Common use of Capacity Availability Clause in Contracts

Capacity Availability. 3.1 Provider shall make available to MCI, in response to any electronically transmitted requests from MCI, Capacity as specifically provided for in any ASR or Service Agreement which may be entered into by the parties, subject to the terms of this Agreement. A sample form of the Service Agreement is attached hereto as Exhibit B. 3.2 The metropolitan areas and building locations in which Provider's Network is currently able to furnish Capacity to MCI are listed in Exhibit C attached hereto and made a part hereof. Provider shall have the right, at any time and from time to time during the term of this Agreement, to provide MCI with a revised list of metropolitan areas and building locations, in a format acceptable to MCI. Upon receipt by MCI, any such revised list shall be automatically attached hereto as an amended Exhibit C. 3.3 To order Capacity to be furnished at a building location included in Exhibit C, MCI shall electronically submit an Access Service Request (herein referred to as "ASR") to Provider, including the requested date of service. Within five (5) business days after receipt of the ASR, Provider shall electronically issue a Firm Order Commitment (hereinafter referred to as "FOC") to MCI. MCI shall have the right, in its sole discretion, to cancel the ASR, without incurring any termination liability, at any time prior to receiving the FOC or in the event the Capacity is not provided by the in-service date set forth in the FOC, unless the delay in providing the service is directly attributable to MCI or its Customer for the requested Capacity. In the event the Capacity is not provided by the in-service date set forth in the FOC, and the delay in providing the service is not directly attributable to MCI or its Customer, and MCI chooses not to cancel the ASR, Provider will waive non-recurring charges associated with the Capacity ordered. Under no circumstances shall MCI be billed for use of a circuit prior to installation. The requirements for electronically issuing an ASR and an FOC are further defined in Exhibit D attached hereto and made a part hereof. For the first ninety (90) days of the term of this Agreement, the parties may continue to use Provider's current method for receiving service orders and returning order commitments. Provider shall use its best efforts to transition its access service ordering system to conform to the requirements set forth in Exhibit D within ninety (90) days of the date of this Agreement; provided, however, that Provider must transition its access service ordering system no later than one hundred eighty (180) days after the date of this Agreement. 3.4 To order Capacity to be furnished at a location not included in Exhibit C, MCI shall submit a service request to Provider, including a requested date of service. Within five (5) business days after receipt of the service request, if Provider will be able to furnish such Capacity, Provider shall issue a service request confirmation to MCI, along with an estimated date on which the Capacity can be made available to MCI. Within ten (10) business days after receipt of the service request confirmation, MCI shall have the right, in its sole discretion, to either: (a) notify Provider that the availability date is not acceptable and cancel the service request at no cost to MCI or request Provider to submit a new service request confirmation, or (b) notify Provider that the availability date is acceptable. In the event MCI chooses option (a) and requests Provider to submit a new service request confirmation, the procedures and the time periods for responses set forth in this paragraph 3.4 shall again be applicable to MCI's request. In the event MCI chooses option (b), MCI shall submit an ASR to Provider which includes the estimated date from the service request confirmation. Within five (5) business days after receipt of the ASR, Provider will issue a FOC to MCI and shall immediately begin making all arrangements necessary to insure that the Capacity will be available for MCI's use by the estimated availability date. If the terms or pricing for Capacity differ from those stated in Exhibit E, the parties shall execute a Service Agreement for the Capacity within twenty (20) days from the date Provider notifies MCI of the actual availability date for the Capacity; provided, however, that MCI shall have the right, in its sole discretion, to cancel the Service Agreement, without incurring any termination liability, in the event the Capacity is not furnished within thirty (30) days after the in-service date set forth in the Service Agreement, provided that neither MCI nor its Customer is the direct cause of the delay. Notwithstanding the aforementioned, in the event that a Customer cancels its requirement for Capacity after the in-service date has passed, but before the Capacity has been furnished by Provider and neither MCI nor its Customer is the direct cause of the delay, MCI shall have the right, in its sole discretion, to cancel the accompanying Service Agreement for that Capacity without incurring any termination liability.