EXHIBIT 10.1
ADVANCED RADIO TELECOM
BROADBAND SERVICES AGREEMENT
This Broadband Services Agreement, is entered into as of June 1, 1999 (the
"Effective Date"), by and between Advanced Radio Telecom Corp., a Delaware
corporation ("ART"), and Qwest Communications Corporation, a Delaware
corporation ("Customer").
1. INCORPORATION OF DOCUMENTS AND CONTROLLING PROVISIONS
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1.1 This Broadband Services Agreement, together with (a) Service Orders (as
defined in Section 2.1 of this Service Agreement) accepted by ART pursuant
to the terms hereof, and (b) schedules and exhibits incorporated herein by
reference ("Exhibits"), shall be referred to collectively herein as this
"Agreement." In the event of any conflict between the provisions of this
Agreement and the terms of any Service Order(s) and/or Exhibit(s), the
conflict shall be resolved by reference to said documents in the following
order of priority of interpretation: (a) this Agreement; (b) any
Exhibit(s), with reference to the same in order of attachment to this
Agreement; and (c) any Service Order(s). Notwithstanding the foregoing, no
provision or term of any Service Order shall be a part of this Agreement or
binding on ART unless and until such Service Order has been executed by an
authorized representative of ART.
1.2 If any provision of this Agreement and any applicable tariff cannot be
reasonably construed or interpreted to avoid conflict, the provision
contained in this Agreement shall prevail. The fact that a condition,
right, obligation, or other term appears in this Agreement but not in any
such tariff shall not be interpreted as, or be deemed grounds for finding
of a conflict for purposes of this Section 1.2. In addition, if any
provision of this Agreement conflicts with any statute, rule or order of
any governmental unit or regulatory body, then, if required by law, this
Agreement should remain in effect but shall be automatically modified by
such conflicting law, statute, rule or order, subject to the termination
rights granted under Section 8.
2. SERVICES TO BE PROVIDED BY ART
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2.1 Telecommunications capacity, and related ancillary services (the "Facility"
or "Facilities") available from ART are identified in the Service and
Pricing Exhibit attached hereto as "Exhibit A", which is incorporated by
this reference (the "Service and
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Pricing Exhibit"). Facilities requested by Customer shall be requested on
ART's service order forms in effect from time to time (hereafter, any such
order is a "Service Order(s)"). Each Service Order shall reference this
Agreement and shall become a part of this Agreement when executed by a duly
authorized representative of ART. ART reserves the right to reject any
Service Order in areas where facilities or capacity are unavailable or the
provision of service would be otherwise technically unreasonable.
2.2 Upon acceptance by ART of a duly executed Service Order during the Term (as
defined in Section 4.3 of this Agreement) of this Agreement, ART shall
provide to Customer those Facilities identified in the Service Order.
3. OBLIGATIONS OF CUSTOMER
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3.1 Customer shall perform those duties outlined in the Service and Pricing
Exhibit in addition to those described herein and in any Service Order(s).
3.2 Customer shall have sole responsibility for installation, testing and
operation of the Interconnection Facilities (as defined in Section 1.4 of
the Service and Pricing Exhibit), and any services and equipment other than
those Facilities specifically provided by ART under this Agreement.
4. TERM
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4.1 This Agreement shall be effective between the parties as of the Effective
Date. The initial term (the "Initial Term") of this Agreement shall expire
seven (7) years from the Effective Date unless either party earlier
terminates this Agreement in accordance with Section 8.
4.2 Upon the expiration of the Initial Term, if Customer is not then in default
hereunder, the term of this Agreement shall be renewed automatically on a
month-to-month basis (hereafter, the "Renewal Term") unless and until an
Amendment is executed by both parties extending the Renewal Term, or either
party terminates this Agreement in accordance with Section 8.
4.3 The Initial Term and Renewal Term are sometimes referred to together herein
as the "Term."
4.4 Notwithstanding anything to the contrary in this Section 4, if the Facility
Minimum Service Term (as set forth in the Service and Pricing Exhibit or
any Service Order) for a Facility or Facilities extends beyond the
expiration of the Term of this Agreement, then this Agreement shall
continue in effect until the expiration or termination of the
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applicable Facility Minimum Service Term, but only as to the Facility or
Facilities so affected, and subject to the termination rights of ART and
Customer under Section 8 of this Agreement.
5. CHARGES AND PAYMENT
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5.1 Charges for the Facilities shall be determined according to the Service and
Pricing Exhibit except as otherwise specifically provided in this
Agreement.
5.2 Recurring charges shall be invoiced by ART on a monthly basis in advance
and non-recurring charges shall be invoiced in arrears. If the Start of
Service Date (as defined in Section 2.1 of the Service and Pricing Exhibit)
for any Facility falls on other than the first day of any month, the first
invoice to Customer shall consist of: (1) the pro-rata portion of the
applicable monthly charge covering the period from the Start of Service
Date to the first day of the subsequent month, and (2) the monthly charge
for the following month. ART may, in its sole discretion, prior to
delivering the first invoice to Customer, elect to require that Customer
make a security deposit amount equal to one (1) month's recurring charges
for the Facility or Facilities. If a deposit is made, it shall be held by
ART until termination of this Agreement, at which time ART may apply the
deposit, at its option, either against the last month of charges due
hereunder prior to termination of this Agreement, or against any other
amounts owing to ART under this Agreement.
5.3 Customer shall make all payments due hereunder within thirty (30) days
after the date of ART's invoice. If any amount due under this Agreement is
not received by the due date, in addition to its other remedies available
hereunder, ART may in its sole discretion impose a late payment charge of
the lower of 1.5% per month or the highest rate legally permissable (such
late charge shall be payable upon demand by ART). ART agrees that Customer
may offset against all amounts payable by Customer to ART under this
Agreement, all past due amounts payable to Customer by ART pursuant to any
other agreement between Customer and ART.
5.4 All disputes or requests for billing adjustments must be submitted in
writing and submitted with payment of undisputed amounts due, or
alternatively, if Customer has paid an invoice amount in full, Customer
shall have one hundred eighty (180) days from the date of invoice to give
notice of a dispute regarding amounts invoiced therein. Any amounts which
are determined by ART to be in error or not in compliance with this
Agreement shall be adjusted on the next month's invoice. Any disputed
amounts which reasonably, in good faith and supported by reasonable
documentation are deemed by ART to be correct as billed and in compliance
with this Agreement, shall be due and payable
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by Customer (if not previously paid), upon notification and demand by ART,
along with any late payment charges which ART may impose pursuant to
Section 5.3 above. Disputes shall not be cause for Customer to delay
payment of the undisputed balance to ART according to the terms outlined in
Section 5.3 above. Subject to the payment obligations described in this
Section 5, Customer may pursue arbitration of any dispute not resolved
hereunder pursuant to Section 16.
5.5 Invoices submitted to Customer by ART shall conform to ART's standard
billing format and content, as modified by ART from time to time.
5.6 Any applicable federal, state, or local taxes, and all use, sales,
commercial, gross receipts, privilege or other similar taxes or license
fees, whether charged to or against ART or Customer, with respect to the
Facilities provided by ART (except taxes on ART's income or gains), as well
as any other imposition by any governmental authority which has the effect
of increasing ART's cost of providing the Facilities, shall be payable by
Customer in addition to the other charges set forth in this Agreement.
6. EVENTS OF DEFAULT
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6.1 A "Default" shall occur if: (a) Customer fails to make any payment
required to be made by it under this Agreement and any such failure remains
uncorrected for five (5) business days after receipt of written notice that
such payment is past due; (b) either party fails to perform or observe any
material term or obligation (other than making payment) contained in this
Agreement, and any such failure remains uncorrected for thirty (30)
calendar days after written notice from the non-defaulting party informing
the defaulting party of such failure; or (c) there is an Adverse Material
Change (as defined in Section 6.2 of this Agreement) in Customer's
creditworthiness.
6.2 For purposes of Section 6.1 of this Agreement, an Adverse Material Change
in Customer's creditworthiness shall include, but not be limited to: (a)
failure of Customer to make full payment of charges due hereunder on or
before the date due on three (3) or more occasions during any period of
twelve (12) months, or Customer's failure to make such payment on or before
the date due in any two (2) consecutive months; (b) 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, or which presents a materially greater credit risk than
Customer; or (c) Customer being subject to or having filed for bankruptcy
or insolvency proceedings, or the legal insolvency of Customer.
6.3 Notwithstanding Section 6.1 of this Agreement, the failure of any
particular circuit or number of circuits to comply with the Specifications
(as described in the Service and
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Pricing Exhibit) shall not be deemed a Default by ART, but may obligate ART
to provide Customer with Outage Credits, as provided in Section 5 of the
Service and Pricing Exhibit.
7. REMEDIES FOLLOWING DEFAULT
--------------------------
7.1 If Customer is in Default, ART may, in addition to any other remedies it
has under this Agreement or under the law: (a) suspend its performance
under this Agreement without the requirement of any further notice to
Customer, until Customer has remedied all breaches of this Agreement and
paid in full all charges then due, including any late fees specified herein
plus; (b) condition provision of Facilities or acceptance of a Service
Order on Customer's assurance of payment and compliance with this
Agreement, which may be in the form of a deposit/prepayment or such other
means as is required by ART to establish assurance of payment and
compliance; or (c) terminate this Agreement by providing written notice to
Customer in the manner provided in Section 8.2 of this Agreement.
7.2 If ART is in Default, Customer may terminate this Agreement in the manner
provided for in Section 8.1 of this Agreement, but may not withhold or
suspend its own performance.
8. TERMINATION
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8.1 Customer may terminate this Agreement without liability (other than charges
accrued but unpaid as of the termination date): (a) effective upon written
notice to ART, if ART is in Default; (b) effective upon thirty (30)
calendar days prior written notice, if any material rate or term contained
herein and relevant to all or substantially all of the affected Facilities
is materially changed by order of the highest court of competent
jurisdiction to which the matter is appealed, the Federal Communications
Commission, or other local, state or federal government authority; (c)
following a Default by ART under Section 9.2 of this Agreement affecting
all or substantially all of the Facilities; (d) if ART makes an
unauthorized transfer under Section 12 of this Agreement; or (e) effective
upon thirty (30) calendar days prior written notice, with or without cause,
following the expiration of the Initial Term.
8.2 ART may terminate this Agreement: (a) effective upon written notice to
Customer, if Customer is in Default; (b) effective upon thirty (30) days
prior written notice, with or without cause, following the expiration of
the Initial Term; or (c) effective immediately and without any advance
written notice: (i) if ART loses any required regulatory or other
governmental authorizations to provide all or substantially all of the
Facilities (as described in Section 9.1 of this Agreement); (ii) following
a default by Customer under
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Section 9.2 of this Agreement affecting all or substantially all of the
Facilities; or (iii) if Customer makes an unauthorized Transfer under
Section 12 of this Agreement.
8.3 In the event of any termination pursuant to Section 8.1 hereof as a result
of ART's breach of its obligations under this Agreement, ART agrees to
cooperate with Customer, on a commercially reasonable efforts basis, to
transition existing services and Facilities used by Customer to serve end
users to another network operator; except, that ART shall be obligated to
assist this transition only if Customer is and remains in compliance with
its payment obligations to ART under this Agreement. ART's obligation to
assist under this Section 8.3 shall not include payments to Customer or any
third party in connection with such transition.
9. GOVERNMENTAL AUTHORITY
----------------------
9.1 Customer acknowledges that the obligation of ART to provide the Facilities
to Customer is subject to the receipt by ART of any required regulatory or
other governmental authorizations. ART reserves the right to terminate
this Agreement pursuant to Section 8.2 of this Agreement if at any time ART
loses the required regulatory or other governmental authorizations to
provide the Facilities (a "Regulatory Change"). To the extent required by
law, this Agreement may be superseded and/or supplemented by a tariff filed
with the appropriate regulatory agency, which tariff may contain such
modifications of the provisions of this Agreement as ART deems appropriate,
all of which shall become automatically binding on Customer. Such a tariff
shall be filed only if required by applicable law, and, in such event,
Customer shall be entitled to terminate this Agreement immediately as to
the affected Service Order(s) in the event a material term of this
Agreement is superseded by said tariff filing.
9.2 Each party represents and warrants that: (a) it has received all necessary
permits, licenses, approvals, grants, and charters of whatsoever kind
necessary to carry out the business in which it is engaged hereunder; and
(b) it has complied and is in material compliance with all laws,
regulations, orders, and statutes which may be applicable to it, whether
local, State or Federal. From the date of this Agreement until the
termination hereof, each party agrees to operate in accordance with and to
maintain current all such certifications, permits, licenses, approvals,
grants, charters, and to materially comply with all applicable laws,
regulations, orders and statutes, whether local, State or Federal. A
failure to cure a breach by either party of any of the representations,
warranties or covenants of this Section 9.2 within thirty (30) calendar
days of receipt of written notice from the other party shall be deemed a
Default hereunder, and shall allow the other party to terminate the
affected portion of the Facilities, or in the case of all or substantially
all of the Facilities being affected, this Agreement in the manner
described in Section 8 of this Agreement. A Regulatory Change not within
ART's reasonable control shall not
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constitute a default under this Section 9.2. In addition, ART reserves the
right to suspend its performance under this Agreement, during the pendency
of Customer's cure efforts.
10. FORCE MAJEURE
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10.1 Except as is provided in Section 10.2 below, ART shall not be liable for
any failure of performance hereunder due to causes beyond its reasonable
control, including, but not limited to: acts of God, fire, explosion,
vandalism, fiber optic cable cut, storm, extreme temperatures or other
similar catastrophes; any law, order, regulation, direction, action or
request of the United States government, or of any other government,
including state and local governments having jurisdiction over either of
the parties, or of any department, agency, commission, court, bureau,
corporation or other instrumentality of any one or more said governments,
or of any civil or military authority; national emergencies, insurrections,
riots, wars, or strikes, lock-outs, work stoppages or other labor
difficulties; actions or inactions of a third party provider or operator of
facilities employed in provision of the Facilities; or any other conditions
or circumstances beyond the reasonable control of ART which impede or
affect the Facilities or the transmission of telecommunications services.
10.2 If any failure of performance on the part of ART described in Section 10.1
of this Agreement shall be: (a) for thirty (30) calendar days or less,
then this Agreement shall remain in effect, but Customer shall be relieved
of its obligation to pay for that portion of the Facilities affected for
the period of such failure of performance; or (b) for more than thirty (30)
days, then Customer may terminate without liability (other than charges
accrued but unpaid applicable to the terminated Service Order(s)) only that
portion of any Service Order or Service Orders related to the Facilities so
affected, upon ten (10) calendar days prior written notice to ART following
the failure of performance.
10.3 If the Facilities are unavailable to Customer as a result of any events
described in Section 10.1, Customer will be entitled to an Outage Credit as
specified in the Service and Pricing Exhibit.
11. YEAR 2000
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ART shall use commercially reasonable efforts to ensure that its internal
operating and network systems are designed to operate during calendar year
2000 A.D. without material error or interruption relating to date data
(including, without limitation, date data which represents or references
different centuries or more than one century or leap year) in any level of
the systems assuming, in each case, that all systems and products used in
combination with them properly exchange data (hereinafter referred to as
"Year 2000
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Compliant"). If ART's system causes an outage due to the system's failure
to be Year 2000 Compliant, ("Year 2000 Outage") Customer shall receive
outage credits in accordance with the terms of the Service and Pricing
Exhibit. If the Year 2000 Outage continues for thirty (30) days, Customer
may (a) terminate this Agreement provided that such Year 2000 Outage
affects all or substantially all Facilities provided by ART under this
Agreement; or (b) terminate any affected Service Order(s). Termination
under this Section 11 shall be effected without liability for early
termination charges or shortfall charges, and such termination shall be
Customer's sole and exclusive remedy.
12. ASSIGNMENT
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Neither party may sell, assign, sublet, encumber or transfer this Agreement
or any of its rights or obligations hereunder, except to a direct or
indirect wholly owned subsidiary of such party, by operation of law or
otherwise (hereafter, a "Transfer"), without the prior written consent of
other party hereto, which consent shall not be unreasonably withheld. Any
Transfer by either party without the other party's prior written consent
shall entitle the non-transferring party, at its option, to: (a) consider
the Transfer void; (b) consent to the Transfer, and hold the transferring
party and any transferee(s) liable hereunder; or (c) terminate this
Agreement upon delivering written notice to the transferring party.
Subject to the foregoing, this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors or
assigns.
13. TITLE
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Customer expressly disclaims any right, title, perpetual right of use or
any other interest in or to any equipment or property provisioned or
supplied by ART under this Agreement.
14. WARRANTIES AND LIMITATION OF LIABILITY
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14.1 ART warrants that the Facilities shall be provided to Customer and shall
operate in accordance with the then current prevailing telecommunications
industry and data communication standards (hereinafter the "Technical
Standards"). If ART determines that the Facilities are not being provided
in accordance with the Technical Standards (hereinafter, a "Defect" or
"Defects"), ART shall use reasonable efforts to conform the Facilities to
the Technical Standards.
14.2 THE WARRANTIES CONTAINED IN SECTION 14.1 OF THIS AGREEMENT ARE EXCLUSIVE
AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. ART HEREBY SPECIFICALLY DISCLAIMS ANY
LIABILITY TO
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CUSTOMER FOR INTERRUPTIONS AFFECTING THE FACILITIES FURNISHED HEREUNDER
WHICH ARE ATTRIBUTABLE TO CUSTOMER'S INTERCONNECTION FACILITIES (AS DEFINED
IN SECTION 1.4 OF THE SERVICE AND PRICING EXHIBIT) OR TO CUSTOMER'S
EQUIPMENT FAILURES, OR TO CUSTOMER'S BREACH OF THIS AGREEMENT.
14.3 IN NO EVENT SHALL ART OR ANY OF ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY
OF ITS AFFILIATES OR EMPLOYEES OR TO ANY THIRD PARTY FOR: (a) ANY LOSS OF
PROFIT OR REVENUE, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE
OR SIMILAR OR ADDITIONAL DAMAGES, WHETHER INCURRED OR SUFFERED AS A RESULT
OF UNAVAILABILITY OF FACILITIES, PERFORMANCE, NON-PERFORMANCE, TERMINATION,
BREACH, OR OTHER ACTION OR INACTION UNDER THIS AGREEMENT, OR FOR ANY OTHER
REASON, EVEN IF CUSTOMER ADVISES ART OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGE; OR (b) FOR ANY OUTAGE OR INCORRECT OR DEFECTIVE TRANSMISSIONS, OR
ANY DIRECT OR INDIRECT CONSEQUENCES THEREOF, EXCEPT AS SPECIFICALLY
PROVIDED IN THE TERMS OF THE SERVICE AND PRICING EXHIBIT REGARDING OUTAGE
CREDITS.
14.4 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY: (a) CUSTOMER
AGREES THAT ITS SOLE REMEDY IN THE EVENT OF ANY BREACH OF THE WARRANTIES
DESCRIBED IN SECTION 14.1 OF THIS AGREEMENT SHALL BE THE OUTAGE CREDITS
DESCRIBED IN THE SERVICE AND PRICING EXHIBIT; AND, (b) IN NO EVENT SHALL
THE CUMULATIVE LIABILITY OF ART UNDER THIS AGREEMENT, INCLUDING ANY OUTAGE
CREDITS, EXCEED THE TOTAL PAYMENTS PAID BY CUSTOMER TO ART HEREUNDER.
15. NON-DISCLOSURE AND PUBLICITY
----------------------------
15.1 The parties agree that this Agreement is and shall be kept confidential.
Neither party shall divulge or otherwise disclose any of the provisions of
this Agreement to any third party without the prior written consent of the
other party, except that either party may make disclosure to those required
for the implementation of this Agreement, and to purchasers and prospective
purchasers of their respective companies, auditors, attorneys, financial
advisors, lenders and prospective lenders, investors and prospective
investors, provided that in each case the recipient agrees in writing to be
bound by the confidentiality provisions set forth in this section. In
addition, either party may make disclosure as required by a court order or
as otherwise required by law, securities exchange or SEC rules or
regulations, or in any legal or arbitration proceeding relating to
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this Agreement. If either party is required by law or by interrogatories,
requests for information or documents, subpoena, civil investigative demand
or similar process to disclose the provisions of this Agreement, it will
provide the other party with prompt prior notice of such request or
requirement so that such party may seek an appropriate protective order
and/or waive compliance with this Section. The party whose consent to
disclose information is requested shall respond to such request, in
writing, within five (5) business days of the request by either authorizing
the disclosure or advising the other party of its election to seek a
protective order, or if such party fails to respond within the prescribed
period the disclosure shall be deemed approved.
15.2 Each party shall submit to the other party all news releases, advertising
and other publicity material related to this Agreement wherein the second
party's name is mentioned or language is used from which a connection to
such second party's name therein may, in such second party's judgment, be
inferred or implied. Neither party shall publish or use such material or
use the other party's name, without the prior written consent of such
second party.
16. ARBITRATION
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16.1 All disputes which involve amounts reasonably anticipated to be in excess
of Twenty-Five Thousand Dollars ($25,000.00) arising out of or related to
this Agreement, shall be determined and resolved by arbitration in San
Francisco, California in accordance with the rules of the American
Arbitration Association ("AAA"). The arbitrators shall be appointed in
accordance with the rules then prevailing of the AAA.
16.2 The award rendered by the arbitrator(s) shall be final and binding upon the
parties hereto. Neither party shall have the right to further appeal or
redress the matters arbitrated except for the purposes of obtaining the
judgment rendered by the arbitrator(s). Judgment upon any arbitration
award may be entered and enforced in any court of competent jurisdiction.
16.3 The parties hereto agree that a prevailing party shall be entitled to
recover all reasonable costs and expenses (including all reasonable
attorneys' fees and disbursements) of such arbitration proceeding. Such
prevailing party shall also be entitled to reasonable attorneys' fees and
costs incurred in enforcing a judgment of the arbitrators separately from
and in addition to any other amount included in such judgment. This
Section 16.3 shall be severable from the other provisions of this Agreement
and shall survive and not be merged into any such judgment.
17. USE OF FACILITIES
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17.1 ART's obligation to provide the Facilities specified herein is conditioned
upon Customer not allowing the Facilities to be used for any unlawful
purpose; or in violation of any governmental regulations or authorizations
as outlined in Section 9 of this Agreement.
17.2 ART will indemnify, defend and hold Customer harmless from and against any
and all costs, liabilities, losses and expenses (including, without
limitation, reasonable attorneys' fees) resulting from any claim, suit,
action or proceeding (collectively, an "Action") brought against Customer
alleging that customary use of the services or Facilities by Customer or
Customer's end users infringes or contributes to the infringement of any
issued United States patent or letters patent. Customer shall promptly
notify ART of any Action, and ART shall have the right to control any such
Action and shall have the right to conclude a settlement of any such Action
which shall be binding upon Customer. ART shall have the right, in order
to avoid or settle any Action, to substitute at ART's expense non-
infringing equipment, material, processes or products, or to modify its
products or the equipment to become non-infringing, or to obtain necessary
licenses to use the infringing equipment, material, processes or products,
in each case consistent with ART's obligations under this Agreement. ART
shall not be liable for infringement claims based upon or resulting from
use, operation or combination of the services or Facilities with other
services or facilities not provided by ART, if this infringement would have
been avoided but for this use, operation or combination, unless this use,
operation or combination is integral to the functionality of the services
or Facilities provided by ART under this Agreement.
18. CHANGES TO SERVICES OR FACILITIES
---------------------------------
Although Facilities provided by ART hereunder are subject to its business
policies, practices, and procedures (which ART reserves the right to change
at any time and from time to time in its sole discretion upon advance
notice to Customer), ART will not materially adversely change the
Facilities provided to Customer hereunder except upon ninety (90) days
prior written notice to Customer (a "Notice of Change"). Upon delivery of
notice of a material adverse change to Facility, Customer shall promptly
notify ART of the end users that will be affected by such change (the
"Affected End Users") and the then existing remaining duration of each such
Affected End User's contract with Customer (excluding elective extensions)
relating to the Facilities subject to such changes (the "Affected
Duration"). ART shall have the option to either continue to provide the
existing Facility to the Affected End Users until the earlier of the
Affected Duration or one hundred eighty (180) days from the Notice of
Change or to upgrade or enhance the Facility to an Affected End User for
the Affected Duration of such Affected Users' existing contract with
Customer at ART's sole cost. Upon receipt of any Notice of Change,
Customer shall not thereafter market or submit orders for any Facilities
that are
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materially adversely changed by ART except as specified in the Notice of
Change. Except as set forth herein, if Customer otherwise elects to
continue to use Facilities after receiving a Notice of Change, those
changes will apply to Affected End Users commencing on the 91/st/ day after
the date it receives the Notice of Change. ART shall exercise commercially
reasonable efforts to avoid service degradation, interruption or material
cost to any Affected End Users as a result of such material adverse changes
in Facilities for a period of ninety (90) days after notice to Customer of
such Facility changes.
19. PROGRAM MANAGEMENT
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ART shall designate an ART employee as the principal point of contact for
Customer and who shall be dedicated to and responsible for coordinating all
matters between ART and Customer in connection with the transactions
contemplated in this Agreement (the "Program Manager"). All complaints
that Customer may have with respect to the Facilities provided by ART
hereunder shall be reported to the Program Manager in the first instance
and the Program Manager will coordinate the review of, and the
implementation of necessary steps to address any such complaints within ART
promptly after they are reported by Customer. The parties shall use good
faith efforts to agree upon written escalation procedures
20. MISCELLANEOUS
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20.1 Neither this Agreement, nor the provision of Facilities hereunder, shall
create a partnership or joint venture between the parties or result in a
joint communications service offering to any third parties.
20.2 The failure of either party to give notice of default or to enforce or
insist upon compliance with any of the terms or conditions of this
Agreement shall not constitute a waiver of any term or condition of this
Agreement.
20.3 Subject to Section 16 of this Agreement, in the event suit is brought or an
attorney is retained by either party to enforce the terms of this Agreement
or to collect any moneys due hereunder or to collect money damages for
breach hereof, the prevailing party shall be entitled to recover, in
addition to any other remedy, reimbursement for reasonable attorneys' fees,
court costs, costs of investigation and other related expenses incurred in
connection therewith.
20.4 This Agreement shall be construed under the laws of the State of New York
without regard to choice of law principles.
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20.5 No subsequent agreement concerning the Facilities or modification to this
Agreement shall be binding upon the parties unless it is made in writing by
an authorized representative of ART and an authorized representative of
Customer.
20.6 If any part of any provision of this Agreement shall be invalid or
unenforceable under applicable law, said part shall be ineffective to the
extent of such invalidity only, without in any way affecting the remaining
parts of said provision or the remaining provisions of this Agreement, and
the Customer and ART agree to negotiate with respect to any such invalid or
unenforceable part to the extent necessary to render such part valid and
enforceable.
20.7 The terms and provisions contained in this Agreement that by their sense
and context are intended to survive the performance thereof by the parties
hereto shall survive the completion of performance and termination of this
Agreement, including, without limitation, the making of any and all
payments due hereunder.
20.8 Words having well-known technical or trade meanings shall be so construed.
20.9 All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be given by: (a) hand
delivery; (b) first-class registered or certified mail with postage
prepaid; (c) overnight receipted courier service; or (d) telephonically
confirmed facsimile transmission, which notice is addressed to the party at
the address set forth below, or such other address as may hereafter be
designated in writing by the party. Notices given in accordance with this
Section shall be effective upon receipt or when receipt is refused.
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All notices to ART shall be addressed to:
Advanced Radio Telecom Corp.
000 - 000/xx/ Xxx XX, Xxxxx 0000
Xxxxxxxx, XX 00000
Facsimile (000) 000-0000; Phone (000) 000-0000
Attn.: General Counsel
With an additional copy to:
ART
000 - 000/xx/ Xxx XX, Xxxxx 0000
Xxxxxxxx, XX 00000
Facsimile (000) 000-0000; Phone (000) 000-0000
Attn.: President
All notices to Customer shall be addressed to:
Qwest Communications Corporation
000 00/xx/ Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx, 00000
Facsimile (000) 000-0000; Phone (000) 000-0000
Attn: Carrier Contracts Administration
With an additional copy to:
Qwest Communications Corporation
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile (000) 000-0000 Phone: (000) 000-0000
Attn.: Drake Tempest, Executive Vice President and General
Counsel
The addresses set forth may be changed by appropriate notice to the
other party.
20.10 [*
_________________
* This confidential portion has been omitted and filed separately with the
Commission.
14
]
20.11 [*
]
20.12 This Agreement comprises the complete and exclusive statement of the
agreement of the parties concerning the subject matter hereof, and
supersedes all previous statements, representations, and agreements
concerning the subject matter hereof.
___________________
* This confidential portion has been omitted and filed separately with the
Commission.
15
DATED as of the first date above written.
Advanced Radio Telecom Corp.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
Date: June 1, 1999
Qwest Communications Corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
Date: June 1, 1999
16
ART BROADBAND SERVICE DESCRIPTION
EXHIBIT A
TO
ART BROADBAND SERVICES AGREEMENT
SERVICE AND PRICING EXHIBIT
This Service and Pricing Exhibit (this "Service and Pricing Exhibit") is
made as of _______, 1999 by and between Advanced Radio Telecom Corp., a
Delaware corporation ("ART"), and Qwest Communications Corporation a
Delaware corporation ("Customer"), with respect to that certain Broadband
Services Agreement entered into by and between ART and Customer on ___,
1999 (the "Agreement").
1. ART SERVICES
------------
1.1 During the Term of the Agreement, ART will provide to Customer the Facility
or Facilities requested by Customer in a Service Order accepted by ART.
1.2 Upon acceptance of a Service Order, ART shall notify Customer of its target
date for the delivery of each Facility (the "Estimated Availability Date"). Any
Estimated Availability Date given by ART to Customer shall be subject to ART's
standard and expedited interval guidelines, as amended by ART from time to time.
ART shall use reasonable efforts to install each such Facility on or before the
Estimated Availability Date, but the inability of ART to deliver a Facility by
such date shall not be a Default under this Exhibit. If ART fails to make any
Facility available within ninety (90) days after acceptance by ART of the
Service Order with respect to such Facility (or such greater time as is set
forth in the accepted Service Orders), Customer's sole remedy shall be to cancel
the Service Order which pertains to such Facility by fifteen (15) calendar days
prior written notice to ART.
1.3 ART shall provide appropriate equipment at its in-building space necessary
to provide the connections listed in Section 3 of this Service and Pricing
Exhibit for use by Customer.
1.4 Customer agrees that Customer's Interconnection Facilities shall connect to
the Facilities provided by ART hereunder at the network interface points located
in the ART terminals and defined in the Specifications (as defined in Section
2.1 of this Service and Pricing Exhibit). As used herein, the term
"Interconnection Facilities" shall mean the wiring and equipment provided by
Customer or its third party supplier to extend the Facilities provided by ART
from an ART terminal to any other location.
2. START OF SERVICES
-----------------
2.1 Start of service for each Facility (the "Start of Service Date") shall
begin on the date on which Customer accepts delivery of such Facility. If
Customer fails to give written notice that the Facility is in material non-
compliance with the applicable standard ART network specifications, as modified
from time to time by ART (the "Specifications") within ten (10) business days
after notification to Customer by ART that the Facility is available, Customer
shall be deemed to have accepted such Facility, and the Start of Service Date
shall commence as of the
1
ART BROADBAND SERVICE DESCRIPTION
fifth day following such notification by ART. Following notice by Customer of
material non-compliance as set forth above, ART shall promptly take such
reasonable action as is necessary to correct any such non-compliance in the
Facility and shall, upon correction, notify Customer of a new Start of Service
Date.
2.2 Notwithstanding anything in Section 2.1 of this Service and Pricing Exhibit
to the contrary, Customer may delay the Start of Service Date for any Facility
for up to thirty (30) days from ART's Estimated Availability Date by written
notice to ART at least three (3) business days prior to any applicable Estimated
Availability Date.
3. RATES
-----
3.1 ART shall provide the Facilities at the rates (the "Rates") to be set forth
in this Section 3 (exclusive of all sales, use, commercial or other taxes
or license fees) and as shown on the Circuit Listing attached as Schedule
A-1 to this Service and Pricing Exhibit. Customer shall be responsible for
all interconnection costs from the Interconnection Facilities to Customer's
end users. [*
]
3.2 Customer Connection Rates
As provided in Section 3.1, applicable rate elements shall be established by the
parties for each item identified in (a) and (b) below. Such rates will apply
for each connection from a customer premise to the ART termination equipment in
an ART wired building:
___________________
* This confidential portion has been omitted and filed separately with the
Commission.
2
ART BROADBAND SERVICE DESCRIPTION
(a) 10BaseT ethernet connection.
[*
]
(b) 000XxxxX xxxxxxxx connection.
[*
]
3.3 Point of Presence (POP) Interconnection Rates
As provided in Section 3.1, applicable rate elements shall be established by the
parties for each item identified in (a), (b) and (c) below. Such rates will
apply for each connection from ART's POP location to the Customer POP location.
(a) 100BaseT ethernet connection.
[*
]
(b) DS-3 connection
[*
]
(c) OC-3 Packet over Sonet connection
[*
]
__________________
* This confidential portion has been omitted and filed separately with the
Commission.
3
ART BROADBAND SERVICE DESCRIPTION
3.4 Other Charges:
As provided in Section 3.1, applicable rate elements shall be established by the
parties for each item identified in (a) and (b) below. In addition to the
foregoing Facilities Rates for 10Base T and 100Base T, Customer shall pay to ART
the following additional charges, as applicable:
(a) Other Monthly Recurring Charges at POP
[*
]
(b) Other Non-Recurring Charges at POP
[*
]
3.5 ART reserves the right, upon thirty (30) days prior written notice to
Customer, to modify any of the Rates or charges described in this Service
and Pricing Exhibit applicable to any new Facility or Facilities ordered by
Customer, [*
].
4. FACILITY MINIMUM SERVICE TERM:
-----------------------------
4.1 Customer acknowledges that the Rates and charges described in Section 3 of
this Service and Pricing Exhibit are based on the commitment of Customer to
utilize the Facilities for a specified minimum period of time. Therefore,
notwithstanding anything in this Exhibit to the contrary, Customer shall be
liable for and shall pay to ART all rates, fees and charges which accrue under
this Exhibit for each Facility for the entire Facility Minimum Service Term (as
defined in Section 4.2 of this Service and Pricing Exhibit) applicable to each
such Facility, regardless of whether or not Customer utilizes all or any part of
such Facility during all or any part of the Facility Minimum Service Term
applicable to such Facility, except as is set forth in Section 4.3 of this
Service and Pricing Exhibit. As provided in Section 3.1, Facility Minimum
Service Terms shall be established by mutual agreement of the parties.
4.2 The "Facility Minimum Service Term" for each Facility, is defined as
follows:
Customer Connections
_______________
* This confidential portion has been omitted and filed separately with the
Commission.
4
ART BROADBAND SERVICE DESCRIPTION
(a) [* ] from Start of Service
Date for 10BaseT ethernet connection.
(b) [* ] from Start of Service Date for
000XxxxX xxxxxxxx connection.
POP Interconnection
(a) [* ] from Start of Service Date
for 100BaseT ethernet connection.
(b) [* ] from Start of Service Date
for DS-3 connection.
(c) [* ]from the Start of Service
Date for OC-3 Packet over Sonet connection
4.3 Notwithstanding anything in this Service and Pricing Exhibit to the
contrary, Customer's obligation to pay all rates, fees and charges, which accrue
under this Service and Pricing Exhibit for each Facility for the entire Facility
Minimum Service Term applicable to each such Facility, shall terminate as to
each Facility authorized to be terminated without penalty pursuant to the
Agreement. UPON TERMINATION OF THIS AGREEMENT FOR ANY OTHER REASON, THE TOTAL OF
ALL CHARGES REFERRED TO IN THIS SECTION 4 SHALL BE AT ONCE DUE AND PAYABLE,
REGARDLESS OF WHETHER OR NOT ALL OF THE FACILITIES MINIMUM SERVICE TERMS HAVE
EXPIRED, AND MAY BE COLLECTED BY ART FROM CUSTOMER AS A SINGLE AMOUNT.
5. OUTAGE CREDITS:
--------------
5.1 Customer acknowledges the possibility of an unscheduled, continuous and/or
interrupted period of time when a Facility or Facilities are "unavailable" (as
defined in the Specifications) (hereafter an "Outage"). In the event of an
Outage, Customer shall be entitled to a credit (the "Outage Credit") determined
according to the following formula:
[*
]
* This confidential portion has been omitted and filed separately with the
Commission.
5
ART BROADBAND SERVICE DESCRIPTION
5.2 The length of each Outage shall be calculated in hours and shall include
fractional portions thereof. An Outage shall be deemed to have commenced upon
verifiable notification thereof by Customer to ART or when actually known to ART
personnel, whichever is earlier. Each Outage shall be deemed to terminate upon
restoration of the affected Facility as evidenced by appropriate network tests
by ART. ART shall give notice to Customer of any scheduled outage as early as is
practicable, and a scheduled outage shall under no circumstance be viewed as an
Outage hereunder.
5.3 Outage Credits shall not be granted if the malfunction of any end-to-end
circuit is due to an Outage or other Defect occurring in Customer's
Interconnection Facilities.
5.4 All Outage Credits shall be credited on the next monthly invoice for the
affected Facility after receipt of Customer's request for credit. The total of
all Outage Credits applicable to or accruing in any given month shall not exceed
the amount payable by Customer to ART for that same month for such Facility.
5.5 The Outage Credit described in this Section 5 of this Service and Pricing
Exhibit shall be the sole and exclusive remedy of Customer in the event of any
Outage, and under no circumstance shall an outage be deemed a Default under this
Exhibit.
6
ART BROADBAND SERVICE DESCRIPTION
Schedule A-2 to Exhibit A
To
ART Broadband Service Agreement
TECHNICAL SPECIFICATIONS
1. Service Description
1.1 ART will provide transport Facilities based on native 10 megabit per second
and 100 megabit per second ethernet transport in any building to which ART has
connectivity and capacity.
1.2 The Facilities shall be provided utilizing a wireless architecture that
provides shared bi-directional 100 megabit transport based on the Fast Ethernet
industry standard.
1.3 [*
]
1.4 It is expected that the Customer will aggregate traffic from multiple end
users onto one or more Customer interfaces at ART's POP location.
2. IP Address Policy
Customer is responsible for supplying unique routable IP addresses. Should the
Customer's end user bring IP addresses from another provider, or from the
InterNIC, ART will route these addresses. ART cannot guarantee the routability
of these addresses beyond it's own backbone and to the Internet in general.
3. Interconnect Specifications
3.1 The customer interconnection point of 10BaseT & 100BaseT signals at the ART
end building and XX-0, 000XxxxX & OC-3c at the ART POP location will be at an
industry standard digital cross-connect and will be referred to as ART Network
Interface in this document.
3.2 The DS-3 signals terminating at the ART digital cross-connect panels will
meet the specifications as defined in ANSI T1.103-1987. The 100BaseT signals
terminating at the ART
____________
* This confidential portion has been omitted and filed separately with the
Commission.
1
ART BROADBAND SERVICE DESCRIPTION
digital cross-connect panels will meet the electrical specifications as defined
in IEEE 802.3. The OC-3c signals terminating at the ART digital cross-connect
panels will meet the specifications as defined in ANSI T1.105-1995 and XXX 0000
"PPP over SONET/SDH".
4. Performance Objectives
4.1 10/100BaseT performance will be measured using availability and delay using
the following assumptions:
. The packets originate and terminate on the ART 100BaseT network.
. Radio frequency path is engineered to [* ] availability based on
the Crane rain fade tables appropriate to the region in which a
facility is deployed.
. The network is configured in a ring topology with alternate routing.
. [* ]
. Capacity on the each ring is shared.
4.2 Availability is a measure of the relative amount of time during which the
network is available for use. The availability objective for all Customer
traffic on a twelve month basis between ART Network Interface points and the
Customer is [* ]. This excludes any Customer provided access links to
the ART digital network. All scheduled maintenance is excluded from
availability calculations.
4.3 Delay is a measure of the latency from when the first bit is transferred
from the Customer premise interface to when the first bit reaches the ART
Interface point. Delay performance objectives are [* ].
_________________
* This confidential portion has been omitted and filed separately with the
Commission.
2
