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SERVICES AGREEMENT
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PARTNER: GLOBAL CROSSING BANDWIDTH, INC.
(referred to as "PARTNER" or "GLOBAL CROSSING")
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ADDRESS:
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PHONE:
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FAX:
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E-MAIL:
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WEB:
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THIS SERVICES AGREEMENT (the "AGREEMENT") between JATO COMMUNICATIONS
CORP., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("JATO") and Partner contains the terms and conditions
whereby Jato appoints Partner as a wholesaler of Jato's DSL Plus-TM- network
services and permits Partner to order certain services from Jato pursuant to an
order form, combine such services with Partner's service offering and distribute
the combined services to its customers for consumption or for further
redistribution. Partner and Jato may be referred to herein individually as a
"PARTY" or together as the "PARTIES."
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DULY AUTHORIZED REPRESENTATIVES of each party have executed this
Agreement as of the date indicated under their signatures.
JATO COMMUNICATIONS CORP. GLOBAL CROSSING BANDWIDTH, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Title: President and C.E.O. Title: President North American Operations Carrier Services
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Dated: Dated: 2/23/00
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: C.F.O. Carrier Svcs.
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Dated: February 23, 2000
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*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
1. DEFINITIONS.
(a) "CUSTOMER" means a carrier or other customer of Partner or a customer
of one of Partner's wholesale customers that utilizes a Jato End User Circuit
through Partner to use Jato services.
(b) "CUSTOMER PREMISE EQUIPMENT (CPE)" means that equipment that is
required at the Customer's premise to utilize the Jato Services.
(c) "END USER CIRCUIT" means a qualified copper loop leased by Jato from
the incumbent or competitive local exchange carrier to a Customer's premise.
(d) "JATO SERVICES" means Jato's services that Jato makes available to
Partner for resale, as set forth in EXHIBIT A, which exhibit Jato may amend
from time to time. Jato agrees to a review of pricing every [* * *] for the
Services. If the pricing in this Agreement is found to be [* * *] per basic
line or significant feature or function) than Jato's then current standard
pricing for Services of the same type, size, network configuration and
technical characteristics, Jato agrees to [* * *].
(e) "SERVICE ORDER" means an order for Jato Services submitted by Partner
on Jato's online order entry form.
2. NONEXCLUSIVE APPOINTMENT.
Jato hereby appoints Partner, and Partner hereby accepts the appointment,
as a nonexclusive wholesaler of Jato to promote the services as further
provided herein. The Parties understand that this appointment is
non-exclusive and that Jato may appoint other representatives, including
without limitation value added resellers, and may use its own direct sales
personnel to promote their own respective services other than to Customers.
3. JATO APPOINTMENT AND TARGETED MARKETS. Partner hereby appoints Jato and Jato
hereby accepts the appointment as a nonexclusive preferred provider of DSL
services for Partner and for customers of Partner. The Parties understand that
this appointment is non-exclusive and that Partner may appoint other providers,
including without limitation other DSL providers, as well as use its own
affiliates. Jato will develop an OSS integration strategy which will enable
Partner or Partner's Global Crossing affiliates to enter orders directly into
Jato's provisioning queues from Global Crossing's in-house systems.
Jato will develop service level commitments generally in the form attached
as EXHIBIT C and pricing programs that will permit Global Crossing entities to
promote DSL successfully in markets where Jato services are available. The
parties shall revisit the service level commitments every [* * *] so as to
assure that such commitments are responsive to competitive service level
expectations. From time to time, Partner and Jato will reevaluate the markets
identified in EXHIBIT D and revise the list of markets to reflect Jato's
performance and the Global Crossing organization's then-current assessment of
the value that Jato can bring to Global Crossing in additional markets.
4. PARTNER ESTIMATES:
Partner is forecasting (but is not obligating itself to order) seventy
five thousand (75,000) business-class DSL lines over a 5-year period,
provided that the quality, reliability and price of such lines provided by
Jato are competitive with other business DSL offerings available to Partner,
and the service level agreements provided by Jato are consistent with what
Partner offers to its customers and what Partner's customers offer to their
end users. Except as otherwise agreed by the parties, each circuit ordered by
Partner shall have no less than a one (1) year term commitment. The cities
identified for this forecast are set out in Exhibit B.
5. JATO SERVICES PROMOTIONS AND ORDERS.
Partner shall promote the Jato Services to its customers in joint Jato and
Partner markets at such level of effort as Partner may determine in its sole
discretion. Partner is authorized to include Jato's trade names, trademarks,
service marks, titles and logos in Partner's marketing and sales materials
when appropriate. Each Party may elect to provide a hot link to the other
Party's Website from their respective Website, provided both Parties agree
upon the framing and the information made available on and around the hot
link. Partner shall submit Service Orders to Jato for the provision of Jato
Services to be provided on behalf of Customers. Each Service Order will be
submitted on Jato's online order entry form or another electronic interface
as agreed upon by the Parties. The Service Orders will set forth the Jato
Services ordered, the locations for delivery of same, and applicable term
and/or minimum speed commitments and other terms and conditions as the
parties may determine. Jato will use commercially reasonable efforts to
confirm receipt of each Partner Service Order, within 24 hours of receipt,
and to provision the Jato Services for the Customer in accordance with the
Service Order. The prices and volume discounts for such Jato Services are set
forth in EXHIBIT A. The provision of Jato Services and End User Circuits by
Jato for Customers is subject to availability, including, but not limited to,
availability of suitable facilities, collocation space and equipment.
6. CIRCUITS.
(a) Upon receiving an order for an End User Circuit, Jato will use
commercially reasonable efforts to provision an End User Circuit in accordance
with the timeframes set out in the order. If Jato is unable to provision a
circuit at the requested speed, Jato will use commercially reasonable efforts to
provide the maximum available throughput rate for the requested circuit. Jato
will notify Partner when the circuit has been provisioned and the throughput
rate available. If an End User Circuit cannot be provided by the requested date,
or an alternate maximum available throughput rate is unacceptable, Partner may
cancel the order without penalty.
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
(b) Where: (1) Partner's ILEC affiliates agree, (2) such affiliates
offer DSL lines in the specific area of interest to Jato, and (3) where
Partner is not precluded from offering such lines to Jato, Jato will have the
right to purchase [* * *] to be determined by both parties. Where Partner's
non-ILEC affiliates agree, (2) [* * *] in the specific area of interest to
Jato, and (3) [* * *] to Jato, [* * *] to be determined by both parties.
7. EQUIPMENT.
Partner will provide all Customer Premise Equipment required to support
the Jato Services provided to the Customers. Jato assumes no liability for
Customer Premise Equipment provided by Partner. Partner, upon request, may
purchase Customer Premise Equipment, installation and maintenance services
from Jato under pricing, terms and conditions to be mutually agreed upon by
the Parties.
8. PARTNER OBLIGATIONS.
In connection with the performance of its obligations in this Agreement in
a professional and businesslike manner, Partner agrees as follows:
(a) Partner will obtain and maintain at its own expense any licenses,
registrations, permits and approvals needed for it to perform its duties under
this Agreement.
(b) Partner is responsible for first level support to Customers and will
provide prompt, reliable and competent technical and other assistance to
Customers with respect to the Jato Services.
(c) Partner will not knowingly provide, nor knowingly allow its Customers
to provide, any content to Jato (or its network) that: (i) infringes on any
third party's copyright, patent, trademark, trade secret or other proprietary
rights or rights of publicity or privacy; (ii) violates any law, statute,
ordinance or regulation (including without limitation the laws and regulations
governing export control); (iii) is defamatory, trade libelous, unlawfully
threatening or unlawfully harassing; (iv) is obscene or pornographic or contains
child pornography; or (v) contains any viruses, trojan horses, worms, time
bombs, cancelbots or other computer programming routines that are intended to
damage, detrimentally interfere with, surreptitiously intercept or expropriate
any system, data or personal information. In the event that Jato becomes aware
of any such event, it will promptly advise Partner and the parties shall confer
and agree upon the appropriate course of action to address the issue.
(d) Partner will not, without Jato's prior written approval, make any
representation, warranties or guarantees concerning the Jato Service other than
as expressly set forth in this Agreement or in Jato's marketing materials.
9. JATO'S OBLIGATIONS.
In connection with the performance of its obligations in this Agreement in
a professional and businesslike manner, Jato agrees as follows:
(a) Jato will provide reasonable commercial and technical assistance to
Partner as may be necessary and appropriate to assist Partner in effectively
carrying out its obligations under this Agreement.
(b) Jato will obtain and maintain at its own expense any licenses,
registrations, permits and approvals needed for it to perform its duties under
this Agreement and provide the Jato Services.
(c) Jato will, from time to time and subject to availability, provide to
Partner and its agents sales promotion materials, technical manuals, sales aides
and other materials helpful in the promotion of sales of the Jato Services.
(d) Jato is responsible for maintaining End User Circuits. Jato reserves
the right, from time to time, to interrupt service for maintenance reasons.
Jato will provide at least 2 days written notice to Partner in advance of
such interruptions, and Partner will not be entitled to compensation for such
interruptions. Jato will cooperate with Partner to assure that any reasonable
customer notification requirements of Partner with respect to service are
met, and will seek to perform all maintenance during off-peak hours, and
where possible during the period of the day of lowest usage.
(e) Jato shall provide to end users through Partner and its customers
Jato business DSL lines at a quality of service that is no lower than the
quality of service generally offered by Partner to its customers in its own
tariffs or service level agreements on all comparable dimensions. In the
event that Partner is required to extend credits to its customers for failure
to meet service level assurance provisions that are granted as a the result
of Jato's failure to provide the requisite DSL quality of service, Jato shall
extend credits to Partner that make Partner whole for the credits that
Partner extends, as defined in the attached Service Level Agreement (Exhibit
C.).
(f) So long as Jato is provisioning one or more lines ordered by
Partner or its wholesale carrier or other customers, and has access to
customer information with respect to the end user for such line(s), Jato will
not solicit such customers to purchase services or facilities that are being
offered to such end user(s) by Partner or a customer of Partner, nor seek to
have such end user(s) convert any service provided by Partner or its
wholesale customer to Jato.
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
10. FEES AND PAYMENT.
(a) Partner will pay all [* * *] incurred under this Agreement as well as
all expenses associated with its office(s), employees and other activities
utilized under this Agreement. Except to the extent that Partner provides Jato
with appropriate tax exemptions certificates, any tax or tax-like fee or charge
imposed by any governmental authority on, or measured by, the transactions
between Jato and Partner (exclusive of taxes based on Jato's net income) will be
paid by Partner in addition to the fees invoiced. (b) Jato will invoice Partner
monthly in advance for all fees due, with the exception of installation, line
provisioning, and pro-rated Jato Service charges, which will be billed in
arrears. Partner may direct Jato to deliver invoices in any of the following
formats: (i) a paper format (which will be the format for the billing in the
event Partner does not direct Jato otherwise); (ii) a paper format summary with
electronic transmission to provide the detailed information of the invoice; or
(iii) an electronic transmission.
(b) Adjustments for the quantities of Jato Services established or
discontinued in any billing period will be pro-rated to the number of days based
on a 30-day month, and Jato will provide credit where appropriate. Jato will
upon request and if available, furnish such detailed information as may
reasonably be required for verification of the ▇▇▇▇. In the event of a conflict
regarding credits or credit adjustments, Partner must pay all amounts not in
dispute and provide Jato with a written request for ▇▇▇▇ adjustment. Partner
will have 90 days from its receipt of an invoice to dispute an invoice and, to
the extent available, provide Jato with records and other materials that enable
resolution of the dispute. In the event a dispute is not submitted within the
allotted time frame, Partner will waive all rights to any billing adjustment for
that invoice.
(c) Jato will ▇▇▇▇ Partner for all existing End User Circuits up to the day
of the month where Jato has disconnected the End User Circuit as requested by
Partner. If Jato, upon receipt of an End User Circuit disconnection request, is
unable to disconnect an End User Circuit on Partner's requested date, Jato will
only ▇▇▇▇ Partner up to the requested disconnection date as specified on an End
User Circuit disconnection request. If Partner cancels an End User Circuit prior
to the completion of circuit set up, then, except as provided in paragraph 4
hereof, Partner is responsible to pay all line provisioning and installation
fees incurred up to that point in time.
(d) All invoices are due within 30 days following Partner's receipt of an
invoice. If Partner makes late payment of any undisputed portion of the invoiced
amount, or if Partner makes payment of any undisputed portion of the invoiced
amount in funds that are not immediately available to Jato, then interest on the
unpaid balance will begin accruing at a rate of one and one-half percent (1.5%)
per month or the maximum allowed by law, whichever is less, and Partner will pay
all collection costs incurred by Jato (including reasonable attorneys' fees).
Partner will pay Jato the fees owed for services rendered regardless of whether
Partner collects payment from Customers. All fees will be paid in U.S. Dollars.
11. TERM AND TERMINATION.
(a) TERM. The term of this Agreement will commence on the last date on
which this Agreement is executed by a party and, unless earlier terminated as
set forth below, continue for sixty (60) months. This Agreement will renew for
additional one (1) year terms unless either Party gives the other Party written
notice of termination at least 30 days prior to the end of the then-current
term.
(b) TERMINATION BY JATO. Jato may terminate this Agreement, but not the
Jato Services or End User circuits already installed or ordered, by written
notice immediately upon (i) a material breach by Partner of the terms of this
Agreement, including, but not limited to, any default in Partner's payment
obligations not cured within 30 days of Partner's receipt of written notice as
to the nature of the breach; provided, however, that if Partner shall have
commenced actions in good faith to cure such breach (other than a payment
breach), which is not capable of being cured during such 30-day period, such
period shall be extended (not in excess of 90 days from receipt of the notice)
to allow Partner to continue such actions to cure such breach.
(c) TERMINATION BY PARTNER: Partner may terminate this Agreement if Jato
materially breaches the terms of this Agreement after providing thirty (30) days
advance written notice of the breach to Jato unless Jato has cured such breach
within such thirty (30) day period; provided, however, that if Jato shall have
commenced actions in good faith to cure such breach, which is not capable of
being cured during such 30-day period, such period shall be extended (not in
excess of 90 days from receipt of the notice) to allow Jato to continue such
actions to cure such breach. Partner may terminate this Agreement without
extension of the 30-day cure period if Partner concludes, after consultation
with Jato during such 30-day period, that the quality or reliability of Services
provided by Jato to Partner or to its customers suffers from quality or
reliability problems that are not likely to be cured within a reasonable time,
and Partner further concludes that continuation of this Agreement would
adversely impact its relationships with its customers who are or would receive
Jato services.
(d) EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason: (i) Partner will pay Jato all monies due for any services rendered by
Jato pursuant to this Agreement as they accrue and become due; (ii) Partner's
authority to sell Jato Services hereunder will cease; (iii) each Party will
promptly return to the other all materials supplied hereunder; and (iv) each
Party will cease all use of other's Trademarks and will return all of the other
Party's property in its possession or control, including all copies thereof.
Provided Partner continues to pay for the Jato
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
Services for existing Customers and for orders pending at the time of
termination (collectively, Existing Business), Jato will continue to provide
the Jato Services in accordance with the terms of this Agreement for the
Existing Business for a period of two years following the date of
termination, or until such Existing Business is canceled by Partner,
whichever occurs first. Jato and its other representatives will have the
right after the termination of the Existing Business with respect to a
Customer to deal with any and all persons and entities, including such
Existing Business Customers or potential customers who dealt with Partner,
without any liability or obligation of any kind to Partner. Each Party waives
the benefit of any law or regulation providing compensation to it arising
from the termination of or failure to renew this Agreement and each Party
represents and warrants that such waiver is irrevocable and enforceable by
the other Party.
12. CONFIDENTIALITY. In the performance of this Agreement, each party may
have access to confidential, proprietary or trade secret information
disclosed by the other party relating to software computer programs, object
code, source code, marketing plans, business plans, financial information,
specifications, flow charts and other data ("CONFIDENTIAL INFORMATION"). The
receiving party will use such Confidential Information only for the purposes
of this Agreement and will not copy, disclose, convey or transfer any of the
Confidential Information or any part thereof to any third party, except as
permitted under this Agreement. Neither Party will have any obligation with
respect to Confidential Information that: (i) is or becomes generally known
to the public by any means other than a breach of the obligations of a
receiving party; (ii) was previously known to the receiving party or rightly
received by a receiving party from a third party; or (iii) is independently
developed by or for the receiving party without reference to the disclosing
party's Confidential Information.
13. EACH PARTY'S MARKS. Each Party hereby grants to the other Party a
limited, nonexclusive right to use the other Party's regular trade names,
trademarks, service marks, titles and logos (the "LICENSED MARKS") in the
advertising, promotion and sale of the Jato Services, PROVIDED THAT the
specific Licensed ▇▇▇▇ to be used and the nature of all such use of any
Licensed ▇▇▇▇ is with each Party's prior review and approval. Neither Party
will make or permit alteration or removal of tags, labels, or identifying
marks placed by the other Party on or within their respective Services,
equipment or materials. Neither Party will use the other Party's trade names
or abbreviations (with the exception of a logo or ▇▇▇▇ or graphic design
provided by the other Party that indicates either Party is an authorized
Partner of the other Party) in the other Party's corporate title or name or
in any way that might result in confusion as to separate and distinct
identities of each Party. Either Party may terminate the other's right to use
all or any of its Licensed Marks at any time. Upon the expiration or earlier
termination of this Agreement, the licenses granted herein regarding the
Licensed Marks will immediately terminate and each Party will immediately
cease and desist all use of the Licensed Marks.
14. OWNERSHIP. Each Party will retain all right, title and interest in and to
all copyrights, patents, trademarks, trade secrets (including, but not
limited to, customer lists, which lists will include, but not be limited to,
lists of Customers hereunder), and all other intellectual property embodied
in their respective Services or the Licensed Marks, including any
improvements thereto or goodwill associated therewith. Customer related
information shall be deemed the Confidential Information of Partner.
15. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR
ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES OF ANY
KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS
OF PROFIT DAMAGES. UNDER NO CIRCUMSTANCES WILL EITHER PARTY'S LIABILITY TO
THE OTHER FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY PARTNER
TO JATO IN THE PREVIOUS TWELVE (12) MONTHS.
16. WARRANTY. JATO WARRANTS THAT THE JATO SERVICES SHALL BE PROVIDED IN
ACCORDANCE WITH THE SERVICE LEVEL AGREEMENT ATTACHED HERETO AS EXHIBIT C AND
MADE A PART HEREOF, AS WELL AS WITH INDUSTRY STANDARDS FOR DSL SERVICES.
FURTHER, JATO WARRANTS THAT PARTNER'S OR ITS CUSTOMER'S USE OR THE SALE OF
THE JATO SERVICES WILL NOT INFRINGE ANY THIRD PARTY'S INTELLECTUAL PROPERTY
RIGHTS. JATO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE. JATO AND ITS
SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY,
SECURE OR ERROR FREE; NOR DOES JATO MAKE ANY WARRANTY AS TO THE RESULTS THAT
MAY BE OBTAINED THROUGH THE JATO SERVICES.
17. INDEMNIFICATION.
(a) Except for claims arising out of the negligence or willful
misconduct of Jato, Partner will indemnify and hold Jato (including all
officers, directors, employees or agents thereof and their successors and
assigns) harmless from and against and all third party claims, suits, losses,
liabilities, damages, costs, fees and expenses (including reasonable
attorneys' fees) brought against or incurred by Jato that arise from or
relate to (i) Partner's or any Customer's improper use of the Jato Services,
and (ii) any breach by Partner of any of its obligations under this Agreement.
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
(b) Except for claims arising out of the negligence or willful
misconduct of Partner, Jato will indemnify and hold Partner (including all
officers, directors, employees, affiliates or agents thereof and their
successors and assigns) harmless from and against and all third party claims,
suits, losses, liabilities, damages, costs, fees and expenses (including
reasonable attorneys' fees) brought against or incurred by Partner that arise
from or relate to any breach by Jato of any of its obligations or warranties
under this Agreement.
18. FORCE MAJEURE. Neither party hereto shall be responsible for any failure to
perform its obligations under this Agreement (other than obligations to pay
money) if such failure is caused by acts of God, war, strikes, revolutions,
earthquake, lack or failure of transportation, electrical or telecommunications
facilities, laws or governmental regulations or other causes that are beyond the
reasonable control of such party.
19. GENERAL.
(a) INDEPENDENT CONTRACTOR. The relationship of the Parties shall be that
of independent contractors. Neither Party nor its agents will have authority to
make any agreement or incur any liability on behalf of the other Party, except
as set forth in this Agreement.
(b) NOTICE. Any notice required by this Agreement or given in connection
with it, will be in writing and will be deemed given to the other party upon
personal delivery, three days after mailing by certified mail, postage prepaid,
or next day when sent by a recognized overnight delivery service to the address
set forth on page one of this Agreement or such other address as a Party may
designate in writing pursuant to this provision.
(c) SEVERABILITY. If any term of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, then this Agreement,
including all of the remaining terms, will remain in full force and effect as if
such invalid or unenforceable term had never been included.
(d) WAIVER. Failure or delay by either party to exercise any right, power,
or privilege hereunder, will not operate as waiver thereof.
(e) GOVERNING LAW. This Agreement will be construed and enforced in
accordance with the laws of the state of Colorado.
(f) ASSIGNMENT. Neither Party may assign this Agreement or any rights or
obligations hereunder to a non-affiliated third party without the other
Party's prior written consent, which consent shall not be unreasonably
withheld. This Agreement shall transfer as a matter of law with respect to
any change of control of a Party.
(g) NO THIRD PARTY BENEFICIARIES. This Agreement benefits Partner and
Jato; there are no third party beneficiaries.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the attached
Exhibits constitutes the entire understanding between Partner and Jato with
respect to the subject matter provided herein and supercedes any prior
agreements or understandings excluding applicable tariffs. Amendments to this
Agreement must be in writing and signed by authorized representatives of both
Parties.
(i) HEADINGS. Headings used in this Agreement are provided for
convenience only and will not be used to construe meaning or intent.
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
Pricing Grid: Business Grade DSL Services, with guaranteed SLA standards
Jato agrees to a review of pricing every [* * *] for the Services. If the
pricing in this Agreement is found to be [* * *] than Jato's then current
standard pricing for Services of the same type, size, network configuration
and technical characteristics, Jato agrees to [* * *]. Jato pricing includes
both DSL line and local loop pricing. Jato will be responsible for
interconnection and associated costs between Jato's aggregated xDSL services
for a given market and Partner's ATM service point.
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Speed 144 192 384 768 1100 1500
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Monthly Fee [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
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Service Level Agreement : See Exhibit C:
EXHIBIT D: TARGETED MARKETS
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
SERVICE LEVEL AGREEMENT: EXHIBIT C:
CUSTOMER DIGITAL SUBSCRIBER LINE (DSL) SERVICE LEVEL AGREEMENT (SLA)
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This Service Level Agreement ("SLA") applies to the digital subscriber
line service ("Network Services") provided by Jato Communications, Inc.
("Jato"). This SLA is subject to, and hereby incorporates by reference, the
terms and conditions set out in the underlying agreement between Jato and
Customer covering the Network Services (the "Network Services Agreement").
This SLA applies only to U.S. customers of Jato with term plan commitments of
at least one (1) year and replaces any service parameters and credit
provisions contained in any existing agreements between Jato and Customer
with respect to the Network Services.
1. DESCRIPTION OF COVERED NETWORK SERVICES
1.1 The Network Services consist of a permanently connected xDSL Internet
access circuit for Customer locations within 18,000 feet of a Jato switch.
The circuit will provide speeds ranging from 160 Kilobits per second to 1.55
Megabits per second for dedicated circuits that directly connect Customer's
premise equipment to one of Jato's network access hubs ("Hub(s)") and which
speeds are not affected by Customer's facilities or by traffic
characteristics beyond the Jato network.
1.2 This SLA covers (i) the Jato router port in the Hub which connects directly
to Customer's local access circuit, (ii) the Jato network backbone
interconnecting the Hubs, (iii) supporting Jato systems which provide routing
and other functions which enable Customer to logically interact with the
network, and (iv) the local loop circuit between Customer's premise and the Hub
if provided by Jato or a Jato affiliate, except for circuits where maintenance
and conditioning is controlled by the local telephone company or another third
party provider. This SLA covers only circuits located entirely in the contiguous
United States.
1.3 This SLA specifically excludes Network Services issues of any kind related
to (i) acts or omissions of Customer or any third party, (ii) customer premise
equipment (whether or not provided by Jato), (iii) interconnections between
Jato's network and any third party provider network (other than a local loop
provided by Jato or its subsidiary or affiliate), (iv) Jato network maintenance,
and (v) force majeure events (as defined in the Network Services Agreement).
Network Services in such circumstances are not Covered Network Services.
2. NETWORK SERVICES PARAMETERS AND CREDITS
2.1. Network Monitoring
All Network Services parameters are monitored 24 hours per day, 7 days per week.
Jato will inform Customer of all scheduled maintenance which could reasonably be
expected to cause significant degradation in the Network Services at least two
(2) days prior to the planned maintenance. Generally, maintenance is scheduled
between 12:00 AM and 4:00 AM local time at the Hub being serviced, or at other
times of low network utilization generally.
2.2. Network Availability
Jato Network Service is available [* * *] of the time when measured within its
own network. A Covered Network Service shall be available [* * *] of the time to
customers as measured by Jato on a monthly basis; otherwise, Customer becomes
eligible for a credit as set forth below.
Upon Customer's timely request, Jato will calculate Customer's Network
Unavailability in any calendar month. "Network Unavailability" shall mean the
number of minutes that the Covered Network Service is unavailable for
Customer's use in the contiguous United States, but does not include any
unavailability continuing for sixty (60) minutes or less (or any
unavailability which Customer fails to report to Jato within five (5) days of
such occurrence), or which is otherwise excluded under paragraph 1.3 above.
All claims of credits for Network Unavailability must be supported by one or
more Jato trouble tickets that document the nature and duration of the
problem. For each cumulative hour of Network Unavailability, or additional
fraction thereof, Customer shall be entitled to a credit in an amount equal
to the pro-rated charges for one (1) day of the applicable monthly recurring
charge for the affected portion of the Covered Network Service.
2.3. Latency
The Network Services parameter for monthly average round-trip latency for
transmissions between Jato backbone Hubs shall be less than or equal to 85
milliseconds. The monthly average round-trip latency for transmissions within
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
the DSL loop shall be less than or equal to 10 milliseconds. Latency shall be
calculated by averaging measurements taken by Jato during a one (1) month
period between Jato backbone Hubs and within the DSL loop. If the same
latency parameter is not met by Jato in two (2) consecutive calendar months,
the Customer shall be entitled to a credit in an amount equal to the
pro-rated charges for one (1) day of the applicable monthly recurring charge
for the affected portion of the Covered Network Service. For each consecutive
month subsequent to such two (2) month period in which the Covered Network
Service fails to meet the same latency parameter, Customer will receive an
additional one (1) day credit. Once Jato determines that the Covered Network
Service performance is within the latency parameters, Customer will receive
no further credits.
2.4 Network Service Support
Jato will be responsive to customers seeking information with respect to
their Network Service.
Jato will use commercially reasonable efforts to inform Customer of Network
Services-affecting problems as soon after their occurrence as is practicable,
provided Customer maintains current and accurate contact information with
Jato. To the extent available, Jato will communicate the nature and scope of
the problem, the actions being undertaken to resolve the problem and an
estimate of when the problem will be resolved. Generally, problem escalation
and mean time to respond (MTTR) are dependent on the priority of the problem
and are addressed in accordance with the following schedule.
PRIORITY REFERRAL TO LEC/IEC MTTR
----------------------------------------------------------------------------------------
P1 Within 45 minutes [* * *]
P2 Within 90 minutes [* * *]
P3 Within 210 minutes [* * *]
P4 Within 255 minutes [* * *]
P1: major outage where multiple Jato customers are down in any one Metropolitan
Service Area
P2: Customer itself is without any service
P3: all components operational, but service significantly degraded or nearly
unusable
P4: less critical configuration or installation problems or questions
2.5. Installation
Jato shall credit Customer's account for 100% of the installation charges paid
or payable by Customer for any circuit that is not activated (i) within forty
(40) business days for 56k and DS-1 circuits, or (ii) within sixty (60) business
days for DS-3 circuits. The installation intervals shall be measured from the
date Jato acknowledges it has received a completed service order from the
Customer which permits Jato to complete and activate the circuit (per Jato's
records). No credits shall be provided for circuits ordered directly by
Customer, or for circuits where the completed service order is modified by or at
the initiative of Customer after it is originally completed. Installation
credits are not available for OCX circuits under this SLA, nor are installation
credits available for circuits to be installed in whole or in part by a local
telephone company or any unaffiliated local provider.
2.6 Timing of Credits; Credits Not Cumulative
The credits made available to Customer under this SLA will be provided to
Customer on its next ▇▇▇▇, or as promptly thereafter as it can be provided after
the qualification for the credit and its amount are determined. Credits that may
be made available under this SLA are not cumulative with respect to any Covered
Network Services. In no event shall the total of any credits established under
this SLA for any month exceed the total recurring charge for the affected
Covered Network Service for such month.
2.7 Tariffed Offerings
If any of the Network Services are or become a common carrier service that by
law are subject to regulation, and they are provided under tariff, the service
level parameters and credits that are applicable to Customer for any Covered
Network Services otherwise covered under this SLA shall be those parameters and
credits that are set out in the applicable tariff, which shall not be of a lower
quality than what is stated here.
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
EXHIBIT D: DEPLOYMENT CITIES
In the following cities Jato Communications is designated as a non-exclusive
Global Crossing's Preferred Provider of DSL Services:
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
Based upon pricing and SLAs being met, Jato may also be designated as a
non-exclusive preferred supplier of DSL Services in an additional market
footprint covering the following cities currently not covered by Jato:
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2