Common use of Tier 3 Failure Clause in Contracts

Tier 3 Failure. In the event Itau reasonably believes a -------------- material failure of the Co-Branded Service has occurred which results in the Co-Branded Service being continuously inaccessible to thirty-five (35%) percent of all AOLB Service access lines at any time after the Launch of the Co- Branded Service in the Initial Cities, Itau may notify AOLB of such failure and upon receipt of such notice AOLB shall promptly commence tracking and reporting on the accessibility of the AOLB Service. If a Tier 3 Failure is determined: (i) AOLB shall use commercially reasonable efforts to resolve such failure; and (ii) Itau shall be relieved of its obligation not to market or otherwise promote ISP Products or Access Providers in the affected Cities as set forth in Section 2.3.1 of this Agreement until such time as AOLB cures such failure in the affected cities. If the Co-Branded Service remains inaccessible to thirty- five (35%) percent of all AOLB Service access lines for a period of thirty (30) consecutive days other than as a result of a Force Majeure Event, such failure shall be deemed a "Tier 3 Failure." In the event Itau believes a Tier 3 Failure has occurred, at Itau's request, the Technical Committee shall promptly convene within forty-eight (48) hours after such request to determine whether a Tier 3 Failure has occurred. In the event the Technical Committee is unable to reach agreement on whether a Tier 3 Failure has occurred within five (5) days after referral of the matter to the Technical Committee, the matter shall be escalated to the President of AOLB and a comparable officer of Itau, who shall in good faith attempt to reach agreement on whether a Tier 3 Failure has occurred. In the event, such officers cannot reach agreement on whether a Tier 3 Failure has occurred, within five (5) days after the matter has been referred to them, Itau may refer such matter to Forty Five Day Arbitration, provided, however, that such referral must occur within thirty (30) days after the alleged Tier 3 Failure. In the event that the Technical Committee or such officers reach agreement on whether a Tier 3 Failure occurred within such periods, such agreement shall be reduced to writing and signed by the President of AOLB and a comparable officer of Itau within 48 hours after such agreement.