1
Exhibit 10.09
NYSERNet
TERMS & CONDITIONS
--------------------------------------------------------------------------------
This agreement ("Agreement") is entered into on August 11, 1994 by and between
NYSERNet Incorporated ("NYSERNet") and Sprint Communications Co. L.P. ("Sprint")
for the provisioning of the NYSERNet Network.
Whereas Sprint has responded to NYSERNet's Request for Proposals for
"Internetworking Services" issued on March 28, 1994 and has agreed to join
NYSERNet and NYNEX in the provisioning of a new high-speed NYSERNet network.
NYNEX as a contractor to NYSERNet will deliver LATA aggregation nodes in
various locations across New York State. The aggregation nodes will accept
connections using various access modalities, including frame relay, dedicated
circuits, ISDN, dialup at (dedicated) speeds of 56 Kbps, 384 Kbps, T1, 2T1, and
45 Mbps. All nodes will include dialup facilities.
Sprint as a contractor to NYSERNet will deliver a DS3 New York Statewide area
network with 2 T1 links for redundancy and backup, with two DS-3 egress
circuits into the Sprint backbone. Sprint will also deliver NOC services to
NYSERNet affiliates.
For the purpose of this Agreement the specific Sprint service consisting of
NYNEX LATA aggregation Nodes and Sprint InterLATA circuits and Sprint end-to-end
management shall be called NYSERNet-SprintLink.
The following terms and conditions govern Sprint's provision of
NYSERNet-SprintLink Service and High Speed Networking Services ("Products and
Services") to NYSERNet. The Term "Products and Services" is limited to the
equipment, facilities, programming or software provided by Sprint to facilitate
NYSERNet-SprintLink Services but does not include special access lines which may
be utilized with the NYSERNet-SprintLink Services.
1. TERM
The initial term of this Agreement ("Agreement Term") shall begin on the
date this Agreement is fully executed and shall continue for five years and
six months. This Agreement will be automatically renewed for three one year
terms unless written notice is provided to Sprint anytime prior to sixty
(60) calendar days before the expiration of the term of this Agreement, or
any renewal of such term.
2. RATES
The prices for Products and Services provided hereunder are set forth in
Attachment A (Products, Services and Prices).
3. PRICE GUARANTEE
Sprint agrees that its prices for the Products and Services provided
hereunder shall not increase over the term of this Agreement, except as
provided in Attachment A. Additionally, these prices shall be adjusted to
equal or better the published commercial prices offered for similar
services and quantities under
2
NYSERNet
TERMS & CONDITIONS
comparable terms and conditions. Sprint recognizes its continuing
obligation to offer NYSERNet prices at or below published commercial prices
throughout the term of this Agreement. Sprint and NYSERNet shall meet
quarterly over the course of this Agreement to assure that the prices
offered under this Agreement remain competitive. Should Sprint file a
tariff applicable to the NYSERNet-SprintLink products or services
subsequent to the execution of this agreement, and the rates offered under
that tariff are lower than those offered in Attachment A, NYSERNet will
have the option to receive the lower rates. Sprint will not initiate or
voluntarily file a tariff relating to any services which are or are
contemplated to be part of the NYSERNet-SprintLink service and which are
not subject to tariff on the date of this Agreement. However, if Sprint is
required by law or regulation to file a tariff for these services, then the
tariff will prevail.
4. CO-MARKETING
Sprint will submit to NYSERNet a proposed Marketing Plan by September 1,
1994 which will provide in detail the Sprint and NYSERNet responsibilities
to market the NYSERNet-SprintLink service. Sprint will work in partnership
with NYSERNet to ensure that the objectives of both parties are met. Upon
final agreement, the Marketing Plan will then become the part of the
Co-Marketing Agreement between the parties. This plan will be negotiated in
good faith by both parties and shall be finalized by October 1, 1994. The
final Co-Marketing Agreement will be incorporated into this Agreement as
Attachment B. Should the parties be unable to come to an agreement by
October 1, 1994, then a mutually agreeable date will be selected. Should
the parties still not be able to agree on the Co-Marketing Agreement,
either party may terminate this Agreement with written notice thirty days
(30) prior to termination.
5. TRAINING
NYSERNet will submit to Sprint a proposed Training Development Plan by
September 1, 1994 which will provide in detail the Sprint and NYSERNet
responsibilities to develop the NYSERNet Internet Training Program.
Sprint will work in partnership with NYSERNet to ensure that the
objectives of NYSERNet and Sprint are met. Upon final acceptance, the
Training Development Plan will then become part of the Co-Marketing
Agreement between the parties.
6. SPRINT MEMBERSHIP IN NYSERNet
Through the term of this Agreement Sprint will maintain a membership
in NYSERNet. Sprint shall be entitled to one limited seating training
event to be mutually agreed upon by the parties.
7. REVENUE GUARANTEE
NYSERNet guarantees a minimum cumulative revenue commitment to Sprint
for SprintLink Products and Services (including any NYNEX acquisitions
of products generated through this partnership) pursuant to Attachment
A - Products Services and Prices.
If in any given year as described in Attachment A, NYSERNet fails to
meet the minimum cumulative revenue commitment, Sprint will xxxx
NYSERNet for the difference between the minimum cumulative revenue
commitment for that year and
3
NYSERNet
TERMS & CONDITIONS
if in one or more subsequent years, NYSERNet exceeds a minimum cumulative
revenue commitment to that year, Sprint shall return to NYSERNet the lesser
of a) the amount by which NYSERNet exceeded the minimum commitment for such
year or b) amounts previously paid by NYSERNet, less amounts previously
refunded by Sprint, pursuant to the terms of this paragraph.
8. Network Policy
Any customers of the NYSERNet-SprintLink service will have the right to
have their traffic flow over any portion of the SprintLink network and
any other network with which Sprint has made bilateral or multilateral
agreements without any additional charges. Sprint will not impose any
filtering, blocking or subnetting restrictions on NYSERNet gateways.
NYSERNet will provide a single point of contact for each gateway for
trouble resolution. This network policy shall remain in effect for the
term of this Agreement.
9. Payment and Invoicing
NYSERNet agrees to pay all charges incurred. Charges shall be invoiced
monthly and payment in US currency shall be due upon receipt. Interest
charges of 1 1/2 percent per month or the highest rate permitted by law,
whichever is less will accrue daily on all amounts not paid within
forty-five (45) days of the date of the invoice. NYSERNet will pay all
applicable taxes, as well as duties or levies, on Products and Services.
Sprint shall render a single monthly invoice which will detail charges
for each NYSERNet Affiliate as follows: customer name, port charge,
equipment rental, equipment purchase, service options, and individual
customer total. All applicable credits and discounts shall then be
subtracted from the total monthly charges. Invoices shall keep a YTD
cumulative summary of amounts billed for purposes of tracking progress
on attainment of the annual revenue guarantee. Invoices shall be
rendered in hard copy and machine readable form.
NYSERNet reserves the right to request copies of all backup documentation
from Sprint for items invoiced for the purpose of verifying costs to its
Federal, State and internal auditors.
10. Non-NYSERNet Affiliates
Sprint will offer its current SprintLink customers in New York the option
to transition their SprintLink Service to NYSERNet-SprintLink service
through NYSERNet membership and shall exert best efforts to sell such
service in the New York area as per the Sprint NYSERNet Co-Marketing
Agreement. If Sprint should elect to use the NYSERNet-NYNEX LATA
aggregation node architecture for customers who decline to be NYSERNet
members, Sprint will pay to NYSERNet an amount equal to the port charge as
described in Schedule A, Products, Services and Prices for port speeds up
to 2 T-1s. Port speeds in excess of 2 T-1s, will be negotiated on a case by
case basis.
If a New SprintLink Customer declines NYSERNet membership but is
transitioned to the NYSERNet-NYNEX LATA aggregation node architecture,
Sprint will pay to NYSERNet an amount equal to the port charge as
described
4
NYSERNet
TERMS & CONDITIONS
--------------------------------------------------------------------------------
in Attachment A, Products, Services and Prices for port speeds up to 2
T-1s. Port speeds in excess of 2 T-1s, will be negotiated on a case by
case basis. NYSERNet will also receive a credit in the same amount against
its revenue guarantee.
For purposes of Article 10, any current or future customer of Sprint who
does not have SprintLink Service as of the date of this Agreement is fully
executed shall be considered a New Sprint Customer.
11. RELEASE OF INFORMATION/PRESS RELEASES
Unless required by law, or as otherwise permitted under this Agreement,
NYSERNet and Sprint agree that the terms and conditions of this Agreement
shall not be disclosed to any other party without the prior written
consent of the other, which consent shall not be unreasonably withheld.
Each party agrees to obtain written consent from the other party prior to
issuance of any press release regarding this Agreement.
12. OTHER REGIONAL NETWORKS AND CUSTOMERS
NYSERNet may sell DS3 SprintLink and other standard Sprint products and
services. Regional networks may purchase these products and services for a
term of one year with the option to renew in one year increments upon
mutual agreement of Sprint and NYSERNet. The prices for DS3 SprintLink and
other Sprint services for these other regional networks and customers are
outlined in Attachment A, Products, Services and Prices. NYSERNet shall
receive credits from Sprint for such sales as delineated in Attachment A.
13. ALLOWANCE FOR SERVICE INTERRUPTIONS
NYSERNet will be entitled to credits for interruptions in service as
defined in Attachment C Network Performance Criteria as follows:
A. If the accumulated interruption in any 24-hour period is less than
four (4) hours, NYSERNet will be entitled to a credit of 1/1440 of the
applicable monthly charge for each aggregate 30-minute segment during
which an interruption existed during such period. For purposes of this
subparagraph, the number of "30-minute segments" during which an
interruption existed will be the sum of (a) the number of integral
multiples of 30 minutes for which such interruption existed, if any, plus
(b) the remaining segment in excess of such integral multiples, but only
if such segment is in excess of 15 minutes.
B. If the accumulated interruption of service is more than four (4)
hours in any one day, NYSERNet shall receive a credit equal to 1/30 of the
applicable monthly charge for such interruption.
C. If the accumulated interruption within any seven (7) day period
equals or exceeds ninety-six (96) hours, NYSERNet shall receive a credit
equal to 7/30 of the applicable monthly charge.
Page 4
5
NYSERNet
TERMS & CONDITIONS
-------------------------------------------------------------------------------
The credit for a monthly billing period shall not exceed the applicable
charge for such month.
NYSERNet shall not receive a credit if an interruption is (a) caused by
the negligence or willful misconduct of NYSERNet or others authorized by
NYSERNet to use the services provided by Sprint; (b) due to a failure of
power, facilities, equipment, systems or connections not provided by
Sprint; (c) caused by the failure of access to Sprint's network, unless
such failure is solely caused by Sprint; (d) a result of scheduled
maintenance, but only to the extent that such interruption does not exceed
the interruption which would be caused by such scheduled maintenance if
properly performed; or (e) due to any cause beyond Sprint's control.
14. DELIVERY OF INITIAL ROLLOUT
By no later than November 15, 1994 Sprint shall deliver to NYSERNet a
functioning network (AS SPECIFIED IN ATTACHMENT D, Physical Network
Specifications), i.e. the NYSERNet MAN with a SprintLink NOC, and two (2)
DS3 connections to the SprintLink backbone. The DS3 connection points are
the Pennsauken NAP and a site determined by Sprint and acceptable to
NYSERNet. The above SHALL have equivalent functionality to current
SprintLink services. If by November 1, 1994, it is determined by Sprint
that the NYSERNet MAN with a SprintLink NOC, and two (2) DSS connections
to the SprintLink backbone will not be completed by November 15, 1994,
Sprint will make a best efforts attempt to provide standard SprintLink
service to NYSERNet free of charge until such time as the NYSERNet Man is
fully functional. If Sprint is unable to provide standard SprintLink
service in this event, then liquidated damages in the amount of $3000 per
day shall accrue beginning November 16, 1994. If the network is not
delivered by December 31, 1994, NYSERNet shall have the option to
terminate this Agreement with no penalty keeping the accrued liquidated
damages. If the contract is not terminated, but liquidated damages have
accrued, the liquidated damages will be provided to NYSERNet in the form
of a credit for services rendered.
15. NETWORK PERFORMANCE CRITERIA
Both parties will negotiate in good faith to establish network
performance criteria by which contract performance will be measured.
Sprint will work in conjunction with NYSERNet to ensure that the
objectives of both parties are met. Upon final acceptance, the Network
Performance Criteria as stated in Attachment C will then become part of
this Agreement. Sprint will provide service in accordance with the
accepted Criteria. Both parties shall negotiate in good faith to establish
and accept the Network Performance Criteria by September 1, 1994. Should
the parties not agree on the Network Performance Criteria by September 1,
1994, then a mutually agreeable date will be selected. Should the parties
still not be able to agree on the Performance Criteria, either party may
terminate this agreement with written notice thirty days (30) prior to
termination.
6
NYSERNet
TERMS & CONDITIONS
--------------------------------------------------------------------------------
16. TERMINATION FOR NON-PERFORMANCE
Either party may delay performance or terminate this Agreement, in the
event of default by the other, provided that the non-defaulting party so
advises the defaulting party in writing of the event of alleged default and
the defaulting party does not remedy the alleged default within thirty (30)
days after written notice thereof. Default is defined to include:
(a) either party's insolvency or initiation of bankruptcy or receivership
proceedings by or against the party;
(b) either party's material breach of any of the other terms or conditions
hereof including the failure to make any payment when due, if the amount of
the payment due is not in dispute, or
(c) the execution by either party of an assignment for the benefit of
creditors.
(d) Failure to meet the Network Performance Criteria as described in
Article 15.
Termination of this Agreement for any cause shall not release either party
from any liability which at the time of termination has already accrued to
the other party or which thereafter may accrue with respect to any act or
omission prior to termination or from any obligation which is expressly
stated herein to survive termination.
NYSERNet may terminate this Agreement for non-performance if Sprint fails
to meet the Network Performance Criteria in Attachment C.
17. TERMINATION FOR OTHER REASONS
NYSERNet may desire to terminate this Agreement for reasons other than
those specified in Articles 4, 14, 15 and 16. In that event NYSERNet must
provide Sprint with thirty (30) days prior written notice. Termination for
reasons specified in Articles 4, 14, 15 and 16 will be without penalty to
NYSERNet. In the event of early termination for any reason other than those
specified in Articles 4, 14, 15 and 16, NYSERNet will pay Sprint a
termination charge in the amount of $1,000,000.
18. RIGHTS AND OBLIGATIONS OF NYSERNet
A. NYSERNet shall at its own expense provide all necessary preparations
required to comply with Sprint's installation and maintenance
specifications, shall be responsible for the costs of relocation of
Products and Services once installed by Sprint, and shall provide to
Sprint and to suppliers of communications lines reasonable access to
NYSERNet's premises to perform any acts required by this Agreement.
The movement of the Syracuse and Chicago T-3 backbone circuits will be
exempt from this requirement.
B. NYSERNet shall properly use equipment provided by Sprint and shall
surrender the equipment to Sprint upon termination. NYSERNet shall be
liable for damages to Products and Services caused by the negligence
or willful acts of NYSERNet's officers, employees, agents or
contractors for
7
NYSERNet
TERMS & CONDITIONS
----------------------------------------------------------------------------
loss through theft or vandalism of Products and Services on NYSERNet's
premises, and for damages caused by the use of equipment or supplies not
provided or approved by Sprint.
C. NYSERNet shall neither permit or assist others to use Products and
Services for any purpose other than that for which they are intended; fail
to maintain a suitable environment as specified by Sprint; or alter,
tamper with, adjust or repair the Products and Services. In the event of
such alterations, tampering, adjustments or repairs by NYSERNet, Sprint
shall be completely released from any liability or obligation (including
any warranty or indemnity obligation) to NYSERNet relative to the Products
and Services; and NYSERNet shall be liable to Sprint for costs or damages
incurred by Sprint.
D. NYSERNet shall not nor shall it permit or assist others to abuse or
fraudulently use Products and Services, including but not limited to the
following:
1. Obtaining or attempting to obtain service by any fraudulent means or
device with intent to avoid payment;
2. Accessing, altering, or destroying any information of another Sprint
customer by any fraudulent means or device, or attempting to do so; or
3. Using Products and Services so as to intentionally and maliciously
interfere with the use of the Sprint network by other customers or
authorized users; or in violation of the law or in aid of any unlawful
act.
19. Equipment or Software not Provided by Sprint
A. Sprint shall not be responsible for the installation, operation or
maintenance of equipment or software not provided by Sprint; nor shall
Sprint be responsible for the transmission or reception of information by
equipment or software not provided by Sprint. However, Sprint shall be
responsible for the operation and maintenance of software for NYNEX/
NYSERNet backbone routers.
B. NYSERNet shall be responsible for the use and compatibility of equipment
or software not provided by Sprint. In the event that NYSERNet uses
equipment or software not provided or approved by Sprint which impairs the
NYSERNet's use of Products and Services, NYSERNet shall nonetheless be
liable for payment for Products and Services. Upon notice from Sprint that
the equipment or software not provided or approved by Sprint is causing or
is likely to cause hazard, interferences or service obstruction, NYSERNet
shall eliminate the likelihood of hazard, interference or service
obstruction. NYSERNet shall pay Sprint to troubleshoot difficulties caused
by equipment or software not provided by Sprint at the current rates in
effect.
C. Sprint shall not be responsible if any changes in Products and Services
cause equipment or hardware not provided by Sprint to become obsolete,
require
Page 7
8
NYSERNet
TERMS & CONDITIONS
-------------------------------------------------------------------------------
modification or alteration, or otherwise affect performance of equipment
or hardware not provided by Sprint.
D. The following terms apply specifically to scenarios where NYSERNet
provides the router that will interface to SprintLink. Sprint includes
the terms and conditions so that Sprint can control the performance of
SprintLink on an end-to-end basis and protect the SprintLink network.
Sprint's intent is to manage the router on a cooperative basis with
NYSERNet.
1. Sprint reserves the right to allow or refuse the make, model and or
software revision of NYSERNet-provided router to be used as the
gateway to SprintLink. Such approval will not be unreasonably
withheld or delayed.
2. Sprint and NYSERNet will cooperatively set the initial configuration
for the router's interface into SprintLink.
The following terms apply specifically to Sprint managed routers.
3. NYSERNet must permit Sprint to access the router's SNMP variables,
and NYSERNet must, at Sprint's request, permit one or more Sprint
network management systems to be the recipient of SNMP TRAP messages.
4. NYSERNet will offer Sprint read/write access to the router's
configuration tables unless NYSERNet is specifically requested by a
connecting affiliate not to do so. Either NYSERNet or Sprint can
administer the access controls (i.e., login and password) to the
router's configuration editor. Sprint will only modify that part of
the router's configuration which controls the interface into the
SprintLink network.
20. RIGHTS AND OBLIGATIONS OF SPRINT
A. Sprint shall install, operate and maintain Products and Services. Sprint
shall not be responsible for cabling that connects equipment not
provided by Sprint to Sprint Products and Services.
B. Sprint warrants that Products and Services will be in good working order
and will conform upon the date installed to the Specifications set forth
in Attachments C (Performance Specifications) and D (Physical Network
Specifications).
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
C. Sprint shall not be liable, either in contract or in tort, for
protection from unauthorized access of NYSERNet's transmission
facilities or NYSERNet premise equipment; or for unauthorized access to
or alteration, theft or destruction of NYSERNet's data files, programs,
procedure or information through accident, fraudulent means or devices,
or any other method.
9
NYSERNet
TERMS & CONDITIONS
--------------------------------------------------------------------------------
D. Sprint shall not be liable for claims or damages caused by NYSERNet's
fault, negligence or failure to perform NYSERNet's responsibilities;
claims against NYSERNet by any third party, unless such claims result
from any action or inaction of Sprint or from any service provided by
Sprint pursuant to this Agreement; any act or omission of any other party
furnishing products or services; or installation or removal of equipment
furnished by any service provider or Sprint, except where caused by the
gross negligence of Sprint.
E. For any claim (other than a claim based on patent, copyright or trade
secret), NYSERNet's damages, if any, shall be limited to those actually
proven as directly attributable to Sprint, subject to the following
limitation: Sprint will not be liable under any circumstances for any
lost profits or other consequential damages, even if Sprint has been
advised of the possibility of such damages. Sprint's liability for
damages to NYSERNet for any cause whatsoever, regardless of the form of
action, and whether in contract or in tort, (other than negligence),
shall be limited to the monthly charges paid for Products and Services
from the date damages were incurred, but in no event more than twelve
(12) month's charges for the Products and Services that cause the damage.
Sprint's liability to NYSERNet for damages as a result of Sprint's
negligence will be limited to $500,000; provided, however, that such
limitation of liability shall not apply to claims for personal injury or
property damage arising from the willful act of Sprint, its office agents
or employees for which Sprint shall remain fully liable.
F. Upon default by NYSERNet, Sprint may terminate Products and Services and
retake possession of Products and Services (before, during or after
action to recover sums hereunder), in which case NYSERNet shall provide
Sprint full and free access to Products and Services for this purpose,
retain all payments made hereunder, and recover charges and costs owed
by NYSERNet as well as any other damages Sprint may have sustained
because of NYSERNet's default.
21. Proprietary Rights and Information Protection
A. Where NYSERNet or Sprint utilizes Products and Services containing
programming or software belonging to the other, then each grants the
other a non-exclusive and non-transferable license to use such
programming or software for the sole purpose of enabling the user to use
such Products and Services. Where such programming or software is
necessary to enable an end-user to use the Products or Services licensed
or sold to such end-user by NYSERNet, Sprint grants NYSERNet a
non-exclusive and non-transferable license to sublicense such programming
or software to its customers, to be used by them solely for the purpose
of using such Products or Services.
B. Title and property rights including all intellectual property rights to
Products and Services are and shall remain with the original owner,
whether or not embedded in the programming or software.
C. Each of the parties to this Agreement recognize that Products and
Services, programming and software of the other used hereunder constitute
valuable trade secrets and each shall use their best efforts to protect
and keep confidential all programming and software used by it and shall
make no
10
NYSERNet
TERMS & CONDITIONS
-------------------------------------------------------------------------------
attempt to examine, copy, alter, "reverse-engineer", tamper with, or
otherwise misuse such Products and Services programming and software.
22. Indemnities
A. If promptly notified in writing of any claim made against NYSERNet based
on a claim that Products and Services used by NYSERNet infringes a United
States patent, or copyright or trade secret, Sprint will indemnify
NYSERNet against all costs and expenses incurred by NYSERNet in
connection with such claim (including any reasonable attorney's fees) and
will defend any action at its expense and will pay any and all fees,
costs or damages that may be finally awarded in such action or resulting
settlement. In the event that a final injunction is obtained against
NYSERNet prohibiting use of Products and services or any part thereby by
reason of infringement of a United States patent or copyright, Sprint
will at its option either:
1. At its expense, procure the right for NYSERNet to continue using the
Products and Services; or
2. Procure alternative Products and Services which furnish the same or
similar functionality; or
3. Direct NYSERNet to return such Products and Services to Sprint at
Sprint's expense, and in such event, the Agreement relating to such
returned Products and Services shall terminate and any prepaid charges
will be refunded to NYSERNet.
B. Both parties will be indemnified and saved harmless by the other party
from and against all loss, liability, damage and expense, including
reasonable counsel fees, caused by:
1. Negligent acts or omissions of officers, employees, agents or
contractors of either party which arise out of or are caused by the
construction, installation, maintenance, presence, use or removal of
systems, channels or terminal equipment or software not provided by
Sprint which are connected or are to be connected to Sprint Products
and Services and which result in claims and demands for damages to
property or for injury or death to persons including payments made
under any Worker's Compensation Law or under any plan for employee's
disability or death benefits.
2. Claims for libel, slander, invasion of privacy, infringement of
copyright, and invasion and/or alteration of private records or data
arising from any information, data or message transmitted over the
network by either party and their employees or contractors.
3. Claims for infringement of patents arising from the use of equipment
and software, apparatus and systems not provided by Sprint in
connection with Products and Services.
11
NYSERNet
TERMS & CONDITIONS
-------------------------------------------------------------------------------
23. General
A. Neither party shall assign or transfer this Agreement without the prior
written consent of the other party.
B. Sprint will not be responsible for performance of its obligations
hereunder where delayed or hindered by war, riots, embargoes, strikes or
other concealed acts of workmen (whether of Sprint or others),
casualties, accidents or other occurrences beyond Sprint's control.
Sprint shall notify NYSERNet in the event of any of the foregoing
occurrences. Should such occurrence continue for more than sixty (60)
days, Sprint or NYSERNet may cancel the Order for the affected Products
and Services with no further liability. To the extent Sprint is relieved
of performing its obligations hereunder pursuant to the provisions of
this Paragraph 23(B), and as a result thereof, the service provided to
NYSERNet, and by NYSERNet to its customers, is impaired, the minimum
monthly and annual payments required by NYSERNet pursuant to the terms of
this Agreement for the period then in effect will be reduced, pro rata to
the period during which service is impaired and such Products or Services
are not being delivered.
C. Any legal action arising out of failure, malfunction or defect in
Products and Services shall be brought within one (1) year of the
occurrence or is deemed waived.
D. This Agreement may not be modified except by written amendment by the
parties. No agent, employee or representative of Sprint or NYSERNet has
authority to bind the parties to any representation or warranty unless
such is specifically included in this Agreement or written amendments
thereto.
12
NYSERNet
TERMS & CONDITIONS
--------------------------------------------------------------------------------
E. Notice to the parties of disputes arising under this Agreement shall be
sent by registered mail to:
NYSERNet Sprint Contract Administration
Executive Director 00000 Xxxxxxxx Xxxx Xxxx
000 Xxxxxx Xxxxx Xxxx M/S VAHRNA608/CMV
Xxxxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxx 00000
F. Sprint shall identify single points of contact for Project Manager,
Account Manager, Implementation Manager, and Service Manager.
NYSERNet shall identify single points of contact for Program Manager, Sales
Manager, Transition/Operations Manager, and Accounting Manager.
G. This Agreement shall be governed by the laws of the State of New York.
NYSERNet SPRINT COMMUNICATIONS
COMPANY, LIMITED PARTNERSHIP
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxxxx
------------------------------------ -------------------------------------
Xxxxx X. Xxxxxxx Xxxxx Xxxxxxxx
------------------------------------ -------------------------------------
Name Name
Executive Director/Vice President Manager, Contract Law & Administration
------------------------------------ --------------------------------------
Title Title
August 9, 1994
------------------------------------ --------------------------------------
Date Date
13
[SPRINT LOGO]
ASSIGNMENT AGREEMENT
WHEREAS, Sprint Communications Company (hereinafter, "Sprint") presently
has an Agrement dated August 11, 1994 along with related amendments,
correspondence, and written understandings (hereinafter Agreement) with
NYSERNet, Inc. (hereinafter "NYSERNet") for Network Management Services; and
WHEREAS, NYSERNet requests that Sprint assign the Agreement to
AppliedTheory Communications, Inc. (hereinafter referred to as
"AppliedTheory"); and
WHEREAS, Sprint consents to the assignment of the Agreement;
WHEREAS, AppliedTheory agrees to accept the proposed assignment;
NOW, THEREFORE, in consideration of mutual benefits received and other
good and valuable consideration, the parties agree as follows;
(1) Sprint assigns to AppliedTheory the Agreement Number dated August 11,
1994;
(2) AppliedTheory hereby agrees to accept assignment of the Agreement in
accordance with all documents, terms, conditions, pricing and requirements; and
(3) AppliedTheory hereby also agrees to accept all responsibilities,
obligations, and liabilities including but not limited to responsibility for
products or services delivered and work previously completed and installed as
incurred under the Agreement prior to the date of signature by all parties on
this Assignment Agreement and in the future.
/s/ [Illegible Signature] /s/ Xxxxxx X. Xxxxxxx
-------------------------------------- ---------------------------------------
ATTEST Name: Xxxxxx X. Xxxxxx
Title: Manager, Contract Administration
Sprint Communications Company, L.P.
Date: Date: 2/18/97
/s/ Xxxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
-------------------------------------- ---------------------------------------
ATTEST Name: Xxxxx X. Xxxxxxx
Title: President
NYSERNet, Inc.
Date: 2/14/97 Date: 2/14/97
/s/ Xxxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
-------------------------------------- ---------------------------------------
ATTEST Name: Xxxxx X. Xxxxxx
Title: Director of Finance
AppliedTheory Communications, Inc.
Date: 2/14/97 Date: 2/14/97
