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Exhibit 10.12
VOYAGER
N E T W O R K S , I N C
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▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇▇ ▇▇▇ ▇▇▇▇
COLLOCATION AND FACILITIES MANAGEMENT
SERVICE AGREEMENT
The terms and conditions upon which VOYAGER NETWORKS, INC. (VNI) located at ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ F1: ▇-▇▇ ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇.▇.▇. will lease certain space and
provide to USFI, Inc. ("USFI") located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇: 12th
New York, N.Y. 10036, Collocation and Facilities Management Services throughout
the United States on this 22nd day of May, 1995, are defined as follows:
1. RESPONSIBILITIES AND UNDERTAKINGS
(a) VNI Shall provide full space for USFI-related Equipment.
USFI's space will be in VNI's Collocation Center located on
the mezzanine floor (north) of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ and will consist of approximately 160 square feet of
space. All Charges will be in accordance with Attachment (A)
hereto. VNI understands and agrees that the space will be
utilized by USFI for housing switching and other
telecommunications equipment to be installed therein by USFI
and that USFI may have one or more persons occupy such space
based upon VNI's business hours in accordance with subsection
1(f). VNI represents that the space is suitable for such
purpose and that adequate air conditioning and electric power
are available in the space for the purpose for which USFI
intends to use the space. USFI Agrees it will not resell their
collocation space to any other entities.
(b) In addition to the Space, upon the request of USFI, to extent
available, VNI shall provide additional space for USFI-related
equipment in the VNI Collocation Center. Additional space will
be provided by VNI in single rack or cabinet increments. A
rack or cabinet is defined as a volume no greater than 23
inches wide, 28 inches deep and 84 inches high. The height and
depth specifications are physical limitations of VNI's
Collocation Center and cannot be exceeded. A rack or cabinet
in excess of 23 inches in width will be considered to be
multiple racks or cabinets. A rack, cabinet, or equipment
enclosure of a width less than 23 inches will still be
considered a complete rack under this agreement.
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(c) USFI shall be deemed the sole owner of its equipment installed
at VNI's Collocation Center located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, whether in the area described in 1(a) or 1(b).
(d) VNI currently employs and will continue to employ technical
staff, sufficient and capable, to maintain and manage
technical communication collocation facilities. Upon the
request of USFI, VNI technical staff will perform necessary
technical work related specifically to USFI-owned or leased
equipment and/or services to USFI customers facilities on a
"time and material" basis as set forth on Attachment (A).
(e) Requests for all additions, moves, or changes, must be in
written form from USFI to VNI. Upon such request, VNI will use
all means to effectuate such additions, moves or changes.
(f) USFI personnel shall have access to its equipment at the
Collocation Center, 24 hours per day, seven days a week. VNI
agrees that by January 1, 1996, it will maintain a person,
with technical skills capable of servicing all Collocation
Center Customers 24 hours per day, Monday through Saturday.
Until then, it will maintain such a person at least from 8:00
a.m. to 6:00 p.m. during weekdays (both before and after
January 1, 1996). VNI will maintain the availability of a
technical person on call as set forth on Attachment (A). Such
person shall provide access to the Collocation Center and the
services requested within two hours of any call.
2. PAYMENT
(a) The monthly charges for all Services used shall be payable in
U.S. dollars within 30 days from the date of VNI's invoice
therefore. Payment shall be remitted to VNI at the address or
wired to the account set forth in subsection (11.) herein, and
will not be deemed to have been made until the funds are
received by VNI.
(b) Any payment (including monthly service charges due under this
section or any other amount due hereunder) not made when due
will be subject to a late charge of 1 1/2% per month.
(c) Upon the expiration of the Initial Service Term (as specified
in subsection -9, VNI shall have the right to adjust rates
upon 120 days notice to USFI in accordance with the (Cost of
Living) contained in subsection (9).
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3. HOURLY RATE FOR ADDITIONAL SERVICES
(a) When VNI field personnel assistance is requested by USFI for
resolution or coordination of problems, USFI agrees to pay VNI
a per hour rate set forth in Attachment (A) hereto.
(b) For any services which it may require, UAFI shall contact VNI
Customer Service as specified in subsection (11.) herein.
4. INTERCONNECT TO USFI PRIVATE LINE CUSTOMERS
(a) All costs and arrangements for local interconnect to the VNI
Collocation Center shall be subject to Attachment (A) and will
be USFI's responsibility, unless otherwise agreed to by the
parties in writing. USFI facilities management personnel must
coordinate with VNI in the exchange of technical information
relating to the interface circuitry and the local interconnect
in order to provide Connecting Facilities Assignment ("CFA")
prior to making Customer's interface arrangements. In
addition, for Services provided hereunder, USFI agrees to
provide VNI notice of at least ten (10) working days prior to
the projection of service coming on line, along with a copy of
all Access Service Requests ("ASR's"), confirmations and
Design Layout Reports. Any delays occasioned by USFI's failure
to comply with the requirements of this section shall not
delay VNI's billing for services rendered. Coordination
regarding exchange of technical information relating to
interface circuitry and local interconnects shall be provided
to VNI as specified in subsection (11.) herein.
(b) At USFI's request in writing, VNI will arrange for USFI, at
USFI expense, local interconnects required to interface with
USFI Customer's facilities.
(c) Upon the written request of USFI, USFI will authorize and VNI
agrees to act as USFI's agent in the turning-up of local
Interconnects and to provide on-going loop maintenance between
VNI Collocation and any third-party facilities of USFI's
customers.
(d) All interconnects must be at the Ds3, Ds1 or Ds0 level
utilizing up to 28 T1's per Ds3, 24 ports per Ds1 and 8 ports
per Ds0. The interface point for VNI's Service will be VNI's
DSX's "CROSS-CONNECT".
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5. EQUIPMENT SYSTEM FORECAST
USFI agrees that it has or shall provide to VNI, with each Signed
Addendum to this Agreement, an initial one month forecast for equipment
system usage or new installations. In the event USFI anticipates a
significant change in systems volume or routing telecom patterns, an
updated forecast must be submitted to VNI, in writing, 30 days in
advance of such system usage, volume or routing telecom change.
6. FORCE MAJEURE
Neither Party shall be liable for any failure or delay in performance
caused by labor dispute, fire or other casualty, weather or natural
disaster, damage to facilities, the conduct of third parties, or other
cause beyond its reasonable control ("force majeure"), provided that if
such failure or delay shall continue for more than ten (10) days, USFI
shall have the right to terminate this Agreement by notice to VNI.
7. EMERGENCIES AND INTERRUPTIONS
In case of an interruption of any transmission services furnished
hereunder, VNI shall use reasonable diligence under the circumstances
to restore service. If VNI elects, it may substitute an equivalent
service. Except in the case of gross negligence, VNI's liability for
all mistakes, errors, omissions, interruptions, delays or defects in
transmission occurring in the course of engineering, installation and
operation of its system or the provision of Services shall in no event
exceed the charges paid by USFI for the period of time during which
mistakes, errors, omissions, interruptions, delays or defects in
transmission occurred. In no event shall VNI be liable for any special,
consequential or incidental damages. In the event USFI experiences a
service interruption for reasons other than Force Majeure which results
in the loss of 25% of USFI's traffic for a period of 3 hours or more,
or if VNI fails to provide service in accordance with industry
standards and fails to cure its failure within ten (10) days, USFI
shall have the right to terminate this agreement.
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8. DEFAULT
(a) Either Party shall be in default if it fails to timely perform
its obligations under this Agreement or any other agreement
with an affiliate of the other, or becomes the subject of any
proceedings under any bankruptcy or insolvency laws. Upon such
default by a Party (other than a service interruption as
described in Section 7 hereof) the other may, provide written
notice to the defaulting Party of such default, allowing
thirty (30) days, for the default to be cured. If the default
is not cured within that 30 days, the non-defaulting Party
may, upon ten (10) days' notice to the other, terminate this
Agreement, one or more Addenda hereto or any other agreement
in force between the Parties, and pursue all other available
remedies at law and in equity, all of which shall be
cumulative.
(b) If this Agreement or any Addendum is terminated by VNI during
the Initial Service Term or any Addendum thereto as a result
of USFI default or is terminated or repudiated by USFI. USFI
shall be liable for liquidated damages equal to 75% of the
monthly charge for the terminated Services for the remainder
of the Initial Service Term under the applicable Addendum, or
such other percentage as may be stated in the Addendum.
(c) Subsequent to termination of Services for cause and prior to
any reinstatement of VNI's Services to USFI, the parties shall
agree upon the amount of any reconnect charges, increase in
service rates and/or security deposit required hereunder; it
being understood, however, that in the event of termination,
VNI may sell the Services to others.
9. TERM OF THIS AGREEMENT
Unless sooner terminated as herein provided, the term of this Agreement
shall be for a 12 month period, commencing on this 1 day, of June 1995
(the "Initial service Term").
USFI shall have the option, to be exercised by notice to VNI given at
least thirty (30) days prior to the expiration of the initial one-year
term or any option term, to extend the term hereof for up to three (3)
additional two year periods upon the terms and conditions provided
herein. All option terms indicated above, will be subject to standard
"Cost of Living"
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index, increments based upon a March to March Year. The confidentiality
provisions of subsection (14-h.) herein shall survive termination of
this Agreement.
10. INDEMNIFICATION
USFI and VNI shall each indemnify the other against all loses, claims,
damages, expenses and liabilities (including reasonable attorneys' fees
and court costs) arising out of or relating to (I) personal injury or
property damage (including any damage to the facilities or equipment of
the other, any connecting carrier, or any other third party), caused by
any act, error or omission of, or any condition created by, either of
them or their respective employees, agents, equipment or other
property; or (II) any breach of any representation, warranty or
covenant made by either of them herein; or (III) claims by the
customers of either of them, or any other third parties with whom
either conducts business (to the extent that such claims arise out of
operations or activities hereunder).
11. NOTICES AND OTHER COMMUNICATIONS
(a) Unless written notice of a change is given to USFI, payments
to VNI shall be sent as follows:
VOYAGER NETWORKS, INC.
CITIBANK
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▇▇▇▇▇▇▇▇, ▇.▇ ▇▇▇▇▇
ABA Routing Number: ▇▇▇▇▇▇▇▇▇
Account Number: ▇▇▇▇▇▇▇▇
(b) Documentation and coordination regarding exchange of technical
information relating to interface circuitry and local
interconnects shall be sent to:
▇▇▇▇ ▇▇▇▇▇▇
Network Manager
Voyager Networks, Inc.
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▇▇▇ ▇▇▇▇, ▇.▇ ▇▇▇▇▇ ▇.▇.▇.
(c) Telephone notification of need for assistance for resolution
or coordination of service problems shall be reported by USFI
to VNI's Customer Service Office at ▇▇▇-▇▇▇-▇▇▇▇ and by VNI to
USFI at (▇▇▇) ▇▇▇-▇▇▇▇.
(d) All other notices to VNI relating to this Agreement shall be
in writing and personally delivered, telecopied or sent by
certified mail, return
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receipt requested, or overnight courier service to:
Voyager Networks, Inc.
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▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇.▇.▇.
Attention: ▇▇▇▇▇ ▇▇▇▇
Title: Director of Operations
Facsimile: 212-571-2036
(e) Unless written notice of a change is given by USFI to VNI, all
notices and other communications to USFI shall be in writing,
telecopied or sent by certified mail, return receipt
requested, or overnight courier service to its address as set
forth on the face of this Agreement or to facsimile number
▇▇▇-▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
12. FUTURE OPPORTUNITIES:
USFI and VNI may elect to combine areas of expertise and customer base
to establish specific joint venture opportunities.
13. COMPLIANCE WITH LAWS
Each party shall comply with all federal, state and local laws with
respect to the Services and this Agreement. Each party agrees to
provide evidence of all necessary authorizations and approvals of
public authorities which the other may reasonably request.
14. MISCELLANEOUS
(a) This Agreement may not be assigned by either party in whole or
in part without the prior written consent of the other party,
which consent shall not be unreasonably withheld, except that
USFI and VNI shall have the right to assign this Agreement to
one of its affiliates and USFI shall have the right to assign
this Agreement in connection with the sale of all or
substantially all of its assets and to the lenders in
connection with any financing transaction to which it is a
party.
(b) This Agreement and any documents attached hereto constitute
the entire agreement between the parties and supersede all
prior agreements, whether written or oral, with respect to the
specific services being provided hereunder. In case of any
conflict between this Agreement and the terms of any documents
attached
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hereto, the terms of the documents attached shall control
insofar as the services covered thereby are concerned.
(c) This Agreement shall become effective when accepted by an
authorized officer of USFI and VNI. The negotiation of any
check representing a payment or security deposit under this
Agreement or any Addendum shall not in itself constitute an
acceptance thereof.
(d) The terms and provisions of this Agreement may only be waived,
modified or changed by an amendment in writing signed by both
parties hereto. No failure by either Party to insist upon the
other's performance of any obligation hereunder shall
constitute a waiver of the obligation and the parties may
require compliance with any such obligation at any time.
(e) If VNI or USFI institutes legal proceedings to enforce any
provisions hereof, in addition to any other relief awarded by
the court, the prevailing party shall be entitled to recover
its own reasonable attorneys fees and other associated costs.
(f) If any provision of this Agreement shall be determined to be
invalid or unenforceable, the remainder of the Agreement shall
continue in full force and effect.
(g) This Agreement shall be governed in all respects by the
internal laws of the State of New York. The parties hereby
subject themselves to the jurisdiction of the State of New
York, for the resolution of any dispute arising hereunder and
agree that venue in any suit filed in those courts shall be
proper.
(h) VNI shall not use or disclose, or allow its representatives,
agents or employees to use or disclose any information
concerning USFI, which any of them have learned or shall learn
in connection with this Agreement or the performance of any
service or obligation hereunder or pursuant hereto, including,
but not limited to, technical information, methods of doing
business, rate information, and information concerning terms
or customers except that VNI may release such information upon
written approval of USFI.
(i) VNI will use its best efforts to assist USFI for moving
equipment in and out of the premises, whether on weekends,
evenings or during the business day.
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IN WITNESS WHEREOF, the undersigned hereby acknowledge that they have read and
fully understand the foregoing Agreement and, further, that they agree to each
of the terms and conditions contained herein.
Accepted and Agreed by:
By: 5/22/95
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Authorized Signature for USFI, Inc. DATE
PRINT:
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TITLE:
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Accepted and Agreed by:
By: 5/23/95
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▇▇▇▇▇ ▇▇▇▇▇▇▇ for VOYAGER NETWORKS INC. DATE
TITLE: Chief Operating Officer
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By: 5/22/95
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ of VOYAGER NETWORKS, INC. DATE
TITLE: Director of Telecom & Network Development
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ATTACHMENT (A)
COLLOCATION SERVICE PROVIDE FOR USFI AT ITS REQUEST
1. Switch Partitioning
(A) Switch partitioning via Least Cost Routing
Which includes:
* Common Hardward Logic; --
* Software Configuration; --
* Custom Least Cost Routing profile; --
* One Switch T1 Port --
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$2,800.00 per month
(B) Additional Switch T1 Port interconnect: $275.00 per month
(C) There is a one time installation of switch partition charge of $1,500.00.
(Includes cost of time and material - labor billed at $45.00/hr). This is
to be paid prior to installation of the switch partition.
2. Interconnection to Long Distance Carriers using VNI conduits is $225.00
per T-1, per month with % discounts equal to;
5 < 10 Carrier interconnects = 10% off list price
11 < 15 Carrier interconnects = 20% off list price
16 < ** Carrier interconnects = 30% off list price
*Discounts apply to all T-1 interconnects
*USFI is not required to use VNI for Long Distance
Interconnections.
3. Upon USFI request, VNI will provide USFI direct access to MFS, Teleport,
and NYNEX at no extra charge above the LEC charge.
4, USFI will directly contract for all Carrier Services it wishes to use.
VNI will coordinate all orders for USFI.
5. With USFI collocation space additional Customer POP Rack space will be
billed at a rate of $467.50 per month.
6. Additional UPS power will be billed at $125.00 per 10amp, per Month based
upon 10amps increments.
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7. VNI currently employs technical staff to maintain and manage the network
and other technical operations, USFI will have the option to allow VNI's
technical staff to perform necessary technical work related specifically
to USFI owned or leased equipment and/or services on a "time and
material" basis and equal to the hourly rate of $45.00. If any technical
work is under 15 minutes, there will be no charge.
8. All adds, moves, changes, for customer "POP" or request from USFI must
come in written form.
9. Access to the customer "POP" will be available during normal VNI business
hours. Off Hour Access must be scheduled in advance (except in the case
of an emergency) and supervised by an authorized VNI employee and will
result in an hourly rate charge of $45.00/hr to USFI. (2 hour minimum).
10. Partition of Space of approximately 160 sq feet with up to 40amps of
power will be at a cost of $4,600.00 per month.
11. Until VNI begins its 24hr services, USFI will pay VNI $1000.00 for 40hrs
of technical support per month. If USFI exceeds 40hrs, USFI agrees to pay
VNI $45.00 Per hour for all technical support. After VNI goes to 24hr
service, USFI will pay VNI $45.00 per hour for all technical support.
*$5,600.00 deposit required upon signing of the Collocation and Facilities
Management Service Agreement.
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