IP SERVICES AND DEDICATED ACCESS AGREEMENT
This IP Access Agreement (the "AGREEMENT") is made and entered into as of
September 15, 2000 (the "EFFECTIVE DATE") by and between At Home Corporation, a
Delaware corporation, with principal offices located at 450 Broadway Street,
Redwood City, California 94063, by and through its @Work division ("@WORK"), and
Educational Video Conferencing, Inc., a Delaware corporation, with principal
offices located at 35 East Grassy Sprain Road, Yonkers, NY 10710 ("PARTNER")
(collectively, the "PARTIES").
WHEREAS, @Work is in the business of, among other things, the provision of
various Internet data connectivity services;
WHEREAS, @Work and Partner desire that Partner use internally and offer for
sale selected @Work Services as set forth in EXHIBIT B and EXHIBIT C and
according to the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
1.1 "@WORK SERVICES" means the services to be provided by @Work to Partner
hereunder, including without limitation the Total IP Services and the Dedicated
Access Services, and as described in EXHIBITS B and EXHIBIT C.
1.2 "@WORK POP" means a location used by @Work as an aggregation point for
IP traffic within a particular region from and/or to Customers and the global
Internet which contains the necessary POP Equipment to provide the @Work
Services.
1.3 "CONNECTIVITY" means the physical or logical circuit that provides
connectivity from the Customer's or Partner's point of demarcation (internal
site of the CPE) up to the @Work point of demarcation (the @Work aggregation
router).
1.4 "COST-PLUS BASIS" means @Work's actual cost in providing any product or
service to Partner under this Agreement (e.g., the @Work Services), including
without limitation a reasonable allocation of @Work's overhead associated with
providing such product or service (e.g. local loop and CPE expenses), plus a
return on such cost to be determined at the time the product or service is
ordered.
1.5 "CPE" means the Customer premises equipment necessary for utilizing the
@Work Service(s), including without limitation routers, DSL modems, DSU/CSU's,
cabling, and dial-up modems.
1.6 "CUSTOMER" means an end user that purchases connectivity through
Partner.
1.7 "FEES" means the fees payable by Partner to @Work for each @Work
Service, as set forth in EXHIBIT A, EXHIBIT B, and EXHIBIT C.
1.8 "POP EQUIPMENT" means the related point of presence equipment for the
@Work Services, including without limitation routers, switches, hubs, servers
and equipment racks.
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2. OBLIGATIONS OF @WORK
2.1 @WORK SERVICES.
In exchange for payment of all applicable Fees by Partner, @Work will make
the @Work Services identified in EXHIBIT B and EXHIBIT C available to Partner.
@Work reserves the right in its sole discretion to make changes to the @Work
Services consistent with changes it makes to such @Work Services sold by @Work
and its other resellers, partners or agents, or as may be required by law and/or
regulatory changes, to accommodate changes in market conditions and/or lack of
available supply of such @Work Service components. @Work will adjust the fees
charged to Partner accordingly and provide Partner with reasonable notice in the
event of such change.
2.2 CUSTOMER CARE AND TECHNICAL SUPPORT. If @Work performs any services not
specified in EXHIBIT B or EXHIBIT C at Partner's request, including without
limitation the development of materials or tools for @Work Services related to
customer care or technical support, any such additional services shall be
subject to a mutually agreeable schedule and, unless otherwise agreed upon by
the parties, shall be provided on a Cost-Plus Basis. The Parties shall negotiate
in good faith the terms of such schedule, including without limitation mutually
agreeable terms related to each Party's intellectual property rights and royalty
rights in such tools or materials.
2.3 @WORK SUPPLY OPTION. Upon request by Partner, @Work will, to the extent
it has the rights to, purchase and resell CPE and/or Connectivity to Partner for
use with the @Work Services (and as set forth below, other purposes) on a
Cost-Plus Basis. In the event @Work does not have the rights to purchase and
resell any CPE and/or Connectivity to Partner when requested hereunder, @Work
will use reasonable efforts to obtain such rights to the extent Partner requests
such CPE and/or Connectivity for the @Work Services.
3. OBLIGATIONS OF PARTNER
3.1 CPE. Partner shall provide (either by purchase from @Work or other
vendors) all CPE necessary for the @Work Services. Except as otherwise agreed by
the parties in writing, only the CPE conforming to @Work specifications (to be
provided by @Work in a separate document) may be used to provide the @Work
Services.
3.2 NON-EXCLUSIVE RESELLER. @Work hereby grants Partner the right to be a
non-exclusive reseller of certain @Work Services, as described in EXHIBIT B and
EXHIBIT C, to Customers, subject to the terms and conditions of this Agreement.
Partner will have no right to sublicense or otherwise authorize any third party
to exercise Partner's reseller rights granted hereunder.
3.3. CONNECTIVITY. Partner shall obtain Connectivity from @Work, unless
otherwise agreed in writing, for the @Work Services as described herein.
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3.4 RESTRICTIONS ON PARTNER SERVICE. Partner's access to the @Work network
is subject to technical restrictions, and portions of the Partner's service may
be subject to blocking if adversely affecting the @Work network as determined by
@Work or its distribution affiliates (e.g. adversely affecting network traffic,
security, customer care, client software, etc.). The parties shall then work
together to resolve the problems or issues that adversely affect the @Work
network until both parties mutually agree in good faith that such portions of
the Partner's service will no longer have an adverse effect on the @Work
network. In the event that @Work blocks Partner's service pursuant to this
Section 3.4, @Work will suspend all monthly charges related to the services that
are being blocked.
4. OBLIGATIONS OF THE PARTIES
Except as the parties may otherwise agree, the respective operational
obligations of @Work and Partner in providing the services and related functions
to support the provision of the @Work Services are set forth in EXHIBIT B and
EXHIBIT C hereto.
5. INTELLECTUAL PROPERTY.
As between Partner and @Work, and subject only to the rights and/or
licenses expressly granted by @Work to Partner hereunder, @Work retains all
right, title, and license to all intellectual property rights associated with
the Connectivity and/or the @Work Service and any technology used to provide the
Connectivity and/or the @Work Service (including without limitation, hardware,
software, data, systems, and processes), including any intellectual property
developed by or on behalf of @Work in the course of providing the Connectivity
and/or the @Work Service.
6. CUSTOMER RELATIONSHIPS.
6.1 CUSTOMER ACCOUNTS. With respect to Customer accounts and subject to
applicable laws, Partner shall: (a) own the applicable Customer accounts and
shall be entitled to enter into, modify and terminate contracts with such
Customers for the provision of @Work Service(s), (b) be exclusively entitled to
bill, collect and, subject to Section 7, retain all revenues from the provision
of the @Work Services to such Customers, and (c) own all Customer data.
Notwithstanding the foregoing, @Work shall have the right to aggregate and
categorize such data for use in connection with (x) @Work's fulfillment of its
obligations under this Agreement, (y) promotional efforts relating to @Work
Services and, (z) subject to Partner's agreement, promotional efforts relating
to other products and services of @Work and its suppliers, such agreement not to
be unreasonably withheld.
6.2 ACCEPTABLE USE POLICY. If Partner or a Customer violates the terms of
@Work's acceptable use policy (located at
http://work.home.net/support/workaup.html), as revised from time to time by
@Work, @Work may in its sole discretion suspend or terminate the @Work Services
provided under this Agreement.
7. PAYMENT.
7.1 FEES. Partner agrees to pay the Fees for the @Work Services ordered by
Partner as set forth in the attached EXHIBIT A, EXHIBIT B, and EXHIBIT C, as
applicable. All Fees hereunder are stated, and shall be paid, in U.S. Dollars
only.
7.2 PAYMENT TERMS. All monthly access fee(s) ("MONTHLY ACCESS FEES") are
due and payable monthly and will continue through the term of this Agreement.
The Monthly Access Fee(s) are prepayments (except for the first month as
described below) and will be billed, and are to be paid, in advance of the
monthly period they cover. The first Monthly Access Fee payment(s)
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shall be billed and invoiced in arrears under terms as described in Sections 7.3
and 7.4 below and prorated based on the number of days in the month in which the
Service is activated (i.e., the number of days remaining in the month beginning
upon the Service Activation Date). Additionally, the non-recurring setup fees
("SETUP FEES") for each new Customer will also be billed and invoiced in arrears
under terms as described in 7.3 below. Notwithstanding the foregoing, any
changes in the @Work Service(s) as agreed in writing between the parties, may
result in a change to the Monthly Access Fees and/or additional Setup Fees. In
addition to the foregoing charges, Partner is obligated to pay any federal,
state or other government taxes (other than taxes on @Work's income) imposed in
connection with this Agreement.
7.3 INVOICING. Except as may otherwise be agreed upon, all payments are due
Net thirty (30) days from the date of @Work's invoice. @Work reserves the right
to charge Partner interest on any late payments under this Agreement, such
interest to be applied against the late payment amount at the lesser of (i) one
and one-half percent (1 1/2%) per month, or (ii) the maximum amount allowed by
law. Partner agrees to pay any such interest on late payment amounts within
thirty (30) days of being invoiced by @Work.
7.4 SERVICE ACTIVATION DATE. The "SERVICE ACTIVATION DATE" is used to
trigger the Monthly Access Fee(s) and means the earlier of: (i) the date on
which Internet access connectivity is first made available to the @Work
specified demarcation point for a Customer; or (ii) five (5) business days after
the earliest date on which Connectivity to be used for the @Work Service is
first ready to be installed for a Customer by @Work and/or the circuit provider,
which date will be provided to Customer by @Work or the circuit provider.
8. SALES AND MARKETING.
8.1 SALES. Partner shall coordinate and supervise the internal sales
organizations of Partner for the @Work Services.
8.2 CUSTOMER PRICING. Partner will determine the actual price charged for
the @Work Services sold by Partner to all Customers.
9. MARKET DEPLOYMENTS.
Partner may sell @Work Services into any current deployed markets, which
are set forth in the attached Exhibit D or future @Work deployed markets, as
determined by @Work in its sole discretion, for the associated service. @Work
will maintain control of all market deployments, however, @Work may modify
deployment plans at its discretion based on Partner's sales forecasts.
10. SUPPORT.
Partner is solely responsible for communicating with Customers regarding
Customer support issues as set forth in Exhibit B and Exhibit C. If, in @Work's
reasonable discretion, the Partner is creating or escalating excessive Customer
support tickets to @Work, or any of @Work's suppliers, that are (a) within the
Partner's control or ability to resolve or (b) created or escalated to the wrong
customer care organization, @Work shall advise Partner of such support issues
and if they continue @Work may charge the Partner a per incident fee for each
unique Customer care ticket generated at @Work's standard rates. These charges
can be applied for @Work Customer care tickets as well as any of @Work's
suppliers Customer care tickets. These incident fees will only be applied to the
Customer care tickets created or escalated in error.
11. IP ADDRESS BLOCKS.
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@Work will assign IP address blocks on a per market basis to Partner for
the "Total IP" Services (as described in Exhibit B) or on a per order basis for
each @Work Service requested. Partner can request as many addresses as its
business plan requires. Use of Partner's or others IP address blocks (if any)
for use in conjunction with @Work Services may not be available or guaranteed.
In accordance with InterNIC/ARIN guidelines and @Work addressing policies,
Partner shall be responsible for maintaining justification for their Customer
address allocations and notifying the InterNIC/ARIN of these allocations via
Shared WhoIs Project (SWIP) or other approved mechanisms. These address blocks
are non-portable and must be returned upon termination of this Agreement. @Work
shall make every effort to allocate contiguous address space for these
connections to maximize routing efficiency. However, @Work will not guarantee
contiguous space will always be available. The @Work guidelines for address
allocation shall also be bound by any InterNIC/ARIN guidelines which may be in
place at the time of allocation.
12. REPRESENTATIONS AND WARRANTIES.
12.1 BY @WORK.
@Work represents and warrants to Partner that:
(a) it has full power and authority to enter into this Agreement;
(b) Neither @Work nor its subcontractors warrant any connection to,
transmission over, nor results of, any software, network connection, facilities
or equipment not provided by @Work to Partner under this Agreement.
(c) @WORK MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT,
CONTINUOUS OPERATION OF THE @WORK SERVICES, SECURITY OF THE INTERNET CONNECTIONS
OR OPERATION OF THE PARTNER EQUIPMENT, OR ABILITY OF ANY BACKUP SERVICES TO
RE-ESTABLISH OPERATION OF PARTNER EQUIPMENT. @WORK DOES NOT WARRANT THAT THE
OPERATION OF THE @WORK SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
12.2 BY PARTNER.
Partner represents and warrants to @Work that:
(a) it has full power and authority to enter into this Agreement;
(b) PARTNER MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. CONTRACTUAL LIABILITY.
If @Work enters into any third party contractual agreements to supply
services to Partner and/or its Customers, subject to Partner's prior approval
which shall not be unreasonably withheld, Partner shall be liable for all term
commitments and obligations of that contract regardless of whether Partner
terminates all or a portion of its commitment to @Work under this Agreement.
14. LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO BREACH OF SECTION 16
(CONFIDENTIAL INFORMATION) AND OR SECTION 15 (INDEMNIFICATION) HEREIN, NEITHER
PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR COSTS OF PROCUREMENT
OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST DATA,
SYSTEM DOWNTIME, SERVICE INTERUPTION, INABILITY TO ACCESS DATA OR SERVICES,
HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO
CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY, AND NEGLIGENCE, AND WHETHER OR
NOT IT WAS OR
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SHOULD HAVE BEEN AWARE OF, OR WAS ADVISED OF, THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL EITHER PARTY'S LIABILITY TO THE OTHER HEREUNDER EXCEED THE
AMOUNT ACTUALLY PAID BY PARTNER TO @WORK HEREUNDER.
15. INDEMNIFICATION.
Partner will indemnify, defend and hold @Work, its affiliates, officers,
directors, employees, agents, successors and assigns harmless from and against
any and all losses, liabilities, damages and costs and all related costs and
expenses (including reasonable attorneys' fees) (collectively, "LOSSES") arising
out of or relating to:
(a) any claim alleging that any equipment, software or materials supplied
or made available to @Work by Partner in connection with the Connectivity and/or
the @Work Services or the Partner's services (collectively, the "PARTNER
MATERIALS") infringe upon the intellectual property rights of any third party,
except for any claim based upon: (i) the combination, operation, or use of any
Partner Materials with equipment, devices, or software not supplied by Partner;
or (ii) alteration or modification of any Partner Materials other than by
Partner;
(b) the breach by Partner of any material term of this Agreement; or
(c) any claim relating to or arising out of (i) any content or software
displayed, distributed or otherwise disseminated by Partner and/or its Customers
(including without limitation any third party content customers of Partner) in
any way connected to or through the Connectivity, @Work Service or Partner
service, and/or (ii) any malicious act or act in violation of any laws committed
by Partner using the Connectivity, @Work Service or Partner service, including
without limitation any malicious or unlawful act affecting any computer, network
equipment or Internet service; or
(d) any claim arising out of the malfunction of any @Work equipment or the
@Work network caused by Partner equipment or Partner personnel.
@Work will notify Partner promptly in writing of the claim, provide
reasonable assistance in connection with the defense and/or settlement thereof,
and permit Partner to control the defense and/or settlement thereof.
@Work will indemnify, defend and hold Partner, its affiliates, officers,
directors, employees, agents, successors and assigns harmless from and against
any and all losses, liabilities, damages and costs and all related costs and
expenses (including reasonable attorneys' fees) (collectively, "LOSSES") arising
out of or relating to:
(a) any claim alleging that any equipment, software or materials supplied
or made available to Partner, by @Work in connection with the Connectivity
and/or the @Work Services or the Partner's services (collectively, the "@WORK
MATERIALS") infringe upon the intellectual property rights of any third party,
except for any claim based upon: (i) the combination, operation, or use of any
Partner Materials with equipment, devices, or software not supplied by Partner;
or (ii) alteration or modification of any Partner Materials other than by
Partner;
(b) the breach by @Work of any material term of this Agreement; or
(c) any claim relating to or arising out of any malicious act or act in
violation of any laws committed by @Work using the Connectivity, @Work Service
or Partner service, including without limitation any malicious or unlawful act
affecting any computer, network equipment or Internet service.
Partner will notify @Work promptly in writing of the claim, provide
reasonable assistance in connection with the defense and/or settlement thereof,
and permit Partner to control the defense and/or settlement thereof.
16. CONFIDENTIAL INFORMATION
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16.1 "CONFIDENTIAL INFORMATION" means information that relates to the
purposes stated in Section 16.2 below or that is nevertheless disclosed as a
result of the Parties' discussions in that regard, and that should reasonably
have been understood by the party receiving such information ("RECIPIENT"),
because of legends or other markings, the circumstances of disclosure or the
nature of the information itself, to be proprietary and confidential to the
party disclosing such information ("OWNER"), to an Affiliate of the Owner or to
a third party. Confidential Information may be disclosed in written or other
tangible form (including on magnetic media) or by oral, visual or other means.
Without limiting the foregoing, Confidential Information shall include all
Customer Proprietary Network Information (excluding aggregate customer
information that does not identify Partner or its Customers) as that term is
defined in Section 222 of the Telecommunications Act of 1996, 47 U.S.C. ss. 222.
The term "AFFILIATE" means any person or entity directly or indirectly
controlling, controlled by, or under common control with a Party, where
"control" means ownership of more than fifty percent (50%) of the outstanding
voting shares of a Party.
16.2 A Recipient of Confidential Information may use the Confidential
Information only for the purpose performing its obligations or exercising its
rights under this Agreement. During the term of this Agreement and for a period
of two (2) years thereafter, Recipient shall protect such Confidential
Information from disclosure to others, using the same degree of care used to
protect its own confidential or proprietary information of like importance, but
in any case using no less than a reasonable degree of care. Recipient may
disclose Confidential Information received hereunder to (i) its Affiliates who
agree, in advance, in writing, to be bound by this Agreement, and (ii) to its
employees and independent contractors, and its Affiliates' employees and
independent contractors, who have a need to know, for the purpose of this
Agreement, and who are bound to protect the received Confidential Information
from unauthorized use and disclosure under the terms of a written agreement.
Confidential Information shall not otherwise be disclosed to any third party
without the prior written consent of the Owner.
16.3 The restrictions of this Agreement on use and disclosure of
Confidential Information shall not apply to information that: (a) was publicly
known at the time of Owner's communication thereof to Recipient; (b) becomes
publicly known through no fault of Recipient subsequent to the time of Owner's
communication thereof to Recipient; (c) was in Recipient's possession free of
any obligation of confidence at the time of Owner's communication thereof to
Recipient; (d) is developed by Recipient independently of and without reference
to any of Owner's Confidential Information or other information that Owner
disclosed in confidence to any third party; (e) is rightfully obtained by
Recipient from third parties authorized to make such disclosure without
restriction; or (f) is identified by Owner as no longer proprietary or
confidential.
16.4 In the event Recipient is required by law, regulation or court order
to disclose any of Owner's Confidential Information, Recipient will promptly
notify Owner in writing prior to making any such disclosure in order to
facilitate Owner seeking a protective order or other appropriate remedy from the
proper authority. Recipient agrees to cooperate with Owner in seeking such order
or other remedy. Recipient further agrees that if Owner is not successful in
precluding the requesting legal body from requiring the disclosure of the
Confidential Information, it will furnish only that portion of the Confidential
Information which is legally required and will exercise all reasonable efforts
to obtain reliable assurances that confidential treatment will be accorded the
Confidential Information.
17. TERM AND TERMINATION.
17.1 TERM. This Agreement will remain in effect for forty eight (48) months
from the Effective Date unless terminated earlier as set forth hereunder, and
will automatically renew at the end of such forty eight (48) month period for
additional twelve (12) month periods unless either party notifies the other of
its intention to terminate at least One Hundred and Twenty (120) days
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before the end of the original forty eight (48) months or any such subsequent
twelve (12) month period.
17.2 TERMINATION. This Agreement may be terminated at any time by the
non-breaching party in the event of a material breach of this Agreement by the
other party, if such breach is not cured in all material respects within sixty
(60) days after written notice thereof.
17.3 EFFECT OF TERMINATION. If Partner terminates this Agreement with
respect to any @Work Services for any reason, including bankruptcy, liquidation
or exiting the business, @Work will have first right of refusal to purchase all
active @Work Service(s) Customers from Partner. Both parties agree to negotiate
a fair price for these accounts using documented comparable transactions to the
extent possible. Partner's payment obligations for all Fees for any @Work
Services ordered by Partner as set forth hereunder during the term of this
Agreement and any Customer Equipment purchased from @Work shall survive any
termination or expiration of this Agreement. In the event of early termination
of this Agreement by Partner (other than as a result of (a) a material breach of
this Agreement by @Work or (b) the acquisition of Partner by a competitor in
@Work's core businesses), Partner will pay @Work a lump sum ("TERMINATION
CHARGE") equal to six months (or such lesser number of months as may then be
remaining in the term of this Agreement) of the current invoiced Monthly Access
Fees in addition to any committed Connectivity terms on any @Work Services past
the termination date, on the date of termination. Except as the parties may
otherwise agree (including but not limited to agreement on reasonable
compensation to @Work for support and any requested assistance during the wind
down period described below), upon the expiration or any termination of this
Agreement, @Work's obligations to provide the @Work Services and resell Customer
Equipment and Connectivity hereunder and Partner's obligations hereunder shall
terminate. Upon the expiration or any termination of this Agreement, the parties
will provide transition support to each other for up to one hundred and eighty
(180) days after termination based on payment of reasonable compensation in
advance for such support and the Partner and or the individual Customers are in
good standing.
17.4 SURVIVAL. The rights and obligations contained in Sections 5
(INTELLECTUAL PROPERTY); 16 (CONFIDENTIAL Information); 14 (LIMITATION OF
LIABILITY); 15 (INDEMNIFICATION); 17.4 (SURVIVAL); and 18 (MISCELLANEOUS) shall
survive any termination or expiration of this Agreement. In addition, Partner's
obligations to pay @Work for @Work Service provided by @Work will survive any
termination or expiration of this Agreement.
18. MISCELLANEOUS
18.1 NOTICES.
All notices permitted or required under this Agreement must be in writing
and shall be delivered as follows with notice deemed given as indicated (i) by
personal delivery when delivered personally, (ii) by overnight courier upon
written verification of receipt, (iii) by telecopy or facsimile transmission
when confirmed by telecopier or facsimile transmission, or (iv) by certified or
registered mail, return receipt requested, five days after deposit in the mail.
All notices must be sent to the addresses first described above or to such other
address that the Receiving Party may have provided for the purpose of notice in
accordance with this Section 18.1. Notices to EVCI shall be addressed to Dr.
John McGrath, President with a copy to Corporate Counsel.
18.2 FORCE MAJEURE.
Neither party will be liable hereunder by reason of any failure or delay in
the performance of its obligations hereunder (except for the payment of money)
on account of strikes, shortages, riots, insurrection, fires, flood, storm,
explosions, acts of God, war, governmental action, labor conditions,
earthquakes, or any other cause which is beyond the reasonable control of such
party.
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18.3 GOVERNING LAW AND VENUE.
This Agreement and any disputes arising under, in connection with, or
relating to this Agreement will be governed by the laws of the State of
California, excluding its conflicts of law rules. Any proceeding brought by one
party against the other will take place in, and the parties hereby submit to the
jurisdiction of, the state and federal courts located in San Mateo County,
California. The prevailing party in any such dispute will be entitled to recover
reasonable costs of suit (including the reasonable fees of attorneys and other
professionals).
18.4 RELATIONSHIP OF PARTIES.
Neither this Agreement nor the parties' business relationship established
hereunder will be construed as a partnership, joint venture or agency
relationship or as granting a franchise. Neither party will attempt to, or will
have the right to, legally obligate the other party.
18.5 SUBCONTRACTORS.
@Work may provide all or part of the Connectivity and/or @Work Services
through its affiliates, agents or subcontractors.
18.6 WAIVER AND MODIFICATION.
The failure of either party to require performance by the other party of
any provision hereof shall not affect the full right to require such performance
at any time thereafter; nor shall the waiver by either party of a breach of any
provision hereof be taken or held to be a waiver of the provision itself. This
Agreement may be modified only by a writing signed by authorized representatives
of both @Work and Partner.
18.7 SEVERABILITY.
In the event that any provision of this Agreement shall be unenforceable or
invalid under any applicable law or be so held by applicable court decision,
such unenforceability or invalidity shall not render this Agreement
unenforceable or invalid as a whole, and, in such event, such provision shall be
changed and interpreted so as to best accomplish the objectives of such
provisions within the limits of applicable law or applicable court decisions.
18.8 HEADINGS.
The paragraph headings appearing in this Agreement are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or extent of such paragraph or in any way affect such paragraph.
18.9 ASSIGNMENT.
This Agreement shall be binding and inure to the benefit of the parties
hereto and their respective successors and assigns. Partner shall not assign any
of its rights nor delegate any of its obligations under this Agreement without
the express written consent of @Work.
18.10 ENTIRE AGREEMENT.
This Agreement, including the Exhibits attached hereto, which are
incorporated herein by reference, is the entire agreement between the parties
regarding its subject matter. It supersedes and its terms govern, all prior
proposals, agreements, or other communications between the parties, oral or
written, regarding such subject matter.
18.11 NON-EXCLUSIVE.
@Work and Partner each acknowledge and agree that, except as may be
expressly agreed in writing between the parties, the rights granted to each
other in this Agreement are granted on a non-exclusive basis, and that nothing
in this Agreement prevents either party from entering into similar agreements
with third parties at any time at the sole discretion of each party.
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IN WITNESS WHEREOF, this Agreement has been executed below by duly authorized
officers of the parties as of the date first written above.
AT HOME CORPORATION EDUCATIONAL VIDEO CONFERENCES, INC.
By: /s/ Lawrence J. Link By: /s/ Dr. Arol I. Buntzman
--------------------------------- ----------------------------------
Name: Lawrence J. Link Name: Dr. Arol I. Buntzman
Title: VP Sales Title: CEO Chairman
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EXHIBIT A
MSA REVENUE COMMITMENT
1. FEES.
Partner commits to a total of $200,001 of Monthly Contribution Revenue ("MCR")
for @Work by 12-31-, 2001 ("COMMITMENT DATE"). The MCR is comprised the Monthly
DSL Fees, the Monthly T-1 Port Fees, Monthly DS-3 Port Fees, and Monthly Fast
Ethernet Fees (described in EXHIBIT B and EXHIBIT C) and billed by @Work to
Partner. In conjunction with this Commitment, Partner will receive the @Work
Tier 4 discount off of the MCR (as described in EXHIBIT B and EXHIBIT C).
Discounts do not apply to any third party charges or Set-up Fees invoiced as a
separate line item (e.g. equipment, T-1 & DS-3 local loops, DSL Provider fees,
Installation, Training, etc).
DISCOUNT TIERS
Tier 1 $ 1 $ 50,000
Tier 2 $ 50,001 $100,000
Tier 3 $100,001 $200,000
Tier 4 $200,001 $300,000
Tier 5 $300,001 $400,000
Tier 6 $400,001 +
2. COMMITMENT FEE.
Within 15 business days after the Commitment date, @Work will determine how the
MCR for the month of the Commitment date ("ACTUAL DISCOUNT TIER") compares to
the commitment revenue tier ("COMMITMENT REVENUE TIER"). If the Actual Discount
Tier is below the Commitment Revenue Tier that the Partner has been enjoying,
then @Work will assess a one-time reconciliation fee ("RECONCILIATION Fee").
This Reconciliation Fee will be based on the sum of all MCR billed by @Work
through the Commitment date and it will equal the difference between the
Commitment Revenue Tier and the Actual Discount Tier applied on a product by
product basis. If at any time, the Actual Discount Tier for a month exceeds the
Commitment Revenue Tier that the Partner has been enjoying, then the Commitment
Revenue Tier shall be deemed achieved and @Work will increase the Commitment
Revenue Tier and discount accordingly.
Example: The Partner signs a contract with @Work on 1/1/2000 and signs up for
a Commitment of $500,000 MCR by 12/31/2000. The Partner reaches a run
rate of $240,000 MCR as invoiced on 12/31/2000. During this
Commitment period (1/1/2000 - 12/31/2000), @Work bills the Partner a
total of $1,000,000 of MCR ($850,000 in Total IP DSL fees and
$150,000 in DS-3 Dedicated Access fees). Therefore, the ACTUAL
DISCOUNT TIER for Partner is 39% (DSL) and 10% (DS-3). The delta
between COMMITMENT REVENUE TIER and ACTUAL DISCOUNT TIER is 6%
(45%-39%) for Total IP DSL and 6% (19%-13%) for DS-3's Dedicated
Access. So the Reconciliation Fee would then be calculated as:
$850,000 x .06 = $51,000
$150,000 x .06 = $ 9,000
Total = $60,000
11
<PAGE>
EXHIBIT B
"TOTAL IP" SERVICES
@Work is offering Partner the ability to resell any @Work "Total IP" Service. As
each "Total IP" Service is created, Partner, under mutual agreement with @Work,
may create an addendum to this Exhibit (B-2, B-3 etc.) to cover the new service.
B- 1 "TOTAL IP DSL"
"TOTAL IP DSL" is an @Work Service that includes Connectivity and access to the
global Internet and allows Partner to purchase and resell a business class xDSL
solution to Customers. @Work has entered into a contractual relationship with a
leading DSL provider (the "DSL PROVIDER") to manage the purchase, delivery,
installation, configuration and maintenance of certain DSL services.
1. PRICING
All fees defined in this section are to be billed directly from @Work to
Partner. @Work will bill Partner for any Set-up Fees (CPE, Installations, Inside
Wiring etc.) provided through DSL Provider.
MONTHLY DSL FEES
144/160/Kbps *
200 Kbps *
416 Kbps *
784 Kbps *
1.04 Mbps *
1.54 Mbps *
DSL SETUP FEES
Installation *
TOTAL IP DSL
DISCOUNT LEVELS
Tier 1 *
Tier 2 *
Tier 3 *
Tier 4 *
Tier 5 *
Tier 6 *
TOTAL IP TRAINING FEES
Ordering process *
Sales primer *
Troubleshooting & escalation procedures *
IP allocation *
* T & E - Travel and Expense fees.
2. TERM.
The initial term for each Customer DSL order shall be a minimum of one (1) year
and shall commence on the date the circuit is installed and first available for
use. In the event of early
*Confidential portions
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termination of any order by Partner, Partner will pay a lump sum ("TERMINATION
CHARGE") equal to one hundred percent (100%) of the Fees for each order
terminated multiplied by the number of months remaining in the initial term of
the order.
3. CPE POLICIES AND PROCEDURES.
Partner shall purchase existing Total IP DSL services bundled with CPE as set
forth herein. @Work will serve as a reseller of CPE to Partner, which will serve
as the reseller to Customers and shall be responsible for all applicable taxes,
other than taxes based on the net income of @Work. The DSL Provider will manage
the purchase, delivery, installation, configuration and maintenance of the CPE
pursuant to its standard CPE distribution procedures set forth herein. Upon
installation of the CPE by DSL Provider, the Partner, or the Customer, as
applicable, will retain title to the CPE. The terms of warranty and replacement
program for CPE is as set forth below in Section 5.4. @Work will use
commercially reasonable efforts to ensure competitive CPE pricing from the DSL
Provider.
4. CPE PRICING.
Selection of the CPE shall be the decision of Partner, based on the list of
approved and compatible xDSL equipment set forth below. The CPE list may be
updated by @Work or DSL Provider from time to time. @Work will invoice Partner
at the price(s) set forth below; however, @Work may, at its discretion, adjust
Partner's CPE price if @Work's cost for such CPE from DSL Provider increases or
decreases. The table below sets forth the current list of DSL Provider-approved
CPE and prices as of the date hereof. @Work may change the equipment in this
list from time to time.
<TABLE>
<CAPTION>
AVAILABLE SPEEDS PRICE*
CPE
<S> <C> <C> <C>
Netopia R7100 (SDSL) 160, 200, 416, 784, 1040 AND T1 SPEED *
Netopia D7100 (SDSL) 160, 200, 416, 784, 1040 AND T1 SPEED *
Netopia R3100 (IDSL) 144 *
NetopiaM7100 (SDSL bridge) 160, 200, 416, 784, 1040 AND T1 SPEED *
FlowPoint 2200 (SDSL) 160, 200, 416, 784, 1040 AND T1 SPEED *
FlowPoint 2200B (SDSL Bridge) 160, 200, 416, 784, 1040 AND T1 SPEED *
FlowPoint 144 (IDSL) 144 *
3Com 840 (SDSL) 160, 200, 416, 784, 1040 AND T1 SPEED *
3Com SDSL Bridge 160, 200, 416, 784, 1040 AND T1 SPEED *
3Com IDSL Bridge 144 *
Xspeed 320 SDSL Bridge 160, 200, 416, 784, 1040 AND T1 SPEED *
</TABLE>
*Price includes shipping, configuration of encapsulation gateway IP address and
associated subnet masks (if applicable).
5. CPE ORDER AND DISTRIBUTION.
5.1 ORDER AND CANCELLATION. The Partner orders Total IP DSL through @Work's
existing approved methods (extranet or electronic bonding), including a
specified CPE type "bundled" together with that service. The terms and
conditions of sale set forth in this addendum apply to
*Confidential portions
13
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each order accepted or shipped by @Work and supersede the terms of Partner's
purchase order or other business forms and @Work's order acknowledgment or other
order confirmation documentation. Customer will only resell CPE as bundled with
Total IP DSL service or as replacement of existing CPE. Partner may cancel an
order up to ten (10) business days prior to scheduled installation of the xDSL
line by the ILEC without penalty upon written notice to @Work. If cancellation
of the CPE order is less than ten (10) business days prior to the scheduled
installation of the xDSL line by the ILEC, @Work may charge Partner a $25
administrative fee and any applicable shipping charges. If the CPE is not
received back within seven (7) business days, the unit will be billed to the
Partner at the standard rates. If the type of CPE is changed by Partner after
CPE has been shipped, Partner will be charged a $50 fee that includes shipping
charges. The foregoing CPE change fee will not apply when the CPE is changed due
to DSL service availability issues or any other situation in which DSL Provider
requires the change in equipment in order to provision DSL service, including
but not limited to where IDSL is the only DSL service that may be provisioned.
5.2 INSTALLATION AND PING PROCESS.
At the time of Partner's order to @Work, the Partner will provide @Work with the
Customer WAN IP address and subnet mask as well as the gateway IP address and
subnet mask. DSL Provider will use best efforts to PING (Packet Internet Groper)
the gateway router or server from the WAN interface on the Customer's CPE during
installation. If gateway device is not configured, or the IP information is not
provided, DSL Provider will perform a speed test through DSL Provider's DSLAM
and then complete the installation. If DSL Provider cannot complete either test
successfully, DSL Provider will use commercially reasonable efforts to notify
Partner immediately and resolve the issue while onsite. "Successful
Installation" (contingent on Partner using and providing to @Work the correct
public IP addresses) is defined as the point at which DSL Provider has
successfully completed a PING test from the WAN interface on the Customer's CPE
to the gateway router or server.
5.3 DISTRIBUTION.
DSL Provider will be responsible for all warehousing and distribution of bundled
CPE for Customer. The CPE will be shipped to the Customer once DSL Provider has
tested the xDSL circuit outside the Customer premises. DSL Provider will ship
the CPE from its hub distribution facility using next day delivery, and the
scheduled receipt of the CPE will occur prior to the completion of inside wiring
services. Shipping fees are included in the CPE price.
5.4 CPE WARRANTY AND REPLACEMENT PROGRAM.
DSL Provider will replace defective CPE within three (3) business days for the
period of one (1) year after the date of Installation as defined in Section 7.4
of the Agreement. There will be no charge to the Partner or Customer for this
coverage. After the one (1) year period has ended, replacement of defective CPE
will be under standard pricing terms as defined above. This coverage will only
apply to bundled CPE that have been deemed to have defects by the Partner and
DSL Provider's TACs (technical assistance centers). Customers who are
experiencing problems with their CPE, post-install will contact the Partner for
first level technical support. The Partner will check IP configuration and data
encapsulation. The Partner will conference in the DSL Provider TAC, if needed,
to check the DSL loop and perform more advanced troubleshooting. If the CPE is
determined to be defective and within one (1) year of the time of Installation,
the DSL Provider TAC will send a request to send out a replacement unit. DSL
Provider will request a replacement CPE configured with the IP information,
verifying with the Partner that it has not changed from the original Service
order, and ship to the Customer via two (2) day air. The replacement CPE will
arrive accompanied with instructions and materials for the return of the
defective CPE. If the defective CPE is not received back within seven (7)
business days, the replacement unit will be billed to the Partner.
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<PAGE>
6. CPE CONFIGURATION.
DSL Provider will provide the following preconfiguration for all CPE: Customer
WAN, gateway and associated subnet masks. All preconfiguration will be completed
at the DSL Provider distribution facility. There are no additional charges for
the above CPE configuration activities. If DSL Provider incorrectly configured
or shipped the wrong CPE, then DSL Provider will use commercially reasonable
efforts to resolve the issue while onsite if possible and at the earliest
possible date if not possible.
7. CPE SUPPORT.
Upon completion of a Successful Installation and the inside wire installation as
set forth herein, the Partner and Customer will be responsible for LAN support.
DSL Provider will monitor xDSL connectivity and assist the Partner in
determining whether any connectivity problem is caused by the CPE. If the
problem is associated with the CPE and it is within the manufacture's warranty
then DSL Provider will replace the CPE as defined in the CPE Warranty above. If
the CPE is not under warranty then the Partner and/or Customer will have the
right to have @Work or DSL Provider ship a replacement CPE under the standard
pricing terms defined above or work with the CPE vendor directly to determine
whether the CPE can be repaired. If dispatch of a DSL Provider technician or
emergency CPE replacement is required to replace or service the CPE, @Work will
bill the Partner for the dispatch and/or shipping costs, except in the case of
damages caused while CPE is in DSL Provider's possession, during shipment, or
during installation, in which case DSL Provider shall be responsible for related
repair, replacement, dispatch and/or shipping costs. Except as set forth in the
previous sentence, if dispatch of a DSL Provider technician is required for any
reason, Partner will be responsible for all charges associated therewith, unless
it is determined that the dispatch was caused by the DSL Provider's negligence,
in which case DSL Provider will be responsible for all such charges.
8. RESELLER REQUIREMENTS.
Partner will provide @Work with a reseller certificate for each state in which
Partner intends to resell @Work-provided CPE. If a reseller certificate is not
provided to @Work, all applicable state, county and federal taxes will be
included on Partner's invoice. Reseller certificates can be faxed or sent via
courier to AT HOME CORPORATION, 450 BROADWAY STREET, REDWOOD CITY, CA 94063,
ATTN: LEGAL DEPARTMENT.
9. PRICING FOR INSTALLATION AND OTHER NON-RECURRING SERVICES.
Installation of the Total IP DSL service requires DSL Provider to extend the
copper pair from the Incumbent Local Exchange Carrier (ILEC) demarcation point
to the Customer's required location (referred to herein as "INSIDE WIRING" or
"IW"). The list set forth below may be updated by @Work or @Work's DSL Provider
from time to time. @Work will invoice Partner at the price(s) set forth below;
however, @Work may, at its discretion, adjust Partner's price if @Work's cost
for such service from DSL Provider increases or decreases. The table below sets
forth the current list services as of the date hereof. @Work may change the
defined services in this list from time to time.
<TABLE>
<CAPTION>
<S> <C>
Standard Installation *
Nonstandard installation (materials extra) *
Reschedule visit due to lack of access *
Standard inside move *
Nonstandard inside move (materials extra) *
Outside move *
Cancellation of order - within phone company cancellation period *
* Confidential portions
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<PAGE>
Cancellation of order - outside of phone company cancellation period *
Site survey (on request) *
Speed change (only for down-grade in speed) *
Inside wiring repair (materials extra) *
Facilities management riser connection *
-------------------------------------------------------------------------------------------------------------
ss. Price is for jobs started and completed between 8AM and 6PM on weekdays. A
* surcharge applies for evenings and Saturdays, and a * surcharge for
Sundays and holidays.
</TABLE>
EXPLANATION OF NON-RECURRING CHARGES
Standard installation Identification of copper loop at the "MPOE" (minimum or
main point of entry); cross connection through existing
riser cable to satellite terminal serving the end-user;
wiring from the riser cable to Customer specified
location; termination on an RJ-45 or equivalent outlet.
Placement of the "DSLAD" (DSL Access Device),
connection to an existing 110v AC outlet and connection
of the DSLAD to the RJ outlet using a provided cord.
Continuity test from the DSLAD through the RJ jack and
an end-to-end test with DSL Provider's control center.
Materials included: RJ outlet, cord, and up to 50 feet
of Cat 5 four pair PVC wire.
Nonstandard Any installation requiring work beyond that included in
installation the standard installation or requiring multiple visits.
Reschedule visit Applies if DSL Provider's personnel are not able to
due to lack of perform an installation, move, or repair due to access
access not being provided by the Customer during the
agreed-upon period. This charge does not apply if a
request to reschedule is received at least 24 hours in
advance of an appointment scheduled during business
hours, or 48 hours in advance of an appointment
scheduled for evenings, weekends, or holidays.
Standard inside move Moving existing service within an area served by the
same phone company MPOE. This is limited to the
services provided in a standard installation, including
installing any necessary inside wiring and reinstalling
of the DSLAD.
Nonstandard inside Any movement of existing service within an area served
move by the same phone company MPOE that requires work
beyond that included in the standard inside move or
requiring multiple visits.
Outside move Moving existing service to an area serviced by a
DIFFERENT main point of entry; this includes installing
any necessary inside wiring and reinstalling the DSLAD.
This charge includes downgrading speed if technically
necessary.
Cancellation of order - An order is cancelled at least 10 (ten) business days
within phone company before the ILEC FOC (firm order commitment) date for
cancellation period provisioning the end-user loop.
Cancellation of order - An order is cancelled less than 10 (ten) business days
outside phone company before the ILEC FOC (firm order commitment) date for
cancellation period provisioning the end-user loop. This charge does not
apply if installation has been
*Confidential portions
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completed and paid for by Partner.
Site survey Identification of availability, type and length of
loops at end-user premises, and estimation of costs.
Performed upon request only.
Speed decrease The speed of service is decreased at Customer's
request.
Inside wiring repair The inside wiring has been damaged and DSL Provider is
asked to perform repairs. This includes, but is not
limited to, damage caused by negligence, fire, flood
and natural disasters."
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<PAGE>
10. OPERATIONAL OBLIGATIONS TO IMPLEMENT TOTAL IP DSL FOR PARTNER.
The list set forth below may be updated by @Work or @Work's DSL Provider from
time to time.
IMPLEMENTATION
PARTNER MARKET BY MARKET FORECAST - Partner will provide to @Work a
detailed market by market forecast of planned market rollouts
which will include all IP address allocation requirements for
each of those markets. Partner must comply with all ARIN
guidelines for address allocation and perform all
administrative tasks associated with these blocks. This
forecast will trigger all other implementation activities.
DSL PROVIDER DSL PROVIDER ORDER SYSTEM - DSL Provider will setup within
their backoffice system a "child account" within the @Work
Master Account for every market that Partner has forecasted to
sell into. This will include any username/passwords necessary
for Partner to access these accounts. NOTE: ACTIVATION OF
THESE "CHILD ACCOUNTS" ARE A PREREQUISITE FOR TRACKING ANY
ORDERS.
@WORK IP ADDRESS ALLOCATION - @Work will provide Partner the
associated IP address blocks requested as long as they are in
accordance with ARIN guidelines.
DSL PROVIDER PREQUALIFICATION TOOL. DSL Provider will make available the
Prequalification tool to Partner via @Work or directly.
@WORK TRAINING- @Work will provide all "Total IP DSL" related
training with Partner. Unless otherwise agreed in writing by
@Work, required Partner training will include:
o Ordering process through the @Work's order system
o Sales primer on DSL technology
o Basic troubleshooting and escalation procedures
o IP allocation
PARTNER END-USER PRODUCT DEVELOPMENT - Partner will have sole
responsibility for defining and developing the associated
Customer product that they sell.
DSL PROVIDER DSL CPE- THE DSL CPE must be fulfilled through DSL Provider's
existing bundling program.
PARTNER OTHER CPE - Any additional CPE is the sole responsibility of
Partner.
DSL PROVIDER INSIDE WIRING - IW must be completed by DSL Provider's IW
program.
PARTNER PRICING - Customer pricing will be at the discretion of
Partner.
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<PAGE>
11. OPERATIONAL OBLIGATIONS TO ACQUIRE A "TOTAL IP" DSL CUSTOMER
The list set forth below may be updated by @Work or @Work's DSL Provider from
time to time.
SALES AND SALES SUPPORT
PARTNER MARKETING - Responsible for lead generation and local market
awareness including promotion and advertising campaigns to
acquire Customers.
PARTNER PROSPECTING - Hire, train and develop direct sales
organization. Sales will qualify the leads, propose products,
and close the Customer.
PARTNER LOCAL LOOP PREQUALIFICATION. Partner will perform all
serviceability checks for potential Customers. A Local Loop
check determines whether a particular Customer is serviceable
by the DSL Provider.
PARTNER END-USER CONTRACT. Develop Customer contracts and purchase
orders that conform to the features and functions outlined in
the applicable Total IP DSL Exhibit.
PARTNER END-USER IP ADDRESS ALLOCATION. Partner will review Customer
IP requirements against ARIN guidelines and allocate addresses
accordingly. Partner must also perform all administrative
tasks associated with these allocations.
PARTNER PLACE ORDER WITH @WORK - Partner will enter each Customer
account directly into @Works order system.
@WORK AGGREGATION ROUTER/PVC CONFIGURATION. Configure the
aggregation device to route IP packets to and from the
Customer location.
PARTNER CUSTOMER INSTALLATION UPDATES. Communicate with DSL Provider
for updates on circuit installations via the DSL Provider
Partner Resource Center or other approved methods.
DSL PROVIDER INSTALL CIRCUIT TO MPOE. DSL Provider will coordinate with the
ILEC to provision the copper loop and physically install it to
the Customer's MPOE.
DSL PROVIDER CPE SHIPPED - DSL Provider will ship the requested CPE to the
Customer.
PARTNER OTHER CPE SHIPPED - If necessary, Partner will ship any
additional CPE, such as routers, to the Customer.
PARTNER SETUP ISP SERVICES - Partner is responsible for configuring
all Customer specific ISP services, such as DNS, Domain
Registration/Modifications, SMTP, POP3, and NNTP.
DSL PROVIDER INSIDE WIRING. Coordinate with Customer to ensure that the
circuit is extended from the MPOE to the requested location on
the Customer premise.
DSL PROVIDER LOCAL LOOP TROUBLESHOOTING. Tests the health of the circuit.
DSL PROVIDER CUSTOMER ACTIVATION - DSL Provider will notify @Work and
Partner when a Customer circuit is live and billable.
ON-GOING SUPPORT AND MAINTENANCE
PARTNER TIER 1 CUSTOMER SERVICE. Provide Tier 1 Customer Service for
Customers. Typical activities include: answering basic
Customer inquiries; call screening; billing issues; initial
trouble isolation and ticketing; move, add or change order
activity and other non-technical inquiries. Includes the
responsibility to hire, train, and support
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adequate Customer Service personnel to meet customer support
objectives. Ensure Customers requiring technical support are
forwarded to Tier 2 Technical Support after performing
appropriate triage.
PARTNER TIER 2 TECHNICAL SUPPORT. Provide Tier 2 Technical Support on
a 7X24 basis for Customers transferred from Tier 1 Customer
Service. Tier 2 Technical Support provides a more network
centric level of technical support for Customer Connectivity
including troubleshooting, DSL Provider local loop
troubleshooting, CPE, DNS, and routing support. Includes the
responsibility for hiring, training, and supporting adequate
Technical Support personnel. Ensure Customers requiring NOC
support be forwarded to the appropriate Tier 3 Support
organization after performing appropriate triage. Provide
standard technical support metrics and reports to ensure Tier
2 Technical Support is operating within defined parameters.
@WORK TIER 3 NETWORK SUPPORT. Provide Tier 3 Network Support
available on a 7x24 basis. Typical activities include
network-wide or regional backbone problems and aggregation
router support. Tier 3 is exclusively an infrastructure
organization that supports Partner's Tier 2 group. Tier 3 does
not have any direct contact with the Customer.
DSL PROVIDER TIER 3 DSL LOOP SUPPORT. Provide Tier 3 DSL loop support
available on a 7x24 basis. Typical activities include market
network problems (i.e. ATM network), local loop and inside
wiring issues. Tier 3 is exclusively an infrastructure
organization that supports Partner's Tier 2 group. Tier 3 does
not have any direct contact with the Customer.
PARTNER FORECASTS. Provide @Work quarterly good faith non-binding
forecasts indicating the number of potential Customers by
product, by market, as well as to provide @Work with adequate
information to manage the implementation, support, and
operational loads.
@WORK PARTNER BILLING - On a monthly basis, @Work will bill each
Partner directly for all @Work fees as well as all DSL
Provider fees.
MISCELLANEOUS
@WORK BACKBONE NETWORK INFRASTRUCTURE. Provide the network
infrastructure to provide Internet backbone access for the
@Work Total IP DSL product that require access to the global
Internet via Network Access Points and other peering points.
@WORK @WORK AGGREGATION ROUTERS. Provision and place aggregation
routers conforming to product definitions.
@WORK MARKET COVERAGE. PROVIDE PLANS FOR NEW TOTAL IP DSL MARKETS.
@WORK CAPACITY PLANNING. Provide ongoing capacity planning of
Backbone Network Infrastructure to ensure adequate systems,
hardware, and bandwidth.
20
<PAGE>
EXHIBIT C
DEDICATED ACCESS SERVICES
@Work may offer Partner the ability to utilize other @Work Dedicated Access
Services. If new Dedicated Access Services are required, Partner, under mutual
agreement with @Work, can create an addendum to this Exhibit (C-2, C-3 etc) to
cover the new service.
C- 1 T-1 DEDICATED ACCESS SERVICES
T-1 DEDICATED ACCESS SERVICES includes a T-1 Connectivity loop, @Work Service
Equipment and a T-1 port in the POP Equipment for traffic to the global
Internet. @Work through deployment of several @Work POPs and contracting with
different Connectivity providers are able to provide the Partner a total T-1
solution to purchase and resell to customers.
1. T-1 DEDICATED ACCESS PRICING
Monthly T-1 Port Fee
T-1 (1.544 Mbps) *
T-1 Setup Fee
Installation *
T-1 DEDICATED ACCESS
DISCOUNT LEVELS
Tier 1 *
Tier 2 *
Tier 3 *
Tier 4 *
Tier 5 *
Tier 6 *
2. @WORK SERVICE EQUIPMENT
Each T-1 Dedicated Access Service will include a T-1 compatible router on a loan
basis. The exact model and configuration will be at @Work sole discretion and
will be subject to change at any time. Customer shall use @Work Service
Equipment solely for the purpose of obtaining the T-1 Dedicated Access Services
and shall be responsible for installing it and using it in accordance with
@Work's instructions. All other equipment shall be the responsibility of
Customer and Partner.
2.1 MAINTENANCE, SUPPORT AND REPAIR SERVICE
Provided that Partner and Customer is in compliance with this
Agreement, @Work shall maintain, support and repair @Work Service
Equipment. In the event of any fault in @Work Service Equipment, @Work
and/or its agents shall arrange for the repair or replacement of the
@Work Service Equipment. The Partner and/or its Customer shall permit
@Work and/or its agents reasonable access to the @Work Service
Equipment upon reasonable notice. The Partner agrees to insure the
Customer uses reasonable care in maintaining @Work Service
*Confidential portions
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Equipment and shall bear responsibility for the cost and completion of
repairing such equipment in the event of (a) misuse, (b) failure to
exercise reasonable care, or (c) theft.
3. PROVISION OF CONNECTIVITY.
The Connectivity to be used for the T-1 Dedicated Access Service will be
provided by a third party ("Circuit Provider"). @Work will select the Circuit
Provider, order the Connectivity in its name on behalf of Partner, and
coordinate the installation of the Connectivity with the Circuit Provider. Each
T-1 Connectivity will be priced by @Work on a Customer by Customer basis. @Work
cannot designate and does not guarantee any Connectivity installation timeframe.
If the Partners Customer cannot for any reason obtain T-1 Connectivity, @Work
may terminate this specific T-1 Dedicated Access Service order without liability
or forfeiture of payment for any costs incurred on behalf of Partner.
4. NETWORK SECURITY
The Customer is solely responsible for maintaining security and control over
access to the T-1 Dedicated Access Services and to @Work Service Equipment used
to obtain the T-1 Dedicated Access Services, including @Work Service Equipment.
5. SERVICES RESTRICTIONS
The Partner's Customer may not resell any portion of the T-1 Dedicated Access
Service. Partner or Customer is responsible for all software and content
displayed and/or distributed by Partner or Customer, or by Customer agents, if
any.
6. TERM.
The initial term for each T-1 Dedicated Access Services shall be a minimum of
one (1) year and shall commence on the date the T-1 Dedicated Access Service is
installed and first available for use by the Customer as defined in Section 7.4
of the Agreement. After such term, the T-1 Dedicated Access Service shall extend
on a month-to-month basis, terminable at will by either party upon 30 days'
written notice. In the event of early termination of any T-1 Dedicated Access
Services by Partner, Partner will pay a lump sum ("TERMINATION CHARGE") equal to
one hundred percent (100%) of the Fees for each order terminated multiplied by
the number of months remaining in the initial term of the order. The Partner
will also be responsible for the complete term of the Connectivity associated
with the T-1 Dedicated Access Service. Upon termination of this Agreement, @Work
shall disconnect, or shall cause to be disconnected, the T-1 Dedicated Access
Services and the Connectivity. In addition, Partner shall return all @Work
Service Equipment, if provided, to @Work within thirty (30) days. If the Partner
fails to do this @Work will charge the Partner for the equipment
7. OPERATIONAL OBLIGATIONS
The ongoing support provided by @Work for this service will be limited to
monitoring the physical interface on the @Work aggregation router and any leased
line connections provisioned by @Work, and verifying that the @Work Aggregation
router is correctly configured. Any service not specifically listed below shall
be considered outside the scope of this product.
>> DNS @Work will not provide DNS services for Customer networks.
>> SMTP @Work will not provide SMTP relay or SMTP backup for Customers.
>> NNTP @Work will not provide a NNTP feed or a NNTP read/post access to
any of its servers as a part of this product.
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8. OPERATIONS AND ENGINEERING
>> @WORK Backbone Network Infrastructure. Provide the network infrastructure
to provide transit for Partner to the global Internet via NAPs and other
peering points.
>> @WORK Capacity Planning. Provide ongoing capacity planning of Backbone
Network Infrastructure to ensure adequate systems, hardware, and bandwidth.
>> @WORK @Work Dedicated IP Access Product Infrastructure. Provision and place
all @Work supplied hardware and systems required by the appropriate product
definitions.
>> @WORK @Work Aggregation Routers. Provision and place aggregation routers
conforming to product definitions.
>> @WORK Network Surveillance. Provide network surveillance of all @Work and
@Work network infrastructure and @Work aggregation routers.
>> @WORK Allocating the appropriate physical interface on the @Work Aggregation
router.
>> @WORK Verifying physical connectivity
>> @WORK Technical Support. Provide Network Support available on a 7x24 basis.
Responsibilities include but are not limited to, backbone problems,
aggregation router(s), local loop, CPE, DNS, and routing.
>> PARTNER Correct operation for all Partner owned equipment
>> PARTNER All configurations on Partner's equipment
>> PARTNER Technical Support. Provide Network Support available on a 7x24
basis. Responsibilities include but are not limited to, NNTP, SMTP, and DNS.
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C- 2 DS-3 DEDICATED ACCESS SERVICES
DS-3 DEDICATED ACCESS SERVICES includes a DS-3 Connectivity loop and a DS-3 port
in the POP Equipment for traffic to the global Internet. @Work through
deployment of several @Work POPs and contracting with different Connectivity
providers are able to provide the Partner a total DS-3 solution to purchase and
resell to customers.
1. DEDICATED DS-3 WHOLESALE PRICING
EFFECTIVE $/MBPS
CAPACITY PROVISIONED MONTHLY TIER OF MONTHLY MONTHLY
COMMIT TIER PORT CHARGE TIER CHARGE BURST CHARGE
----------- ----------- ------------ ---------------- ------------
3 DS-3 * * *
6 DS-3 * * *
9 DS-3 * * *
12 DS-3 * * *
15 DS-3 * * *
20 DS-3 * * *
30 DS-3 * * *
45 DS-3 * * *
Effective Traffic Measure
- the send and receive traffic from each Customer circuit will be sampled
every 5 minutes
- at the end of each month, the send and receive readings will be ranked
(separately) in descending order
- the top 5% of these readings (both send and receive) will be thrown out
- the largest remaining traffic reading (either send or receive) will be
the Effective Traffic for that month for that circuit
- If the traffic measure is greater than the committed tier, Customer will
be charged the monthly commitment plus the burstable rate times the
difference between the traffic measure and the Capacity Commitment Tier.
- Pricing Example 1: *
- Pricing Example 2: *
Other Charges:
Other DS-3 Dedicated Access Services Fees
Bandwidth Cap Charge *
Managed Router *
Installation (One-Time) *
*Confidential portions
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Installation (One-Time) $8,000
Bandwidth Limit Charge: Charge is incurred when customer desires to limit
port bandwidth to Committed Capacity Tier.
Circuit change orders are designed to provide the flexibility to change
circuit parameters (e.g. upgrades to higher speed ports, increase in
Capacity Commitment Tier). For the first year of this contract, no more
than one (1) upgrade circuit change order for an individual port will be
accepted within any one (1) month period. For the remainder of the
contract, no more than one (1) upgrade circuit change order for an
individual port will be accepted within any three (3) months rolling
period. No more than one (1) downgrade circuit change order for an
individual port will be accepted within any twelve (12) month rolling
period. The changes will be effective within 30 day of receipt of a
accurate change order.
DS-3 DEDICATED ACCESS
DISCOUNT LEVELS
Tier 1 *
Tier 2 *
Tier 3 *
Tier 4 *
Tier 5 *
Tier 6 *
2. @WORK SERVICE EQUIPMENT
DS-3 Dedicated Access Service may require specific CPE for a successful
installation. Each Customer application will have to be reviewed individually by
approved @Work personnel to determine the final requirements. All Equipment
purchased through @Work for the DS-3 Dedicated Access Service will be marked up
at 20% above cost.
3. PROVISION OF CONNECTIVITY.
The Connectivity to be used for the DS-3 Dedicated Access Service will be
provided by a third party ("Circuit Provider"). @Work will select the Circuit
Provider, order the Connectivity in its name on behalf of Partner, and
coordinate the installation of the Connectivity with the Circuit Provider. Each
DS-3 Connectivity will be priced by @Work on a Customer by Customer basis @Work
cannot designate and does not guarantee any Connectivity installation timeframe.
If the Partners Customer cannot for any reason obtain DS-3 Connectivity, @Work
may terminate this specific DS-3 Dedicated Access Service order without
liability or forfeiture of payment for any costs incurred on behalf of Partner.
4. NETWORK SECURITY
The Customer is solely responsible for maintaining security and control over
access to the DS-3 Dedicated Access Services and to @Work Service Equipment used
to obtain the DS-3 Dedicated Access Services, including @Work Service Equipment.
5. SERVICES RESTRICTIONS
*Confidential portions
25
<PAGE>
The Partner's Customer may not resell any portion of the DS-3 Dedicated Access
Service. Partner or Customer is responsible for all software and content
displayed and/or distributed by Partner or Customer, or by Customer agents, if
any.
6. TERM.
The initial term for each DS-3 Dedicated Access Services shall be a minimum of
one (1) year and shall commence on the date the DS-3 Dedicated Access Service is
installed and first available for use by the Customer as defined in Section 7.4
of the Agreement. After such term, the DS-3 Dedicated Access Service shall
extend on a month-to-month basis, terminable at will by either party upon 30
days' written notice. In the event of early termination of any DS-3 Dedicated
Access Services by Partner, Partner will pay a lump sum ("TERMINATION CHARGE")
equal to one hundred percent (100%) of the Fees for each order terminated
multiplied by the number of months remaining in the initial term of the order.
The Partner will also be responsible for the complete term of the Connectivity
associated with the DS-3 Dedicated Access Service. Upon termination of this
Agreement, @Work shall disconnect, or shall cause to be disconnected, the DS-3
Dedicated Access Services and the Connectivity.
7. OPERATIONAL OBLIGATIONS
The ongoing support provided by @Work for this service will be limited to
monitoring the physical interface on the @Work aggregation router and any leased
line connections provisioned by @Work, and verifying that the @Work Aggregation
router is correctly configured. Any service not specifically listed below shall
be considered outside the scope of this product.
>> DNS @Work will not provide DNS services for Customer networks.
>> SMTP @Work will not provide SMTP relay or SMTP backup for Customers.
>> NNTP @Work will not provide a NNTP feed or a NNTP read/post access to
any of its servers as a part of this product.
8. OPERATIONS AND ENGINEERING
>> @WORK Backbone Network Infrastructure. Provide the network
infrastructure to provide transit for Partner to the global Internet via
NAPs and other peering points.
>> @WORK Capacity Planning. Provide ongoing capacity planning of Backbone
Network Infrastructure to ensure adequate systems, hardware, and bandwidth.
>> @WORK @Work Dedicated IP Access Product Infrastructure. Provision and
place all @Work supplied hardware and systems required by the appropriate
product definitions.
>> @WORK @Work Aggregation Routers. Provision and place aggregation
routers conforming to product definitions.
>> @WORK Network Surveillance. Provide network surveillance of all @Work
and @Work network infrastructure and @Work aggregation routers.
>> @WORK Allocating the appropriate physical interface on the @Work
Aggregation router
>> @WORK Verifying physical connectivity
>> @WORK Technical Support. Provide Network Support available on a 7x24
basis. Responsibilities include but are not limited to, backbone problems,
aggregation router(s), local loop, CPE, DNS, and routing.
>> PARTNER Correct operation for all Partner owned equipment
>> PARTNER All configurations on Partner's equipment
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>> PARTNER Technical Support. Provide Network Support available on a 7x24
basis. Responsibilities include but are not limited to, NNTP, SMTP, and
DNS.
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C- 3 FAST ETHERNET DEDICATED ACCESS SERVICES
FAST ETHERNET DEDICATED ACCESS SERVICES includes a Fast Ethernet port in the POP
Equipment for traffic to the global Internet. The Fast Ethernet Dedicated Access
Service is intended for connection to the Partner's equipment for Partner's
internal use only and not for general resale unless given prior written approval
by @Work.
1. DEDICATED FAST ETHERNET PRICING
EFFECTIVE $/MBPS MONTHLY
CAPACITY PROVISIONED MONTHLY TIER OF MONTHLY BURST
COMMIT TIER PORT CHARGE TIER CHARGE CHARGE
----------- ----------- ------------ ---------------- ------
3 FE * * *
5 FE * * *
10 FE * * *
15 FE * * *
30 FE * * *
45 FE * * *
60 FE * * *
75 FE * * *
100 FE * * *
Effective Traffic Measure
- the send and receive traffic from each Customer circuit will be
sampled every 5 minutes
- at the end of each month, the send and receive readings will be ranked
(separately) in descending order
- the top 5% of these readings (both send and receive) will be thrown
out
- the largest remaining traffic reading (either send or receive) will be
the Effective Traffic for that month for that circuit
- If the traffic measure is greater than the committed tier, Customer
will be charged the monthly commitment plus the burstable rate times
the difference between the traffic measure and the Capacity Commitment
Tier.
- Pricing Example 1: *
- Pricing Example 2: *
*Confidential portions
28
<PAGE>
Other Charges:
OTHER FAST ETHERNET DEDICATED ACCESS SERVICES FEES
Installation (One-Time) *
Circuit change orders are designed to provide the flexibility to change
circuit parameters (e.g. upgrades to higher speed ports, increase in
Capacity Commitment Tier). No more than one (1) upgrade circuit change
order for an individual port will be accepted within any thirty (30) day
period for the first twelve (12) months and any three (3) months rolling
period there after. No more than one (1) downgrade circuit change order for
an individual port will be accepted within any twelve (12) month rolling
period. The changes will be effective within 30 day of receipt of an
accurate change order.
FAST ETHERNET DEDICATED
ACCESS DISCOUNT LEVELS
-----------------------
Tier 1 *
Tier 2 *
Tier 3 *
Tier 4 *
Tier 5 *
Tier 6 *
3. PROVISION OF CONNECTIVITY.
If the Partner leases space within the same collocation facility in which @Work
has leased space with POP Equipment deployed, then a cross connect ("Cross
Connect") shall be used for the Fast Ethernet Dedicated Access Services which
shall be provided by a third party collocation provider ("Collocation
Provider"). Except as otherwise agreed between the parties, the Partner will
order the Cross Connect and coordinate the installation with the Collocation
Provider. The Partner will arrange for the Collocation Provider to install and
terminate a Cross Connect within close proximity of the planned location of the
@Work Equipment. The Partner shall pay all one-time and recurring Cross Connect
usage charges.
4. NETWORK SECURITY
The Customer is solely responsible for maintaining security and control over
access to the Fast Ethernet Dedicated Access Services and to @Work Service
Equipment used to obtain the Fast Ethernet Dedicated Access Services, including
@Work Service Equipment.
5. SERVICES RESTRICTIONS
The Partner's Customer may not resell any portion of the Fast Ethernet Dedicated
Access Service. Partner or Customer is responsible for all software and content
displayed and/or distributed by Partner or Customer, or by Customer agents, if
any.
6. TERM.
*Confidential portions
29
<PAGE>
The initial term for each Fast Ethernet Dedicated Access Services shall be a
minimum of one (1) year and shall commence on the date the Fast Ethernet
Dedicated Access Service is installed and first available for use by the Partner
as defined in Section 7.4 of the Agreement. After such term, the Fast Ethernet
Dedicated Access Service shall extend on a month-to-month basis, terminable at
will by either party upon 30 days' written notice. In the event of early
termination of any Fast Ethernet Dedicated Access Services by Partner, Partner
will pay a lump sum ("TERMINATION CHARGE") equal to one hundred percent (100%)
of the Fees for each order terminated multiplied by the number of months
remaining in the initial term of the order. The Partner will also be responsible
for the complete term of the Connectivity associated with the Fast Ethernet
Dedicated Access Service. Upon termination of this Agreement, @Work shall
disconnect, or shall cause to be disconnected, the Fast Ethernet Dedicated
Access Services and the Connectivity.
7. OPERATIONAL OBLIGATIONS
The ongoing support provided by @Work for this service will be limited to
monitoring the physical interface on the @Work aggregation router and verifying
that the @Work Aggregation router is correctly configured. Any service not
specifically listed below shall be considered outside the scope of this product.
>> DNS @Work will not provide DNS services for Customer networks.
>> SMTP @Work will not provide SMTP relay or SMTP backup for Customers.
>> NNTP @Work will not provide a NNTP feed or a NNTP read/post access to any
of its servers as a part of this product.
8. OPERATIONS AND ENGINEERING
>> @WORK Backbone Network Infrastructure. Provide the network
infrastructure to provide transit for Partner to the global Internet via
NAPs and other peering points.
>> @WORK Capacity Planning. Provide ongoing capacity planning of Backbone
Network Infrastructure to ensure adequate systems, hardware, and bandwidth.
>> @WORK @Work Dedicated IP Access Product Infrastructure. Provision and
place all @Work supplied hardware and systems required by the appropriate
product definitions.
>> @WORK @Work Aggregation Routers. Provision and place aggregation
routers conforming to product definitions.
>> @WORK Network Surveillance. Provide network surveillance of all @Work
and @Work network infrastructure and @Work aggregation routers.
>> @WORK Allocating the appropriate physical interface on the @Work
Aggregation router
>> @WORK Verifying physical connectivity
>> @WORK Technical Support. Provide Network Support available on a 7x24
basis. Responsibilities include but are not limited to, backbone problems,
aggregation router(s), local loop, CPE, DNS, and routing.
>> PARTNER Correct operation for all Partner owned equipment
>> PARTNER All configurations on Partner's equipment
>> PARTNER Technical Support. Provide Network Support available on a 7x24
basis. Responsibilities include but are not limited to, NNTP, SMTP, and
DNS.
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EXHIBIT D
MARKET DEPLOYMENTS
1. TOTAL IP DSL MARKETS
Atlanta, GA (Norcross)
Baltimore, MD
Boston, MA
Chicago, IL
Dallas, TX
Detroit, MI
Los Angeles, CA
Miami, FL
New York / New Jersey
New York, NY
Phoenix, AZ
Pittsburgh, PA
Portland, OR
Philadelphia, PA
San Diego, CA
San Francisco Bay Area
Washington DC
2. T-1 DEDICATED ACCESS MARKETS
Baltimore, MD
Boston, MA
Chicago, IL
Cleveland, OH
Dallas, TX
Denver, CO
Detroit, MI
Hartford, CT
Houston, TX
Indianapolis, IA
Los Angeles, CA
Miami, FL
New York, NY
North New Jersey
Orange County, CA
Philadelphia, PA
Phoenix, AZ
Pittsburgh, PA
Portland, OR
Providence, RI
Salt Lake City, UT
San Diego, CA
San Francisco, CA
Seattle, WA
Washington DC
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3. DS-3 DEDICATED ACCESS MARKETS
Boston, MA
Chicago, IL
Dallas, TX
Los Angeles, CA
Miami, FL
New York, NY
Newark, NJ
Phoenix, AZ
San Diego, CA
San Francisco, CA
San Jose, CA
Seattle, WA
Washington, D.C.
4. FAST ETHERNET DEDICATED ACCESS MARKETS
San Jose, CA - Equinix
Ashburn, VA - Equinix
32
