture.
(a) In the event that (i) Customer is unable to satisfy the Annual
Minimum solely as a result of a "Business Divestiture" (as
such term is hereinafter defined) and (ii) Customer certifies
to MCI in writing that it has not substituted services
provided by other vendors in place of the Services and it is
not able to substitute for such diminished MCI usage other
telecommunications services provided to Customer by other
vendors, then MCI agrees to reduce the Annual Minimum by the
product of the average monthly purchases attributable to such
Business Divestiture during the six (6) months (or in the
event that such Business Divestiture occurs prior to the sixth
(6th) monthly billing cycle of the Term, during the monthly
billing cycles since the Commencement Date) preceding such
Business Divestiture multiplied by twelve (12). For purposes
of this provision, "Business Divestiture" shall mean the sale
or divestiture by Customer of a subsidiary, affiliate or
significant operating unit that uses Services hereunder.
Customer shall give MCI immediate notice of a Business
Divestiture and shall promptly provide to MCI in writing,
documentation satisfactory to MCI which establishes that a
Business Divestiture has occurred.
(b) Following the establishment by MCI of a revised Annual Minimum
as set forth above in Section 15(a), the revised Annual
Minimum shall replace the Annual Minimum throughout this
Agreement and Customer shall remain liable for charges
pursuant to this Agreement, including, without limitation,
those charges set forth in Sections 6 and 7 hereof, based on
the revised Annual Minimum. Notwithstanding anything herein to
the contrary, in the event of the establishment of a revised
Annual Minimum, MCI may increase the rates and/or lower the
discounts provided to Customer hereunder by sending at least
thirty (30) days' prior written notice thereof to Customer.
-9-
MCI HyperStream(sm) Frame Relay Service
ENROLLMENT FORM AND AGREEMENT
MCI
MCI HyperStream(sm) Frame Relay Service is subject to the
terms of this Enrollment Form and Agreement ("Agreement"),
including any attachments and documents incorporated by
reference.
▇▇▇▇▇▇ Group, Inc. MCI Telecommunications Corporation
Customer Name
28651 U.S. ▇▇ ▇▇▇▇
▇▇▇▇▇▇ Address Authorized MCI Signature
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
City/State/Zip Print Name and Title
Customer Signature MCI Acceptance Date
Valid only if executed by Customer
and returned to MCI by January 19, 1996
Print Name and Title and subsequently accepted by MCI.
Customer Signature Date
--------------------------------------------------------------------------------
TERMS AND CONDITIONS
1. Definitions. "MCI" refers to MCI Telecommunications Corporation.
"HyperStream(sm) Frame Relay" means MCI's frame-based data networking
service, an enhanced service, as described in the HyperStream(sm) Frame
Relay Service Description, as revised from time to time, which is
attached hereto as Attachment 1.
2. Service Terms.
a. MCI will furnish the HyperStream(sm) Frame Relay services (the
"Services") to Customer pursuant to the terms of this
Agreement. This Agreement incorporates by reference the Rules
and Regulations contained in MCI Tariff FCC No. 1 (the
"Tariff"), with specific reference to Section 8.4.02 thereof,
as the Tariff may be modified from time to time by MCI in
accordance with applicable law, except as expressly varied or
supplemented herein. Other than as expressly set forth herein,
MCI DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. In no event shall MCI be liable to Customer or any
third party for indirect, incidental or consequential damages,
even if aware of the possibility thereof. In the event of any
inconsistency between this Agreement and the terms the Tariff,
the terms of this Agreement shall govern. This Agreement is
the complete agreement between Customer and MCI for the
services subject to this Agreement and supersedes any prior
written or oral agreements and understandings concerning the
Services.
b. Customer acknowledges that MCI has been ordered by the Federal
Communications Commission (the "FCC") to provide the Services
pursuant to a tariff filed with the FCC. MCI and Customer
agrees that as of the date that MCI tariffs the Service: (1)
This Agreement is subject to said tariff; and (2) the parties
will promptly execute appropriate additional agreements and
amendments to this Agreement, the effect of which shall be to
eliminate the Services from this Agreement and to incorporate
the Services into an agreement for MCI tariffed services.
Customer acknowledges and agrees that MCI shall have no
obligation to include any other nontariffed service or
equipment provided under this Agreement or any charges payable
for such service or equipment in any such agreement for
tariffed services. In the event the FCC significantly and
materially alters the terms and conditions contained herein,
MCI and Customer will cooperate in efforts to develop a
mutually agreeable alternative proposal that will address the
concerns of both parties and comply with all applicable legal
and regulatory requirements and restrictions.
c. With the exception of revisions to the Tariff made in
accordance with applicable law, this Agreement may only be
amended ir writing signed by authorized representatives of the
parties.
3. Rates and Charges. Attachments 2 and 3 to this Agreement, which are
incorporated herein by reference, contain the applicable rates and
charges for the Services provided hereunder. Revisions of the
applicable rates and charges may become effective upon revisions of any
applicable tariff provisions (if the service is offered under tariff)
or upon notification that MCI has revised the applicable rates and
charges (if the service is not offered under tariff). Any other service
Customer orders from MCI or any of its affiliates will not be subject
to the terms of this Agreement.
4. Term. The initial term of this Agreement shall commence on the MCI
Acceptance Date and shall be coterminous with the MCI Corporate Service
Plan Agreement, signed by the Customer on December 5, 1994 and
subsequently accepted by MCI on January 4, 1995, as amended. After the
initial term, the service arrangement shall continue month to month,
unless terminated by Customer or MCI on thirty 130) days' written
notice.
5. Governing Law. The provision of service under this Agreement is subject
to and shall be interpreted in accordance with the terms of the
Communications Act of 1934, as administered by the Federal
Communications Commission.
6. Nondisclosure. Customer agrees not to disclose the financial provisions
of this Agreement to any third party during the term and for one (1)
year after termination, except that this provision does not apply to
information in the public domain or information which is lawfully
required to be disclosed. MCI reserves the right to terminate the
provision of service under this Agreement if there is any unpermitted
disclosure.
ATTACHMENT 1
HyperStream Frame Relay Service Description
Overview
HyperStream Frame Relay Service is a packet-oriented interLATA data transport
service. At the originating customer promises Motorola provided equipment
(equipment provided pursuant to a separate agreement) places the data into
packets and gives each packet a terminating address. MCI routes the packets over
the MCI network to the terminating address. HyperStream Frame Relay is available
at speeds up to 1.544Mbps (where clear channel access is available).
Technical Description
HyperStream Frame Relay operates at layer two of the OSI model and is designed
to conform to the ANSI T1.617 Annex D Standard.
Access
Customers obtain access to HyperStream Frame Relay via dedicated digital
facilities, only. MCI will provide access under the terms of its filed and
effective tariffs or customer may obtain access via alternate access vendors.
Customer Promises Equipment (CPE)
Customer may provide required CPE or may obtain CPE from MCI under separate
agreement.
Availability
HyperStream Frame Relay is available between cities listed in MCI Tariff FCC No.
1, Section C. 1 2, Table IV, Part A, as amended from time to time, or any
successor tariff.
Performance Criteria
MCI shall provide Customer certain performance criteria for domestic HyperStream
Frame Relay Service as identified in Attachment 4, hereto attached and
incorporated by reference.
ATTACHMENT 2
DOMESTIC HYPERSTREAM FRAME RELAY RATES AND CHARGES
HYPERSTREAM FRAME RELAY DOMESTIC PRICING
A. RATES AND CHARGES: Basic Month-to-Month Rates and Charges.
1. Installation Charges.
(a) Access Lines -- Per Tariff (if MCI provided)
or alternate access vendor
(b) Per Port (each location) -- $300.00
(c) Per Permanent Virtual Circuit (PVC) -- $15
simplex
2. Reconfiguration Charges.
(a) Access Lines - Per Tariff (if MCI provided)
or alternate vendor
(b) Per Port (each Location) -- $300.00
(c) Per PVC - $15.00 simplex
3. Monthly Recurring Charges.
(a) Access line charges -- Per Tariff (if MCI
provided) or alternate vendor
(b) Port Charges -- All port charges are
applicable per port (per location). Port
charges depend upon the port speed selected
by you.
Port Speed Selected Rate/Month
56/64 Kbps $ 180.00
112/128 Kbps $ 336.00
224/256 Kbps $ 394.00
336/384 Kbps $ 578.00
448/512 Kbps $ 735.00
672/768 Kbps $ 946.00
896/1024 Kbps $1,178.00
1344/1536 Kbps $1,470.00
(c) PVC Charges -- PVC rates are either fixed or
usage based. Usage based charges are either
on a committed information rate (CIR) or
zero CIR basis.
(1) Fixed CIR PVC Rates. You select the
fixed CIR per simplex PVC and pay
one monthly usage charge per PVC.
CIR Speed Selected Rate/Month
16 Kbps $ 37.00
32 Kbps $ 57.00
48 Kbps $ 77.00
64 Kbps $ 97.00
128 Kbps $ 177.00
192 Kbps $ 257.00
256 Kbps $ 337.00
320 Kbps $ 417.00
384 Kbps $ 497.00
448 Kbps $ 577.00
512 Kbps $ 657.00
576 Kbps $ 729.00
640 Kbps $ 801.00
704 Kbps $ 873.00
768 Kbps $ 945.00
832 Kbps $1,010.00
896 Kbps $1,075.00
960 Kbps $1,140.00
1,024 Kbps $1,205.00
(2) Usage-based PVC Rates. All
usage-based rates are per delivered
megabyte.
(i) CIR Usage-based PVC Rates.
(a) You select the CIR for each PVC to
be rated. Frames within the CIR
selected will be rated at the CIR
Usage rate of Forty-one Cents
($0.4100) per megabyte of delivered
data. Frames in excess of the CIR
selected by you will be discarded
eligible (DE) and rated at the DE
Usage rate of Twenty-one Cents
($0.2100) per megabyte of delivered
data. Sampling intervals for
measuring bandwidth usage will be
0.4 seconds for CIR at or below 256
Kbps and 1.5 seconds for CIR over
256
Kbps. MCI reserves the right to
revise the sampling intervals.
Rates are simplex based.
(b) Cost Capping. CIR Usage-based PVC
rates are capped at one hundred
percent (100%) of the corresponding
Fixed CIR PVC rates that are set
forth in Section A.3.c.1 above.
(c) CIR Usage-based PVC Monthly
Minimum. If your usage charges for
a PVC in a month are less than
forty percent (40%) of the Fixed
CIR PVC rate selected from the
chart set forth in Section A.3.c.1
above, your charge for said PVC
will be forty percent (40%) of the
Fixed CIR PVC rate (which charges
are set forth below). Minimums
count toward Network Pricing Plan
Monthly Minimums (see B below).
CIR Speed Selected Minimum Rate/Month
16 Kbps $ 15.00
32 Kbps $ 23.00
48 Kbps $ 31.00
64 Kbps $ 39.00
128 Kbps $ 71.00
192 Kbps $103.00
256 Kbps $135.00
320 Kbps $167.00
384 Kbps $199.00
448 Kbps $231.00
512 Kbps $263.00
576 Kbps $292.00
640 Kbps $320.00
704 Kbps $349.00
768 Kbps $378.00
832 Kbps $404.00
896 Kbps $430.00
960 Kbps $456.00
1,024 Kbps $482.00
(ii) Zero CIR PVC Rates. All frames will
be marked DE. All usage is at the
rate of Three Cents ($0.0300) per
megabyte of delivered data. Monthly
minimum
charges per simplex PVC will be Seven
Dollars ($7.00). There will be no usage
charge cap.
B. TERM AND VOLUME COMMITMENTS
RATE PLANS: You may select from the following rate plans:
1. Month to Month. No term or volume commitments will apply,
except PVC monthly minimums. or 2. Network Pricing Plan.
(a) If you order HS-FR under the Network Pricing Plan,
you will receive discounts on certain HS-FR service
elements as follows:
Monthly Term (years)
Minimum 1 2 3 4 5
- - - - -
$ 2,000 5% 6% 7% 8% 9%
$ 5,000 8% 10% 12% 14% 16%
X $ 10,000 12% 14% 17% 19% 21%
$ 25,000 14% 17% 20% 23% 25%
$ 50,000 16% 19% 22% 25% 27%
$100,000 18% 21% 24% 27% 30%
(b) If a Network Pricing Plan is selected, then
commencing with the fourth full monthly billing cycle
if your monthly usage charges for the HS-FR recurring
charges fall below the monthly minimum selected
("Monthly Minimum"), then you will pay an
underutilization charge equal to one hundred percent
(100%) of the difference between the amount you
purchased in such month and the Monthly Minimum.
(c) The discount applies to basic month to month charges
for the following recurring HS-FR service elements:
PVC charges and Port charges (excludes network
management, CPE, access charges, access coordination
charges, taxes and tax related surcharges). Taxes,
tax-related surcharges, access charges, access
coordination charges, network management and CPE
charges do not count toward the Monthly Minimum.
(d) In the event you have a signed Annex to this
Agreement for the provision of HyperStream
International Frame Relay Service ("HSI-FR"), the
following recurring HSIFR service elements shall
count toward the HS-FR Monthly Minimum: Overseas PVC
charges and Overseas Port Charges.
(e) Under the Network Pricing Plan, the start of the term
is from implementation of the first service element
and lasts through the end of the term selected. The
HS-FR term commitment is independent of the terms
committed to in individual Access Pricing Plans.
(f) Except as otherwise provided in this Agreement, if
you terminate this Agreement before the and of the
term selected under the Network Pricing Plan, you
will pay an early termination charge equal to a
portion of the discounts from the month-to-month
basic rates provided to you under this Agreement, as
follows: For a three (3) year term, 100% of the
discount if you terminate in the first year, 75% if
you terminate in the second year, or 50% if you
terminate in the third year. For a two (2) year term,
100% of the discount if you terminate in the first
year, 50% if you terminate in the second year. For a
one (1) year term, 50% of the discount if you
terminate in the first year.
ATTACHMENT 3
MCI HyperStream(sm) Frame Relay
SATISFACTION GUARANTEE
If for any reason Customer is not completely satisfied with HyperStream(sm)
Frame Relay at any time before the completion of three (3) full billing months,
Customer may:
o Discontinue HyperStream(sm) Frame Relay and any associated
customer premises equipment and network management agreements
with MCI without liability for termination charges;
o Receive a credit or refund for HyperStream(sm) Frame Relay and
associated MCI installation charges; and
o Receive a credit for or refund of recurring usage charges for
HyperStream(sm) Frame Relay and associated service Customer
incurred during the Satisfaction Guarantee three (3) month
period in an amount up to the amount of reasonable
re-installation charges Customer may incur from another
carrier for re-installation of the service that Customer had
replaced with HyperStream(sm) Frame Relay.
Covered MCI Charges:
o Installation charges:
o Installation of access circuits associated with
HyperStream(sm) Frame Relay
o Recurring charges:
o HyperStream(sm) Frame Relay Ports
o HyperStream(sm) Frame Relay Permanent Virtual
Circuits (PVCs)
o Access coordination
To exercise Customer's rights under this Satisfaction Guarantee, please notify
Customer's MCI account representative in writing not later than the close of the
third full billing month after initial installation of HyperStream(sm) Frame
Relay.
MCI's offer of Satisfaction Guarantee expires if not exercised on or prior to
the earlier of 10 three full billing months after initial installation of
HyperStream(sm) Frame Relay or (ii) March 30, 1996.
Other than the rights expressly granted in this Satisfaction Guarantee, this
Satisfaction Guarantee shall not be construed to create any rights or remedies
not otherwise expressly provided for nor expand
MCI's obligations under the Agreement for HyperStream(sm) Frame Relay to which
this Satisfaction Guarantee is attached.
ATTACHMENT 4
HyperStream Frame Relay
Service Level Guarantee
MCI is committed to providing its customers with quality Domestic HyperStream
Frame Relay services. This document defines the specific quality of service
levels MCI will seek to maintain while providing Domestic HyperStream Frame
Relay Services to ▇▇▇▇▇▇ Group, Inc.; herein referred to as Customer. In the
event MCI's HyperStream. Frame Relay Services fail to perform to the quality of
the applicable service levels as defined herein, MCI's sole and exclusive
obligations, and Customer's sole and exclusive remedies, shall be as set forth
in this Attachment 3.
1.0 Definition
A Service Level Guarantee (SLG) is a commitment on the part of MCI to
attempt to meet specific network and service performance levels.
2.0 Network Availability
2.1 Description
The HyperStream(sm) Frame Relay (HSFR)network availability
measurement is equal to the total number of minutes in a
calendar month during which core network PVC routes are
available to exchange data between the two network
infrastructure node end points divided by the total number of
minutes in a calendar month ("Network Availability Time").
Network Availability Time is calculated commencing with the
date on which the trouble ticket is opened by the customer and
ending upon confirmation of resolution with the customer.
For purposes of measuring Network Availability Time, the PVC
route referenced above includes the HSFR network
infrastructure connectivity from infrastructure port to
infrastructure port, excluding Customer Premise Equipment and
local access lines.
Customer Premise Equipment ("CPE") refers to the
telecommunications hardware located at the customer site and
supplied by MCI (i.e. modem, router, or multiplexer) or
supplied by the customer.
2.2 Network Availability Objective
MCI will attempt to achieve a Network Availability Time of
99.5% for networks designed with all of the following:
o fully meshed network topology or a star network
topology in which each remote site has PVCs connected
to at least two network hubs engineered to separate
infrastructure node , and
o 10 or more, customer sites are involved in the
network MCI will attempt to achieve a Network
Availability Time of 99%
for any networks not meeting the above requirements.
2.3 Exclusions
Network Availability Time measurements exclude HSFR
unavailability resulting in whole or in part from one or more
of the following causes:
o Any act or omission on the part of Customer, customer
contractors, and customer vendors
o Scheduled maintenance
o Labor strikes
o Natural disasters
o Force majeure events beyond the reasonable control of
MCI (i.e. acts of God, government regulation,
national emergency, etc.)
2.3 Calculation
Customer HSFR Network Availability Time is calculated on a
monthly basis
Monthly Network Availability Time (%) = 1 - [ Total minutes of
PVC downtime per month or "Unavailability Percentage"]
Total # PVCs x #days in month x 24 hrs x 60min
2.4 Components of Calculation
Total minutes in month, total minutes available, total minutes
unavailable, total minutes unavailable due to exclusions,
unavailable minutes due to excluded causes, broken down by
occurrence (exception) category.
2.5 Credits
o In the event MCI is unable to satisfy the HSFR
Availability Time objective for two (2) consecutive
months, during the Service Term, Customer will
receive a credit equal to five percent (5%)
multiplied by the fixed rates for all Port and PVC
charges for both the first(lst) and the second (2nd)
month.
o In the event MCI in unable to satisfy the HSFR
Availability Time objective for a third (3rd)
consecutive month, during the Service Term. Customer
will receive a credit equal to ten percent (10 %)
multiplied by the fixed rates for all Port and PVC
charges for the given month.
o In the event MCI is unable to satisfy the HSFR
Network Availability Time objective for a fourth
(4th) consecutive month, Customer will have the
option to discontinue MCI Service on the Service
Element that has failed to satisfy the HSFR
Availability Time objective and MCI will reduce the
Minimum Volume Requirement (MVR) by the amount of
charges associated with the discontinued Service
Element.
3.0 Frame Delivery
3.1 Description
The HyperStream(sm) Frame Relay Frame Delivery is the
percentage of frames which are successfully delivered. HSFR
Frame Delivery encompasses the successful delivery of frames
through the network based on certain factors. The calculations
are based on total frames sent through the network according
to the following parameters:
The percentage of all non-CIR frames that are successfully
delivered.
The percentage of all CIR frames that are successfully
delivered.
3.2 Frame Delivery Objective
99.99% of all frames that do not exceed the Committed
Information Rate (CIR) are targeted to be successfully
delivered. End to end CIR packet delivery only applies to
frames not marked discard eligible.
99 % of all non-CIR frames are targeted to be successfully
delivered. Non-CIR packet delivery only applies to frames
marked discard eligible, (i.e.; traffic exceeding the
subscribed CIR and all zero CIR PVC traffic).
3.3 Frequency of Calculation
HSFR Frame Delivery is calculated monthly based upon the frame
delivery statistics as stated in the HyperScope reports minus
any applicable exclusions below.
3.4 Exclusions
HyperStream(sm) Frame Relay Service frame delivery
measurements exclude:
o Frames dropped at the infrastructure egress due to
improper customer specification of customer's port
speeds
o Local access and CPE
o Force majeure events beyond the reasonable control of
MCI (i.e. acts of God, government regulation,
national emergency, etc.)
3.5 Credits
o In the event MCI is unable to satisfy the HSFR Frame
Delivery objective for two (2) consecutive months,
during the Service Term, Customer will receive a
credit equal to five percent (5%) multiplied by the
fixed rates for all Port and PVC charges for both the
first (lst) and the second (2nd) month.
o In the event MCI in unable to satisfy the HSFR Frame
Delivery objective for a third (3rd) consecutive
month, during the Service Term. Customer will receive
a credit equal to ten percent (10%) multiplied by the
fixed rates for all Port and PVC charges for the
given month.
o In the event MCI is unable to satisfy the HSFR Frame
Delivery objective for a fourth (4th) consecutive
month, Customer will have the option to discontinue
MCI Service on the Service Element that has failed to
satisfy the HSFR MTTR objective and MCI will reduce
the Minimum Volume Requirement (MVR) by the amount of
charges associated with the discontinued Service
Element.
4.0 Mean Time To Restore (MTTR)
4.1 Description
Mean-Time-To-Restore ("MTTR") is the period of time commencing
on the date customer opens on trouble ticket and ending on the
date of service restoration (closing of a trouble ticket),
calculated as an average of all trouble tickets having the
same severity level (as set forth below).
MTTR measurements are reported based on the percentage of
trouble tickets closed within specific time intervals, grouped
by severity level.
MCI will assign each trouble ticket a severity level based
upon the impact of the service issue on the customer's
business:
Severity 1 - System down or degraded (limited or no
ability to conduct business) Severity 4 - Problem
circumvented / Inquiries (no impact to customer
business)
4.2 MTTR Objective
HyperStream(sm) Frame Relay MTTR objectives are based upon the
severity level of the trouble ticket and proximity to an MCI
terminal or field service point of presence "POP" broken down
by ticket severity as follows:
Severity 1 -MTTR Objective is 4 hrs if within 50-mile radius
of MCI terminal and field service POP,
or
24 hrs or best-effort basis if outside 50-mile radius of MCI
terminal and field service POP
Severity 4 - not measured
4.3 Frequency of Calculation
Customer network MTTR will be calculated on a monthly basis.
4.4 Exclusions
MTTR measurements will exclude the following:
o Trouble tickets associated with now installations
(before new service acceptance by the customer)
o Trouble tickets that are not associated with
MCI-provided service
o Required customer premise access is not available
o Required customer circuit release for testing is
disallowed
o Trouble tickets opened by customer for circuit
monitoring purposes only
o Force majeure events beyond the reasonable control of
MCI (i.e. acts of God, government regulation,
national emergency, etc.)
4.5 Calculation
Monthly MTTR Average = Sum of minutes between opening and
closing of Severity within 30 days
Total number of trouble tickets per month
4.5 Components for Calculations
Total number of trouble tickets, total time between opening of
trouble tickets and applicable service restoration, with total
time of opened trouble tickets subtracting total time of each
exclusion category.
4.6 Credits
o In the event MCI is unable to satisfy the HSFR MTTR
objective for two (2) consecutive months, during the
Service Term, Customer will receive a credit
equal to five percent (5 %) multiplied by the fixed
rates for all Port and PVC charges for the given
month.
o In the event MCI in unable to satisfy the HSFR MTTR
objective for a third (3) consecutive month, during
the Service Term. Customer will receive a credit
equal to ten percent (10%) multiplied by the fixed
rates for all Port and PVC charges for the given
month.
o In the event MCI is unable to satisfy the HSFR MTTR
objective for a fourth (4) consecutive month,
Customer will have the option to discontinue MCI
Service on the Service Element that has failed to
satisfy the HSFR MTTR objective and MCI will reduce
the Minimum Volume Requirement (MVR) by the amount of
charges associated with the discontinued Service
Element.
5.0 Network Transit Delay
5.1 Description
The HyperStream(sm) Frame Relay Network Transit Delay measures
one-way delay between the origination and destination
infrastructure ports. It is defined as the time between the
LAST bit of a ping packet being sent from the origination
infrastructure port to the FIRST bit of the packet received by
the destination infrastructure port, in other words between
the two MCI HyperStream frame relay points of presence.
5.2 Network Transit Delay Guarantee
Average HSFR one way network transit delay of 70 milliseconds
or less in the domestic U.S. and 250 milliseconds or less
internationally.
5.3 Frequency of Calculation
Customer gateway to customer gateway network transit delay is
tested monthly by MCI as part of standard performance
monitoring and capacity planning methodologies. Any customer
incident where network transit delay is measured or suspected
to be greater than the levels stated above will be considered
an abnormal situation and will be addressed through
established trouble handling procedures (e.g., a ticket opened
and technicians work through the problem until the performance
is back to acceptable levels).
5.4 Exclusions
The network transit delay parameters are not guaranteed during
disaster situations where a major network component such as a
backbone link or gateway switch is down hard and the network
is in an emergency reroute configuration. Also, HyperStream.
Network Transit Delay measurements exclude ping packets that
are
not returned, and ports over which the transit delay is
measured can not be more than 5% utilized during any hour over
which transit delay measurements are taken.
Customer calculations of end to end network transit delay must
exclude access serialization delay (calculated as defined
below), access circuit propagation delay, any delay induced by
congestion on the access link, and any CPE induced delay such
as that caused by high router utilization levels. The frame
size for the test must be no more than two hundred (200) bytes
in length, including protocol overhead. Customer tests must
also consist of a minimum of 60 ping tests evenly distributed
over a 6 hour period.
5.5 Components for Calculations
If you are attempting to calculate cpe to cpe delay, the
following are components you will have to consider in addition
to the MCI published network delay:
o access/egress link utilization
o cpe nodal processing time at each end.
o local loop propagation factor = .008 ms/mile
o backhaul (mci pop to frame switch) = .008 ms/mile
o INGRESS/EGRESS SERIAL DELAY (ms) =
(Packet size in bytes)x8x1000
----------------------------
Access speed in bps
5.6 Credits
o In the event MCI is unable to satisfy the HSFR
Transit Delay objective for two (2) consecutive
months, during the Service Term, Customer will
receive a credit equal to five percent (5%)
multiplied by the fixed rates for all Port and PVC
charges for the given month.
o In the event MCI in unable to satisfy the HSFR
Transit Delay objective for a third (3rd) consecutive
month, during the Service Term. Customer will receive
a credit equal to ten percent (10%) multiplied by the
fixed rates for all Port and PVC charges for the
given month.
o In the event MCI is unable to satisfy the HSFR
Transit Delay objective for a fourth (4th)
consecutive month, Customer will have the option to
discontinue MCI Service on the Service Element that
has failed to satisfy the HSFR MTTR objective and MCI
will reduce the Minimum Volume Requirement
(MVR) by the amount of charges associated with the
discontinued Service Element.
6.0 Credit Limitation
In the event the customer experiences network or service
performance for HSFR at levels below stated MCI objectives for
Network Availability Time, MTTR, Network Transit Delay, or
HSFR Frame Delivery during the same month, customer shall only
be entitled to receive credits, if any, pursuant to one (1) of
the applicable credit sections.
