EXHIBIT 10.16
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
AMENDMENT THREE
TO THE
MANAGED NETWORK AGREEMENT
BETWEEN
SPRINT COMMUNICATIONS COMPANY, L.P.
AND
BRIDGE DATA COMPANY
The Managed Network Agreement ("Agreement") between Sprint Communications
Company, L.P. ("Sprint") and Bridge Data Company ("Bridge"), having an effective
date of March 1, 1995, as amended, is hereby further amended as set forth below.
WHEREAS, Sprint and Bridge have previously entered into an Agreement for the
provision of managed network services; and
WHEREAS, Sprint and Bridge desire to amend the Agreement.
NOW THEREFORE, the parties mutually agree to the following:
1. Section 2. Contract Documents and Definitions. The following changes
are hereby made to the Attachments:
Attachment A is superseded in its entirety by the revised
Attachment A (Scope of Work) which is hereby incorporated into the
Agreement.
Attachment B is superseded in its entirety by the revised
Attachment B (Rates and Charges) which is hereby incorporated into
the Agreement.
Attachment E is superseded in its entirety by the revised
Attachment E (Performance Specifications) which is hereby
incorporated into the Agreement.
Attachment F (Facilities Services Agreement) is hereby
incorporated into the Agreement.
2. Section 3. Term and Extensions. Delete Paragraph (a) in its entirety
and replace with the following language:
(a) The initial term of this Agreement shall commence on the last
date shown on the signature page (Effective Date), and shall
continue in full force and effect through January 31, 1999
unless terminated in accordance with its provisions.
Bridge/Sprint Confidential -1- 1/26/96
3. Section 4. Termination by Bridge. Delete Paragraph (b) in its entirety
and replace with the following language:
(b) with liability to Sprint for the Products and Services
provided prior to such termination, plus an amount equal to
one hundred percent of the difference between the Minimum
Commitment and the actual charges invoiced for each remaining
contract year or any portion thereof.
4. Section 9. Minimum Commitment. Delete this Section in its entirety and
replace with the following language:
BRIDGE agrees to achieve the following minimum annual
commitments ("MAC") as follows:
For Bridge's domestic and international frame relay and
managed router services, the following MACs apply.
Contributing to this MAC are recurring charges for domestic
and international access channels (ports), PVCs' IPVCs' and
access line charges (including recurring Central Office
Connection charges and Access Coordination Fees), and monthly
equipment maintenance and management charges. The MAC is
calculated after the application of any discounts.
MAC for 1996: $4,100,000
MAC for 1997: $5,400,000
MAC for 1998: $5,400,000
For Bridge's domestic and international SprintNet X.25 service, the
following MACs apply. Contributing to this MAC are recurring charges
for domestic and international dedicated access facilities ("DAFs").
MAC for 1996: $1,550,000
MAC for 1997: $2,160,000
MAC for 1998: $2,160,000
Sprint commits to having Bridge's X.25 Collections Network fully
installed by June 1, 1996 under the following conditions:
a) Sprint has received all orders by February 1, 1996; and
b) Sprint's failure to meet this commitment is not due to
force majeure events as specified in Section 23 or
Bridge's failure to perform its responsibilities.
Bridge/Sprint Confidential -2- 1/26/96
If Sprint's failure to meet this commitment causes Bridge not to meet
its MAC for SprintNet X.25 service, then Sprint shall reduce Bridge's
1996 MAC for SprintNet X.25 service by the amount Sprint's failure to
meet the committed installation date causes Bridge not to meet the MAC.
If Bridge fails to achieve the MAC in any of the above contract years,
the amount by which Bridge fails to meet the MAC (the "shortfall")
shall carry over to the following contract year, thereby increasing the
following year's MAC by such shortfall amount. If Bridge fails to
achieve the MAC in 1998 (as it may be adjusted), then Sprint shall
extend the Term of the Agreement until total invoiced cumulative
recurring charges, net of credits, exceeds $19,750,000.
5. Section 22. Assignment. Revise this paragraph in its entirety and
replace with the following language:
Neither party may assign this Agreement or any rights or obligations
hereunder, without the prior written consent of the other party, which
the other party may grant or withhold in its sole discretion.
Notwithstanding the foregoing, either party may assign this Agreement
or any of all of its rights and obligations hereunder, to its parent,
any of its affiliates or subsidiaries upon notice to, but without the
consent of, the other party. Specifically, Bridge shall have the right
to assign the X.25 SprintNet Network in its entirety to any of its
affiliates or subsidiaries upon notice to Sprint. No assignment of this
Agreement shall relieve either party of any obligations thereunder. Any
attempted assignment in violation of this Section shall be void.
6. The following new Sections are hereby incorporated in the Agreement.
A. Section 32. Exclusive Provider.
Bridge agrees that Sprint shall be its exclusive provider of
frame relay services during the Term of this Agreement as long
as Sprint complies with the terms of this Agreement. As such,
Bridge shall award to Sprint one hundred percent (100%) of its
frame relay business. In the event that Bridge acquires a
company that has a term plan for the Products and Services
with another carrier, this provision will only apply to such
acquired company after the expiration of any existing term
plan.
B. Section 33. New Technology.
Sprint understands that Bridge has a substantial interest in
state of the art technologies that may offer efficient and
cost-
Bridge/Sprint Confidential -3- 1/26/96
effective solutions to Bridge's telecommunications
requirements. Bridge may request that Sprint provide a new
technology to Bridge that would serve as a replacement for
some of the Products and Services being provided by Sprint to
Bridge under this Agreement ("Replacement Service"). If Sprint
is unable to provide such Replacement Service under terms and
rates as favorable to Bridge as those offered through any bona
fide written offer to Bridge from a comparable service
provider, and such Replacement Service will materially improve
the performance and efficiency of Bridge's network, then
Sprint agrees that it will reduce Bridge's Minimum Annual
Commitment ("MAC") under this Agreement to the extent that
substituting a Replacement Service for the Products and
Services hereunder affects Bridge's ability to meet the MAC.
If Bridge or an affiliate of Bridge can provide a Replacement
Service under terms and rates more favorable than Sprint's,
then Sprint reserves the option to provide the transport and
equipment purchases, but agrees to reduce the MAC to the
extent that the decrease in management and maintenance caused
Bridge not to achieve the MAC.
Sprint shall have the right to have an independent third party
auditor examine any bona fide offer from a comparable service
provider to ensure that such bona fide offer is in fact
consistent with the terms as described by Bridge.
7. Implementation Schedule for Frame Relay service.
Sprint hereby agrees to escalate the implementation schedule under this
Agreement from forty-five (45) sites per month to one hundred (100)
sites per month for six (6) consecutive months. Bridge must provide
Sprint with the appropriate quantity of complete orders sixty (60) days
in advance of installation, and an implementation schedule to insure
that one hundred (100) sites are ready for installation in each of the
six (6) months.
8. Signing Credits.
In consideration for Bridge extending the Agreement for one additional
year, Sprint agrees that Bridge will receive the below credits to be
paid as follows:
$50,000 per month will be issued as a credit against the
invoices for July through December, 1996, as long as the
monthly
Bridge/Sprint Confidential -4- 1/26/96
recurring charges for all services is $500,000 per month or
greater, net of all discounts.
$50,000 per month will be issued as a credit against the
invoices for January through December, 1997, as long as the
monthly recurring charges for all services is $600,000 per
month or greater, net of all discounts.
$50,000 per month will be issued as a credit against the
invoices for January and February, 1998, as long as the
monthly recurring charges for all services is $625,000 per
month or greater, net of all discounts.
No credits shall be applied in any month in which Bridge does not
achieve the level of recurring charges required to receive the credits,
unless the failure to achieve the level of recurring charges is
directly attributable to Sprint's failure to meet the committed
implementation schedule, and Sprint's failure is not due to (i) force
majeure events as specified in Section 23 or (ii) Bridge's failure to
perform its responsibilities.
If Bridge terminates this Agreement for any reason prior to January 31,
1999, Bridge shall reimburse Sprint one hundred percent (100%) of the
amount paid to Bridge through the effective date of termination.
In no event will a credit issued in any given month exceed the monthly
billing for that month.
Credits to be applied under this section shall not exceed $1,800,000.
9. All other terms and conditions of the Agreement shall remain in full
force and effect, except as expressly stated herein.
IN WITNESS WHEREOF, the parties have executed this Amendment Three as of the
date of the last signature below.
Bridge/Sprint Confidential -5- 1/26/96
SPRINT COMMUNICATIONS CO., L.P. BRIDGE DATA COMPANY
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------------- ---------------------------------
Signature Signature
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
------------------------------------- ---------------------------------
Printed Name Printed Name
President, Business Sales & Marketing COO & President
------------------------------------- ---------------------------------
Title Title
3/1/96 2/22/96
------------------------------------- ---------------------------------
Date Date
Bridge/Sprint Confidential -5- 1/26/96
ATTACHMENT E
PERFORMANCE SPECIFICATIONS
SECTION 1 - DOMESTIC FRAME RELAY SERVICE LEVEL AGREEMENTS
1.1 Network Availability:*
Site Types A, B1, C1: 99.95%
Availability shall be measured end to end. Network availability
percentage is for sites located in the continental USA. Availability
figure assumes four hours scheduled maintenance for each month. For
sites with next day remedial hardware maintenance, the site
availability will be excluded form the network availability calculation
for 24 hours. If service is restored in 24 hours, the site will be
considered to have met its performance requirements for that period of
time. Availability is calculated based on manufacturer's statistics on
Mean-Time-Between-Failure ("MTBF").
*Site types are defined in Attachment A, Scope of Work
Components Included:
o All Sprint Frame Relay network components
o DSU at Customer Site
o Distribution Routers
o Customers Site Routers
o LEC
o Dial Backup Modems
Components Excluded:
o Scheduled maintenance downtime
o Downtime due to any of the reasons stated in ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
o Downtime due to Customer inaccessibility
o Network anomalies caused by Cascade outages or impaired performance
Calculation:
Network = (24 Hours X Days in Month X # of Sites) - (Total Outage Time)
Availability -------------------------------------------------------------
(24 Hours x Days in Month X # of Sites)
Total Outage Time Measurement: An outage condition exists when Customer is out
of service and unable to transmit data. Sprint will analyze the out of service
trouble rickets in the Sprint Trouble Reporting System (TRS). Outage time will
be measured from the time the trouble ticket was opened to the time service is
restored.
--------------------------------------------------------------------------------
Bridge ▇-▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ 3
All sites types A, B1, and C1 will be included in the number of sites. A minimum
of 100 sites are required for this calculation.
1.2 Delay 192ms round Trip Delay
This delay assumes the following configuration and application
characteristics:
o Originating Access Speed: 56 Kbps
o Terminating Access Speed: T-1
o Average Frame Size: 64 bytes
o CIR Level of PVCs: 0 Kbps
o Average Distance of PVCs 500 miles
Components Included:
o All Sprint Frame Relay network components
o CSU/DSU (if Sprint provided)
Components Excluded:
o Network delay does not include delay induced by the router.
Any PING test performed by Customer must subtract router
delay.
Calculation:
Average = Total Network Delay for all PVCs
Network Delay --------------------------------
Total Number of PVCs
Network Delay will be measured based on Customer initiated PING test.
The PING test will be done over multiple days (minimum of 30 days) to
adequately determine a consistent performance level.
Delay Administration Process:
o Sprint Account Manager will notify the SE, NASM (if
applicable), SE Director, NCC Director, NCC Manager, and
Product
--------------------------------------------------------------------------------
Bridge ▇-▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ 3
Marketing of customers who have signed an SLA. A short ▇▇▇▇▇
script has been developed (Compose FR.SLA) to notify the
appropriate groups.
o Customer notifies Sprint's Service Management Center that the
average Network Delay performance is non-compliant with the
Service Level Agreement. The SMC opens a trouble ticket.
o The NCC works the trouble ticket to diagnose the problem. If
they are unable to diagnose or fix the problem, they will
notify the SE.
o Sprint's System Engineer will conduct Network Delay tests
using datascopes and report the results to the customer and
NCC.
o If the results of the SE tests concur with the customer
report, then the SE will provide the information to the NCC
Technical Assistance Center (TAC) Manager.
o TAC will work with the Customer and SE to determine root cause
for the problem and resolve as quickly as possible (maximum of
60 days).
1.3 Data Delivery Rate. 98% with 0-CIR
Calculation:
Total Egress Kiloframes
--------------------------------------------------------
Data Delivery Rate = Total Ingress Kiloframes - (Bc + Be Exceeded Kiloframes)
Calculation is based on total monthly statistics per PVC.
Excluded Components:
o Discarded Frames due to excess Bc + Be.
o Discarded Frames caused by Mis-matched access channel speeds.
o Data loss due to local exchange circuit failures.
o Data loss during scheduled maintenance window.
o Data Delivery Rate percentage assumes Customer Configuration
on Egress port is engineered with enough capacity to handle
traffic loads from the remote sites.
SECTION 2 - GLOBAL FRAME RELAY SERVICE LEVEL AGREEMENTS
--------------------------------------------------------------------------------
Bridge E-3 January 26, 1996
Amendment 3
The following performance specifications represent Sprint's network
performance objectives for its Global Frame Relay Services.
2.1 Global Network Availability Objective
POP-to-POP 99.22% monthly (excluding scheduled maintenance downtime)
Availability is measured POP-to-POP. Network maintenance is generally
performed Sunday mornings between 00:01 and 05:00 GMT.
2.2 Network Transmission Quality Objective
Transmission Bit Error Rates (BER) vary by operating region.
Transatlantic BERs 10(-8)
Transpacific BERs 10(-7) to 10(-8)
European and Pacific BERs 10(-7)
2.3 Burst Capability Objectives
Burst Capacity Up to Access Channel Speed
Minimum Burst Interval AT LEAST One Second
2.4 Data Delivery Rate Objective
Data Delivery Rate (DDR) is the ratio of total egress frames to total
input frames. Its time interval is monthly and it is a measure of
frames lost in the network primarily due to transmission errors and
network overloads.
DDR, Bc (commited bits) >99.90%, network average
DDR, Be (non-commited bits) 99.00%, network average
Total input frames do not include frames that exceed Bc+Be as would
occur with mismatches in access channel speeds.
2.5 Network Delay Objects
For delay in the global operating environment, network sites are
categorized as:
NA-E: North America-East Eastern US and Canada
--------------------------------------------------------------------------------
Bridge ▇-▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ 3
NA-C: North America-Central Central US and Canada
NA-W: North America-West Western US and Canada
EUR-N: Europe-North Belgium, UK, Finland, France,
Ireland, Luxembourg, Netherlands,
Norway
EUR-C: Europe-Central Germany, Austria, Switzerland
EUR-S: Europe-South Italy and Spain
PAC-N: Pacific-North Japan and Hong Kong
PAC-WS Pacific-West/South Australia, New Zealand, Singapore
Figures presented are average values of one-way network delay for 64
and 1024 byte frames. (Ninety-fifth percentile figures are
approximately 2.5 time the average values). Estimated round-trip delays
must consider both sides of the customer network access, CPE and other
application delays.
Average One Way Network Delays (msec) for a 64 Byte Packet
------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
NA-E NA-C NA-W EUR-N EUR-C EUR-S PAC-N PAC-SW
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
NA-E 27 32 65 83 86 95 157 189
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
NA-C 32 25 49 86 91 101 146 174
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
NA-W 65 49 43 113 116 129 131 148
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
EUR-N 83 86 113 32 29 35 214 252
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
EUR-C 86 91 116 29 25 32 229 260
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
EUR-S 95 101 129 35 32 28 235 266
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
PAC-N 157 146 131 214 229 235 40 260
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
PAC-SW 189 174 148 252 260 266 260 275
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
Access (Approximate one way delay for a 64 byte frame for access at
various speeds (add two sides for round trip estimations)
------------------------------- ---------------------------- ---------------------------- ----------------------------
Access (Kbps) Delay (Msec) Access (Kbps) Delay (msec)
------------------------------- ---------------------------- ---------------------------- ----------------------------
56 20 768 3
------------------------------- ---------------------------- ---------------------------- ----------------------------
64 18 1024 3
------------------------------- ---------------------------- ---------------------------- ----------------------------
128 10 1544 3
------------------------------- ---------------------------- ---------------------------- ----------------------------
256 6 2048 3
------------------------------- ---------------------------- ---------------------------- ----------------------------
512 4
------------------------------- ---------------------------- ---------------------------- ----------------------------
Average One way Network Delays (msec) for a 1024 Byte Packet
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
NA-E NA-C NA-W EUR-N EUR-C EUR-S PAC-N PAC-SW
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
--------------------------------------------------------------------------------
Bridge ▇-▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ 3
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
NA-E 63 68 131 149 132 183 231 256
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
NA-C 68 62 116 152 137 189 211 240
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
NA-W 131 116 109 180 162 218 196 213
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
EUR-N 149 152 180 122 97 124 291 322
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
EUR-C 132 137 162 97 73 120 306 327
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
EUR-S 183 189 218 124 120 120 327 317
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
PAC-N 231 211 196 291 306 327 96 337
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
PAC-SW 256 240 213 322 327 317 337 344
-------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
Access: Approximate one way delay for a 1024 byte frame for access at
various speeds (add two sides for round trip estimations)
------------------------------- ---------------------------- ---------------------------- ----------------------------
Access (Kbps) Delay (Msec) Access (Kbps) Delay (msec)
------------------------------- ---------------------------- ---------------------------- ----------------------------
56 167 768 14
------------------------------- ---------------------------- ---------------------------- ----------------------------
64 146 1024 11
------------------------------- ---------------------------- ---------------------------- ----------------------------
128 74 1544 8
------------------------------- ---------------------------- ---------------------------- ----------------------------
256 38 2048 7
------------------------------- ---------------------------- ---------------------------- ----------------------------
Sprint is committed to provide high quality telecommunications services
to all of its customers. The following details Sprint's Service level
Commitments to Customer for International dedicated X.25 service.
SECTION 3 - GLOBAL X.25 SERVICE LEVEL AGREEMENTS
3.1 X.25 Ticket Priority and Trouble Resolution Objectives
The following tables define the ticket prioritization scheme and the
service restoral objectives for international X.25 dedicated services.
DESCRIPTION
------------------------------------------------------------ ---------------------------------------------------------
Priority 1 Critical condition (entire router, PAD
Or location is out of service)
------------------------------------------------------------ ---------------------------------------------------------
Priority 2 Out-of-service condition (X.25 access
facility or inoperable port on router/
PAD/switch). Alternate backup pathway
connection functional
------------------------------------------------------------ ---------------------------------------------------------
--------------------------------------------------------------------------------
Bridge ▇-▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ 3
------------------------------------------------------------ ---------------------------------------------------------
Priority 3 Service impairment condition (slow
Response, Virtual Circuit (VC)
instability).
------------------------------------------------------------ ---------------------------------------------------------
SERVICE RESTORAL OBJECTIVES
------------------------------------------------------------ ---------------------------------------------------------
Priority 1 4 hours
------------------------------------------------------------ ---------------------------------------------------------
Priority 2 12 hours
------------------------------------------------------------ ---------------------------------------------------------
Priority 3 5 days
------------------------------------------------------------ ---------------------------------------------------------
Problems reported after 1700 hours or any time on Saturdays, Sundays,
or local holidays are expected to be resolved within the presubscribed
period beginning at 0800 hours local time on the next business day.
Sprint requires that a Customer representative be available at the
affected site throughout the identification, repair and confirmation
process.
3.2 SprintNet X.25 International Service Credits
Sprint shall award a SprintNet X.25 Service Credit as follows:
For a Priority 1 outage with an actual SprintNet outage greater than
eight (8) hours Sprint shall award a Service Credit equal to 1/30 of
the monthly non-usage based recurring X.25 Charge for the affected
site. For each additional eight hours of actual outage, Sprint shall
award an additional Service Credit equal to 1/30 of the monthly X.25
Network Charge for that site. Service Credits shall only be awarded for
eight hour outage increments.
For example, for a Priority 1 problem which exists for sixteen (16)
hours, Sprint shall issue a Service Credit equal to 1/15 of that
month's non-usage based X.25 Charges for the affected site. For a
Priority 1 problem which exists for thirteen (13) hours, Sprint shall
issue a Service Credit equal to 1/30 of that month's X.25 Network
charge for the affected site.
Outage time will be measured from the time a trouble ticket is opened
to the time service is restored, utilizing the service trouble tickets
in the Sprint Trouble Reporting System (TRS). No time between 1700
hours and 0800 hours local time of the next business day, or any time
between tickets opened on Saturdays, Sundays, or local holidays and
0800 hours of the next business day will be included in outage time
calculations.
Sprint shall only award Service Credits for Priority 1 problems.
--------------------------------------------------------------------------------
Bridge E-7 January 26, 1996
Amendment 3
Any troubles resulting from a problem with Customer provided equipment,
software, applications, or personnel will not be included.
--------------------------------------------------------------------------------
Bridge ▇-▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ 3
ATTACHMENT F
FACILITIES AND SERVICES AGREEMENT
This Facilities and Services Agreement ("Agreement") sets forth the terms and
conditions which shall govern Customer's lease of certain space at Sprint's
Point-of-Presence ("POP") for the purpose of locating certain Customer-provided
equipment at such space.
1. TERM. The term of this Agreement ("Term") shall coincide with the
period set forth in Section 3 of the Managed Network Agreement between Sprint
and Customer as amended, unless terminated by either Party pursuant to the
provisions of Paragraph 16 herein. The Term of this Agreement shall be
automatically renewed for successive one year periods, unless either Party
provides written notice of termination ninety (90) days prior to the end of the
then current Term.
2. EQUIPMENT RACK SPACE. Sprint agrees to lease to Customer, and
Customer agrees to lease from Sprint, during the Term, floor space and such
other space as is reasonably necessary for the installation of Customer provided
equipment ("Equipment Rack Space") at the Sprint POP site(s) specified on
Exhibit "A" attached hereto. Access to the Equipment Rack Space shall be
provided to Customer at all times upon reasonable advance notice to Sprint, by
Sprint escort only, at such rates as are set forth in Paragraph 7 hereof.
Customer accepts the Equipment Rack Space "as is" and hereby covenants and
agrees to use the Equipment Rack Space for the purposes herein set forth and for
no other purpose and in strict accordance with the terms and conditions of any
applicable Sprint leases, and further agrees to not do, or omit to do, anything
which will breach any of the terms or conditions of such applicable Sprint
leases or cause damage and/or injury to the property and/or personnel of Sprint
and/or other Sprint customers.
For lease of the Equipment Rack Space during the Term, Customer shall
pay Sprint (i) non-recurring site preparation charge of * per each instance of
rack and/or ancillary services installation activity which includes up to two
(2) consecutive working days for installation supervision and escort
(thereafter, the escort rates as outlined in Paragraph 7 herein will apply); and
(ii) a monthly recurring fee of *per each Equipment Rack Space per Sprint POP
site used, which shall include the cost of electrical power furnished to
Customer by Sprint hereunder. The non-recurring site preparation charge and
monthly recurring fee shall not begin until the equipment specified in Exhibit A
is installed.
* CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------------
Bridge F-1 January 26, 1996
Amendment 3
3. SITE CLEAN UP. Customer will be responsible for removal of all
installation material and clean up of effected POP site(s) after completion of
Customer equipment installation in the Equipment Rack Space.
4. DEMARCATION POINT. The point at which the Customer's network
interconnects with the Sprint network shall be the Sprint provided DSX cross
connect (interface) at each Sprint POP site. This point will be referred to as
the Demarcation Point. The Demarcation Point will designate where the division
of responsibility of providing service and connectivity takes place. Customer
shall provide the necessary interface cabling to the Demarcation Point. Sprint
will be responsible for the service from the Demarcation Point through the
completion of the circuit through the Sprint network. The Customer will be
responsible for the service from the Demarcation Point at each Sprint POP site
to the Customer's premises.
5. INSTALLATION AND TESTING. Customer shall engineer, furnish, install
and test, at its sole cost and expense, all Customer supplied equipment in the
Equipment Rack Space. Prior to installation, this Agreement shall be fully
executed by both Parties or otherwise incorporated into any existing agreement
between the Parties, and Customer shall submit to Sprint for its approval all
engineering plans and specifications pertaining to Customer supplied equipment
to be installed in the Equipment Rack Space. Installation and testing by
Customer of equipment located in the Equipment Rack Space shall at all times be
under the direct supervision of a Sprint escort. Title to equipment furnished by
Customer hereunder shall, at all times, remain in Customer. All equipment
supplied by Customer shall be labeled by the Customer as such.
6. EQUIPMENT MAINTENANCE. During the Term, Customer shall provide
maintenance on all Customer supplied equipment installed in Equipment Rack
Space.
All requests for escort service are to be made to the appropriate POP
site or Sprint designated location for each Equipment Rack Floor Space location.
Contact telephone numbers for each POP site are specified on EXHIBIT A, and can
be called 24 hours per day, 7 days a week.
7. ESCORT RATES. Sprint will provide escort service for the Customer to maintain
equipment as aforesaid, on a per call basis at the rate of * per hour. Escort
services are provided for emergency repair and routine maintenance under
guidelines as specified in Paragraph 22.
* CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------------
Bridge F-2 January 26, 1996
Amendment 3
The foregoing rate shall apply to all Customer escort requests and are
subject to a one (1) hour minimum charge per call as well as the specifications
as noted in EXHIBIT A.
8. PERMITS AND FEES. Customer will be responsible for any permits
and/or fees, as required, between the Demarcation Point at each Sprint POP site
to the Customer's premises.
9. ORDER ADMINISTRATION. Customer shall place orders from time to time
during the Term for Sprint services to be provided hereunder by submitting to
Sprint such information as Sprint shall reasonably request.
10. POWER. During the Term, Sprint shall furnish to Customer electrical
power necessary to meet the reasonable requirements of Customer at the POP
site(s) specified on Exhibit A. If the power provided by Sprint causes
interference with the proper operation of Customer's equipment, the Customer
will be responsible for providing at Customer's sole expense any filtering or
regulation devices within the Equipment Rack Space, to correct the interference.
11. TRANSFER, SALE AND ASSIGNMENT. Customer shall not sell, assign,
transfer or otherwise encumber any interest it has hereunder or may have in the
Equipment Rack Space, the POP(s), POP site(s), or Sprint-supplied equipment
therein, or any portion thereof, by virtue of this Agreement, without the prior
written consent of Sprint, which shall not be unreasonably withheld.
12. NOTICES. Any notices or communications required or desired to be
given in connection with this Agreement shall be in writing and shall be
delivered to the applicable Party by hand or by U.S. Certified Mail, return
receipt requested, addressed as follows:
Sprint: Sprint Communications Company L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Network Real Estate Acquisition & Administration
With a copy to: Sprint Communications Company L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Customer:
--------------------------------------------------------------------------------
Bridge F-3 January 26, 1996
Amendment 3
Any notice given under this Agreement shall be effective upon receipt
of notice by the other Party. Either Party may change the above address by
written notice to the other Party as provided above.
13. WARRANTIES. THE PARTIES DO NOT MAKE ANY WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO THE POP SITE(S) AS LISTED ON EXHIBIT A, ANY EQUIPMENT
PLACED THEREIN AND OTHER SERVICES, MATERIALS AND EQUIPMENT PROVIDED HEREUNDER,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
14. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HEREUNDER
BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL
DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF CUSTOMERS OR
CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS, ARISING IN ANY MANNER FROM THIS
AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
FURTHERMORE, IN NO EVENT WILL SPRINT BE LIABLE TO CUSTOMER FOR ANY DAMAGES,
DIRECT OR INDIRECT, TO CUSTOMER SUPPLIED EQUIPMENT ARISING OUT OF CUSTOMER'S USE
OF THE POP SITE(S) LISTED ON EXHIBIT A OR THE SERVICES PROVIDED HEREUNDER,
UNLESS SUCH DAMAGES ARE THE RESULT OF SPRINT'S NEGLIGENCE OR WILLFUL MISCONDUCT.
SPRINT SHALL TAKE REASONABLE PRECAUTIONS TO PROVIDE A SECURE ENVIRONMENT FOR
CUSTOMER SUPPLIED EQUIPMENT.
15. INDEMNIFICATION.
15.1 Customer shall indemnify, defend and hold harmless
Sprint, its directors, officers, employees, trade contractors,
suppliers, successors and assigns from any loss, damage, cost of
defense (including reasonable attorneys' fees and court costs), and
injuries, including death to any person, arising out of this Agreement
(including any breach hereof by Customer) to the extent caused by the
negligence or willful misconduct of Customer, its agents or employees.
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15.2 Sprint shall indemnify, defend and hold harmless
Customer, its directors, officers, employees, trade contractors,
suppliers, successors and assigns from any loss, damage, cost of
defense (including reasonable attorneys' fees and court costs), and
injuries, including death to any person, arising out of this Agreement
(including any breach hereof by Sprint) to the extent caused by the
negligence or willful misconduct of Sprint, its agents, or employees.
16. TERMINATION OF SERVICES/FACILITIES: COMPLIANCE.
16.1 Sprint may limit the use of the Equipment Rack Space or
any portion thereof by Customer hereunder when necessary because of
conditions beyond its control as set forth in Paragraph 23. In
addition, Sprint reserves the right at all times during the Term to
suspend any and all services and/or facilities to be provided
hereunder, including, without limitation to furnishing of electrical
power, and remove, change or otherwise terminate the operation of
Customer-supplied equipment installed in the Equipment Rack Space
without notice, if Sprint deems, in its sole discretion, that such
action is necessary to protect the public or Sprint personnel, agents,
and Sprint facilities or services from damages or injury of any kind.
Sprint may also effect such action after notice to Customer in
accordance with Paragraph 20 hereof. Where possible, Sprint will notify
Customer promptly of such action and work in cooperation with Customer
to effect such remedies so as to permit the Customer-supplied equipment
to be returned to operation in an acceptable manner. All
Customer-supplied equipment installed in the Equipment Rack Space shall
comply with all applicable laws, regulations and standards, including,
without limitation, those standards established by Sprint, and shall be
maintained by Customer in a manner so as to ensure continued compliance
therewith and so as to avoid hazard or damage to Sprint facilities or
injury to Sprint employees, agents and suppliers or to the public. In
the case where additional protection facilities are required, the same
shall be provided by Customer, at Customer's sole expense. Sprint shall
maintain the environmental parameters of the Equipment Rack Space
within customary limits for commercial operation so long as Customer
maintains Customer-supplied equipment installed therein in accordance
with the applicable specifications.
16.2 Either Party may terminate this Agreement at any time by
giving written notice as outlined in Paragraph 12. The maximum
liability to the Customer, due to termination, will be six (6) months
of rental charges for each Equipment Rack Space as stated in Paragraph
2, Equipment Rack
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Space, from the date of termination and any charges associated with
Sprint escort during equipment removal.
17. INSURANCE.
17.1 CUSTOMER'S INSURANCE. Customer shall, at its own expense,
procure and maintain throughout the Term, the following insurance from
an insurance company or companies of recognized financial
responsibility: (i) Comprehensive General Liability insurance,
including Contractual Liability, insuring against liability for
Personal Injury or death, Property Damage or other loss in amount of
not less than $5,000,000 Combined Single Limit with respect to any
occurrence, and (ii) Comprehensive Automobile Liability insurance
insuring the ownership, maintenance or use of owned, non-owned or hired
automobiles in an amount not less than $1,000,000 Combined Single Limit
for Bodily Injury or Property Damage for any one accident, (iii)
Worker's Compensation insurance, including Employer's Liability with
limits of not less than $100,000 per accident, in compliance with any
Worker's Compensation or similar statute in the State where any work is
performed. The insurance specified in subparagraphs i and ii shall name
Sprint as Additional Insured. Customer shall deliver to Sprint, prior
to and as a condition of its use of the Equipment Rack Space, a
Certificate of Insurance evidencing all of the above insurance
requirements and shall indicate that Sprint shall be notified not less
than thirty (30) days prior to any cancellation or material change in
any coverage. In no event shall the limits of said policies be
considered as limiting the liability of Customer under this Agreement.
Customer may not enter Sprint's POP locations if the provisions of this
paragraph have not been met.
18. GOVERNING LAW. This Agreement shall be constructed under and
enforced in accordance with, and the validity and performance hereof shall be
governed by, the laws of the State of Kansas.
19. ENTIRE AGREEMENT. This Agreement supersedes and replaces any prior
agreements, understanding or arrangements, whether oral or written, heretofore
made between the Parties and relating to the subject matter hereof. This
Agreement shall not be modified, changed, altered or amended except by an
express written agreement signed by duly authorized representatives of both of
the Parties hereto.
20. DEFAULT. In addition to any right of termination provided for
elsewhere herein, the non-defaulting Party hereto may terminate this Agreement
upon the occurrence of any of the following events which shall constitute a
default hereunder:
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(a) Material breach of this Agreement after notice of such
breach and failure of the breaching Party to cure such breach within
thirty (30) days of receipt of such notice;
(b) A final determination by any governmental entity having
jurisdiction over the facilities and/or services provided under this
Agreement that the relationship of Sprint and Customer and/or the
facilities and/or services provided hereunder are contrary to then
existing laws; or
(c) The filing of bankruptcy by either Party under any
federal, state or municipal bankruptcy or insolvency act, or the
appointment of a receiver or any act or action constituting a general
assignment by either Party of its properties and interest for the
benefit of its creditors.
Upon the occurrence of a default by either Party, the other Party may
exercise one or more of the following remedies: (i) terminate this Agreement as
aforesaid; and/or (ii) exercise any other rights or remedies which may be
available at law or in equity. Upon the occurrence of a default, the prevailing
Party shall have all reasonable expenses (including court costs and reasonable
attorneys' fees) paid by the other Party.
21. PAYMENTS. All charges incurred by Customer hereunder will be
invoiced monthly by Sprint. Total Customer recurring and non-recurring Equipment
Rack Space lease charges for the Term of this Agreement are shown on Exhibit A
and are based upon the rates set forth in Paragraph 2, Equipment Rack Space, and
the POP site(s) and quantities of Equipment Rack Space(s) as shown on Exhibit A
hereof. Escort charges will be charged and invoiced monthly in accordance with
the terms set forth in Paragraph 7 herein. All amounts stated on each invoice
shall be due and payable within thirty (30) days of receipt of said invoice. The
charges for service provided hereunder are exclusive of any applicable sales,
use, excise and like taxes which will be separately stated and included on each
applicable invoice. All charges for services provided hereunder that remain
unpaid for a period of 10 days or more after written notice thereof, shall be
subject to interest thereon at a rate of the lesser of 18% per annum or the
maximum rate allowable by applicable law.
22. RESPONSE TIME. In the performance of its obligations hereunder,
Sprint shall endeavor to respond to a Customer request for escort service
hereunder within (i) one (1) hour when notified by Customer from 8:00 a.m. -
5:00 p.m. on business days and when such request pertains to a manned POP site,
(ii) within three (3) hours when notified by Customer at any other time for a
manned POP site, and (iii) within four (4) hours for an unmanned POP site at any
time. THE ABOVE RESPONSE TIMES APPLY TO CUSTOMER EMERGENCY REPAIR SITUATIONS
ONLY. THESE RESPONSE TIMES ASSUME THAT NO EMERGENCY REPAIRS ARE IN PROGRESS ON
THE SPRINT NETWORK IN THIS AREA. Emergency Repairs on the Sprint network will
take precedence over escort services which may cause lengthening of the response
times. For routine maintenance, 72 hours notice is required. Route maintenance
will only
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be allowed between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday,
with holidays excluded. Service affecting routine maintenance may be
accomplished outside of the normal routine maintenance window, but requires 120
hour advance notification. When escort service is provided by Sprint, both the
Sprint representative and Customer representative will sign a CPE Repair/Vendor
Escort Record form confirming the location, time, and date the escort service
took place.
23. INABILITY TO PERFORM. Neither Party shall be responsible for delays
in the performance of its obligations hereunder caused by events beyond its
reasonable control.
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