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EXHIBIT 10.6
[LEVEL(3) COMMUNICATIONS LOGO]
GENERAL TERMS AND CONDITIONS
FOR DELIVERY OF SERVICE
These Terms and Conditions for Delivery of Service are applicable to Customer
Orders executed by Customer for Services delivered by Level 3 Communications,
LLC ("Level 3"), and are incorporated into each Customer Order. The Terms and
Conditions include these General Terms and Conditions for Delivery of Service
and all terms and conditions attached hereto which relate to any Service
provided by Level 3 to Customer. These Terms and Conditions are applicable to
sales of Services originating or terminating in the United States.
DEFINITIONS
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CONFIDENTIAL INFORMATION: Licensed Software, and all source code, source
documentation, inventions, know-how, and ideas, updates and any documentation
and information related to the Licensed Software, and any non-public
information regarding the business of a party provided to either party by the
other party where such information is marked or otherwise communicated as being
"proprietary" or "confidential" or the like, or where such information is, by
its nature, confidential.
COMMITTED DATA RATE: A commitment made by Customer (where applicable)
obligating it to order and pay for a minimum amount of a Level 3 Service
expressed in Megabits per second (Mbps).
CUSTOMER: The person, firm or corporation so named on the Customer Order.
CUSTOMER ORDER: A request for Level 3 Service submitted by the Customer for
acceptance by Level 3.
FACILITIES: Any and all devices supplied by Level 3 used to deliver Services,
including but not limited to all terminal and other equipment, wires, lines,
circuits, ports, routers, switches, channel service units, data service units,
cabinets, racks, private rooms and the like. Facilities shall not include any
such devices sold to Customer by Level 3 and paid for by Customer or owned by
Customer or any third party.
LICENSED SOFTWARE: Computer software, in object code format only, the use of
which is required for use of Service ordered by Customer.
PREMISES: The location(s) occupied by Customer or its end users to which
Service will be delivered by Level 3. Premises does not include Space as
defined below.
REVENUE COMMITMENT: A commitment made by Customer obligating it to order and
pay for a minimum volume of Services during an agreed term.
SERVICE: A service offered by Level 3 pursuant to a Customer Order.
SPACE: The location(s) within Level 3 gateways into which Customer is permitted
to colocate telecommunications or internet equipment pursuant to a colocation
Customer Order accepted by Level 3.
TARGET INSTALL DATE: A written communication from Level 3 to Customer
indicating the date which it is anticipated that Services will be available to
Customer.
SECTION 1. CUSTOMER ORDERS
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1.1 SUBMISSION OF CUSTOMER ORDERS. To order any Service, Customer may submit to
Level 3 an order form for Services, completed with Level 3's assistance
("Customer Order") requesting the provision of Service. Level 3's delivery of a
Target Install Date, respecting such Service shall constitute Level 3's
acceptance of the Customer Order. The Customer Order and its backup detail
shall set forth the Service, the Premises and/or Space, the prices to be
charged for Services and any applicable term and/or Revenue Committed.
1.2 UNDERTAKING OF LEVEL 3. If Level 3 issues a Target Install Date respecting
Services, Level 3 will furnish such Services in accordance with the Terms and
Conditions and any Customer Orders.
SECTION 2. BILLING AND PAYMENT
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2.1 PAYMENT OF BILLS. Level 3 bills all charges incurred by Customer on a
monthly basis. Level 3 bills in advance for all Services to be provided during
the ensuing month, except for charges which are dependent upon usage of Service,
which are billed in arrears. Billing for partial months will be prorated based
on a Calendar month. All bills are due upon receipt, and become past due thirty
(30) days later. The unpaid balance of any past due bills shall bear interest at
a rate of 1.5% per month (prorated on a daily basis beginning on the past due
date), or the highest rate allowed by law, whichever is less.
To the extent Customer orders any service designated as "Burstable," the
following billing method shall apply: Customer will be billed as set forth above
for its Committed Data Rate. In addition, over each month, Customer's usage of
the Service will be sampled by Level 3 in five minute inbound and outbound
averages. At the end of the month, the top ten percent of the
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inbound and outbound averages shall be discarded. The highest of the resulting
ninetieth percentile for inbound and outbound traffic will be compared to the
Committed Data Rate. If the ninetieth percentile of either inbound or outbound
traffic is higher than the Committed Data Rate, Customer will, in addition to
being billed for its Committed Data Rate, be billed for its utilization of the
Service that exceeds their Committed Data Rate, which shall be billed at the
contracted-for price per Mbps.
2.2 TAXES AND FEES. Except for taxes based on Level 3's net income and ad
valorem, personal and real property taxes imposed on Level 3's property,
Customer shall be responsible for payment of all sales, use, gross receipts,
excise, access, bypass, franchise or other local, state and federal taxes,
fees, charges, or surcharges, however designated, imposed on or based upon the
provision, sale or use of the Services.
2.3 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, Level 3 and Customer agree to 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) Customer may terminate the affected Customer Order without
termination liability upon sixty (60) days' prior written notice.
2.4 DISPUTED BILLS. In the event that Customer disputes any portion of a
Level 3 bill, Customer must pay the undisputed portion of the bill and submit a
written claim for the disputed amount. All claims must be submitted to Level 3
within sixty (60) days of receipt of billing for those Services. Customer
acknowledges that it is able to and that it is reasonable to require Customer
to dispute bills within that time, and Customer therefore waives the right to
dispute charges not disputed within the time set forth above.
2.5 CREDIT APPROVAL AND DEPOSITS. Customer shall provide Level 3 with credit
information as requested, and delivery of Service is subject to credit
approval. Level 3 may require Customer to make a deposit (which will not exceed
Customer's estimated charges for two months' Service) as a condition to Level
3's acceptance of any Customer Order, or as a condition to Level 3's
continuation of Service, which deposit shall be held by Level 3 as security for
payment of Customer's charges. At such time as the provision of Service to
Customer is terminated, the amount of the deposit will be credited to
Customer's account and any credit balance which may remain will be refunded.
2.6 FRAUDULENT USE OF SERVICES. Customer is responsible for all charges
attributable to Customer incurred respecting the Services, even if incurred as
the result of fraudulent or unauthorized use of the Services, unless Level 3
has actual knowledge of the same and fails to notify Customer thereof. Level 3
may, but is not obligated to, detect or report unauthorized or fraudulent use
of Services.
SECTION 3. DISCONTINUANCE OF CUSTOMER ORDERS
3.1 DISCONTINUANCE OF CUSTOMER ORDER BY LEVEL 3. Level 3 may terminate any
Customer Order and discontinue Service without liability:
A. If Customer fails to pay a past due balance for Services within thirty
(30) days of written notice thereof provided by Level 3;
B. If Customer violates any law, rule, regulation or policy of any government
authority having jurisdiction over the Services; If Customer makes a material
misrepresentation in any submission of information in a Customer Order or other
submission of information to Level 3; If Customer engages in any fraudulent use
of the Services; or if a court or other government authority having
jurisdiction over the Services prohibits Level 3 from furnishing the Services;
C. If Customer fails to cure its breach of any provision of these Terms and
Conditions or any Customer Order within thirty (30) days written notice thereof
provided by Level 3;
D. If Customer files bankruptcy, for reorganization, or fails to discharge an
involuntary petition therefore within sixty (60) days;
E. If Customer's use of the Services materially exceeds Customer's credit
limit, unless within fourteen (14) days written notice thereof by Level 3,
Customer provides adequate security for payment for the Services.
3.2 EFFECT OF DISCONTINUANCE. Upon Level 3's discontinuance of Service to
Customer, Level 3 may, in addition to all other remedies that may be available
to Level 3 at law or in equity, assess and collect from Customer any applicable
termination charge.
3.3 RESUMPTION OF SERVICE. If Service has been discontinued by Level 3 and
Customer requests that Service be restored, Level 3 shall have the sole and
absolute discretion to restore such Service. Nonrecurring charges, with the
exception of any charges for the build-out of Colocation Space already paid by
Customer, may apply to restoration of Service.
3.4 DISCONTINUANCE OF CUSTOMER ORDER BY CUSTOMER. Customer shall have the
right to terminate any Customer Order and discontinue Service prior to the end
of the agreed term with respect to which a Customer Order has been executed
without payment of any applicable termination charge if: (i) such Service is
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Unavailable (as defined below) on two or more separate occasions of more than
eight (8) hours each in any 30 day period, and (ii) following written notice
thereof from Customer to Level 3, Level 3 has an Unavailability event of more
than 12 hours at any time within the 12 month period immediately following said
notice. For purposes of the foregoing, Unavailability shall mean the period of
time beginning when Customer reports an outage in its Service to the Level 3
Customer Service and Support Organization (1-877-4LEVEL3) and shall end when
the Service is operative. Unavailability shall not apply to any outage which is
caused by Customer, Customer's end users or any third party, which results from
failure of power or equipment provided by Customer or others, which occurs or
continues during any period in which Level 3 is not given access to the
Premises or the Space, or which results from maintenance events. Customer must
exercise its right to terminate under this Section, in writing, no later than
thirty (30) days after the Unavailability event giving rise to a right of
termination hereunder.
SECTION 4. DELIVERY OF SERVICES
4.1 LEVEL 3 ACCESS TO PREMISES AND SPACE. Customer shall allow Level 3 access
to the Premises to the extent reasonably determined by Level 3 for the
installation, inspection and scheduled or emergency maintenance of Facilities
relating to the Service. Level 3 shall notify Customer two (2) business days in
advance of any regularly scheduled maintenance that will require access to the
Premises. Level 3 retains the right to access any Space for any legitimate
business purpose.
4.2 LEVEL 3 FACILITIES. Level 3 will use reasonable efforts to 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 of the Facilities. If the same occurs without first obtaining
Level 3's written approval, in addition to being a breach by Customer of
Customer's obligations hereunder, Customer shall (1) pay level 3 the cost to
repair any damage to the Facilities caused thereby; and (2) be responsible for
the payment of service charges in the event that maintenance or inspection of
the Facilities is required as a result of Customer's breach of this Section. In
no event shall Level 3 be liable to Customer or any other person for
interruption of Service or for any other loss, cost or damage caused or related
to improper use or maintenance of the Facilities, unless the same is caused by
the negligence of Level 3, and then only to the extent of Section 5.2.
4.3 TITLE AND POWER. Title to all Facilities (except as otherwise agreed)
shall remain with Level 3. The electric power consumed by such Facilities on
the Premises shall be provided by and maintained at the expense of Customer,
Electric power to the Space shall be provided by Level 3.
4.4 CUSTOMER-PROVIDED EQUIPMENT. Level 3 may install certain Customer provided
communications equipment upon installation of Service and the Facilities, but
unless otherwise agreed by Level 3 in writing. Level 3 shall not thereafter be
responsible for the operation or maintenance of any Customer provided
communication equipment. Level 3 shall not be responsible for the transmission
or reception of signals by Customer-provided equipment or for the quality of,
or defects in such transmission.
4.5 REMOVAL OF FACILITIES. Customer agrees to allow Level 3 to remove all
Facilities from the Premises:
A. after termination of the Service in connection with which the Facilities
were used; and
B. for repair, replacement or otherwise as Level 3 may determine is necessary,
but Level 3 shall use reasonable efforts to minimize disruptions to the Service
caused thereby.
At the time of such removal, the Facilities shall be in the same condition as
when installed, normal wear and tear excepted. Customer shall reimburse Level 3
for the depreciated cost of any Facilities not in such condition.
4.6 SERVICE SUBJECT TO AVAILABILITY. The furnishing of Service is subject to
the availability thereof, on a continuing basis, and is limited to the capacity
of Level 3 to provide the Service as well as the capacity which Level 3 may
obtain from other carriers to furnish Service from time to time as required at
the sole discretion of Level 3. Nothing in these Terms and Conditions shall be
construed to obligate Customer to submit, or Level 3 to accept, Customer
Orders. In the event Service becomes unavailable pursuant to this paragraph
4.6, Customer shall have the right set forth in Section 3.4 of these Terms and
Conditions.
SECTION 5. OBLIGATIONS AND LIABILITY LIMITATION
5.1 OBLIGATIONS OF THE CUSTOMER. Customer shall be responsible for:
A. The payment of all charges applicable to the Service;
B. Damage or loss of the Facilities installed on the Premises or in the Space
(unless caused by the negligence or willful misconduct of the employees or
agents of Level 3);
C. Providing the level of power, heating and air conditioning necessary to
maintain the proper environment on the Premises for the provision of Service;
D. Providing a safe place to work and complying with all laws and regulations
regarding the working conditions on the Premises;
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E. Granting Level 3 or its employees access to the Premises as set forth in
Section 4.1 of these Terms and Conditions; and
F. Keeping Level 3's Facilities located on Premises free and clear of any liens
or encumbrances.
5.2 LIABILITY. Except as provided in Section 8.4, the liability of Level 3 for
damages arising out of the furnishing of or the failure to furnish Service,
including but not limited to mistakes, omissions, interruptions, delays,
tortious conduct, representations, errors, or other defects, whether caused by
acts of commission or omission, shall be limited to the extension of credit
allowances or refunds due under any applicable Service Level Agreement. Except
as provided in Section 8.4, the extension of such credit allowances or refunds
shall be the sole remedy of Customer and the sole liability of Level 3.
5.3 NO SPECIAL DAMAGES. Notwithstanding any other provision hereof, neither
party shall be liable for any indirect, incidental, special, consequential,
exemplary or punitive damages (including but not limited to damages for lost
profits or lost revenues), whether or not caused by the acts or omissions or
negligence of its employees or agents, and regardless of whether such party has
been informed of the possibility or likelihood of such damages.
6.4 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 LEVEL AGREEMENT.
SECTION 6. SOFTWARE TERMS
6.1 LICENSE. If and to the extent that Customer requires the use of Licensed
Software in order to use the Service supplied under any Customer Order,
Customer shall have a nonexclusive, nontransferable (except pursuant to
paragraph 8.2 hereof) license to use such Licensed Software only and solely to
the extent required to permit delivery of the Service. Customer may not claim
title to or any ownership interest in any Licensed Software (or any derivations
or Improvements thereto), and Customer shall execute any documentation
reasonably required by Level 3 to memorialize Level 3's existing and continued
ownership of the Licensed Software.
6.2 RESTRICTIONS. Customer agrees that it shall not:
A. copy the Licensed Software except for emergency backup purposes or as
permitted by the express written consent of Level 3:
B. reverse engineer, decompile or disassemble the Licensed Software;
C. sell, lease, license or sublicense the Licensed Software; or
D. create, write or develop any derivative software or any other software
program based on the Licensed Software.
SECTION 7. CONFIDENTIAL INFORMATION
7.1 DISCLOSURE AND USE. Any Confidential Information disclosed by either party
shall be kept by the receiving party in strict confidence and not disclose to
any third party (except as authorized by these Terms and Conditions) without
the disclosing party's express written consent. Each party agrees to treat all
Confidential Information of the other in the same manner as it treats its own
proprietary information, but in no case will the degree of care be less than
reasonable care.
7.2 RESTRICTED USE. Each party agrees:
A. to use Confidential Information only for the purposes of performance of any
Customer Order or as otherwise expressly permitted by these Terms and
Conditions;
B. not to make copies of Confidential Information or any part thereof except
for purposes consistent with these Terms and Conditions; and
C. to reproduce and maintain on any copies of any Confidential Information
such proprietary legends or notices (whether of disclosing party or a third
party) as are contained in or on the original or as the disclosing party may
otherwise reasonably request.
7.3 EXCEPTIONS. Notwithstanding the foregoing, each party's confidentiality
obligations hereunder shall not apply to information which:
A. is already known to the receiving party;
B. becomes publicly available without fault of the receiving party;
C. is rightfully obtained by the receiving party from a third party without
restriction as to disclosure, or is approved for release by written
authorization of the disclosing party;
D. is developed independently by the receiving party without use of the
disclosing party's Confidential Information;
E. is required to be disclosed by law.
7.4 PUBLICITY. This agreement grants no right to use any 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 shall issue any publication or press release relating
to, or otherwise disclose the existence of, or the terms and conditions of any
contractual relationship between Level 3 and Customer, except as may be
required by law.
7.6 REMEDIES. Notwithstanding any other section of these Terms and Conditions,
the non-breaching party
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shall be entitled to seek equitable relief to protect its interests, including
but not limited to preliminary and permanent injunctive relief. Nothing stated
herein shall be construed to limit any other remedies available to the parties.
7.6 SURVIVAL. The obligations of confidentiality and limitation of use shall
survive the termination of any applicable Customer Order.
SECTION 8. GENERAL TERMS
8.1 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, including but
not limited to: acts of God, fire, flood or other catastrophes; any law, order,
regulation, direction, action or request of any governmental entity or agency,
or any civil or military authority; national emergencies, insurrections, riots,
wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work
stoppages, or other labor difficulties. In the event any of the foregoing
occur and Level 3 is unable to deliver the Service for fourteen (14)
consecutive days, Customer shall not be obligated to pay Level 3 for the
affected Service for so long as Level 3 is unable to deliver them, provided,
however, that the term of the Customer Order respecting those Services shall be
extended for a period of time equal to the period of time for which Level 3 was
unable to provide and Customer was not required to pay for the affected Service.
8.2 ASSIGNMENT OR TRANSFER. Except with respect to a merger or sale of
substantially all of Customer's assets. Customer may not transfer, sublease or
assign the use of Service without the express prior written consent of Level 3,
and then only when such transfer or assignment can be accomplished without
interruption of the use or location of Service. Level 3 will not unreasonably
withhold its consent. These Terms and Conditions shall apply to any transferees
or assignees. Customer shall remain liable for the payment of all charges due
under each Customer Order.
8.3 NOTICES. Notices hereunder shall be deemed properly given when delivered,
if delivered in person, or when sent via facsimile, overnight courier,
electronic mail or when deposited with the U.S. Postal Service, (a) with
respect to Customer, the address listed on any Customer Order, or (b) with
respect to Level 3, to: Contracts Administration, Level 3 Communications, LLC,
1450 Infinite Drive, Louisville, CO 80027. Customer shall notify Level 3 of any
changes to its addresses listed on any Customer Order.
8.4 INDEMNIFICATION BY LEVEL 3. Level 3 shall indemnify, defend and hold
Customer harmless from any claim, loss, damage, expense or liability (including
attorney's fees and court costs) (hereafter "Claims") made against Customer for
property damage, patent infringement or personal injury caused by Level 3's
negligence or willful misconduct.
8.5 INDEMNIFICATION BY CUSTOMER. Customer shall indemnify, defend and hold
Level 3 harmless from Claims (including Claims for patent infringement) (i)
made against Level 3 by any end user of Customer in connection with the
delivery or consumption of Service, (ii) made against Level 3 arising out of
any commission or negligent omission by Customer in connection with the
Service, or (iii) arising from Customer's negligence or willful misconduct.
8.6 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.
8.7 CONTENTS OF COMMUNICATIONS Level 3 does not monitor and shall have no
liability or responsibility for the content of any communications transmitted
via the Service, and Customer shall hold Level 3 harmless from any and all
claims (including claims by governmental entities seeking to impose penal
sanctions) related to such content attributable to Customer or its agents,
employees or end users.
8.8 ENTIRE UNDERSTANDING. These Terms and Conditions, including any Customer
Orders executed hereunder, constitute the entire understanding of the parties
related to the subject matter hereof. In the event of any conflict between
these Terms and Conditions and the terms and conditions of any Customer Order,
these Terms and Conditions shall control. These Terms and Conditions shall be
governed and construed in accordance with the laws of the state of Colorado.
8.9 NO WAIVER. No failure by either party to enforce any rights hereunder
shall constitute a waiver of such right(s).
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ADDITIONAL TERMS AND CONDITIONS
FOR PRIVATE LINE SERVICE
The following additional terms and conditions are applicable where, pursuant to
a Customer Order, Customer orders metropolitan (local), city to city (within
the United States) and international (from the United States to another
country) private line, non-switchable circuits (the "Private Line Services").
1. Any state or federal tariffs applicable to the Private Line Services to be
delivered under any Customer Order are incorporated into the terms thereof.
Level 3's pricing to Customer for Private Line Services may, if required, be
subject to PUC or other regulatory approval.
2. The nonrecurring charges and monthly recurring rates for the Private Line
Services provided by Level 3 are shall be set forth in each Customer Order.
3. The rates and other charges set forth in each Customer Order are
established in reliance on the term commitment made therein, and Customer shall
pay the same in accordance therewith. In the event that Customer terminates
Services ordered in any Customer Order which is accepted by Level 3 or in the
event that the delivery of Services is terminated due to a failure of Customer
to satisfy the requirements set forth in these Terms and Conditions prior to
the end of the agreed term, Customer shall (unless Customer has made a Revenue
Commitment) pay a termination charge equal to the percentage of the monthly
recurring charges for the terminated Private Line Services calculated as
follows:
A. 100% of the monthly recurring charge that would have been incurred for the
Private Line Service for months 1-12 of the agreed term; plus
B. 75% of the monthly recurring charge that would have been incurred for the
Private Line Service for months 13-24 of the agreed term; plus
C. 50% of the monthly recurring charge that would have been incurred for the
Private Line Service for months 25 through the end of the agreed term.
In the event that a Revenue Commitment is made and is then being satisfied by
Customer, Customer may terminate, rearrange or reconfigure the Private Line
Services ordered under a Customer Order without payment of the termination
charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges applicable
to such termination, rearrangement or reconfiguration.
4. Level 3 makes the Service Level Agreements in the attached Exhibit "A"
respecting Private Line Service.
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Standard Service Level Agreement (SLA)
INTERNATIONAL/US NATIONAL PRIVATE LINE
International/National Private Line service will be backed by a Standard
Service Level Agreement that has two components: a Service Delivery SLA and a
Network Performance SLA.
NOTE: The total number of credits per month for both Service Delivery is
limited to four days.
SERVICE DELIVERY SLA
<TABLE>
<CAPTION>
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US On-net City Standard Service Delivery Intervals
US NPLS and IPL
-------------------------------------------------------------------------------------------------------------
NX84K, DS1, E1* DS3 OC3/OC12
-------------------------------------------------------------------------------------------------------------
US NPLS IPL US NPLS IPL US NPLS IPL
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
On-Net 20 working 20 working 30 working 30 working 40 working 30
days days days days days
-------------------------------------------------------------------------------------------------------------
Off-Net building 30 working 60 working 45 working 60 working 60 working ICB
within SSA days days days days days
(either end)
-------------------------------------------------------------------------------------------------------------
Off-net building 30 working 60 working 45 working 60 working 70 working ICB
outside SSA days days days days days
(within 50 miles)
(either end)
-------------------------------------------------------------------------------------------------------------
<CAPTION>
-------------------------------------------------------------------------------------------------------------
US Domestic Served Standard Service Delivery Intervals
Off-net City
--------------------------------------------------------------------------------------------------------------
DS1 D83 OC3
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
One side of the circuit 30 working days 45 working days 60 working days (70 days
is served by an off-net would apply if the customer
city POP location served by the
gateway city is outside of
the SSA)
--------------------------------------------------------------------------------------------------------------
</TABLE>
* Off-net building must have DS3 local service availability in order to support
** E1 delivery is available in NYC only and is dependent upon local
availability of E1 delivery
o Single toll-free number to reach Level 3 Customer Service for all customer
issues, including technical, billing, and product inquiries.
o Mean Time to Respond - Within 30 minutes
o 2 hour calendar month Average Time To Repair (ATTR)
If Level 3 fails to meet any of the guarantees above, Level 3 will review all
reported failures at the end of the month, and calculate the applicable credits:
- Any customer inquiry to the Level 3 Customer Service Center that results
in a Time to Respond of >30 minutes will result in a one day service
credit when the customer notifies Level 3 of the failure.
- ATTR is calculated as a monthly average. All reported customer trouble
tickets will be totaled over the month, then the average time to close
each ticket will be calculated. If the ATTR is greater than 2 hours, the
customer will receive a one day service credit.
- Credits will only be applied to events where the Customer reports a
failure to the Level 3 Customer Care organization. Customers must report
any Service Delivery failures within five business days of the event.
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NETWORK PERFORMANCE SLA
o 99.99% Service Availability
o Target Bit Error Rate(1)
End-to-end link (Level 3 on-net) <1 x 10(-11) at T1 Rate
(equivalent rate for DS0 1x10(-6)
End-to-end link (Non-Level 3 access) <1 x 10(-7) (dependent on local
supplier)
o Target Severely Errored Seconds(2)
End-to-end link (Level 3 fiber access) <0.008%
End-to-end link (Non-Level 3 access) <0.013% (Dependent on local
supplier)
> Availability refers to customer's access point to the Level 3 Backbone
Network, including their Level 3 provided local access circuit.
> Availability does not include regularly scheduled or emergency
maintenance events, or customer caused outages or disruptions.
> Customers may report service unavailability events of longer than 15
consecutive minutes to Level 3 customer service within 48 hours of the
event. If the event is confirmed by Level 3 customer service, the
customer will receive a pro-rated service credit that equals the time
of the unavailability.
NOTES:
> All measurements are based on monthly averages.
> These guarantees only apply to the Level 3 Network (including the Local
Access to the customer). They do not apply to off-net city circuits which
do not transit the Level 3 Backbone Network (or the portion the circuit
which does not transit the Level 3 Bankbone)
> This SLA does not apply to periods of regularly scheduled or emergency
maintenance that Level 3 performs on its network or associated hardware and
software.
> Credits will only be applied to events where the Customer reports a network
performance failure to the Level 3 Customer Care organization.
> Customers must report any Network Performance failures (unavailability or
delay) within 48 hours (two business days) of the service affecting event
in order to receive a credit. Customers must report any Service Delivery
failures within five business days of the event.
--------------
(1) Bit Error Rate Figure excludes periods of more than 10 seconds having error
rates equal to, or worse than 1x10(-3)
(2) Severely Errored Seconds have bit error rates, to, or worse than 1x10(-3)
<PAGE> 9
ADDITIONAL TERMS AND CONDITIONS
FOR TELEPHONY AND IP COLOCATION
The following terms and conditions are applicable where, pursuant to a
Customer Order, Customer orders the use of space within Level 3 gateways to be
used for the purpose of colocating telecommunications equipment or equipment
used for connection to the internet (the "Space").
1. Customer is granted the right to occupy the Space identified in a Customer
Order. Customer shall be permitted reasonable access to the Space subject to
any and all rules, regulations and access requirements imposed by Level 3
governing such access. Customer may submit multiple Customer Orders requesting
use of different Space, each of which shall be governed by the terms hereof.
2. Customer shall be permitted to use the Space only for placement and
maintenance of communications equipment. The nonrecurring and monthly recurring
charges for the Space and any Services ordered by Customer shall be set forth
in each Customer Order. Customer hereby agrees, within six (6) months of
ordering such Space, to use the Space for placement and maintenance of
telecommunications or internet access equipment. In the event Customer fails to
fill said Space as set forth herein, Level 3 has the right to reclaim the
proportion of Space not being used exclusively as indicated above, if the same
is not cured within forty-five (45) days' prior notice thereof to Customer.
Customer agrees to immediately vacate such recaptured Space and Level 3 shall
reduce the Colocation fees allocated to such recaptured Space. Customer further
agrees that no refunds shall be made to Customer regarding such recaptured
Space.
3. Level 3 shall perform such janitorial services, environmental systems
maintenance, power plant maintenance and other actions as are reasonably
required to maintain the gateway in which the Space is located in a condition
which is suitable for the placement of telecommunications and internet access
equipment. Customer shall maintain the Space in an orderly and safe condition,
and shall return the Space to Level 3 at the conclusion of the term set forth
in the Customer Order in the same condition (reasonable wear and tear excepted)
as when such Space was delivered to Customer. EXCEPT AS EXPRESSLY STATED HEREIN
OR IN ANY CUSTOMER ORDER, THE SPACE SHALL BE DELIVERED AND ACCEPTED "AS IS" BY
CUSTOMER, AND NO REPRESENTATION HAS BEEN MADE BY LEVEL 3 AS TO THE FITNESS OF
THE SPACE OF CUSTOMER'S INTENDED PURPOSES.
4. The term of use of the Space shall begin on the later to occur of the date
requested by Customer or the date that Level 3 completes the build-out of the
Space. Customer's use of the Space beyond the initial term shall be on a
month-to-month basis, unless Customer and Level 3 have agreed in writing to a
renewal of the right to use such Space. Customer hereby agrees to pay for the
Space and any related Services for the term of this Agreement. The rates and
other charges set forth in each Customer Order are established in reliance on
the term commitment made therein. In the event that Customer terminates a
Customer Order for Space which is accepted by Level 3 or in the event that the
Customer Order is terminated due to a failure of Customer to satisfy the
requirements set forth herein or in the Customer Order prior to the end of the
agreed term, Customer shall pay a termination charge equal to the costs
incurred by Level 3 in returning the Space to a condition suitable for use by
other parties, plus the percentage of the monthly recurring fees for the
terminated Space calculated as follows:
a. 100% of the monthly recurring fees that would have been charged for
the Space for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring fees that would have been charged for the
Space for months 13-24 of the agreed term; plus
c. 50% of the monthly recurring fees that would have been charged for the
Space for months 25 through the end of the agreed term.
In the event that a Revenue Commitment is made and is then being satisfied by
Customer, Customer may terminate the Space ordered pursuant to a Customer Order
without payment of the termination charge specified above; PROVIDED, HOWEVER,
that Customer shall be responsible for payment of Level 3's then-current
standard nonrecurring charges applicable to such termination.
5. Level 3 shall use reasonable efforts to complete the build-out and make
the Space available to Customer on or before the date requested by Customer. In
the event that Level 3 fails to complete the build-out within sixty (60) days
of the date requested by Customer, then Customer may terminate its rights to
use such Space and receive a refund of any fees paid for the use or build-out
of such Space.
6. Customer shall abide by any posted or otherwise communicated rules
relating to use of, access to, or
Page 9 of 18
<PAGE> 10
security measures respecting the Space. Customers use of the Space will be
immediately terminated in the event Customer or any of its agents or employees
is found in Level 3's gateway with any firearms, drugs, alcohol or is found
engaging in any criminal activity, eavesdropping, foreign intelligence, card
selling or slamming. Persons found engaging in any such activity or in
possession of the aforementioned prohibited items will be immediately escorted
from the gateway. In the event that unauthorized parties gain access to the
Space through access cards, keys or other access devices provided to Customer,
Customer shall be responsible for any damages incurred as a result thereof.
Customer shall be responsible for the cost of replacing any security devices
lost or stolen after delivery thereof to Customer. In addition, Level 3 shall
have the right to terminate Customer's use of the Space or the Services in the
event that: (a) Level 3's rights to use the facility within which the Space is
located terminates or expires for any reason; (b) Customer has violated the
terms hereof or of any Customer Order submitted hereunder; (c) Customer makes
any material alterations to the Space without first obtaining the written
consent of Level 3; (d) Customer allows personnel or contractors to enter the
Space who have not been approved by Level 3 in advance; or (e) Customer
violates any posted or otherwise communicated rules relating to use of or
access to the Space. With respect to items (b), (c), (d) and (e) immediately
above, unless the same interferes or has the potential to interfere with other
Level 3 Colocation customers, Level 3 shall provide Customer a written notice
of the foregoing and a 10-day opportunity to cure the same before terminating
Customer's rights to the Space.
7. Customer may sublease the Space under the following conditions: i) all
proposed sublessees must be approved, in writing, by Level 3 in Level 3's sole
discretion; ii) Customer hereby guarantees that all Sublessees shall abide by
all terms and conditions set forth between Customer and Level 3; iii) Customer
shall indemnify, defend and hold Level 3 harmless from all claims brought
against Level 3 arising from any act or omission of any subcontractor and iv)
any sublessee shall be considered customer's agent and all of sublessees' acts
and omissions and usage of the Space or Services hereunder shall be
attributable to Customer for the purposes of these Terms and Conditions.
8. Level 3 reserves the right to change the location or configuration of the
Space, provided, however, that Level 3 shall not arbitrarily or
discriminatorily require such changes. Level 3 and Customer shall work in good
faith to minimize any disruption in Customer's services that may be caused by
such changes in location or configuration of the Space.
9. Prior to occupancy and during the term of use of any Space, Customer shall
procure and maintain the following minimum insurance coverage; (a) Workers'
Compensation in compliance with all applicable statutes of appropriate
jurisdiction. Employer's Liability with limits of $500,000 each accident; (b)
Commercial General Liability with combined single limits of $1,000,000 each
occurrence; and (c) "All Risk" Property insurance covering all of Customers
personal property located in the Space. Customer's Commercial General Liability
policy shall be endorsed to show Level 3 (and any underlying property owner, as
requested by Level 3) as an additional insured. All policies shall provide that
Customer's insurers waive all rights of subrogation against Level 3. Customer
shall furnish Level 3 with certificates of insurance demonstrating that
Customer has obtained the required insurance coverages prior to occupancy of
the Space. Such certificates shall contain a statement that the insurance
coverage shall not be materially changed or cancelled without at least thirty
(30) days prior written notice to Level 3. Customer shall require any
contractor entering the Space on its behalf to procure and maintain the same
types, amounts and coverage extensions as required of Customer above.
10. Customer may order and pay for Level 3 to perform certain limited ("remote
hands") maintenance services on Customer's equipment within the space, which
shall be performed in accordance with Customer's directions. "Remote hands"
maintenance services includes power cycling equipment. Level 3 shall in no
event be responsible for the repair, configuration or tuning of equipment, or
for installation of Customer's equipment (although Level 3 will provide
reasonable assistance to Customer in such installation).
Page 10 of 18
<PAGE> 11
ADDITIONAL TERMS AND CONDITIONS FOR
DEDICATED, RAPID ACCESS AND DIAL UP INTERNET ACCESS
The following additional terms and conditions are applicable where pursuant to
a Customer Order, Customer orders dedicated, rapid access and/or dial-up
Internet Access Service (the "Internet Access Services").
1. Any state or federal tariffs applicable to the Internet Access Services to
be delivered under any Customer Order are incorporated into the terms thereof.
The Internet Access Services shall at all times be used in compliance with
Level 3's then-current Acceptable Use Policy and Privacy Policy, as amended by
Level 3 from time to time and which are available through Level 3's web site.
2. The nonrecurring charges and monthly recurring rates for the Internet Access
Services provided by Level 3 to Customer are set forth in each Customer Order.
3. The rates and other charges set forth in each Customer Order are established
in reliance on the term and/or volume commitment made therein, and Customer
agrees to pay the same. In the event that Customer terminates Internet Access
Services ordered in any Customer Order which is accepted by Level 3 or in the
event that the delivery of Internet Access Services is terminated due to a
failure of Customer to satisfy the requirements set forth herein or in the
Customer Order prior to the end of the agreed term, Customer shall (unless
Customer has made a Revenue Commitment) pay a termination charge equal to the
percentage of the monthly recurring charges for the terminated Internet Access
Services calculated as follows:
a. 100% of the monthly recurring charge that would have been incurred for the
Internet Access Service for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would have been incurred for the
Internet Access Service for months 13-24 of the agreed terms; plus
c. 50% of the monthly recurring charge that would have been incurred for the
Internet Access Service for months 25 through the end of the agreed term.
Customer may, in the event that a Revenue Commitment is made and is then being
satisfied by Customer, terminate, rearrange or reconfigure the Internet Access
Services ordered under a Customer Order without payment of the termination
charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges applicable
to such termination, rearrangement or reconfiguration.
4. 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.
5. This Section 5 applies only to Customers who order Dial-Up Internet Access
Services, the Dial-Up Internet Access Services shall be used only by an
officer, director, employee or agent ("Employee") of Customer. Customer shall
assure that each Employee accessing the Dial-Up Internet Access Service abides
by these Terms and Conditions. Prior to any Employee accessing Dial-Up Internet
Access Services, such Employee will be required to accurately complete an
on-line registration process. During this registration process, each Employee
will be required to identify himself/herself through some means satisfactory to
Level 3. Pursuant to the registration process, by clicking an "ACCEPT" icon,
each Employee will (i) agree to accurately complete the registration; (ii)
agree to abide by all of the provisions, terms, limitations, conditions and
restrictions of these Terms and Conditions; and (iii) agree to use the Dial-Up
Internet Access Services in accordance with any requirements set forth in the
online registration process and for the legitimate business purposes of
Customer only. Each Employee will also receive a password which such Employee
will agree to keep in strict confidence and which will be required whenever
accessing the Dial-Up Internet Access Services.
6. If Customer orders Burstable Dedicated Internet Access Services pursuant to
a Customer Order, the Customer shall be permitted to make two (2) changes to
its Committed Data Rate each contract year, provided that such change be to a
higher Committed Data Rate.
7. This Section 7 applies only to Customers who order Dedicated Internet Access
and Rapid Access Services. Level 3 makes the following Service Level Agreements
attached as Exhibit "A" respecting Dedicated Internet Access and Rapid Access
Service.
Page 11 of 18
<PAGE> 12
Standard Service Level Agreement (SLA)
Release 1
INTERNET DEDICATED ACCESS
Dedicated Internet Access service will be backed by a Standard Service Level
Agreement that has two components: a Service Delivery SLA and a Network
Performance SLA.
NOTE: The total number of credits per month for both Service Delivery and
Network Performance is limited to four days.
SERVICE DELIVERY SLA
- 30 Calendar Day Installation Guarantee for Customers buying Dedicated
Internet Access in speeds from 64 Kbps -- 1.544 Kbps within the Standard
Service Area.
- 45 Calendar Day Installation Guarantee for Customers buying Dedicated
Internet Access in speeds from 3 Mbps -- 45 Mbps within the Standard
Service Area.
- Single toll-free number to reach Level 3 Customer Service for all
customer issues, including technical, billing, and product inquiries.
- Time to Respond -- Within 30 minutes
- 2 hour calendar month Average Time to Repair (ATTR)
If level 3 fails to meet any of the guarantees above, Level 3 will review all
reported failures at the end of the month, and calculate the applicable credits:
> Any customer inquiry to the Level 3 Customer Service Center that results
in a Time to Respond of >30 minutes will result in a one day service
credit when the customer notifies Level 3 of the failure.
> ATTR is calculated as a monthly average. All reported customer trouble
tickets will be totaled over the month, then the average time to close
each ticket will be calculated. If the ATTR is greater than 2 hours, the
customer will receive a one day service credit.
> Credits will only be applied to events where the Customer reports a
failure to the Level 3 Customer Care organization. Customers must report
any Service Delivery failures within five business days of the event.
NETWORK PERFORMANCE SLA
- SERVICE AVAILABILITY
> Availability refers to customer's access point to the Level 3
internet network, including their Level 3 provided local access
circuit, and the customer's port.
> Unavailability Events are defined as any outage of the Level 3
provided local access circuit and the customer's port of longer
than 15 consecutive minutes.
> The Availability Guarantee does not extend to the performance of
Internet networks controlled by other companies, or traffic
exchange points (including NAPs and MAEs) which are controlled by
other companies.
> Availability does not include regularly scheduled or emergency
maintenance events, or customer caused outages or disruptions.
> Customers may report service unavailability events of longer than
15 consecutive minutes, to Level 3 customer service within 48 hours
of the event. If the event is confirmed by Level 3 customer
service, the customer will receive a pro-rated service credit that
equals the time of the unavailability.
Page 12 of 18
<PAGE> 13
o 40 MS ONE-WAY DELAY GUARANTEE
> The Delay guarantee refers to the average delay parameters among the
Level 3 Gateway sites in the United States. It does not extend to the
customer's local access circuit, transit or peering connections, or to
circuits to the traffic exchange points, including NAPs and MAEs.
> Delay is measured as the average delay, over a calendar month, of
traffic between all major Gateways on the Level 3 U.S. Internet network.
> Level 3 will publicly report the Average Monthly Delay measurement for
the Level 3 U.S. Internet Network at the end of every month.
> If the customer reports that Level 3 has failed to meet the Delay
guarantee, and this is confirmed by Level 3 customer service, the
customer will be issued one day service credit.
NOTES:
> All measurements are based on monthly averages.
> These guarantees only apply to the Level 3 Internet Network. They do not
apply to NAP or transit connections, or to any traffic once it leaves the
Level 3 network.
> This SLA does not apply to periods of regularly scheduled or emergency
maintenance that Level 3 performs on its network or associated hardware and
software.
> Credits will only be applied to events where the Customer reports a network
performance failure to the Level 3 Customer Care organization.
> Customers must report any Network Performance failures (unavailability or
delay) within 48 hours (two business days) of the service affecting event
in order to receive a credit. Customers must report any Service Delivery
failures within five business days of the event.
<PAGE> 14
ADDITIONAL TERMS AND CONDITIONS FOR
MANAGED MODEM-DEDICATED, QUICKSTART AND TRANSIT SERVICES
The following additional terms and conditions are applicable where, pursuant to
a Customer Order Customer orders services required to allow access to
"Dedicated Services," "Dedicated Service with QuickStart" and "Transit
Services" as offered by Level 3 (the "Managed Modem Services") ordered by
Customer under any Customer Order.
1. Any state or federal tariffs applicable to the Managed Modem Services to be
delivered under any Customer Order are incorporated into the terms thereof. The
Managed Modem Services shall at all times be used in compliance with Level 3's
then-current Acceptable Use Policy and Privacy Policy, as amended by Level 3
from time to time and which are available through Level 3's web site.
2. In the event Customer orders "Dedicated Service," end user traffic will be
routed through and aggregated in Level 3's facility, sent to the Customer's
Premises via a dedicated circuit, and then routed to its final destination by
Customer. In the event that Customer orders "Transit Services," End User
traffic will be routed to Level 3's facility and then routed to its final
destination by Level 3 via the Internet. Dedicated Service with "QuickStart"
will initially be provisioned to the Customer in the same fashion as Transit
Services, until such time as Level 3 has provisioned the dedicated circuit to
send end user traffic from Level 3's facility to the Customer's Premises.
QuickStart will then be migrated to standard Dedicated Service. Customers
ordering Dedicated Services will be required to make a portion of the Premises
available to Level 3 for the placement of equipment necessary to provide such
Dedicated Services. For Dedicated Service, all Customer CPE as well as the
private line necessary to support this service will be ordered, installed and
managed by Level 3. Any telephone numbers assigned to Customer for the purpose
of providing Managed Modem Services hereunder shall be property of Level 3;
PROVIDED, however, that Level 3 shall be obligated to release such numbers to
Customer upon expiration or termination hereof if and only if Customer is then
in compliance with all of the terms contained herein or in the General Terms
and Conditions.
3. Section 1.1 of the General Terms and Conditions for Delivery of Service
notwithstanding, a Customer order for Managed Modem Service shall be accepted
by Level 3 once Level 3 has provisioned and tested the ports. Customer's
billing respecting said ports shall commence once tested and found to be
functioning properly by Level 3 notwithstanding Customer's: i) refusal to
accept the ports or ii) Customer's refusal to acknowledge communications by
Level 3 to Customer respecting the ports. Termination liability shall apply
once a Customer Order for these Services is accepted by Level 3.
4. Customer shall have the option to purchase twenty percent (20%) port
overage from Level 3. If ordered, Level 3 shall provision an additional twenty
percent (20%) of ports over the number of ports actually ordered by Customer to
accept Customer traffic in the event Customer's traffic bursts and its usage
exceeds the capacity of the ports actually ordered. In the event Customer
chooses not to purchase twenty percent (20%) port overage from Level 3, if the
Customer's traffic bursts as set forth above, Customer will get a busy signal
in the event its ordered capacity is exceeded.
5. Customer must utilize all Managed Modem ports provisioned hereunder at no
less than fifty percent (50%) of the capacity of such port. Customer agrees to
allow Level 3 to monitor Customer's utilization of the ports provisioned
herein. In the event Customer is Under-Utilizing (as defined below) such ports,
Level 3 retains the right to reclaim such ports after which Customer shall have
no further right to use the ports Under-Utilized. Termination liability shall
apply to any ports reclaimed pursuant to this paragraph.
For the purpose of this Section, "Under-Utilization" shall mean the use of less
than fifty percent (50%) of the capacity of any given port for any sixty (60)
day period as determined by Level 3. Under-Utilization shall not be applicable
to the first sixty (60) day period immediately following the provisioning of
any Managed Modem port.
6. The nonrecurring charges and monthly recurring rates for the Managed Modem
Services provided by Level 3 to Customer shall be set forth in each Customer
Order. Level 3 will dedicate the specified number of ports to Customer in the
Level 3 facilities as identified in each Customer Order. Customer may be
responsible for additional monthly charges if Customer's use of the Managed
Modem Services requires and utilizes more ports than the number committed to
and ordered by Customer.
7. The rates and other charges set forth in each Customer Order are
established in reliance on the term commitment made therein, and Customer
agrees to pay the same. In the event that Customer terminates Managed Modem
Services ordered in any Customer Order which is accepted by Level 3 or in the
event that the delivery of Managed Modem Services is terminated due to a
failure of Customer to satisfy the requirements set forth herein or in the
Customer Order prior to the end of the agreed term, Customer shall (unless
Customer
Page 14 of 18
<PAGE> 15
has made a Revenue Commitment) pay a termination charge equal to the percentage
of the monthly recurring charges for the terminated Managed Modern Services
calculated as follows:
a. 100% of the monthly recurring charge that would have been incurred for the
Managed Modem Service for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would have been incurred for the
Managed Modem Service for months 13-24 of the agreed term; plus
c. 50% of the monthly recurring charge that would have been incurred for the
Managed Modem Service for months 25 through the end of the agreed term.
Customer may, in the event that a Revenue Commitment is made and is then being
satisfied by Customer, terminate, rearrange or reconfigure the Managed Modem
Services ordered under a Customer Order without payment of the termination
charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges for such
termination, rearrangement or reconfiguration.
8. 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.
9. Level 3 makes the Service Level Agreement attached as Exhibit "A" respecting
Managed Modem Services.
Page 15 of 18
<PAGE> 16
Standard Service Level Agreement (SLA)
Release 1
MANAGED MODEM
Managed Modem service will be backed by a Service Delivery SLA.
NOTE: The total number of credits per month is limited to four days.
SERVICE DELIVERY SLA
- 30 Calendar Day Installation Guarantee for Customers buying Managed Modem
service in speeds from 64 Kbps - 1.544 Kbps within the Standard Service
Area.
- 45 Calendar Day Installation Guarantee for Customers buying Managed Modem
service in speeds from 3 Mbps - 45 Mbps within the Standard Service Area.
- Single toll-free number to reach Level 3 Customer Service for all customer
issues, including technical, billing, and product inquiries.
- Time to Respond - Within 30 minutes
- 2 hour calendar month Average Time To Repair (ATTR)
If Level 3 fails to meet any of the guarantees above, Level 3 will review all
reported failures at the end of the month, and calculate the applicable credits:
- Any customer inquiry to the Level 3 Customer Service Center that results
in a Time to Respond of >30 minutes will result in a one day service
credit when the customer notifies Level 3 of the failure.
- ATTR is calculated as a monthly average. All reported customer trouble
tickets will be totaled over the month, then the average time to close
each ticket will be calculated. If the ATTR is greater than 2 hours, the
customer will receive a one day service credit.
- Credit will only be applied to events where the Customer reports a failure
to the Level 3 Customer Care organization. Customers must report any
Service Delivery failures within five business days of the event.
Page 16 of 18
<PAGE> 17
ADDITIONAL TERMS AND CONDITIONS FOR
IP CROSSROADS
The following additional terms and conditions are applicable where, pursuant to
a Customer Order, Customer orders IP CrossRoads.
1. Any state or federal tariffs applicable to the IP CrossRoads Services to
be delivered under any Customer Order are incorporated into the terms thereof.
The IP CrossRoads Services shall at all times be used in compliance with Level
3's then-current Acceptable Use Policy and Privacy Policy, as amended by Level
3 from time to time and which are available through Level 3's web site.
2. The nonrecurring charges and monthly recurring rates for the IP CrossRoads
Services provided by Level 3 to Customer are set forth in each Customer Order.
3. The rates and other charges set forth in each Customer Order are
established in reliance on the term and/or volume commitment made therein, and
Customer agrees to pay the same. In the event that Customer terminates IP
CrossRoads Services ordered in any Customer Order which is accepted by Level 3
or in the event that the delivery of IP CrossRoads Services is terminated due
to a failure of Customer to satisfy the requirements set forth herein or in the
Customer Order prior to the end of the agreed term, Customer shall (unless
Customer has made a Revenue Commitment) pay a termination charge equal to the
percentage of the monthly recurring charges for the terminated IP CrossRoads
Services calculated as follows:
a. 100% of the monthly recurring charge that would have been incurred for the
IP CrossRoads Service for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would have been incurred for the
IP CrossRoads Service for months 13-24 of the agreed term; plus
c. 50% of the monthly recurring charge that would have been incurred for the
IP CrossRoads Service for months 25 through the end of the agreed term.
Customer may, in the event that a Revenue Commitment is made and is then being
satisfied by Customer, terminate, rearrange or reconfigure the IP CrossRoads
Services ordered under a Customer Order without payment of the termination
charge specified above: PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges applicable
to such termination, rearrangement or reconfiguration.
4. 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.
5. If Customer orders IP CrossRoads Services pursuant to a Customer Order,
the Customer shall be permitted to make two (2) changes to its Commitment Data
Rate each contract year, provided that such change be to a higher Committed
Data Rate.
6. Level 3 reserves the right, but does not undertake the obligation, to
provide any Customer or potential customer bound by a Nondisclosure Agreement
access to a list of (i) Level 3's Customers which are connected to the IP
Crossroads Intra-Gateway Exchange Network Platform; and/or (ii) Autonomous
Systems Internet Networks connected to the IP Crossroads On-Net Transport
Network Platform. By this Agreement, Customer consents to such disclosures.
Level 3 makes no guarantee of any Customer's willingness to exchange Internet
traffic with any other customer. Level 3 will, however, use reasonable efforts
to arrange an introduction between customers or prospective customers bound by
a Nondisclosure Agreement to facilitate an agreement between them respecting
the exchange of Internet traffic.
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 Level 3's IP Crossroads Service.
7. Level 3 makes the Service Level Agreement attached as Exhibit "A"
respecting IP Crossroads Service.
Page 17 of 18
<PAGE> 18
[LEVEL (3) COMMUNICATIONS LOGO]
SERVICE LEVEL AGREEMENT
Level 3 IP CrossRoads Service is backed by the following Service Level
Agreement. If the Level 3 Obligation is missed, the credit set forth below will
be issued to the Customer when requested.
<TABLE>
--------------------------------------------------------------------------------
<S> <C>
INSTALLATION - Level 3 guarantees installation of IP CrossRoads 1 day
Service in Level 3's standard service area, within the following time
frames upon Level 3's acceptance of a Customer order:
20 business days or less for Ethernet port speeds of 10Mbps, 100Mbps, or
1000Mbps terminating in Level 3 Colocation
--------------------------------------------------------------------------------
RESPONSE TIME - Level 3's response time to any issue reported to and 1 day
confirmed by Level 3 Customer Service will be 30 minutes or less. As
soon as an issue is reported, Level 3 will open a trouble ticket.
RESOLUTION TIME - Level 3's mean time to resolve ("MTTR") Customer 1 day
issues relating to the technical performance or nonperformance of
Level 3's IP CrossRoads Service will be 2 hours or less, on a monthly
average basis. MTTR is calculated by taking the monthly aggregate of
time to close all trouble tickets relating to the technical
performance of Level 3's IP CrossRoads Service, divided by the number
of trouble tickets opened that month.
The Response Time and Resolution Time Obligations are depicted on the
timeline below:
<--- 30 min.---> <------------- 2 hrs. ---------->
------------------------------------------------------------------------->
Customer Customer Response Time Resolution Time
Issue Notifies (ticket opened) (ticket closed)
Level 3
--------------------------------------------------------------------------------
100% SERVICE AVAILABILITY - Service Unavailability means an IP 1 day
CrossRoads outage was confirmed by Level 3 Customer Service. This
outage is reported by a Customer within 48 hours of the outage, which
relates to the Customer's access point on the Level 3 Internet
Network, including the Customer's Level 3-provided port and local
access circuit. Service Unavailability does not include outages
associated with maintenance events, customer-caused outages or
disruptions, the performance of Internet networks controlled by other
companies, or traffic exchange points that are controlled by other
companies. Customers will receive credits, calculated monthly as an
aggregate of all Service Unavailability events in 15-minute
increments.
--------------------------------------------------------------------------------
DELAY GUARANTEES - 40 ms one-way. Delay refers to the one-way average 1 day
delay over a calendar month of traffic between all major gateways on
the Level 3 U.S. Internet Network. Delay does not apply to Customer's
local access circuit, transit or peering connections, circuits to the
traffic exchange points, maintenance events, or to customer-caused
outages or disruptions. Customer may obtain a report from Level 3 if
there is a question whether a delay has occurred. This request must be
made within five (5) days from the last day of the month in question.
--------------------------------------------------------------------------------
</TABLE>
Contact Level 3 Customer Service toll-free at: 1-877-4LEVEL3 (877-453-8353)
for all issues, including technical, billing, and product inquiries.
THE TOTAL NUMBER OF CREDITS PER MONTH IS LIMITED TO FIVE (5) DAYS. CUSTOMER MUST
REQUEST CREDITS WITHIN FIVE DAYS OF THE END OF ANY MONTH TO RECEIVE CREDITS.
Page 18 of 18
