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AMENDMENT NO. 1
RESALE AGREEMENT
BETWEEN APPLIEDTHEORY CORPORATION AND XXXXXXXX.XXX
This Amendment No. 1 to the Resale Agreement (this Amendment") is made as
of April 18, 2000 by and between AppliedTheory Corporation, a Delaware
corporation (formerly XXXXXXxx.Xxx) ("AppliedTheory") and XXXXXXxx.xxx, a New
York corporation ("NYSERNet").
BACKGROUND
This Amendment is made with reference to the following facts:
A. NYSERNet and AppliedTheory are parties to that certain Resale
Agreement dated as of 10/1/96 (the "Agreement").
B. The parties desire to amend the Agreement pursuant to the terms
agreed upon in the Memorandum of Understanding dated 2/14/2000 as set
forth below.
TERMS OF AMENDMENT
Accordingly, in consideration of the mutual promises set forth below, the
parties hereby agree as follows:
1. Paragraph 2.1 of Section 2 APPOINTMENT is deleted effective upon
AppliedTheory's billing of NYSERNet for the 10th full OC-3 site
connection.
2. Paragraph 3.1 of "Section 3 TERM" is replaced with the following:
3.1 This Agreement shall be effective from October 1, 1996 and shall
extend to September 30, 2005. Thereafter, this Agreement will
automatically renew for successive one (1) year terms unless either
party notifies the other party of its intent not to renew at least
sixty (60) days before the end of the term then in effect.
3. Paragraphs 5.3.1 and 5.3.2 of "Section 5 OBLIGATIONS OF COM" are added:
5.3.1 AppliedTheory pricing to NYSERNet for full OC3 ports is $45,000
per month.
5.3.2 Pricing for fractional OC-3 ports are to be determined. NYSERNet
will receive preferential pricing.
4. Paragraph 8.3 and 8.4 are added to Section 8 MISCELLANEOUS:
8.3 NYSERNet commits to purchase a minimum of ten OC3 connections for
its member institutions by 6/30/2001 and will make commercially
reasonable efforts to meet the following schedule: 6 by 9/1/2000, an
additional 2 by 12/31/2000, and an additional 2 by 6/30/2001.
5. Paragraph 9.3 and 9.4 are added to "Section 9 PERIODIC REVIEW":
9.3 AppliedTheory agrees to review pricing for Access Products with
NYSERNet on or about 9/30/2002 and 9/30/2004. These reviews will also
encompass a
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comprehensive review of the AppliedTheory NYSERNet relationship
including items listed in paragraph 7, below, and issues of interest to
NYSERNet regarding the NYSERNet 2000 Network.
9.4 AppliedTheory and NYSERNet shall mutually develop and enhance on an
ongoing basis, a program plan for Customer Care which will document all
procedures and processes for managing troubles and escalations within
both organizations (the "Program Plan".) The Program Plan will also
detail all standard and special customer services and service level
agreements provided by AppliedTheory to NYSERNet.
6. Paragraph 12.5 of "Section 12 TERMINATION" is added to the Agreement:
12.5 NYSERNet member institutions may terminate their Access service
agreements at will. The customary three-month penalty fee is reduced to
two months. Termination of a member institutions' service agreement
shall not affect the termination date of this Agreement.
7. The following additional provisions are added:
AppliedTheory and NYSERNet agree to expend mutual best efforts to
develop the NYSERNet-AppliedTheory relationship with focus on areas of
development to be determined and subject to change, per NYSERNet's
priority. NYSERNet and AppliedTheory will establish a mutually agreed
upon process for amending the list of NYSERNet development priorities.
AppliedTheory and NYSERNet agree that either party may propose adding
and/or removing items from the list, but that NYSERNet has the final
authority to determine a project "completed." The list of development
projects will be formalized, from time to time as the parties deem
necessary, as amendments to this Agreement.
The parties agree that the first priority for development projects will
be creation of a mechanism(s) that NYSERNet customers purchasing
services through this Amendment can use to measure the AppliedTheory
service and to verify network performance within the AppliedTheory
network and through egress points. This project will also include the
development of a mutually agreed to set of performance levels, and will
be completed no later than December 31, 2000
AppliedTheory will honor NYSERNet's Downstream Policy as it may change
from time to time during the term of this Agreement.
For as long as NYSERNet buys its Internet access services exclusively
from AppliedTheory, AppliedTheory commits to provide dedicated staff to
NYSERNet in the following areas: account executive focused on
relationship development and new business; and customer support
coordinator. Other AppliedTheory staff will be assigned at reasonable
levels of effort to work on areas of mutual interest from time-to-time
as the list in paragraph 7, above, develops and is amended. Should
NYSERNet acquire Internet access services from a third party,
AppliedTheory will have the right to unilaterally determine levels of
effort for account management and customer care. Levels for these
services will not however be less than those identified in the then
current AppliedTheory Customer Service Agreements for other
AppliedTheory customers.
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Authorized Customers (as defined in the Agreement), which are also
Certified(1) NYSERNet Members, purchasing OC-3 Access Services, either
new contracts or extensions to existing contracts have the option of
selecting either an AppliedTheory Service Agreement or a NYSERNet
Service Agreement(2). All terms and conditions of this Agreement apply
regardless of which Service agreement NYSERNet Members choose.
Communications to NYSERNet members about these options will be a
NYSERNet responsibility and will be supported in principle and process
by AppliedTheory sales.
AppliedTheory's standard Service Agreement for Access is incorporated
into this Amendment as Exhibit A. All terms and conditions contained in
Exhibit A apply to NYSERNet's customers with the exception of those
terms that have been modified by this Amendment (Downstreaming, and
Termination Penalties.).
8. This Amendment is effective as of the last signature hereto (the
"Amendment Effective Date")
9. All other terms and conditions of the Agreement not specifically amended
herein shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment.
APPLIEDTHEORY CORPORATION XXXXXXXX.XXX
By: /s/ Xxxxxx X. Xxxxxxxxxx III By: /s/ Xx. Xxxxxxx Xxxxx
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Name: Xxxxxx X. Xxxxxxxxxx III Name: Xx. Xxxxxxx Xxxxx
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Title: Vice President Title: President & Chairman
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Date: 5/3/00 Date: 4/18/00
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(1) Certified, for the purposes of this Agreement, means that the customer
understands and agrees that they are members of NYSERNet in good standing.
(2) The process for signing NYSERNet services agreements is to be defined in the
Program Plan.
