XXXXX 0
MASTER SERVICE AGREEMENT
This Master Service Agreement (this "Agreement") is entered into this 21st day
of April 2003 ("Effective Date") by and between LEVEL 3
COMMUNICATIONS, LLC ("Level 3") and eACCELERATION CORPORATION ("Customer").
ARTICLE 1. DEFINITIONS
1.1 "Affiliate" shall mean an entity that now or in the future, directly or
indirectly controls, is controlled by, or is under common control with, a party
to this Agreement. For purposes of the foregoing, "control" shall mean the
ownership of (i) greater than fifty percent (50%) of the voting power to elect
the directors of the company, or (ii) greater than fifty percent (50%) of the
ownership interest in the company.
1.2 "Connection Notice" shall mean a written notice from Level 3 that the
Service ordered has been installed by Level 3 pursuant to the Customer Order,
and has been tested and is functioning properly.
1.3 "Customer Commit Date" shall mean the date that Service will be available to
Customer, as set forth in the Customer Welcome Letter or such other written
notice from Xxxxx 0 to Customer.
1.4 "Customer Order" shall mean a request for Service submitted by Customer in
the form designated by Level 3.
1.5 "Customer Premises" shall mean the location or locations occupied by
Customer or its end users to which Service is delivered.
1.6 "Customer Welcome Letter" shall mean a written communication from Level 3 to
Customer informing Customer of Level 3's acceptance of the Customer Order.
1.7 "Excused Outage" shall mean any outage, unavailability, delay or other
degradation of Service related to, associated with or caused by scheduled
maintenance events, Customer actions or inactions, Customer provided power or
equipment, any third party, excluding any third party directly involved in the
operation and maintenance of the Level 3 network but including, without
limitation, Customer's end users, third party network providers, traffic
exchange points controlled by third parties, or any power, equipment or services
provided by third parties, or an event of force majeure as defined in Section
7.1.
1.8 "Facilities" shall mean any property owned or leased by Xxxxx 0 and used to
deliver Service, including terminal and other equipment, wires, lines, ports,
routers, switches, channel service units, data service units, cabinets, racks,
private rooms and the like.
1.9 "Gateway" data center space owned or leased by Xxxxx 0 for the purpose of,
among other things, locating and colocating communications equipment.
1.10 "Local Loop" shall mean the connection between Customer Premises and a
Level 3 Gateway or other Facility.
1.11 "Off-Net" shall mean Service that originates from or terminates to any
location that is not on the Level 3 network.
1.12 "On-Net" shall mean Service that originates from and terminates to a
location that is on the Level 3 network.
1.13 "Service" shall mean any Level 3 service described in a Service Schedule
and identified on a particular line item of a Customer Order.
1.14 "Service Commencement Date" shall mean the first to occur of (i) the date
set forth in any Connection Notice, unless Customer notifies Xxxxx 0 that the
Service is not functioning properly as provided in Section 3.1 (or, if two or
more Services are designated as "bundled" or as having a "sibling relationship"
in any Customer Order, the date set forth in the Connection Notice for all such
Services); (ii) the date upon which Customer acknowledges that the Service has
been installed and is functioning properly (in the event Customer first notifies
Level 3 that the Service is not functioning properly as provided in Section
3.1); or (iii) the date Customer begins using the Service.
1.15 "Service Schedule" shall mean a schedule attached hereto, or signed between
the parties from time to time and expressly incorporated into this Agreement,
setting forth terms and conditions specific to a particular Service.
1.16 "Service Term" shall mean the duration of time (measured starting on the
Service Commencement Date) for which Service is ordered, as specified in the
Customer Order. The Service Term shall continue on a month-to-month basis after
expiration of the stated Service Term, until terminated by either Level 3 or
Customer upon thirty (30) days' prior written notice to the other.
ARTICLE 2. DELIVERY OF SERVICE
2.1 SUBMISSION OF CUSTOMER ORDER(S). To order any Service, Customer may submit a
Customer Order requesting Service. Unless otherwise agreed, Customer is not
obligated to submit Customer Orders. The Customer Order and its backup detail
must include a description of the Service, the non-recurring charges and monthly
recurring charges for Service and applicable Service Term.
2.2 ACCEPTANCE BY LEVEL 3. Upon receipt of a Customer Order, if Level 3
determines (in its sole discretion) to accept the Customer Order, Level 3 will
deliver a Customer Welcome Letter for the requested Service (or some portion of
the Services). Level 3 will become obligated to deliver ordered Service only if
Level 3 has delivered a Customer Welcome Letter for the Service.
2.3 CREDIT APPROVAL AND DEPOSITS. Customer will provide Level 3 with credit
information as requested, and delivery of Service is subject to credit approval.
Xxxxx 0 may require Customer to make a deposit or deliver another form of
security as a condition to Level 3's acceptance of any Customer Order, or as a
condition to Level 3's continuation of Service. The deposit will be held by
Level 3 as security for payment of Customer's charges. When Service to Customer
is terminated, the amount of the deposit will be credited to Customer's account
and any remaining credit balance will be refunded.
2.4 CUSTOMER PREMISES. Customer shall allow Level 3 access to the Customer
Premises to the extent reasonably determined by Xxxxx 0 for the installation,
inspection and scheduled or emergency maintenance of Facilities relating to
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the Service. Level 3 shall notify Customer at least two (2) business days in
advance of any regularly scheduled maintenance that will require access to the
Customer Premises or that may result in a material interruption of Service.
Customer will be responsible for providing and maintaining, at its own expense,
the level of power, heating and air conditioning necessary to maintain the
proper environment for the Facilities on the Customer Premises. In the event
Customer fails to do so, Customer shall reimburse Level 3 for the actual and
reasonable cost of repairing or replacing any Facilities damaged or destroyed as
a result of Customer's failure. Customer will provide a safe place to work and
comply with all laws and regulations regarding the working conditions on the
Customer Premises.
2.5 LEVEL 3 FACILITIES. Except as otherwise agreed, title to all Facilities
shall remain with Level 3. Level 3 will provide and maintain the Facilities in
good working order. Customer shall not, and shall not permit others to,
rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any
Facilities, without the prior written consent of Level 3. The Facilities shall
not be used for any purpose other than that for which Level 3 provides them.
Customer shall not take any action that causes the imposition of any lien or
encumbrance on the Facilities. In no event will Level 3 be liable to Customer or
any other person for interruption of Service or for any other loss, cost or
damage caused by or related to improper use or maintenance of the Facilities by
Customer or any third party gaining access to the Facilities by Customer in
violation of this Agreement, and Customer shall reimburse Level 3 for any
damages incurred as a result thereof. Customer agrees (which agreement shall
survive the expiration, termination or cancellation of any Customer Order) to
allow Level 3 to remove the Facilities from the Customer Premises:
(A) after termination, expiration or cancellation of the Service Term of any
Service in connection with which the Facilities were used; or
(B) for repair, replacement or otherwise as Level 3 may determine is necessary
or desirable, but Xxxxx 0 will use reasonable efforts to minimize disruptions to
the Service caused thereby.
2.6 CUSTOMER-PROVIDED EQUIPMENT. Xxxxx 0 may install certain Customer-provided
communications equipment upon installation of Service, but Level 3 shall not be
responsible for the operation or maintenance of any Customer-provided
communication equipment. Level 3 undertakes no obligations and accepts no
liability for the configuration, management, performance or any other issue
relating to Customer's routers or other Customer-provided equipment used for
access to or the exchange of traffic in connection with the Service.
ARTICLE 3. BILLING AND PAYMENT
3.1 COMMENCEMENT OF BILLING. Upon installation and testing of the Service
ordered in any Customer Order, Level 3 will deliver to Customer a Connection
Notice. Upon receipt of the Connection Notice, Customer shall have a period of
seventy two (72) hours to confirm that the Service has been installed and is
properly functioning. Unless Customer delivers written notice to Level 3 within
such seventy two (72) hour period that the Service is not installed in
accordance with the Customer Order and functioning properly, billing shall
commence on the applicable Service Commencement Date, regardless of whether
Customer has procured services from other carriers needed to operate the
Service, and regardless of whether Customer is otherwise prepared to accept
delivery of ordered Service.
3.2 CHARGES. The Customer Order will set forth the applicable non-recurring
charges and recurring charges for the Service. Unless otherwise expressly
specified in the Customer Order, any non-recurring charges shall be invoiced by
Xxxxx 0 to Customer upon the Service Commencement Date. However, in the event
such Service requires Level 3 to install additional infrastructure, cabling,
electronics or other materials in the provision of the Service, such Customer
Order may include (as specified therein) non-recurring charges that are payable
by Customer in advance of the Service Commencement Date, as mutually agreed
between the parties. In the event Customer fails to pay such non-recurring
charges within the time period specified in the Customer Order, (i) such failure
to pay shall constitute an Excused Outage for purposes of installation of the
Service; (ii) Level 3 may issue a revised Customer Commit Date; and (iii) Xxxxx
0 may suspend installation of the Service until receipt of such non-recurring
charges. If Customer requests and Level 3 approves (in its sole discretion) any
changes to the Customer Order or Service after acceptance by Xxxxx 0, including,
without limitation, the Service installation date or Service Commencement Date,
additional non-recurring charges and/or monthly recurring charges not otherwise
set forth in the Customer Order may apply.
3.3 PAYMENT OF INVOICES. Invoices are delivered monthly. Xxxxx 0 bills in
advance for Service to be provided during the upcoming month, except for charges
that are dependent upon usage of Service, which are billed in arrears. Billing
for partial months is prorated based on a calendar month. All invoices are due
thirty (30) days after the date of invoice. Unless otherwise specified on the
particular invoice, all payments shall be due and payable in U.S. Dollars. Past
due amounts bear interest at a rate of 1.5% per month (or the highest rate
allowed by law, whichever is less) beginning from the date first due until paid
in full.
3.4 TAXES AND FEES. All charges for Service are net of Applicable Taxes (as
defined below). Except for taxes based on Level 3's net income, Customer will be
responsible for all applicable taxes that arise in any jurisdiction, including,
without limitation, value added, consumption, sales, use, gross receipts,
excise, access, bypass, franchise or other taxes, fees, duties, charges or
surcharges, however designated, imposed on, incident to, or based upon the
provision, sale or use of the Service (collectively "Applicable Taxes"). If
Customer is entitled to an exemption from any Applicable Taxes, Customer is
responsible for presenting Level 3 with a valid exemption certificate (in a form
reasonably acceptable to Level 3). Level 3 will give effect to any valid
exemption certificate provided in accordance with the foregoing sentence to the
extent it applies to any Service billed by Level 3 to Customer following Level
3's receipt of such exemption certificate.
3.5 REGULATORY AND LEGAL CHANGES. In the event of any change in applicable law,
regulation, decision, rule or order that materially increases the costs or other
terms of delivery of Service, Xxxxx 0 and Customer will negotiate regarding the
rates to be charged to Customer to reflect such increase in cost and, in the
event that the parties are unable to reach agreement respecting new rates within
thirty (30) days after Level 3's delivery of written notice requesting
renegotiation, then (a) Level 3 may pass such increased costs through to
Customer, and (b) if Level 3 elects to pass such increased costs through to
Customer, Customer may terminate the
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affected Service without termination liability by delivering written notice of
termination no later than thirty (30) days after the effective date of the rate
increase.
3.6 DISPUTED INVOICES. If Customer reasonably disputes any portion of a Level 3
invoice, Customer must pay the undisputed portion of the invoice and submit
written notice of the claim (in a form reasonably requested by Level 3) for the
disputed amount. All claims must be submitted to Level 3 in writing within sixty
(60) days from the date of the invoice for those Services. Customer waives the
right to dispute any charges not disputed within such sixty (60) day period. In
the event that the dispute is resolved against Customer, Customer shall pay such
amounts plus interest at the rate referenced in Section 3.3.
3.7 TERMINATION CHARGES.
(A) Customer may cancel a Service following Level 3's acceptance of the
applicable Customer Order and prior to the Customer Commit Date upon prior
written notice to Level 3 (in a form reasonably requested by Level 3). In the
event that Customer does so, or in the event that the delivery of such Service
is terminated by Xxxxx 0 prior to delivery of a Connection Notice due to a
failure of Customer to comply with the terms of this Agreement or any Customer
Order, Customer shall pay Level 3 a cancellation charge equal to the sum of (1)
in the case of Colocation Space, the costs incurred by Xxxxx 0 in returning the
Colocation Space to a condition suitable for use by third parties, plus (2):
(a) any third party cancellation/termination charges related to the
installation and/or cancellation of Service;
(b) the non-recurring charges (including any non-recurring charges that
were waived by Level 3 at the time of the Customer Order) for the cancelled
Service; and
(c) as the case may be, (i) one (1) month's monthly recurring charges
for the cancelled Service if written notice of cancellation is received by Level
3 more than five (5) business days prior to the Customer Commit Date, or (ii)
three (3) month's monthly recurring charges for the cancelled Service if written
notice of cancellation is received by Level 3 five (5) business days or less
prior to the Customer Commit Date.
Customer's right to cancel any particular Service under this Section 3.7(A)
shall automatically expire and shall no longer apply upon Level 3's delivery to
Customer of a Connection Notice for such Service.
(B) In addition to Customer's right of cancellation under Section 3.7(A) above,
Customer may terminate Service prior to the end of the Service Term upon thirty
(30) days' prior written notice to Level 3 (in a form reasonably requested by
Level 3). In the event that, after either the Customer Commit Date or Customer's
receipt of the Connection Notice for a particular Service (whichever occurs
first) and prior to the end of the Service Term, Customer terminates Service or
in the event that the delivery of Service is terminated due to a failure of
Customer to comply with the terms of this Agreement or any Customer Order,
Customer shall pay Level 3 a termination charge equal to the sum of (1) in the
case of Colocation Space, the costs incurred by Xxxxx 0 in returning the
Colocation Space to a condition suitable for use by third parties, plus (2):
(a) any third party cancellation/termination charges related to the
installation and/or termination of Service;
(b) the non-recurring charges (including any non-recurring charges that
were waived by Level 3 at the time of the Customer Order) for the cancelled
Service, if not already paid; and
(c) the percentage of the monthly recurring charges for the terminated
Service calculated from the effective date of termination as (i) 100% of the
remaining monthly recurring charges that would have been incurred for the
Service for months 1-12 of the Service Term, plus (ii) 50% of the remaining
monthly recurring charges that would have been incurred for the Service for
months 13 through the end of the Service Term.
3.8 FRAUDULENT USE OF SERVICES. Customer is responsible for all charges
attributable to Customer incurred respecting Service, even if incurred as the
result of fraudulent or unauthorized use of Service; except Customer shall not
be responsible for fraudulent or unauthorized use by Level 3 or its employees.
ARTICLE 4. TERM AND TERMINATION
4.1 TERM.
(A) This Agreement shall become effective on the Effective Date and shall
continue for a period of two (2) years thereafter ("Agreement Term"), unless
earlier terminated as provided herein. At the end of the initial Agreement Term,
the Agreement Term shall automatically renew on a month-to-month basis until
terminated by either party upon thirty (30) days' prior written notice to the
other party.
(B) Except as otherwise set forth herein, Level 3 shall deliver the Service for
the entire duration of the Service Term, and Customer shall pay all charges for
delivery thereof through the end of the Service Term. To the extent that the
Service Term for any Service extends beyond the Agreement Term, then this
Agreement shall remain in full force and effect for such Service until the
expiration or termination of such Service Term.
4.2 DEFAULT BY CUSTOMER. If (i) Customer makes a general assignment for the
benefit of its creditors, files a voluntary petition in bankruptcy or any
petition or answer seeking, consenting to, or acquiescing in reorganization,
arrangement, adjustment, composition, liquidation, dissolution or similar
relief; (ii) an involuntary petition in bankruptcy, other insolvency protection
against Customer is filed and not dismissed within sixty (60) days; (iii)
Customer fails to make any payment required hereunder when due, and such failure
continues for a period of five (5) business days after written notice from Xxxxx
0, (iv) Customer fails to observe and perform any material term of this
Agreement (other than payment terms) and such failure continues for a period of
thirty (30) days after written notice from Level 3; or (v) Customer's use of
Service materially exceeds Customer's credit limit, unless within one (1)
business day's written notice thereof by Level 3, Customer provides adequate
security for payment for Service; then Level 3 may: (A) terminate this Agreement
and any Customer Order, in whole or in part, in which event Level 3 shall have
no further duties or obligations thereunder, and/or (B) subject to Section 5.1,
pursue any remedies Level 3 may have under this Agreement, at law or in equity.
4.3 DEFAULT BY LEVEL 3. If (i) Xxxxx 0 makes a general assignment for the
benefit of its creditors, files a voluntary
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petition in bankruptcy or any petition or answer seeking, consenting to, or
acquiescing in reorganization, arrangement, adjustment, composition,
liquidation, dissolution or similar relief; (ii) an involuntary petition in
bankruptcy, other insolvency protection against Level 3 is filed and not
dismissed within sixty (60) days; or (iii) Xxxxx 0 fails to observe and perform
any material term of this Agreement (other than as provided in Section 4.4 and
Article 6) and such failure continues for a period of thirty (30) days after
written notice from Customer; then Customer may: (A) terminate this Agreement
and/or any Customer Order, in whole or in part, in which event Customer shall
have no further duties or obligations thereunder, and/or (B) subject to Section
5.1, pursue any remedies Customer may have under this Agreement, at law or in
equity.
4.4 OTHER RIGHTS OF TERMINATION.
(A) If Level 3's installation of Service is delayed for more than thirty (30)
business days beyond the Customer Commit Date for reasons other than an Excused
Outage, Customer may terminate and discontinue the affected Service upon written
notice to Level 3 and without payment of any applicable termination charge;
provided such written notice is delivered prior to Level 3 delivering to
Customer the Connection Notice for the affected Service. This Section 4.4(A)
shall not apply to any Off-Net Local Loop Service, including, without
limitation, (3)LinkSM Metropolitan Private Line (Off-Net) Service, provisioned
by Level 3 through a third party carrier for the benefit of Customer.
(B) Customer may terminate and discontinue affected Service prior to the end of
the Service Term without payment of any applicable termination charge if: (i)
such Service is Unavailable (as defined below) on two or more separate occasions
of more than eight (8) hours each in any thirty (30) day period ("First
Unavailability Event"); and (ii) following written notice thereof from Customer
to Level 3 within the thirty (30) day period following the First Unavailability
Event, the same Service is Unavailable for more than twelve (12) hours at any
time within the ninety (90) day period following the First Unavailability Event.
For purposes of the foregoing, "Unavailable" shall mean a total interruption in
Service, except for any interruption that is an Excused Outage. The duration of
any interruption will commence when Customer reports an outage to the Level 3
Customer Service and Support Organization (1-877-4LEVEL3) and will end when the
Service is operative. Customer may only terminate Service that is Unavailable,
and must exercise its right to terminate any affected Service under this
Section, in writing, within thirty (30) days after the event giving rise to a
right of termination hereunder. This Section 4.4(B) shall not apply to any
Unprotected Service, including, without limitation, any Unprotected (3)LinkSM
Private Line Service or (3)LinkSM Global Wavelength Service.
(C) In the event Customer elects to cancel the affected Service pursuant to this
Section 4.4, Customer shall have no right to, and Level 3 shall have no
obligation to issue, any Service Level credit(s) for the discontinued Service.
ARTICLE 5. LIABILITIES AND INDEMNIFICATION
5.1 NO SPECIAL DAMAGES. Notwithstanding any other provision hereof (other than
Section 5.3), neither party shall be liable for any indirect, incidental,
special, consequential, exemplary or punitive damages (including, without
limitation, damages for lost profits, lost revenues or the cost of purchasing
replacement services) arising out of the performance or failure to perform under
any Customer Order. Nothing in this Agreement shall be construed as limiting the
liability of either party for personal injury or death resulting from the
negligence of a party or its employees.
5.2 DISCLAIMER OF WARRANTIES. LEVEL 3 MAKES NO WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR
OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
USE, EXCEPT THOSE EXPRESSLY SET FORTH IN ANY APPLICABLE SERVICE LEVELS (as
defined below).
5.3 INDEMNIFICATION. Each party shall indemnify the other from any claims by
third parties and expenses (including legal fees and court costs) respecting
damage to tangible property, personal injury or death caused by such party's
negligence or willful misconduct.
ARTICLE 6. SERVICE LEVELS
6.1 SERVICE INTERRUPTIONS AND DELIVERY. Level 3 provides specific remedies
regarding installation and performance of Service as set forth in the particular
Service Schedule ("Service Levels"). In the event of a failure to deliver
Service in accordance with the Service Levels, Customer's sole remedies are
contained in (a) the Service Levels applicable (if any) to the affected Service,
and (b) Section 4.4.
6.2 SERVICE LEVEL CREDITS. In the event Level 3 does not achieve a particular
Service Level in a particular month, Level 3 will issue a credit to Customer as
set forth in the applicable Service Schedule upon Customer's request. To request
a credit, Customer must contact Level 3 Customer Service or deliver a written
request (in a form reasonably requested by Level 3) pursuant to Section 7.4
within thirty (30) days of the end of the month for which a credit is requested.
Level 3 Customer Service may be contacted by calling toll free in the U.S.
1-877-4LEVEL3 (0-000-000-0000) or such other numbers for Level 3 Customer
Service in other countries as published on xxx.xxxxx0.xxx. In no event shall the
total amount of credits issued to Customer per month exceed the non-recurring
charges and monthly recurring charges invoiced to Customer for the affected
Service for that month.
ARTICLE 7. GENERAL TERMS
7.1 FORCE MAJEURE. Neither party shall be liable, nor shall any credit allowance
or other remedy be extended, for any failure of performance or equipment due to
causes beyond such party's reasonable control ("force majeure event"). In the
event Level 3 is unable to deliver Service as a result of a force majeure event,
Customer shall not be obligated to pay Level 3 for the affected Service for so
long as Level 3 is unable to deliver the affected Service.
7.2 ASSIGNMENT AND RESALE. Customer may not assign its rights and obligations
under this Agreement or any Customer Order without the express prior written
consent of Level 3, which will not be unreasonably withheld. This Agreement
shall apply to any permitted transferees or assignees. Notwithstanding any
assignment by Customer, Customer shall remain liable for the payment of all
charges due under each Customer Order. Customer may resell the Service to third
party "end users"; provided that Customer agrees to indemnify, defend and hold
Level 3 harmless from claims made against Level 3 by such end users.
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7.3 AFFILIATES.
(A) If a Customer Order requires the provision of Service to Customer in a
country other than the country within which this Agreement has been executed,
such Service may be provided to Customer by an Affiliate of Level 3 authorized
to provide such Service in such country. If a Customer Order requires the
delivery of Service in a jurisdiction where, in order for such Customer Order to
be enforceable against the parties, additional terms must be added, then the
parties shall incorporate such terms into the Customer Order (preserving, to the
fullest extent possible, the terms of this Agreement).
(B) The parties acknowledge and agree that Customer's Affiliates may purchase
Service under this Agreement; provided, however, any such Customer Affiliate
purchasing Service hereunder agrees that such Service is provided pursuant to
and governed by the terms and conditions of this Agreement. Customer shall be
jointly and severally liable for all claims and liabilities arising under this
Agreement related to Service ordered by any Customer Affiliate, and any event of
default under this Agreement by any Customer Affiliate shall also be deemed an
event of default by Customer. Any reference to Customer in this Agreement with
respect to Service ordered by a Customer Affiliate shall be deemed a reference
to the applicable Customer Affiliate.
(C) Notwithstanding anything in this Agreement to the contrary, either party may
provide a copy of this Agreement to its Affiliate or such other party's
Affiliate for purposes of this Section 7.3, without notice to, or consent of,
the other party.
7.4 NOTICES. Notices hereunder shall be deemed properly given when delivered, if
delivered in person, or when sent via facsimile, overnight courier, electronic
mail (if an e-mail address is provided below) or when deposited with the U.S.
Postal Service (or other applicable postal delivery service), addressed as
follows:
IF TO LEVEL 3:
For billing inquiries/disputes, requests for Service Level credits
and/or requests for disconnection of Service (for other than default):
Xxxxx 0 Communications, LLC
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Director, Billing
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxx0.xxx
For all other notices:
Xxxxx 0 Communications, LLC
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
IF TO CUSTOMER:
eAcceleration, Corp.
0000 XX Xxxxxxxx Xx. 000X
Xxxxxxx, XX 00000
Facsimile ((000) 000-0000
or at such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Notwithstanding
the foregoing, any notices delivered by Level 3 to Customer in the normal course
of provisioning of Service hereunder shall be deemed properly given if delivered
via any of the methods described above or via electronic mail to the address
listed on any Customer Order.
7.5 APPLICATION OF TARIFFS. Level 3 may elect or be required to file with the
appropriate regulatory agency tariffs respecting the delivery of certain
Service. In the event that such tariffs are filed respecting Service ordered by
Customer, then (to the extent such provisions are not inconsistent with the
terms of a Customer Order) the terms set forth in the applicable tariff shall
govern Level 3's delivery of, and Customer's consumption or use of, such
Service.
7.6 ACCEPTABLE USE POLICY. Customer's use of Service shall at all times comply
with Level 3's then-current Acceptable Use Policy and Privacy Policy, as amended
by Xxxxx 0 and communicated in writing to Customer from time to time and which
are also available through Level 3's web site at xxx.xxxxx0.xxx. Level 3 will
notify Customer of complaints received by Level 3 regarding each incident of
alleged violation of Level 3's Acceptable Use Policy by Customer or third
parties that have gained access to the Service through Customer. Customer agrees
that it will promptly investigate all such complaints and take all necessary
actions to remedy any actual violations of Level 3's Acceptable Use Policy.
Level 3 may identify to the complainant that Customer, or a third party that
gained access to the Service through Customer, is investigating the complaint
and may provide the complainant with the necessary information to contact
Customer directly to resolve the complaint. Customer shall identify a
representative for the purposes of receiving such communications. Level 3
reserves the right to install and use, or to have Customer install and use, any
appropriate devices to prevent violations of its Acceptable Use Policy,
including devices designed to filter or terminate access to Service.
7.7 DATA PROTECTION. During the performance of this Agreement, it may be
necessary for Level 3 to transfer, process and store data in and to the United
States. Customer hereby consents that Level 3 may (i) transfer, store and
process such data in the United States; and (ii) use such data for its own
internal purposes and as allowed by law. This data will not be disclosed to
third parties.
7.8 CONTENTS OF COMMUNICATIONS. Level 3 shall have no liability or
responsibility for the content of any communications transmitted via the
Service, and Customer shall defend, indemnify and hold Level 3 harmless from any
and all claims (including claims by governmental entities seeking to impose
penal sanctions) related to such content or for claims by third parties relating
to Customer's use of Service. Level 3 provides only access to the Internet;
Level 3 does not operate or control the information, services, opinions or other
content of the Internet. Customer agrees that it shall make no claim whatsoever
against Level 3 relating to the content of the Internet or respecting any
information, product, service or software ordered through or provided by virtue
of the Internet.
7.9 PUBLICITY. Neither party shall have the right to use the other party's or
its affiliates' trademarks, service marks or trade names or to otherwise refer
to the other party in any marketing, promotional or advertising materials or
activities. Neither party
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shall issue any publication or press release relating to any contractual
relationship between Level 3 and Customer, except as may be required by law or
agreed between the parties in writing.
7.10 NON-DISCLOSURE. Any information or documentation disclosed between the
parties during the performance of this Agreement shall be subject to the terms
and conditions of the applicable non-disclosure agreement then in effect between
the parties.
7.11 DISCLOSURE OF CUSTOMER INFORMATION. Level 3 reserves the right to provide
any customer or potential customer bound by a nondisclosure agreement access to
a list of Level 3's customers and a description of Service purchased by such
customers. Customer consents to such disclosure, including the listing of
Customer's name and Service purchased by Customer (financial terms relating to
the purchase shall not be disclosed).
7.12 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Colorado, U.S.A., without regard to
its choice of law rules.
7.13 ENTIRE AGREEMENT. This Agreement, including any Service Schedule(s) and
Customer Order(s) executed hereunder, constitutes the entire and final agreement
and understanding between the parties with respect to the Service and supersedes
all prior agreements relating to the Service, which are of no further force or
effect. The Service Schedules attached hereto are listed below:
Service Schedule- (3)ConnectSM Modem Service
Service Schedule- (3)LinkSM Cross Connect Service and
Mondo Condo Fiber Link Service
and are integral parts hereof and are hereby made a part of this Agreement.
7.14 AMENDMENT. This Agreement, and any Service Schedule or Customer Order, may
only be modified or supplemented by an instrument in writing executed by a duly
authorized representative of each party. Without limiting the generality of the
foregoing, any handwritten changes to a Customer Order shall be void unless
acknowledged and approved in writing by a duly authorized representative of each
party.
7.15 ORDER OF PRECEDENCE. In the event of any conflict between this Agreement
and the terms and conditions of any Service Schedule and/or Customer Order, the
order of precedence is as follows: (1) the Service Schedule, (2) this Agreement,
and (3) the Customer Order.
7.16 SURVIVAL. The provisions of this Article 7 and Articles 3, 5 and 6 and any
other provisions of this Agreement that by their nature are meant to survive the
expiration or termination of this Agreement shall survive the expiration or
termination of this Agreement.
7.17 RELATIONSHIP OF THE PARTIES. The relationship between Customer and Level 3
shall not be that of partners, agents, or joint venturers for one another, and
nothing contained in this Agreement shall be deemed to constitute a partnership
or agency agreement between them for any purposes, including , without
limitation, for federal income tax purposes.
7.18 NO WAIVER. No failure by either party to enforce any right(s) hereunder
shall constitute a waiver of such right(s).
7.19 SEVERABILITY. If any provision of this Agreement shall be declared invalid
or unenforceable under applicable law, said provision shall be ineffective only
to the extent of such declaration and shall not affect the remaining provisions
of this Agreement. In the event that a material and fundamental provision of
this Agreement is declared invalid or unenforceable under applicable law, the
parties shall negotiate in good faith respecting an amendment hereto that would
preserve, to the fullest extent possible, the respective benefits and burdens
imposed on each party under this Agreement as originally executed.
7.20 JOINT PRODUCT. The parties acknowledge that this Agreement is the joint
work product of the parties. Accordingly, in the event of ambiguities in this
Agreement, no inferences shall be drawn against either party on the basis of
authorship of this Agreement.
7.21 THIRD PARTY BENEFICIARIES. This Agreement shall be binding upon, inure
solely to the benefit of and be enforceable by each party hereto and their
respective successors and assigns hereto, and nothing in this Agreement, express
or implied, is intended to or shall confer upon any thirty party any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
7.22 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
LEVEL 3 COMMUNICATIONS, LLC ("Level 3") eACCELERATION, CORPORATION ("Customer")
By /s/ Xxxxxxxx Xxxxxxx By /s/ Xxxxx Xxxxxxx
-------------------------------- -------------------------------------
Name Xxxxxxxx Xxxxxxx Name Xxxxx Xxxxxxx
------------------------------ -----------------------------------
Title VP Legal Title President and CEO
----------------------------- -----------------------------------
Date 7 August 03 Date 4-21-03
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Page 7 of 10
