EXHIBIT 10.17
MASTER AGREEMENT FOR MCI ENHANCED SERVICES
This Master Agreement for MCI Enhanced Services, together with the ESA
Schedules annexed hereto (collectively, the "Agreement"), is made, effective as
of the Effective Date (as defined in Section 2 below), by and between MCI
Telecommunications Corporation and its appropriate affiliated companies
(collectively, "MCI") and Concentric Network Corporation with offices located at
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Customer").
1. MCI Enhanced Service(s).
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1.1 As used in this Agreement, the term "MCI Enhanced Service(s)" means all
commercially available MCI non-Tariffed services and associated equipment
provided by MCI to Customer pursuant to this Agreement and for which an ESA
Schedule has been annexed hereto, and shall not include any MCI Tariffed
services provided pursuant to any filed tariff of MCI or an MCI affiliated
company. The descriptions of MCI Enhanced Services set forth in the respective
ESA Schedules are subject to revision by MCI from time to time.
2. Service Term: Ramp Period
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2.1 The service term of this Agreement shall commence upon the Effective
Date and end thirty-six (36) months after the expiration of the Ramp Period (as
defined below) (the "Term"). After the expiration of the initial Term, the Term
shall be automatically extended on a month-to-month basis until such time as
either party provides the other with at least ninety (90) days prior written,
notice of termination. The "Effective Date" shall mean the first day of the
first full calendar month following the date upon which this Agreement is
executed by MCI, as indicated on the signature lines below
2.2 The Ramp Period shall begin on the Effective Date and end upon the
earlier of:
2.2.1 thirty (30) days after the date of Customer's written notice to MCI that
the Ramp Period be deemed terminated; or
2.2.2 eight (8) months after the Effective Date.
3. Revenue Minimum: Underutilization Charges: New Technology
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3.1 During each annual billing period of the Term beginning after the
expiration of the Ramp Period, (each, an "Annual Period"). Customer's
Net Usage under this Agreement shall equal or exceed [*] (the "MVR").
For purposes of this Agreement. "Net Usage" means recurring
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[*]Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
charges accruing to Customer's account, after application of all
discounts and credits, including without limitation charges for usage of
services provided by MCI and for the rental and/or maintenance of
equipment provided by MCI and excluding without limitation all charges
expressly excluded in the applicable ESA Schedule and all taxes and
surcharges.
3.2 If Customer does not satisfy the MVR for any Annual Period, then
Customer will pay to MCI an underutilization charge (which Customer
agrees is reasonable) equal to the [*].
3.3 Customer will not be liable for underutilization charges pursuant to
Paragraph 3.2 above where such underutilization charges arise solely as
a result of a [*], provided that in any case Customer shall use its best
reasonable efforts to: (1) direct to MCI new traffic or traffic not
currently carried by MCI in order to meet the MVR, and (2) retain MCI as
the provider of the service required pursuant to the [*]. In the event
Customer's Net Usage falls below [*] of the MVR during any Annual Period
as the result of a New Technology Change. Customer and MCI shall use
good faith efforts to renegotiate the terms and conditions of this
Agreement, including but not limited to all rates and discounts;
provided, however, that if a new agreement is not reached within sixty
(60) days after MCI's notice to Customer that Customer's Net Usage has
fallen below [*] of the MVR during an Annual Period, MCI may terminate
this Agreement without liability to Customer, upon ninety (90) days
prior written notice to Customer.
4. Provision of ESA Services.
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4.1 Each MCI Enhanced Service provided under this Agreement shall have a
corresponding ESA Schedule specifying the applicable rates, discounts
and other terms and conditions on which MCI will provide such MCI
Enhanced Service.
4.2 For all domestic and international access services provided in
conjunction with the MCI Enhanced Services, MCI shall be entitled to
immediately pass through to Customer any charges, fees, taxes and terms
and conditions of service imposed by access suppliers, including but not
limited to increases or decreases in telephone tariffs, communications
charges and access charges that are imposed or enacted by access
suppliers to MCI after the Effective Date.
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[*] Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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4.3 If at any time during the Term MCI tariffs any of the MCI Enhanced
Services provided pursuant to this Agreement (each a "Newly Tariffed
Service"). Customer and MCI agree to promptly execute appropriate
additional agreements and amendments to this Agreement the effect of
which shall be to eliminate the Newly Tariffed Service from this
Agreement and to incorporate such Newly Tariffed Service into an
agreement for MCI Tariffed services. Customer acknowledges and agrees
that MCI shall have no obligation to include any equipment provided
under this Agreement or any charges payable for such equipment in any
such agreement for Tariffed services.
5. Installation Credits.
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5.1 Customer shall be eligible for one-time credits in an aggregate amount
not to exceed [*] to be applied against one-time installation and other
one-time nonrecurring charges associated with implementation of MCI
Enhanced Services under this Agreement (the "Install Waiver"). The
application of the Install Waiver to each MCI Enhanced Service may be
more specifically described in the applicable ESA Schedule.
6. MCI Invoices; Payment; Surety.
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6.1 MCI shall invoice Customer on a monthly basis in the month succeeding
the applicable usage month. Customer shall pay the full amount of each
invoice, within thirty (30) days after the date of the invoice. MCI may
use amounts paid by Customer pursuant to any other agreement between the
parties to offset amounts owed by Customer to MCI pursuant to this
Agreement. Failure of MCI to timely invoice Customer for any amounts due
hereunder shall not be deemed a waiver by MCI of its rights to payment
therefor.
6.2 Upon MCI's reasonable request, Customer shall pay MCI weekly in advance
for MCI services provided pursuant to this Agreement. Such payments
shall be via electronic wire transfer to MCI's bank account. Such
payments must be received by MCI on Friday of each week by 2:00 PM EST,
if the payment date is a federal holiday, the payment must be received
by 2:00 PM EST the next business day. Customer shall make each
electronic wire transfer pursuant to the instructions set forth below,
but MCI may modify these instructions upon at least thirty (30) days
prior written notice to Customer. The amount of Customer's weekly wire
transfers shall be in an amount which is one-fourth of MCI's good faith
estimate of Customer's actual monthly usage, which estimate may be
revised from time to time. If the amount of Customer's prepayments in a
calendar month is less than its actual charges for said calendar month
as invoiced by MCI pursuant to Paragraph 6.1 above. Customer shall pay
the difference with its next wire transfer to MCI. Customer shall make
each electronic wire
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[*] Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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transfer pursuant to the following instructions. and understands that
failure to do so will result in cancellation of MCI services without
further notification.
Bank Name: The First National Bank of Chicago
ABA#:
DDA #:
Acct Name: MCI Telecommunication Corporation
Acct#:
Cust Name: Concentric Network Corporation
6.3 Customer shall make a separate claim in writing, with adequate support,
for any credit for service interruption to which Customer believes
itself entitled under this Agreement, and MCI and Customer will promptly
address and resolve the claim. The parties shall use reasonable
commercial efforts to resolve any such claim within sixty (60) days
after the date of MCI's notice thereof
6.4 Except as otherwise indicated herein, the charges specified in the
attached Schedule(s) do not include, and Customer agrees to pay, all
taxes levied by any duly constituted taxing authority against or upon
MCI Enhanced Services or otherwise arising out of this Agreement
(including, without limitation, any sales, gross receipts or value-added
taxes), except any such income tax based on or measured in whole or in
part by gross or net income, gross or net payments, profits, or net
worth of MCI or its affiliates (the "Taxes"); so long as, in the case of
foreign tax withholdings, Customer shall agree to cooperate with MCI in
providing foreign tax receipts to MCI; utilize best efforts to comply
with foreign tax laws; and utilize best efforts to provide MCI and/or a
foreign taxing authority with additional information to support MCI's
claim for foreign tax credit(s), as requested in writing by MCI.
7. Customer Obligations
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7.1 Customer shall be responsible for obtaining, installing, inter-
connecting and maintaining all equipment, software and/or communications
services necessary for inter-connection with MCI's network or otherwise
for use in conjunction with the MCI Enhanced Services. Customer shall
ensure that such equipment, software and/or services, including but not
limited to computer operating systems, are compatible with MCI's
requirements and that they continue to be compatible with subsequent
revision levels of MCI-provided equipment, software and services. MCI
shall exercise reasonable business efforts to provide Customer with
prior notice of an modifications in MCI's requirements that may affect
compatibility. Unless otherwise expressly agreed in writing. MCI shall
have no responsibility for the availability, capacity and/or condition
of any equipment, software or services obtained by
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Customer hereunder. Should Customer undertake to connect any MCI
products or services to any other service or network, Customer shall
indemnify and hold harmless MCI from any damages, costs, liabilities and
expenses resulting from such connection or attempted connection,
including but not limited to damages resulting from unauthorized use of,
or access to, MCI's network.
7.2 Customer shall take, at its sole expense, all physical and information
systems security measures reasonably necessary to protect all equipment,
software and systems provided by MCI and its subcontractors in
connection with the MCI Enhanced Services, whether owned by Customer,
MCI, or MCI's subcontractors. Further, Customer shall be responsible for
ensuring the security of Customer's data, and Customer acknowledges and
agrees that MCI shall have no liability for any loss resulting from any
unauthorized third-party access to any Customer data.
7.3 Customer agrees to provide MCI and its subcontractors and their
respective employees and agents access to Customer's sites where any MCI
Enhanced Services are provided (including access to associated
equipment) as reasonably necessary for MCI and its subcontractors to
perform the MCI Enhanced Services ordered hereunder.
7.4 Customer shall be responsible for obtaining any and all local permits
and licenses necessary for performance under this Agreement (including
each ESA Schedule annexed hereto). MCI shall reasonably cooperate with
Customer to assist in the obtaining of permits. Customer shall indemnify
and hold harmless MCI, its subcontractors and their respective agents
and affiliates from and against all damages, costs, liabilities and
expenses (including reasonable attorneys' fees) arising out of
Customer's failure to obtain the appropriate permits and licenses.
7.5 Customer is responsible for preparing all equipment installation areas
at Customer sites with adequate wiring, power sources, telephone
connections and other physical facilities and services that may be
necessary to implement the MCI Enhanced Services, and MCI shall have no
obligation to provide any MCI Enhanced Service that requires equipment
to be installed at any site(s) where such site requirements have not
been fulfilled. MCI shall cooperate with Customer to provide site
requirements.
8. Software and Documentation.
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8.1 All rights, including but not limited to copyright, patent, trademark
and other intellectual property rights, in any software and/or
documentation provided by MCI in connection with any MCI Enhanced
Service shall remain the exclusive property of MCI or its licensor(s).
MCI grants to Customer a non-exclusive license to use such software and
documentation solely for Customer's internal business purposes in
accordance with the terms of this Agreement. No portion of such software
or documentation shall be copied, decompiled, downloaded, translated, or
delivered to a third party without MCI's prior written consent,
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except that Customer shall be permitted to copy MCI-provided software
for Customer's internal emergency use.
9. Termination
9.1 A party may terminate this Agreement immediately upon notice to the
other party if (i) such other party dissolves, discontinues or
terminates its business to which this Agreement pertains; (ii) such
other party fails to pay its debts as they become due or admits that it
is, or is reasonably believed to be, unable to pay its debts as they
become due; (iii) any bankruptcy, reorganization, insolvency,
dissolution or similar proceeding is instituted against such other
party; (iv) such other party makes any assignment for the benefit of
creditors; or (v) such other parry takes any corporate action in
furtherance of any of the foregoing.
9.2 MCI may terminate this Agreement immediately upon notice to Customer if
Customer fails to meet any payment obligation hereunder and such failure
is not cured within ten (10) business days after Customer's receipt of
written notice from MCI notifying Customer of such failure. MCI may also
terminate this Agreement upon thirty (30) days written notice to
Customer if Customer fails to comply with any other material term of
this Agreement and Customer does not cure such failure within such
thirty (30) day period.
9.3 In addition to MCI's rights of termination under Sections 9.1 and 9.2
above, MCI may, immediately upon written notice to Customer, interrupt,
suspend and/or terminate any facility, equipment, or service provided
under this Agreement if:
9.3.1 MCI determines in its sole discretion that continued provision of such
facility, equipment, or service would contravene any national or
international regulation, law, or tariff; or
9.3.2 MCI determines that interruption or termination of an MCI Enhanced
Service is necessary to prevent or protect against fraud or otherwise
protect its personnel, agents, facilities, or services; or
9.3.3 Any third-party subcontractor or vendor to MCI is unable to continue to
provide such facility, equipment, or service for any reason; provided,
however, that where such third party has ceased to provide any facility,
equipment, or service, MCI will use reasonable efforts to continue to
provide to Customer a comparable facility, equipment, or service by or
through another vendor under comparable terms and conditions.
9.4 Customer may terminate this Agreement without further liability to MCI
upon thirty (30) days written notice to MCI if:
9.4.1 MCI fails to comply with a material term of this Agreement and does not
cure such failure within such thirty (30) day period; or
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9.4.2 as of the expiration of the Ramp Period, MCI fails to make the following
MCI locations available to Customer (per those specifications
communicated by Customer to MCI as of August 13,1996) for inclusion in
that certain Support Services Agreement by and between the parties,
dated August 9,1996; provided that such termination right shall be
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deemed to have expired upon Customer's written notice to MCI pursuant to
Paragraph 2.2.1 above that the Ramp Period be deemed terminated:
Auburndale, Florida; Austell, Georgia; Downers Grove, Illinois:
Charlton, Massachusetts and Hillburn, New York.
9.5 In the event Customer terminates this Agreement other than in accordance
with Section 9.4. then, in addition to any other rights and remedies
available to MCI. Customer shall pay to MCI an Early Termination Charge
(which Customer agrees is reasonable) equal to [*].
9.6 Either party may terminate this Agreement without further liability in
the event that the parties have not, within sixty (60) days after MCI
Tariffs a service provided pursuant to this Agreement, executed
appropriate additional agreements and/or Amendments to this Agreement as
set forth in Paragraph 4.3 above. All of the terms and conditions of
this Agreement shall apply during said sixty (60) day period, provided
that such application is permissible pursuant to regulatory and legal
constraints.
10. Warranty.
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10.1 MCI's warranty obligations, if any, with respect to each Enhanced
Service shall be set forth in the applicable ESA Schedule. EXCEPT AS
SPECIFICALLY SET FORTH IN THIS AGREEMENT (INCLUDING THE ESA SCHEDULES),
MCI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MCI ENHANCED
SERVICES. MCI SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY INTELLECTUAL
PROPERTY WARRANTIES OF ANY TYPE
11. Indemnification
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11.1 Customer agrees to indemnify MCI and its affiliates and their respective
employees, officers, directors, agents and subcontractors, and hold them
harmless against any damages and expenses incurred by any of them
arising out of Customer's acts, omissions and/or breach of its
obligations hereunder and/or Customer's use of any MCI Enhanced Services
in a manner other than as contemplated herein, including without
limitation any use that gives rise to infringement of any patent,
copyright, trademark, or other proprietary right of a third party,
except to the extent that such use constitutes a direct infringement by
Customer of a third party proprietary right that was solely contributed
to or solely induced by MCI.
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[*] Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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12. Export and Legal Compliance
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12.1 The parties acknowledge that certain equipment, software and technical
data which may be provided hereunder may be subject to export and re-
export controls under the U.S. Export Administration Regulations and/or
similar regulations of the U.S. or any other country. No party shall
export or re-export any such equipment, software, technical data or any
direct product thereof in violation of any such laws.
12.2 Customer is responsible for complying with alt laws and regulations,
including but not limited to import and customs laws and regulations.
MCI shall provide reasonable assistance to Customer and its affiliates
to facilitate such compliance. Such assistance may include preparation
of import and customs forms and/or, where requested by Customer, acting
as Customer's agent in the import process.
13. Limitation Of Liability.
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13.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL,
EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 WITHOUT LIMITATION OF THE PROVISIONS OF PARAGRAPH 13.1 ABOVE, THE TOTAL
LIABILITY OF MCI TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT SHALL BE
LIMITED TO THE LESSER OF (A) DIRECT DAMAGES PROVEN BY CUSTOMER OR (B)
THE AGGREGATE AMOUNTS PAID BY CUSTOMER TO MCI UNDER THIS AGREEMENT FOR
THE ONE (1) MONTH PERIOD PRIOR TO ACCRUAL OF SUCH CAUSE OF ACTION AND
FOR THE SPECIFIC PRODUCT OR SERVICE WHICH FORMS THE BASIS FOR SUCH CAUSE
OF ACTION. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTIONS AND
CLAIMS, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER
TORTS, FURTHER, NO CAUSE OF ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR
PRIOR TO THE INSTITUTION OF A LEGAL PROCEEDING ALLEGING SUCH CAUSE OF
ACTION MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER.
MCI SHALL NOT BE RESPONSIBLE FOR PROTECTION OF TRANSMISSION FACILITIES
AND CUSTOMER PREMISES EQUIPMENT FROM UNAUTHORIZED ACCESS. MCI SHALL NOT
BE LIABLE, EITHER IN CONTRACT OR IN TORT, FOR UNAUTHORIZED ACCESS TO, OR
ALTERATION, THEFT, OR DESTRUCTION OF, DATA FILES, PROGRAMS, OR
INFORMATION OF CUSTOMER WHETHER OCCURRING THROUGH ACCIDENT OR FRAUD.
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MCI'S LIABILITY WITH RESPECT TO INDIVIDUAL MCI ENHANCED SERVICES MAY
ALSO BE LIMITED PURSUANT TO THE TERMS AND CONDITIONS OF THE APPLICABLE
ESA SCHEDULE.
14. Confidential Information.
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14.1 Neither party shall disclose to any third party during the Term of this
Agreement, or during the three (3) year period after expiration or
termination of this Agreement, any of the terms and conditions of this
Agreement unless such disclosure is lawfully required by any federal
governmental agency, is otherwise required to be disclosed by law, is
necessary in any legal proceeding establishing rights and obligations
under this Agreement or is made to a third party under similar
confidentiality obligations. Each party reserves the right to terminate
this Agreement by giving written notice to the other party in the event
of any unpermitted third party disclosure hereunder.
15. Miscellaneous
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15.1 Neither party may assign this Agreement, or any rights or obligations
hereunder, without the prior written consent of the other party, which
consent shall not be unreasonably withheld. Any attempted assignment
without such prior written consent shall be void. Notwithstanding the
foregoing, MCI may assign this Agreement to its parent or any of their
subsidiaries or affiliates.
15.2 Other than as the result of an assignment permitted in accordance with
Paragraph 15.1 above, this Agreement shall not be deemed to provide
third parties with any remedy, claim, right of action, or other right
15.3 The construction, interpretation and performance of this Agreement, and
all causes of action arising out of this Agreement, whether in contract,
indemnity, warranty, strict liability, tort, or otherwise, shall be
governed as follows: (1) subject to the Communications Act of 1934, as
amended ("the Act"), by the Act; and (2) as to elements not controlled
by the Act, by the domestic law of the State of New York without regard
to its choice of law principles.
15.4 Any dispute arising out of or related to this Agreement, which cannot be
resolved by negotiations shall be settled by binding arbitration in
accordance with the J.A.M.S/ENDISPUTE Arbitration Rules and Procedures
("Endispute Rules"), as amended by this Agreement. The costs of
arbitration, including the fees and expenses of the arbitrator, shall be
shared equally by the parties unless the arbitration award provides
otherwise. Each party shall bear the cost of preparing and presenting
its case. The parties agree that this provision and the Arbitrator's
authority to grant relief shall be subject to the United States
Arbitration Act. 9 U.S.C. 1-16 et seq. ("USAA"), the provisions of this
Agreement, and the ABA-AAA Code of Ethics for Arbitrators in Commercial
Disputes. The parties agree that the arbitrator shall have no power or
authority to make awards or issue orders of any kind except as expressly
permitted by this Agreement, and in no event shall the arbitrator have
the
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authority to make any award that provides for punitive or exemplary
damages. The Arbitrator's decision shall follow the plain meaning of the
relevant documents, and shall be final and binding. The award may be
confirmed and enforced in any court of competent jurisdiction. All post-
award proceedings shall be governed by the USAA.
15.5 If any paragraph or clause of this Agreement shall be held to be invalid
or unenforceable by any body or entity of competent jurisdiction, then
the remainder of the Agreement shall remain in full force and effect and
the parties shall promptly negotiate a replacement provision or agree
that no replacement is necessary.
15.6 If either party fails, at any time, to enforce any right or remedy
available to it under this Agreement, that failure shall not be
construed to be a waiver of such party's right to enforce each and every
provision of this Agreement.
15.7 Any notice or other communication required to be given to the other
party under this given in Agreement shall be in writing, in the English
language and either (1) delivered in person, (2) sent by United States
certified or registered mail, postage prepaid, or (3) sent by an
overnight courier service, to the following addresses:
15.7.1 If to MCI:
MCI Telecommunications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: 408/▇▇▇-▇▇▇▇
Attn: Legal Department
15.7.2 with copy to:
MCI Telecommunications Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇. F. 2d Floor,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: 415/▇▇▇-▇▇▇▇
Attn: Branch Manager
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15.7.3 If to Customer:
Concentric Network Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: ▇▇▇ ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
15.7.4 The address for notice may be changed by giving written notice in
accordance with this Section. If mailed in accordance with this Section,
notice shall be deemed given three (3) days after mailing. If sent by an
overnight courier service, notice shall be deemed given one (1) day
after deposit with the courier service.
15.8 Any delay in or failure of performance by either party under this
Agreement (other than a failure to comply with payment obligations)
shall not be considered a breach of this Agreement if and to the extent
caused by events beyond the reasonable control of the party affected,
including but not limited to acts of God, embargoes, governmental
restrictions, strikes (other than those only affecting Customer),
subcontractor failures or delays, riots, wars or other military action,
civil disorders, rebellion, vandalism, or sabotage. Market conditions
and/or fluctuations (including a downturn of Customer's business) shall
not be deemed force majeure events. The party whose performance is
affected by such events shall promptly notify the other party giving
details of the force majeure circumstances, and the obligations of the
party giving such notice shall be suspended during but not longer than
the continuance of the force majeure, and the time for performance of
the affected obligation hereunder shall be extended by the time of the
delay caused by the force majeure event. In the event that a force
majeure event occurs, each party has the duty to mitigate or its
damages.
15.9 Nothing in this Agreement shall create in either party any rights in any
trademark, trade name, service ▇▇▇▇, insignia, symbol, identification
and/or logotype of the other party. Before either party uses any such
▇▇▇▇ of the other party, it shall obtain the prior written consent of
the other party.
15.10 This Agreement has been written in the English language and, in the
event of any conflict or inconsistency between the English-language
version and any translation hereof the English language version shall
prevail.
15.11 The headings and captions of the various sections of this Agreement are
included solely for convenience and shall not be deemed to be a part of
this Agreement or considered in construing the terms and conditions
hereof.
15.12 Unless otherwise expressly provided herein, all rights and remedies
provided for in this Agreement shall be cumulative and in addition to
every other right and remedy available under this Agreement or otherwise
at law or in equity.
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15.13 This Agreement, including the ESA Schedules (which are incorporated
herein by this reference), constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and there are
no representations, understandings or agreements relative thereto which
are not fully expressed herein. No amendment, change, waiver, or
discharge hereof shall be valid unless in writing and signed by an
authorized representative of the party against which such amendment,
change, waiver, or discharge is sought to be enforced.
15.14 The parties have duly executed and agreed to be bound by this Agreement
as evidenced by the signatures of their authorized representatives
below. Each party represents and warrants to the other that the
signatory identified beneath its name below has full authority to
execute this Agreement on its behalf.
15.15 Customer must sign and return to MCI this document in duplicate on or
before September 18, 1996. After such time, Customer's ability to make
an offer to MCI consistent with the terms and conditions stated in this
document shall be deemed terminated.
MCI Telecommunications Corporation Concentric Network Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. Authofer
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. Authofer
--------------- -------------------------------
Title: Director Title: VP & CFO
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Date: 10/23/96 Date: Sept. 11, 1996
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ESA Schedule No. 1
MCI Hyperstream Asynchronous Transfer Mode Service
1. Description: MCI Hyperstream Asynchronous Transfer Mode (ATM) is a
connection oriented public/private network data service. Hyperstream
ATM - is a cell-based broadband technology which allows seamless high
speed wide area and local area network connections. A wide range of data
applications connect with HyperStream ATM including local area network
(LAN) interconnections, high-speed transmission of digitized, medical
imaging across the country' and desktop videoconferencing enabling users
to share multimedia applications.
2. Rates & Charges; Net Usage.
[*]
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[*]Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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2.0.1 Monthly Recurring Charges (simplex):
[*]
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[*]Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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2.1 "Net Usage" of MCI Hyperstream Asynchronous Transfer Mode Service shall
include only Recurring Port and Usage Charges, as set forth above. "Net
Usage" shall not include Nonrecurring Port and Usage Charges or Access
charges, as set forth above.
3. [*]
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[*] Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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