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EXHIBIT 10.25
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
QWEST COMMUNICATIONS CORPORATION
CAPACITY AND SERVICES AGREEMENT
This Capacity and Services Agreement, having Service Agreement No.
___________________, is entered into as of March 31, 1998 (the "EFFECTIVE
DATE"), by and between Qwest Communications Corporation, a Delaware
corporation ("QWEST"), and Verio Inc. a Delaware corporation ("VERIO").
1. SERVICES TO BE PROVIDED BY QWEST:
1.1 Qwest shall make available to Verio the telecommunications capacity, and
related ancillary services identified in the Service and Pricing Exhibit
attached hereto as "EXHIBIT A", which is incorporated by this reference
(the "SERVICE AND PRICING EXHIBIT") together with any other services
and/or products or facilities that Qwest makes generally available to its
customers from time to time (the "SERVICE" or "SERVICES"). Services
requested by Verio shall be in the form of the Service Order attached as
"EXHIBIT B" to this Agreement, which is incorporated by this reference
(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 Service Agreement when executed by duly authorized
representatives of Qwest and Verio.
1.2 Qwest shall be deemed to have accepted on receipt any Service Order
submitted by Verio that is (i) complete; (ii) conforms with the terms of
this Agreement; (iii) requests services at an (***) level or below; and
(iv) is within the Network Build Plan attached as "EXHIBIT C" to this
Agreement, as such plan may be amended from time to time ("a Permitted
Service Order") and, to the extent applicable, the Interval Guidelines set
forth in Schedule A-1 to Exhibit A. Qwest shall provide to Verio the
Services identified in the Permitted Service Order, in accordance with the
terms of the Service Order and this Agreement. In addition to any Permitted
Service Order, Verio may submit Service Orders for other Services
("Additional Service Orders"). Qwest reserves the right to reject any
Additional Service Order. Any Additional Service Order not rejected by
Qwest within five (5) business days of submission shall be deemed to have
been accepted by Qwest. Upon acceptance by Qwest of a duly executed
Additional Service Order, Qwest shall provide to Verio those Services
identified in the Service Order, in accordance with the terms of the
Service Order and this Agreement.
1.3 As used herein, the term "Verio" includes Verio, Inc., and any subsidiary
or other entity in which Verio, Inc. holds or has the option to acquire at
least a twenty percent (20%) ownership interest (each a "Verio Affiliate").
Any Verio Affiliate may order Services subject to the terms and conditions
of this Agreement, and all payments to Qwest for such Services by any Verio
Affiliate shall be aggregated for the purposes of determining whether the
Total Minimum Commitment or any Minimum Annual Purchase ("MAPC") set forth
in EXHIBIT A has been satisfied. Verio, Inc. shall remain primarily
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
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liable to Qwest for all payments due to Qwest hereunder, irrespective of
whether a given Service was ordered by or provided to any Verio Affiliate.
1.4 For purposes of this Agreement, a reference to a "year" means a contract
year.
1.5 If Qwest fails to deliver Services ordered under a Permitted Service Order
or an accepted Additional Service Order within (***) days of the
Availability Date stated in such Service Order, then the charges that would
have been payable for such services over the Service Term stated in the
Service Order, calculated in accordance with Exhibit A hereof, shall be
included for purposes of determining whether Verio has met its MAPC and
Total Minimum Commitment for purposes of Exhibit A hereto and at Verio's
election:
(a) Verio shall be entitled to terminate the Service Order or to obtain
specific performance of Qwest's obligation to deliver the Services; or
(b) Verio may require Qwest to obtain, on Verio's behalf, services from a
third party substantially equivalent to the Services for the term of
the Service Order ("alternative services"), provided, however, that
Qwest shall pay to Verio the difference between the cost of the
alternative services and the charges which would have been payable for
the Ordered Services under this Agreement. If Qwest provisions
alternative services, Qwest shall ensure that the alternative services
are discontinued at Qwest's costs and replaced with Services provided
by Qwest under this Agreement at such time as Qwest is able to provide
such Services. If Qwest fails to obtain the alternative services within
(***) days of the Availability Date, Qwest shall immediately advise
Verio of the period by which Qwest believes that it will be in a
position to provide the Services ("future availability date"),
following which Verio may obtain alternative services. Qwest shall pay
to Verio the difference between the costs of the alternative Services
and the charges which Verio would have paid had Qwest provided the
Services in accordance with this Agreement, provided that Verio agrees
to use reasonable efforts to minimize such costs and, to the extent
commercially practicable, to negotiate terms for the provision of the
alternative services that will permit Qwest, at Qwest's cost, to
replace the alternative services as at the future availability date
with equivalent Services to be delivered by Qwest.
1.6 In the event that Verio (***) hereof, and in addition to the remedies set
forth in Section 1.5, if Qwest fails to deliver (***) Services ordered by
Verio under (***) Permitted Service Order, or fails to deliver (***)
Services ordered under an accepted Additional Service Order, on (***)
consecutive occasions or more than (***) times in any one year during the
Term, the charges for which over the (***) year of the Minimum Service Term
for those Services would equal or exceed (***) percent (***%) of the
MAPC for the year in which the Services are ordered, then, (***)
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
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(***)
1.7 In addition to the remedies in Section 1.5, if Qwest fails to deliver (***)
Services ordered by Verio under a Permitted Service Order, or fails to
deliver one or more Services ordered by Verio under an accepted Additional
Service Order, the charges for which over the (***) year of the Minimum
Service Term for those Services would equal or exceed (***) percent (***%)
of the MAPC for the year in which the Services are ordered, then Verio may
elect, at its option either to (i) terminate the provisions of Sections 3.1
and 3.2 of Exhibit A and continue this Agreement in effect without the MAPC
applying thereafter or (ii) terminate this Agreement with no further
obligations to Qwest hereunder (except for the obligation to pay for any
Services delivered prior to the date of termination not previously invoiced
or paid), whereupon Qwest shall immediately (***).
1.8 Qwest shall make available to Verio collocation facilities in accordance
with the Network Build Plan, subject to the terms and conditions of the
Collocation Agreement set forth in the attached "EXHIBIT E" and subject to
Qwest's commitments as at the date of this Agreement.
1.9 (***)
2. OBLIGATIONS OF VERIO:
Verio acknowledges that Qwest shall have no responsibility for
installation, testing and operation of the Interconnection Facilities (as
defined in Section 1.4 of the Service and Pricing Exhibit), and any
services and equipment other than those Services specifically provided by
Qwest under this Agreement.
3. IMPLEMENTATION, NETWORK PLANNING, AND JOINT MARKETING
3.1 Within thirty (30) days of the Effective Date each party will assign a
Project Manager with responsibility for ensuring coordination between the
parties and implementation of this Agreement.
3.2 Qwest and Verio will jointly establish a Network Planning Team. This
Network Planning Team will be responsible for developing the Network
Transition Plan, which will define the key components of the timely
transition of the Verio network capacity requirements onto the Qwest
network. Once the Network Transition Plan has been completed, the Network
Planning Team will be responsible for developing the Verio Network
Evolution Plan on the Qwest network during the term of this Agreement. This
Network Planning Team will meet as required, but not less than once a
quarter, to develop the Verio
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network evolutionary design and capacity forecast requirements. Qwest will
deliver Services under this Agreement in accordance with the Network
Build Plan which is attached hereto as Exhibit B. Qwest may amend the
Network Build Plan from time to time by adding to the capacity or routes
which Qwest plans to construct, but Qwest may not delete routes or capacity
from a prior version of the Network Build Plan, or extend projected
delivery dates. The Network Build Plan and delivery schedule reflected
therein for new capacity not reflected in the prior version of the Network
Build Plan shall be consistent with network build plans developed by Qwest
for its other customers. Verio will have the right to order Services in
accordance with the routes, service availability, and space availability
information set forth in the Network Build Plan. As part of the Network
Planning Team, Qwest will provide at a minimum quarterly updates of its
Network Build Plan. In the event that Qwest proposes to undertake major
expansions of its network, including in relation to capacity or route
swaps, Qwest shall notify Verio of such expansion proposals as soon as
practicable.
3.3 In the event that Verio has requirements for circuits or Services not
included in the Network Build Plan, then at Verio's request, Qwest will
work cooperatively with Verio to purchase off-net circuits (i.e., circuits
or Services acquired by Qwest from a network operated by a third party) in
order to make such circuits or services available to Verio in lieu of
Services provided by use of Qwest's own network.
3.4 Qwest will use its best efforts to provide an electronic provisioning tool
to Verio, as it becomes available to Qwest as part of its network
facilities. Qwest and Verio will cooperate to link their respective Network
Operating Centers through use of a common platform and integrated trouble
ticketing systems.
3.5 (***)
3.6 The parties agree to use reasonable efforts to develop a non-exclusive
joint marketing program for products and services. The joint marketing
program may include linkage of brands in marketing communications, joint
product development and leverage of customer relationships, as the parties
may agree in writing. Qwest will grant Verio the right to incorporate the
"QwestLinked(TM)" logo and brand name into any sales initiative that may
become a part of any such joint marketing programs.
4. TERM:
4.1 This Agreement shall be effective between the parties as of the Effective
Date. The initial term (the "INITIAL TERM") of this Agreement shall expire
fifteen (15) years from the
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
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Effective Date, unless either party earlier terminates this Agreement in
the manner provided herein.
4.2 Upon the expiration of the Initial Term, the term of this Agreement shall
be renewed automatically on a month-to-month basis (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.
4.3 The Initial Term and Renewal Term are sometimes referred to together herein
as the "TERM."
4.4 Notwithstanding anything to the contrary in this Section 4, if the Minimum
Service Term (as set forth in Section 4.3 of the Service and Pricing
Exhibit) for a particular circuit or Service extends beyond the expiration
of the Term of this Agreement, then this Agreement shall continue in effect
until the expiration or termination of the applicable Minimum Service Term,
but only as to the circuit or Service so affected, subject to the
termination rights of Qwest and Verio under Sections 1 and 8 of this
Service Agreement.
5. MINIMUM COMMITMENTS, RATES AND PAYMENTS:
5.1 Rates and charges for the Services, as well as Verio's Total Minimum
Commitment and Minimum Annual Purchase Commitments to purchase Services,
are set forth in the Service and Pricing Exhibit except as otherwise
specifically provided in this Agreement.
5.2 Recurring charges shall be invoiced by Qwest on a monthly basis in advance
and non-recurring charges shall be invoiced in arrears. On or after the
fifth business day of each month during the Term, Qwest shall issue one
consolidated invoice covering all recurring charges for the current month
and non-recurring charges for the previous month. If the Start of Service
Date (as defined in Section 2.1 of the Service and Pricing Exhibit) for any
Service falls on other than the first day of any month, the first invoice
to Verio shall consist of: (1) the pro-rata portion of the applicable
monthly charge covering the period from the Start of Service Date to the
first day of the subsequent month, and (2) the monthly charge for the
following month.
5.3 Verio shall make all payments due hereunder within thirty (30) days after
the date of Verio's receipt of Qwest's invoice. If any undisputed amount
due under this Agreement is not received by the due date, in addition to
its other remedies available hereunder, Qwest may in its sole discretion:
(a) impose a late payment charge of the lower of 1.5% per month and the
highest rate legally permissible (such late charge shall be payable upon
demand by Qwest); and/or (b) if there are three (3) or more failures by
Verio in any twelve (12) month period to make payments of undisputed
recurring charges in accordance with this Section 5.3 or if Verio fails to
make payments when due of undisputed non-recurring charges in excess of
$(***), require the prepayment of up to two (2) months of recurring
charges referred to in the relevant unpaid invoices as a
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THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
condition of the continued availability of the Services, which prepayment
subject to Sections 1.6 and 1.7 hereof shall be held until satisfaction of
the Total Minimum Commitment, or, if the Total Minimum Commitment has not
been satisfied shall be held and applied against the last two (2) months of
charges hereunder prior to termination of this Agreement. Notwithstanding
anything in this Agreement to the contrary, no payment due hereunder is
subject to reduction, set-off or adjustment of any nature by Verio, except
as is specifically provided in Section 1 of this Agreement or Section 5 of
the Service and Pricing Exhibit regarding Outage Credits. In no event shall
the malfunction or nonoperation of Verio's Interconnection Facilities
(including local access when Verio is responsible therefor) relieve Verio
of its obligation to pay for the Services.
5.4 (***)
5.5 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. Disputes shall not
be cause for Verio to delay payment of the undisputed balance to Qwest
according to the terms outlined in Section 5.3 above.
5.6 Invoices submitted to Verio by Qwest shall conform to Qwest's standard
billing format and content, as modified by Qwest from time to time.
5.7 Verio shall be responsible for payment of any local, state or federal
sales, excise, access or other similar surcharges imposed on or based upon
the provision, sales or use of Services provided under this Agreement,
unless otherwise exempt as a matter of law.
6. EVENTS OF DEFAULT
6.1 A "DEFAULT" shall occur if: (a) Verio fails to make any undisputed payment
required to be made by it under this Agreement and any such failure remains
uncorrected for a period of twenty (20) business days after written notice
by Qwest to Verio of the payment failure; (b) Verio fails to make a deposit
which is required to be made under Section 5.3 hereof within twenty (20)
business days after written notice by Qwest to Verio of the requirement for
such deposit; (c) either party fails in any material respect to perform or
observe any material term or obligation contained in this Agreement (other
than any payment, or
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
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deposit obligation of Verio), which failure remains uncorrected for a
period of 30 calendar days after written notice from the non-defaulting
party informing the defaulting party of such failure; (d) there is an
Adverse Material Change (as defined Section 6.2 of this Service Agreement)
in Verio's creditworthiness following the Effective Date; (e) if more than
(***) percent (***%) of the Services comprised of telecommunications
capacity provided to Verio hereunder chronically fail to comply with the
Technical Specifications set forth in Schedule A-2 to Exhibit A hereto
(with chronic failure meaning a service, facility or circuit experiencing
(***) or (***) failures or more than (***) hours of Outages over any (***)
consecutive day period); (f) Qwest makes a general assignment for the
benefit of creditors, or a petition in bankruptcy or under any insolvency
law us filed by or against Qwest and such petition is not dismissed within
sixty (60) days after it has been filed; (***)
7. REMEDIES FOLLOWING DEFAULT
7.1. If Verio is in Default under Section 6.1 (a) hereof, Qwest shall be
entitled to exercise the remedies described in Section 5.3 hereof and no
others. If Verio is in Default under Section 6.1 (b) hereof, Qwest may, at
its election, condition its acceptance of any further Service Orders
submitted by Verio following the date of such Default on Verio's curing
such Default or, if Verio fails to cure such Default, providing such other
assurance of payment as Qwest may require to establish assurance of
payment. If a Default by Verio under Section 6.1 (b) continues uncured for
a period of thirty (30) days, subject to the last sentence of this Section,
Qwest may then suspend Services or terminate this Agreement by providing
written notice to Verio in the manner provided in Section 8.2 below. If
Verio is in default under Section 6.1 (c), and such Default would have a
material adverse impact on Verio's ability to discharge its payment
obligations hereunder or is a Default with respect to Section 12.1 hereof,
or if Verio is in Default under Section 6.1 (d), then, in addition to its
other rights and remedies under this Services Agreement or under law, Qwest
may terminate this Services Agreement as provided herein. (***)
7.2 If Qwest is in Default under Section 6.1 (c) as a result of its failure to
deliver Services hereunder, then Verio shall be entitled to exercise the
remedies described in Sections 1.5, 1.6 and 1.7 hereof, including the right
to terminate this Agreement in the events and as described in Section 1.7,
or (***) If Qwest is in Default under Section 6.1 (e), then Verio shall be
entitled to exercise the same remedies described in Sections 1.5, 1.6 and
1.7, as if Qwest had failed to
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deliver the Services that chronically failed to meet the Technical
Specifications. (***)
7.3 Except as and to the extent that the rights and remedies of the parties are
expressly defined or limited pursuant to Sections 7.1 and 7.2 above or
Section 14 below, all remedies provided under this Services Agreement are
cumulative and are without prejudice to any other rights or remedies that
the parties may have at law or in equity.
8. TERMINATION:
8.1 Verio may terminate this Agreement: (a) effective upon written notice to
Qwest as provided in Sections 1.7 and 7.2 if Qwest is in Default
hereunder; (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 thirty (30) calendar days prior written
notice, with or without cause, following the expiration of the Initial
Term; or (d) pursuant to Section 9.2 hereof or elect to terminate one or
more Service Orders and/or terminate the provisions of Sections 3.1 and
3.2 of Exhibit A and continue the remaining Agreement in place.
8.2 Qwest may terminate this Agreement: (a) effective upon written notice to
Verio as provided in Section 7.1 if Verio is in Default hereunder; (b)
effective upon thirty (30) calendar days prior written notice, with or
without cause, following the expiration of the Initial Term; or (c)
provided that Qwest has complied with its obligations under Section 9.4
hereof, effective immediately upon written notice to Verio if Qwest does
not maintain or loses any required regulatory or other governmental
authorizations to provide the Services, as described in Section 9.1 of this
Agreement, without any further obligation on the part of Verio thereafter
other than to meet its payment obligations hereunder for Services delivered
by Qwest prior to the date of termination.
8.3 Verio may terminate the affected circuit, facility or other portion or
portions of a Service Order or Service Orders upon ten (10) calendar days
prior written notice following failure of performance, in the manner and
subject to Sections 1.5, 10.2 of this Agreement or in the event that a
Service, facility or circuit chronically (as that term is defined in
Section 8.1(d) hereof) fails to comply with the Specifications. If Verio
exercises its termination
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rights pursuant to this Section 8.3, the charges which would have been
payable for the terminated Services for the Service Term for those Services
shall be included for purposes of determining whether Verio has met its
MAPC and Total Minimum Commitment pursuant to Section 3 of Exhibit A
hereof.
8.4 Upon any termination of this Agreement by Verio pursuant to Section 8.1(a),
any and all of Verio's remaining obligations pursuant to Exhibit A
hereto shall terminate, (***) On any other termination of this Agreement
by Verio pursuant to Section 8.1, (***) Should Verio exercise its right to
terminate this Agreement in whole or in part pursuant to Section 8, at
Verio's election, (***)
9. GOVERNMENTAL AUTHORITY:
9.1 Each party shall fully comply with all laws, regulations and authorities
relating to its business which are material to its performance under this
Service Agreement, including, but not limited to, those outlined in this
Section 9.
9.2 Verio acknowledges that the obligation of Qwest to provide the Services to
Verio is subject to the receipt by Qwest of any required regulatory or
other governmental authorizations. In the event that Qwest files a tariff
with the appropriate regulatory agency that is in any manner inconsistent
with the Terms of this Agreement, the Terms of this Agreement shall
control. If Qwest chooses to apply tariff terms which are inconsistent with
the Terms set forth herein, Verio may terminate this Agreement without any
liability to Qwest, apart from liability for Services rendered by Qwest in
accordance with this Agreement to the date of termination. Qwest
acknowledges that any tariff provision which alters Verio's right to
terminate this Agreement is materially inconsistent with this Agreement.
Provided that Qwest has met its obligations under Section 9.3(c) hereof,
Qwest reserves the right to terminate this Agreement pursuant to Section
8.2 of this to this Agreement pursuant to Section 8.2 of this
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Service Agreement if at any time Qwest does not have or loses the required
regulatory or other governmental authorizations to provide the Services.
9.3 Verio represents and warrants that: (a) Verio has received all necessary
permits, licenses, approvals, grants, and charters of whatsoever kind
necessary to carry out the business in which Verio is engaged; and (b)
Verio has complied and does comply with all laws, regulations, orders, and
statutes which may be applicable to Verio, whether local, State or Federal.
From the date of this Agreement until the termination hereof, Verio agrees
to operate in accordance with and to maintain current all such
certifications, permits, licenses, approvals, grants, charters, and to
comply with all applicable laws, regulations, orders and statutes, whether
local, State or Federal. A breach by Verio of any of the representations,
warranties or covenants of this Section 9.2 shall be deemed a Default
hereunder, and shall allow Qwest to terminate this Agreement in the manner
described in Section 8.2 of this Service Agreement.
9.4 Qwest represents and warrants that: (a) Qwest has received all necessary
permits, licenses, approvals, grants, and charters of whatsoever kind
necessary to carry out the business in which Qwest is engaged; (b) Qwest
has complied and does comply with all laws, regulations, orders, and
statutes which may be applicable to Qwest, whether local, State or Federal;
(c) from the date of this Agreement until the termination hereof, Quest
agrees to operate in accordance with and to obtain and maintain current all
such certifications, permits, licenses, approvals, grants, charters, and to
comply with all applicable laws, regulations, orders and statutes, whether
local, State or Federal.
9.5 Notwithstanding any other provision of this Agreement, a failure by a Party
to comply with its obligations under Sections 9.1, 9.3 or 9.4 shall not be
deemed a Default by that Party unless the failure would have a material
adverse effect on the Party's ability to perform its obligations under this
Agreement.
10. FORCE MAJEURE
10.1 Except as is provided in Section 10.2 below, neither party 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, 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, insurrections, riots, wars, or strikes, lock-outs, work
stoppages or other labor difficulties; actions or inaction's 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. Notwithstanding the foregoing, the following
are not events of Force Majeure: fire, explosion, vandalism, fiber
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optic cable cut, or the failure of a subcontractor to perform its
obligations under an agreement with a Party.
10.2 If any failure of performance on the part of Qwest described in Section
10.1 of this Service Agreement shall be: (a) for thirty (30) calendar days
or less, then this Agreement shall remain in effect, but Verio 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 Verio may terminate only that portion of any Service Order
or Service Orders related to the Services so affected, by written notice to
Qwest, in accordance with Section 8.3 of this Service Agreement, in which
case the charges which would have been payable in respect of the terminated
Services for the Service Term applicable to those Services shall be
included for purposes of determining whether Verio has met its MAPC and
Total Minimum Commitment pursuant to Section 3 of Exhibit A hereof.
10.3 If the Services are unavailable to Verio as a result of any events
described in Section 10.1, Verio shall be entitled to an Outage Credit
under Section 5 of the Service and Pricing Exhibit.
11. INDEMNIFICATION:
Each party ("Indemnitor") shall defend, hold harmless, and indemnify the
other ("Indemnitee") from and against all claims, demands, actions, causes
of action, judgments, costs and reasonable attorneys' fees and expenses of
any kind or nature for bodily injury, death, property damage, or other
damages of any kind incurred by Indemnitee, its employees, or third parties
arising under this Agreement due to Indemnitor's negligence or willful
misconduct; except that Verio shall defend, indemnify and hold Qwest
harmless from and against any claim of libel, slander, or infringement of
any third party's copyright, trademark or other proprietary right if such
claim is caused by Verio's transmissions using Qwest Facilities unless due
to Qwest's negligence or willful misconduct.
12. ASSIGNMENT:
12.1 Neither this Agreement nor any of Verio's rights or obligations hereunder
may be sold, assigned, sublet, encumbered or transferred by operation of
law or otherwise (hereafter, a "Transfer"), except (a) in the ordinary
course of its business as an Internet service provider, (b) to a Verio
Affiliate, (c) in connection with a sale or assignment by operation of law
or otherwise of all or substantially all of Verio's assets, without the
prior written consent of Qwest, which will not be unreasonably withheld or
(d) in connection with a transfer to or enforcement by a secured creditor
by way of security (each a "Permitted Transfer"). Any Transfer by Verio
other than a Permitted Transfer without Qwest's prior written Consent shall
entitle Qwest, at its option, to: (x) consider the Transfer void; (y)
consent to the Transfer, and thereafter hold any transferee(s) liable
hereunder; or (z) terminate this Agreement upon delivering written notice
to Verio. Subject to the
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foregoing, this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors or assigns. (***) In all
other cases, Qwest may transfer, assign or otherwise in any manner encumber
this Agreement and its rights and obligations hereunder without the need to
obtain Verio's prior consent.
13. TITLE:
(***) Verio 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.
14. WARRANTIES AND LIMITATION OF LIABILITY:
14.1 Qwest warrants (a) that the Services shall be provided to Verio and shall
operate in accordance with prevailing telecommunications industry standards
(hereinafter the "TECHNICAL STANDARDS") and the Specifications set forth in
Exhibit A hereof. If Verio determines that the Services are not being
provided in accordance with the Technical Standards and the Specifications
(hereinafter, a "DEFECT" or "DEFECTS"), Qwest shall use commercially
reasonable best efforts under the circumstances to conform the Services to
the Technical Standards, and (b) the Services and any that all components
of any systems/product utilized or relied upon by Qwest to perform the
Services, are designed to be used prior to, during and after the calendar
year 2000 AD, and that the Services and the systems/product will operate
during each such time period without error or interruption relating to
date data, including without limitation, any error or interruption relating
to, or the product of, date data which represents or references different
centuries or more than one century, or leap year, in any level of any
systems/product hardware or software, including, without limitation,
microcode, firmware, application programs, user interfaces, files and
databases.
14.2 THE WARRANTIES CONTAINED IN SECTION 14.1 OF THIS SERVICE AGREEMENT ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QWEST HEREBY
SPECIFICALLY DISCLAIMS ANY LIABILITY TO CUSTOMER FOR INTERRUPTIONS
AFFECTING THE SERVICES FURNISHED HEREUNDER WHICH ARE ATTRIBUTABLE TO
CUSTOMER'S INTERCONNECTION FACILITIES (AS DEFINED IN SECTION 1.4 OF THE
SERVICE AND PRICING EXHIBIT) OR TO CUSTOMER'S EQUIPMENT FAILURES, OR TO
CUSTOMER'S BREACH OF THIS AGREEMENT.
Qwest Communications
12
13
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
14.3 APART FROM CLAIMS ARISING UNDER SECTION 15 HEREOF, IN NO EVENT SHALL EITHER
PARTY OR ANY OF ITS AFFILIATES BE LIABLE TO THE OTHER PARTY OR ANY OF ITS
AFFILIATES OR EMPLOYEES OR TO ANY THIRD PARTY FOR ANY LOSS OF PROFIT OR
REVENUE, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR
SIMILAR OR ADDITIONAL DAMAGES, WHETHER INCURRED OR SUFFERED AS A RESULT OF
UNAVAILABILITY OF FACILITIES OR SERVICES, INCORRECT OR DEFECTIVE
TRANSMISSIONS, PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER
ACTION OR INACTION UNDER THIS AGREEMENT, OR FOR ANY OTHER REASON, EVEN IF
THAT PARTY IS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE;
14.4 Verio acknowledges that Qwest has no ability to independently test or
maintain Services between off net cities. Consequently, if Qwest provides
such Services, then notwithstanding anything in this Agreement to the
contrary, Qwest's entire duty with respect to such Services shall be to use
its best efforts to test and maintain such Services in accordance with
Qwest's Specifications.
15. NON-DISCLOSURE AND PUBLICITY:
15.1 The parties acknowledge that the Mutual Non-Disclosure Agreement dated
October 31, 1997 ("NDA"), currently in effect between Verio and Qwest,
remains in full force and effect, and that this Agreement and all
information related hereto constitutes Proprietary Information as defined
therein. The parties further acknowledge and agree that all "Proprietary
Information," as defined in the NDA, disclosed in the course of their
discussions concerning this Agreement shall be subject to the terms of that
agreement. Notwithstanding the foregoing, the parties shall not be
precluded from confidential discussions with their respective
stockholders, key employees, legal counsel, accountants, banks and other
agents, who are subject to a duty of confidence in relation to the
Proprietary Information which duty is not inconsistent with the terms of
the NDA and this Agreement, as reasonably deemed necessary by each party,
respectively, in order to facilitate the transactions contemplated hereby.
By its execution hereof, Qwest Communications International, Inc. hereby
agrees that it shall be and hereby is bound by all of the agreements and
obligations of Qwest under the NDA, as if it was a direct party thereto.
16. ARBITRATION:
16.1 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. If
after good-faith negotiations the Parties still are unable to resolve the
dispute, then either Party may escalate resolution of the dispute to
mediation under the auspices of JA.M.S/ENDISPUTE. If the dispute is not
resolved in this manner, either Party may pursue its remedies in a court of
law.
Qwest Communications
13
14
16.2 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 court proceedings, 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 court separately from and in addition to any other amount included in
such judgment. This Section 16.3 shall be severable from the other
provisions of this Service Agreement and shall survive and not be merged
into any such judgment.
17. USE OF SERVICES:
17.1 Verio shall use and permit the use of the Services provided by Qwest
hereunder solely in connection with Verio's provision of Services to
Verio's Affiliates or provision by Verio or Verio's Affiliates to third
parties of Internet-based services or data services, and not for the
provision of voice telephone services not using Internet protocol
(directly or through an Affiliate, reseller or other third party). Qwest's
obligation to provide the Services specified herein is conditioned upon
Verio using commercially reasonable best efforts to ensure that the
Services are not used for any unlawful purpose or in violation of any
governmental regulations or authorizations as outlined in Section 9 of this
Service Agreement.
18. MISCELLANEOUS:
18.1 Verio shall execute such other documents, provide such information and
cooperate with Qwest, all as may be reasonably required by Qwest 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.
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 16 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.
Qwest Communications
14
Confidential and Proprietary Verio Initials:____
15
18.5 Verio acknowledges that at least part of the Services are or will be
provided through a Qwest "NETWORK MANAGEMENT CENTER" located in Denver,
Colorado. Accordingly, this Agreement shall be construed under the laws
of the State of Colorado without regard to its choice of law principles.
Except as is provided in Section 16 of this Service Agreement, venue and
jurisdiction shall lie exclusively with the District Court in the City
and County of Denver.
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 Verio 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 Verio 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.
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
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: Carrier Contracts Admin.
Qwest Communications
15
Confidential and Proprietary Verio Initials:____
16
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
All notices to Verio shall be addressed to:
Verio, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile, ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Copy to: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
At the above address
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
The addresses set forth may be changed by appropriate notice to the other
party.
18.11 This Agreement, including its schedules and exhibits incorporated
herein by reference, together with (*) executed
concurrently herewith and the NDA 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 Agreement and the terms of any
Service Order(s) issued and accepted hereunder or any exhibits hereto,
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) any
exhibit, with reference to the same in order of attachment to this
Agreement; (b) this Agreement; and (c) any Service Order(s).
Notwithstanding the foregoing, no provision or term of any Service Order
or exhibit shall be a part of this Agreement or binding on Qwest or
Verio unless and until such Service Order or document has been executed
by authorized representatives of Qwest and Verio.
DATED as of the first date written above.
VERIO, INC.:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief technical Officer
Date: 3/31/98
QWEST COMMUNICATIONS CORPORATION:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. Vice President, Carrier Markets
Date: 3/31/98
Qwest Communications
16
17
EXHIBITS
Exhibit A: Service and Pricing Exhibit
Schedules to Exhibit A
----------------------
"A-1" Interval Guidelines
"A-2" Technical Specifications
"A-3" Maintenance Policy
Exhibit B: Service Order Form
Exhibit C: Qwest Network Build Plan
Exhibit D: SONET Protection Availability
Exhibit E: Collocation Agreement
(*) (*)
Qwest Communications
1
Confidential and Proprietary Verio Initials:__________
18
EXHIBIT A
TO
QWEST COMMUNICATIONS
CAPACITY AND SERVICES AGREEMENT
SERVICE AND PRICING EXHIBIT
This Service and Pricing Exhibit (this "SERVICE AND PRICING EXHIBIT")
is made as of March 31, 1998 with respect to Service Agreement
No._____, (the "AGREEMENT") by and between Qwest Communications
Corporation, a Delaware corporation ("QWEST"), and Verio Inc, Delaware
corporation ("VERIO"),
1. QWEST SERVICES:
1.1 During the Term of the Agreement, Qwest will provide to Verio the
Service or Services requested by Verio in a Permitted Service Order or
a Service Order otherwise accepted by Qwest.
1.2 Qwest shall deliver each Service to be provided under a Permitted
Service Order, or under an Additional Service Order which has been
accepted by Qwest, on or before the Availability Date stated in the
Permitted Service Order or Additional Service Order for that Service.
Services shall be delivered in compliance with the specifications
attached as Schedule A-2 to this Exhibit A (the "Specifications")
which may not be amended without Verio's consent, such consent not to
be unreasonably withheld.
1.3 At each end of the city pairs (the "CITY PAIRS") on which Verio orders
Services, Qwest shall provide, at Qwest's cost, appropriate equipment
in its terminal locations necessary to connect the Services to Verio's
Interconnection Facilities (as defined in Section 1.4 of this Service
and Pricing Exhibit). Qwest hereby grants Verio the right to acquire
leased floor space in Qwest terminals for the purpose of collocation
of Verio equipment, subject to site specific space availability and
mutual agreement upon the applicable charges and other terms, which
shall be reflected in a written Collocation Agreement in the form of
Exhibit E hereof. Verio will be permitted to participate in the
planning process for the building out of collocation space and is
hereby granted a right of first refusal for terminal space available
from Qwest, subject to Qwest's other obligations regarding such space
existing on the date hereof.
1.4 Verio agrees that Verio's Interconnection Facilities shall connect to
the Services provided by Qwest hereunder at the network interface
points located in the Qwest terminals and defined in the
Specifications (as defined in Section 2.1 of this Service and Pricing
Exhibit). As used herein, the term "INTERCONNECTION FACILITIES" shall
mean transmission capacity provided by Verio or its third party
supplier to extend
Qwest Communications
2
Confidential and Proprietary Verio Initials:_________
19
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
the Services provided by Qwest from a Qwest terminal to any other
location (e.g., a local access telephone service provided by a local
telephone company).
1.5 Qwest shall use reasonable efforts to order Interconnection Facilities
on behalf of Verio from Verio's designated supplier, provided that
Verio furnishes Qwest with an acceptable letter of agency. Verio shall
be billed directly by the supplier of such Interconnection Facilities,
and shall hold harmless and indemnify Qwest from any loss or liability
incurred by Qwest as a result of Qwest's ordering Interconnection
Facilities from any third party. Verio may, at its election, but
subject to Qwest's prior written approval, order its own
Interconnection Facilities. Qwest will make available to Verio at
Qwest's cost, subject to availability of facilities, Interconnection
Facilities which Qwest may have in place with local exchange carriers
and which are in excess of Qwest's own requirements. If any party
other than Qwest provides Interconnection Facilities, then
unavailability, incompatibility, delay in installation, or other
impairment of Interconnection Facilities shall not excuse Verio's
obligation to pay Qwest all Rates or charges applicable to the
Services, whether or not such Services are useable by Verio.
2. START OF SERVICES:
2.1 Start of service for each Service (the "START OF SERVICE DATE") shall
begin on the date on which Verio accepts delivery of such Service. If
Verio fails to give written notice that the Service is in material
non-compliance with the Specifications within five (5) business days
after notification to Verio by Qwest that the Service is available,
Verio shall be deemed to have accepted such Service, and the Start of
Service Date shall commence as of the fifth day following such
notification by Qwest. Following notice by Verio of material
non-compliance as set forth above, Qwest shall promptly take such
reasonable action as is necessary to correct any such non-compliance
in the Service and shall, upon correction, notify Verio of a new Start
of Service Date.
2.2 Notwithstanding anything in Section 2.1 of this Service and Pricing
Exhibit to the contrary, Verio may delay the Start of Service Date for
any Service for up to thirty (30) days from Qwest's Availability Date
by written notice to Qwest at least seventy-two (72) hours prior to
any applicable Availability Date.
Qwest Communications
3
Confidential and Proprietary Verio Initials:__________
20
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
3. MINIMUM COMMITMENTS AND RATES:
3.1 Set forth below is each of Verio's minimum annual purchase commitments
("MAPC"), payable in each of the first seven (7) years of the Initial
Term of this Agreement commencing on the Effective Date, and which
total One Hundred Million Dollars ($100,000,000.00) (the "Total
Minimum Commitment"), Commencing February 25, 1998, all payments by
Verio to Qwest or any affiliate of Qwest for services, facilities or
products used by Verio, including services, facilities or products
which are provided pursuant to this Agreement and/or any other
agreement between Qwest or an affiliate of Qwest and Verio, together
with payments to third party providers under Section 1.5 of the
Agreement and any credits toward the MAPC as provided for in the
Agreement, shall be included in determining whether Verio has
satisfied its MAPC.
Minimum Annual Purchase Commitments (*)
Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7
------ ------ ------ ------ ------ ------ ------
(*) (*) (*) (*) (*) (*) (*)
3.2 (***)
3.3 (***)
Qwest Communications
4
Confidential and Proprietary Verio Initials:__________
21
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
3.4 (***)
3.5 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) or such lower rates as are
determined in accordance with Section 3.7 hereof. The Rates for each
Service include certain Monthly Recurring and Non-Recurring charges,
all as defined in this Section 3. The Rates vary depending on whether
the Services are (***). Finally, the rates vary depending upon the Tier
usage level in effect during each given month of the Term. The Rates
are as follows:
(a) MONTHLY RECURRING CHARGES:
MONTHLY RUN RATE
FOR ALL QWEST SERVICE
(***) (***) (***) (***) (***)
------------------------- ------ ------ ------ ------
TIER 1 LESS THAN (***) $ (***) $ (***) $ (***) $ (***)
TIER 2 (***) $ (***) $ (***) $ (***) $ (***)
TIER 3 GREATER THAN (***) $ (***) $ (***) $ (***) $ (***)
After accepting Service Orders for Services that, taken
together with all other existing Services being then provided by
Qwest, an affiliate of Qwest or a third party provider, result in a
monthly total of billed Rates in a (***), the prices for all new and
existing Services shall be adjusted as of the next billing cycle to
reflect the new (***).
(b) NON-RECURRING CHARGES:
A Non-Recurring Installation Charge of (***) per
point-to-point (***) (or Equivalent) shall apply. (***)
Qwest Communications
5
Confidential and Proprietary Verio Initials:__________
22
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(c) OTHER CHARGES:
In addition to the foregoing Rates, Verio 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:
(***)
(ii) OTHER MONTHLY RECURRING CHARGES:
(***)
(iii) OTHER NON-RECURRING CHARGES
(***)
Qwest Communications
6
Confidential and Proprietary Verio Initials:__________
23
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(iv) OTHER MISCELLANEOUS CHARGES:
(***)
3.6 The Rates set forth in this Section 3 shall be in effect for the
entire Term of this Agreement, subject to such downward adjustment,
if any, as may result from the application of Section 3.7 of this
Service and Pricing Exhibit.
3.7 (***)
4. FACILITY-SPECIFIC MINIMUM SERVICE TERM:
4.1 Subject to Qwest performing its obligations under the Agreement and
this Service and Pricing Exhibit, and subject to Verio's remedies
under Sections 1.4, 1.5, 8.1 and 8.3 of the Agreement, Verio
acknowledges that the Rates and charges described in Section 3 of this
Service and Pricing Exhibit are based on the commitment of Verio to
each MAPC and to the Total Minimum Commitment. In addition, the Rates
are based on Verio's agreement to utilize each of the specific
circuits, facilities, or other Services provided by Qwest for a
specified minimum period of time. Therefore, notwithstanding anything
in this Agreement to the contrary, Verio shall be liable for and shall
pay to Qwest all Rates, fees and charges which accrue under this
Agreement for each circuit, facility, or identifiable component of any
Service or portion thereof for the entire Minimum Service Term (as
defined in Section 4.2 of this Service and Pricing Exhibit),
regardless of whether or not Verio utilizes all or any part of such
circuit, facility, or Service during all or any part of the Minimum
Service Term applicable to such Service, except as is set forth in
Section 4.3 of this Service and Pricing Exhibit.
4.2 The "MINIMUM SERVICE TERM" for each circuit or other component of
Service shall be (***) months.
Qwest Communications
7
Confidential and Proprietary Verio Initials:__________
24
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
4.3 Notwithstanding anything in this Agreement to the contrary, Verio's
obligation to pay all Rates, fees and charges which accrue under this
Agreement for each Service for the entire Minimum Service Term
applicable to each such Service shall terminate, as each such Service,
if this Agreement is terminated during the Minimum Service Term which
pertains to each such Service: (a) by Verio, pursuant to Sections 8.1
of the Agreement,; or (b) by Qwest, pursuant to Section 8.2(b) or (c)
of the Service Agreement.
5. OUTAGES:
5.1 Verio acknowledges the possibility of an unscheduled, continuous
and/or interrupted period of time when a Service or Services are
"unavailable" (as defined in Sections 2.2 or 2.3 of Schedule A-2 to
this Exhibit A) (hereafter an "Outage"). In the event of an Outage,
Verio shall be entitled to a credit (the "Outage Credit") determined
according to the following formula:
(***)
5.2 (***)
5.3 (***)
5.4 (***)
Qwest Communications
8
Confidential and Proprietary Verio Initials:__________
25
month shall not exceed the amount payable by Verio to Qwest for that
same month for such Service.
5.5 In the event of an unscheduled Outage, Qwest will use commercially
reasonable best efforts to restore Services to a level that accords
with the service quality set forth in the Specifications.
Qwest Communications
9
Confidential and Proprietary Verio Initials:__________
26
SCHEDULE A-1 TO EXHIBIT A
STANDARD & EXPEDITE INTERVAL GUIDELINES
These are the standard order intervals for domestic services on Qwest Owned
Fiber Optic Network ("On-Net" services). If you have any questions regarding
the interval process, please contact your Sales Director.
TOTAL SERVICE INTERVAL IN
CALENDAR DAYS
SERVICE TYPE STANDARD EXPEDITE
OPTICAL:
POP TO POP (OC-3) 28 ICB
POP TO POP (ALL OTHERS) ICB ICB
LOA PROVIDER ICB ICB
LEC TO LEC ICB ICB
CAP TO CAP ICB ICB
CAP TO LEC ICB ICB
CROSS CONNECTS ICB ICB
DS-3:
POP TO POP 15 ICB
LOA PROVIDED 15 ICB
LEC TO LEC 22 ICB
CAP TO CAP 22 ICB
CAP TO LEC 22 ICB
CROSS CONNECTS 8 ICB
DS-1:
POP TO POP 12 ICB
LOA PROVIDED 12 ICB
LEC TO LEC 20 ICB
CAP TO CAP 20 ICB
CAP TO LEC 20 ICB
CROSS CONNECTS 8 ICB
ALL INTERVALS ARE SUBJECT TO NETWORK CAPACITY AND LEC FACILITY
AVAILABILITY. SHOULD OFF-NET CAPACITY BE REQUIRED, INTERVALS WILL BE
DETERMINED ON AN ICB BASIS. QWEST DOES NOT GUARANTEE OFF-NET CAPACITY
AND PERFORMANCE.
"ICB" means "Individual Case Basis"
"POP TO POP" means Qwest controls CFA.
CAP's: No optical interface anywhere except with MFS & TCG in Los
Angeles. Equipment Plug-ins: Add 2 days.
================================================================================
Qwest Communications
10
Confidential and Proprietary Verio Initials:__________
27
SCHEDULE A-2 TO EXHIBIT A
TO
QWEST COMMUNICATIONS CAPACITY AND SERVICES AGREEMENT
TECHNICAL SPECIFICATIONS
1. INTERCONNECT SPECIFICATIONS:
1.1 The customer interconnection point of DS-1 & DS-3 signals at the Qwest
(SPT) location will be at an industry standard (DSX-1) & (DSX-3)
digital cross-connect panels and will be referred to as Qwest Network
Interface in this document.
1.2 The DS-1 & DS-3 signals terminating at the Qwest digital cross-connect
panels will meet the electrical specifications as defined in AT&T
Compatibility Bulletin (CB) ▇▇. ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇.
1.3 The Qwest Digital Network will be compatible with the ▇▇▇▇ System
hierarchical clock synchronization methods and stratum levels as
described in Bellcore Technical Advisory (GR436-Core).
1.4 Verio equipment must also meet the interconnect specifications listed
above and shall comply with jitter requirements of AT&T Technical
Reference PUB 63411.
2. PERFORMANCE STANDARDS.
2.1 ▇▇▇, ▇▇▇, ▇▇-▇, OC-12, OC-48, OC-3c, OC-12c, and OC-48c circuit
performance will be measured using two parameters: Availability and
Error-Free Seconds.
The following assumptions apply to the derived data:
* The circuits originate and terminate on the SONET OC-48 backbone
* High speed protection switching: 1 for N, where N=2
* MTTR for SONET equipment: 2 hours
* MTTR for fiber optic cable: 12 hours (Bellcore Standard)
* Cable cut rate: 4.39 /year/1,000 sheath miles (Bellcore Standard)
The system includes three (3) DCS in Los Angeles, Sacramento,
and San ▇▇▇▇ (although not all circuits are routed through the
DCS, they are included in all the calculations)
2.2 Availability is a measure of the relative amount of time during which
the circuit is available for use. According to CCITT and ANSI
definitions, unavailability begins when the Bit Error Ratio (BER) in
each second is worse than 1.0 E-3 for a period of 10 consecutive
seconds.
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INTER OFFICE CHANNEL (IOC): An Inter Office Channel refers to the
Qwest Communications network between the points of presence (POP).
OPTICAL CARRIER LEVEL 1 (OC-1): The optical signal that results from
an optical conversion of an electrical STS-1 signal (51.840 Mb/s).
This signal forms the basis of the interface.
OC-3: Optical Carrier level 3 signal operating at 155.520 Mb/s.
OC-12: Optical Carrier level 12 signal transmitting at 622.080 Mb/s.
OC-48: Optical Carrier level 48 signal transmitting at 2488.32 Mb/s.
POINT OF PRESENCE (POP): A physical location where a long distance
carrier terminates lines before connecting to the local exchange
carrier, another carrier, or directly to a customer.
2.3 The availability objective for all circuits between Qwest Network
Interface points specified above is to provide performance levels over
a 12 month period as follows:
DS1, DS3, OC-3, ▇▇-▇▇
▇▇-▇▇, ▇▇-▇▇, ▇▇-▇▇▇,
▇&▇ ▇▇▇▇▇ ▇▇▇ ▇▇-▇▇▇
--------- ---------------------
0-2500 99.999%
2501-4000 99.998%
This excludes any customer provided access links to the Qwest digital
network.
2.4 Error-Free Seconds (EFS) and Error Seconds (ES) are the primary
measure of error performance. An Error-Free Second is defined as any
second in which no bit errors are received. Conversely, an Error
Second is any second in which one or more bit errors are received.
3. SONET: Synchronous Optical Network is a family of optical transmission
rates and interface standards allowing internetworking of products
from different vendors. Base optical rate is 51.840 Mb/s. Higher rates
are direct multiples.
SONET TRANSPORT: Services associated with carrying OC-1 or higher
level signals.
SYNCHRONOUS TRANSPORT SIGNAL LEVEL 1 (STS-1): The basic logical
building block electrical signal with a rate of 51.840 Mb/s.
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SYNCHRONOUS TRANSPORT SIGNAL LEVEL N (STS-N): This electrical signal
is obtained by byte interleaving N STS-1 signals together, The rate of
the STS-N is N times 51.840 Mb/s.
TERMINATING MULTIPLEX (TM): Provides the multiplex functions for
multiplexing and demultiplexing between the DS1 or higher signal level
and the SONET OC-N level.
4. ACCEPTANCE CRITERIA. The acceptance criteria for DS1, DS3, OC-3,
OC-12, OC-48, OC-3c, OC-12c, and OC-48c circuits between Qwest Network
Interface points is to provide the performance levels reflected in
Section 2.3 of this Schedule A-2 during a 60 minute test period. lf no
errors are observed during the first 15 minutes of the test, the
facility may be considered acceptable. Access connections to customer
location will be tested in accordance with ▇▇▇▇ Publication 62508.
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SCHEDULE A-3 TO EXHIBIT A
QWEST MAINTENANCE POLICY
PURPOSE
The Purpose of this document is to provide guidelines for maintenance activity
performed on the Qwest network.
OVERVIEW
Any work that has the potential of causing a service disruption to customer
traffic must be scheduled in advance per the maintenance notification
guidelines (next page). Additionally, the work must be scheduled to be
performed during a maintenance window as outlined below.
I. MAINTENANCE WINDOWS: FRIDAY: 12:00 Midnight until 6:00 Saturday Morning.
SATURDAY: 12:00 Midnight until 6:00 Sunday Morning.
SUNDAY: 12:00 Midnight until 5:00 Sunday Morning.
II. EXEMPT PERIODS: Routine maintenance will not normally be approved to
occur during holiday weekends, including "Mothers day",
or during the period from Thanksgiving weekend through
the first week of January.
III. Typical maintenance not authorized outside of the "maintenance window."
1) Power work: When connecting power equipment, or cabling to
existing power systems, or when modifying existing power
systems.
2) Software upgrade: Software upgrades to DCS, Sonet, or
Switching Systems.
3) Loss of redundancy: Maintenance that will cause the loss of
protection in DCS, Sonet, or Switching Systems.
4) Fiber: Splicing within an existing fiber cable that is
carrying live traffic, or that carries customer fibers.
5) Splice tray: Work to be performed in a fiber splice tray that
has "working" fibers, must normally be performed during the
"maintenance window." Exceptions may be approved by the FOPs
and NMC directors.
6) DSX-3 Panels: Changes, re-cabling, or patch changes on the
"back-side" of a DSX-3 panel must be scheduled to occur during
the maintenance window.
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ESCALATION AND CONTACT LIST
24 Hours Response "HOT-LINE" ▇▇▇-▇▇▇-▇▇▇▇
SPECIALIST ON DUTY DIRECT LINE ▇▇▇-▇▇▇-▇▇▇▇
Network Management Center FACSIMILE ▇▇▇-▇▇▇-▇▇▇▇
1st Level Escalation
"ON-DUTY" SUFERVISOR
Network Management Center
2nd Level Escalation
▇▇▇ ▇▇▇▇▇
Manager - Network Management Center
OFF# ▇▇▇-▇▇▇-▇▇▇▇
PGR# 888-712-1979
CELL# ▇▇▇-▇▇▇-▇▇▇▇
E-MAIL ▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
3rd Level Escalation
▇▇▇ ▇▇▇▇▇▇▇
Director - Network Management Center
OFF# ▇▇▇-▇▇▇-▇▇▇▇
PGR# ▇▇▇-▇▇▇-▇▇▇▇
CELL# ▇▇▇-▇▇▇-▇▇▇▇
E-MAIL ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
ESCALATION TO VP OPS/NMC.........THROUGH MANAGER OR DIRECTOR
4th Level Escalation
▇▇▇▇ ▇▇▇▇▇▇▇
Vice President - Network Services
OFF# ▇▇▇-▇▇▇-▇▇▇▇
PGR# ▇▇▇-▇▇▇-▇▇▇▇
E-Mail ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
ESCALATION BEYOND 4TH LEVEL..........THROUGH V.P. OPS/NMC
TROUBLE TICKET PRIORITIZATION
A Network Management Service Representative will assign a priority to each
reported trouble, based on the following guidelines:
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PRIORITY 1:
* Dedicated location account with greater than or equal to 50% of
total service out-of-service
* International country isolation
* Inability to complete to a single or multiple NPA's
* Private line data circuit outage, loss of customer DS3, or
service impairing degradation
* Switched access location greater than 50% of total
service-out-of-service
* Event outage (fiber cut, equipment failure, natural
disaster, etc,)
PRIORITY 2:
* Chronic quality problems
* Switched access connectivity problems
* Dial-up data/Fax quality or connectivity problems
* Technical assistance
PRIORITY 3:
* Trended problems not meeting Priority 1 or 2 criteria
* Single non-circuit-specific quality problems
PRIORITY 4:
* Informational tickets
Escalation Objectives
Qwest Internal Escalation Intervals
Management Priority 1 Priority 2
Level Referral +
1 - Supervisor 1 Hour 8 Hours
2 - Manager 2 Hours 16 Hours
3 - Director 4 Hours 32 Hours
4 - Vice President 8 Hours 40 Hours
MANAGEMENT PRIORITY 3 PRIORITY 4
LEVEL (REFERRAL +) (REFERRAL+)
1 - Supervisor 24 Hours N/A
2 - Manager 48 Hours N/A
3 - Director 96 Hours N/A
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EXHIBIT B
CARRIER SERVICES
PRIVATE LINE - SERVICE ORDER
[QWEST LOGO]
Customer Order Number: _________________
Order Date: _______ Requested Availability Date: _______ Sales Person: _______
BILLING INFORMATION
Function Code: / / New / / Change / / Revision / / Supplement / / Disconnect
Expedite: / / Yes / / No - Customer Initial __________
Contract Term: / / 12 M / / 24 M / / 36 M / / 48 M / / 60 M
Customer Name: _____________________________________ Cust. #: _______________
Billing Address: ______________________________________________________________
City: _____________________ State: __________________ Zip: ____________________
Billing Contact: ____________________ Phone: ______________ Fax: ______________
Order Contact: ______________________ Phone: ______________ Fax: ______________
SERVICE INFORMATION
Service V&H City City Qty.
Type Originating Terminating
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
Unit MRC Total MRC Unit NRC Total NRC
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
ORIGINATING ACCESS TYPE TERMINATING ACCESS TYPE
Access: / / Cust. Ordered (CFA/LOA) Access: / / Cust. Ordered (CFA/LOA)
/ / QCC Ordered / / QCC Ordered
Site: _____________________________ Site: _____________________________
Address:___________________________ Address:___________________________
City: ______ State: ____ Zip:______ City: ______ State: ____ Zip:______
Ops. Contact:________ Phone:_______ Ops. Contact:________ Phone:_______
Alternate: _________ Phone:________ Alternate: _________ Phone:________
Access Provider: __________________ Access Provider: __________________
QCC requires 5 working days from QCC requires 5 working days from
receipt of DLR to complete circuit receipt of DLR to complete circuit
installation. installation.
Special Remarks/Comments: ________ Special Remarks/Comments: ________
__________________________________ __________________________________
SIGNATURE / APPROVAL
This Service Order is subject to and governed by the terms and conditions set
forth in the s Capacity and Services Agreement between QCC and Customer. Your
signature acknowledges that you have read, understand and accept such terms and
conditions and that you are duly authorized to execute and deliver this Service
Order. This Service Order shall not become a valid and binding obligation of
Qwest unless so provided under the Capacity and Services Agreement or until
this Service Order has been executed by an authorized representative of Qwest.
For Customer By: _____________________ For Qwest By: _______________________
Signature: ___________________________ Signature: __________________________
Title: _______________________________ Title: ______________________________
34
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
EXHIBIT C
QWEST COMMUNICATIONS
SERVICE READY POP REPORT
Current on: 3/25/98
(***)
Qwest Confidential Page 1
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
Qwest Communications
Service Ready POP Report
Current on: 3/25/98
(***)
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
QWEST COMMUNICATIONS
SERVICE READY POP REPORT
Current on: 3/25/98
(***)
Qwest Confidential
Page 3
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
QWEST COMMUNICATIONS
SERVICE READY POP REPORT
CURRENT ON: 3/25/98
(***)
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QWEST COMMUNICATIONS
SERVICE READY POP REPORT
Current on: 3/25/98
------------------
(***)
QWEST CONFIDENTIAL Page 5
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QWEST COMMUNICATIONS
SERVICE READY POP REPORT
Current on: 3/25/98
---------------
(***)
Qwest Confidential Page 6
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
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QWEST COMMUNICATIONS
SERVICE READY POP REPORT
Current on: 3/25/98
-------------------
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QWEST COMMUNICATIONS
SERVICE READY POP REPORT
CURRENT ON: 3/25/98
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QWEST COMMUNICATIONS
SERVICE READY POP REPORT
Current on: 3/25/98
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EXHIBIT D
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EXHIBIT E
COLLOCATION LICENSE AGREEMENT
(Caged Space)
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
1
45
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
2
46
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
3
47
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
4
48
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
5
49
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
6
50
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
7
51
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
8
52
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
9
53
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
(***)
10
54
ATTACHMENT TO COLLOCATION LICENSE AGREEMENT
THE EQUIPMENT SPACE
11
55
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
EXHIBIT F
(***)
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
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REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
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FILED WITH THE COMMISSION.
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FILED WITH THE COMMISSION.
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