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EXHIBIT 10.11
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. Sections 200.80(b)(4), 200.83
and 230.406.
QWEST COMMUNICATIONS CORPORATION
SERVICES AGREEMENT
This Services Agreement, having Service Agreement No. ________, is entered into
as of April 30, 1998 (the "EFFECTIVE DATE"), by and between Qwest Communications
Corporation, a Delaware corporation ("QWEST"), and General Magic, Inc. a
Delaware corporation ("CUSTOMER")
Qwest will provide to Customer intrastate, interstate, and international inbound
and outbound telecommunications services pursuant to the terms of this Service
Agreement, any Exhibits or Schedules, and Service Orders as defined in Section
1.1, and Qwest Tariff FCC No. 3 and Cal. P.U.C. Schedule No. 3-T, all of which
are hereby incorporated by reference, (collectively the "Agreement"). Qwest may
modify its tariffs from time to time in accordance with law and thereby affect
the service(s) provided to Customer.
In the event that Qwest is required to or elects to withdraw its tariff
currently on file with the Federal Communications Commission pursuant to a final
Report and Order in CC Docket No. 96-61 or any other federal or state decision,
order, or regulation permitting or requiring such tariff withdrawal, the terms
and conditions contained in Qwest's Tariff FCC No. 3 in effect on the effective
date of this Agreement and not in conflict with the terms and conditions of this
Services Agreement shall be deemed incorporated into this Agreement and made a
part hereof.
1. SERVICES TO BE PROVIDED BY QWEST:
1.1 Telecommunications services (the "SERVICE" or "SERVICES") available from
Qwest are identified in the Service and Pricing Exhibit attached hereto
as "EXHIBIT A", which is incorporated by this reference (the "SERVICE
AND PRICING EXHIBIT"). Services requested by Customer shall be requested
on Qwest's service order forms in effect from time to time (hereafter,
any such order is a "SERVICE ORDER(S)"). Each Service Order shall
reference this Agreement by Service Agreement Number and shall become a
part of this Services Agreement when executed by a duly authorized
representative of Qwest. Qwest reserves the right to reject any Service
Order not consistent with this Services Agreement.
1.2 Upon receipt by Qwest of a duly executed Service Order during the Term
(as defined in Section 4.3 of this Agreement) of this Agreement, Qwest
shall provide to Customer those Services identified in the Service
Order.
2. OBLIGATIONS OF CUSTOMER:
2.1 Customer shall perform those duties outlined in the Service and Pricing
Exhibit in addition to those described herein and in any Service
Order(s).
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3. TERM:
3.1 This Agreement shall be effective between the parties as of the
Effective Date. The initial term (the "INITIAL TERM") of this Agreement
shall expire three (3) years from the Effective Date, unless either
party earlier terminates this Agreement in the manner provided herein.
3.2 Upon the expiration of the Initial Term, if Customer is not then in
default hereunder, the term of this Agreement shall be renewed
automatically for successive ninety (90) day periods (hereafter, the
"RENEWAL TERM") unless and until an Amendment is executed by both
parties extending the Renewal Term, or either party terminates this
Agreement in the manner provided herein.
3.3 The Initial Term and Renewal Term are sometimes referred to together
herein as the "TERM."
4. MINIMUM COMMITMENTS, RATES AND PAYMENTS:
4.1 Rates and charges for the Services, as well as Customer's Revenue Level
Commitment, are set forth in the Service and Pricing Exhibit except as
otherwise specifically provided in this Agreement.
4.2 Recurring charges shall be invoiced by Qwest on a monthly basis in
advance and non-recurring charges shall be invoiced in arrears.
4.3 Qwest will provide invoices to Customer in a mutually agreed upon CD-ROM
format.
4.4 Customer shall make all payments due hereunder according to the terms of
Qwest's Tariff FCC No. 3 and Cal. P.U.C. Schedule 3-T, Rule 4 as amended
and in effect at the time the payment is due.
4.5 All disputes or requests for billing adjustments must be submitted in
writing and submitted with payment of undisputed amounts due. Any
amounts which are determined by Qwest to be in error or not in
compliance with this Agreement shall be adjusted on the next month's
invoice. Any disputed amounts which, after investigation, are deemed by
Qwest to be correct as billed and in compliance with this Service
Agreement, shall be due and payable by Customer, upon notification and
demand by Qwest, along with any late payment charges which Qwest may
impose pursuant to Tariff FCC No. 3 or Cal. P.U.C. Schedule 3-T, as
amended from time to time. In the event that Customer continues to
dispute the amount billed, the dispute resolution procedures set forth
in Qwest's Tariff FCC No. 3 or Cal. P.U.C. Schedule 3-T shall apply.
Disputes shall not be cause for Customer to delay payment of the
undisputed balance to Qwest according to the terms outlined in Section
4.3 above.
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4.6 Any applicable federal, state, or local taxes, and all use, sales,
commercial, gross receipts, privilege or other similar taxes or license
fees, surcharges or similar impositions imposed by the Federal
Communications Commission or any state regulatory commission, whether
charged to or against Qwest or Customer, with respect to the Services
provided by Qwest, as well as any other imposition by any governmental
authority which has the effect of increasing Qwest's cost of providing
the Services, shall be payable by Customer in addition to the other
charges set forth in this Agreement. Such charges shall not contribute
to the Revenue Level Commitment.
5. EVENTS OF DEFAULT:
5.1 A "DEFAULT" shall occur if: (a) Customer fails to make any undisputed
payment required to be made by it under this Agreement and any such
failure remains uncorrected for five (5) business days after Qwest has
notified Customer that such undisputed payment was past due; (b) either
party fails to perform or observe any material term or obligation (other
than making payment) contained in this Agreement, and any such failure
remains uncorrected for thirty(30) calendar days after written notice
from the non-defaulting party informing the defaulting party of such
failure (except for a Default by Customer under Section 8.2 of this
Service Agreement, which shall require no advance written notice); (c)
there is an Adverse Material Change (as defined in Section 5.2 of this
Service Agreement) in Customer's creditworthiness and Qwest and Customer
are unable to negotiate an acceptable deposit arrangement or other
procedure for restoring Customer's creditworthiness within thirty (30)
days of notice of the Adverse Material Change.
5.2 For purposes of Section 5.1 of this Service Agreement, an Adverse
Material Change in Customer's creditworthiness shall include, but not be
limited to: (a) failure of Customer to make full payment of undisputed
charges due hereunder on or before the date due on three (3) or more
occasions during any period of twelve (12) months, or Customer's failure
to make such undisputed payment on or before the date due in any two (2)
consecutive months; (b) acquisition of Customer (whether in whole or by
majority or controlling interest) by an entity which is insolvent, which
is subject to bankruptcy or insolvency proceedings, or which presents a
materially greater credit risk than Customer; or (c) Customer's being
subject to or having filed for bankruptcy or insolvency proceedings, or
the legal insolvency of Customer.
5.3 Notwithstanding Section 5.1 of this Service Agreement, the non-chronic,
non-material (as measured according to Schedule 3 to Exhibit A to the
Agreement) failure of any particular Service shall not be deemed a
Default by Qwest, but may obligate Qwest to provide Customer with
Credits for Interruption, as provided for in Qwest's Tariff FCC No. 3.
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6. REMEDIES FOLLOWING DEFAULT:
6.1 If Customer is in Default, Qwest may, in addition to any other remedies
it has under this Agreement or under the law: (a) suspend its
performance under this Agreement without the requirement of any further
notice to Customer, until Customer has remedied all breaches of this
Agreement and paid in full all charges then due, including any late fees
specified herein plus, at Qwest's option, the prepayment of up to two
(2) months recurring charges, as is specified in Section 4.3 of this
Agreement; (b) condition provision of Services or acceptance of a
Service Order on Customer's assurance of payment and compliance with
this Agreement, which may be in the form of a deposit or such other
means as is required by Qwest to establish assurance of payment and
compliance; or (C) terminate this Agreement by providing written notice
to Customer in the manner provided in Section 7.2 of this Agreement.
6.2 If Qwest is in Default, Customer may, in addition to any other remedies
it has under this Agreement or under the law, terminate this Agreement
in the manner provided for in Section 7.1 of this Agreement, but may not
withhold or suspend payment of undisputed charges.
7. TERMINATION:
7.1 Customer may terminate this Agreement: (a) effective upon written notice
to Qwest, if Qwest is in Default (as provided in Section 6.2 of this
Service Agreement); (b) effective upon thirty (30) calendar days prior
written notice, if any material rate or term contained herein and
relevant to the affected Services is materially changed by order of the
highest court of competent jurisdiction to which the matter is appealed,
the Federal Communications Commission, or other local, state or federal
government authority; (c) effective upon ninety (90) calendar days prior
written notice, with or without cause, following the expiration of the
Initial Term; or (d) effective upon written notice to Qwest, if
unplanned system-wide outages (as defined in Section 2.5 of Schedule 3
to Exhibit A) affecting all services exceed sixty (60) consecutive
minutes more than two (2) times in any thirty (30) day period.
7.2 Qwest may terminate this Agreement: (a) effective upon written notice to
Customer, if Customer is in Default (as provided in Section 5.1 of this
Service Agreement); (b) effective upon ninety (90) days prior written
notice, with or without cause, following the expiration of the Initial
Term; or (c) effective immediately and without any advance written
notice, if Qwest does not maintain or loses any required regulatory or
other governmental authorizations to provide the Services, as described
in Section 8.1 of this Agreement , provided Qwest will use commercially
reasonable efforts to notify Customer prior to such termination;
following a Default by Customer under Section 8.2 of this Agreement; or
if Customer makes an unauthorized Transfer under Section 11.1 of this
Agreement.
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7.3 Customer may terminate the affected portion or portions of a Service
Order or Service Orders or the Services Agreement in its entirety upon
ten (10) calendar days prior written notice following failure of
performance, in the manner and subject to Section 9.2 of this Agreement
or Section 1.2 of the Service and Pricing Exhibit.
7.4 Customer may, upon thirty (30) days written notice, terminate the
affected portions of a Service Order or Service Orders or the Service
Agreement in the event that Qwest modifies either Tariff FCC No. 3 or
Cal. P.U.C. Schedule 3-T and such modification materially changes the
rates, terms, or conditions governing the Services provided by Qwest.
8. GOVERNMENTAL AUTHORITY:
8.1 Customer acknowledges that the obligation of Qwest to provide the
Services to Customer is subject to the receipt by Qwest of any required
regulatory or other governmental authorizations. If required, Qwest will
file with the appropriate regulatory agency a tariff that is consistent
with the terms of this Service Agreement and any applicable Exhibits,
Schedules, and Service Orders. In the event that the regulatory agency
requires modifications to the tariff that would be inconsistent with
this Services Agreement, Qwest and Customer will utilize best efforts to
develop mutually acceptable replacement provisions. Qwest reserves the
right to terminate this Agreement pursuant to Section 7.2 of this
Service Agreement if at any time Qwest does not have or loses the
required regulatory or other governmental authorizations to provide the
Services.
8.2 Customer represents and warrants that Customer has received all
necessary permits, licenses, approvals, grants, and charters of
whatsoever kind which materially affect Customer's ability to carry out
the business in which Customer is engaged and to lawfully utilize the
services acquired under the Agreement. A breach by Customer of any of
the representations, warranties or covenants of this Section 8.2 shall
be deemed a Default hereunder, and shall allow Qwest to terminate this
Agreement in the manner described in Section 7.2 of this Service
Agreement.
9. FORCE MAJEURE:
9.1 Except as is provided in Section 9.2 below, Qwest shall not be liable
for any failure of performance hereunder due to causes beyond its
reasonable control, including, but not limited to: acts of God, fire,
explosion, vandalism, fiber optic cable cut, storm, extreme temperatures
or other similar catastrophes; any law, order, regulation, direction,
action or request of the United States government, or of any other
government, including state and local governments having jurisdiction
over either of the parties, or of any department, agency, commission,
court, bureau, corporation or other instrumentality of any one or more
said governments, or of any civil or military authority; national
emergencies,
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insurrections, riots, wars, or strikes, lock-outs, work stoppages or
other labor difficulties; actions or inactions of a third party provider
or operator of facilities employed in provision of the Services; or any
other conditions or circumstances beyond the reasonable control of Qwest
which impede or affect the Services or the transmission of
telecommunications services.
9.2 If any failure of performance on the part of Qwest described in Section
9.1 of this Service Agreement shall be: (a) for thirty (30) calendar
days or less, then this Agreement shall remain in effect, but Customer
shall be relieved of its obligation to pay for that portion of the
Services affected for the period of such failure of performance; or (b)
for more than thirty (30) days, then Customer may terminate either that
portion of any Service Order or Service Orders related to the Services
so affected, or the Services Agreement in its entirety, by written
notice to Qwest, in accordance with Section 7.3 of this Service
Agreement.
10. INDEMNIFICATION:
10.1 Each party shall indemnify and hold harmless the other (and the other's
affiliates, officers, directors and employees; hereafter, "THE
AFFILIATES"), and any third party provider or operator of services
employed by that party or its Affiliates in the provision of the
Services, from and against, and shall reimburse the indemnitee and/or
its Affiliates for, any and all losses, liabilities, deficiencies,
claims and expenses (including, but not limited to, costs of defense and
reasonable attorneys' fees) incurred by the indemnitee or its Affiliates
and arising from or in connection with: (A) any claims which may be
asserted by parties other than Customer or Qwest who have use of or
access to the Services. The party seeking indemnification shall promptly
notify the indemnifying party regarding any such claim, and the
indemnifying party shall have sole control over the investigation,
defense, negotiation and settlement of any such claim. The indemnitee
shall cooperate with the defense and settlement of such claims (at no
cost to the indemnitee) as reasonably requested by the indemnifying
party, and may elect to participate in the defense with counsel of its
own choosing at its expense. [**].
10.2 Notwithstanding anything to the contrary in Tariff FCC No. 3 and Cal.
P.U.C. Schedule 3-T, Rule 3, as amended from time to time, or their
successors, neither party shall have any indemnification liability or
obligation to the other except as expressly set forth in this Section
10.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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11. ASSIGNMENT:
11.1 Neither this Agreement nor any of Customer's rights or obligations
hereunder may be sold, assigned, sublet, encumbered or transferred by
operation of law or otherwise (hereafter, a "TRANSFER"), except (A) to a
Customer Affiliate, or (B) in connection with a sale or assignment by
operation of law of all or substantially all of Customer's assets,
without the prior written consent of Qwest, which will not be
unreasonably withheld. Any Transfer other than those set forth in
clauses (a) and (b) above by Customer without Qwest's prior written
consent shall entitle Qwest, at its option, to: (X) consider the
Transfer void; (Y) consent to the Transfer, and hold the Customer and
any transferee(s) liable hereunder; or (Z) terminate this Agreement upon
delivering written notice to Customer. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors or assigns. Qwest may transfer,
assign, or otherwise in any manner encumber this Agreement and its
rights and obligations hereunder without the need to obtain Customer's
prior consent.
12. TITLE:
12.1 Customer expressly disclaims any right, title, perpetual right of use or
any other interest in or to any equipment or property used or supplied
by Qwest under this Agreement.
13. WARRANTIES AND LIMITATION OF LIABILITY:
13.1 Qwest warrants that the Services shall be provided to Customer and shall
operate in accordance with the standards set forth in EXHIBIT A
(hereinafter the "TECHNICAL STANDARDS"). If the Services are not being
provided in accordance with the Technical Standards (hereinafter, a
"DEFECT" or "DEFECTS"), Qwest shall conform the Services to the
Technical Standards.
13.2 Qwest's liability to Customer in all actions or claims arising under
this Agreement is set forth in and limited by its Tariff FCC No. 3 and
Cal. P.U.C. Schedule 3-T, Rule 3, as amended from time to time, provided
that the exclusion or disclaimer of Qwest's liability for direct damages
for any Default, for any Defects in the Services or for any other breach
of this Services Agreement set forth in such tariffs and any successors
thereto shall be modified so that Qwest's liability to Customer for
direct damages shall not exceed [**].
13.3 Customer's liability to Qwest in all actions or claims arising under
this Agreement shall be limited to direct damages which shall not exceed
[**]. Such limitation does not include any amounts that may be due and
owing to Qwest by Customer under the terms of this Agreement, including
usage charges, underutilization and early termination charges, and late
payment charges.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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13.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOSS OF
USE ARISING FROM ANY CLAIM ON ANY THEORY OF LIABILITY.
14. NON-DISCLOSURE AND PUBLICITY:
14.1 Qwest and Customer shall execute a Non-disclosure Agreement in the
form attached hereto as EXHIBIT B.
15. ARBITRATION:
15.1 The parties shall endeavor to equitably settle all disputes arising out
of or related to this Agreement in an informal manner and in good faith.
All disputes not resolved in this manner shall be determined and
resolved by arbitration in Denver, Colorado, in accordance with the
rules of the American Arbitration Association ("AAA"). The arbitrator
shall be appointed in accordance with the rules then prevailing of the
AAA. The arbitration shall be conducted before a single arbitrator
appointed according to the AAA rules.
15.2 The award rendered by the arbitrator shall be final and binding upon the
parties hereto. Neither party shall have the right to further appeal or
redress the matters arbitrated except for the purposes of obtaining the
judgment rendered by the arbitrator. Judgment upon any arbitration award
may be entered and enforced in any court of competent jurisdiction.
15.3 The parties hereto agree that a prevailing party shall be entitled to
recover all reasonable costs and expenses (including all reasonable
attorney's fees and disbursements) of such arbitration proceeding, as
well as all cost for said proceeding. Such prevailing party shall also
be entitled to reasonable attorney's fees and costs incurred in
enforcing a judgment of the arbitrators separately from and in addition
to any other amount included in such judgment. This Section 15.3 shall
be severable from the other provisions of this Service Agreement and
shall survive and not be merged into any such judgment.
16. USE OF SERVICES:
16.1 Qwest's obligation to provide the Services specified herein is
conditioned upon the Services not being used for any unlawful purpose or
in violation of any governmental regulations or authorizations as
outlined in Section 8 of this Service Agreement.
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17. CHANGES IN TECHNOLOGIES OR BUSINESS CONDITIONS:
17.1 In the event of a business downturn or other change beyond Customer's
control, a corporate restructuring, downsizing, divestiture, or network
optimization using other telecommunications services, changes in price
or tariff terms that substantially affect this Agreement, changes in
Customer's network configuration or design, or significant changes in
available technology or network performance which significantly reduce
the volume or change the nature of telecommunications services required
by the Customer, with the result that the Customer will be unable to
meet its Revenue Level Commitment under this Agreement, Qwest and
Customer will cooperate in efforts to develop a mutually agreeable
alternative that will address the concerns of both parties and comply
with all legal and regulatory requirements and restrictions. By way of
example and not limitation, such alternatives may include changes in
rates, nonrecurring charges, revenue commitments, the multiyear service
period, and other potential solutions. In the event the parties are
unable to agree, the rates, terms, and conditions for the remaining
Service will be established, by arbitration if necessary, according to
comparable rates, terms, and conditions for similar services provided by
Qwest to Similarly Situated Customers, as defined in Section 17.2,
below. Notwithstanding the foregoing, this paragraph shall not apply to
a change resulting from the Customer's deliberate movement of like
services from Qwest to another telecommunications vendor, unless such
migration is to utilize a technology or service that is not reasonably
available from Qwest or as a result of Qwest's failure to perform
according to the terms of this Service Agreement. The Customer will give
Qwest written notification of the conditions it believes will require
the application of this provision. The provision does not construe a
waiver of any charges incurred by the Customer prior to the time the
parties mutually agree to amend or replace this Agreement.
17.2 [**] may, [**] this Agreement [**] if (a) [**] and with a Term at least
[**] or (b) [**] and with a Term at least [**]. For purposes of this
section, [**] is any customer of Qwest which has executed a contract
for [**]
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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[**]. It shall be [**] responsibility to request [**] of the Agreement
pursuant to this Section 17.2
18. MISCELLANEOUS:
18.1 Each party shall execute such other documents, provide such information
and cooperate with the other party, all as may be reasonably required in
connection with providing the Services.
18.2 Neither this Agreement, nor the provision of Services hereunder, shall
constitute, create, give effect to or otherwise recognize a joint
venture, partnership, or business entity of any kind, or result in a
joint communications service offering to any third parties, and the
rights and obligations of the parties will be limited to those expressly
set forth herein. Nothing herein will be construed as providing for the
sharing of profits or losses arising out of the efforts of the parties
hereto, except as may be provided for herein.
18.3 The failure of either party to give notice of default or to enforce or
insist upon compliance with any of the terms or conditions of this
Agreement shall not constitute a waiver of any term or condition of this
Agreement.
18.4 Subject to Section 15 of this Service Agreement, in the event suit is
brought or an attorney is retained by either party to enforce the terms
of this Agreement or to collect any moneys due hereunder or to collect
money damages for breach hereof, the prevailing party shall be entitled
to recover, in addition to any other remedy, reimbursement for
reasonable attorneys' fees, court costs, costs of investigation and
other related expenses incurred in connection therewith.
18.6 No subsequent agreement concerning the Services or modification to this
Agreement shall be binding upon the parties unless it is made in writing
by an authorized representative of Customer and an authorized
Representative of Qwest Communications at its headquarters in Denver,
Colorado.
18.7 If any part of any provision of this Agreement shall be invalid or
unenforceable under applicable law, said part shall be ineffective to
the extent of such invalidity only, without in any way affecting the
remaining parts of said provision or the remaining provisions of this
Agreement, and the Customer and Qwest agrees to negotiate with respect
to any such invalid or unenforceable part to the extent necessary to
render such part valid and enforceable.
18.8 The terms and provisions contained in this Agreement that by their sense
and context are intended to survive the performance thereof by the
parties hereto shall survive the completion of performance and
termination of this Agreement, including, without limitation, the making
of any and all payments due hereunder.
18.9 Words having technical or trade meanings shall be so construed.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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18.10 All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be given by: (a) hand
delivery; (b) first-class registered or certified mail with postage
prepaid; (c) overnight receipted courier service; or (d) telephonically
confirmed facsimile transmission, which notice is addressed to the party
at the address set forth below, or such other address as may hereafter
be designated in writing by the party. Notices given in accordance with
this Section shall be effective upon receipt or when receipt is refused.
All notices to Qwest shall be addressed to:
Qwest Communications Corporation
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000 Phone: (000) 000-0000
Attn.: Xx. Xxxx Xxxxxxx
All notices to Customer shall be addressed to:
General Magic, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000 Phone: (408 (000-0000)
Attn.: Xx. Xxxxx X. Xxxxxx and Xxxx Xxxxx, Esq.
The addresses set forth may be changed by appropriate notice to
the other party.
18.11 This Services Agreement, including its Exhibits and Schedules, Services
Orders, and Qwest's Tariff FCC No. 3 and Cal. P.U.C. Schedule 3-T
incorporated herein by reference, comprises the complete and exclusive
statement of the agreement of the parties concerning the subject matter
hereof, and supersedes all previous statements, representations, and
agreements concerning the subject matter hereof. In the event of any
conflict between the provisions of this Services Agreement and the terms
of any Service Order(s) issued and accepted hereunder, any exhibits
hereto, or tariffs filed with the FCC or any state regulatory agency
(including Qwest's Tariff FCC No. 3 and Cal. P.U.C. Schedule 3-T), the
conflict shall be resolved by reference to said documents in the
following order of priority of interpretation (except as is otherwise
specifically provided in this Agreement or in any exhibits): (A) the
Services Agreement and any Service Orders; (B) any exhibit, with
reference to the same in order of attachment to this Agreement; and (C)
Qwest's tariffs on file with the FCC or any state regulatory commission.
Notwithstanding the foregoing, no provision or term of any Service Order
or exhibit shall be a part of this Agreement or binding on Qwest unless
and until
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such Service Order or document has been executed by an authorized
representative of Qwest.
DATED as of the first date written above.
GENERAL MAGIC, INC.:
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and General Manager
Date: 4/30/98
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QWEST COMMUNICATIONS CORPORATION:
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: President, Bus Mkts
Date: 4/30/98
-----------------------------
APPROVED AS TO LEGAL FORM
April 30, 1998
/s/ Signature Illegible
----------------------------------------
Law Dept.
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EXHIBIT A
TO
QWEST COMMUNICATIONS CORPORATION
SERVICE AGREEMENT
SERVICE AND PRICING EXHIBIT
This Service and Pricing Exhibit (this "SERVICE AND PRICING EXHIBIT") is
made as of April 30, 1998(the "Effective Date) with respect to Service
Agreement No.________, (the "AGREEMENT") by and between Qwest
Communications Corporation, a Delaware corporation ("QWEST"), and
General Magic, Inc. a Delaware corporation ("CUSTOMER").
1. QWEST SERVICES:
1.1 During the Term of the Agreement, Qwest will provide to Customer the
Services described in this EXHIBIT A, at the terms and conditions set
forth herein.
1.2 Qwest will use commercially reasonable efforts to provide Customer with
up to [**] toll free telephone numbers at the Effective Date of this
EXHIBIT A and to provide additional toll free numbers in accordance with
the projected requirements set forth in Schedule 1 to this EXHIBIT A.
2. EARLY TERMINATION
2.1 In the event that Qwest is unable to satisfy Customer's requirement for
toll free numbers as set forth in Schedule 1 to this EXHIBIT A for
reasons other than those set forth in Section 3.7 of this EXHIBIT A,
Customer may elect to terminate the Agreement in its sole discretion.
Should Customer elect to terminate the Agreement, it will have no
further obligation to Qwest and shall not be required to maintain the
Revenue Level Commitment for the remainder of the year in which the
Agreement is terminated or for any subsequent period. Customer is liable
for all charges incurred through and including the date of termination.
2.2 In the event that Customer terminates the Agreement prior to the end of
the initial Term, for reasons other than as set forth in Section 2.1
above, or pursuant to subsections (a), (b), and (d) of Section 7.1,
Section 7.3, Section 7.4 or Section 9.2(b), then Customer shall pay to
Qwest a fee (the "Early Termination Fee") equal to the difference
between the Revenue Level Commitment for the year in which the Agreement
was terminated, as adjusted according to Sections 3.2 and 3.7, if
applicable, and the actual revenues that contribute towards the Revenue
Level Commitment during that year, plus an amount equal to the
Customer's Revenue Level Commitment for the remaining years of the Term.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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3. REVENUE LEVEL COMMITMENT AND RATES
3.1 Set forth below is Customer's Revenue Level Commitment for each of the
three (3) years of the Initial Term of this Agreement commencing on the
Effective Date.
[**]
3.2 To the extent that Customer's payments for Services in a given year are
below the applicable Revenue Level Commitment for that year, the amount
of such underutilization shall be added to the Revenue Level Commitment
for the next annual period. If, at the completion of the Initial Term,
total Customer payments are below the total Revenue Commitment for the
Initial Term, Customer shall also pay to Qwest, in addition to the Rates
set forth below for Services provided to Customer, a fee (the
"Underutilization Fee") equal to the difference between the Revenue
Level Commitment for the Initial Term and the actual revenues that
contribute towards the Revenue Level Commitment for the entire Initial
Term. Any Underutilization Fee shall be due and payable by Customer on
completion of the Initial Term. To the extent that Customer's payments
for Services in a given year exceeds the applicable Revenue Level
Commitment for that year, the amount of such excess shall be credited
toward the Revenue Level Commitment for the next annual period. No
Underutilization Fee shall be payable for any year in which Customer
terminates the Services Agreement pursuant to subsections (a), (b), and
(d) of Section 7.1, Section 7.3, Section 7.4 or Section 9.2(b), and the
Underutilization Fee shall be reduced on a pro rata basis if any Service
Order is terminated in the applicable year due to Qwest's failure or
inability to deliver the applicable Services. Calculation of the
Underutilization Fee may be amended in the event that Section 17.1 of
the Services Agreement is invoked.
3.3 In consideration of the Revenue Level Commitment, Qwest shall provide
the Services at the rates (the "RATES") set forth in this Section 3
(exclusive of all sales, use, commercial or other taxes, surcharges or
license fees). [**]. The Rates are as follows:
(a) MONTHLY RECURRING CHARGES:
[**].
(b) USAGE CHARGES:
All usage charges will be calculated based on the duration of the call.
[**].
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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15
Jurisdiction Base Rate Per Minute
------------ --------------------
[**]
(c) OTHER CHARGES:
In addition to the foregoing Rates, Customer shall pay to Qwest the
following additional charges, as applicable, including any and all
recurring charges imposed on Qwest for the handling of calls under this
agreement:
(i) WAIVED CHARGES:
Notwithstanding the other provisions of this Agreement, [**].
Customer will cooperate with Qwest to obtain access to these [**]
including, if necessary, executing any Letters of Agency required
by [**].
(ii) ADDITIONAL SERVICES:
Qwest will provide additional services requested by Customer at
the rates set forth in Schedule 2 to this EXHIBIT A.
3.5 The Rates set forth in this Section 3 shall be in effect for the entire
Initial Term of this Agreement.
3.6 [**]. In the event that Customer desires to [**], Customer shall issue a
change order to Qwest identifying the [**] for which it is requesting
[**] and any other information that is deemed necessary to implement
Customer's request.
3.7 In the event that Qwest is unable to obtain assignments of the toll free
numbers as set forth in Schedule 1 to this EXHIBIT A from the entity
responsible for number assignment (the "Assigning Entity") or as a
result of rationing or any other policy imposed by the Assigning Entity
which has the result of limiting the availability of toll free numbers
and which prevents Qwest, despite its reasonable efforts, from
maintaining an inventory of toll-free numbers sufficient to satisfy
customer's requirements, Qwest may, subject to Customer approval, (a)
substitute local exchange telephone numbers obtained from a local
exchange carrier which provides telecommunications services within a
geographic territory specified by Customer for some portion of the toll
free numbers required by Schedule 1 to this EXHIBIT A or (b) reduce the
Revenue Level Commitment by an amount [**]
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
3
16
[**] that Qwest is unable to provide to Customer for the reasons set
forth in this Section 3.7 and which Qwest is required to provided
pursuant to Schedule 1 to this EXHIBIT A. This reduction of Revenue
Level Commitment shall continue month to month for each toll free number
that is not provided until Qwest is able to satisfy the monthly
requirements set forth in Schedule 1 to this EXHIBIT A. For purposes of
satisfying these requirements, each toll free number obtained by Qwest
in excess of the monthly requirement for a current month shall be used
to satisfy the deficit created during the first month then each
subsequent month in chronological order, as such excess permits, that
Qwest was unable to provide toll free numbers required by Schedule 1 to
this EXHIBIT A.
4. BILLING
4.1 For ISDN Primary Rate Interface lines only, Qwest shall accept a calling
number information element during call setup, which shall contain the
number to which the associated call will be billed. The calling number
provided shall be contained in the billing record for the call. On
interfaces utilizing channel associated signaling, Qwest shall accept a
fixed number of inband Dial Tone Multi-Frequency ("DTMF") tones during
the call setup identifying the number to which the call shall be billed.
The digits provided shall be contained in the billing record for the
call.
5. TECHNICAL STANDARDS
5.1 Qwest will support a P-.01 service level for all Services provided under
this Agreement.
5.2 Qwest will load balance calls over multiple servers through most idle
inbound balancing.
5.3 Customer and Qwest will mutually agree upon service level commitments to
be included in Schedule 3 to this EXHIBIT A.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
4
17
EXHIBIT B
TO
QWEST COMMUNICATIONS CORPORATION
SERVICE AGREEMENT
CONFIDENTIALITY AGREEMENT
5
18
GENERAL MAGIC, INC.
CONFIDENTIALITY AGREEMENT (MUTUAL)
This Mutual Confidentiality Agreement (the "Agreement") is entered into and is
effective as of March 19, 1998 (the "Effective Date") by and between GENERAL
MAGIC, INC., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 ("Magic"), and
Qwest Communications ("Company").
WHEREAS, the parties may disclose to each other certain confidential
information defined below and Magic and/or Company desires to keep such
information confidential;
WHEREAS, in consideration of the disclosure of such information to Magic
and/or Company, Magic and/or Company is willing to keep such information
confidential in accordance with the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, Magic and Company hereby agree as follows:
1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the
terms and conditions of this Confidentiality Agreement, the existence of the
discussions between Company and Magic and other information, including but
not limited to, each party's product plans, designs, costs, prices and
names, finances, marketing plans, business opportunities, personnel,
research, development or know-how, or any third-party confidential
information disclosed by one party hereto to the other, will be considered
confidential ("Confidential Information"); provided that information
disclosed by the disclosing party ("Discloser") will be considered
Confidential Information by the receiving party ("Recipient"), only if such
information is conspicuously designated as "Confidential": (i) in writing,
if communicated in writing, or (ii) confirmed in writing within thirty (30)
days of disclosure if disclosed orally; and provided further that
Confidential Information shall not include information that: 1) is now or
subsequently becomes generally available to the public through no fault or
breach on the part of Recipient; 2) Recipient can demonstrate to have had
rightfully in its possession prior to disclosure to Recipient by Discloser;
3) is independently developed by Recipient without the use of any
Confidential Information; or 4) Recipient rightfully obtains from a third
party who has the right to transfer or disclose it.
2. NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION. Recipient agrees to
use reasonable care, but in no event less than the same degree of care that
it uses to protect its own confidential and proprietary information of
similar importance, to prevent the unauthorized use, disclosure, publication
or dissemination of Confidential Information. Recipient agrees to accept
Discloser's Confidential Information for the sole purpose of evaluation in
connection with Recipient's business discussions with Discloser. Recipient
agrees not to use Confidential Information otherwise for its own or any
third party's benefit without the prior written approval of an authorized
representative of Discloser in each instance. Recipient may disclose
Confidential Information if required by any judicial or governmental
request, requirement or order; provided that Recipient will take reasonable
steps to give Discloser sufficient prior notice in order to contest such
request, requirement or order by notifying Discloser of such request.
3. OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information, and any
Derivatives thereof whether created by Discloser or Recipient, remains the
property of Discloser and no license or other rights to Confidential
Information is granted or implied hereby. For purposes of this Agreement,
"Derivatives" shall mean: (i) for copyrightable or
Page 1 of 2
19
copyrighted material, any translation, abridgement, revision or other form
in which an existing work may be recast, transformed or adapted; (ii) for
patentable or patented material, any improvement thereon; and (iii) for
material which is protected by trade secret, any new material derived from
such existing trade secret material, including new material which may be
protected by copyright, patent and/or trade secret.
4. INDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently
or in the future be developing information internally, or receiving
information from other parties that may be similar to Discloser's
information. Accordingly, nothing in this Agreement will be construed as a
representation or inference that Recipient will not develop products, or
have products developed for it, that, without violation of this Agreement,
compete with the products or systems contemplated by Discloser's
Confidential Information.
5. NO WARRANTY. All Confidential Information remains the property of Discloser
and no license or other rights in the Confidential Information is granted
hereby. Discloser warrants that it has the right to disclose the
Confidential Information to Recipient. Otherwise, all information is
provided "AS IS" and without any warranty, express, implied or otherwise,
regarding its accuracy or performance. Recipient will return all tangible
Confidential Information, including but not limited to all computer
programs, documentation, notes, plans, drawings, and copies thereof, to
Discloser immediately upon Discloser's written request.
6. TERM. The term of this Agreement shall be two (2) years, provided that
Recipient's duty to protect Discloser's Confidential Information shall
survive expiration or termination of this Agreement and shall expire four
(4) years from the date of disclosure of Confidential Information.
7. NO EXPORT. For each instance in which Magic is the Discloser, Recipient
certifies that no Confidential Information, or any portion thereof, will be
exported to any country in violation of the United States Export
Administration Act and regulations thereunder.
8. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire
agreement with respect to the Confidential Information disclosed herein and
supersedes all prior or contemporaneous oral or written agreements
concerning such Confidential Information. This Agreement may not be amended
except by the written agreement signed by authorized representatives of both
parties. This Agreement will be governed by and construed in accordance with
the laws of the State of California as applied to agreements entered into
and to be performed entirely within California by California residents.
Understood and agreed:
FOR: GENERAL MAGIC, INC. FOR COMPANY:
Qwest Communications Corporation
----------------------------------
Insert Company Name
/s/Xxxxx X. Xxxxxx 3/19/98 /s/Xxxxx X. Xxxxx, President, Business Markets
---------------------------------------------- ----------------------------------------------
By (Signature) Date By (Signature) Date
Xxxxx X. Xxxxxx Xxxxx X. Xxxxx
---------------------------------------------- ----------------------------------------------
Printed Name and Title Printed Name and Title
APPROVED AS TO FORM
MARCH 19, 1998
/s/ Signature Illegible
---------------------------------
Legal Department
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