Exhibit 10.4
DATA SERVICES AGREEMENT
Agreement No. _______________
This Data Services Agreement (this "Agreement") is made this 19th day of
March, 2001, by and between ▇▇▇▇▇▇▇▇ Vyvx Services, a business unit of
▇▇▇▇▇▇▇▇ Communications, Inc., a Delaware corporation ("Seller"), with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and iBEAM Broadcasting Corporation ("Customer"), with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, for the provision of telecommunications services, subject to this
Agreement and as set forth in this Agreement.
1.0 Exhibits
Exhibit I - ▇▇▇▇▇▇▇▇ Vyvx Services Pricing Schedule
Exhibit II - ▇▇▇▇▇▇▇▇ Vyvx Services Technical Specifications
Exhibit III - Sample Service Order
Exhibit IV - ▇▇▇▇▇▇▇▇ Vyvx Services Troubleshooting Procedures
2.0 Description of Services Customer may order from Seller telecommunications
transmission services ("Services"), the terms and conditions of which are set
forth in this Agreement. The current ▇▇▇▇▇▇▇▇ Vyvx Services Pricing Schedule is
attached to this Agreement and incorporated herein by reference. All Services,
Local Access Services and Ancillary Services, as defined in Section 5.0 and 6.0,
are subject to availability. The terms "Services" and "Ancillary Services" in
this Agreement refer only to such transport telecommunications services between
two locations traversing Seller's owned and operated network both end points of
which originate or terminate at a Seller point of presence ("On-Net"), unless
otherwise specifically noted herein. Any off-net service arranged for Customer
by Seller is on an individual case basis and the terms and conditions governing
the arrangement of such off-net services shall be those of the third party
provider of such services. The general provisions of this Agreement, including
limitation of liability and indemnity, are applicable to Seller's arrangement of
such off-net, third party provided services.
2.1 Description of Private Line Service: ▇▇▇▇▇▇▇▇ Vyvx Services Private
Line Service (the "Private Line Service") provides domestic ▇▇-▇, ▇▇-▇ and
optical SONET (OC-N) circuits which are specifically dedicated to
Customer's use between two (2) points specified by the parties in a
Service Order and meeting the technical requirements as defined in the
"▇▇▇▇▇▇▇▇ Vyvx Services Technical Specifications for Private Line Service"
attached hereto as Exhibit II.
2.2 Description of ATM Service: ▇▇▇▇▇▇▇▇ Vyvx Services Asynchronous
Transfer Mode Service (the "ATM Service") is technology that provides
integration of disparate networks onto a single communications
infrastructure. ATM technology takes voice, data and video packets and
divides them into equally sized, 53-byte cells and transmits them over
Seller's ATM network. Seller's ATM Service is designed for two (2) primary
applications. These applications include ATM transport and backbone
connectivity. ATM transport provides multimedia and video transmission.
Multimedia transmission is suited for transporting voice, data and video
while video transmission is best designed for point-to-point video
services. Backbone connectivity provides for
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the interconnection of local area networks ("LAN(s)") as well as
interconnection of existing network access points ("NAP(s)") or private
peering backbones.
2.3 Description of Frame Relay Service: ▇▇▇▇▇▇▇▇ Frame Relay Service is a
technology that allows commercial end-users to use a network of shared
private lines to send and receive data from geographically distant
locations. Frame Relay can be defined as packet-switched, multiplexed data
networking technology supporting connectivity between user equipment, such
as routers, and a carrier's frame relay network equipment.
3.0 Effective Date and Term
This Agreement shall become effective on April 7, 2000 ("Effective Date") and
shall continue for a term of one (1) year after the date on which Seller signs
the Agreement (the "Term"). Each Service Order placed under this Agreement shall
have its own term, as indicated on such Service Order. This Agreement shall
automatically renew for successive one-year periods (the "Renewal Term(s)")
unless canceled by either party by giving written notice of such cancellation
not less than sixty (60) days before the end of the current Term, or any Renewal
Term. Unless Customer is in default, or if covered under Sections 8.2 and 8.4 of
this Agreement, any Service being provided at the time of termination shall
continue until the natural end of such Service as specified in the applicable
Service Order upon the terms and conditions of this Agreement; provided,
however, that Customer may not order any new Service until Customer and Seller
have entered into a new agreement or mutually agreed in writing to extend this
Agreement. The charges for any Services, Local Access Services or Ancillary
Services during any such extension shall be the then current Seller charges.
4.0 Service Orders and Provisioning of Circuits
4.1 Services requested by Customer hereunder shall be requested on
Seller's Service Order forms in effect from time to time or on Customer's
forms accepted in writing by Seller ("Service Order(s)"). A Sample Service
Order form is attached hereto and incorporated as Exhibit III. Each
Service Order shall reference this Agreement and its respective Agreement
number. Seller reserves the right not to accept a Service Order under this
Agreement at any time.
4.2 When a Service Order is placed, the Customer will indicate a requested
start date (the "Requested Start Date") for the Service, the desired term
of the Service, the specific city pairs, the applicable bandwidth and any
other information necessary for Seller to provide the Service. .
Customer's Requested Start Date will be the Requested Start Date passed on
to the Local Exchange Carrier and the basis for any adjustments set forth
below. Seller will make reasonable efforts to meet Customer's Requested
Start Date. In the event that a Requested Start Date is altered,
Customer's Requested Start Date will be changed to reflect the number of
days of delay or advance, as appropriate (the "Actual Start Date").
Changes to Customer's Requested Start Date are further limited pursuant to
Sections 4.5 and 4.6.
4.3 This Agreement shall apply to all Services, Local Access Services and
Ancillary Services provided by Seller to the Customer whether pursuant to
a Service Order or otherwise.
4.4 Seller's standard service implementation interval for Services
provided on Seller's owned and operated network is forty-five (45) days
from acceptance of a Service Order by Seller's Customer Care department.
Such acceptance shall be indicated by the signature of a representative of
such department on the Service Order. The standard service implementation
interval for Services provided by a third party and either partially or
wholly off of Seller's owned
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and operated network shall be determined on an individual case basis.
Seller shall make reasonable efforts to provide Services within its
standard service implementation interval or on Customer's Requested Start
Date. Failure of Seller to deliver by such date shall not constitute a
default under this Agreement and Seller shall not be liable to pay to
Customer any penalties or damages for Seller's failure to meet such
standard service implementation intervals. Seller will make reasonable
efforts to coordinate Actual Start Date with Customer Requested Start Date
and will act on behalf of Customer with the Local Access Providers during
installation and testing to ensure circuit is fully operational, meets
technical specifications and to delay acceptance of circuits as may be
requested by Customer on an individual case basis subject to the policies
of the applicable Local Exchange Carrier.
4.5 Seller will issue notice to Customer of the Actual Start Date which is
the Planned Test Date ("PTD") for each individual Service Order. The
Actual Start Date is the date Seller will accept services from the Local
Exchange Carrier ("LEC") on behalf of the Customer and commence testing
and billing for Local Access Services. Customer may request a one-time
delay or change in the Actual Start Date or Requested Start Date of a
Service Order provided that (i) it provides the Seller a written delay
request no later than three (3) business days prior to the Planned Test
Date or Requested Start Date, as the case may be, (ii) the aggregate
number of the days requested does not exceed thirty (30) calendar days
from the Service Order's original Requested Start Date, and (iii) it is
consistent with the policies of and approved by the LEC. At the expiration
of such thirty (30) day period, the Customer may no longer delay the
Actual Start Date of such Order and Seller may begin billing as of such
date.
4.6 Services shall begin on the date Seller issues notice that Service is
available (the "Start of Service Notice" or "SOSN"), indicating that the
Service has been tested by Seller in accordance with the Technical
Specifications set forth in Exhibit II attached hereto and that the
Service meets or exceeds those Technical Specifications (the "Actual Start
Date"). If Customer fails to give written notice that the Service is in
material non-compliance with the applicable Technical Specifications
within three (3) business days after Seller issues the SOSN, Customer
shall be deemed to have accepted such Service and Seller shall begin
billing for the Service as of the Actual Start Date. All billing and
acceptance of local loops ordered on behalf of Customer will start on the
Actual Start Date. Customer will reimburse Seller for all Local Access
Charges and shall be liable for any termination charges from Local Access
Providers once accepted by Seller on Customer's behalf. Billing for
Circuit Port and PVC charges will be delayed for ten (10) calendar days
from the Actual Start Date provided Customer is not utilizing the circuit
for other than testing purposes.
4.7 Any conflicting, different or additional terms and conditions
contained in Customer's acknowledgement or Service Order or elsewhere are
objected to by Seller and shall not constitute part of this Agreement
unless mutually agreed to in writing by both parties. No action by Seller
(including, without limitation, provision of Services, Local Access
Services or Ancillary Services to Customer pursuant to such Service Order)
shall be construed as binding or estopping Seller with respect to such
term or condition.
4.8 Once the Actual Start Date has passed, Customer must pay for the
Services, Local Access Services or Ancillary Services as indicated on the
Service Order through the term indicated on such Service Order, regardless
of whether Customer is actually using the Services.
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5.0 Local Access Services
5.1 Unless the parties otherwise agree pursuant to Section 5.3 below,
Seller shall obtain "Local Access Services" for Customer, which are
defined as the telecommunications facilities connecting a
Customer-designated termination point to a Seller Point of Presence
("POP"). Customer shall execute a Letter of Agency, on such form as
provided by Seller, authorizing Seller to interact directly with the Local
Access provider(s) to obtain the Local Access Services. Customer shall
request all Local Access Services in writing to Seller. Customer shall be
responsible for all charges, including without limitation, monthly
charges, usage charges, installation charges, non-recurring charges, or
applicable termination/cancellation liabilities, of the Local Access
provider(s) for the length of the term of the Service Order only. Seller
shall use reasonable efforts to negotiate the reduction or elimination of
any termination liability or cancellation charges with the applicable
Local Access provider.
5.2 In obtaining Local Access Services, Seller shall be responsible for
provisioning and the initial testing of an interconnection between the
interexchange Service set forth in a Service Order and the Local Access
Services. Seller will coordinate the installation of the Local Access
Services with the interexchange Service being provided by Seller. Charges
to Customer for Local Access Service administered by Seller on behalf of
Customer shall be billed to Customer at the pass through tariff rate of
the Local Access service provider for the term on each Customer Service
Order plus a monthly management fee per the schedule below. Billing for
Local Access will begin on the date Seller accepts the service from the
Local Access Provider. If the tariff rate for Local Access Services is
changed by the Local Access service provider, such changes will be passed
through to Customer.
Local Access Services Management Fee Schedule
Port Size Monthly Fee
T1 $ 25.00
DS3 $250.00
OC3 $250.00
5.3 Customer may, upon notice to Seller on the applicable Service Order,
order its own Local Access Services. In such event, Customer shall be
billed directly by the provider of such services and Seller shall not be
responsible for billing any such charges. If Customer orders its own Local
Access Services, Customer shall be responsible for ensuring that such
services are turned up at the same time as the Services being provided by
Seller. In the event the Customer-ordered Local Access Services are not
ready at such time as the Services being provided by Seller, Seller shall
nevertheless have the right to begin billing for such Services as of the
Actual Start Date and Customer shall be liable for payment for such
Services as of such date. Seller will not be responsible for outages of
local access circuits and troubleshooting local access circuits ordered by
Customer but will coordinate and test end-to-end with local access
providers as needed by Customer.
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6.0 Ancillary Services and Charges
6.1 Seller may provide extraordinary service to Customer for reasons
including but not limited to: (a) Customer's request to expedite Service
availability to a date earlier than Seller's published installation
interval or a previously accepted start date; (b) Service redesign or
other activity occasioned by receipt of inaccurate information from
Customer; (c) reinstallation charges following any suspension of the
Service for cause by Seller; (d) Customer's request for use of routes or
facilities other than those selected by Seller for provision of the
Service; and (e) other circumstances in which extraordinary costs and
expenses are generated by Customer and reasonably incurred by Seller
(services under this subsection are collectively referred to herein as
"Ancillary Services"). Customer shall be liable for all charges for any
Ancillary Services provided by Seller.
6.2 If Customer desires to change the date on which Customer has requested
that Service be available, other than a request to expedite Service as set
forth above, Customer may be charged a Change of Service Date Charge. Such
charge will not apply to Customer's first change request, as long as such
request is made more than fifteen (15) business days prior to the original
Requested Start Date. If Customer makes a second change, or such change is
requested less than fifteen (15) days prior to the original Requested
Service Date, Customer will be charged Seller's then applicable Change of
Service Date Charge. Customer will also be charged for any charges
incurred by Seller from third party providers as a result of Customer's
request for Change of Service Date.
6.3 If Customer requests a modification to the information contained in a
Service Order (other than a Change of Service Date) prior to completion of
installation of the Service, Customer may incur a Change of Service Order
Charge. No charge will be incurred if the change is administrative in
nature (i.e. billing address, contact information, etc.). A charge will be
incurred if the administrative change relates to Local Access for which
Seller is acting as agent.
6.4 If Customer requests a change to Services after such Services have
been installed, Customer may incur a Change of Service Charge. If such
Change of Service is administrative in nature, Customer will not incur a
charge, unless such administrative change applies to Local Access Services
which have been ordered by Seller as agent for Customer. In addition to
the Change of Service Charge, Customer will be responsible for any charges
due to re-engineering which is required as a result of Customer's request
for Change of Service.
6.5 If Customer desires to cancel a Service Order prior to installation
and acceptance of the Service, Customer will incur a Cancellation Charge.
In addition to the Cancellation Charge, Customer will be required to
reimburse Seller for any cancellation charges relating to Local Access or
off-net service for which Seller is acting as agent.
6.6 All charges referred to in this Section 6.0 shall be established as of
Seller's acceptance of the Service Order to which they apply unless they
are otherwise specifically set forth in the ▇▇▇▇▇▇▇▇ Vyvx Services Pricing
Schedule as non-recurring charges. Such non-recurring charges will be set
forth for each type of Service available under this Agreement. Ancillary
Charges are detailed in Exhibit I attached hereto.
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7.0 Payment Terms
7.1 Due Date and Invoice. All amounts stated on each monthly invoice are
due and payable upon Customer's receipt of the invoice ("Due Date").
Customer agrees to remit payment to Seller at the remittance address. In
the event Customer fails to make full payment of any amounts due,
including any prior late fees (the "Balance") to the proper address within
thirty (30) days of the date of the invoice, Customer shall also pay a
late fee in the amount of the lesser of one and one-half percent (1 1/2%)
of the unpaid Balance per month or the maximum lawful rate under
applicable state law which shall accrue from the Due Date. Customer
acknowledges and understands that all charges are computed exclusive of
any applicable federal, state or local use, excise, valued added, gross
receipts, sales and privilege taxes, duties, fees or similar liabilities
(other than general income or property taxes imposed on Seller), whether
charged to or against Seller, its suppliers or affiliates or Customer
associated with the Service, Local Access Service or Ancillary Service
provided to Customer ("Additional Charges"). Such Additional Charges shall
be paid by Customer in addition to all other charges provided for herein.
7.2 Billing and Payment. All prorated monthly recurring charges (charges
for monthly Service or Ancillary Service provided for less than a calendar
month), installation and other non-recurring charges shall be billed
following the acceptance of such Service, Local Access Service or
Ancillary Service pursuant to Section 4.6 above. Payment for all monthly
recurring charges for full months during which Service, Local Access
Service or Ancillary Service are to be provided shall be billed in
arrears. Billing shall be monthly starting on the first of each month and
running through the end of each month (the "Billing Cycle).
7.3 Billing Disputes. If Customer in good faith disputes any portion of an
invoice it must pay the undisputed amount of the invoice on or before its
Due Date and provide written notice to Seller of the billing dispute
within sixty (60) days thereafter. Such notice must include documentation
substantiating the dispute. Customer's failure to notify Seller of a
dispute shall be deemed to be Customer's acceptance of such charges. The
parties will make a good faith effort to resolve billing disputes as
expeditiously as possible. If a dispute is resolved in favor of Customer,
Customer shall receive an adjustment on its next ▇▇▇▇.
In the event of an over billing, Customer may request billing adjustments
for a period of two (2) years after the Due Date of an invoice, or two (2)
years after the date a service is rendered, whichever is later. If
Customer has no past due balance a payment for such amounts will be issued
to Customer within 30 days of the receipt of written notification and
verification of the claim. If Customer has a past due balance a credit
will be issued to the account.
7.4 Suspension of Service.
(a) In the event payment for undisputed amounts is not received from
Customer on or before sixty (60) days following the date of the invoice,
Seller shall have the right to suspend all or any portion of the Services,
Local Access Services or Ancillary Services to Customer. Seller shall
exercise this suspension right by providing Customer with a minimum of ten
(10) days' written notice specifying the past due amount and the Services
and/or Ancillary Services to be suspended. If Seller receives the entire
specified past due amount within the ten (10) day notice period, then
Customer's Service shall not be suspended.
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(b) If only a portion of the Services, Local Access Services or Ancillary
Services is initially suspended pursuant to Seller's written notice, and
Customer fails to pay the specified past due amount within an additional
ten (10) days after the partial suspension of Service, then after the
additional ten (10) day period, Seller may suspend all or any additional
portion of the Services, Local Access Services or Ancillary Services to
Customer with no additional written notice. Further, after the additional
ten (10) day period, Seller may continue suspension until such time as
Customer has paid in full all charges then due, including any late fees as
specified herein. Following such payment, Seller shall reinstate
Customer's Services, Local Access Services or Ancillary Services, subject
to Seller's Right to Assurance as provided in Paragraph 7.5 below.
(c) Suspension of Services, Local Access Services or Ancillary Services as
set forth in this Paragraph shall not affect Customer's obligation to pay
for the Services, Local Access Services or Ancillary Services.
7.5 Seller's Right to Assurance.
(a) If at any time there is a material adverse change in Customer's
creditworthiness or a material change in Customer's financial position,
then in addition to any other remedies available to Seller, Seller may
elect, in its sole discretion, to demand reasonable assurance of payment
from Customer. An adverse material change in Customer's creditworthiness
shall include, but not be limited to: (a) Customer's default of its
obligations to Seller under this or any other agreement with Seller; (b)
failure of Customer to make full payment of charges due hereunder on or
before the Due Date on three (3) or more occasions during any period of
twelve (12) or fewer months or Customer's failure to make such payment on
or before the Due Date in any two (2) consecutive months; (c) acquisition
of Customer (whether in whole or by majority or controlling interest) by
an entity which is insolvent, which is subject to bankruptcy or insolvency
proceedings, which owes past due amounts to Seller or any entity
affiliated with Seller or which is a materially greater credit risk than
Customer; or (d) Customer's being subject to or having filed for
bankruptcy or insolvency proceedings or the legal insolvency of Customer.
An adverse material change in Customer's financial position shall include,
but not be limited to: (a) a decrease in net worth or working capital of
five percent (5%) or greater; or, (b) negative net worth or working
capital. If Customer's financial statements are not public information,
upon Seller's demand for reasonable assurance of payment, Customer shall
be required to provide financial statements. After receipt of Customer's
financial information, Seller may require a deposit or other similar means
to establish reasonable assurance of payment.
(b) If Customer has not provided Seller with its financial information and
with reassurance satisfactory to Seller within thirty (30) days of
Seller's notice of demand for reassurance, then, in addition to any other
remedies available to Seller, Seller shall have the option, in its sole
discretion, to exercise one or more of the following remedies: (i) cause
the start of the Service, Local Access Service or Ancillary Service
described in a previously executed Service Order to be delayed pending
satisfactory reassurance; or (ii) decline to accept a Service Order or
other requests from Customer to provide Service, Local Access Service or
Ancillary Service.
7.6 Credit. As may be determined by Seller, if the financial condition or
payment history of Customer is determined by Seller to be unacceptable,
Seller may require Customer to post a deposit or irrevocable letter of
credit, at Seller's option, to secure Customer's payment for the term of
this Agreement. Should Seller determine that a deposit or irrevocable
letter of credit is necessary, Customer and Seller will execute the
appropriate Credit or Deposit Agreement. Should Customer fail to post such
deposit or letter of credit or fail to execute the appropriate agreement
within fifteen
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(15) days of Seller's notice of such requirement, or should Customer fail
to abide by the terms of any Credit or Deposit Agreement, Customer shall
be deemed to be in default of this Agreement and Seller may terminate this
Agreement in accordance with Section 8.7 below.
7.7 Taxes. If any sales taxes, valued added taxes or similar charges or
impositions are asserted against Seller after, or as a result of,
Customer's use of Services, Local Access Services or Ancillary Service by
any local, state, national, international, public or quasi-public
governmental entity or foreign government or its political subdivision,
including without limitation, any tax or charge levied to support the
federal Universal Service Fund contemplated by the Telecommunications Act
of 1996, or any state equivalent, Customer shall be solely responsible for
such taxes, charges or impositions. Customer agrees to pay any such taxes,
charges or impositions and hold Seller harmless from any liability or
expense associated with such taxes, charges or impositions.
7.8 Adjustments. Seller may make billing adjustments for a period of
ninety (90) days after the Due Date of an invoice, or ninety (90) days
after the date a service is rendered or changed, whichever is later.
8.0 General Agreement
8.1 Outage Credits
(a) Customer acknowledges the possibility of an unscheduled, continuous
and/or interrupted period of time when a Service or Services are
"unavailable" (as defined in the Technical Specifications attached hereto
as Exhibit II) (hereafter an "Outage"). An Outage shall begin upon the
earlier of Seller's actual knowledge of the Outage or Seller's receipt of
notice from the Customer of the Outage. An outage will be considered to
have ended when Services in accordance with this Agreement have been
restored. In the event of an Outage, Customer shall be entitled to a
credit (the "Outage Credit") upon Seller's receipt of Customer's written
request for such Outage Credit.
(b) When the cumulative total of Outage minutes for an affected circuit in
any given calendar month is less than 30 minutes, the Outage Credit shall
be based on the following formula:
Outage Credit Calculation = Outage (in minutes) x Monthly Port and PVC charges
--------------------------------------------------
43,2000 (deemed number of minutes per month)
(c) When the cumulative total of Outage minutes for an affected circuit in
any given calendar month is 30 minutes or more, the Outage Credit shall be
based on the following:
i) If the cumulative total of Outage minutes is between 30 and 60
minutes in a calendar month, Customer will receive a credit
equal to 10% of the Monthly Port and PVC charges for the
affected circuit.
ii) If the cumulative total of Outage minutes is between 61 and
120 minutes in a calendar month, Customer will receive a
credit equal to 25% of the Monthly Port and PVC charges for
the affected circuit
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iii) If the cumulative total of Outage minutes is between 121 and
180 minutes in a calendar month, Customer will receive a
credit equal to 50% of the Monthly Port and PVC charges for
the affected circuit.
iv) If the cumulative total of Outage minutes is between 181 and
240 minutes in a calendar month, Customer will receive a
credit equal to 75% of the Monthly Port and PVC charges for
the affected circuit.
v) If the cumulative total of Outage minutes exceeds 240 minutes
in a calendar month, Customer will receive a credit equal to
100% of the Monthly Port and PVC charges for the affected
circuit and will suspend the $75,000 monthly recurring revenue
threshold for continued favorable pricing detailed in Exhibit
I, Section F 2.
(b) At no time will the total credit extended to Customer for an affected
circuit exceed 100% of the total Monthly Port and PVC service charges for
such circuit.
(e) Customer will not receive an Outage Credit if the Outages are (i) due
to normal equipment operation with restoral time of two (2) to thirty (30)
seconds, (ii) due to a Force Majeure event as defined in Section 8.15 of
this Agreement (iii) caused by the negligence or willful misconduct of
Customer or others authorized by Customer to use the services, (iv) due to
the failure of power, facilities, equipment, systems or connection not
provided by Seller, (v) caused by the failure of Local Access, (vi) as a
result of scheduled maintenance where Customer has been notified of
scheduled maintenance in advance, (vii) as a result of Customer's failure
to make the circuit available for ▇▇▇▇▇▇▇▇ to repair or re-route, or
Customer's failure to notify the ▇▇▇▇▇▇▇▇ Network Control Center (NCC)
prior to taking any circuit out of Service.
8.2 Excessive Outage.
(a) Customer may terminate individual Service Order(s) in the
event Customer experiences any of the following circumstances
with respect to such Service Order(s) each of which
constitutes an Excessive Outage:
(i) Failure to meet the applicable Service Specifications
for a period of eight (8) consecutive hours; or
(ii) Failure to meet the applicable Service Specifications
for a cumulative period totaling twelve (12) hours or
more within any consecutive thirty (30) day period.
(b) In the event individual Service Orders are terminated by
Customer pursuant to section 8.2(a) above, Customer shall give
written notice to Seller of such termination within thirty
(30) days of such outage and Customer shall pay Seller in
accordance with this Agreement for all Services performed up
to and including the effective date of termination of such
Service Order(s). In addition, Customer shall pay for all
Local Access charges, including any termination charges.
8.3 All Outage Credits will be based on Vyvx trouble ticket disposition
which detail the ▇▇▇▇▇▇▇▇' trouble ticket number(s), affected circuits,
affected PVC's and outage minutes. The
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trouble ticket disposition will be sent to Customer for each outage and
any credit due will be issued against future port and PVC charges for the
affected service no later than sixty (60) days from the date of occurrence
if not sooner.
8.4 Limited Termination Right.
(a) Customer shall have a limited right to terminate this
Agreement in the event that the port of any of Customer's
"Backbone Circuits":
(i) fails to meet the applicable Service Specifications for
a consecutive period of twelve (12) hours.
(ii) fails to meet the applicable Service Specifications for
a cumulative period totaling sixteen (16) hours or more
within any consecutive thirty (30) day period.
(iii) And provided that an acceptable work around has not been
established to restore the failed Service.
(b) "Backbone Circuits" shall be defined as those circuits which
Customer uses to distribute its primary "Live Streaming"
transmissions. The Backbone Circuits currently are:
▇▇▇▇▇▇▇▇▇ Next Venue
▇▇▇▇▇▇▇▇▇ Exodus West
TWC221655 LA Teleport
(c) Customer may exercise this limited right to terminate upon
ninety (90) days' written notice. Customer's notice shall be
given within thirty (30) days of the end of the failure giving
rise to Customer's right to terminate. Customer shall pay
Seller in accordance with this Agreement for all Services
performed up to and including the effective date of
termination (without benefit of any Outage Credits provided
for in this Section).
(d) In addition, Customer shall pay for all Local Access charges,
including any termination charges.
8.5 The Outage Credit, the ability to terminate individual Service Orders,
and Customer's limited right to terminate as set forth in this Section
shall be the sole and exclusive remedies of Customer in the event of any
Outage and under no circumstances shall an Outage be deemed a default
under this Agreement.
8.6 Termination Liability Charges. If Customer desires to disconnect any
Service or Ancillary Service after installation Customer may do so by
providing written notification to ▇▇▇▇▇▇▇▇ thereof sixty (60) days in
advance of the effective date of the disconnection. In the event of such
disconnection, Customer shall pay to ▇▇▇▇▇▇▇▇ a Termination Liability
Charge in an amount equal to the monthly charge for such disconnected
Service or Ancillary Service multiplied by the number of months in the
relevant Term for such Service or Ancillary Service plus any
administrative costs, less the charges for such Service or Ancillary
Service actually paid by Customer through the effective date
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of the disconnection. Customer agrees that the actual damages in the event
of such disconnection would be difficult or impossible to ascertain, and
that the Termination Liability Charge in this Section is intended,
therefore, to establish liquidated damages and is not intended as a
penalty. Notwithstanding the foregoing, and upon thirty (30) day's prior
written notice to the other party, either Customer or ▇▇▇▇▇▇▇▇ shall have
the right, without incurring a Termination Liability Charge or other
liability to the other party, to disconnect the affected portion of any
Service or Ancillary Service, if ▇▇▇▇▇▇▇▇ is prohibited by governmental
authority from furnishing or Customer is prohibited from using such
portion, or if any material rate or term contained herein and relevant to
the affected portion of any Service or Ancillary Service is substantially
changed by order of the highest court of competent jurisdiction to
adjudicate the matter, the Federal Communications Commission, or other
local, state or federal government authority.
8.7 Portability. After any Service has been in effect for a period of at
least twelve (12) months or at least three (3) months if the term of the
Service is (12) twelve months, Customer shall have the option to
disconnect a circuit and order a new circuit as a replacement without
incurring a termination liability charge. The replacement circuit must be
for the same or greater term and the same or greater monthly revenue as
the circuit being replaced and the replacement circuit must be ordered by
Customer and installed within sixty (60) days after the date on which
Customer provides Seller with written notice of cancellation. The existing
port charges will continue until the replacement port charges are
applicable. If Customer exercises this portability option, Customer will
be liable for (i) all termination liability and disconnect charges for
Local Access Services or any other third party provided facilities that
are impacted by the replacement of the circuit; and (ii) all installation
one-time charges due to Seller under Seller's standard new installation
rates and charges; and (iii) any one-time Local Access Service charges and
the new monthly recurring Local Access Service charges. Exercise of the
replacement circuit option is restricted to Service on Seller's own
network, and is subject to availability. This portability option is
further limited in that the term of the replacement circuit shall be the
balance of the term of the original circuit or six (6) months, whichever
is longer, and the replacement circuit may only be moved one (1)
additional time thereafter.
8.8 Disconnection of Services. Customer may disconnect any Service, Local
Access Service or Ancillary Service provided hereunder by providing
written notification to Seller thereof sixty (60) days in advance of the
effective date of disconnect. In the event of such disconnection, Customer
shall pay to Seller a disconnection charge, unless Customer exercises the
portability option defined in Section 8.7, in an amount equal to (i) the
monthly charge for each such disconnected Service, Local Access Service or
Ancillary Service multiplied by the number of months in the relevant Term
for such Service, Local Access Service or Ancillary Service, less the
charges for each such Service, Local Access Service or Ancillary Service
actually paid by Customer through the effective date of disconnection and
(ii) any non-recurring payments not yet paid together with any termination
liability associated with Local Access Service or any other third-party
provided service. Customer agrees that the actual damages in the event of
such disconnection would be difficult or impossible to ascertain, and that
the disconnection charge in this Section 8.8 is intended, therefore, to
establish liquidated damages and is not intended as a penalty.
8.9 Warranty and Disclaimer of Warranty. Seller warrants that Services or
Ancillary Services shall be provided to Customer in accordance with the
applicable Technical Specifications set forth in Exhibit II. Seller shall
use commercially reasonable efforts under the circumstances to remedy any
delays, interruptions, omissions, mistakes, accidents or errors in the
Services or Ancillary Services and restore such Services or Ancillary
Services to comply with the terms hereof. THE
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FOREGOING WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY AND IS PROVIDED IN
LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE OUTAGE CREDITS REMEDY PROVIDED TO CUSTOMER AS SET
FORTH IN SECTION 8.1 IS THE SOLE AND EXCLUSIVE REMEDY PROVIDED TO CUSTOMER
AND IS IN LIEU OF ALL OTHER REMEDIES, REGARDLESS OF WHETHER THIS WARRANTY
FAILS OF ITS ESSENTIAL PURPOSE.
8.10 Limitation of Liability. EXCEPTING ONLY LIABILITY FOR ▇▇▇▇▇▇▇▇'
RECKLESS OR WILLFUL MISCONDUCT, ▇▇▇▇▇▇▇▇' LIABILITY ARISING OUT OF ITS
PROVISION OF SERVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO LIABILITIES
ARISING OUT OF ▇▇▇▇▇▇▇▇' NEGLIGENCE, MISTAKES AND OMISSIONS,
INTERRUPTIONS, DELAYS, ERRORS, OR OTHER DEFECTS IN THE SERVICES OR BREACH
OF CONTRACT OR ARISING OUT OF THE FAILURE TO FURNISH SERVICES, WHETHER
CAUSED BY ACTS OF COMMISSION OR OMISSION, SHALL BE LIMITED TO THE
EXTENSION OF ALLOWANCES FOR INTERRUPTIONS AS SET FORTH IN THIS AGREEMENT.
SUCH ALLOWANCES FOR INTERRUPTION SHALL BE THE SOLE REMEDY OF CUSTOMER,
INCLUDING ANY END USER OF CUSTOMER, AND THE SOLE LIABILITY OF ▇▇▇▇▇▇▇▇
HEREUNDER. ▇▇▇▇▇▇▇▇' LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND ARISING
OUT OF ITS FURNISHING SERVICES SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO
ITS FIXED MONTHLY OR OTHER CHARGE ALLOCABLE TO THE FAULTY OR DEFECTIVE
SERVICE.
NOTWITHSTANDING THE PROVISIONS OF THE PRECEDING SUBPARAGRAPH, ▇▇▇▇▇▇▇▇
SHALL NOT BE LIABLE TO CUSTOMER OR ANY END USER FOR ANY LOSS OF, DEFECTS
IN OR ANY INABILITY TO FURNISH SERVICE DUE TO ACTS OF GOD, ACTS OF
GOVERNMENT, WARS, RIOTS, STRIKES, FAILURE OF A TRANSPONDER, FAILURE OF A
SATELLITE, FAILURE OF ANY OTHER TRANSMISSION EQUIPMENT OR OTHER CAUSES
BEYOND ▇▇▇▇▇▇▇▇' CONTROL.
ANY AND ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE SERVICES,
INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A SPECIFIC PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED. CUSTOMER SHALL
DEFEND, INDEMNIFY AND HOLD HARMLESS ▇▇▇▇▇▇▇▇ FROM ANY CLAIMS MADE UNDER A
WARRANTY OR REPRESENTATION MADE BY CUSTOMER TO ANY THIRD PARTY WITH
RESPECT TO THE SERVICES.
8.11 EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS),
REGARDLESS OF THE FORESEEABILITY THEREOF, OCCASIONED BY THE TERMINATION OF
CUSTOMER'S RIGHTS TO USE, OR THE PREEMPTION OF OR THE FAILURE OF, OR LOSS
OF TECHNICAL QUALITY OF, THE SERVICES OR BY ANY DELAY IN COMMENCEMENT OF
THIS AGREEMENT OR BY ANY OTHER CAUSE OR MATTER WHATSOEVER.
8.12 EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT
SHALL CUSTOMER BE LIABLE TO ▇▇▇▇▇▇▇▇ FOR DIRECT DAMAGES IN EXCESS OF ONE
MILLION DOLLARS.
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8.13 Customer Content and Indemnity. Customer shall make all arrangements
with copyright holders, music licensing organizations, performers'
representatives or other parties for necessary authorizations, clearances
or consents with respect to transmission contents ("Consents"). Customer
shall indemnify and hold harmless Providers (as defined below) against and
from any court, administrative or agency action, suit or similar
proceeding, whether civil or criminal, private or public, brought against
Providers arising out of or related to the contents transmitted hereunder
(over Seller's network or otherwise) including, but not limited to,
claims, actual or alleged, relating to any violation of copyright law,
export control laws, failure to procure Consents, failure to meet
governmental or other technical broadcast standards, or that such
transmission contents are libelous, slanderous, an invasion of privacy,
pornographic, or otherwise unauthorized or illegal. Providers shall be
defined to include Seller, any third party or affiliated provider,
operator or maintenance/repair contractor of facilities employed in
connection with the provision of Services, Local Access Services or
Ancillary Services under this Agreement. Seller may terminate or restrict
any transmissions over the network if, in its judgment, (a) such actions
are reasonably appropriate to avoid violation of applicable law; or (b)
there is a reasonable risk that criminal, civil or administrative
proceedings or investigations based upon the transmission contents shall
be instituted against Providers. Customer agrees not to use Services,
Local Access Services or Ancillary Services for any unlawful purpose,
including without limitation any use which constitutes or may constitute a
violation of any local, state or federal obscenity law.
8.14 General Indemnity.
a) Customer and Seller shall defend, indemnify and hold harmless the other
against and from any and all claims for physical property damage, physical
personal injury or wrongful death to the extent that such arises out of
the negligence or willful misconduct of the respective indemnifying party,
its employees, agents, or contractors in connection with the provision or
use of Services, Local Access Services, Ancillary Services or other
performance.
b) With respect to third parties that use Services, Local Access Services
or Ancillary Services through Customer, Customer shall defend, indemnify
and hold harmless Providers against any claims by such third parties for
damages arising or resulting from any defect in or failure to provide
Services, Local Access Services or Ancillary Services.
c) The indemnifying party agrees to defend the other against the claims as
set forth above and to pay all reasonable litigation costs, attorneys'
fees, court costs, settlement payments, and any damages awarded or
resulting from any such claims. The indemnified party shall promptly
notify the indemnifying party in writing of any such claims.
8.15 Force Majeure. If either party's performance of this Agreement or any
obligation (other than the obligation to make payments) hereunder is
prevented, restricted or interfered with by causes beyond its reasonable
control including, but not limited to, acts of God, fire, explosion,
vandalism, cable cut, power outage, storm or other similar occurrence
including rain fade or other atmospheric conditions, any law, order,
regulation, direction, action or request of the United States Government
or national, state or local governments, or of any department, agency,
commission, court, bureau, corporation or other instrumentality of any one
or more of said governments, or of any civil or military authority, or by
national emergencies, insurrections, riots, wars, acts of terrorism,
strikes, lockouts or work stoppages or other labor difficulties, supplier
failures, shortages, breaches or delays, then the affected party shall be
excused from such performance on a day-to-day basis to the extent of such
prevention, restriction or interference. The affected party shall use
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commercially reasonable efforts under the circumstances to avoid and
remove such causes of non-performance and shall proceed to perform with
reasonable dispatch whenever such causes cease.
8.16 Events of Default. Either party may terminate this Agreement if the
other is in default of any material obligation contained herein, which
default has not been cured within thirty (30) days following the receipt
of notice of such default setting forth the specifics of such default.
Termination and receipt of any applicable refund are Customer's sole
remedies in the event of any such Seller's default. Notwithstanding the
foregoing, the failure of any particular Service or Services to comply
with the Technical Specifications (as set forth in Exhibit II) shall not
be deemed a default by Seller, but may obligate Seller to provide Customer
with Outage Credits, as provided in Section 8.1 hereof.
8.17 Use of Services. Seller's obligation to provide Services, Local
Access Services or Ancillary Services to Customer is subject to the
following conditions: (a) Services, Local Access Services or Ancillary
Services shall not be used for any unlawful purpose, (b) at least ten
percent (10%) of the transmissions shall be interstate transmissions.
Customer represents that this Agreement, to the extent it is subject to
FCC regulation, is an inter-carrier agreement not subject to the filing
requirements of Section 211(a) of the Communications Act of 1934, as
amended.
8.18 Proprietary Information. Customer understands and agrees that the
terms and conditions of this Agreement and all documents referenced herein
(including invoices to Customer for Services, Local Access Services or
Ancillary Services provided hereunder) are confidential as between
Customer, Seller and its affiliates and shall not be disclosed by Customer
to any party other than the directors, officers, and employees or agents
of Customer who have specifically agreed to nondisclosure of the terms and
conditions hereof. Violation by Customer or its agents of the foregoing
provision shall entitle Seller, at its option, to discontinue Services,
Local Access Services or Ancillary Services to Customer without further
obligation or liability to Customer. Customer further agrees that any
Customer generated press release, advertisement or publication regarding
this Agreement, Services, Local Access Services or Ancillary Services
provided hereunder or in which Seller, or its affiliates are to be
mentioned, will be submitted to Seller for its written approval prior to
publication. Customer understands and agrees that Seller may disclose such
information as may be required under applicable law including, without
limitation, filing of tariffs.
8.19 Intrastate Interexchange Services. Customer may use any interexchange
Service provided under this Agreement only if such interexchange Service
is used for carrying interstate telecommunications (i.e.,
telecommunications subject to the jurisdiction of the Federal
Communications Commission). Seller and its affiliates shall not be
obligated to make available interexchange Service on a circuit with end
points within a single state or service on a circuit which
originates/terminates at points both of which are situated within a single
state unless Customer represents in writing that such interexchange
Service or circuits shall be used to carry at least 10% interstate
telecommunications. If it is determined at any time that such
interexchange Service or circuit is subject to state regulation, the
interexchange Service or circuit may be provided by Seller or its
affiliates pursuant to applicable state laws, regulations and applicable
tariffs, or Seller and its affiliates may discontinue provision of the
affected interexchange Service or circuit.
8.20 Customer Responsibilities. Customer has sole responsibility for
installation, testing and operation of facilities, services and equipment
("Customer Facilities") other than those specifically provided by Seller
as part of the Services, Local Access Services or Ancillary Services as
described
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in a Service Order. In no event will the untimely installation or
non-operation of Customer Facilities relieve Customer of its obligation to
pay charges for the Services, Local Access Services or Ancillary Services
after the Actual Start Date.
8.21 Universal Service Fund. During the Term of this Agreement, Customer
shall provide Seller, on a semiannual basis, a universal service exemption
certificate within thirty (30) days of the Customer's filing of the
universal service filing made with the appropriate federal agency,
evidencing that the Customer is required to contribute to the federal
Universal Service Fund. Customer agrees that failure to provide such an
exemption authorized Seller to begin billing Customer prospectively for
Universal Service Fund contributions pursuant to the applicable
contribution factor (revised quarterly), plus an administrative charge of
1%.
9.0. Miscellaneous Provisions
9.1 Title to Equipment. This Agreement shall not, and shall not be deemed
to, convey to Customer title of any kind to any of the transmission
facilities, digital encoder/decoders, telephone lines, microwave
facilities or other facilities utilized in connection with the Services or
Ancillary Services. Any equipment provided by Customer must be itemized on
a schedule listing all such Customer-provided equipment and appended to
the Service Order to which use of that equipment relates ("Customer
Equipment Inventory"). Seller shall not be obligated to provide any
Services, Local Access Services or Ancillary Services for Customer if
Customer will be providing any of its own equipment unless and until such
equipment is itemized on the applicable Customer Equipment Inventory.
9.2 Notices. All notices to be sent to a party pursuant to this Agreement
shall be in writing and deemed to be effective upon (i) personal delivery,
(ii) three days after mailing certified mail return receipt requested,
(iii) on the day when the notice has been sent by facsimile if during
business hours and followed by express mail priority next-day delivery, or
(iv) in the case of invoices, upon the Due Date. In each case, the notice
shall be sent to the person identified in this Section at the Full
Business Addresses of the parties as they appear herein. The effective
date for any notice under this Agreement shall be the date of delivery of
such notice, not the date of mailing.
The Full Business Address for purposes of notice under this Section as
well as telephone voice and facsimile numbers shall be:
SELLER: CUSTOMER:
▇▇▇▇▇▇▇▇ Vyvx Services, a business unit
of ▇▇▇▇▇▇▇▇ Communications, Inc. iBEAM Broadcasting Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ___________________
Attention: Contract Administration
9.3 Merger/Integration. This Agreement (including the attached Exhibits,
as they may be modified from time to time) consists of all the terms and
conditions contained herein and in documents incorporated herein
specifically by reference. This Agreement constitutes the complete and
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exclusive statement of the understanding between the parties and
supersedes all proposals and prior agreements (oral or written) between
the parties relating to Services, Local Access Services or Ancillary
Services provided hereunder.
9.4 Written Amendment. Any addition, deletion or modification to this
Agreement shall not be binding on either party except by written amendment
executed by both parties.
9.5 No Venture. The provision of Services, Local Access Services or
Ancillary Services shall not create a partnership or joint venture between
the parties.
9.6 Suspension of Service. In addition to the nonpayment of any sum due
hereunder, Seller may immediately suspend Services, Local Access Services
or Ancillary Services in whole or part if Seller determines that such
Services, Local Access Services or Ancillary Services violate the
Communications Act of 1934, as amended (including the Telecommunications
Act of 1996), or that the imposition of any state or federal statute, or
promulgation of any rule, regulation, or order of the Federal
Communications Commission ("FCC") or other governing body makes Seller's
performance commercially impracticable.
9.7 Effect of Change in Law. Upon thirty (30) day's prior written notice
to the other party, either Customer or Seller shall have the right,
without disconnection charge or other liability to the other party, to
cancel the affected portion of any Service, Local Access Service or
Ancillary Service, if Seller is prohibited by governmental authority from
furnishing or Customer is prohibited from using such portion, or if any
material rate or term contained herein and relevant to the affected
portion of any Service, Local Access Service or Ancillary Service is
substantially changed by order of the highest court of competent
jurisdiction to adjudicate the matter, the Federal Communications
Commission, or other local, state or federal government authority.
9.8 Network Downturn: In the event that Customer's network makes a
significant change or an event occurs which has a major impact on
Customer's network, finances or other such event, the Parties hereby agree
to work in good faith to reduce any minimum commitments and/or termination
liability charges that may be the subject matter of this Agreement.
9.9 PARTIES BOUND BY AGREEMENT; ASSIGNMENT. This Agreement is binding upon
and shall inure to the benefit of the parties hereto and upon their
respective successors and permitted assigns. Customer may not assign this
Agreement without the prior written consent of ▇▇▇▇▇▇▇▇, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, upon
written notice, either party may assign to a parent, affiliate or
subsidiary company without the consent of the other.
9.10 Choice of Law. This Agreement shall be governed by the laws of the
State of New York without regard to choice of law principles.
9.11 Interpretation. No rule of construction requiring interpretation
against the draftsman hereof shall apply in the interpretation of this
Agreement.
9.12 No Third Party Beneficiary. The provisions of this Agreement are for
the benefit only of the parties hereto, and no third party may seek to
enforce or benefit from these provisions.
9.13 Attorneys' Fees. If a proceeding is brought for the enforcement of
this Agreement or because of any alleged or actual dispute, breach,
default or misrepresentation in connection with any of the
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provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and other reasonable costs and expenses
incurred in such action or proceeding in addition to any other relief to
which such party may be entitled.
9.14 Severability. In the event any provision of this Agreement conflicts
with any statute, rule or order of any governmental unit or regulatory
body, or tariff then, if required by law, such statute, rule, order or
tariff shall control.
9.15 No Waiver. The failure of either party to enforce any provision
hereof shall not constitute the permanent waiver of such provision.
iBEAM BROADCASTING CORPORATION ▇▇▇▇▇▇▇▇ VYVX SERVICES,
a business unit of
▇▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name:
----------------------------- -------------------------------
Title: Vice President Title:
---------------------------- ------------------------------
Date: March 1, 2001 Date:
----------------------------- -------------------------------
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Exhibit I
▇▇▇▇▇▇▇▇ Vyvx Services Pricing Schedule
This Pricing Schedule is made as of this _____ day of ________________, 2001,
and is subject to that Data Services Agreement No. __________________ (the
"DSA") by and between ▇▇▇▇▇▇▇▇ Vyvx Services, a business unit of ▇▇▇▇▇▇▇▇
Communications, Inc., a Delaware corporation ("Seller"), and iBEAM Broadcasting
Corporation, a ("Customer").
A. ATM Services
1. Recurring Rates & Charges: ATM service has three basic rate elements;
Local Access, Port Connections, and Bandwidth.
a. Local Access. Pricing for Local Access is determined in accordance
with the Terms and Conditions set forth in Section 5.0 of the DSA.
b. UNI Port Connections. Pricing for User Network Interface (UNI) Port
Connections is determined on the port speed connections selected by
Customer. UNI is Port Connections are currently available at DS3,
OC3 and OC12 speeds. Monthly recurring charges for Port Connections
are set forth in Table A.1 below.
Table A.1 Monthly Recurring Port Charges
-----------------------------------------------------------------
Monthly Recurring Port Charges
-----------------------------------------------------------------
Port Speed Monthly Recurring Port CoS
Charge
-----------------------------------------------------------------
DS3 VBR(nrt) or CBR
$ 3,120
-----------------------------------------------------------------
OC3 $ 7,625 VBR(nrt) or CBR
-----------------------------------------------------------------
OC12 $29,600 VBR(nrt) or CBR
-----------------------------------------------------------------
c. Bandwidth.
(i) There are two types of Bandwidth, which can be selected, the
Virtual Channel Connection (VCC) or the Virtual Path Connection
(VPC). The type of bandwidth selected by the Customer does not
determine the price.
(ii) Pricing for Bandwidth is determined based on the Class of
Service (CoS). Two Classes of Service are offered by Seller:
Constant Bit Rate (CBR) and Variable Bit Rate(non real time
(VBR(nrt). CoS charges are stated in Committed Information Rates
(CIR) which are stated in Megabit per second (Mbps) increments for
one-way (Simplex) VCCs or VPCs. CIR increments are available in
1Mbps increments up to 40Mbps for DS3 ports, 5 Mbps increments up to
150 Mpbs for OC3 ports and 25 Mbps increments up to 600 Mbps for
OC12 ports. Monthly recurring charges for Bandwidth are set forth in
Table A.2 below.
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Table A.2 Monthly Recurring Bandwidth Charges
---------------------------------------------------------------------------
Monthly Recurring Bandwidth Charges
---------------------------------------------------------------------------
Port Speed CoS CIR (Mbps) Price Per Mbps
---------------------------------------------------------------------------
DS3 CBR 1-10 $350
---------------------------------------------------------------------------
CBR 11-40 $335
---------------------------------------------------------------------------
OC3 CBR 5-20 $350
---------------------------------------------------------------------------
CBR 25-150 $335
---------------------------------------------------------------------------
OC12 CBR 25-75 $305
---------------------------------------------------------------------------
CBR 100-175 $295
---------------------------------------------------------------------------
CBR 200-600 $290
---------------------------------------------------------------------------
2. Non-Recurring Charges:
Non-recurring charges include installation, configuration changes,
order cancellations and order changes that may be incurred for the
Port, VCC or VPC. Such non-recurring charges are set forth in Table
A.3 below.
Table A.3
---------------------------------------------------------------------------
Non Recurring Charges
---------------------------------------------------------------------------
Description of Charge Charges
---------------------------------------------------------------------------
Installation:
---------------------------------------------------------------------------
DS3 Port $1,500
---------------------------------------------------------------------------
OC3 Port $4,000
---------------------------------------------------------------------------
OC12 Port $15,000
---------------------------------------------------------------------------
per PVC or VP $40
---------------------------------------------------------------------------
Expedite Charge $300
---------------------------------------------------------------------------
Change of Service Order Charges:
---------------------------------------------------------------------------
Configuration Change Charge $50
---------------------------------------------------------------------------
Order Cancellation Charge Pre/Post
Engineering prior to circuit acceptance $500/$1000
---------------------------------------------------------------------------
Local Access Change- post acceptance $ 500.00
---------------------------------------------------------------------------
In addition to the Order Cancellation Charge, Customer
will be required to reimburse Seller for any
cancellation charges relating to Local Access or off-net
service for which Seller is acting as agent.
---------------------------------------------------------------------------
Port Order Change Charge $100
---------------------------------------------------------------------------
Change of Service Charge:
---------------------------------------------------------------------------
Configuration Change Charge $50
---------------------------------------------------------------------------
Port Order Change Charge $100
---------------------------------------------------------------------------
Configuration change charges are applied when the bandwidth size of a VCC
or VPC are changed.
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Order Cancellation Charges apply when a PVC, VP or Port has been
ordered and needs to be canceled prior to the Service having been
installed and accepted.
Local Access Change Charges apply when local access services
provided by a third party through Seller is moved or replaced with
local access service to another location.
Port Order Change Charges apply when Customer requests to change the
port size ordered. If the Port has been installed and accepted,
Customer will be charged for a new port installation.
B. Private Line Services
1. Private Line Service has three basic rate elements; Interexchange charges,
Local Access Charges and non-recurring charges.
a. Interexchange rates are as set forth in Table B.1 below. Pricing for
any Service not listed in such Table is determined on an individual
case basis and will be set forth on Customer's Service Order.
Table B.1
---------------------------------------------------------------------------
DS1 DS3 OC-3/OC-3(c) OC-12/OC-12(c) OC-48
Rate Rate Rate Rate Rate
---------------------------------------------------------------------------
$ 0.0630 $ 0.0315 $ 0.0284 $ 0.0268 $ 0.0252
---------------------------------------------------------------------------
Rates are set per VGE V&H DS0 mile per month.
---------------------------------------------------------------------------
Notwithstanding the foregoing, the minimum monthly charge for any
Interexchange circuit ordered by Customer shall be as follows:
Table B.2
---------------------------------------------------------------------------
Minimum Monthly Charges
---------------------------------------------------------------------------
DS-1 $250
---------------------------------------------------------------------------
DS-3 $2,000
---------------------------------------------------------------------------
OC-3 $5,000
---------------------------------------------------------------------------
OC-12 $20,000
---------------------------------------------------------------------------
OC-48 $80,000
---------------------------------------------------------------------------
b. Non-Recurring Charges:
Table B.3
----------------------------------------------------------------------------------------------
Non-Recurring Charges DS-1 DS-3 OC-3 OC-12 OC-48
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
New Order Installation $400 $2,000 $6,000 $12,000 $24,000
----------------------------------------------------------------------------------------------
Order Change (1st change free) $25 $50 $2,000 $3,000 $4,000
----------------------------------------------------------------------------------------------
Order Cancellation
----------------------------------------------------------------------------------------------
Pre-Engineering $150 $250 $500 $750 $1,000
----------------------------------------------------------------------------------------------
Post-Engineering $300 $500 $2,000 $3,000 $4,000
----------------------------------------------------------------------------------------------
In addition to the Pre- or Post-Engineering charges, Customer will
be required to reimburse Seller for any cancellation charges
relating to Local Access or off-net service for which Seller is
acting as agent.
----------------------------------------------------------------------------------------------
ASR (new or disconnect) Special Access $250 $250 $250 $250 $250
----------------------------------------------------------------------------------------------
ASR Supplement $150 $150 $150 $150 $150
----------------------------------------------------------------------------------------------
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------------------------------------------------------------------------------------------------------------------
Non-Recurring Charges DS-1 DS-3 OC-3 OC-12 OC-48
------------------------------------------------------------------------------------------------------------------
Order Expedite $300 $300 $300 $300 $300
------------------------------------------------------------------------------------------------------------------
Reconfiguration $200 $1,000 $3,000 $6,000 $12,000
------------------------------------------------------------------------------------------------------------------
Additional
Installation/Maintenance/Engineering $100.00/hr $100.00/hr $100.00/hr $100.00/hr $100.00/hr
------------------------------------------------------------------------------------------------------------------
Additional
Installation/Maintenance/Engineering (After
Hours) $125.00/hr $125.00/hr $125.00/hr $125.00/hr $125.00/hr
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
Cross-Connect Charge Monthly Recurring Non-Recurring
------------------------------------------------------------------------------------------------------------------
DS-1 $150 $300
------------------------------------------------------------------------------------------------------------------
DS-3 $250 $500
------------------------------------------------------------------------------------------------------------------
OC-3 $600 $1,000
------------------------------------------------------------------------------------------------------------------
OC-12 $1,200 $10,000
------------------------------------------------------------------------------------------------------------------
OC-48 $3,500 $25,000
------------------------------------------------------------------------------------------------------------------
Installation charges shall apply to the normal installation of
equipment necessary to provide the requested service to the point of
demarcation at the Customer's premises. Additional installation
charges shall apply when Seller is required to install equipment
other than that normally required to provide the service or when
Customer requests special equipment.
Non-recurring charges not described above will be considered special
requests and will be handled on an individual case basis. All of the
charges stated above are subject to change with thirty (30) days
notice.
C. Frame Relay Services
1. Rates & Charges: ▇▇▇▇▇▇▇▇ Network Frame Relay Service has four principal
rate elements: Local Access, Port Connections, Permanent Virtual Circuits
(PVCs), and Trunking charges.
Port Connections and PVCs can be categorized as being either a
User-to-Network Interface (UNI) type or Network-to-Network Interface (NNI)
type. An NNI port is defined as one end of a connection between Seller's
frame relay network and another carrier's network. The connecting carrier
could be either a customer or off-net service provider. Similarly, an NNI
PVC is defined as one which has each end of the PVC residing in two
different carrier's frame relay networks, rather than the originating and
terminating points being in the same carrier's network.
2. Conventional Frame Relay Services:
a. Local Access: Pricing for Local Access is determined in accordance with
the Terms and Conditions set forth in Section 5.0 of the DSA.
b. Port Connections: Both UNI and NNI port charges are based solely on the
speed of the port selected by the Customer. Available port speeds range
from 64 Kilobits per second (Kbps) to 1.536 Megabits per second (Mbps).
Available speeds are set forth in Table C.1 below. Monthly recurring
charges and installation charges for frame relay ports are set forth in
Table C.1 below. Other non-recurring charges are set forth in Table C.3
below.
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c. Permanent Virtual Circuit (PVC) bandwidth charges: UNI and NNI PVC
charges are both based solely on the bandwidth selected by Customer.
Bandwidth charges are stated in Committed Information Rates (CIR) which
are stated in Kbps increments for one-way (Simplex) PVCs. Available
PVC-CIR speeds range from 4 Kbps to 1.024 Mbps. Available speeds are set
forth in Table C.1 below. Monthly recurring charges and installation
charges for Frame Relay PVCs are set forth in Table C.1 below. Other
non-recurring charges are set forth in Table C.3 below.
d. Trunking Charges: The trunking charge is for the communication line
between the ▇▇▇▇▇▇▇▇ Network switch and Customer's switch. The trunking
charge is added to the rates set forth in Table C.1 below.
Table C.1 Monthly Recurring Charges (MRC) and Installation Charges
-----------------------------------------------------------------------------------
Frame Relay Service Speed/CIR MRC Install
Components (Kbps)
----------------------------------------------------------------------------------
UNI Ports 64 $117 $ 250
----------------------------------------
128 $219 $ 250
----------------------------------------
192 $239 $ 250
----------------------------------------
256 $259 $ 250
----------------------------------------
320 $320 $ 250
----------------------------------------
384 $382 $ 250
----------------------------------------
448 $476 $ 250
----------------------------------------
512 $531 $ 250
----------------------------------------
576 $569 $ 250
----------------------------------------
640 $606 $ 250
----------------------------------------
704 $643 $ 250
----------------------------------------
768 $696 $ 250
----------------------------------------
1024 $869 $ 250
----------------------------------------
1536 $ 950 $ 250
----------------------------------------------------------------------------------
UNI PVCs 4 $5 $ 25
----------------------------------------
(Simplex Pricing) 8 $6 $ 25
----------------------------------------
16 $7 $ 25
----------------------------------------
32 $11 $ 25
----------------------------------------
48 $17 $ 25
----------------------------------------
64 $23 $ 25
----------------------------------------
128 $46 $ 25
----------------------------------------
192 $72 $ 25
----------------------------------------
256 $96 $ 25
----------------------------------------
320 $119 $ 25
----------------------------------------
384 $143 $ 25
----------------------------------------
448 $167 $ 25
----------------------------------------
512 $195 $ 25
----------------------------------------
576 $219 $ 25
----------------------------------------
640 $244 $ 25
----------------------------------------
704 $268 $ 25
----------------------------------------
768 $293 $ 25
----------------------------------------
832 $317 $ 25
----------------------------------------
896 $325 $ 25
----------------------------------------
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-----------------------------------------------------------------------------------
Frame Relay Service Speed/CIR MRC Install
Components (Kbps)
----------------------------------------------------------------------------------
960 $330 $ 25
----------------------------------------
1024 $350 $ 25
----------------------------------------------------------------------------------
Local Access DS-0/DDS ICB ICB
----------------------------------------
FT-1 ICB ICB
----------------------------------------
DS-1 ICB ICB
----------------------------------------------------------------------------------
NNI Trunking Charge DS-0/DDS ICB ICB
----------------------------------------
FT-1 ICB ICB
----------------------------------------
DS-1 ICB ICB
----------------------------------------------------------------------------------
3. Enhanced Frame Relay Service:
Frame Relay/ATM Service Interworking:
Frame Relay/ATM Service Interworking ("FRASI") gives Customer the ability
to communicate seamlessly between ATM and Frame Relay locations. There is
no additional charge for locations requiring ATM beyond the standard ATM
charges set forth in Section A of this Pricing Schedule. Only Frame Relay
PVCs can be used for FRASI service, as the smaller Frame Relay ports are
unable to handle the higher bandwidth ATM PVCs.
4. Additional Non-recurring Charges: In addition to the non-recurring
installation charges set forth in Tables C.1 & C.2 above, Customer may
incur additional non-recurring charges as set forth in Table C.3 below.
Table C.3
---------------------------------------------------------------------------
Additional Non-Recurring Charges
---------------------------------------------------------------------------
Description of Charge Charge
---------------------------------------------------------------------------
Configuration Changes $50
---------------------------------------------------------------------------
Order Cancellation Charge pre/post engineering prior to $500/$1000
circuit acceptance Order
---------------------------------------------------------------------------
Local Access Change-post acceptance $500
---------------------------------------------------------------------------
In addition to the Order Cancellation Charge, Customer will be required
to reimburse Seller for any cancellation charges relating to Local Access
or off-net service for which Seller is acting as agent.
---------------------------------------------------------------------------
PVC Order Change Charge $50
---------------------------------------------------------------------------
Port Order Change Charge $100
---------------------------------------------------------------------------
Configuration charges are applied when the CIR of PVCs for Basic Frame
Relay Service are changed or when Customer desires a change to the CIR of
PVCs in an already established Flex
--------------------------------------------------------------------------------
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CIR Schedule (i.e. Customer will not be charged the $50 fee for changes to
the CIR when establishing its initial Flex-CIR schedule).
Order Cancellation Charges apply when a Customer cancels an order prior to
its installation.
Local Access Change Charges apply when local access services provided by a
third party through Seller is moved or replaced with local access service
to another location.
PVC Order Change Charges apply after design, but prior to installation on
a per PVC basis, when Customer makes a change to the PVC size ordered. If
the PVC has been installed and accepted, Customer will be charged for a
new PVC installation.
Port Order Change Charges apply after design, but prior to installation on
a per port basis, when Customer requests to change the port size ordered.
If the Port has been installed and accepted, Customer will be charged for
a new port installation.
D. F. Pricing General Conditions
1. All pricing set forth in Sections A, B, and C above is Seller's current
pricing. Such pricing is subject to change upon thirty (30) days written
notice by Seller to Customer. Price changes shall only be effective on a
going-forward basis and shall not apply to Service Orders previously
placed by Customer and accepted by Seller.
2. All current pricing is predicated on an anticipated volume of business
from Customer that reflects current circuits on order and anticipated
subsequent orders. During the Term of this Agreement, if the aggregate
revenue (excluding Local Access charges ordered by Seller but including
local access management fees as detailed in Section 5.0) for all existing
circuits falls below a monthly minimum of $75,000.00, Seller reserves the
right to increase port prices by ten percent (10%) for existing services
to take effect immediately with thirty (30) days notice to Customer.
IN WITNESS WHEREOF, the parties hereto have executed this ▇▇▇▇▇▇▇▇ Vyvx Services
Pricing Schedule as of the day and year first above written.
IBEAM BROADCASTING CORP.: ▇▇▇▇▇▇▇▇ VYVX SERVICES, a business
unit of
▇▇▇▇▇▇▇▇ COMMUNICATIONS, INC.:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------- ---------------------------------------
Signature of Authorized Representative Signature of Authorized Representative
▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------- ---------------------------------------
Printed Name Printed Name
Vice President
--------------------------------------- ---------------------------------------
Title Title
--------------------------------------------------------------------------------
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Exhibit II
▇▇▇▇▇▇▇▇ Vyvx Services Technical Specifications
I. Technical Specifications for ATM and Frame Relay Services
A. The Technical Specifications set forth herein are stated as an objective
that the ATM and Frame Relay Services will perform in accordance with
prevailing telecommunications industry standards. All Service provided
under Seller's ATM and Frame Relay Services are measured using two
variables: Network Availability and Mean-time-to-restore.
Mean-time-to-restore is discussed in the General Provisions of this
Schedule.
B. Availability.
1. Availability on Seller's Network. Availability is a measurement of
the percent of total time that service is operative when measured
over a 365 consecutive day (8760 hour) period. For ATM and Frame
Relay Services on the ▇▇▇▇▇▇▇▇ network, availability shall be 99.95%
from point-of-presence ("POP") to POP measured over a one-year
period.
2. Availability for Services not on ▇▇▇▇▇▇▇▇ Network. For Services not
on the ▇▇▇▇▇▇▇▇ network, the off-net provider will establish
availability. The Local Access availability standards for ATM and
Frame Relay Services are established by the Local Access Provider.
3. See General Provisions for other factors affecting availability.
II. Technical Specifications for Private Line Service
A. Interconnection Specifications
1. DS-3. DS-3 service is provided in accordance with ANSI Standard
T1.102 and T1.404. DS-3 Service operates at 44.736 Mbps.
2. Optical SONET Services (OC-N). Optical SONET Services are provided
in accordance with ANSI Standard T1.105. OC-3 Service operates at
155.520 Mbps and is configured with 3 separate STS-1 signaling
paths. OC-3C Service operates at 155.520 Mbps and is configured with
1 STS-3C signaling path (or 3 concatenated STS-1 signaling paths).
OC-12 Service operates at 622.080 Mbps with 12 separate STS-1
signaling paths. OC-12C Service operates at 622.080 Mbps with 1
STS-12C signaling path (or 4 separate STS-3C signaling paths). OC-48
Service operates at 2488.320 Mbps and is configured with 48 separate
STS-1 signaling paths.
B. Availability.
1. Availability on ▇▇▇▇▇▇▇▇ Network. Availability is a measurement of
the percent of total time that service is operative when measured
over a 365 consecutive day (8760 hour) period. DS-3 and Optical
SONET Service is considered inoperative when there has been a loss
of signal or when two consecutive 15 second loop-back tests confirm
the observation of a bit error rate equal to or worse than 1 x 10-6.
For Services on the
--------------------------------------------------------------------------------
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▇▇▇▇▇▇▇▇ network, availability shall be 99.95% from POP to POP
measured over a one-year period.
2. Availability for Services not on ▇▇▇▇▇▇▇▇ Network. For Services not
on the ▇▇▇▇▇▇▇▇ network, the off-net provider will establish
availability. The Local Access availability standards for DS-3 and
Optical SONET Services are established by the Local Access Provider.
3. See General Provisions for other factors affecting availability.
B. Performance (% Error Free Seconds, while Available).
1. Error Free Seconds on ▇▇▇▇▇▇▇▇ Network. Performance is noted in
Error Free Seconds, which are a measure of the percentage of total
seconds that do not contain bit errors when measured over a
consecutive 24-hour period. Performance shall be measured on a
one-way basis using a Pseudo Random Bit Sequence test pattern as
defined in CCITT Recommendation 0.151. For Services on the ▇▇▇▇▇▇▇▇
network, Error Free Seconds shall be 99.5% from POP to POP measured
over a monthly period
2. Error Free Seconds for Services Not on ▇▇▇▇▇▇▇▇ Network. The Error
Free Seconds standards for the Local Access for DS-3 and Optical
SONET Service is established by the Local Access Provider. For
Services not on the ▇▇▇▇▇▇▇▇ network, the off-net provider will
establish Error Free Seconds.
III. General Provisions Relating to Technical Specifications
A. Quality Standards.
1. Standards apply on a one-way basis between ▇▇▇▇▇▇▇▇ Point(s) of
Presence (POP) only.
2. All standards exclude nonperformance due to force majeure or planned
interruptions for necessary maintenance purposes.
3. All standards exclude nonperformance due to acts or omissions of
Customer or due to any failure of Customer-provided equipment.
4. General. DS3 and Optical SONET Service standards apply on a one-way
basis between the Customer Premises Network Interface Points
("CPNIP") which are connected to Local Access between which DS3 and
Optical SONET Interexchange Service is provided (CPNIP TO CPNIP or
End-to-End) and exclude nonperformance due to force majeure or
planned interruptions for necessary maintenance purposes. Customer
provided equipment, dependent upon the type and quality of Customer
equipment used, may affect the actual end-to-end availability and
performance of DS-3 and Optical SONET Service. (Customer provided
Local Access may not meet these specifications.)
--------------------------------------------------------------------------------
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B Maintenance
1. ▇▇▇▇▇▇▇▇ will undertake repair efforts on equipment or fiber when
▇▇▇▇▇▇▇▇ first becomes aware of it, or when notified by Customer and
Customer has released all or part of the Service for testing. The
maintenance standards in this Section III B only apply for Equipment
or Fiber on ▇▇▇▇▇▇▇▇' owned and operated network and from ▇▇▇▇▇▇▇▇'
POP to ▇▇▇▇▇▇▇▇' POP.
2. Mean Time to Restore (MTTR) is the average time required to restore
service and resume availability and is stated in terms of equipment
and cable outages. The time is measured from the moment the outage
is reported until the service is available. MTTR Objectives are:
a. ATM, Frame Relay, Private Line, Transit IP, and Dedicated IP
Services:
2 hours Network Equipment
6 hours First Fibers on Cable
b. Optical Wave Services:
24 hours Network Equipment
10 hours First Fibers on Cable
C. Calculation. ▇▇▇▇▇▇▇▇ Network calculates network availability upon written
request from customers. Customer must notify the ▇▇▇▇▇▇▇▇ Vyvx Services
Customer Care department and initiate an action request to determine if
the standards stated above were met.
--------------------------------------------------------------------------------
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1-CSA 991216.▇▇▇ ▇▇▇▇▇▇▇▇ Communications - Proprietary & Confidential
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Exhibit III ▇▇▇▇▇▇▇▇ Vyvx Services Order Form Order #
Cust. PON:
--------------------------------------------------------------------------------
Order Date Sales Rep: Cust. Reference #:
Requested Due Date: Sales Rep Phone: Price QuoteRef #1:
Circuit Term: Price Quote Ref #2:
Customer Information Billing Information
Customer: Billing Contact:
Customer Contact: Billing Address:
Address: Billing City:
City: Billing State:
State: Zip: Billing Zip Code:
Phone: Billing Phone:
Fax: Billing Acct #:
Email:
--------------------------------------------------------------------------------
LOCAL LOOP
--------------------------------------------------------------------------------
Service Request: Stop ▇▇▇▇ Date: Loop Circuit I.D. (If Existing Loop):
Interval: Expedite Date: Local Loop Type/Speed:
▇▇▇▇ Type: Diversity: * Framing C Bit: Via:
NPA: NXX: * PLCP: Inside
Wiring:
End User Name: Preferred Local Access Vendor:
End User Address: Collocate Assignment:
Building: Floor: Room #: On-Site Contact Name:
City: State: Zip: On-Site Contact Phone:
On-Site Contact Email:
Access Hours: Line Coding:
* Note: DS3 Only Framing:
--------------------------------------------------------------------------------
PORT/NODE
--------------------------------------------------------------------------------
Port/Node: Service Request: Requested Port Speed:
Circuit ID: Port Type: Flex-UNI (Yes or No):
--------------------------------------------------------------------------------
PVCs
--------------------------------------------------------------------------------
PVC 1 PVC 2 PVC 3 PVC 4 PVC 5 PVC 6 PVC 7 PVC 8 PVC 9
New, Change or Disconnect
VPC or VCC
QoS (CBR, VBR, ABR, UBR)
Source VPI/VCI
Flat Rate or Usage Based
Pt-to-Pt or
Pt-to-Multipoint
PVC CIR (Mbps)
Circuit I.D. (Change && Disc.)
UNI PVC
NNI PVC
Destination Port City
Destination VPI/VCI
Destination Port Circuit ID
Dest. Port Speed (Mbps)
Full Duplex PVC
Simplex PVC
--------------------------------------------------------------------------------
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▇▇▇▇▇▇▇▇ Vyvx Service Order Order #:
Cust PON:
--------------------------------------------------------------------------------
Circuit Pricing
--------------------------------------------------------------------------------
Local Access/Backhaul Pricing Price Quote
Location Vendor Local Loop Speed Installation ▇▇ ▇▇▇▇▇ Monthly Recurring
Port Pricing Price Quote
Port Size Installation(NRC) Monthly Recurring (MRC) Total
Other Charges
Disconnect Charge:
Expedite Charge: Expedite Charge Description:
Ancillary Charge: Ancillary Charge Description:
Misc. Charge: Misc. Charge Description:
PVC Pricing Totals
Other Chgs:
PVC Install Fee PVC CIR Price Per MB Discount % MRC Total ($)
1 L.A. Install:
2 Port Install:
3 PVC Install:
4 Total Install:
5
L.A. MRC:
6
Port MRC:
7
PVC MRC:
8
Total MRC:
9
Notes/Special Instructions:iBEAM Design Approval: Date:
------------------------------------------------------------------------------------------------------------------
" " " " " " iBEAM hereby represents more than 10% of the iBEAM's use of
Service and/or circuit provided by ▇▇▇▇▇▇▇▇ pursuant to this Order
will be interstate telecommunications. If it is determined at any
time that such interexchange Service or circuit is subject to state
regulation, the interexchange Service or circuit may be provided by
▇▇▇▇▇▇▇▇ or its affiliates, pursuant to applicable state laws,
regulations and applicable tariffs. All service is provided in
accordance with the Customer's Letter of Intent, or Customer's Data
Services Agreement #_____________or if no agreement exists between
▇▇▇▇▇▇▇▇ and Customer, then ▇▇▇▇▇▇▇▇' standard terms and conditions,
and any applicable ▇▇▇▇▇▇▇▇ tariff will apply.
-------------------------------------------------------------------------------
VYVX AUTHORIZING SIGNATURE iBEAM BROADCASTING CORPORATION AUTHORIZED SIGNATURE
Print Name Date Print Name Date
Exhibit IV
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▇▇▇▇▇▇▇▇ Vyvx Services Troubleshooting Procedure-iBEAM
July 11, 2000
For all iBEAM circuits on the ▇▇▇▇▇▇▇▇ Network, a Trouble Reporting Contact
number and procedure are listed below. ▇▇▇▇▇▇▇▇ Vyvx Services Control Center
will take and verify the customer information and transfer the call to the
▇▇▇▇▇▇▇▇ Network Control Center (CNMC) in Sacramento. . Information required
from iBEAM is listed below as well. ▇▇▇▇▇▇▇▇ Network Control Center in
Sacramento ("CNMC") will actively coordinate the resolution of trouble on iBEAM
circuits directly with the Customer and strive to identify, isolate and resolve
outages and communicate the status of resolution to iBEAM in such a manner as to
minimize the impact of outages on iBEAM circuits.
Contact Information:
Vyvx NCC in Tulsa Oklahoma staffed 24x7x365-- Call ▇-▇▇▇-▇▇▇-▇▇▇▇
iBEAM will give Vyvx Technician the following information: Customer, Name,
Affected City Pairs, and/or ▇▇▇▇▇▇▇▇ Network Circuit Numbers of affected
circuit/s (TWC#) and iBEAM NOC call back number.
Vyvx Technician will immediately call WCG Sacramento NCC and transfer the
information and call. Vyvx technician will state customer of record is iBEAM.
Vyvx technician will open a trouble ticket within Vyvx for information purposes
only with appropriate time and date stamps for record keeping and notes from
Sacramento on trouble and resolution.
Sacramento NCC will troubleshoot the TWC Circuit according to the
established procedures and handle the customer contact as primary interface from
this point forward. Vyvx personnel will stay informed of circuit outages and
resolution progress on all open tickets.
1.1.1 CNMC personnel will confirm outages with iBEAM technician and open trouble
ticket with actual date and time of outage, record TWC#'s and other
information necessary to troubleshoot circuit. Supervisor on Duty will be
immediately notified that this is an iBEAM circuit and Supervisor will
assign a technician to work the trouble to resolution.
1.1.2 CNMC personnel will retrieve all relevant data on the circuit from TBS
database and utilize circuit information to perform verification of
service. CNMC Personnel will notify iBEAM whether WCG is customer of
record on the Local Exchange Carrier portion of circuit immediately so
iBEAM can coordinate the cooperative testing with appropriate LEC
troubleshooting personnel.
1.1.3 CNMC personnel will actively work ticket and perform such necessary tests
to isolate trouble and communicate this to relevant parties within WCG
responsible for resolution of affected areas. This includes LEC group and
ATM Network Group. CNMC will coordinate the resolution of ticket and
maintain communications with Customer.
1.1.4 If at this time it is determined that there is no trouble and iBEAM is in
agreement, the ticket will be
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closed out and reported date and time of circuit restoration will be
recorded.
1.1.5 If there is ATM trouble iBEAM will be given a ticket number and an
expectation of when they will be either informed of repair and/or update
status.
1.1.6 If trouble is determined to be in the Local Access portion of the
circuit, CNMC personnel, with iBEAM's consent, if necessary, will work
the problem with the LEC Repair Service Center. Local Exchange Carrier
records will be accessed on the Circuit Layout Report and TBS database
and ▇▇▇▇▇▇▇▇ Network will coordinate such resolution when WCG is the
customer of record with the associated LEC for this circuit. In the case
where another party owns the LEC order, WCG will perform end to end
testing of circuits and coordinate resolution of troubles as required
from iBEAM or Local Exchange Carrier technical personnel as needed.
1.1.7 If the trouble is determined to be in the "Network" portion of the
circuit, the CNMC personnel will then perform such test to isolate which
workgroup in ▇▇▇▇▇▇▇▇ to refer trouble for further testing and
resolution.
1.1.8 Outages of long duration may require escalations to expedite resolution.
Escalation procedures and contacts will be followed and noted in the
ticket log. Every attempt will be made to resolve circuit problems and
inform customer of progress to this end in a timely manner.
1.1.9 Once the LEC or the On-Net provider has cleared the trouble the CNMC
personnel will then retest where possible and contact iBEAM to test end
to end and resolve the trouble reported. The CNMC then will close out
the trouble ticket following established procedures and confirmation by
iBEAM that circuit is back in operation. If circuit is tested good
through LEC Demarcation by ▇▇▇▇▇▇▇▇ and the associated LEC and iBEAM
either does not acknowledge resolution of the problem, is not available
for testing or for some other reason does not respond, the trouble
ticket will be so noted along with the time of resolution, and the
ticket will be placed in "awaiting customer call back" status for
delayed maintenance. Within 24 to 48 hours of resolution of the trouble
and after a reasonable number of attempts to close the ticket with the
customer, CNMC will notify customer that the ticket will be closed by
the end of the business day unless Customer contacts CNMC for further
testing. CNMC will note in the trouble ticket the time circuit tested
good and inform Vyvx NCC of ticket status, time of resolution and any
Customer concerns.
1.1.10 Vyvx NCC will update their trouble ticket with the relevant notes, times
and make a final disposition for records keeping, score carding and any
possible outage credits due customer.
1.1.11 These procedures may be updated from time to time to ensure ongoing
efficiencies.
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1-CSA 991216.▇▇▇ ▇▇▇▇▇▇▇▇ Communications - Proprietary & Confidential
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AMENDMENT 1
Data Services Agreement #01R0470.00
THIS AMENDMENT 1 ("Amendment") is made and entered into this ___ day of June,
2001, by and between Vyvx Broadband Media (formerly ▇▇▇▇▇▇▇▇ Vyvx Services), a
business unit of ▇▇▇▇▇▇▇▇ Communications, LLC ("Vyvx"), and iBEAM Broadcasting
Corporation ("Customer").
WHEREAS, Vyvx and Customer are parties to that certain Data Services Agreement,
dated March 19, 2001, Contract #01R0470.00 (the "Agreement"); and
WHEREAS, effective January 1, 2001, ▇▇▇▇▇▇▇▇ Communications, Inc., became
▇▇▇▇▇▇▇▇ Communications, LLC, a Delaware limited liability company; and
WHEREAS, Vyvx and Customer desire to amend the Agreement;
NOW, THEREFORE in consideration of the foregoing premises and mutual promises
and covenants of the parties hereto, the receipt and sufficiency of which is
hereby acknowledged, Vyvx and Customer agree to amend the Agreement as follows:
1. Section 2.0 of the Agreement (Description of Services) shall be amended to
add the following additional Services, as defined in the Agreement:
2.1 Description of Dedicated Internet Service (Transit and
Non-transit):
Definition of Transit:
Transit IP traffic, i.e. off-net, is traffic that exits WCG
network via a provider and terminates at an end-user not connected
to that provider's network or any of their customer's networks.
Non-transit traffic, i.e. on-net, is traffic that exits WCG
network via a provider and terminates at an end-user directly
connected to that provider's network or one of their customer's
networks.
Dedicated Internet Service (Transit and Non-transit) provides a
Customer with a dedicated high-speed connection to the Internet.
Dedicated Internet Access Service is offered at speeds from DS1 to
GigE. Customers can choose Flat Rate, Tiered Rate or Burstable Rate
billing options. Also available are IP addresses and/or secondary
DNS requirements and USENET newsfeeds. Dedicated Internet Service
can be configured as Private Line, Frame Relay, ATM, or
Packet-over-SONET in order to allow the Customer to run the same
protocol across its network (i.e. if Customer currently has a frame
relay network, the Dedicated Internet Service Customer orders from
Seller can be configured as frame relay). Dedicated Internet Service
only provides Customer with access to the Internet and to other
Dedicated Internet Access customers within the Vyvx Network and does
not provide Customer with connectivity to other Customer sites that
are not connected to the Internet. Seller offers several options for
Customer's connectivity to the Internet, which options are more
specifically described in the Technical Specifications
Amendment 1 to DSA Page 1
and Connectivity Options for Dedicated Internet Service set forth in
Exhibit II. Customer will specify its connectivity option on
Customer's Service Order for Dedicated Internet Service.
2. Exhibit I to the Agreement (▇▇▇▇▇▇▇▇ Vyvx Services Pricing Schedule) shall
be amended to add the additional pricing for Services set forth in
Attachment A hereto.
3. Exhibit II to the Agreement (▇▇▇▇▇▇▇▇ Vyvx Services Technical
Specifications) shall be amended to add the additional technical
specifications for Services set forth in Attachment B hereto.
4. Except as specifically amended herein, all terms, conditions and
provisions contained in the Agreement shall remain unchanged and in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment 1 on the day and
year first above set forth.
VYVX BROADBAND MEDIA, a business IBEAM BROADCASTING
unit of ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC CORPORATION
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------- --------------------------
Signature Signature
▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------- -------------
Print Name Print Name
CEO
-------------------------------------- ---
Title Title
July 9, 2001
-------------------------------------- ------------
Date Date
Amendment 1 to DSA Page 2
ATTACHMENT A
To Amendment 1 to DSA
The following shall be added to Exhibit I (▇▇▇▇▇▇▇▇ Vyvx Services Pricing
Schedule) as additional pricing for Services:
D. Dedicated Internet Service
1. Recurring Rates & Charges
1.1
1.1 Dedicated Internet Access Rate Pricing. For Dedicated Internet Access Rate
pricing, the monthly recurring charge is $225 per Mbps per month with a
minimum volume of 1000Mbps per month. Dedicated Internet Access pricing
for IP transit below 1000Mbps per month will be $325per Mbps per month not
to exceed $250,000. The Dedicated Internet Access volume will be measured
as the higher of either inbound or outbound traffic measured at the 95%
percentile. To attain this measurement, the customer's traffic is sampled
every 3 minutes and aggregated in 15 minute increments to obtain the usage
activity for the month. These measurements are recorded in a database. At
the end of the billing cycle, the highest 5% of samples are deleted. (So,
if there are 2,976 samples in a month, then delete the highest 149.) The
Customer agrees to a minimum commitment of 400Mbps per month of total
Dedicated Internet Access volume.
1.5 Monthly Recurring Cross Connect Charge. Monthly Recurring Cross Connect
Charges may apply to connections between Customer Equipment, Seller
facilities and network, and the equipment or cable of third parties. The
Monthly Recurring Cross Connect Charges are set forth in Table D.4.
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Table ▇.▇ ▇▇-▇ ▇▇-▇ OC-3 OC-12 GigE
-------------------------------------------------------------------------------------------
Monthly Recurring Cross Connect Charges 150 250 1000 1000 1000
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1.6 Pricing. Pricing for the provision of Dedicated Internet Service shall be
as set out in this Schedule and is subject to change for one year from the
effective date per the terms of Exhibit I of the Agreement. It is the
intent of the Parties that iBEAM should receive favorable pricing for
Services, in keeping with the volume of Services purchased by iBEAM and
other relevant market factors. ▇▇▇▇▇▇▇▇ and iBEAM agree to review pricing
for Services each calendar year. The standard for when pricing should be
adjusted shall be whether the overall market price for Dedicated Internet
Access in the United States has either fallen by a significant amount
below ▇▇▇▇▇▇▇▇' rates or risen by a significant amount above ▇▇▇▇▇▇▇▇'
rates.
Pricechanges shall only be effective on a going-forward basis and shall
not apply to Service Orders previously placed by Customer and accepted by
Seller prior to the effective date of the respective price change.
2. Non-Recurring Rates & Charges
2.1 Non-Recurring Charges. Non-Recurring Charges may be incurred for Dedicated
Internet Services. Non-Recurring Charges are set forth in Table D.5 below.
-----------------------------------------------------------------------------------------------------------
Table D.5 Non-Recurring Charges DS-1 DS-3 OC-3 OC-12 GigE
-----------------------------------------------------------------------------------------------------------
New Order Installation $500 $1,500 $4,000 $8,000 $6,000
-----------------------------------------------------------------------------------------------------------
Change Of Service Date Charge (1st change free) $25 $50 $2,000 $4,000 $8000
-----------------------------------------------------------------------------------------------------------
Port Order Change Charge $100 $100 $100 $100 $100
-----------------------------------------------------------------------------------------------------------
Configuration Changes $50 $50 $50 $50 $50
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Change Of Service Order Charge
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Pre-engineering $160 $800 $2,400 $4,800 $9600
-----------------------------------------------------------------------------------------------------------
Post-engineering $320 $1,600 $4,800 $9,600 $19,200
-----------------------------------------------------------------------------------------------------------
Order Cancellation
-----------------------------------------------------------------------------------------------------------
Pre-engineering $200 $1,000 $3,000 $6,000 $12,000
-----------------------------------------------------------------------------------------------------------
Post-engineering $400 $2,000 $6,000 $12,000 $24,000
-----------------------------------------------------------------------------------------------------------
Access Service Request (ASR) Special Access N/A $250 $250 $250 $250
-----------------------------------------------------------------------------------------------------------
Access Service Request (ASR) Supplement $150 $150 $150 $150 $150
-----------------------------------------------------------------------------------------------------------
Order Expedite $300 $300 $300 $300 $300
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Amendment 1 Page 2
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Table D.5 Non-Recurring Charges DS-1 DS-3 OC-3 OC-12 GigE
--------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Cross Connect Install Charge $300 $750 $1,000 $1,500 $2000
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In addition to the above charges, Customer is required to reimburse
▇▇▇▇▇▇▇▇ for any Third Party Provider charges relating to Customer's
service. Non-Recurring Charges not described above will be considered
special requests and will be handled on an individual case basis. All of
the charges stated above are subject to change with thirty (30) calendar
days notice. A complete description of the above charges is published at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇/▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇▇.
-----------------------------------------------------------------------------------------------------------
2.2 Miscellaneous. Customer should be aware that from time to time,
third-party charges are levied to Seller after submission of the original
Service Order from Customer. Seller may be obligated to pass these charges
to Customer. Seller will inform Customer of any such charges before the
charges are passed to Customer. Seller cannot commit that all charges
related to any requested Service will always be on the original Service
Order.
Amendment 1 Page 3
ATTACHMENT B
To Amendment 1 to DSA
The following shall be added to Exhibit II (▇▇▇▇▇▇▇▇ Vyvx Services Technical
Specifications) as additional Technical Specification for Services:
IV. Dedicated Internet Service
A. Connectivity Options.
(1) DS1 Frame Relay: DS1 Services will connect into Seller's POP on
a channelized DS3. Seller's entrance facilities will have a logical
port created for Customer on DS3/1/0 card on ATM Switch. This
logical port will be used to create a PVC to Seller's access router
using frame relay (or PPP) to ATM service internetworking.
(2) DS1 Point-to-Point (PPP): If Customer orders DS1 PPP, Customer
will terminate on Seller's entrance facilities via a channelized DS3
card. One logical port will be configured for Customer on the DS3
Frame card on ATM Switch. Seller will provide a PVC from this
logical port to the ATM UNI logical port on Seller's access router.
(3) DS3 ATM: If Customer orders DS3 ATM connectivity, Customer's
circuit will be terminated on Seller's entrance facilities at
Seller's POP.
(4) DS3 Frame Relay: If Customer orders DS3 Frame Relay
connectivity, Customer will be connected directly to the entrance
facilities at Seller's POP.
(5) DS3 Point-to-Point (PPP): If Customer orders DS3 PPP
connectivity, Customer's Dedicated Internet Service will connect to
the entrance facilities at Seller's POP on an optical interface.
(6) OC3 ATM: If Customer orders OC3 ATM connectivity, Customer's
circuit will be terminated on Seller's entrance facilities at
Seller's POP. One logical port will be configured for Customer.
Seller will provide a PVC from this logical port to the ATM UNI
logical port on Seller's access router.
(7) OC3 Packet-over-SONET (PoS): If Customer orders OC3 POS
connectivity, Customer's circuit will be terminated on Seller's
entrance facilities at Seller's POP. Seller will provide a dedicated
POS circuit from the entrance facility to the POS port on Seller's
access router.
(8) OC12 ATM: If Customer orders OC12 ATM connectivity, Customer's
circuit will be terminated on Seller's entrance facilities at
Seller's POP. One logical port will be configured for Customer on
ATM Switch. Seller will provide a PVC from this logical port to the
ATM UNI logical port on Seller's access router.
(9) OC12 Packet-over-SONET (PoS): If Customer orders OC12 POS
connectivity, Customer's circuit will be terminated on Seller's
entrance facilities at Seller's POP. Seller will provide a dedicated
POS circuit from the entrance facility to the POS port on Seller's
access router.
(10) Gigabit Ethernet (GigE): If Customer orders GigE connectivity,
Customer's circuit will be terminated on Seller's entrance
facilities at Seller's POP or Data Center. Seller will provide a
dedicated Gig Ethernet from entrance facility to the collocated or
customer rack to Seller's switch or router. Connector will be multi
mode fiber with SC connector.
B. Network Availability. Network Availability is a measurement of the percent
of total time that service is operative when measured over a 30 day
period. Seller's Network availability for Dedicated Internet Services
shall be 99.999% at Seller's Santa ▇▇▇▇▇, ▇▇▇▇▇▇▇, and Tulsa Internet Data
Centers measured over a thirty-day period. Seller will undertake repair
efforts on equipment or fiber when Seller first becomes aware of it, or
when notified by Customer and Customer has released all or part of the
Service for testing. The standards by which Seller's Dedicated Internet
Services is measured apply on a one-way basis between Seller's POPs only.
Seller does not guarantee the availability of local loops.
C. Meant Time to Restore ("MTTR"). MTTR shall be the average time required to
restore service and resume availability and is stated in terms of
equipment and cable outages. The time is measured from the moment the
outage is reported until the service is available. With respect to
Dedicated Internet Service, Seller has an objective of repairing network
equipment within an average of two (2) hours for Priority 1 outages and
four (4) hours for Priority 2 outages and an objective to have the first
fiber on a cable cut restored within an average of six (6) hours. Seller
will undertake repair efforts on equipment or fiber when Seller first
becomes aware of the problem, or when notified by Customer and
Amendment 1 Page 4
Customer has released all or part of the Service for testing. The
maintenance standards in this Section only apply for equipment or fiber on
Seller's owned and operated network and from Seller's POP to Seller's POP.
Vyvx and Customer will work to define Priority 1 and Priority 2 outages
within 30 days after the effective date.
D. Latency. Latency is measured as the round trip time, averaged over a month
(720 hours/month), required for a packet (100 bytes) to travel between
Seller Core IP POPs (Seller IP Core Access Router to Seller IP Core Access
Router). For Services on Seller's Network, Latency will be less than 55 ms
maximum average round trip, not to exceed 100 ms peak between Core IP POPs
when averaged over a one month period (720 hours). The SLA Latency is the
average of mean latency values for IP Core POP City pairs. The customer
will be provided monthly a matrix of Core IP City Pairs and averaged
latency times between these pairs. The worst time from this matrix is the
peak latency.
E. Packet Loss. Packet Loss is measured as the percentage of 100 byte packets
at 5 iterations of 100 trials, averaged over a month (720hours) lost
between Seller Core IP POPs (Seller IP Core Access Router to Seller IP
Core Access Router). For Services on Seller's Network, Packet Loss will be
less than 1% averaged over a month period (720 hours) between Seller's IP
Core POPs. The customer will be provided monthly a matrix of Core IP City
Pairs and averaged percentages of Packet Loss between these pairs. The SLA
Packet Loss is the worst percentage of packet loss from said matrix.
Amendment 1 Page 5
