SERVICE AGREEMENT
1. DEFINITIONS:
1.1 "Agreement" means this Service Agreement together with (A) Service
Orders (as defined in Section 2.1 below) accepted by Seller pursuant to
the terms hereof, and (B) schedules and exhibits incorporated herein by
reference ("EXHIBITS"). In the event of any conflict between the
provisions of this Service Agreement and the terms of any Service
Order(s) and/or Exhibit(s), the conflict shall be resolved by reference
to these documents in the following order of priority of
interpretation: (A) the Service Order accepted by Seller that is the
subject of the conflict; (B) any Exhibit(s), beginning with the Exhibit
most recently incorporated into this Service Agreement; and (C) this
Service Agreement.
1.2 "Cancel/Cancellation" means the termination of a Service Order by
Client after submission of the Service Order and prior to the Start of
Service Date of the Service.
1.3 "Disconnect/Disconnection" means the termination of a Service by Client
after the Start of Service Date.
1.4 "Estimated Availability Date" means the target date for the delivery of
each Service to the Client by Seller. The Estimated Availability Date
is sometimes referred to as the "project management date" or the
"ready-for-traffic date" during Seller's provisioning process.
1.5 "Interconnection Facilities" means all services or facilities,
including but not limited to local access facilities between the
Client's point of presence and Seller's demarcation point.
1.6 "Material Adverse Change" includes, but is not limited to: (A) Client
fails to pay the charges due hereunder on or before the Due Date on
three or more occasions during any period of twelve months, or Client
fails to pay the charges due on or before the Due Date in any two
consecutive months; (B) Client is acquired (whether in whole or by
majority or controlling interest) by an entity which owes past due
amounts to Seller or to any entity affiliated with Seller, or which
presents a materially greater credit risk than Client; (C) Client
becomes a materially greater credit risk than at the time of execution
of the Agreement; or (D) Client becomes subject to or has filed for
bankruptcy or insolvency proceedings or becomes insolvent.
1.7 "Minimum Service Term" means the period of time for the Service
specified in the applicable Service Order and, following renewal of the
Minimum Service Term under Section 4.1, the period of time for the
Service specified in Section 4.1.
1.8 "Monthly Recurring Charge" means the price to be paid by Client per one
calendar month period for the purchase of the Service. Recurring
cross-connect charges, multiplexing charges and other recurring charges
are also Monthly Recurring Charges.
1.9 "Non-Recurring Charges" means any one-time rates, fees, charges or
expenses, including but not limited to installation charges,
construction fees, extended demarcation fees, facility entrance fees,
cross-connect fees, channel bank charges and expedite fees.
1.10 "Performance Assurance" means credit support in the form of (A) cash,
(B) a letter of credit from a commercial bank or trust company
acceptable by the Seller, or (C) such other form of credit support as
may be reasonably acceptable to the Seller.
1.11 "Service(s)" means any telecommunications capacity and related
ancillary services provided by Seller.
1.12 "Start of Service Date" means the date on which Seller delivers the
Service(s) to Client in accordance with the Technical Specifications.
1.13 "Tariff" means the tariffs on file with the Federal Communications
Commission or state public utilities commissions or other domestic or
foreign governmental bodies governing the rates and/or terms and
conditions of any facilities or Services.
1
2. ORDERING SERVICES:
2.1 Client shall purchase the Service(s) by submitting a purchase order
through Seller's ordering process by an authorized representative of
Client ("SERVICE ORDER"). The Service Order is subject to submission of
accurate circuit information by Client and availability of the
requested capacity. Seller reserves the right to reject any Service
Order for any reason. Seller's obligation to provide the Services is
conditioned upon Client not using the Services or allowing the Services
to be used for any unlawful purpose or in violation of any law,
regulation or authorization. As a material part of the consideration
for entering into this Agreement, each party agrees not to contest or
assert (and hereby releases any right to) any defense to (A) the
validity or enforceability of the Service Order submitted through
Seller's internet quoting process under laws relating to whether
certain offers or agreements are to be in writing or signed by the
parties to be bound, or (B) the authority of any employee or
representative of the party to enter into a contract for Service(s).
2.2 After submission of a Service Order by Client, Seller shall notify
Client of the Estimated Availability Date. Seller shall use reasonable
efforts to install each Service on or before the Estimated Availability
Date. Seller's inability or failure to deliver any ordered Service by
the Estimated Availability Date shall not be a Default under this
Agreement, and Seller shall not be liable to Client or any third party
for any damages as a result of Seller's inability or failure to deliver
the Service.
2.3 Client acknowledges and agrees that a Service may be comprised of
multiple circuits from multiple carriers. If the Estimated Availability
Date of a Service, or a portion thereof, is delayed and this delay
renders the entire Service inoperable, Seller shall not be liable to
Client for any damages that may result from such delay. Additionally,
Client shall be required to either accept for billing or Cancel and
re-order the portion(s) of the Service that are ready for activation
but activation has been delayed due to the postponement of a connecting
circuit being provided by Seller's underlying carrier or due to any
delays caused by the Client or any third-party providing
Interconnection Facilities on behalf of Client. A Cancellation and
re-order of a circuit shall be subject to Section 2.4 of this
Agreement. Client may, subject to Seller's prior written approval,
order its own Interconnection Facilities. If any party other than
Seller provides Interconnection Facilities, then unavailability,
incompatibility, delay in installation, or other impairment of
Interconnection Facilities shall not excuse Client's obligation to pay
Seller all Non-Recurring Charges, Monthly Recurring Charges or any
other rates or fees applicable to the Services, whether or not such
Services are useable by Client.
2.4 If Client Cancels a Service Order on or after the fourth day following
Client's submission of a Service Order but before the Start of Service
Date for such Service, Client shall pay within fifteen days of the
Cancellation a charge equal to: (A) one month's Monthly Recurring
Charge for the Service ordered; (B) Seller's internal costs incurred in
attempting to fulfill Client's Service Order; plus (C) the aggregate
fees, charges, expenses, taxes and/or liquidated damages payable to any
third party suppliers for which Seller is or becomes contractually
liable arising out of or in connection with the Cancellation.
3. ACCEPTANCE AND START OF SERVICES:
3.1 After Seller notifies Client that the Service is available, Client may
test the Service to determine if the Service is operating in accordance
with the technical specifications attached as SCHEDULE A and as
modified by Seller from time to time (the "TECHNICAL SPECIFICATIONS").
If Client determines that the Service is in material non-compliance
with the applicable Technical Specifications within twenty-four hours
after Seller notifies Client that the Service is available, then Client
shall provide Seller written notice (the "FAILURE NOTICE") of the
non-compliance in the Service. The Failure Notice must contain
information describing the nature of the material non-compliance with
the Technical Specifications, for the service(s) in question. If Client
does not deliver a Failure Notice within the twenty-four hour period,
Client shall be deemed to have accepted the Service, and the Start of
Service Date shall commence as of the date Seller provides the
notification of availability to Client. If Client delivers a Failure
Notice within the twenty-four hour period, Seller shall promptly take
such reasonable action as is necessary to correct any such
non-compliance in the Service and shall, upon correction,
2
notify Client of a new Start of Service Date.
3.2 Client shall have sole responsibility to install, test and operate the
Client's Interconnection Facilities and any services or equipment other
than those services specifically provided by Seller under this
Agreement. The late delivery, malfunction or non-operation of any
services not provided by Seller, including but not limited to Client's
Interconnection Facilities or any other services shall not relieve
Client of its obligation to pay for the Services in accordance with
Section 5.4 below.
4. TERM AND RENEWAL:
4.1 With respect to the Service(s) provided to Client under this Agreement,
the Minimum Service Term shall be as specified in the Service Order for
the Service(s). If no term is specified in a Service Order, the Minimum
Service Term shall be one year. Each Service shall automatically renew
for successive one year periods (each of which will be deemed a renewal
Minimum Service Term) unless terminated by written notice by either
Party at least thirty days prior to the end of the original Minimum
Service Term or the renewal Minimum Service Term; provided that such
Services(s) shall be billed at the rate provided in the original
Service Order until the earlier to occur of (A) the end of the renewal
Minimum Service Term or (B) the Service is Disconnected by Seller in
response to a Disconnection request.
4.2 Notwithstanding this Section 4, Seller may terminate this Agreement
effective upon ten days prior written notice if any material term
contained herein or Tariff relevant to the Services is materially
changed by order of the highest court of competent jurisdiction to
which the matter is appealed, the Federal Communications Commission or
other government entity.
5. CHARGES AND PAYMENT:
5.1 The Non-Recurring Charges and Monthly Recurring Charges for the
Services shall be set forth in each Service Order, except as is
otherwise specifically provided in this Agreement.
5.2 Seller may, in its sole discretion, require that Client deliver
Performance Assurance up to an amount equal to the total of all
Non-Recurring Charges and Monthly Recurring Charges for the Service(s)
for six months. The Performance Assurance shall be held by Seller until
the Disconnection or termination of the Service(s), at which ▇▇▇▇
▇▇▇▇▇▇, at its option, may apply the Performance Assurance either
against any Monthly Recurring Charges and/or any Non-Recurring Charges
due as of the expiration or termination of the Service(s) or against
any amounts owing to Seller under this Agreement.
5.3 Seller shall invoice Monthly Recurring Charges on a monthly basis and
in advance. The first invoice from Seller for a given Service shall
consist of: (A) the Non-Recurring Charges, (B) the Monthly Recurring
Charges for the first full billing cycle month, (C) the monthly charge
for the second full billing cycle month, and (D) if the Start of
Services Date for a Service is on a date other than the first day of a
calendar month, then the pro-rata portion of the Monthly Recurring
Charge for the period from the Start of Service Date to the first day
of the first full billing cycle month. For example, if the Start of
Service Date is October 1, 2000, then the first invoice for the Service
shall be issued on or about October 1, 2000 and shall include the
Non-Recurring Charges, the Monthly Recurring Charge for October 2000
and the Monthly Recurring Charge for November 2000. If the Start of
Service Date is October 7, 2000, then the first invoice for the Service
shall be issued on or about November 1, 2000 and shall include the
Non-Recurring Charges, the pro-rata portion of the Monthly Recurring
Charge for October 2000, the Monthly Recurring Charge for November 2000
and the Monthly Recurring Charge for December 2000. Notwithstanding the
foregoing, Seller reserves the right to change invoicing procedures
(including the date on which invoices are mailed) from time to time
during the course of this Agreement.
5.4 Client shall make all payments due in United States Dollars within
fifteen calendar days of the date of Seller's
3
invoice ("DUE DATE"). If any undisputed amount due under this
Agreement is not received by the Due Date, in addition to its other
remedies available hereunder, Seller may in its sole discretion: (a)
impose a late payment charge of the lower of 1.5% per month or the
highest rate legally permissible (such late charge shall be payable
upon demand by Seller); and/or (B) require the delivery of Performance
Assurance up to an amount equal to the total of all Non-Recurring
Charges and Monthly Recurring Charges for the Service(s) for six
months, as a condition of the continued availability of the
Service(s), which prepayment shall be held and applied against the
Client's charges due hereunder at the expiration or termination of the
applicable Service Order. Notwithstanding anything in this Agreement
to the contrary, payments due are not subject to reduction, set-off or
adjustment of any nature by Client, except for amounts disputed in
accordance with Section 5.5.
5.5 Client shall submit all good faith disputes or requests for billing
adjustments in writing with payment of undisputed amounts due on or
before the Due Date. Any amounts that Seller determines to be in error
shall be adjusted on the next month's invoice. Any disputed amounts
that Seller determines to be correct as billed shall be due and payable
by Client, upon notification and demand by Seller, along with any late
payment charges that Seller may impose pursuant to Section 5.4 above.
Disputes shall not be cause for Client to delay payment of the
undisputed balance to Seller. If Client does not deliver written notice
to Seller of a billing dispute with respect to any charges within
ninety days after the date Seller issued the invoice on which the
charges appeared, Client shall be deemed to have waived its right to
dispute the charges and the invoice shall be deemed to be correct and
binding.
5.6 Any applicable federal, state, or local taxes, and all use, sales,
commercial, gross receipts, privilege or other similar taxes or license
fees, whether charged to or against Seller or Client, with respect to
the Services provided by Seller, as well as any other imposition by any
governmental authority which has the effect of increasing Seller's cost
of providing the Services, shall be payable by Client in addition to
the other charges set forth in this Agreement.
5.7 The underlying supplier may notify Seller of other charges including
but not limited to installation charges, construction fees, extended
demarcation fees, facility entrance fees and cross-connect fees related
to the Service after Seller delivers a quote for Service to Client and
after Client accepts the quote for Service. Client acknowledges that
from time to time not all charges related to a Service will be included
in the original Service Order. If the underlying supplier invoices
Seller for any additional such charges, Seller shall invoice Client for
the charges, and Client shall be obligated to pay the charges. Seller
will inform Client of any such charges before any such invoice is sent
to Client.
6. OUTAGE CREDITS:
6.1 Client acknowledges the possibility of an unscheduled, continuous
and/or interrupted period of time when a Service(s) are "unavailable"
as defined in the Technical Specifications (hereafter an "OUTAGE"). If
an Outage occurs, Client shall be entitled to a credit (the "OUTAGE
CREDIT") determined according to the following formula:
Outage Credit = (Hours of Outage - 2 hours) x Total Monthly Recurring
Charge of Affected Service DIVIDED BY 720
6.2 The Outage Credit shall apply to the Monthly Recurring Charges for the
Service affected by an Outage; provided, however, that the Outage
Credit shall not apply to any portion of the affected Service which
remains used or useable by Client between any intermediate terminals
(where Client has installed drop and insert capability) or end
terminals. The length of each Outage shall be calculated in hours and
shall include fractional portions thereof. An Outage shall be deemed to
have commenced upon the earlier of: (A) verification of the Outage by
Seller, or (B) when indicated by network control information actually
known to Seller network personnel. Each Outage shall terminate upon
restoration of the affected Service as evidenced
4
by appropriate network tests by Seller. Seller shall notify Client of
any scheduled outage as early as is practicable, and scheduled outages
shall not be viewed as an Outage hereunder.
6.3 Outage Credits shall not be granted if the Outage is caused by or
occurring in (A) any Service(s) or Interconnection Facilities not
provided by Seller; (B) any Client Defaults; or (C) the facilities or
equipment of Client, end-users of Client or any other third party.
6.4 All Outage Credits shall be credited on the next monthly invoice for
the affected Service after Seller receives Client's request for credit.
The total of all Outage Credits applicable to or accruing in any given
month shall not exceed the monthly recurring charge for such Service
for that same month.
6.5 Outage Credits shall be the sole and exclusive remedy of Client in the
event of any Outage, and under no circumstance shall an Outage be
deemed a Default under this Agreement.
7. MINIMUM SERVICE TERM:
7.1 Client acknowledges that the Monthly Recurring Charges for the
Service(s) are based on Client's commitment to utilize the Services for
the Minimum Service Term. Therefore, notwithstanding anything in this
Agreement to the contrary, if Client Disconnects a Service prior to the
expiration of its Minimum Service Term, Client shall be liable for and
shall pay to Seller: (A) an amount equal to the Monthly Recurring
Charge for the Service multiplied by the number of months remaining in
the Minimum Service Term of the Service, (B) any unpaid Non-Recurring
Charges, taxes and other charges, plus (C) the aggregate Disconnection
charges, payable to any third party suppliers, if any, for which Seller
is or becomes contractually liable in connection with any
Disconnection, regardless of whether Client utilizes all or any part of
the Service during all or any part of the Minimum Service Term
applicable to the Service.
7.2 If Client requests Seller to Disconnect a Service, and Client later
cancels its request for Disconnection, the Seller will take all
reasonable actions to ensure that the Service is not Disconnected.
Seller will not grant any Outage Credits for outages related to the
cancelled request for Disconnection, nor will Seller be liable to
Client for any damages resulting from an Outage related to a cancelled
request for Disconnection.
7.3 Upon termination of this Agreement, the total of all Monthly Recurring
Charges, Non-Recurring Charges, taxes and other charges referred to in
this Agreement, Schedules or Service Orders which have accrued
hereunder for each Service for the entire Minimum Service Term plus the
aggregate Disconnection charges, payable to any third party suppliers,
if any, for which Seller is or becomes contractually liable in
connection with any Disconnections resulting from such termination
shall be at once due and payable, regardless of whether or not all of
the Minimum Service Terms have expired, and may be collected by Seller
from Client as a single amount.
8. EVENTS OF DEFAULT:
8.1 A "Default" shall occur if: (A) Client fails to make any payment
required to be made by it under this Agreement and any such failure
remains uncorrected for five days after Client's receipt of Seller's
notice of non-payment; (B) Client breaches its obligations to Seller in
any other agreement, including but not limited to any UTX Service
Agreement; or (C) Client undergoes a Material Adverse Change; (D)
Client does not maintain or loses any required regulatory or other
governmental authorizations to purchase the Service(s); or (E) either
party fails to perform or observe any material term or obligation
contained in this Agreement, and any such failure remains uncorrected
for thirty calendar days after receipt of written notice from the
non-breaching party informing the breaching party of such failure.
9. REMEDIES FOLLOWING DEFAULT:
9.1 Client may terminate this Agreement effective upon delivery of written
notice to Seller, if Seller is in Default,
5
as provided in Section 8.1(e) of this Agreement.
9.2 Seller may immediately terminate this Agreement if Client is in Default
as provided in Section 8.1 of this Agreement. Seller may, in addition
to and without waiving any rights or any other remedies available to
Seller, elect, in its sole discretion, to exercise one or more of the
following remedies: (a) cause the Start of the Service described in any
Service Order to be withheld; (B) suspend a portion or all of the
Services as provided in Section 9.3; (C) decline to accept a Service
Order or other requests from Client to provide Services that Seller may
otherwise be obligated to accept; and/or (D) condition its provision of
Services or acceptance of a Service Order on Client's delivery of
Performance Assurance to Seller.
9.3 If Client is in Default, Seller may, in addition to and without waiving
any rights or other remedies it has under this Agreement or under the
law, after giving Client three days notice (hereinafter "NOTICE OF
SUSPENSION"), suspend or Disconnect all or any portion of the
Service(s) to Client. Seller may continue the suspension or
Disconnection until Client cures any and all Defaults, pays in full all
charges then due, including any reconnection or re-termination fees,
late fees, and/or provides Performance Assurance in an amount
acceptable to Seller. Any reconnection or re-termination fees to be
paid by Client shall equal Seller's internal costs incurred in
responding to Client's Default and suspension or Disconnection plus the
aggregate fees, charges, expenses, taxes and/or liquidated damages
payable to any third party suppliers for which Seller is or becomes
contractually liable arising out of or in connection with the Default
and suspension or Disconnection. If Client fails to cure the Default,
make any required payment and/or provide such Performance Assurance
within three days from the delivery of the Notice of Suspension, Client
shall be deemed to have Disconnected the Services effective on the date
of such suspension and shall remain liable for all charges as set forth
in Section 7.
10. GOVERNMENTAL AUTHORITY:
10.1 Client represents and warrants that: (A) Client has received all
necessary permits, licenses, approvals, grants, and charters of
whatsoever kind necessary to carry out the business in which Client is
engaged; and (B) Client complies with all laws, regulations, orders,
and statutes which may be applicable to Client, whether local, domestic
or foreign, State or Federal. During the term of this Agreement, Client
agrees to operate in accordance with and to maintain current all such
certifications, permits, licenses, approvals, grants, charters, and to
comply with all applicable laws, regulations, orders and statutes,
whether local, domestic or foreign, State or Federal.
11. FORCE MAJEURE:
11.1 Except as is provided in Section 11.2 below, Seller shall not be liable
for any failure of performance due to causes beyond its reasonable
control, including, but not limited to: acts of God, fire, explosion,
vandalism, cable cut, storm, extreme temperatures or other similar
catastrophes; any law, order, regulation, direction, action or request
of the United States government, or of any other government, including
state and local governments, or of any department, agency, commission,
court, bureau or other instrumentality of any one or more said
governments, having jurisdiction over either of the parties; or of any
civil or military authority; national emergencies, insurrections,
riots, wars, or strikes, lock-outs, work stoppages or other labor
difficulties; actions or inactions of a third party provider or
operator of facilities employed in provision of the Services; or any
other conditions or circumstances beyond the reasonable control of
Seller which impede or affect the Services or the transmission of
telecommunications services.
11.2 If any failure of performance on the part of Seller due to causes
described in Section 11.1 of this Agreement continues: (A) for thirty
days or less, then this Agreement shall remain in effect, but Client
shall be relieved of its obligation to pay for that portion of the
Services affected for the period of such failure of performance; or (B)
for more than thirty days, then Client may Disconnect only that portion
of any Service Order so affected, following ten business days prior
written notice to Seller. The Disconnection of a Service of Service
Orders shall not affect any remaining Service Orders, and shall not
constitute a termination of this Agreement.
6
11.3 If the Services are unavailable to Client as a result of any Force
Majeure event described in Section 11.1, Client may be entitled to an
Outage Credit as set forth in Section 6.
12. INDEMNIFICATION:
12.1 Client shall indemnify and hold harmless the Seller and the Seller's
affiliates, officers, directors, agents and its employees
("AFFILIATES"), and any third party provider or operator of services
employed by Seller and/or its Affiliates in the provision of the
Services, from and against, and shall reimburse Seller and/or
Affiliates for, any and all losses, liabilities, deficiencies, claims
and expenses (including, but not limited to, costs of defense and
reasonable attorneys' fees) incurred by Seller and/or Affiliates and
arising from or in connection with: (A) any breach of any covenant or
agreement of Client contained in this Agreement; (B) any
misrepresentation or breach of any of the representations and
warranties contained in this Agreement by Client; (C) any claims for
personal injury, death or damage to property caused by the negligence
or willful misconduct of Client; or (D) any claims, including but not
limited to claims for infringement of any intellectual property right,
that may be asserted by parties other than Client who have use of or
access to the Services through Client.
13. ASSIGNMENT:
13.1 Neither this Agreement nor any of Client's rights or obligations
hereunder may be sold, assigned, sublet, encumbered or transferred by
operation of law or otherwise (hereafter, a "TRANSFER"), without the
prior written consent of Seller which will not be unreasonably
withheld. Any Transfer by Client without Seller's prior written consent
shall entitle Seller, at its option, to: (A) consider the Transfer
void; (B) consent to the Transfer, and hold the Client and any
transferee(s) liable hereunder; or (C) terminate this Agreement
immediately upon delivering written notice to Client. Subject to the
foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors or
purported assigns. Seller may transfer, assign, or otherwise in any
manner encumber this Agreement and its rights and obligations hereunder
without Client's prior consent.
14. WARRANTIES AND LIMITATION OF LIABILITY:
14.1 Seller warrants that the Services shall be provided in accordance with
the Technical Specifications. If Seller determines that the Services
are not being provided in accordance with the Technical Specifications
(a "DEFECT" or "DEFECTS"), Seller shall use reasonable efforts to
conform the Services to the Technical Specifications.
14.2 THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING
WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE. SELLER HEREBY SPECIFICALLY DISCLAIMS ANY
LIABILITY TO CLIENT FOR DEFECTS OR INTERRUPTIONS AFFECTING THE SERVICES
FURNISHED HEREUNDER WHICH ARE ATTRIBUTABLE TO CLIENT'S INTERCONNECTION
FACILITIES OR TO CLIENT'S EQUIPMENT FAILURES, ANY SERVICES NOT PROVIDED
BY SELLER OR TO CLIENT'S BREACH OF THIS AGREEMENT.
14.3 IN NO EVENT SHALL SELLER OR ITS AFFILIATES BE LIABLE TO CLIENT, ITS
EMPLOYEES, ANY OF ITS AFFILIATES OR TO ANY THIRD PARTY FOR: (A) ANY
LOSS OF PROFIT OR REVENUE, OR FOR ANY INDIRECT, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, WHETHER INCURRED
OR SUFFERED AS A RESULT OF ANY DEFECTS, UNAVAILABILITY OF SERVICES,
DELAY IN DELIVERY OF SERVICES, PERFORMANCE, NON-PERFORMANCE,
TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THIS AGREEMENT,
OR FOR ANY OTHER REASON, EVEN IF CLIENT ADVISES SELLER OF THE
7
POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (B) FOR ANY OUTAGE OR INCORRECT
OR DEFECTIVE TRANSMISSIONS, OR ANY DIRECT OR INDIRECT CONSEQUENCES
THEREOF, EXCEPT AS IS SPECIFICALLY PROVIDED IN SECTION 6 REGARDING
OUTAGE CREDITS.
14.4 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY: (A) CLIENT
AGREES THAT ITS SOLE REMEDY IN THE EVENT OF ANY BREACH OF THE
WARRANTIES DESCRIBED IN SECTION 14.1 OF THIS AGREEMENT SHALL BE THE
OUTAGE CREDITS DESCRIBED IN SECTION 6; AND, (B) IN NO EVENT SHALL THE
CUMULATIVE LIABILITY OF SELLER UNDER THIS AGREEMENT, INCLUDING ANY
OUTAGE CREDITS, EXCEED THE TOTAL PAYMENTS PAID BY CLIENT TO SELLER
HEREUNDER.
14.5 Client acknowledges that Seller has no ability to independently test or
maintain the Services. As such, notwithstanding anything in this
Agreement to the contrary, Seller's entire duty with respect to the
Services shall be to use commercially reasonable efforts to test and
maintain such Services in accordance with the Technical Specifications.
15. NON-DISCLOSURE AND PUBLICITY:
15.1 Client shall not disclose to any third party the terms and conditions
of this Agreement without the prior written consent of the Seller.
Client shall not use the Seller's name in publicity or press releases
without obtaining the Seller's prior written approval, which approval
shall not be unreasonably withheld.
15.2 Seller may issue a news release, public announcement, advertisement, or
other form of publicity (a "PRESS RELEASE") concerning the existence of
this Agreement or the Services to be provided under this Agreement
without the consent of Client so long as such Press Release is limited
to identifying the names of the Parties and a general description the
Services to be provided hereunder, including the duration of the
Service term, provided that no such Press Release shall set forth any
pricing information without the prior written approval of the Client.
16. MISCELLANEOUS:
16.1 Client shall execute documents, provide information and cooperate with
Seller as may be reasonably required by Seller to provide the Services.
16.2 Client expressly disclaims any right, title, perpetual right of use or
any other interest in or to any equipment or property used or supplied
by Seller under this Agreement.
16.3 Neither this Agreement, nor the provision of Services hereunder, shall
create a partnership or joint venture between the parties or result in
a joint communications service offering to any third parties.
16.4 The failure of either party to give notice of Default or to enforce or
insist upon compliance with any term or condition of this Agreement
shall not constitute a waiver of the Default or of any term or
condition of this Agreement.
16.5 If any claim, suit or arbitration is brought or an attorney is retained
by either party to enforce the terms of this Agreement, to enforce a
judgment of a court or the arbitrators or to collect any moneys due
hereunder or to collect money damages for breach hereof, the prevailing
party shall be entitled to recover, in addition to any other remedy,
reimbursement for reasonable attorneys' fees, court costs, costs of
investigation and other related expenses incurred in connection
therewith.
16.6 The parties agree that this Agreement shall be governed by, interpreted
and construed in accordance with the laws of the State of Illinois
without regard to choice of law principles. The parties further agree
that any suit, action, or proceeding with respect to this Agreement
shall be brought in the courts of ▇▇▇▇ County in the State
8
of Illinois or in the U.S. District Court for the Northern District of
Illinois. The parties accept the sole and exclusive jurisdiction of
those courts for the purpose of any such suit, claim, action or
proceeding. The parties waive their right to trial by jury.
16.7 No modification of this Agreement or any Service Order shall be binding
upon the parties unless the modification is made in writing and signed
by an authorized representative of each party.
16.8 If any provision of this Agreement is invalid or unenforceable under
applicable law, the provision shall be ineffective only to the extent
of such invalidity, without affecting the remaining parts of the
provision or the remaining provisions of this Agreement. Client and
Seller agree to negotiate any such invalid or unenforceable provision
to the extent necessary to render such part valid and enforceable.
Subject to Section 4.3, if any provision of this Agreement conflicts
with any statute, rule or order of any governmental or regulatory body,
or Tariff filed by Seller or one of Seller's underlying suppliers,
then, if required by law, this Agreement shall remain in effect but
shall be automatically modified by such conflicting law, statute, rule,
order or Tariff.
16.9 Sections 2.1, 5.4, 7.1, 7.2, 12.1, 14.2, 14.3, 14.4, 14.5, 15, 16.5,
16.6 and 16.10 of this Agreement shall survive the performance,
termination or expiration of this Agreement.
16.10 All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be given by: (A) hand
delivery; (B) first-class registered or certified mail with postage
prepaid; (C) overnight receipted courier service; or (D) telephonically
confirmed facsimile transmission, which notice is addressed to the
Seller at the address set forth below or as may be designated in
writing by the Seller. All notices, requests, demands and other
communications from Seller to Client shall be addressed to Client at
the address reflected in Seller's books and records. Notices given in
accordance with subpart (b) of this Section shall be deemed delivered
three days from the date of mailing. Notices given in accordance with
subparts (a), (c) or (d) of this Section shall be effective upon
receipt or when receipt is refused. Notwithstanding the foregoing,
Seller may also deliver notices by electronic mail. Notices sent by
electronic mail shall be effective upon transmission by Seller.
To Seller:
----------------------------------------
UNIVERSAL ACCESS, INC.
----------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
----------------------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
----------------------------------------
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
----------------------------------------
Attn.: Client Services
----------------------------------------
With a copy to:
----------------------------------------
UNIVERSAL ACCESS, INC.
----------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
----------------------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
----------------------------------------
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
----------------------------------------
Attn.: Legal Department
----------------------------------------
The addresses set forth may be changed upon delivery of appropriate written
notice to the Client.
16.11 This Agreement comprises the complete and exclusive statement of the
agreement of the parties and supersedes all previous statements,
representations, and agreements, oral or written, concerning the
subject matter hereof.
9
SCHEDULE A
TECHNICAL SPECIFICATIONS
1. INTERCONNECT SPECIFICATIONS:
1.1 The Client interconnection point of DS-1 & DS-3 signals at the Seller
(SPT) location will be at an industry standard (DSX-1) & (DSX-3)
digital cross-connect panels and will be referred to as Seller Network
Interface in this document.
1.2 The DS-1 & DS-3 signals terminating at the Seller digital cross-connect
panels will meet the electrical specifications as defined in AT&T
Compatibility Bulletin (CB) ▇▇. ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇.
1.3 The Seller Digital Network will be compatible with the ▇▇▇▇ System
hierarchical clock synchronization methods and stratum levels as
described in Bellcore Technical Advisory (GR436-Core).
1.4 Client equipment must also meet the interconnect specifications listed
above and shall comply with jitter requirements of AT&T Technical
Reference PUB 63411.
2. PERFORMANCE OBJECTIVES:
2.1 DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and OC-48c circuit
performance will be measured using two parameters: Availability and
Error-Free Seconds.
The following assumptions apply to the derived data:
The circuits originate and terminate on the SONET OC-48 backbone
High speed protection switching: 1 for N, where N=2
MTTR for SONET equipment: 2 hours
MTTR for fiber optic cable: 12 hours (Bellcore Standard)
Cable cut rate: 4.39 /year/1,000 sheath miles (Bellcore Standard)
2.2 Availability is a measure of the relative amount of time during which
the circuit is available for use. According to CCITT and ANSI
definitions, unavailability begins when the Bit Error Ratio (BER) in
each second is worse than 1.0 E-3 for a period of 10 consecutive
seconds.
OPTICAL CARRIER LEVEL 1 (OC-1): The optical signal that results from
an optical conversion of an electrical STS-1 signal (51.840 Mb/s). This
signal forms the basis of the interface.
OC-3: Optical Carrier Level 3 signal operating at 155.520 Mb/s.
OC-12: Optical Carrier ▇▇▇▇▇ ▇▇ signal transmitting at 622.080 Mb/s.
OC-48: Optical Carrier ▇▇▇▇▇ ▇▇ signal transmitting at 2488.32 Mb/s.
POINT OF PRESENCE (POP): A physical location where Seller or one of
Sellers underlying Carriers terminates lines before connecting to the
local exchange carrier, another carrier, or directly to a customer.
2.3 The availability objective for all circuits between Seller Network
Interface points specified above is to provide performance levels over
a twelve month period as follows:
--------------------------------------------------------------------
V&H MILES DS1, DS3, OC-3, OC-12, OC-48, OC-3c,
OC-12c, AND OC-48c
--------------------------------------------------------------------
0-2500 99.999%
--------------------------------------------------------------------
2501-4000 99.998%
--------------------------------------------------------------------
This excludes any Client provided Interconnection Facilities or other
access links to Seller's digital network. Outages attributable to
incidental damage to or severage of outside cable plant or scheduled
maintenance are excluded from the performance objective stated above.
2.4 Error-Free Seconds (EFS) and Error Seconds (ES) are the primary measure
of error performance. An Error-Free Second
10
is defined as any second in which no bit errors are received.
Conversely, an Error Second is any second in which one or more bit
errors are received.
SONET: Synchronous Optical Network is a family of optical transmission
rates and interface standards.
SONET TRANSPORT: Services associated with carrying OC-1 or higher-level
signals.
SYNCHRONOUS TRANSPORT SIGNAL LEVEL 1 (STS-1): The basic electrical
signal with a rate of 51.840 Mb/s.
SYNCHRONOUS TRANSPORT SIGNAL LEVEL N (STS-N): This electrical signal is
obtained by byte interleaving N STS-1 signals together. The rate of the
STS-N is N times 51.840 Mb/s.
ACCEPTANCE CRITERIA: The acceptance criteria for DS1, DS3, OC-3, OC-12,
OC-48, OC-3c, OC-12c, and OC-48c Services between Seller Network
Interface points is to provide the performance levels shown below
during a 60 minute test period. If no errors are observed during the
first 15 minutes of the test, the Service may be considered acceptable.
Access connections to Client location will be tested in accordance with
▇▇▇▇ Publication 62508.
The tables below are based on Seller's Underlying Carrier's fiber optic
network only and on the Bellcore Specifications of the SONET delivery
of DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and OC-48c directly off
the SONET Backbone. If the DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c,
and OC-48c service is delivered at the STS1 level then the general
performance objectives fall into the industry standard.
Table 1 below defines the general performance objectives for DS1
service operating at 1.544 Mb/s, and the general performance objectives
for DS3 service operating at 45 Mb/s.
TABLE 1:
-------------------------------------------------------------------------------
V&H MILES EFS BER
-------------------------------------------------------------------------------
0 - 250 99.988% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
251 - 500 99.983% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
501 - 1000 99.971% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
1001 - 1500 99.959% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
1501 - 2000 99.948% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
2001 - 2500 99.936% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
2501 - 3000 99.925% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
3001 - 3500 99.913% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
3501 - 4000 99.902% 10 TO THE POWER OF NEGATIVE 15
--------------------------------------------------------------------------------
Table 2 below defines the general performance objectives for OC-3,
OC-12, OC-48, OC-3c, OC-12c, and OC-48c.
TABLE 2:
-------------------------------------------------------------------------------
V&H MILES EFS BER
-------------------------------------------------------------------------------
0 - 250 99.989% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
251 - 500 99.984% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
501 - 1000 99.974% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
1001 - 1500 99.964% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
1501 - 2000 99.954% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
2001 - 2500 99.944% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
2501 - 3000 99.933% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
3000 - 3500 99.923% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
3501 - 4000 99.913% 10 TO THE POWER OF NEGATIVE 15
-------------------------------------------------------------------------------
11