EXHIBIT 10.36
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS EXHIBIT PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
MASTER SERVICES AGREEMENT
This Master Services Agreement ("Agreement") is entered into this 14th day of
March, 2002, between SAVVIS Communications Corporation, a Missouri corporation
("Customer") and Level 3 Communications, LLC ("Level 3").
SECTION 1. DEFINITIONS
----------------------
1.1 AFFILIATE: Any entity controlling, controlled by or under common control
(either directly or indirectly) with Customer or ▇▇▇▇▇ ▇, as applicable;
"control" shall mean the ownership of at least fifty percent (50%) of either the
equity of an entity or the voting shares of such entity.
1.2 CONNECTION NOTICE: Written notice (which may be in the form of an electronic
mail message) from Level 3 that the Service ordered has been installed and
tested.
1.3 CUSTOMER COMMIT DATE: The date upon which ▇▇▇▇▇ ▇ expects that Service will
be available to Customer, as set forth in the Customer Welcome Letter.
1.4 CUSTOMER ORDER: A request for Level 3 Service submitted by Customer in the
form designated by Level 3.
1.5 CUSTOMER PREMISES: The location or locations occupied by Customer or its end
users to which Service may be delivered.
1.6 CUSTOMER WELCOME LETTER: A letter from ▇▇▇▇▇ ▇ to Customer informing
Customer of Level 3's acceptance of and the Customer Commit Date for a Customer
Order.
1.7 FACILITIES: Equipment owned or leased by ▇▇▇▇▇ ▇ and used to deliver
Service, including terminal and other equipment, wires, lines, ports, routers,
switches, channel service units, data service units, cabinets, racks and similar
equipment.
1.8 FORCE MAJEURE EVENT: Any event which is beyond the reasonable control of a
party, despite its best efforts, the cause of which cannot be partly or wholly
attributed to such party, and which prevents or delays the performance of such
party's obligations (except for payment obligations) hereunder.
1.9 LOCAL LOOP: The connection between Customer Premises and the Level 3
intercity backbone network.
1.10 MARKET: Any city in which Level 3 provides Service to Customer.
1.11 PROTECTED: Any Services that includes a protection scheme that allows
traffic to be automatically re-routed in the event of a fiber cut or equipment
failure.
1.12 SERVICE: Any service offered by Level 3 pursuant to a Customer Order; each
Service covered by this Agreement is more particularly described in Exhibits B
and C attached hereto and incorporated herein by this reference.
1.13 SERVICE COMMENCEMENT DATE: The first to occur of: (A) the date upon which
Customer acknowledges that the Service has been installed and is functioning
properly (which may be delivered in the form of an electronic mail message); or
(B) the date set forth in any Connection Notice unless Customer notifies ▇▇▇▇▇ ▇
that the Service is not functioning properly as provided in Section 3.1 (or, if
two or more Services are designated as "bundled" or as having a "sibling
relationship" in any Customer Order, the date set forth in the Connection Notice
for all such Services); or (C) the date Customer begins using the Service.
1.14 SERVICE TERM: The duration of time (measured starting on the Service
Commencement Date) for which Service is ordered, as specified in the Customer
Order. The Service Term shall continue on a month-to-month basis after
expiration of the stated Service Term, until terminated by either Level 3 or
Customer upon thirty (30) days' written notice to the other.
1.15 TERM: The period of time commencing on execution hereof and ending three
(3) years thereafter; notwithstanding expiration of the Term, this Agreement
shall continue in full force and effect with respect to Customer Orders
submitted and accepted prior to expiration of the Term until such time as the
Service Term with respect to each such Customer Order had expired or been
terminated pursuant to the provisions hereof.
1.16 UNPROTECTED: Any Service that is not Protected.
SECTION 2. DELIVERY OF SERVICE
------------------------------
2.1 SUBMISSION AND ACCEPTANCE OF CUSTOMER ORDER FORMS. Customer Orders will
contain a description of the Service, the nonrecurring charges and monthly
recurring charges for Service and any applicable Service Term. Upon receipt of a
Customer Order signed by Customer for Services governed by this Agreement, if
Level 3 determines (in its sole discretion) to accept the Customer Order, Level
3 will deliver a Customer Welcome Letter for the requested Service (or some
portion of the Services). Level 3 will endeavor to determine whether to accept a
Customer Order and (if so) deliver a Customer Welcome Letter within one week of
receiving the Customer Order from Customer, which such Costumer Welcome Letter
will indicate if the requested Service, or any portion thereof, is not an On-Net
Service, as defined in Section 2.6. In the event that the Customer Welcome
Letter contains a Customer Commit Date that is more than twenty (20) business
days after the date of installation requested by Customer or indicates that the
Service is not an On-Net Service, then Customer may (by written notice delivered
to Level 3 no later than three (3) business days after receipt of the Customer
Welcome Letter) terminate the Customer Order without termination liability.
2.2 CREDIT APPROVALS. Customer will provide Level 3 with credit information as
requested, and delivery of Service is subject to credit approval. ▇▇▇▇▇ ▇ may
from time to time require Customer to make a deposit as a condition to
acceptance of Customer Orders or continuation of Service (the amount of the
deposit required will be subject to the mutual agreement of the parties, but in
no case shall equal more than two (2) months of the MRC for all Services ordered
hereunder), provided, however, that as long as Customer makes its payments in a
timely fashion in accordance with this Agreement, Level 3 may not request such a
deposit. When Service to Customer is terminated, the amount of the deposit will
be credited to amounts owed by Customer and any remaining credit balance will be
refunded.
2.3 CUSTOMER PREMISES. Customer will allow access to the Customer Premises to
the extent reasonably necessary for ▇▇▇▇▇ ▇ to install and maintain Facilities.
All such access will be subject to Customer's security procedures. Customer will
be responsible for providing and maintaining, at its own expense, the level of
power, heating and air conditioning necessary to maintain the proper environment
for Facilities on the Customer Premises, and shall reimburse Level 3 for the
reasonable cost of repairing or replacing any Facilities damaged or destroyed as
a direct result of Customer's failure to do so.
2.4 FACILITIES. Except as otherwise agreed, title to all Facilities shall remain
with Level 3. Except in cases of emergency, Customer shall not, and shall not
permit others to, rearrange, disconnect, remove, repair, or otherwise tamper
with any Facilities, without the prior written consent of Level 3. Customer
agrees to allow Level 3 to remove the Facilities from the Customer Premises:
(A) after termination, expiration or cancellation of the Service Term in
connection with which the Facilities were used; or
(B) for repair, replacement or similar correction, subject to the Service Levels
set forth in Exhibit D hereto.
2.5 INITIAL CUSTOMER ORDER AND ACCEPTANCE. Customer hereby submits, and Level 3
hereby accepts, a Customer Order for the Services set forth in Exhibit A
attached hereto and incorporated herein by this reference. The Service Term for
all of the Services listed in Exhibit A shall be three (3) years from the
Service Commencement Date. The Customer Commit Date and pricing for such
Services is set forth in Exhibit A. The monthly recurring charges for the
initially ordered Services shall be as stated in Exhibit A for the first year of
the Term, and shall thereafter be subject to adjustment as stated in Section 3.7
hereof. Customer shall be entitled to postpone (without penalty) the Service
Commencement Date with respect to the Services listed in Exhibit A by no more
than thirty (30) days for each circuit listed.
2.6 ON-NET SERVICES. "On-Net Services" shall mean Services delivered entirely
within and over Level 3's owned network, including without limitation, all
Services set forth in the Initial Service Order attached as Exhibit A hereto and
(3)Center Colocation, as described in Exhibit B attached hereto. With respect to
any subsequent Customer Orders during the Term of this Agreement, Level 3 will
provide such additional Services as On-Net Services if and to the extent that
Level 3 has existing facilities which would allow it to do so.
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2.7 TECHNOLOGY UPGRADE AND SERVICE PORTABILITY. Customer shall have the right to
change intercity Services that are delivered entirely on Level 3's owned network
("Long Haul On-Net Services") purchased under this Agreement to alternative Long
Haul On-Net Services from ▇▇▇▇▇ ▇, provided, however, that the total monthly
recurring charges (as set forth herein or as otherwise agreed by the parties) of
all such alternative Long Haul On-Net Services is at least equal to the monthly
recurring charges of the original Long Haul On-Net Services which they replace.
Pursuant to this Section, Customer may replace existing Long Haul On-Net
Services with alternate Long Haul On-Net Services (including converting (3)Link
Private Line Services to wavelength services) or may substitute one circuit of
Long Haul On-Net Service for another circuit or circuits of Long Haul On-Net
Services.
SECTION 3. BILLING AND PAYMENT
------------------------------
3.1 COMMENCEMENT OF BILLING. Upon installation and testing of the Service
ordered in any Customer Order, Level 3 will deliver a Connection Notice to
Customer. Upon receipt of the Connection Notice, Customer shall have a period of
seventy two (72) hours to confirm that the Service has been installed and is
properly functioning. If Customer discovers defects in the Service, Customer may
reject the Connection Notice by written notice to Level 3 (which notice may be
in the form of an electronic mail delivered to Level 3's designated address). If
Customer has not delivered written notice rejecting the Connection Notice within
such 72-hour period, billing shall commence on the Service Commencement Date,
regardless of whether Customer has procured services from other carriers needed
to operate the Service.
3.2 PAYMENT OF INVOICES.
(A) Invoices are delivered monthly. ▇▇▇▇▇ ▇ bills in advance for Service to be
provided during the upcoming month, except for charges which are dependent upon
usage of Service, which are billed in arrears. Billing for partial months is
prorated based on a calendar month. All invoices are due thirty (30) days after
the receipt of invoice. Past due amounts, other than amounts subject to a
reasonable dispute, bear interest at a rate of 1.5% per month (or the highest
rate allowed by law, whichever is less) beginning from the date due until paid
in full. The applicable Level 3 circuit ID must be referenced on all invoices in
order for the document to be processed for payment.
(B) Customer shall have the right to reasonably dispute any charges included on
Level 3 invoices. In the event of any such dispute, the portion of the invoice
which is undisputed shall be paid as provided above. Customer shall have the
right to withhold payment of any reasonably disputed amount, provided that
Customer gives Level 3 written notice of the amount and reason for the dispute
within sixty (60) days after receipt of the invoice on which the disputed
charges first appeared. In the event that the disputed item is resolved in favor
of ▇▇▇▇▇ ▇, then interest on the unpaid disputed amount shall be due and owing
from the date upon which such payment was originally due.
3.3 TAXES AND FEES. Level 3's quoted rates do not include taxes. Customer shall
be responsible for and shall pay all taxes, including sales, use, excise, gross
receipts, value added, access, bypass, franchise, telecommunications,
consumption, specifically imposed on or based on the provision, sale or use of
the Service, including taxes imposed directly on Level 3. Customer shall not be
responsible for payment of taxes which are based on Level 3's net income. In the
event that Customer believes that, with respect to the Service provided
hereunder, Customer is tax exempt, Customer shall submit to Level 3 a properly
executed exemption certificate or other document legally sufficient to prove
exemption from taxes under applicable law. If Level 3 believes that, with
respect to the Service provided hereunder, Customer's exemption certifications
are not applicable, Level 3 shall provide written notification of the denial
along with the identification of the relevant jurisdiction imposing the taxes.
Customer shall be responsible for maintaining its tax exempt status and if such
status should change during the term of this Agreement, Customer shall be
responsible for providing Level 3 with written notice of such change in
Customer's taxable status.
3.4 REGULATORY AND LEGAL CHANGES. In the event of any change in applicable law,
regulation, decision, rule or order that materially increases the costs or other
terms of delivery of Service, ▇▇▇▇▇ ▇ and Customer will negotiate regarding the
rates to be charged to Customer to reflect such increase in cost and, in the
event that the parties are unable to reach agreement within sixty (60) days
after Level 3's delivery of written notice requesting renegotiation, then (a)
Level 3 may pass such increased costs through to Customer, and (b) if Level 3
passes on such increased costs, Customer may thereafter terminate the affected
Customer Order without termination liability by delivering written notice of
termination no later than sixty (60) days after the effective date of the rate
increase (which written notice shall specify a future date selected by Customer
for termination of the affected Service), and the Revenue Commitment shall be
reduced by the price for such Customer Order.
3.5 TERMINATION CHARGES. Unless otherwise provided herein, in the event that
Customer cancels a Customer Order, in whole or in part, or all or part of a
Customer Order is cancelled by ▇▇▇▇▇ ▇ due to a failure of Customer to comply
with this Agreement, Customer shall be responsible for the payment of
termination charges. The termination
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charge shall be the sum of the amount set forth in paragraph (A) or (B) below,
as applicable:
(A) For Terminations Prior to the Receipt of a Connection Notice: The amount
which is the greater of:
1. any actual third party cancellation/termination charges and
other reasonable and actual Level 3 out of pocket expenses directly
related to the installation and/or cancellation of Service, or
2. as the case may be:
(i) [**] monthly recurring charges for the
cancelled Service if written notice of cancellation is
received by Level 3 more than five (5) business days prior to
the Customer Commit Date; or
(ii) [**] monthly recurring charges for the
cancelled Service if written notice of cancellation is
received by Level 3 five (5) business days or less prior to
the Customer Commit Date.
(B) For Terminations After Receipt of a Connection Notice: The amount which is
the greater of:
1. any actual third party cancellation/termination charges and
other reasonable and actual Level 3 out of pocket expenses directly
related to the installation and/or termination of Service; or
2. [**] of the unpaid monthly recurring charges that would
have been incurred for the Service for months 1-12 of the Service Term,
plus [**] of the unpaid monthly recurring charges that would have been
incurred for the Service for months 13 through the end of the Service
Term.
Notwithstanding the foregoing, no termination charge shall be assessed in the
event that Customer cancels Service under Section 4.3 hereof, or in the event
that Customer terminates this Agreement as a result of a material, uncured
default by Level 3. In the event that Customer terminates all or part of a
Service Order after delivery of a Connection Notice, Customer shall specify the
date upon which Services will be terminated (which shall in no event be sooner
than thirty (30) days following delivery of written notice of termination of
Service). Customer shall be responsible for the payment of all charges for the
Service through the effective date of termination of Service.
3.6 REVENUE COMMITMENT. During the Term, following a ramp period during which
the initially ordered Services listed in Exhibit A shall be installed (the "Ramp
Period"), Customer agrees that the monthly recurring charges for On-Net Services
delivered hereunder will equal or exceed the following amounts (each a "Revenue
Commitment"):
"Contract Year" Revenue Commitment
-------------------------------------------------------
1-2 [**] per month
3 [**] every six months
In addition, Customer agrees to an additional Revenue
Commitment of [**], which may be satisfied through the
purchase of On-Net Services during the Term of the Agreement;
provided, however, that any shortfall (as described in
paragraph (B) below) for failure to meet such additional
Revenue Commitment shall be invoiced only at the end of
Contract Year 3.
(A) A Contract Year is measured from and after the end of the Ramp Period; thus,
Contract Year 1 begins on the date the Ramp Period ends and ends one year
thereafter.
(B) The Revenue Commitment is a "take-or-pay" commitment; at the end of the
applicable period (monthly during the first two Contract Years, and every six
months during the last Contract Year), Level 3 will invoice Customer and
Customer agrees to pay ▇▇▇▇▇ ▇, in addition to all invoiced charges for the
Service then due and owing, for the deficiency (if any) between the charges due
for Customer's actual usage of On-Net Services for the particular period and the
Revenue Commitment. The Revenue Commitment shall be satisfied once Customer's
total payments for On-Net Services reaches [**], and upon Customer having made
such total payments, the Revenue Commitment will terminate, even if a Contract
Year has not ended.
(C) In determining whether the Revenue Commitment has been satisfied, Customer's
monthly payments for a certain STM-1 of Transoceanic Private Line services
provided pursuant to a separate agreement shall be included.
3.7 [**]
[**] Confidential Treatment Requested
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SECTION 4. DISCONTINUANCE OF CUSTOMER ORDERS
--------------------------------------------
4.1 DISCONTINUANCE OF CUSTOMER ORDER BY LEVEL 3. Level 3 may discontinue Service
without liability if Level 3 is prevented by applicable law from continuing
delivery of Service. Such termination or discontinuation will relieve Customer
of all payment obligations to ▇▇▇▇▇ ▇ for Services not received. In such event,
Level 3 will use its best efforts to provide as much notice as possible prior to
any such termination or discontinuation. In addition, ▇▇▇▇▇ ▇ may terminate
delivery of Service without liability if Customer:
(A) fails to pay or reasonably dispute pursuant to the provisions of Section 3.2
any past due balance for Service within ten (10) days after receipt of written
notice from Level 3;
(B) violates any applicable law, rule, regulation or policy of any government
authority related to Service, or makes a material misrepresentation to Level 3
in connection with the ordering or delivery of Service; or
(C) fails to cure its breach (other than a payment breach, which is addressed in
(A) above) of this Agreement or any Customer Order within thirty (30) days after
receipt of written notice thereof provided by Level 3 or (for breaches that
cannot be cured within thirty (30) days) begins to cure within thirty (30) days
and diligently pursues cure on a timely basis thereafter.
4.2 EFFECT OF DISCONTINUANCE. Upon Level 3's discontinuance of Service under
Section 4.1(A) through (D) above, ▇▇▇▇▇ ▇ may, in addition to all other remedies
that may be available to Level 3 at law or in equity, assess and collect from
Customer any applicable termination charge calculated in accordance with Section
3.7.
4.3 DISCONTINUANCE OF CUSTOMER ORDER BY CUSTOMER.
(A) Except with respect to Services (or a portion thereof) which are local loop
services ("Off-Net Local Loop Services"), if Level 3's installation of Service
is delayed for more than twenty (20) business days beyond the Customer Commit
Date (except to the extent caused by a Force Majeure Event), Customer may (but
only prior to the delivery of the Connection Notice for such Service) terminate
and discontinue the affected Service upon written notice to Level 3 and without
payment of any termination charge and the Revenue Commitment will be reduced
accordingly.
(B) Customer may terminate and discontinue all affected Services (excluding
Unprotected Service) prior to the end of the Service Term without payment of any
applicable termination charge if: (i) such Service is Unavailable (as defined
below) on two or more separate occasions of more than eight (8) hours each in
any thirty (30) day period, and (ii) following written notice thereof from
Customer to ▇▇▇▇▇ ▇, the same Service is Unavailable for more than twelve (12)
hours at any time within the twelve (12) month period immediately following said
notice. For purposes of the foregoing, "Unavailable" shall mean an interruption
in Service, except for any interruption which is caused by a Force Majeure Event
or which is the result of scheduled maintenance for which Customer has been
notified in advance; provided, however that Customer may terminate affected
Service without any liability if such Force Majeure Event persists for longer
than one continuous week or longer than an aggregate of twenty days over any one
year period. The duration of any interruption will commence when Customer
reports an outage to the Level 3 Customer Service and Support Organization
(1-877-4LEVEL3) and will end when the Service is operative.
(C)Customer may also terminate delivery of Service without liability if Level 3:
(1) violates any law, rule, regulation or policy of any government
authority related to Service, or makes a material misrepresentation to Customer
in connection with the ordering or delivery of Service, which violation or
material misrepresentation (i) is not cured by Level 3 within thirty (30) days
after written notice thereof from Customer, and (ii) materially and adversely
affects the operation or Customer's use of the affected Service;
(2) fails to cure its breach of this Agreement or any Level 3 Order
within thirty (30) days after written notice thereof provided by Customer; or
(3) files bankruptcy, for reorganization, liquidation or insolvency, or
fails to discharge an involuntary petition therefore within sixty (60) days or
makes an assignment for the benefit of creditors.
SECTION 5. LIABILITIES
----------------------
5.1 REMEDIES. Level 3 provides specific remedies regarding installation and
performance of Service as set forth in "Service Levels" contained in each
Customer Order. In the event of a failure to deliver Service in accordance with
the Service Levels, Customer's sole remedies are contained in (a) the Service
Levels applicable to the affected Service, or (b) Section 4.3(B).
Notwithstanding any other provision hereof, subject to Section 6.6, neither
party shall be liable for any indirect, incidental, special, consequential,
exemplary or punitive damages (including but not limited to damages for lost
profits, lost revenues or the cost of procuring replacement services) arising
out of the performance or failure to perform under any Customer Order.
5.2 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED HEREIN, LEVEL 3 MAKES
NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY
OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET
FORTH IN ANY APPLICABLE SERVICE LEVELS.
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SECTION 6. GENERAL TERMS
------------------------
6.1 FORCE MAJEURE. Neither party shall be liable, nor shall any credit allowance
or other remedy be extended, for any failure of performance or equipment due a
Force Majeure Event.
6.2 ASSIGNMENT AND RESALE. Neither party may assign its rights and obligations
under a Customer Order without the prior written consent of the other party,
which will not be unreasonably withheld. Notwithstanding the foregoing, either
party may assign this Agreement and all Customer Orders submitted and accepted
pursuant hereto to an Affiliate or to any purchaser of all or substantially all
of the assets of Customer. Customer may resell the Service to third parties,
provided that Customer agrees to indemnify, defend and hold Level 3 harmless
from claims made against Level 3 by such third parties relating to the Service.
6.3 NOTICES. All notices given hereunder shall be sent to the addresses set
forth below, or at such other addresses as a party may designate in writing to
the other party. Except as otherwise set forth herein, all notices, requests,
consents and other communications under this Agreement shall be in writing and
shall be deemed to have been delivered on the date when hand delivered or three
(3) days after deposit in the mail when sent by US Mail, postage prepaid, by
certified mail, return receipt requested, or on the day after being sent when
sent by overnight delivery service.
To: ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇ Communications, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Contract Administration
To: Customer
SAVVIS Communications Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Technology Officer
With a copy to:
SAVVIS Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
All invoices shall be sent to:
SAVVIS Communications Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Carrier Accounts Payable
6.4 APPLICATION OF TARIFFS. Level 3 may elect or be required to file
tariffs with the appropriate regulatory agency respecting the delivery of
certain Service. In the event that such tariffs are filed respecting Service
ordered by Customer, then (to the extent such provisions are not inconsistent
with the terms hereof or in the Customer Order) the terms set forth in the
applicable tariff shall govern Level 3's delivery of, and Customer's consumption
or use of, such Service.
6.5 CONTENTS OF COMMUNICATIONS. Level 3 shall have no liability or
responsibility for the content of any communications transmitted via the
Service, and Customer shall defend, indemnify and hold Level 3 harmless from any
and all claims (including claims by governmental entities seeking to impose
penal sanctions) related to such content.
6.6 INTELLECTUAL PROPERTY RIGHTS. Level 3 shall indemnify, defend and
hold Customer, its officers, directors, and employees ("Indemnified Parties")
harmless from any claim, loss, damage, expense, action, cause of action or
liability (including court costs and reasonable attorney's fees) for
intellectual property infringement brought against
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Indemnified Parties by a non-Affiliate third party and arising from or directly
related to Level 3's delivery or Customer's use of any Services, materials,
equipment, facilities or other assets provided by ▇▇▇▇▇ ▇ under this Agreement;
except that Level 3 shall not have any indemnification obligation under this
Section to the extent such claim arises out of or is related to (i) modification
of the Services or Facilities by Customer, its employees, agents,
representatives, contractors or customers, (ii) the combination of the Services
or Facilities with Customer's services or facilities, (iii) Customer's use of
the Services or Facilities for a purposes other than as intended, or (iv)
Customer's negligence or willful misconduct.
6.7 PUBLICITY AND DISCLOSURE. Neither party shall issue any publication or press
release relating to any contractual relationship between Level 3 and Customer,
except as may be required by law or agreed between the parties.
6.8 ENTIRE UNDERSTANDING. This Agreement, including any Customer Orders executed
hereunder, constitute the entire understanding of the parties related to
Service. This Agreement shall be governed and construed in accordance with the
laws of the state of Colorado.
6.9 NO WAIVER. No failure by either party to enforce any rights hereunder shall
constitute a waiver of such right(s).
6.10 ACCEPTABLE USE POLICY. Customer's use of Service shall at all times comply
with Level 3's then-current Acceptable Use Policy and Privacy Policy, as
reasonably amended by Level 3 from time to time, which are available through
Level 3's web site at ▇▇▇.▇▇▇▇▇▇.▇▇▇. If any change in the Level 3 Acceptable
Use Policy materially adversely affects Customer's ability to use or resell the
Services, Customer may terminate affected Services with no termination charge or
other liability to Level 3. Level 3 will notify Customer of complaints received
by Level 3 regarding each incident of alleged violation of Level 3's Acceptable
Use Policy by Customer or third parties that have gained access to the Service
through Customer. Customer agrees that it will promptly investigate all such
complaints and take all necessary actions to remedy any actual violations of
Level 3's Acceptable Use Policy. Level 3 may identify to the complainant that
Customer, or a third party that gained access to the Service through Customer,
is investigating the complaint and may provide the complainant with the
necessary information to contact Customer directly to resolve the complaint.
Customer shall identify a representative for the purposes of receiving such
communications. Provided that such installation does not materially and
adversely affect the Service, Level 3 reserves the right to install and use, or
to have Customer install and use, any appropriate devices, at Level 3's expense,
to prevent violations of its Acceptable Use Policy, including devices designed
to filter or terminate access to Service.
6.11 SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable under applicable law, said provision shall be ineffective to the
extent of such invalidity only, without in any way affecting the remaining
provisions of this Agreement and the Parties hereby agree to negotiate in good
faith with respect to any such invalid or unenforceable provision to the extent
necessary to render it valid and enforceable.
6.12 NO JOINT VENTURE. Nothing in this Agreement shall be construed to
constitute or create a joint venture, partnership or formal business
organization of any kind and the rights and obligations of each party shall be
only those expressly set forth herein. Neither party shall have the authority to
bind the other, and neither party assumes any liability of the other party.
6.13 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together will
constitute one and the same instrument.
▇▇▇▇▇ ▇ COMMUNICATIONS, LLC SAVVIS COMMUNICATIONS CORPORATION
BY:/s/ ▇▇▇▇ ▇. ▇▇▇▇ BY: /s/ Lane ▇. ▇▇▇▇▇▇▇▇▇▇
TITLE: VP & General Counsel TITLE: Acting General Counsel and VP
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EXHIBIT A
INITIAL SERVICE ORDER AND PRICING
---------------------------------
[ATTACHED AT BACK]
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EXHIBIT B
(3)CENTER(SM) COLOCATION
1. GRANT OF LICENSE. Customer is granted the right to occupy the Colocation
Space identified in a Customer Order during the Service Term, except as
otherwise provided in these Terms. Customer may submit multiple Customer Orders
requesting use of Colocation Space in multiple Level 3 facilities, each of which
shall be governed by the terms hereof. Level 3 retains the right to access any
Colocation Space for any legitimate business purpose at any time.
2. USE OF COLOCATION SPACE. Customer shall be permitted to use the Colocation
Space only for placement and maintenance of communications equipment. Customer
may access the Colocation Space (and the facility within which the Colocation
Space is located for the sole purpose of accessing the Colocation Space) twenty
four (24) hours per day, seven (7) days per week; subject to any and all rules,
regulations and access requirements imposed by Level 3 governing such access.
Customer hereby agrees, within six (6) months of the Service Commencement Date
for Colocation Space, to use the Colocation Space for placement and maintenance
of communications or Internet access equipment. Level 3 may, upon forty five
(45) days' written notice, reclaim any portion of the Colocation Space not being
used within such six (6) month period. Customer shall surrender such recaptured
Colocation Space and the monthly recurring charges shall be appropriately
reduced. No refunds shall be made to Customer regarding recaptured Colocation
Space; the Revenue Commitment, however, shall be reduced to deduct the monthly
recurring charges related to Colocation Space which is recaptured pursuant to
this provision.
3. ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇ ▇ shall perform janitorial services, environmental
systems maintenance, power plant maintenance and other actions as are reasonably
required to maintain the facility in which the Colocation Space is located in a
condition which is suitable for the placement of communications equipment. Level
3 shall maintain the facility in which the Colocation Space is located (but
shall not be obligated to maintain the Colocation Space itself) with a relative
humidity in the range of 47.5 to 52.5% and a maximum temperature of 78 degrees.
Customer shall maintain the Colocation Space in an orderly and safe condition,
and shall return the Colocation Space to Level 3 at the conclusion of the
Service Term set forth in the Customer Order in the same condition (reasonable
wear and tear excepted) as when such Colocation Space was delivered to Customer.
EXCEPT AS EXPRESSLY STATED HEREIN OR IN ANY CUSTOMER ORDER, THE COLOCATION SPACE
SHALL BE DELIVERED AND ACCEPTED "AS IS" BY CUSTOMER, AND NO REPRESENTATION HAS
BEEN MADE BY LEVEL 3 AS TO THE FITNESS OF THE SPACE FOR CUSTOMER'S INTENDED
PURPOSE.
4. RELEASE OF LANDLORD. If and to the extent that Level 3's underlying leases so
require (but only if they so require) Customer hereby agrees to release the
landlord (and its agents, subcontractors and employees) from all liability
relating to Customer's access to the facility and Customer's use and/or
occupancy of the Colocation Space.
5. SECURITY. Level 3 will provide and maintain in working condition card
reader(s), scanner(s) and/or other access device(s) as selected by ▇▇▇▇▇ ▇ for
access to the colocation area of a facility. Customer shall under no
circumstances "prop open" any door to, or otherwise bypass the security measures
Level 3 has imposed for access to, the colocation area. Level 3 will provide a
locking device on Customer's Colocation Space, which Customer shall be solely
responsible for locking and/or activating such device. In the event that
unauthorized parties gain access to the facility, colocation area and/or the
Colocation Space through access cards, keys or other access devices provided to
Customer, Customer shall be responsible for any damages caused by such parties.
Customer shall be responsible for the cost of replacing any security devices
lost or stolen after delivery thereof to Customer. In the event Customer has
reason to believe that an unauthorized party has gained access to the Colocation
Space, Level 3 will, at Customer's request, make video surveillance records of
the colocation area reasonably available to Customer for viewing by Customer in
the presence of a Level 3 employee. In addition, ▇▇▇▇▇ ▇ will provide Customer
with a copy of the access logs for the colocation area and/or the facility, as
applicable, upon Customer's prior written request.
6. PROHIBITED ACTIVITIES. Customer shall abide by any posted or otherwise
communicated rules relating to use of, access to, or security measures
respecting the facility, colocation area and/or the Colocation Space. Customer's
rights of access and use will be immediately terminated in the event Customer or
any of its agents or employees are in Level 3's Gateway with any firearms,
illegal drugs, alcohol or are engaging in any criminal activity, eavesdropping
or foreign intelligence. Persons found engaging in any such activity or in
possession of the aforementioned prohibited items will be immediately escorted
from the facility.
7. TERMINATION OF USE. Level 3 shall have the right to terminate Customer's use
of the Colocation Space or the Service delivered therein in the event that: (a)
Level 3's rights to use the facility terminates or expires for any reason; (b)
Customer is in default hereof; (c) Customer makes any material alterations to
the Colocation Space without first obtaining the written consent of Level 3; or
(d) Customer allows personnel or contractors to enter the facility, colocation
area and/or the Colocation Space who have not been approved by Level 3 in
advance. With
9
respect to items (b), (c) and (d), unless (in Level 3's reasonable opinion)
Customer's actions interfere or have the potential to interfere with other ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇ shall provide Customer a written notice and a ten (10) day
opportunity to cure before terminating Customer's rights to the Colocation
Space. With respect to item (a) Level 3 shall promptly provide Customer written
notice upon learning that its rights to use the facility are reasonably likely
to terminate or expire for any reason and shall immediately provide Customer
written notice upon receiving notice that its rights to use the facility have
terminated or expired or will do so.
8. REMOVAL OF EQUIPMENT. Within three (3) days following the expiration or
termination of the Service Term for any Colocation Space, Customer shall remove
all Customer equipment from the Colocation Space. In the event Customer fails to
remove the equipment within such three (3) business day period, Level 3 may
disconnect, remove and dispose of Customer's equipment without prior notice.
Customer shall be responsible for any costs and expenses incurred by ▇▇▇▇▇ ▇
resulting from Level 3's disconnection, removal, disposal and storage of
Customer's equipment, for which Customer agrees to pay such costs and expenses
and all other charges due and owing by Customer to ▇▇▇▇▇ ▇ under these Terms
prior to ▇▇▇▇▇ ▇ returning any Customer equipment still in Level 3's possession.
Level 3 shall not be liable for any loss or damage incurred by Customer arising
out of Level 3's disconnection, removal, storage or disposal of Customer's
equipment.
9. SUBLICENSES. Customer may sublicense the use of Colocation Space under the
following conditions: (a) all proposed sublicensees must be approved, in
writing, by ▇▇▇▇▇ ▇ in Level 3's sole discretion, except Customer may sublicense
the use of the Colocation Space to an Affiliate of Customer upon prior written
notice to Level 3; (b) Customer hereby guarantees that all such parties shall
abide by the Agreement; (c) Customer shall indemnify, defend and hold Level 3
harmless from all claims brought against Level 3 arising from any act or
omission of any sublicensee or its agents; and (d) any such party shall be
considered Customer's agent and all of its acts and omissions shall be
attributable to Customer for the purposes of this Agreement. In the event
Customer sublicenses use of the Colocation Space without Level 3's prior written
approval, ▇▇▇▇▇ ▇ may upon ten (10) days' written notice reclaim the sublicensed
portion of the Colocation Space. Customer shall surrender such recaptured
Colocation Space and shall be subject to termination charges associated with the
recaptured Colocation Space as provided in Section 3.5 of the Agreement, plus
reimbursement to Level 3 of the costs incurred by Level 3 in returning the
Colocation Space to a condition suitable for use by third parties. No refunds
shall be made to Customer regarding recaptured Colocation Space.
10. CHANGES.
(A) Level 3 reserves the right to change (at Level 3's cost) the location or
configuration of the Colocation Space licensed to Customer within the Level
3 facility; provided that Level 3 shall not arbitrarily require such
changes. Level 3 and Customer shall work in good faith to minimize any
disruption in Customer's services that may be caused by such changes in
location or configuration of the Colocation Space.
(B) Unless otherwise agreed in writing by the parties, in the event any Customer
Order for Colocation Space is altered (including, without limitation, any
changes in the configuration or build-out of the Colocation Space) at
Customer's request after submission and acceptance by Level 3 that results
in a delay of Level 3's delivery of such Colocation Space to Customer,
billing for such Colocation Space shall commence no later than the original
Customer Commit Date.
11. INSURANCE. Prior to storage of equipment or occupancy by Customer and during
the Service Term, Customer shall procure and maintain the following minimum
insurance coverage: (a) Workers' Compensation in compliance with all applicable
statutes of appropriate jurisdiction (including Employer's Liability with limits
of $500,000 each accident); (b) Commercial General Liability with combined
single limits of $1,000,000 each occurrence; and (c) "All Risk" Property
insurance covering all of Customer's personal property located in the Gateway.
Customer acknowledges that it retains the risk of loss for, loss of (including,
without limitation, loss of use), or damage to, Customer equipment and other
personal property located in the ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇. Customer further acknowledges
that Level 3's insurance policies do not provide coverage for Customer's
personal property located in the ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇. Customer shall, at its option,
maintain a program of property insurance or self-insurance covering loss of or
damage to its equipment and other personal property located in the Level 3
Gateway. Customer's Commercial General Liability policy shall be endorsed to
show Level 3 (and any underlying property owner, as requested by Level 3) as an
additional insured. Customer shall waive and/or cause its insurance carriers to
waive all rights of subrogation against ▇▇▇▇▇ ▇, which will include, without
limitation, an express waiver in all insurance policies. Customer shall furnish
Level 3 with certificates of insurance demonstrating that Customer has obtained
the required insurance coverages prior to use of the Colocation Space or the
storage of equipment in the facility. Such certificates shall contain a
statement that the insurance coverage shall not be materially changed or
cancelled without at least thirty (30) days' prior written notice to Level 3.
Customer shall require any contractor entering the facility on its behalf to
procure and maintain the same types, amounts and coverage extensions as required
of Customer above.
10
12. REMOTE HANDS. Customer may order and pay for Level 3 to perform certain
limited maintenance services ("Remote Hands") on Customer's equipment within the
Colocation Space, which shall be performed in accordance with Customer's
directions. "Remote Hands" maintenance services includes power cycling
equipment. Level 3 shall in no event be responsible for the repair,
configuration or tuning of equipment, or for installation of Customer's
equipment (although Level 3 will provide reasonable assistance to Customer in
such installation at Customer's request).
13. STORAGE OF CUSTOMER EQUIPMENT. Level 3 may, at its option, agree to store
equipment which Customer intends to colocate in Customer's Colocation Space for
not more than forty-five (45) days prior to the scheduled Colocation Service
Commencement Date. Storage of such equipment is purely incidental to the
Services ordered by Customer and Level 3 will not charge Customer a fee for the
same. No document delivered as part of such storage shall be deemed a warehouse
receipt. Absent Level 3's gross negligence or intentional misconduct, Level 3
shall have no liability to Customer or any third party arising from such
storage. In the event Customer stores equipment for longer than forty-five (45)
days, ▇▇▇▇▇ ▇ may, but shall not be obligated to, return Customer's equipment to
Customer without liability, at Customer's sole cost and expense.
14. PROMOTIONAL SIGNAGE. Customer may display a single promotional sign with
Customer's name and/or logo on the outside of any Customer private suite
Colocation Space; provided such signage does not exceed 8 inches by 11 inches.
All other promotional signage is prohibited.
15. POWER. In the event the power utility increases the price paid by Level 3
for power provided to any Colocation Space, Level 3 may pass-through to Customer
such price increase upon prior written notice to Customer.
11
EXHIBIT C
(3)LINK(SM) PRIVATE LINE SERVICE
--------------------------------
1. SERVICES FROM OTHERS. Where necessary for the interconnection of (3)Link(SM)
Private Line Service with services provided by others, Customer will provide
Level 3 with circuit facility assignment information, firm order commitment
information and the design layout records necessary to enable Level 3 to make
the necessary cross-connection between the (3)Link(SM) Private Line Service and
Customer's designated carrier. Any delay by Customer in providing such
information to Level 3 may delay Level 3's provision of the necessary
cross-connection. Notwithstanding any such delay in the provision of the
cross-connection, billing for the (3)Link(SM) Private Line Service shall
commence on the Service Commencement Date as provided in Section 3.1. ▇▇▇▇▇ ▇
may charge Customer non-recurring and monthly recurring cross-connect fees to
make such connection, as set forth on Exhibit A to the Agreement.
2. CONNECTION TO CUSTOMER PREMISES.
(A) Where (3)Link(SM) Private Line Service is being terminated Off-Net at the
Customer Premises through an Off-Net Local Loop to be provisioned by Level 3 on
behalf of Customer, the charges set forth in the Customer Order for such Service
assumes that such Service will be terminated at a pre-established demarcation
point or minimum point of entry (MPOE) in the building within which the Customer
Premises is located, as determined by the local access provider. Level 3 may
charge Customer additional non-recurring charges and/or monthly recurring
charges not otherwise set forth in the Customer Order for such Off-Net Service
where the local access provider determines that it is necessary to extend the
demarcation point or MPOE through the provision of additional infrastructure,
cabling, electronics or other materials necessary to reach the Customer
Premises. Level 3 will notify Customer of any additional non-recurring charges
and/or monthly recurring charges as soon as practicable after Level 3 is
notified by the local access provider of the amount of such charges.
(B) In addition, where (3)Link(SM) Private Line Service is being terminated
Off-Net at the Customer Premises through an Off-Net Local Loop to be provisioned
by Level 3 on behalf of the Customer, the charges and the Service Term set forth
in the Customer Order for such Service assumes that such Off-Net Local Loop can
be provisioned by ▇▇▇▇▇ ▇ through the local access provider selected by Level 3
(and/or Customer) for the stated Service Term. In the event Level 3 is unable to
provision such Off-Net Local Loop through the selected local access provider or
the selected local access provider requires a longer Service Term than that set
forth in the Customer Order, Level 3 reserves the right, regardless of whether
Level 3 has accepted the Customer Order, to suspend provisioning of such Off-Net
Local Loop and notify Customer in writing of any additional non-recurring
charges, monthly recurring charges and/or Service Term that may apply. Upon
receipt of such notice, Customer will have five (5) business days to accept or
reject such changes. If Customer does not respond to Level 3 within the five (5)
business day period, such changes will be deemed rejected by Customer. In the
event Customer rejects the changes (whether affirmatively or through the
expiration of the five (5) business day period), the affected Off-Net Local Loop
will be cancelled without cancellation or termination liability of either party.
12
EXHIBIT D
SERVICE LEVELS
--------------
The Services are subject to the following Service Levels, as applicable to the
particular Service as specified. In the event Level 3 does not achieve a
particular Service Level in a particular month, Level 3 will issue a credit to
Customer as set forth below upon Customer's request. To request a credit,
Customer must contact Level 3 Customer Service within sixty (60) days after the
end of the month for which credit is requested. Level 3 Customer Service may be
contacted by calling toll free in the U.S. 1-877-4LEVEL3 (▇-▇▇▇-▇▇▇-▇▇▇▇). In no
event shall the total amount of credits issued to Customer per month exceed the
non-recurring charges ("NRC") and monthly recurring charges ("MRC") for the
affected Service.
1. (3)CENTER(SM) COLOCATION SERVICE LEVELS. The following service levels are
applicable where Customer orders (3)Center(SM) Colocation.
(A) Installation Service Level. This Installation Service Level applies to
cabinet and private suite Colocation Space ordered in a Level 3 gateway
facility. Level 3 will exercise commercially reasonable efforts to install any
Colocation Space on or before the Customer Commit Date specified for such
Colocation Space. This Installation Service Level shall not apply to Customer
Orders which contain incorrect information supplied by Customer, Customer Orders
which are altered at Customer's request after submission and acceptance by ▇▇▇▇▇
▇, or Customer Orders which require ▇▇▇▇▇ ▇ to configure Colocation Space to
specifications other than Level 3's standard specifications for Colocation Space
(such standard specifications are available to Customer upon request). In the
event Level 3 does not meet this Installation Service Level for a particular
Colocation Space for reasons other than a Force Majeure Event, Customer will be
entitled to a service credit equal to the charges for one (1) day of the MRC for
the affected Colocation Space for each day of delay, up to a monthly maximum
credit of four (4) days.
(B) Power Service Level. The Availability Service Level for Level 3 provided
power to the Colocation Space is 99.99%. In the event of any power outage for
reasons other than Customer actions or omissions, Customer will be entitled to
receive a service credit equal to the charges for one (1) day of the MRC for the
affected Colocation Space (with a maximum of a one (1) day credit for all
outages in any twenty four (24) hour period).
(C) Remote Hands Response Time Service Level. The Response Time Service Level
for Remote Hands is as set forth below. This Response Time Service Level is
measured from the time Level 3 Customer Service receives and logs Customer's
request with all of the necessary information requested by Level 3 Customer
Service, until a Level 3 technician first calls Customer in response to the
request. In the event Level 3 does not meet the following Response Time Service
Level, Customer will be entitled to a service credit equal to the charges for
one (1) day of the MRC for the affected Colocation Space (with a maximum of a
one (1) day credit for all instances of delay in a day, with a total monthly
maximum credit of seven (7) days).
-----------------------------------
Service Level
------------------- -------------
Hours of Operation Response Time
(all times are
local time in the
affected facility)
------------------- ------------
7 a.m. to 7 p.m. 30 minutes
(M-F)
------------------- ------------
Off-hours, holidays 2 hours
& weekends
----------------------------------
2. (3)LINK(SM) PRIVATE LINE AND (3)LINK(SM) WAVELENGTH SERVICE LEVELS. The
following service levels are applicable where Customer orders (3)Link(SM)
Private Line Service or (3)Link(SM) Wavelength Service. (A) Installation Service
Level. (1) Level 3 will exercise commercially reasonable efforts to install any
(3)Link(SM) Private Line Service or (3)Link(SM) Wavelength Service on or before
the Customer Commit Date specified for the particular Service. This Installation
Service Level shall not apply to Customer Orders that contain incorrect
information supplied by Customer, Customer Orders that are altered at Customer's
request after submission and acceptance by Level 3. In the event ▇▇▇▇▇ ▇ does
not meet this Installation Service Level for a particular Service for reasons
other than an Excused Outage, Customer will be entitled to a service credit off
of the NRC and/or MRC for the affected Service as set forth in the following
tables:
13
For any (3)Link(SM) Private Line Service:
----------------------------------------------------------
Installation Delay Beyond Service Level Credit
Customer Commit Date
------------------------- ----------------------
1 - 5 business days Amount of NRC
------------------------- ----------------------
6 - 20 business days Amount of NRC plus
charges for one (1)
day of the MRC for
each day of delay
------------------------- ----------------------
21 + business days Amount of NRC plus one
(1) months' MRC
----------------------------------------------------------
For any (3)Link(SM) Wavelength Service:
--------------------------------------------------------
Installation Delay Beyond Service Level Credit
Customer Commit Date
------------------------- --------------------
1 - 5 business days 5% of the MRC
------------------------- --------------------
6 -20 business days 10% of the MRC
------------------------- --------------------
21 + business days 15% of the MRC
--------------------------------------------------------
(2) The Installation Service Level and associated credits set forth in
sub-Section (1) above shall not apply to Off-Net Local Loop Service, including,
without limitation, (3)Link(SM) Metropolitan Private Line (Off-Net) Service,
provisioned by Level 3 through a third party carrier for the benefit of
Customer. Level 3 will pass-though to Customer any installation service level
and associated credit (if applicable) provided to Level 3 by the third party
carrier for such Off-Net Local Loop Service.
(B) Availability Service Level for Protected (3)Link(SM) Private Line Service.
(1) The Availability Service Level for Protected (3)Link(SM) Private Line
Service delivered over Level 3's network is 99.99% for Protected Terrestrial
(3)Link(SM) Private Line Service and 99.9% for Protected Submarine (3)Link(SM)
Private Line Service. In the event that any Protected (3)Link(SM) Private Line
Service becomes unavailable (as defined below) for reasons other than an Excused
Outage, Customer will be entitled to a service credit off of the MRC for the
affected Service based on the cumulative unavailability of the affected Service
in a given calendar month as set forth in the following table.
-----------------------------------------------
Cumulative Service Level Credit
Unavailability
------------------------- --------------------
0 - 5 minutes No Credit
------------------------- --------------------
5:01 minutes - 45 minutes 5% of the MRC
------------------------- --------------------
45:01 minutes - 4 hours 10% of the MRC
------------------------- --------------------
4:01 - 8 hours 20% of the MRC
------------------------- --------------------
8:01 - 12 hours 30% of the MRC
------------------------- --------------------
12:01 - 16 hours 40% of the MRC
------------------------- --------------------
16:01 - 24 hours 50% of the MRC
------------------------- --------------------
24:01 + hours 100% of the MRC
------------------------------------------------
For purposes of this Section 15.2, "unavailable" or "unavailability" means the
duration of a break in transmission measured from the first of ten (10)
consecutive severely erred seconds ("SESs") on the affected Service until the
first of ten (10) consecutive non-SESs. An SES is a second with a bit error
ratio of greater than or equal to 1 in 1000.
(2) The Availability Service Levels and associated credits set forth in this
Section 15.2(B) shall not apply to Off-Net Local Loop Service, including,
without limitation, (3)Link(SM) Metropolitan Private Line (Off-Net) Service,
provisioned by Level 3 through a third party carrier for the benefit of
Customer. Level 3 will pass-though to Customer any availability service level
and associated credit (if applicable) provided to Level 3 by the third party
carrier for such Off-Net Local Loop Service.
(3) Without prejudice to Customer's right to service credits pursuant to
subsection (1) above, if the (3)Link(SM) Private Line Services are provided in
Germany, then the Availability Service Level for such (3)Link(SM) Metropolitan
Private Line (Off-Net) Service is 97.5% (based on an annual average) and
(3)Link(SM) Metropolitan Private Line (On-Net) Service is 99.9% (based on a
calendar month).
14
(C) Availability Service Level for Unprotected (3)Link(SM) Private Line Service
and (3)Link(SM) Wavelength Service. (1) In the event that any Unprotected
(3)Link(SM) Private Line Service or (3)Link(SM) Wavelength Service becomes
unavailable (as defined in Section 15.2(B) above) for reasons other than an
Excused Outage, Customer will be entitled to a service credit off of the MRC for
the affected Service based on the cumulative unavailability for the affected
Service in a given calendar month as set forth in the following table:
----------------------------------------------------
Cumulative Unavailability Service Level Credit
------------------------- --------------------
0 - 24 hours No Credit
------------------------- --------------------
24:01 - 30 hours 2.5% of the MRC
------------------------- --------------------
30:01 - 36 hours 5% of the MRC
------------------------- --------------------
36:01 - 42 hours 7.5% of the MRC
------------------------- --------------------
42:01 + hours 10% of the MRC
----------------------------------------------------
(2) The Availability Service Levels and associated credits set forth in this
Section 15.2(C) shall not apply to Off-Net Local Loop Service, including,
without limitation, (3)Link(SM) Metropolitan Private Line (Off-Net) Service,
provisioned by Level 3 through a third party carrier for the benefit of
Customer. Level 3 will pass-though to Customer any availability service level
and associated credit (if applicable) provided to Level 3 by the third party
carrier for such Off-Net Local Loop Service.
15
EXHIBIT A
---------
------------------------------------------------------------------------------------------------------------------------
▇ ▇▇▇ ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ V&H MILES DS0 MILES MONTHLY RECURRING CHARGE SERVICE COMMENCEMENT DATE
Cincinatti Indianapolis DS3 672 99 66528 [**] April 5, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ DS3 672 160 107520 [**] April 5, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OC3 2016 404 814464 [**] April 12, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ OC3 2016 203 409248 [**] April 12, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇ 2016 878 1770048 [**] April 19, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇. Louis OC3 2016 258 520128 [**] April 26, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ OC3 2016 191 385056 [**] May 3, ▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇ 2016 544 1096704 [**] May 3, 2002
Detroit Pittsburgh OC3 2016 220 443520 [**] May 13, 2002
Cleveland Pittsburgh OC3 2016 122 245952 [**] May 15, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ OC3 2016 344 693504 [**] August 1, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ OC3 2016 76 153216 [**] October 11, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OC3 2016 705 1421280 [**] October 25, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OC3 2016 883 1780128 [**] October 25, 2002
Los Angeles Phoenix OC3 2016 361 727776 [**] October 28, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ City OC3 2016 553 1114848 [**] November 30, 2002
Kansas City St. Louis OC3 2016 227 457632 [**] November 30, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OC3 2016 224 451584 [**] November 30, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ OC3 2016 182 366912 [**] November 30, 2002
New York Pittsburgh OC3 2016 314 633024 [**] November 30, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OC3 2016 144 290304 [**] November 30, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ OC3 2016 124 249984 [**] November 30, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ OC3 2016 308 620928 [**] November 30, 2002
Chicago Detroit OC3 2016 228 459648 [**] November 30, ▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ OC3 2016 718 1447488 [**] November 30, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ OC3 2016 563 1135008 [**] November 30, ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ OC3 2016 600 1209600 [**] November 30, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OC3 2016 154 310464 [**] November 30, 2002
Denver Salt Lake City OC3 2016 363 731808 [**] November 30, 2002
------------------------------------------------------------------------------------------------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
--------------------
----------------------------------------------
----------------------------------------------
[**] Confidential Treatment Requested
16
COLO MARKETS
EXHIBIT A
INITIAL SERVICE ORDER
--------------------------------------
AC POWER REQUIREMENTS (Amps)
--------------------------------------------------------------------------------
NUMBER OF
BOLD Indicates Synergy Site SERVICE COMMENCEMENT DATE CABINETS CAB 1 FEEDS CAB 2 FEEDS CAB 3 FEEDS
---------------------------------------------------------------------------------------------------------------
AUSTIN 01-Nov-02 2 20 0 NA
---------------------------------------------------------------------------------------------------------------
Cincinnati 01-Apr-02 3 15 0 0
---------------------------------------------------------------------------------------------------------------
Cleveland 01-May-02 3 15 0 0
---------------------------------------------------------------------------------------------------------------
Denver 01-Aug-02 2 15 0 NA
---------------------------------------------------------------------------------------------------------------
Detroit 01-May-02 3 15 0 0
---------------------------------------------------------------------------------------------------------------
Indianapolis 01-Apr-02 3 15 0 0
---------------------------------------------------------------------------------------------------------------
KANSAS CITY 01-Sep-02 3 20 0 0
---------------------------------------------------------------------------------------------------------------
PITTSBURGH 01-May-02 3 20 0 0
---------------------------------------------------------------------------------------------------------------
PORTLAND 01-Feb-03 3 20 0 0
---------------------------------------------------------------------------------------------------------------
Philadelphia 01-Oct-02 3 15 0 0
---------------------------------------------------------------------------------------------------------------
San ▇▇▇▇ 01-Jul-02 2 15 0 NA
---------------------------------------------------------------------------------------------------------------
-----------------------------------------
DC POWER REQUIREMENTS (AMPS)
(REDUNDANT FEEDS, EACH AT AMPERAGE SHOWN)
-----------------------------------------
CAB 1 FEEDS CAB 2 FEEDS CAB 3 FEEDS
-----------------------------------------
60 40 NA
50
-----------------------------------------
60 50 50
40
-----------------------------------------
60 50 50
40
-----------------------------------------
60 40 NA
50
-----------------------------------------
60 50 50
40
-----------------------------------------
60 50 50
40
-----------------------------------------
60 50 50
40
-----------------------------------------
60 50 50
40
-----------------------------------------
60 50 50
40
-----------------------------------------
60 50 50
40
-----------------------------------------
60 40 NA
50
-----------------------------------------
MRC NRC
TOTALS CABINETS 30 [**] [**]
TOTAL AC POWER
1st 15/20Amps* 11 [**] [**]
Addl 5Amps 0 [**] [**]
TOTAL DC POWER (A&B FEEDS)
40 Amp Feeds 11 [**] [**]
50 Amp Feeds 19 [**] [**]
60 Amp Feeds 11 [**] [**]
TOTAL [**] [**]
PRICING MRC NRC
CABINET (NO POWER) [**] [**]
[**] Confidential Treatment Requested
AC POWER
1st 15Amps [**] [**]
20 amp circuit [**] [**]
30amp circuit [**] [**]
* Synergy sites require 20A feed to rack-mounted UPS. Level 3 will allow Savvis
to purchase rack mounted UPS unit; Savvis would install and maintain the unit.
* AC Power sold as follows: 15amp circuits, 20amp circuits and 30amp circuits
DC POWER
1 Amp (A&B Feeds) [**] [**] [**]
* Any cab that has over 180 watt/sf of power will need to be approved by the
PRB.
SAVVIS REQUIREMENTS
** SAVVIS requires a standard 2 or 3 rack elevation (See Attached)
** Level 3 provides protected UPS AC power & generator back-up in all cities
** Level 3 Synergy cities without protected UPS power requires 20Amp AC feed to
Savvis-provided Powerware UPS within rack elevation.
** ▇▇▇▇▇ ▇ provides isolated DC grounding on a separate ground grid
** All DC power delivered on 6-Gauge wire to bottom of rack with 12 inch service
loop.
** All DC power delivered on separate A & B feed on redundant PDUs.
** Cable management tray provided (3/4") between equipment cabinets
** All relay equipment racks are grounded to the Isolated DC ground grid
** All AC power circuits Isolated to prevent ground loops between AC & DC
grounds
** Cable management provided supporting fiber access into the SAVVIS
configuration.
** Level 3 will deliver all OCx services to SAVVIS with a Line Build Out (LBO)
between -14.4 dBm and -19 dBm
** Level 3 will waive all cross connect charges when cross connects are needed
to support services Savvis has purchased from Level 3 (such as long hauls
and metro services).
[**] Confidential Treatment Requested
17
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CROSS CONNECT NA PRICING (SAME FLOOR ONLY)
~~PRICES ARE EFFECTIVE BEGINNING 11/12/01~~
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CATEGORY TYPE MRC NRC
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COLO TO COLO*
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CAT5e - 10/100 Ethernet [**] [**]
Coax [**] [**]
Gigabit Ethernet (fiber) [**] [**]
--------------------------------------------------------------------------------
CPA CROSS CONNECTS
--------------------------------------------------------------------------------
POTS/ DS0 [**] [**]
DS-1 [**] [**]
DS-3 [**] [**]
OC-N [**] [**]
-------------------------------------------------------------------------------
CPF
--------------------------------------------------------------------------------
Fiber pair [**] [**]
*per cable; for fiber XC, Sales must specify whether
the customer wants single-mode or multi-mode.
INTRA-MARKET COLOCATION CONNECTION FOR INTER-FLOOR PRICING PLEASE CONTACT
PRICING CAN BE FOUND ON THE THE CROSS CONNECT PRODUCT
PRIVATE LINE PRICING MATRIX. MARKETING TEAM.
--------------------------------------------------------------------------------
LEVEL ( )
--------------------------------------------------------------------------------
[**] Confidential Treatment Requested
18