INTERCONNECTION AGREEMENT
This Interconnection Agreement (the "Agreement") is made, effective as
of August 18th, 1997 (the "Effective Date"), by and between Icon CMT Corp., a
Delaware corporation, with its principal place of business at 0000 Xxxxxx Xxxx.,
0xx Xxxxx, Xxxxxxxxx, XX 00000 ("Company") and UUNET Technologies, Inc., a
Delaware corporation, with its principal place of business at 0000 Xxxxxxxx
Xxxxx, Xxxxxxx, XX 00000 ("UUNET").
R E C I T A L S
1. Each of Company and UUNET operates an Internet Network, as defined
below; and
2. The parties wish to provide for the interconnection of, and exchange of
traffic between, their respective Internet Networks on the terms and conditions
herein.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
1.1 "Internet Network" shall mean a communications network
running the TCP/IP and other Internet protocols.
1.2 "Interconnection Point" shall mean any interconnection
point at which the parties agree to connect their respective Internet Networks
under this Agreement. A description of all Interconnection Points, together with
all direct interconnections agreed to by the parties, is set forth on the
attached Schedule 1, and Schedule 1 shall be amended by the agreement of Company
and UUNET in the event of any changes.
2. EXCHANGE OF TRAFFIC
2.1 The parties agree to exchange digital communications
traffic over their respective Internet Networks at the Interconnection Points,
subject to the terms and conditions set forth in this Agreement. Each party
shall provide, at its own expense, a connection from its Internet Network to the
Interconnection Point(s) upon a schedule to be mutually agreed. Each party will
send over the Interconnection Points only traffic destined for the other party's
customers.
2.2 The data rates at which the parties will connect hereunder
is set forth in the attached Schedule 1.
2.3 The parties agree not to restrict the use of their
respective Internet Networks based on the subject matter of the traffic unless
required to do so by applicable law.
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2.4 Except for control traffic which must be examined in order
for the parties to operate their respective Internet Networks, neither party
shall monitor or capture the contents of any data or other traffic which passes
through the Interconnection Points. Neither party shall modify the
infrastructure in any way to examine any data unless an appropriate court order
is in force. Except as otherwise agreed between the parties and with third
parties as appropriate, neither party shall provide to third parties any
statistical information itemized by service provider, by company, or by IP
address; provided, that each party may provide its customers with their own
statistical data.
2.5 Neither party will establish a route of last resort
directed toward the other party's Internet Network. Instead, the parties will
fully exchange explicit routes comprising public Internet service destinations
of entities to whom either party is contractually obligated to handle traffic.
3. TERM AND TERMINATION
This Agreement shall have an initial term of one year
following the Effective Date. Either party may terminate this Agreement upon 60
calendar days' written notice to the other at any time after the end of the
initial term. If neither party terminates this Agreement upon expiration of the
initial term, this Agreement shall continue on its present terms and conditions,
specifically including the requirement that the parties continue their
discussions and activities under Paragraphs 4 and 5 hereof, until either party
terminates it by 60 calendar days' written notice to the other.
4. TECHNICAL AND OPERATIONAL MATTERS
4.1 The parties will work together during the term of this
Agreement to establish mutually agreed performance objectives and operational
procedures to enable each party to provide the highest practical quality of
service over its Internet Network and the interconnection provided hereunder, in
a cost effective fashion. In connection therewith, the parties shall use their
reasonable efforts to achieve a minimum end-to-end one-way packet delay.
4.2 Each of the parties will use its reasonable efforts to
achieve a mean time to repair of four hours or less for all outages at the
Interconnection Point(s) set forth on Schedule 1. The parties will cooperate
with each other in each party's efforts under this paragraph 4.b.
4.3 Each of the parties will develop scheduled maintenance
procedures that provide for notification by one party to the other of all
scheduled maintenance that could cause end-to-end connectivity loss for any user
of more than five minutes. Each party agrees to give the other three calendar
days advance notice for scheduled maintenance that is expected to result in 30
minutes or more of end-to-end connectivity loss.
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4.4 Each party will, at its own expense and on a reasonable
efforts basis, provide Network Operations Center ("NOC") support in cooperation
with the other so as to maintain the smooth operation of the network service.
The parties shall develop operational procedures for the interconnection of
their respective Internet Networks, including without limitation inter-NOC
problem management information exchanges (e.g., trouble ticket tracking), and
NOC escalation procedures for addressing unscheduled outages or emergency
maintenance.
4.5 Each of the parties will provide the other with certain
limited access to data for the purpose of operational monitoring and the
diagnosis of end-to-end connectivity problems. The parties will use their
reasonable efforts to develop procedures to govern the timing and other terms
and conditions upon which this access will be provided.
4.6 Each of the parties will use its reasonable efforts to
collect during the term hereof and provide to the other party traffic
information with respect to its Internet Network in order to better understand
the nature of the traffic passing through the parties' respective Internet
Networks. In addition, each party shall use its reasonable efforts to track and
provide the other party with average and peak utilization data over the
interconnection facilities set forth on Schedule 1 hereto.
5. CUSTOMER RELATIONS
Each party will be responsible for communicating with its own
customers with respect to its Internet Network. Each party will use its
reasonable efforts to notify the other promptly in writing of all trouble
reports made to it by customers of the other party. Each party shall be
responsible to screen the traffic of its own customers not desiring public
Internet access from distribution across the Interconnection Point(s). Each
party will independently establish the charges to its own customers for the
services provided in connection with this Agreement.
6. LIMITATION ON SERVICES
This Agreement shall apply only to traffic passing through the
public Internet. Virtual private data network services and services involving
protocols other than the Internet protocols are not covered by this Agreement.
Neither party shall be entitled or required to carry traffic hereunder if doing
so would conflict with any condition imposed by an agreement between the other
party and any third party with whom the other party connects; each party agrees
to give the other party at least 180 days' notice of any such conflicting
agreement that such party intends to enter into after the Effective Date.
7. NONEXCLUSIVITY
This Agreement shall not prohibit or restrain either party's
entry into any separate similar or dissimilar contract or agreement with one or
more third parties.
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8. NO LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS OR
DAMAGE ARISING FROM: (I) ANY FAILURE IN OR BREAKDOWN OF ANY FACILITIES OR
SERVICES HEREUNDER, WHATSOEVER THE CAUSE AND HOWEVER LONG IT SHALL LAST; (II)
ANY INTERRUPTION OF SERVICE, WHATSOEVER THE CAUSE AND HOWEVER LONG IT SHALL
LAST; (III) SUCH PARTY'S SUBMITTING TRAFFIC TO OR ACCEPTING TRAFFIC FROM THE
OTHER PARTY HEREUNDER; OR (IV) ANY OTHER CIRCUMSTANCE RELATING TO THIS
AGREEMENT.
9. INSURANCE
Each party is responsible for assessing its own need for
property, casualty and liability insurance and each shall obtain such insurance
as each sees fit. Each party shall bear the risk of loss and damage with respect
to its own equipment and agrees not to make any claims against the other, or
assign any such claims to third parties, for any property loss or damage.
10. AUTHORIZATIONS
All undertakings and obligations assumed hereunder by either
party are subject to all applicable existing and future laws, rules and
regulations, and are further subject to the issuance and continuance of all
necessary governmental licenses, waivers, consents, registrations, permissions
and approvals.
11. FORCE MAJEURE
No failure or omission by either party to carry out or observe
any of the terms and conditions of this Agreement shall give rise to any claim
against the party in question or be deemed to be a breach of this Agreement if
such failure or omission arises from any cause reasonably beyond the control of
that party (a "Force Majeure Event'). Each party shall give the other notice in
the event it experiences a failure or delay due to a Force Majeure Event. Upon
such notice, the party affected by the Force Majeure Event may delay performance
hereunder during the pendency of such Force Majeure Event, and shall have no
liability for such delay.
12. RELATIONSHIP OF PARTIES
In their performance hereunder the parties are acting as
independent contractors, and nothing contained herein shall be construed to
create a partnership, joint venture or other agency relationship between the
parties.
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13. REGULATORY APPROVAL
The parties acknowledge that this Agreement, and any or all of
the terms hereof, may become subject to regulatory approval by various local,
state or federal agencies. Should such approval be required from time to time or
at any time, the parties shall cooperate, to the extent reasonable and lawful,
in providing such information as is necessary to complete any required filing.
14. ASSIGNMENT
Neither party shall transfer or assign its rights or
obligations under this Agreement or transfer by way of merger, consolidation,
sale of all or substantially all of its assets without the prior written consent
of the other party which consent shall not be unreasonably withheld; provided,
that either party may transfer its interest herein to any subsidiary or
affiliate of such party.
15. NOTICES
All notices between the parties required or permitted
hereunder shall be effective if hand delivered or sent by post or courier,
postage or fees paid, or by facsimile to the address specified below. All
notices shall be effective when sent.
If to Company: If to UUNET:
Icon CMT Corp. UUNET Technologies, Inc.
0000 Xxxxxx Xxxx., 0xx Xxxxx 0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
ATTN: Xxxxx Xxxxxx ATTN: Vice-President, Systems Engineering
Fax: 000-000-0000 Fax: 000-000-0000
with a copy to: with a copy to:
Icon CMT Corp. UUNET Technologies, Inc.
0000 Xxxxxx Xxxx. 0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
ATTN: General Counsel ATTN: General Counsel
Fax: 000-000-0000 Fax: 000-000-0000
16. ENTIRE AGREEMENT
This Agreement represents the entire understanding between the
parties regarding the subject matter hereof and supersedes all other prior and
contemporaneous agreements, understandings, negotiations and discussions between
the parties with respect to such subject matter. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Virginia, without regard to the conflicts of laws principles thereof.
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17. SEVERABILITY
If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, the remaining provisions of this
Agreement will remain in full force and effect.
18. AMENDMENT
This Agreement may be modified only by a written amendment
signed by both parties.
19. NO THIRD PARTY BENEFICIARIES
Nothing contained in this Agreement shall be deemed to confer
any rights in any third party not a signatory to this Agreement.
20. CONFIDENTIALITY
All information exchanged between the parties under this
Agreement or during the negotiations preceding this Agreement and relating
either to the terms and conditions of this Agreement or any activities
contemplated by this Agreement is confidential and neither party shall disclose
to any third party any of the other party's confidential information disclosed
to it. Any announcement of this Agreement must be mutually agreed upon by both
parties, including the timing and wording of press releases and other
announcements to third parties. Should the parties not come to agreement on a
press release or other announcement of the Agreement within 60 days after
execution and delivery of the Agreement, either party may publicly acknowledge
that this Agreement exists, provided that the acknowledgment is not in the form
of a press release.
21. DISPUTES
All disputes arising out of or relating to this Agreement
which are not resolved within 30 days after notice of the dispute is given by
either party to the other shall be finally settled by arbitration conducted
expeditiously in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. The arbitration shall be conducted by a single
arbitrator in Washington, D.C. The arbitration shall be governed by the United
States Arbitration Act, and judgment upon the award rendered by the arbitrator
may be entered by any court with jurisdiction. The arbitrator is not empowered
to award damages in excess of direct compensatory damages. EACH PARTY HEREBY
WAIVES ANY DAMAGES IN EXCESS OF DIRECT COMPENSATORY DAMAGES.
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IN WITNESS WHEREOF, the parties have caused their respective authorized
representatives to sign this Agreement on their behalf, effective as of the date
first written above.
Icon CMT Corp. UUNET Technologies, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Knee
Name: Xxxxx X. Xxxxx Name: Xxxxxxx X. Knee
Title: VP, Business Affairs Title: Vice President
& General Counsel & General Counsel
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SCHEDULE I
INTERCONNECTION POINTS
MAE-E
MAE-W
SPEED
Connected via
public media exchange
over FDDI
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