<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 28, 2000
REGISTRATION NO. 333-94271
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 6
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TELOCITY DELAWARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 7370 77-0467929
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
10355 NORTH DE ANZA BOULEVARD
CUPERTINO, CALIFORNIA 95014
(408) 863-6600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SCOTT MARTIN
EXECUTIVE VICE PRESIDENT, CHIEF ADMINISTRATIVE OFFICER AND CORPORATE SECRETARY
10355 NORTH DE ANZA BOULEVARD
CUPERTINO, CALIFORNIA 95014
(408) 863-6600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C> <C>
MARGARET H. KAVALARIS, ESQ. MATTHEW J. STEPOVICH, ESQ. MALCOLM I. ROSS, ESQ.
JOHN M. FOGG, ESQ. SENIOR VICE PRESIDENT, LEGAL AFFAIRS BAKER & MCKENZIE
GRAY CARY WARE & FREIDENRICH LLP DAVID I. FRAZEE, ESQ. 805 THIRD AVENUE
400 HAMILTON AVENUE CORPORATE GENERAL COUNSEL NEW YORK, NEW YORK 10022
PALO ALTO, CALIFORNIA 94301 10355 NORTH DE ANZA BOULEVARD (212) 751-5700
(650) 833-2000 CUPERTINO, CALIFORNIA 95014
(408) 863-6600
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE(1) REGISTRATION FEE(2)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock, $0.001 par value.............................. $151,800,000 $40,076
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457(o) of the Securities Act of 1933 solely for
the purpose of computing the amount of the registration fee.
(2) Previously paid.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
This Amendment No. 6 is being filed for the sole purpose of filing certain
exhibits as set forth in Section 16(a) of Part II.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by Telocity, Inc. in connection
with the sale of Common Stock being registered. All amounts are estimates except
the SEC registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee........................................ $ 39,600
NASD filing fee............................................. 10,500
Nasdaq National Market listing fee.......................... 95,000
Printing and engraving costs................................ 325,000
Legal fees and expenses..................................... 365,000
Accounting fees and expenses................................ 425,000
Blue Sky fees and expenses.................................. 10,000
Transfer Agent and Registrar fees........................... 5,000
Miscellaneous expenses...................................... 24,900
----------
Total............................................. $1,300,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
The Eighth Article of the Registrant's Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
Article VIII of the Registrant's Amended and Restated Bylaws provides for
the indemnification of officers, directors and third parties acting on behalf of
the Registrant if such person acted in good faith and in a manner reasonably
believed to be in and not opposed to the best interest of the Registrant, and,
with respect to any criminal action or proceeding, the indemnified party had no
reason to believe his or her conduct was unlawful.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Amended and Restated Bylaws, and intends to enter into
indemnification agreements with any new directors and executive officers in the
future.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since inception, we have issued unregistered securities to a limited
number of persons as described below. For additional information concerning
these equity investment transactions, reference is made to the information
contained under the caption "Related Party Transactions" in the form of
prospectus included herein.
The sales of the following securities were deemed to be exempt from
registration in reliance on Rule 701 promulgated under Section 3(b) under the
Securities Act as transactions pursuant to a compensatory benefit plan or a
written contract relating to compensation.
(1) From July 1998 through February 29, 2000, the Registrant granted
stock options to purchase an aggregate of 15,243,878 shares of common
stock to employees and consultants with aggregate exercise prices
ranging from $0.05 to $12.00 per share pursuant to the Registrant's
stock option plan. As of February 29, 2000, 13,981,226 shares of
common stock have been issued upon exercise of options.
II-1
<PAGE> 4
(2) An aggregate of 7,100,000 shares of our common stock in December 1997
and June 1998 to Messrs. Olson, Solomon, Obenhuber, Grundy and
Stepovich in connection with Founder Stock Purchase Agreements. The
consideration received for such shares was $17,392.
The sales of the following securities were deemed to be exempt from
registration in reliance on Section 4(2) of the Securities Act as transactions
by an issuer not involving any public offering. The Registrant believes that the
transactions were exempt because the recipients of securities in each such
transaction represented their intention to acquire the securities for investment
only and not with a view to or for sale in connection with any distribution
thereof and appropriate legends were affixed to the share certificates and other
instruments issued in such transactions. All recipients either received adequate
information about Telocity or had access, through employment or other
relationships, to such information.
(1) An aggregate of 2,560,000 shares of common stock was issued in a
private placement in October 1997 to August Capital Associates L.P.
and August Capital Strategic Partners, L.P. in connection with the
Registrant's initial funding. The consideration received for such
shares was $1,280.
(2) An aggregate of 504,000 shares of our common stock in October 1997 to
Aspen Internet Systems, Inc. in exchange for the execution of a
patent license agreement. The consideration received for such shares
was $252.
(3) An aggregate of 13,150,000 shares of Series A preferred stock in a
private placement in July 1999 to entities affiliated with August
Capital L.P. and Bessemer Venture Partners, as well as other
qualified purchasers pursuant to a Series A preferred stock Purchase
Agreement. The consideration received for such shares was $6,575,000.
(4) An aggregate of 13,181,818 shares of Series B preferred stock in a
private placement in February and March 1999 to entities affiliated
with August Capital L.P., Bessemer Venture Partners, Mohr, Davidow
Ventures and RRE Investors, LLC, as well as other qualified
purchasers pursuant to Series B preferred stock Purchase Agreement.
The consideration received for such shares was $14,500,000.
(5) An aggregate of 24,332,061 shares of Series C preferred stock in a
private placement in December 1999 to entities affiliated with NBC
Internet, Inc., August Capital L.P., Bessemer Venture Partners, Mohr,
Davidow Ventures and RRE Investors, LLC, as well as other qualified
purchasers pursuant to a Series C preferred stock Purchase Agreement.
The consideration for such shares was $127,500,000.
(6) From March 1998 through December 1999 the Registrant issued to
Comdisco, Inc. warrants to purchase an aggregate of 1,054,506 shares
of preferred stock with an average exercise price of $1.23 per share
in connection with an equipment lease financing.
(7) In September 1998, the Registrant issued to Citizen's Telecom
Services Company LLC a warrant to purchase 765,018 shares of common
stock at an exercise price of $0.05 per share in connection with a
letter of intent to engage in a joint development effort.
(8) In March 1999, the Registrant issued to Vidovich-Cupertino Limited
Partnership a warrant to purchase 50,000 shares of common stock at an
exercise price of $0.11 per share in connection with a real property
lease.
(9) In May 1999 the Registrant issued to Meier Mitchell & Company a
warrant to purchase 252,272 shares of preferred stock at an exercise
price of $1.10 per share in connection with an equipment lease
financing.
(10) In June 1999, the Registrant issued to Heidrick & Struggles, Inc. a
warrant to purchase 268,856 shares of common stock at an exercise
price of $0.35 per share in connection with an executive search.
II-2
<PAGE> 5
(11) In November 1999, the Registrant issued to Ranbach Music, Ltd. a
warrant to purchase 20,000 shares of common stock at a price of $1.50
per share in connection with a license for the Registrant to use
certain music in connection with its marketing and other efforts.
(12) In November 1999, the Registrant issued to The Sobrato Group a
warrant to purchase 15,000 shares of common stock at an exercise
price of $1.50 per share in connection with a real property lease.
(13) In November 1999, in connection with bridge loans in advance of the
close of the Registrant's Series C preferred stock financing, the
Registrant issued to Ms. Hart and Mr. Olson warrants for 19,084
shares and 28,626 shares of preferred stock, respectively, with an
exercise price of $5.24 per share.
(14) In November 1999 the Registrant issued to Point Financial, Inc. a
warrant to purchase 32,599 shares of preferred stock at an exercise
price of $4.91 per share in connection with an equipment lease
financing.
(15) In December 1999 the Registrant issued to the National Broadcasting
Company, Inc. and NBC Internet, Inc. warrants for 850,191 shares and
1,039,122 shares of preferred stock, respectively, with an exercise
price of $5.24 per share.
(16) In February 2000, the Registrant issued to Comdisco, Inc. a warrant
to purchase 11,667 shares of common stock at an exercise price of
$9.00 per share in connection with a letter of credit.
(17) In February 2000, the Registrant issued to General Electric Company
warrants to purchase an aggregate of 200,000 shares of common stock
at an exercise price of $12.00 per share in connection with a Master
Broadband Services Agreement.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C>
1.1** Form of Underwriting Agreement
3.1** Restated Certificate of Incorporation of Registrant, as
amended, to be in effect after the offering
3.2** Bylaws of Registrant
4.1** Specimen of stock certificates
5.1** Opinion of Gray Cary Ware & Freidenrich LLP
10.1** Form of Indemnification Agreement between Registrant and
each of its directors and officers
10.2** 2000 Equity Incentive Plan and form of agreements thereunder
10.3** 2000 Employee Stock Purchase Plan
10.4** 2000 Outside Directors Stock Plan and form of agreements
thereunder
10.5** Lease between Registrant and Vidovich-Cupertino Limited
Partnership
10.6** Lease between Registrant and Lee Li Chun Koo
10.7** Lease between Registrant and The Sobrato Group
10.8** Second Amended and Restated Investors' Rights Agreement
10.9+** Product Manufacturing Agreement between Registrant and
Wellex Corporation
10.10+** Agreement for Services between Registrant and Telamon-IMS,
Inc.
10.11+** Agreement for Services between Registrant and the Sutherland
Group, Ltd.
</TABLE>
II-3
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C>
10.12** Employment Agreement between Registrant and Patti Hart
10.13** Employment Agreement between Registrant and Peter Olson
10.14** Employment Agreement between Registrant and Jim Morrissey
10.15** Employment Agreement between Registrant and Thomas Obenhuber
10.16** Employment Agreement between Registrant and James Rohrer
10.17** Employment Agreement between Registrant and Matthew
Stepovich
10.18** Employment Agreement between Registrant and Regina Wiedemann
10.19** Employment Agreement between Registrant and Kevin Grundy
10.20** Employment Agreement between Registrant and Jef Raskin
10.21** Employment Agreement between Registrant and Andrew Robinson
10.22** Employment Agreement between Registrant and Edward Hayes
10.23** Employment Agreement between Registrant and Scott Martin
10.24** Consultants Stock Option Plan and form of agreements
thereunder
10.25+** Market Development Agreement between Registrant and
BellSouth Business Systems, Inc.
10.26+ Private Line Service Level Agreement between Registrant and
Level 3 Communications, LLC
10.27+ Private Line Service Agreement between Registrant and MCI
WorldCom Communications, Inc.
10.28** Operating Agreement between Registrant and NBC Internet,
Inc.
10.29** Advertising Agreement between Registrant and the National
Broadcasting Company, Inc.
10.30** Advertising Agreement between Registrant and NBC Internet,
Inc.
10.31** Founder Stock Purchase Agreement between Registrant and
Peter Olson dated December 23, 1997
10.32** Founder Stock Purchase Agreement between Registrant and
Michael Solomon dated December 23, 1997
10.33** Founder Stock Purchase Agreement between Registrant and
Thomas Obenhuber dated December 23, 1997
10.34** Founder Stock Purchase Agreement between Registrant and
Matthew Stepovich dated December 23, 1997
10.35** Founder Stock Repurchase Agreement between Registrant and
Peter Olson dated June 1, 1998
10.36** Founder Stock Repurchase Agreement between Registrant and
Michael Solomon dated June 1, 1998
10.37** Founder Stock Purchase Agreement between Registrant and
Kevin Grundy dated June 10, 1998
10.38** Founder Stock Purchase Agreement between Registrant and
Thomas Obenhuber dated June 10, 1998
10.39** Founder Stock Purchase Agreement between Registrant and
Matthew Stepovich dated June 10, 1998
10.40** Secured Promissory Note between Registrant and Comdisco,
Inc. dated March 27, 1998
10.41** Secured Promissory Note between Registrant and Comdisco,
Inc. dated November 10, 1998
10.42** Secured Promissory Note between Registrant and Comdisco,
Inc. dated December 24, 1998
10.43** Subordinated Promissory Note between Registrant and
Comdisco, Inc. dated September 3, 1999
10.44** Subordinated Promissory Note between Registrant and
Comdisco, Inc. dated September 9, 1999
</TABLE>
II-4
<PAGE> 7
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C>
10.45** Subordinated Promissory Note between Registrant and
Comdisco, Inc. dated September 24, 1999
10.46** Subordinated Promissory Note between Registrant and
Comdisco, Inc. dated September 24, 1999
10.47** Subordinated Promissory Note between Registrant and
Comdisco, Inc. dated October 19, 1999
10.48** Subordinated Promissory Note between Registrant and MMC/GATX
Partnership No. 1 dated September 30, 1999
10.49** Master Broadband Network Services Agreement and Form of
Warrant Agreement between Registrant and General Electric
Company
10.50** Consent of Jupiter Communications
10.51** Consent of Forrester Research
10.52** Consent of International Data Corporation
21.1** Subsidiaries of the Registrant
23.1** Consent of PricewaterhouseCoopers LLP, Independent
Accountants
23.2** Consent of Counsel (see Exhibit 5.1)
23.3** Consent of Patton Boggs LLP
24.1** Power of Attorney
27.1** Financial Information Schedules
</TABLE>
- ---------------
+ Confidential treatment has been requested for certain portions of this
exhibit. The omitted portions have been separately filed with the Commission.
** Previously filed.
(B) FINANCIAL STATEMENT SCHEDULES
None.
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the
consolidated financial statements or notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the
Underwriters at the closing specified in the Underwriting Agreement certificates
in such denominations and registered in such names as required by the
Underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by a director,
officer or controlling person in connection with the securities being registered
hereunder, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE> 8
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of Prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-6
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Cupertino,
State of California, on the 28th day of March 2000.
Telocity, Inc.
By: /s/ EDWARD HAYES
------------------------------------
Edward Hayes, Executive Vice President
and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ PATTI HART* President, Chief Executive Officer March 28, 2000
- --------------------------------------------- and Director (Principal
Patti Hart Executive Officer)
/s/ EDWARD HAYES Executive Vice President and Chief March 28, 2000
- --------------------------------------------- Financial Officer (Principal
Edward Hayes Financial and Accounting
Officer)
/s/ DAVID COWAN* Director March 28, 2000
- ---------------------------------------------
David Cowan
/s/ PETER OLSON* Executive Vice President, Chief March 28, 2000
- --------------------------------------------- Technical Officer and Director
Peter Olson
/s/ ANDREW RAPPAPORT* Director March 28, 2000
- ---------------------------------------------
Andrew Rappaport
/s/ EDMOND SANCTIS* Director March 28, 2000
- ---------------------------------------------
Edmond Sanctis
/s/ MICHAEL SOLOMON* Director March 28, 2000
- ---------------------------------------------
Michael Solomon
/s/ RANDALL STRAHAN* Director March 28, 2000
- ---------------------------------------------
Randall Strahan
*By: /s/ EDWARD HAYES
---------------------------------------
Edward Hayes
Attorney-in-Fact
</TABLE>
II-7
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C>
1.1** Form of Underwriting Agreement
3.1** Restated Certificate of Incorporation of Registrant, as
amended, to be in effect after the offering
3.2** Bylaws of Registrant
4.1** Specimen of stock certificates
5.1** Opinion of Gray Cary Ware & Freidenrich LLP
10.1** Form of Indemnification Agreement between Registrant and
each of its directors and officers
10.2** 2000 Equity Incentive Plan and form of agreements thereunder
10.3** 2000 Employee Stock Purchase Plan
10.4** 2000 Outside Directors Stock Plan and form of agreements
thereunder
10.5** Lease between Registrant and Vidovich-Cupertino Limited
Partnership
10.6** Lease between Registrant and Lee Li Chun Koo
10.7** Lease between Registrant and The Sobrato Group
10.8** Second Amended and Restated Investors' Rights Agreement
10.9+** Product Manufacturing Agreement between Registrant and
Wellex Corporation
10.10+** Agreement for Services between Registrant and Telamon-IMS,
Inc.
10.11+** Agreement for Services between Registrant and the Sutherland
Group, Ltd.
10.12** Employment Agreement between Registrant and Patti Hart
10.13** Employment Agreement between Registrant and Peter Olson
10.14** Employment Agreement between Registrant and Jim Morrissey
10.15** Employment Agreement between Registrant and Thomas Obenhuber
10.16** Employment Agreement between Registrant and James Rohrer
10.17** Employment Agreement between Registrant and Matthew
Stepovich
10.18** Employment Agreement between Registrant and Regina Wiedemann
10.19** Employment Agreement between Registrant and Kevin Grundy
10.20** Employment Agreement between Registrant and Jef Raskin
10.21** Employment Agreement between Registrant and Andrew Robinson
10.22** Employment Agreement between Registrant and Edward Hayes
10.23** Employment Agreement between Registrant and Scott Martin
10.24** Consultants Stock Option Plan and form of agreements
thereunder
10.25+** Market Development Agreement between Registrant and
BellSouth Business Systems, Inc.
10.26+ Private Line Service Level Agreement between Registrant and
Level 3 Communications, LLC
10.27+ Private Line Service Agreement between Registrant and MCI
WorldCom Communications, Inc.
10.28** Operating Agreement between Registrant and NBC Internet,
Inc.
10.29** Advertising Agreement between Registrant and the National
Broadcasting Company, Inc.
10.30** Advertising Agreement between Registrant and NBC Internet,
Inc.
10.31** Founder Stock Purchase Agreement between Registrant and
Peter Olson dated December 23, 1997
10.32** Founder Stock Purchase Agreement between Registrant and
Michael Solomon dated December 23, 1997
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C>
10.33** Founder Stock Purchase Agreement between Registrant and
Thomas Obenhuber dated December 23, 1997
10.34** Founder Stock Purchase Agreement between Registrant and
Matthew Stepovich dated December 23, 1997
10.35** Founder Stock Repurchase Agreement between Registrant and
Peter Olson dated June 1, 1998
10.36** Founder Stock Repurchase Agreement between Registrant and
Michael Solomon dated June 1, 1998
10.37** Founder Stock Purchase Agreement between Registrant and
Kevin Grundy dated June 10, 1998
10.38** Founder Stock Purchase Agreement between Registrant and
Thomas Obenhuber dated June 10, 1998
10.39** Founder Stock Purchase Agreement between Registrant and
Matthew Stepovich dated June 10, 1998
10.40** Secured Promissory Note between Registrant and Comdisco,
Inc. dated March 27, 1998
10.41** Secured Promissory Note between Registrant and Comdisco,
Inc. dated November 10, 1998
10.42** Secured Promissory Note between Registrant and Comdisco,
Inc. dated December 24, 1998
10.43** Subordinated Promissory Note between Registrant and
Comdisco, Inc. dated September 3, 1999
10.44** Subordinated Promissory Note between Registrant and
Comdisco, Inc. dated September 9, 1999
10.45** Subordinated Promissory Note between Registrant and
Comdisco, Inc. dated September 24, 1999
10.46** Subordinated Promissory Note between Registrant and
Comdisco, Inc. dated September 24, 1999
10.47** Subordinated Promissory Note between Registrant and
Comdisco, Inc. dated October 19, 1999
10.48** Subordinated Promissory Note between Registrant and MMC/GATX
Partnership No. 1 dated September 30, 1999
10.49** Master Broadband Network Services Agreement and Form of
Warrant Agreement between Registrant and General Electric
Company
10.50** Consent of Jupiter Communications
10.51** Consent of Forrester Research
10.52** Consent of International Data Corporation
21.1** Subsidiaries of the Registrant
23.1** Consent of PricewaterhouseCoopers LLP, Independent
Accountants
23.2** Consent of Counsel (see Exhibit 5.1)
23.3** Consent of Patton Boggs LLP
24.1** Power of Attorney
27.1** Financial Information Schedules
</TABLE>
- ---------------
+ Confidential treatment has been requested for certain portions of this
exhibit. The omitted portions have been separately filed with the Commission.
** Previously filed.
<PAGE> 1
[LEVEL 3 COMMUNICATIONS LOGO] EXHIBIT 10.26
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 thereto 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
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 upon which it is anticipated that Services will be
available to Customer.
SECTION 1. CUSTOMER ORDERS
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 Commitment.
1.2 UNDERTAKING OF LEVEL 3. If Level 3 issued 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
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
Page 1 of 18
<PAGE> 2
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 frame 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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<PAGE> 3
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 rights 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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<PAGE> 4
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 of omissions or
negligence of its employees or agents, and regardless of whether such party has
been informed by the possibility of likelihood of such damages.
5.4 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 OR 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 purpose 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.
7.5 REMEDIES. Notwithstanding any other section of these Terms and Conditions,
the non-beaching party
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<PAGE> 5
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 delivery 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) (hereinafter "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).
Page 5 of 18
<PAGE> 6
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 Service 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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<PAGE> 7
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>
- ---------------------------------------------------------------------------------------------------------------
US ON-NET CITY STANDARD SERVICE DELIVERY INTERVALS
(US NPLS AND IPL)
- ---------------------------------------------------------------------------------------------------------------
Nx64K, 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 within 30 working 60 working 45 working 60 working 60 working ICB
SSA (either end) days days days days days
- ---------------------------------------------------------------------------------------------------------------
Off-net building outside 30 working 60 working 45 working 60 working 70 working ICB
SSA (within 50 miles) days days days days days
(either end)
===============================================================================================================
- ---------------------------------------------------------------------------------------------------------------
US DOMESTIC SERVED STANDARD SERVICE DELIVERY INTERVALS
OFF-NET CITY
- ---------------------------------------------------------------------------------------------------------------
DSI DS3 OC3
- ---------------------------------------------------------------------------------------------------------------
One side of the circuit 30 working days 45 working days 60 working days (70
is served by an off-net days would apply if
city POP the customer 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
- - Single toll-free number to reach Level 3 Customer Service for all customer
issues, including technical, billing, and product inquiries.
- - Mean 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.
Page 7 of 18
<PAGE> 8
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 DSO 1 x 10[4])
End-to-end link (Non-Level 3 access) < 1 x 10[-7] (Dependent on local
supplier)
* 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 Backbone)
> 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 1 x 10[-3]
(2) Severely Errored Seconds have bit error rates, to, or worse than 1 x 10[-3]
Page 8 of 18
<PAGE> 9
ADDITIONAL TERMS AND CONDITIONS
FOR TELEPHONY AND IP COLOCATION
The following additional 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 FOR CUSTOMER'S INTENDED PURPOSE.
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
even 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 the 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 term; 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 charge 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, service, 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
o 30 Calendar Day Installation Guarantee for Customers buying Dedicated Internet
Access in speeds from 64 Kbps - 1.544 Kbps within the Standard Service Area.
o 45 Calendar Day Installation Guarantee for Customers buying Dedicated Internet
Access in speeds from 3 Mbps - 45 Mbps within the Standard Service Area.
o Single toll-free number to reach Level 3 Customer Service for all customer
service issues, including technical, billing, and product inquiries.
o 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.
NETWORK PERFORMANCE SLA
o 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 an 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.
> Customer may report service availability event 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
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 used in providing the Managed Modem
Services shall be released to Customer upon expiration or termination hereof to
the extent that it is technically feasible for Level 3 to port packet switched
telephone numbers and then only if Customer is 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.
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 has made a Revenue
Commitment) pay a termination
Page 14 of 18
<PAGE> 14
charge equal to the percentage of the monthly recurring charges for the
terminated Managed Modem 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> 15
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
o 30 Calendar Day Installation Guarantee for Customers buying Managed
Modem service in speeds from 64 Kbps -- 1,544 Kbps within the Standard
Service Area.
o 45 Calendar Day Installation Guarantee for Customers buying Managed
Modem service in speeds from 3 Mbps -- 45 Mbps within the Standard
Service Area.
o Single toll-free number to reach Level 3 Customer Service for all customer
issues, including technical, billing, and product inquiries.
o 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.
Page 16 of 18
<PAGE> 16
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 Committed Data Rate
each contract year, provided that such change be 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 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> 17
[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.
- -------------------------------------------------------------------------------
Level 3 Obligation Credit
- -------------------------------------------------------------------------------
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 Collocation
- -------------------------------------------------------------------------------
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
issues relating to the technical performance or nonperformance of
Level 3's IP CrossRoads Service will be 2 hours or less, on a monthly 1 day
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.----->
O--------------------------------------------------->
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 GUARANTEE - 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.
- -------------------------------------------------------------------------------
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
<PAGE> 18
ADDENDUM TO SERVICE ORDER
This Addendum (the "Addendum") modifies that certain terms and Conditions
for Delivery of Service ("Terms and Conditions") version number 2.6 between
TELOCITY, INC., FORMERLY KNOWN AS MACH ONE ("Customer") and Level 3
Communications, LLC ("Level 3") dated 8/23/1999. Capitalized terms used but not
defined herein shall have the meanings set forth in the Terms and Conditions.
The terms and conditions contained in this Addendum modify the Terms and
Conditions in the following respects:
1. DISCONTINUANCE OF CUSTOMER ORDER BY CUSTOMER. The first sentence of
Section 3.4 shall be modified by replacing "eight (8)" with "four (4)" and
subsection (ii) shall be deleted in its entirety.
2. TITLE AND POWER. Section 4.3 shall be modified by replacing the first
sentence with the following: "Title to all equipment and devices supplied by
Level 3 and used by Level 3 in the furnishing of the Services, including all
terminal equipment, wires, lines, circuits, ports, routers, switches, channel
service units, data service units, cabinets, racks, private rooms and the like,
shall remain with Level 3."
3. ENTIRE UNDERSTANDING. Section 8.8 shall be modified by adding the
following sentence to the end of such section: "The Terms and Conditions and
the Addendum shall only be modified in writing, specifically referencing the
document to be modified and shall be signed by both parties."
4. RAMP PERIOD. "Ramp Period #1 shall mean that date [*] after the acceptance
of the first Customer Order for Services. "Ramp Period #2" shall mean that date
[*] after the acceptance of the first Customer Order for Services.
5. REVENUE COMMITMENT. Customer hereby commits that, by Ramp Period #1,
Customer will submit Customer Orders and pay the Monthly Recurring Charges for
no less than two hundred fifty thousand dollars ($250,000). Customer further
commits that, by Ramp Period #2, Customer will submit Customer Orders and pay
the Monthly Recurring Charges for no less than five hundred thousand dollars
($500,000). The Monthly Recurring Charges shall include those payments made to
Level 3 for Services pursuant to this Addendum. The commitment set forth above
is a "take or pay" commitment; in the event that Customer has not submitted
Customer Orders for the agreed amount on or prior to the respective Ramp Period,
Customer will be billed for, and will be obligated to pay the Monthly Recurring
Charges for a minimum term of three (3) years, from the acceptance of the first
Customer Order for Services.
6. SUBSTITUTE SERVICES. In the event Customer orders Services provided by
Level 3, on Level 3's existing network, and such Services are not available for
Customer's use within ninety (90) days after Customer has given written notice
to Level 3 requesting such Services, customer may order such Services from
another provider at Customer's sole cost and expense. The actual costs incurred
for such substitute Services shall be included in Customer's Revenue Commitment
as described above.
7. FUTURE SERVICES. The parties acknowledge that Customer desires to order
certain Services in Phoenix, Arizona, although Level 3 does not currently
provide such Services in Phoenix, Arizona. The parties further acknowledge that
when Level 3 provides such Services in Phoenix, Arizona, Level 3 will
reconfigure the then current Services being provided to Customer so that those
Services shall include Phoenix, Arizona with no additional installation charges
to Customer.
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 19
8. CROSS CONNECTIONS. Level 3 hereby agrees to provide for the termination of
third-party circuits via cross connects on a reasonable and non-discriminatory
basis. Level 3 cross connection charges described above shall not exceed [*] per
cross connect per month. Such cross connects shall be delivered to Customer at
Customer's collocation Space in a reasonably timely manner and in no case
greater than ten (10) business days following Level 3's receipt and acceptance
of a circuit facilities assignment and a design layout record from Customer.
9. BUILD-OUT PLAN. Attached hereto and incorporated herein as Exhibit A is a
Build-Out Staging Plan consisting of five parts in descending order of priority.
In the event the stages cannot be built-out by Level 3 simultaneously, no
charges will be due and payable for elements of a lower priority stage until
each of the elements of the higher priority stages have been completed by Level
3; provided, however, Customer shall be responsible and obligated to pay for
all actual usage of Services.
ADDITIONAL TERMS AND CONDITIONS FOR PRIVATE LINE SERVICE:
10. The Service Level Agreement for International/National Private Line is
deleted in its entirety and replaced with the following:
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
2
<PAGE> 20
PRIVATE LINE
[LEVEL 3 LOGO]
SERVICE LEVEL AGREEMENT
Level 3 Private Line Services (PLS) are backed by the following Service Level
Agreement (SLA). If the Level 3 obligation is missed, the credit set forth below
will be issued to the customer if requested, once verified by Level 3. The total
number of credits per month is limited to the Monthly Recurring Charge (MRC) for
the affected service. To receive credit if these obligations have not been met,
the customer must contact Level 3 Customer Service within five (5) days of the
end of the month for which credit is requested.
Level 3 provides a toll-free number connecting the customer to Level 3 Customer
Service for all issues -- including technical, billing, and product inquiries;
1-877-4LEVELS (1-877-453-8353).
ORDER ACCEPTANCE DEFINITION
An order is accepted by Level 3 (for the purposes of this Installation Guarantee
only) as soon as the Order Entry Specialist receives the order in Customer
Implementation Management (CIM).
INDIVIDUAL CASE BASIS (ICB) DEFINITION
Individual case basis (ICB) is defined as a service where a standard service
interval is not defined. For ICB categories, Level 3 will provide a Firm Order
Commitment Date (FOC) for services as soon as possible. The FOC date is
determined by a combination of Level 3 internal process as well as the dates
supplied to Level 3 by Level 3 vendors (where applicable). These vendor-supplied
FOC dates vary by vendor, region, and city.
CHANGES TO EXISTING ORDERS IN PROGRESS
The SLA implementation dates apply to intervals between original order date and
original due date. If a customer requests a change to an order date during the
implementation of a service, the following effects will occur;
CHANGES TO ORDERS IN PROGRESS
<TABLE>
<CAPTION>
CHANGE ORDER PLACED CHARGE EFFECT ON DELIVERY
- ------------------- ------ ------------------
<S> <C> <C>
1st Week of Order Process $250 SLA implementation clock will begin again once change is accepted
2nd Week of Order Process $250 SLA implementation clock will begin again once change is accepted
3rd Week of Order Process $250 SLA implementation clock will begin again once change is accepted
4th Week of Order Process $500 SLA implementation clock will begin again once change is accepted
< 3 Days Before Delivery 25% of MRC for SLA implementation clock will begin again once change is accepted
each week of
requested delay
</TABLE>
Effective 9/1/99 For internal Use Only--Level 3 Communications, LLC 1 of 3
3
<PAGE> 21
Level 3 will accept one requested change of delivery date per circuit order.
Level 3 will begin billing the service on the day that the service is made
available to the customer.
INSTALLATION OBLIGATIONS
Level 3 guarantees installation of its PLS within the following times beginning
with Level 3's acceptance of a customer order (see definition of order
acceptance on page 1) following Level 3's approval of client credit:
<TABLE>
<CAPTION>
National and International PLS (Gateway Cities Only)
- ------------------------------------------------------------------------------------------------------------------------------
LEVEL 3 OBLIGATION
- ------------------------------------------------------------------------------------------------
STANDARD SERVICE DELIVERY INTERVALS BY PRODUCT
(BUSINESS DAYS)
------------------------------------------------------ CREDIT
SERVICE STM-1/OC-3/
DS-1, E-1 DS-3 OC-12
------------------------------------------------------
NPLS IPL NPLS IPL NPLS IPL
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
On-Net Gateway-to-Gateway, 20 20 20 20 20 20 One (1) day for
100% Level 3 Fiber each day missed
- ------------------------------------------------------------------------------------------------ (up to 4 days total
Non-Level 3 Fiber Between 40 40 60 60 ICB ICB credit)
Gateways or Off-Net Within SSA
(Either End)
- ------------------------------------------------------------------------------------------------------------------------------
Outside SSA (<50 miles) 40 ICB ICB ICB ICB ICB
(Either End)
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
U.S. Metropolitan PLS
- ------------------------------------------------------------------------------------------------------------------------------
LEVEL 3 OBLIGATION
- ------------------------------------------------------------------------------------------------------ CREDIT
<S> <C> <C>
SPEED OF ON-NET BUILDING SERVICE INTERVAL* OFF-NET BUILDING SERVICE INTERVAL*
SERVICE
- ------------------------------------------------------------------------------------------------------
E-1** 20 business days 45 business days One (1) day for
- ------------------------------------------------------------------------------------------------------ each day
DS-1 20 business days 40 business days missed (up to
- ------------------------------------------------------------------------------------------------------ 4 days total
DS-3 20 business days 60 business days credit)
- ------------------------------------------------------------------------------------------------------
STM-1 20 business days Individual case basis
- ------------------------------------------------------------------------------------------------------
OC-3 20 business days Individual case basis
- ------------------------------------------------------------------------------------------------------
OC-12 20 business days Individual case basis
- ------------------------------------------------------------------------------------------------------
OC-48 Individual case basis Individual case basis
- ------------------------------------------------------------------------------------------------------
OC-192 Individual case basis Individual case basis
- ------------------------------------------------------------------------------------------------------
</TABLE>
* Service interval dates exclude any additional riser infrastructure within a
building required to reach the customer suite (where this infrastructure is
not already in place).
**E-1 Off-Net Metro Private Line is not a stand-alone service in the U.S. in
the U.S., this service is sold only in conjunction with an International
Private Line.
- --------------------------------------------------------------------------------
Effective 9/1/99 For Internal Use Only--Level 3 Communications, LLC 2 of 3
<PAGE> 22
AVAILABILITY OBLIGATIONS
Level 3 makes the following additional guarantees respecting it's PLS:
Private Line Services Availability
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
LEVEL 3 OBLIGATION CREDIT*
- --------------------------------------------------------------------------------
<S> <C>
99.99% SERVICE ABILITY GUARANTEE*
Service Unavailability refers to a period during which there is a break in
transmission, reported to and confirmed by Level 3 Customer Service. The start
of the break is signaled by the first of ten consecutive severely erred seconds
("SESs"), as defined below, and the end is signaled by the first of ten
consecutive non-SESs. An SES is a second with a bit error ratio of greater than
or equal to 1 in 1000. Service Unavailability does not include SESs associated
with maintenance events, customer-caused SESs or SESs caused by companies other
than Level 3. Customers will receive credits, calculated monthly as an
aggregate of all Service Unavailability events, in accordance with the chart
below:
- --------------------------------------------------------------------------------
Service unavailable < 15 minutes no credit
- --------------------------------------------------------------------------------
Service unavailable 15 minutes-8 hours 3 hours credit*
- --------------------------------------------------------------------------------
Service unavailable 8-12 hours 12 hours credit*
- --------------------------------------------------------------------------------
Service unavailable 12-16 hours 18 hours credit*
- --------------------------------------------------------------------------------
Service unavailable 16-24 hours 24 hours credit*
- --------------------------------------------------------------------------------
</TABLE>
*The total number of credits per month is limited to the Monthly Recurring
Charge (MRC) for the afflicted service.
Service Availability is calculated from the ingress of the Level 3 Network to
the egress of the Level 3 network. Where a customer is served directly by the
Level 3 Metro networks (lit by Level 3 fiber) this parameter is extended to the
customer building. Where we are dependent upon a third party for local
connectivity to the backbone, the availability of 99.99% is applicable from
Level 3 Gateway to Level 3 Gateway. For circuits terminating in Germany, the
local loop will hold, and the availability target of 97.5% is applicable.
Please see note on Germany below.
*NOTE: If the customer has signed a contract governed by German law, and/or
Private Line service is provisioned in Germany, the following Availability
Guarantee shall instead apply:
LOCAL LOOP GUARANTEE: 97.5% ANNUAL AVAILABILITY
The unavailability time is calculated as the total number of outages a customer
experiences during a calendar month. The maximum unavailability time may vary
depending on the total number of days in the month. Example, 352-day year, the
unavailability maximum would be 211 hours. If Level 3 exceeds the maximum
availability time of 211 hours over the first 12 months of the customer's
contract, then Level 3 would be liable to pay the customer service credits for
the unavailability time exceeding 211 hours.
Effective 9/1/99 For Internal Use Only - Level 3 Communications, LLC 3 of 3
<PAGE> 23
ADDITIONAL TERMS AND CONDITIONS FOR TELEPHONE AND IP COLOCATION:
11. Section 8 shall be modified by adding the following sentence to the end of
such section: "Level 3 agrees to pay for all actual reinstallation charges
associated with a change in Customer's Space pursuant to this Section 8."
12. ROOF RIGHTS. "Level 3 shall use reasonable efforts to provide contact names
and numbers to Customer to facilitate Customer's efforts in obtaining roof
rights on various Level 3 Gateway facilities."
IN WITNESS WHEREOF, the parties agree to the foregoing by executing this
Addendum below, effective as of the date first set forth above.
CUSTOMER ACCEPTANCE LEVEL 3 ACCEPTANCE
By: /s/ Peter Olson By:
------------------------------ --------------------------------
Its: [Illegible] Its:
------------------------------ -------------------------------
Date: 9/02/99 Date:
----------------------------- ------------------------------
6
<PAGE> 24
Level 3 Deployment
All pricing is based on 3 year term and $500,000 monthly volume commitment.
Level 3 will give Telocity a 12 month ramp to reach this volume.
<TABLE>
<CAPTION>
# of Year Year
Collocation Racks NPA/NXX Address Circuits Price 2 3
- ----------- ----- ------------------------------------------ -------- ----------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
[*]
STAGE 5
Phoenix** 1 n/a OC3 to Phoenix to
Los Angeles and
Phoenix to Dallas
</TABLE>
** When Phoenix is available we wish to re-route the Dallas to Los Angeles link
via Phoenix.
Level 3 will address this and provide an estimate date for a Phoenix gateway.
We will require roof rights/access in all locations for the purpose of
installing a Skycache Satellite Feed Requirement under review.
We also require the ability to terminate circuits from 3rd party vendors at
each of these locations. Approved.
* San Jose Location as Telocity's New Offices on 10355 N. DeAnza, Cupertino.
OC3 local loop pricing from Level 3 Sunnyvale gateway to 10355 N. DeAnza
requires special pricing. [5-10 business days]
All Stages are to be built out simultaneously.
Billing of stages. However delivery is to be completed in staged order for the
purposes of billing.
The whole of stage 1 must be completed before billing starts on any portion of
the stage 1 build. The whole of stage 1 must be completed before billing will
commence on stage 2 and so on with stage 3 Approved. However, Telocity will be
billed for usage of any service.
Cableset pricing is the same as original proposal [$525 per each]. Qty. 17
cabinets = $8,925 per month
Bandwidth usage priced at 10-24 Mbps tier. [9Mbps shown here plus existing
usage in Chicago]
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 25
Telocity, Inc. Customer Order
Dated: 8/23/99
-------------
<TABLE>
<S> <C> <C> <C> <C> <C>
10030 Telephony Colocation [*] [*] [*] [*]
10031 Telephony Colocation [*] [*] [*] [*]
Total: [*] [*] [*]
CUSTOMER COMMITMENT
Volume: $500,000.00 Term 3 Year Ramp Up (Months) 12
CUSTOMER APPROVAL:
</TABLE>
This Customer Order is governed by the Level 3 Communications, LLC ("Level 3")
General Terms and Conditions for Delivery of Service, its attachments, addenda,
and Level 3 Quote Number 000008236 dated 8/17/98, all of which are attached
hereto and referred to collectively as "the Agreement." All of the terms,
conditions and definitions set forth in the Agreement are hereby incorporated
into this Customer Order. 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.
Other than the Agreement and the provisions set forth in this Customer Order,
there are no other agreements, promises or understandings, whether written or
verbal, relating to the subject matter hereof, which are not set forth in the
Agreement or the Customer Order.
Telocity, Inc.
Authorized Signature: /s/ PETER OLSON
Name: Peter Olson
Title: C.T.O.
Level 3
Authorized Signature:
Name:
Title:
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 26
[LEVEL (3) LOGO]
TERM VOLUME
COMMITMENT COMMITMENT
3 Year $500,000.00
Company Name: Telocity
Address: 10355 N DE ANZA BLVD
CUPERTINO, CA 95014-2027
Route Number: 000008236
<TABLE>
<CAPTION>
Qty. Name/Gateway Product Cd Description Term Amount Net NRC Per Unit 1st Year MRC 2nd Year MRC 3rd Year MRC
- ---- ------------- ---------- --------------- ------ -------------- --------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[*]
</TABLE>
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
1
<PAGE> 27
[LEVEL 3 LOGO]
PRICE QUOTE
<TABLE>
<CAPTION>
Qty. Name/Gateway Product Cd Description Term Amount Net NRC Per Unit 1st Year MRC 2nd Year MRC 3rd Year MRC
- ---- ------------ ---------- ----------- ---- ------ ------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[*]
</TABLE>
2
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 28
[LEVEL(3) LOGO]
PRICE QUOTE
<TABLE>
<CAPTION>
Qty. Name/Gateway Product Cd Description Term Amount Net NRC Per Unit 1st Year MRC 2nd Year MRC 3rd Year MRC
- ---- ------------ ---------- ----------- ---- ------ ------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[*]
</TABLE>
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 29
[LEVEL(3) LOGO]
PRICE QUOTE
<TABLE>
<CAPTION>
Qty. Name/Gateway Product Cd Description Term Amount Net NRC Per Unit 1st Year MRC 2nd Year MRC 3rd Year MRC
- ---- ------------ ---------- ---------------- ---- ---------- --------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[*]
</TABLE>
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
4
<PAGE> 30
[LEVEL(3) LOGO]
PRICE QUOTE
<TABLE>
<CAPTION>
Qty. Name/Gateway Product Cd Description Term Amount Net NRC Per Unit 1st Year MRC 2nd Year MRC 3rd Year MRC
- ---- ------------ ---------- ---------------- ---- ---------- --------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[*]
</TABLE>
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
5
<PAGE> 31
[LEVEL(3) LOGO]
PRICE QUOTE
<TABLE>
<CAPTION>
Qty. Name/Gateway Product Cd Description Term Amount Net NRC Per Unit 1st Year MRC 2nd Year MRC 3rd Year MRC
- ---- ------------ ---------- ---------------- ---- ---------- --------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[*]
</TABLE>
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
6
<PAGE> 32
[LEVEL(3) LOGO]
PRICE QUOTE
<TABLE>
<CAPTION>
Qty. Name/Gateway Product Cd Description Term Amount Net NRC Per Unit 1st Year MRC 2nd Year MRC 3rd Year MRC
- ---- ------------ ---------- ---------------- ---- ---------- --------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[*]
</TABLE>
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
7
<PAGE> 33
[LEVEL(3) LOGO]
PRICE QUOTE
<TABLE>
<CAPTION>
Qty. Name/Gateway Product Cd Description Term Amount Net NRC Per Unit 1st Year MRC 2nd Year MRC 3rd Year MRC
- ---- ------------ ---------- ---------------- ---- ---------- --------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[*]
</TABLE>
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
8
<PAGE> 34
[LEVEL(3) LOGO]
PRICE QUOTE
<TABLE>
<CAPTION>
Qty. Name/Gateway Product Cd Description Term Amount Net NRC Per Unit 1st Year MRC 2nd Year MRC 3rd Year MRC
- ---- ------------ ---------- ---------------- ---- ---------- --------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[*]
</TABLE>
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
9
<PAGE> 35
[LEVEL(3) LOGO]
PRICE QUOTE
<TABLE>
<CAPTION>
Qty. Name/Gateway Product Cd Description Term Amount Net NRC Per Unit 1st Year MRC 2nd Year MRC 3rd Year MRC
- ---- ------------ ---------- ---------------- ---- ---------- --------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
[*]
This Price Quote is governed by Level 3 Communications, LLC's Terms and
Conditions for Delivery of Service (which are available for your review
either upon request or on the Level 3 website), and shall be incorporated
into the Customer Order submitted by Customer for the foregoing Service.
Price Quote valid through:
**Notes:
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
10
<PAGE> 36
ADDENDUM
This addendum (the "Addendum"), effective as of 8/23/99, 1999, modifies
the Level 3 Terms and Conditions for Delivery of Service attached hereto plus
all its exhibits addenda, and the Customer Order (all of which are executed
concurrently herewith, attached hereto, and referred to herein, collectively,
as the "Terms & Conditions") by and between Level 3 Communications, LLC ("Level
3") and Telocity, Inc. ("Customer") formerly known as MachOne Communications,
Inc. Capitalized terms used but not defined herein shall have the meanings set
forth in the Terms & Conditions. The provisions, terms and conditions contained
in this Addendum modify the Terms and Conditions, as set forth below. In the
event that any provision, term or condition of this Addendum conflicts with, or
is deemed to conflict with, any provision of the Terms and Conditions, then
this Addendum shall control. This addendum may only be modified by a written
document, specifically stating that it is intended to modify this Addendum,
signed by both parties:
CHANGES TO GENERAL TERMS AND CONDITIONS FOR DELIVERY OF SERVICE
The Terms and Conditions is hereby amended by:
1. In Section 4.2 replacing the words "...pay Level three the cost to
repair any damage to the Facilities caused thereby; and (2) be responsible for
the payment of service charges..." with the words:
"... pay Level three the reasonable cost to repair any damage to the
Facilities cause thereby; and (2) be responsible for the payment of
reasonable service charges...".
2. Replacing the first sentence of Section 4.3 with the following sentence:
"Title to all equipment and devices supplied by Level 3 and used by Level 3
in the furnishing of the Services, including all terminal equipment, wires,
lines, circuits, ports, routers, switches, channel service units, data
service units, cabinets, racks, private rooms and the like, shall remain
with Level 3.
3. By replacing the first sentence of Section 6.1 with the following
sentence:
"If and to the extent that Customer requires the use of Licensed Software
in order to use the Services supplied under any Customer Order, then
Customer shall have a non-exclusive, non-transferable (except as set forth
in Section 8.2 of these Terms and Conditions) license to use such Licensed
Software only and solely to the extent required to permit delivery of the
Service."
4. By replacing the first sentence of Section 8.2 with the following
sentence:
"Customer may not transfer or assign the use of the Service without the
express prior written consent of Level 3, which consent shall not be
unreasonably withheld, and then only when such transfer or assignment can
be accomplished without interruption of the use or location of Service."
MODIFICATIONS TO ADDITIONAL TERMS AND CONDITIONS FOR PRIVATE LINE SERVICE
Section 3 of the Terms and Conditions, "Additional Terms and Conditions
for Private Line
Page 1 of 5
<PAGE> 37
Service" is amended by adding to the end of that section of new paragraph as
follows:
"Notwithstanding the above, Customer shall have the right to discontinue
the Service prior to the end of the agreed term with respect to which a
Service order has been executed without payment of any of the termination
charges set forth above if such Service [*] Customer must exercise its
right to terminate under this Section, in writing, no later than thirty
(30) days after the failure which gave rise to the right to terminate. The
termination right granted herein shall not be applicable to Service
failures which are caused by Customer, End User or any third party over
whom Level 3 does not have direct control, which result from failure of
power or equipment provided by Customer or third parties, which occur or
continue during any period in which Level 3 is not given access to the
Premises, provided that such access would have allowed Level 3 to remedy
such failure, or which result from scheduled maintenance and repair."
MODIFICATIONS TO STANDARD SERVICE LEVEL AGREEMENT (SLA)
INTERNATIONAL/US NATIONAL PRIVATE LINE
The Terms and Conditions, "Service Level Agreement for International/US
National Private Line" is amended by:
1. Deleting the second paragraph stating: "NOTE: The total number of
credits per month for both Service Delivery and Network Performance is limited
to four days."
2. Deleting from the section entitled "Network Performance SLA" the
phrase "99.99% Service Availability" and replacing it with all of the following:
Level 3's target service availability is 99.99%. Should Level 3's service
availability fall below that level, Customer will receive a service credit
based on the chart below:
SERVICE LEVEL PERFORMANCE CREDIT IF SERVICE LEVEL NOT MET
<TABLE>
<S> <C> <C>
Availability [*] [*]
(monthly)
Availability [*] [*]
(monthly)
Availability [*] [*]
(monthly)
Availability [*] [*]
(monthly)
Noting that:
</TABLE>
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
Page 2 of 5
<PAGE> 38
[*]
A circuit is not Available during a period where there is a break in
transmission, where the start of a break in transmission is signaled by
[*]. For the purposes of the foregoing, the circuit shall be considered
Available until Customer reports a failure to the Level 3 Customer Service
and Support Organization (1-877-4Level3) and Level 3 opens a trouble
ticket.
In no event shall Customer's total circuit charge credits exceed 100% of
Customer's total circuit charges in any one month period."
3. Deleting the balance of the "Network Performance SLA" excepting the
section entitled "NOTES".
MODIFICATIONS TO ADDITIONAL TERMS AND CONDITIONS FOR TELEPHONY AND IP
COLOCATION
The Terms and Conditions, "Additional Terms and Conditions for Telephony
and IP Colocation" is amended by:
1. Deleting Section 2 and replacing it with the following provision:
"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 colocation Space, to use the Space for placement
and maintenance of communications equipment. In the event customer fails to
fill said Space, Level 3 has the right to reclaim the proportion of Space
not being used exclusively as indicated above, upon forty-five (45) days'
prior notice and opportunity to cure. Upon the expiration of such 45 day
period, if Customer has not so cured, Customer shall immediately vacate
such recaptured Space and Level 3 shall reduce the colocation fees
allocated to such recaptured Space. No refunds shall be made to Customer
regarding such recaptured Space."
2. Adding to the end of Section 9 the following sentence to the end of
that Section:
"Level 3 shall pay for all reinstallation charges associated with a change
in Customer's Space pursuant to this Section 9."
MODIFICATIONS TO TERMS AND CONDITIONS IP COLOCATION
---------------------------------------------------
The Terms and Conditions, "IP Colocation" is amended by:
1. Deleting Section 2 and replacing it with the following provision:
"Customer shall be permitted to use the Space only for placement and
maintenance of communications equipment. The nonrecurring and monthly
recurring charges for the
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
Page 3 of 5
<PAGE> 39
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 colocation Space, to use the Space for placement and maintenance of
communications equipment. In the event customer fails to fill said Space,
Level 3 has the right to reclaim the proportion of Space not being used
exclusively as indicated above, upon forty-five (45) days' prior notice
and opportunity to cure. Upon the expiration of such 45 day period, if
Customer has not so cured, Customer shall immediately vacate such
recaptured Space and Level 3 shall reduce the colocation fees allocated to
such recaptured Space. No refunds shall be made to Customer regarding such
recaptured Space."
3. Section 8 of the Terms and Conditions, IP Colocation is amended by
adding the following sentence to the end of that Section:
"Level 3 shall pay for all reinstallation charges associated with a change
in Customer's Space pursuant to this Section 8."
MODIFICATIONS TO TERMS AND CONDITIONS -- DEDICATED RAPID ACCESS
AND DIAL UP INTERNET ACCESS
The Terms and Conditions, "Additional Terms and Conditions for Dedicated,
Rapid Access and Dial Up Internet Access" is amended by:
1. Adding to the end of Section 3 a new paragraph as follows:
"Notwithstanding the above, Customer shall have the right to discontinue
the Service prior to the end of the agreed term with respect to which a
Service Order has been executed without payment of any of the termination
[*] Customer must exercise its right to terminate under this Section, in
writing, no later than thirty (30) days after the failure which gave rise
to the right to terminate. The termination right granted herein shall not
be applicable to Service failures which are caused by Customer, End User or
any third party over whom Level 3 does not have direct control, which
result from failure of power or equipment provided by Customer or third
parties, which occur or continue during any period in which Level 3 is not
given access to the Premises, provided that such access would have allowed
Level 3 to remedy such failure, or which result from scheduled maintenance
and repair."
2. Adding to the end of paragraph 6 the sentence:
"Such changes shall be permitted without penalty."
MODIFICATIONS TO STANDARD SERVICE LEVEL AGREEMENT (SLA)
RELEASE 1
INTERNET DEDICATED ACCESS 1
The Terms and Conditions, "Service Level Agreement (SLA) Release for
Internet Dedicated Access is amended by deleting from paragraph two the phrase
"NOTE: The total number of credits per month for both Service Delivery and
Network Performance is limited to four days."
ADDITIONS TO THE GENERAL TERMS AND CONDITIONS
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
Page 4 of 5
<PAGE> 40
1. Nothing in the Agreement or any attachment or addenda shall be deemed
to prohibit or in fact does prohibit Telocity from or penalize Telocity for
using any third party supplier to provide any Service to Telocity. In the event
that Telocity has a Service requirement that cannot be met by Level 3, if
Telocity obtains such Service or the equivalent of such Service from another
supplier, then Telocity's expenditures for the third party Service will be
credited toward Telocity's $500,000 Revenue Commitment as if the Services had
been purchased from Level 3.
2. Upon the execution of this Addendum, the parties acknowledge that,
although Telocity desires to utilize certain Services in Phoenix AZ in the near
future, Level 3 does not provide such Service in Phoenix. The parties further
acknowledge that they have agreed that when the Services are available in
Phoenix and Telocity desires to order the Services, Level 3 will reconfigure the
services then-being provided to Telocity so that those Services include Phoenix,
at no NRC charge to Telocity.
3. Level 3 will provide roof rights, access, and connectivity as
reasonably requested by Telocity, in order facilitate the use of Skycache or
other satellite caching services in the Telocity colocation space.
4. Level 3 will reasonably and on a non-discriminatory basis provide for
the termination of third-party circuits via cross connects that will not exceed
[*] per cross connect per month. Such cross connects will be delivered to
Telocity at its colocation space in a reasonable timely manner and in no case
less than 7 days after such third party circuit was delivered to the Level 3
facility.
5. All San Jose circuits ordered under the Agreements will be delivered
to Telocity's main office located at 10355 North De Anza Blvd, Cupertino, CA.
Pricing for the local loop for such circuits will be determined within seven
days of the effective date of this Agreement. If the parties cannot agree on
such pricing, at Telocity's discretion, the Agreement shall be cancelable
without penalty to either party.
6. Attached hereto is a Build Out Staging Plan consisting of five parts
in descending order of priority. In the event that the stages cannot be built
out by Level 3 simultaneously, no charges will be due and payable for elements
of a lower priority stage until each of the elements of the higher priority
stages have been completed by Level 3.
IN WITNESS WHEREOF, the parties agree to the foregoing by executing this
Addendum below, effective as of the dates first set forth above.
TELOCITY, INC. LEVEL 3
/s/ PETER OLSON
- ------------------------------ --------------------------------
Authorized Signature Authorized Signature
Peter Olson
- ------------------------------ --------------------------------
Typed or Printed Name Typed or Printed Name
C.T.O.
- ------------------------------ --------------------------------
Title Title
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
Page 5 of 5
<PAGE> 1
Exhibit 10.27
[MCI WORLDCOM LOGO]
PRIVATE LINE SERVICE AGREEMENT
This Service Agreement (the "Agreement") for services described below is made
by and between MCI WORLDCOM Communications, Inc., formerly known as and doing
business as WorldCom Technologies, Inc. ("MCI WORLDCOM") and
Customer Name: TELOCITY, INC. (hereinafter "Customer"), with its principal
office at 10355 N. DeAnza Blvd.; Cupertino, CA 95014.
SECTION I: SERVICE AGREEMENT
1. SERVICE: MCI WORLDCOM will provide the following service (the "Service")
pursuant to the applicable tariffs of MCI WORLDCOM and its affiliates and
subsidiaries (the "Tariffs") (choose one):
<TABLE>
<S> <C>
[ ] International Private Line [ ] Digital Private Line (DS0)
[ ] Managed International Private Line [ ] Digital Private Line (Fractional DS1)
[ ] Metro Private Line [X] DIGITAL PRIVATE LINE (DS1)
[ ] Voice Grade Private Line [ ] Digital Private Line (Fractional DS3)
[X] SONET (OC-3) [X] DIGITAL PRIVATE LINE (DS3)
</TABLE>
The Tariffs provide terms and conditions of the Service which include, but
are not limited to, taxes, pricing, discounts, credit approval procedures,
Customer credits, termination liability, and limitations with respect to
the assignment of the Service. The Tariffs may be modified from time to
time by MCI WORLDCOM in accordance with law and thereby affect the Service
furnished to Customer. In the event of a conflict between the Tariffs and
this Agreement the terms and conditions of the Tariffs shall control.
2. EFFECTIVE DATE: For the purposes of this Agreement, (i) if Customer has an
existing service agreement with MCI WORLDCOM, the "Effective Date" will be
the next billing cycle following the date this Agreement has been executed
and Customer has received a satisfactory credit review and approval from
MCI WORLDCOM's Credit Department, and all security documentation, if any,
required by MCI WORLDCOM has been properly executed and delivered to MCI
WORLDCOM (collectively, the "Credit Review"); and (ii) if Customer does not
have an existing service agreement with MCI WORLDCOM, the "Effective Date"
will be the date this Agreement has been executed and the Credit Review has
been completed.
3. CIRCUITS AND CONNECTIONS: Customer shall receive the following pursuant to
this Agreement:
MCI WORLDCOM DOMESTIC PRIVATE LINE*
<TABLE>
<S> <C>
DS-1 [*]
DS-3 Linear [*]
DS-3 Restorable [*]
OC-3 Linear [*]
OC-3 Restorable [*]
</TABLE>
* Rates will apply to Inter-exchange Carrier (IXC) charges only
* Rates will apply to Tier A cities only (all other are ICB)
* Local access is additional and non-discountable.
MCI WORLDCOM LOCAL ACCESS
<TABLE>
<CAPTION>
SERVICE TYPE(1) MILE(2) PRICING
<S> <C> <C> <C>
DS-3 1 0 mile [*]
DS-3 1 1 mile [*]
</TABLE>
(1) Type I sites consist of sites which are provisioned entirely on MCI
WORLDCOM's local network.
(2) Each additional mile is [*] per mile.
4. REVENUE COMMITMENT: Customer agrees to the following minimum Monthly
Revenue Commitment ("MRC") of five hundred thousand dollars ($500,000) for
a forty-five (45)-month term with a nine (9) month [ILLEGIBLE] receive the
associated rates as set forth in Section 3 above and in the applicable
Tariffs [ILLEGIBLE].
5. MONTHLY UNDERUTILIZATION: If Customer's usage fails to meet the MRC,
Customer will pay 100% of the difference between Customer's usage during
each month and Customer's MRC. Monthly usage in excess of the MRC cannot be
carried forward to another month.
Page 1 of 2
Please mail originals to: MCI WorldCom Sales Contracts Administration,
500 Clinton Center Drive, Bldg. 4; Clinton, MS 39056
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
CONFIDENTIAL - PROPRIETARY INFORMATION REV 6/8/99
<PAGE> 2
[MCI WORLDCOM LOGO]
6. LETTER OF AGENCY ("LOA"): The undersigned hereby authorizes MCI WORLDCOM
and/or the Local Exchange Company ("LEC"), and/or Foreign
Telecommunications Provider ("FTP"), if requested by Customer, to provision
Customer's Local Access. This LOA supersedes all previous LOAs and shall
remain in effect until canceled by Customer in writing.
7. COMPLETE AGREEMENT: This Agreement, including the MCI WORLDCOM Application
for Credit, the Tariffs and any documents incorporated herein by reference,
constitutes the full understanding of the parties and supersedes any prior
agreements between the parties relating to the Service. Alterations to this
Agreement shall render this Agreement null and void. Customer acknowledges
that MCI WORLDCOM is under no duty, implied or otherwise, to activate the
Service and will not be subject to liability, if any, under the terms of
this Agreement until such Service is activated.
8. SIGNATURE AUTHORIZATION: The parties have duly executed and agreed to be
bound by this Agreement as evidenced by the signatures of their authorized
representatives below. Each party represents and warrants to the other that
the signatory identified beneath its name below has full authority to
execute this Agreement on its behalf.
ACCEPTED BY: ACCEPTED BY:
TELOCITY, INC. MCI WORLDCOM COMMUNICATIONS, INC.
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ FRANK GRILLO
----------------------------- ------------------------------
Name: Matt [ILLEGIBLE] Name: Frank Grillo,
--------------------------- ----------------------------
Title: VP Legal Title: V.P. Marketing
-------------------------- ---------------------------
Date: 10-10-99 Date: 10-18-99
--------------------------- ----------------------------
Page 2 of 2
Please mail originals to: MCI WorldCom Sales Contracts Administration,
500 Clinton Center Drive, Bldg. 4; Clinton, MS 39056
CONFIDENTIAL - PROPRIETARY INFORMATION REV 6/8/99
<PAGE> 3
[WORLDCOM LOGO] PRIVATE LINE SERVICE Log #
ORDER FORM -----------
SO #
-----------
Page 1 of 2
Today's Date: 7/13/99
Sales Office: San Francisco
SECTION I: SERVICE AGREEMENT
This Service Agreement (the "Agreement") for services described below is made
by and between WorldCom Technologies, Inc. ("WorldCom") and Customer Name:
Telocity, Inc. (hereinafter "Customer").
1. SERVICE: WorldCom will provide Private Line service ("Service") pursuant
to the applicable tariffs of WorldCom Network Services, Inc., a wholly owned
subsidiary of WorldCom (the "Tariffs"). The Tariffs provide terms and
conditions of the Service which include, but are not limited to, taxes, credit
approval procedures, Customer credits, termination liability and limitations
with respect to the assignment of the Service. The Tariffs may be modified from
time to time by WorldCom in accordance with law and thereby affect the Service
furnished to Customer.
2. TERMS AND CONDITIONS: For the convenience of the parties, Service will be
provided by WorldCom subject to the rules and regulations set forth in the
applicable Tariff, in addition to the terms and conditions set forth herein.
(Check the appropriate box.)
(a) Service Commitment Period ("Service Commitment Period"):
[ ] month to month [ ] 1 Year [ ] 2 Year [X] 3 Year [ ] 4 Year [ ] 5 Year
(b) Service Location*/Type
<TABLE>
<CAPTION>
Loc. A NPA-NXX Loc. Z NPA-NXX Access Type Circuit Type
<S> <C> <C> <C>
[*]
</TABLE>
- --------
* Additional customer service locations, if applicable, shown on attachment A
attached hereto and incorporated herein.
(c) Effective Date: For purposes of this Agreement, (i) if Customer has an
existing service agreement with WorldCom, the "Effective Date" will be the next
billing cycle following the date this Agreement has been executed and Customer
has received a satisfactory credit review and approval from WorldCom's Credit
Department, and all security documentation, if any, required by WorldCom has
been properly executed and delivered to WorldCom (collectively, the "Credit
Review"), and (ii) if Customer does not have an existing service agreement with
WorldCom, the "Effective Date" will be the date this Agreement has been
executed and the Credit Review has been completed.
3. CHARGES/DISCOUNTS: During the Service commitment period of this Agreement,
Customer shall receive rates and discounts for Service as set forth in the
Tariff.
4. LETTER OF AGENCY ("LOA"): The undersigned [duly authorized representative
of Customer] hereby authorizes WorldCom and/or the Local Exchange Company
("LEC"), if requested by Customer, to provision Customer's local access. This
LOA supersedes all previous LOAs and shall remain in effect until canceled by
Customer in writing.
This Agreement, including the WorldCom Application for Credit, the Tariffs and
any documents incorporated herein by reference, constitutes the full
understanding of the parties and supersedes any prior agreements between the
parties relating to private line telecommunications services. Alterations to
this Section I of the WORLDCOM PRIVATE LINE SERVICE AGREEMENT/SERVICE ORDER
shall render this Agreement null and void. Activation of Service shall indicate
WorldCom's acceptance of this Agreement.
ATTACHMENT: YES [X] NO [ ] (see "Private Line Service Agreement")
AS AUTHORIZED AGENT OF CUSTOMER, I AGREE TO THE ABOVE TERMS AND CONDITIONS:
NAME: * Peter Olson SIGNATURE: * /s/ PETER OLSON
--------------------------- ------------------------
TITLE: * CTO COMPANY/ACCOUNT NAME: Telocity, Inc.
--------------------------- --------------
DATE: 9-13-99
----------------------------
NOTE 1: This order is for interconnection with Bell South.
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 4
WORLD COM Page 2 of 2
Today's Date 9/13/99
Customer Abbreviation TELOCITY
<TABLE>
<CAPTION>
Service Location/Type
Loc. A NPA-NXX Loc. Z NPA-NXX Access Type Circuit Type
<S> <C> <C> <C>
[*]
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
_______ _______ [ ] DS-0 [ ] DS-1 [ ] DS-2 [ ] DS-0 [ ] FT-1 [ ] DS-1 [ ] FT-3
</TABLE>
As authorized agent of customer, I agree to the above terms and conditions:
Name: Peter Olson Signature: /s/ PETER OLSON
-------------------- ---------------------
Title: CTO Company/Account Name: Telocity, Inc.
-------------------- --------------
Date: 9-13-99
--------------------
696/02/98.1 This form valid 2/2/98 through 8/31/98.
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 5
[MCI LOGO]
PRIVATE LINE SERVICE AGREEMENT
This Service Agreement (the "Agreement") for services described below is made by
and between MCI WORLDCOM Communications, Inc., formerly known as and doing
business as WorldCom Technologies, Inc. ("MCI WORLDCOM") and
Customer Name: TELOCITY, INC. (hereinafter "Customer"), with its principal
office at 10355 N. DeAnza Blvd.; Cupertino, CA 95014.
SECTION I: SERVICE AGREEMENT
1. SERVICE: MCI WORLDCOM will provide the following service (the "Service")
pursuant to the applicable tariffs of MCI WORLDCOM and its affiliates and
subsidiaries (the "Tariffs") (choose one):
<TABLE>
<S> <C>
[ ] International Private Line [ ] Digital Private Line (DS0)
[ ] Managed International Private Line [ ] Digital Private Line (Fractional DS1)
[ ] Metro Private Line [X] DIGITAL PRIVATE LINE (DS1)
[ ] Voice Grade Private Line [ ] Digital Private Line (Fractional DS3)
[X] SONET (OC-3) [X] DIGITAL PRIVATE LINE (DS3)
</TABLE>
The Tariffs provide terms and conditions of the Service which include, but
are not limited to, taxes, pricing, discounts, credit approval procedures,
Customer credits, termination liability, and limitations with respect to the
assignment of the Service. The Tariffs may be modified from time to time by
MCI WORLDCOM in accordance with law and thereby affect the Service furnished
to Customer. In the event of a conflict between the Tariffs and this
Agreement the terms and conditions of the Tariffs shall control.
2. EFFECTIVE DATE: For the purposes of this Agreement, (i) if Customer has an
existing service agreement with MCI WORLDCOM, the "Effective Date" will be
the next billing cycle following the date this Agreement has been executed
and Customer has received a satisfactory credit review and approval from MCI
WORLDCOM's Credit Department, and all security documentation, if any,
required by MCI WORLDCOM has been properly executed and delivered to MCI
WORLDCOM (collectively, the "Credit Review"); and (ii) if Customer does not
have an existing service agreement with MCI WORLDCOM, the "Effective Date"
will be the date this Agreement has been executed and the Credit Review has
been completed.
3. CIRCUITS AND CONNECTIONS: Customer shall receive the following pursuant to
this Agreement:
MCI WORLDCOM DOMESTIC PRIVATE LINE*
<TABLE>
<S> <C>
DS-1 [*]
DS-3 Linear [*]
DS-3 Restorable [*]
OC-3 Linear [*]
OC-3 Restorable [*]
</TABLE>
*Rates will apply to Inter-exchange Carrier (IXC) charges only
*Rates will apply to Tier A cities only (all other are ICB)
*Local access is additional and non-discountable.
MCI WORLDCOM LOCAL ACCESS
<TABLE>
<CAPTION>
SERVICE TYPE(1) MILE(2) PRICING
<S> <C> <C> <C>
DS-3 1 0 mile [*]
DS-3 1 1 mile [*]
</TABLE>
(1) Type I sites consist of sites which are provisioned entirely on MCI
WORLDCOM's local network.
(2) Each additional mile is [*] per mile
4. REVENUE COMMITMENT: Customer agrees to the following minimum monthly revenue
commitment ("mrc") of Five-Hundred-Thousand Dollars ($500,000) Forty-Five
(45)-month term with a (9) month ramp and shall receive the associated rates
as set forth in Section 3 above, and in the applicable tariffs.
5. MONTHLY-UNDERUTILIZATION: If Customer's usage fails to meet the MRC, Customer
will pay 100% of the difference between Customer's usage during each month
and Customer's MRC. Monthly usage in excess of the MRC cannot be carried
forward to another month.
Page 1 of 2
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 6
[MCI WORLDCOM LOGO]
6. LETTER OF AGENCY ("LOA"): The undersigned hereby authorizes MCI WORLDCOM
and/or the Local Exchange Company ("LEC"), and/or Foreign Telecommunications
Provider ("FTP"), if requested by Customer, to provision Customer's Local
Access. This LOA supersedes all previous LOAs and shall remain in effect
until canceled by Customer in writing.
7. COMPLETE AGREEMENT: This Agreement, including the MCI WORLDCOM Application
for Credit, the Tariffs and any documents incorporated herein by reference,
constitutes the full understanding of the parties and supersedes any prior
agreements between the parties relating to the Service. Alterations to this
Agreement shall render this Agreement null and void. Customer acknowledges
that MCI WORLDCOM is under no duty, implied or otherwise, to activate the
Service and will not be subject to liability, if any, under the terms of
this Agreement until such Service is activated.
8. SIGNATURE AUTHORIZATION: The parties have duly executed and agreed to be
bound by this Agreement as evidenced by the signatures of their authorized
representatives below. Each party represents and warrants to the other that
the signatory identified beneath its name below has full authority to
execute this Agreement on its behalf.
ACCEPTED BY: ACCEPTED BY:
TELOCITY, INC. MCI WORLDCOM COMMUNICATIONS, INC.
By: /s/ PETER OLSON By:
--------------------------- ---------------------------------
Name: Peter Olson Name: Frank Grillo
--------------------------- ---------------------------------
Title: CTO Title: V.P. Marketing
--------------------------- ---------------------------------
Date: 9/13/99 Date:
--------------------------- ---------------------------------
Page 2 of 2
<PAGE> 7
[WORLDCOM LOGO] WORLDCOM MAE(R) ATM SERVICE AGREEMENT
This Service Agreement (the "Agreement") is made by and between WorldCom
Technologies, Inc. ("WorldCom"), located at 515 East Amite, Jackson,
Mississippi 39201-2702, and Telocity ("Customer"), with its principal office at
10355 N. Deanza Blvd., Cupertino, CA 95014, for services described below.
1. SERVICE: WorldCom will provide Customer MAE ATM service consisting of: (i) a
port connection, i.e., access to the WorldCom MAE switching equipment and the
connection of the port to either the local access facilities or to the
Customer's equipment, the permanent virtual circuits or other virtual data
paths assigned to said port, if desired ("MAE Connections") and (ii)
maintenance of the equipment and services provided by WorldCom (collectively
"Service"). The Service is subject to the terms and conditions contained here
and the WorldCom Commercial Application for Credit.
2. TERM: The Term of this Agreement shall be [ ] 1 Year [ ] 2 Years [X] 3 Years
("Term"). Upon expiration of the Term, unless either party gives written notice
to the other party thirty (30) days prior to the end of the Term, the Term will
continue on a month-to-month basis until this Agreement is terminated by either
party on at least thirty (30) days prior written notice to the other party.
Customer shall be liable for all charges associated with actual usage of the
Services during the Term and any extension thereof.
3. EFFECTIVE DATE: For the purposes of this Agreement, (i) if Customer has an
existing service agreement with WorldCom, the "Effective Date" will be the next
billing cycle following the date this Agreement has been fully executed by both
parties and Customer has received a satisfactory credit review and approval
from WorldCom's Credit Department, and all security documentation, if any,
required by WorldCom has been properly executed and delivered to WorldCom
(collectively, the "Credit Review"), and (ii) if Customer does not have an
existing service agreement with WorldCom, the "Effective Date" will be the date
this Agreement has been fully executed by both parties and the Credit Review
has been completed.
4. SERVICE RATES: (Check desired port)
<TABLE>
<CAPTION>
MONTHLY RECURRING START-UP
SERVICE CHARGE CHARGE
<S> <C> <C>
[ ] 45 Mbps ATM port [*] [*]
[X] 155 Mbps ATM port [*] [*]
[ ] 622 Mbps ATM port [*] [*]
ANCILLARY CHARGES
Permanent Virtual Circuit (PVC) moves, adds or changes $ [*]/PVC
(Charge does not apply to PVCs setup at time of initial
port installation)
Non-Administrative Order Charge/Port
Pre-engineering [*]
Post-engineering [*]
</TABLE>
Customer purchasing CPE from WorldCom under separate agreement (check
applicable box): [ ] Yes [X] No
TERM AND VOLUME DISCOUNTS: The following discount schedule applies to the
Monthly Recurring Charge for MAE ATM ports only, as shown in Section 4.
<TABLE>
<CAPTION>
TERM
------------------------------------
TOTAL MONTHLY SERVICE CHARGES* 1 YEAR 2 Year 3 Year
<S> <C> <C> <C>
$0 [*] [*] [*]
$2,500 [*] [*] [*]
$5,000 [*] [*] [*]
$7,500 [*] [*] [*]
$10,000 [*] [*] [*]
$15,000 [*] [*] [*]
$20,000 [*] [*] [*]
$30,000 [*] [*] [*]
$40,000 [*] [*] [*]
$50,000 [*] [*] [*]
</TABLE>
*Charges set forth in Section 4 of this Agreement excluding local access
monthly recurring and/or installation fees, collocation fees or additional
customer premises equipment costs. Customer shall be responsible for all such
charges associated with the service
258/08/98.3
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 8
5. PAYMENT BILLING:
A. Payment is due 30 days after date of invoice. Accounts are in
default if payment is not received within such 30-day period.
Accounts unpaid 60 days after date of invoice may have their service
disconnected without further notice to Customer.
Such disconnection does not relieve Customer from the obligation to
pay the monthly charge and any applicable cancellation charges. Only
a written request to terminate Customer's service relieves Customer
of Customer's obligation to pay the monthly account charge. Accounts
in default are subject to an interest charge of 1.5% per month on
the outstanding balance. If Customer's state law does not allow an
interest rate of 1.5% per month, the maximum allowable rate for
Customer's state will be charged. Customer agrees to pay WorldCom
its reasonable expenses, including attorney and collection agency
fees, incurred in enforcing its rights under this Agreement.
B. Billing for Service will commence when the connection from the MAE
facility is completed to Customer's site or collocation space and IP
packets can be passed. Service is invoiced monthly in advance.
6. CANCELLATION CHARGE:
A. After this Agreement is accepted by WorldCom, Customer may cancel
all or a portion of the Service if Customer provides written
notification thereof to WorldCom thirty (30) days in advance of the
effective date of cancellation. In such case, Customer shall pay to
WorldCom all charges for Service described herein provided through
the effective date of such cancellation plus a cancellation charge
determined as follows: (i) if the Term is one (1) year or less, then
the cancellation charge shall be an amount equal to the balance of
the monthly recurring charges (then in effect at the time of
cancellation) for such canceled Service that otherwise would have
become due for the unexpired balance of the Term (but in no event
less than zero); (ii) if the Term is longer than one (1) year and
such cancellation becomes effective prior to completion of the first
year of the Term, then the cancellation charge shall be an amount
equal to the balance of the monthly recurring charges (then in
effect at the time of cancellation) for such canceled Service that
otherwise would have become due for the unexpired portion of the
first year of the Term plus eighty-five percent (85%) of the balance
of such monthly recurring charges for the remainder of the Term
beyond the first year; and, (iii) if the Term for the canceled
Service is longer than one (1) year and such cancellation becomes
effective after completion of the first year of the Term, then the
cancellation charge shall be an amount equal to seventy-five percent
(75%) of the balance of the monthly recurring charges (then in
effect at the time of cancellation) for such canceled Service that
otherwise would have become due for the unexpired portion of the
Term. It is agreed that WorldCom's damages in the event Customer
cancels Service shall be difficult or impossible to ascertain. The
aforementioned provision for a cancellation charge is intended to
establish liquidated damages in the event of a cancellation and is
not intended as a penalty.
B. Service Credits: If Customer notifies WorldCom immediately upon
failure to access Service and WorldCom determines in its reasonable
commercial judgment that Service is unavailable to Customer, the
following will apply: (i) if WorldCom determines that Service is
unavailable for one (1) or more (but fewer than four) consecutive
hours during such calendar month, WorldCom, upon Customer's request,
will credit Customer's account for such month the pro-rated charges
equal to one (1) day's service, (ii) if WorldCom determines that
Service is unavailable for four (4) or more hours during such
calendar month, WorldCom, upon Customer's request, will credit
Customer's account for such month for the pro-rated charges equal to
one (1) week's service. This paragraph states WorldCom's sole
obligation and Customer's exclusive remedy for any unavailability of
Service. The remedies set forth in this paragraph shall not apply if
unavailability of Service is due to scheduled maintenance,
Customer's equipment, Customer access connections, network
unavailability outside of Service or events of force majeure.
Credits will not apply to charges for local access or any charges
for services other than the Service as described in paragraph (i)
above. Customers with multiple connections to a failed MAE ATM
facility will not receive credits pursuant to this paragraph if at
least one connection continues with Service available. Customer's
account shall not be credited more than once per month pursuant to
this paragraph.
7. CUSTOMER'S RESPONSIBILITIES:
A. Fraudulent Transactions: In the event WorldCom discovers fraudulent
use of Service (or reasonably believes such fraudulent use exists),
nothing contained herein shall prohibit WorldCom from taking
immediate action (without notice to Customer) that is reasonably
necessary to prevent such fraudulent use of Service from taking
place, including without limitation, denying or terminating Service
to and from specific locations.
B. Preparation: WorldCom is not responsible for the installation,
maintenance, compatibility or performance of any equipment or
software not provided by WorldCom, and Customer shall indemnify
WorldCom and its affiliates against any infringement claims arising
out of the use of such third party equipment or software in
connection with the Service. If such third party equipment or
software impairs Service, Customer shall remain liable for payment,
and if such third party equipment is likely to cause hazard or
service obstruction, Customer shall eliminate such likelihood at
WorldCom's request.
<PAGE> 9
C. Use of Products and Services: Customer shall not, nor shall it permit or
assist others including Customer's end users and customers to: (i) use
the Service for any purpose other than that for which it is intended or
use the Service in violation of any applicable law or regulation or in
aid of any unlawful act including any use that is harassing, or which
infringes on another's intellectual property rights, copyrighted
material, material legally judged to be threatening or obscene, or
material protected by trade secret, or which otherwise constitutes
Service abuse, and Customer shall be responsible for any such misuse of
the Service, (ii) use Service so as to interfere with the use of the MAE
facility or any other network or the use of any Service by other
customers or authorized users, (iii) use the Service to access, alter,
destroy or attempt to access, alter or destroy any information of
another WorldCom customer, (iv) fail to maintain a suitable environment
specified by WorldCom, or (v) alter, tamper with, adjust or repair the
Service. Upon the occurrence of any of the above, WorldCom shall be
completely released from any liability or obligation to Customer
relative to the Service and this Agreement, and Customer shall be liable
to WorldCom for costs or damages incurred by WorldCom resulting
therefrom. Customer shall indemnify and hold WorldCom harmless against
any liabilities losses, demands, liabilities, suits or actions including
any claims resulting from Customer's use of Service, or use of the
Service by its customers or others throughout Customer's chain of
distribution, including end users, which damages WorldCom or a third
party. Customer shall be responsible for communicating with Customer's
own users of the Service, and for handling all complaints and trouble
reports made by such users. Customer must comply with reasonable
security procedures and standards with respect to Customer's own routers
or switch equipment that interface with Service. WorldCom may (but is
under no obligation to) communicate security issues to Customer from
time to time when abuse or misuse is observed or reported by others.
Customer shall be responsible for compliance with rules governing the
networks of other WorldCom MAE Service customers which may include
executing interconnection agreements with such other WorldCom MAE
Service customers. Customer shall indemnify, defend and hold WorldCom
harmless, from and against any and all losses, claims, demands,
liabilities, suits or actions by any WorldCom MAE Service customers to
the extent such claim, demand, liability, suit or action relates to
Customers obligations contained herein.
D. Customer equipment: Customer agrees to connect only WorldCom certified
equipment to the MAE ATM switch equipment. This applies whether the
Service is terminated at collocation space within WorldCom facilities or
the service is terminated at Customer's premises by use of WorldCom's or
any other carriers' local access circuits.
E. Maintenance: WorldCom reserves the right to perform scheduled and
emergency maintenance on the MAE facilities and any other equipment used
to provide the Service. In the case of scheduled maintenance, WorldCom
agrees to give Customer prior notice of the maintenance outage. In the
case of emergency maintenance, WorldCom agrees to use its best efforts
to notify Customer prior to such maintenance outage.
F. Peering: WorldCom does not undertake to secure a commercial agreement
and technical implementation between two Internet service providers to
exchange Internet traffic between their two networks ("Peering") for
the Customer. Connection to a MAE does not indicate that Customer will
be able to transmit traffic to or receive traffic from any other Service
customer connected to a MAE. WorldCom in no way guarantees Customer that
any other customer connected to a MAE will remain connected. Before
WorldCom will provide Customer with Service, Customer must provide
WorldCom with a copy of a bona fide Peering agreement between Customer
and a WorldCom MAE Customer.
8. MODIFICATION OF SERVICES: WorldCom reserves the right to eliminate Service
offerings and/or modify charges for Service offerings (which charge
modifications shall not exceed then current generally available WorldCom
charges for comparable services), upon not less than thirty (30) days prior
notice to Customer, which notice will state the effective date for the
charge modifications. In the event WorldCom notifies Customer of the
elimination of a Service offering and/or an increase in the charge,
Customer may terminate the affected Service without incurring a
cancellation charge. In order to cancel that offering, Customer must notify
WorldCom, in writing, at least fifteen (15) days prior to the effective
date of the increase in charges.
9. WARRANTY; DISCLAIMER OF WARRANTIES; LIMITED LIABILITY: CUSTOMER ASSUMES
TOTAL RESPONSIBILITY FOR CUSTOMER AND CUSTOMER USER'S USE OF THE SERVICES.
WORLDCOM MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR
ENDORSEMENTS REGARDING ANY MERCHANDISE, INFORMATION, PRODUCTS OR SERVICES
PROVIDED THROUGH THE INTERNET. THE SERVICE IS PROVIDED ON AN "AS IS" AND
"AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT OR
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NO ADVICE OR INFORMATION GIVEN BY WORLDCOM'S EMPLOYEES, AGENTS OR
CONTRACTORS SHALL CREATE A WARRANTY. UNDER NO CIRCUMSTANCES SHALL WORLDCOM
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES THAT RESULT FROM CUSTOMER OR CUSTOMER USERS' USE OF
OR INABILITY TO ACCESS ANY PART OF THE INTERNET OR CUSTOMER OR CUSTOMER
USERS' RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED
ON OR THROUGH THE SERVICE, OR THAT RESULT FROM
<PAGE> 10
MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS,
DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE. If
Customer is dissatisfied with the Service, excluding the remedies set
forth in 8(B), Customer's sole exclusive remedy is to terminate this
Agreement.
10. INDEMNIFICATION: Customer agrees to indemnify, hold harmless, and defend
WoldCom, its respective directors, officers, agents, employees and/or
representatives from and against any and all claims, demands, causes of
action, losses, expenses or liabilities, including reasonable attorney's
fees, on account of injury or death of any person or loss of or damage to
any and all property arising, directly or indirectly, out of the acts or
omissions of Customer, any subcontractor, director, officer, agent,
employee and/or representative of each of them, in the performance of any
work under this Agreement, except to the extent such cause of action,
loss, expense or liability is caused solely by the gross negligence of
WorldCom.
11. NOTICES: Notices under this Agreement shall be in writing and delivered to
the person identified below at the offices of the parties as they appear
below, or as otherwise provided for, by proper notice hereunder. Notices
will be effective and deemed delivered (i) three (3) business days after
posting with the United States Postal Service ("U.S. Mail") when mailed by
certified mail, return receipt requested; (ii) one (1) business day after
pick-up by a courier service when sent by overnight courier; or (iii) one
(1) business day after the date of the sender's electronic confirmation of
receipt when sent by facsimile transmission. The party sending a notice by
U.S. Mail or overnight courier will bear the postage charges required for
the selected delivery method. Parties to receive notices are:
IF TO WORLDCOM: IF TO CUSTOMER:
Director of Marketing Director, Legal Affairs
- ------------------------------------- ----------------------------------------
(NAME - PARTY TO RECEIVE NOTICES) (NAME - PARTY TO RECEIVE NOTICES)
Address (not P.O. Box address): Address (not P.O. Box address):
515 East Amite 10355 N. De Anza Blvd.
- ------------------------------------- ----------------------------------------
Fourth Floor
- ------------------------------------- ----------------------------------------
Jackson, MS 39201-2702
- ------------------------------------- ----------------------------------------
Phone No.: 601-974-8425 Phone No.: 408-863-6602
-------------------------- -----------------------------
Fax No.: 601-974-8450 Fax No.: 408-777-1451
---------------------------- -------------------------------
12. USE OF SERVICE: The provision of Service will not create a partnership or
joint venture between the parties or result in a joint communications
service offering to any third parties. Only upon express written consent
shall Customer be permitted to use WorldCom's name, trademarks, tradename,
service marks or any other intangible property owned by WorldCom for the
promotion of Customer's use of the Service.
13. GENERAL: Customer may not assign this Agreement. Customer may not
subcontract with other persons or entities to undertake any of Customer's
obligations that are set forth in this Agreement. Any legal action arising
out of this Agreement must be brought within one (1) year.
14. SURVIVAL OF TERMS: The terms and provisions contained in this Agreement
that by their sense and content are intended to survive the performance
thereof by the parties hereto shall so survive the completion of
performance and termination of this Agreement, including, without
limitation, provisions for indemnification and the making of any and all
payments due hereunder.
C. ENTIRE AGREEMENT: This Agreement, including any documents incorporated
herein by reference, and the WorldCom Commercial Application for
Credit, constitutes the full understanding of the parties and
supersedes any and all previous representations, understandings or
agreements between the parties and shall prevail notwithstanding any
variance with terms and conditions of any order submitted.
<PAGE> 11
This Agreement is subject to the Credit Application forms executed in
connection with the services provided herein and sets forth the entire
Agreement and understanding of the parties relating to the subject matter
covered, and supersedes and cancels all prior agreements between Customer and
WorldCom relating to MAE services. Limitations may apply to combining the Term
discount with other special offers. Modifications to the standard terms and
conditions contained in this Agreement are not permitted and shall not be
valid. Activation of Service shall indicate WorldCom's acceptance of this
Agreement Customer acknowledges that WorldCom is under no duty, implied or
otherwise, to activate the Service and will not be subject to liability, if
any, under the terms of this Agreement until such Service is activated. As
authorized agent of Customer, I agree to the above terms and conditions of this
Agreement.
Name: PETER OLSON
---------------------------------------------------------------
Company/Account Name: TELOCITY, INC.
-----------------------------------------------
Signature: /s/ PETER D. OLSON
----------------------------------------------------------
Title: C.T.O.
--------------------------------------------------------------
Date: 8/23/99
------------------------
<PAGE> 12
[WORLDCOM LOGO] CUSTOMER SERVICE ORDER FORM
<TABLE>
<CAPTION>
ORDER
<S> <C> <C> <C>
Billed Company Name: Telocity, Inc. Customer Desired Date: 10/30/1999
Service Type: SONET oc3 point-to-point Related Order Id:
Quantity: 1 Contract Term: 01
Order Id: I11267 Contract Unit: year
Initiator: Andrew Robinson Billing Address: 10355 N De Anza Blvd. 1st Fl
Initiator Company Name: Telocity, Inc. Cupertino, CA 95014-2027
Initiator Phone: (408) 863-5656
Initiator Fax: (408) 777-1451
</TABLE>
<TABLE>
<CAPTION>
LOCATION 1 LOCATION 2
<S> <C> <C> <C>
Address: 10355 N De Anza Blvd Address: 55 S Market St
Cupertino, CA 95014-2027 San Jose, CA 95113-2324
Company: Telocity Company: Mae West
Floor: 1st Room: telco Floor: 10 Room: colo 3
Customer Circuit: Customer Circuit:
Customer PO: Customer PO:
Technical Contract: Andrew Robinson Technical Contact: Dan Schafer (7480)
Technical Contact Phone: (408) 863-6656 Technical Contact Phone: (415) 395-7480
</TABLE>
<TABLE>
<CAPTION>
DS-0
<S> <C> <C>
DS0 Service Type:
DS-1 DS-3 EQUIPMENT
Line Coding: Framed: Equipment Type:
Framing:
</TABLE>
OTHER SERVICES
Description; optical
REMARKS
1. please note that location 1 will be added to the network, thus, we
2. will NOT need a type2 circuit.
3.
SERVICE CHARGES
<TABLE>
<CAPTION>
MONTHLY RECURRING CHARGES NON-RECURRING CHARGES
<S> <C> <C> <C> <C>
Unit $ Total $ Unit $ Total $
Facility Charge: [*] [*] [*] [*]
Equipment Charge: [*] [*] [*] [*]
Total Charges: [*] [*]
</TABLE>
Customer Approval /s/ PETER OLSON
---------------------------------------------------------------
SIGNATURE TITLE DATE
Services which are under the jurisdiction of the Federal Communication (F.C.C.)
will be provided subject to the terms and conditions of applicable Worldcom,
Inc. tariffs on file with the F.C.C.. Services subject to state jurisdiction
will be rendered according to terms and conditions set forth in WorldCom, Inc.
tariffs filed with the applicable regulatory agency of the state in which the
service is provided. All relevant tariff provisions are incorporated by
reference in any customer service order. Tariffs are available for inspection
from the F.C.C. or the state regulatory agency, as appropriate or from
WorldCom, Inc.
FOR WORLDCOM INTERNAL USE ONLY
SIGNATURE TITLE DATE
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 13
[WORLDCOM LOGO] CUSTOMER SERVICE ORDER FORM
ORDER
<TABLE>
<S> <C>
Billed Company Name: Telocity, Inc. Customer Desired Date: 10/30/1999
Service Type: SONET oc3 point-to-point Related Order Id:
Quantity: 1 Contract Term: 01
Order Id: I11267 Contract Unit: year
Initiator: Andrew Robinson Billing Address: 10355 N De Anza Blvd 1st Fl
Initiator Company Name: Telocity, Inc. Cupertino, CA 95014-2027
Initiator Phone: (408) 863-6656
Initiator Fax: (408) 777-1451
LOCATION 1 LOCATION 2
Address: 10355 N De Anza Blvd Address: 55 S Market St
Cupertino, CA 95014-2027 San Jose, CA 95113-2324
Company: Telocity Company: Mae West
Floor: 1st Room: telco Floor: 10 Room: colo 3
Customer Circuit: Customer Circuit:
Customer PO: Customer PO:
Technical Contact: andrew robinson Technical Contact: Dan Schafer (7480)
Technical Contact Phone: (408) 863-6656 Technical Contact Phone: (415) 395-7480
DS-0
DS0 Service Type:
DS-1 DS-3 EQUIPMENT
Line Coding: Framed: Equipment Type:
Framing:
OTHER SERVICES
Description: optical
</TABLE>
REMARKS:
1: please note that location 1 will be added to the network, thus, we
2: will NOT need a type2 circuit.
3:
SERVICE CHARGES
<TABLE>
<CAPTION>
Monthly Recurring Charges Non-Recurring Charges
Unit $ Total $ Unit $ Total $
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Facility Charge: [*] [*] [*] [*]
Equipment Charge: [*] [*] [*] [*]
Total Charges: [*] [*]
</TABLE>
Customer Approval /s/ PETER OLSON
--------------------------------------------------------------
SIGNATURE TITLE DATE
Services which are under the jurisdiction of the Federal Communication (F.C.C.)
will be provided subject to the terms and conditions of applicable WorldCom,
Inc. tariffs on file with the F.C.C. Services subject to state jurisdiction will
be rendered according to terms and conditions set forth in WorldCom, Inc.
tariffs filed with the applicable regulatory agency of the state in which the
service is provided. All relevant tariff provisions are incorporated by
reference in any customer service order. Tariffs are available for inspection
from the F.C.C. or the state regulatory agency, as appropriate or from
WorldCom, Inc.
FOR WORLDCOM INTERNAL USE ONLY
SIGNATURE TITLE DATE
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 14
[WORLDCOM LOGO] CUSTOMER SERVICE ORDER FORM
ORDER
<TABLE>
<S> <C>
Billed Company Name: Telocity, Inc. Customer Desired Date: 10/29/1999
Service Type: SONET oc3 point-to-point Related Order Id:
Quantity: 1 Contract Term: 03
Order Id: I24283 Contract Unit: years
Initiator: Andrew Robinson Billing Address: 10355 N De Anza Blvd 1st Fl
Initiator Company Name: Telocity, Inc. Cupertino, CA 95014-2027
Initiator Phone: (408) 863-6656
Initiator Fax: (408) 777-1451
LOCATION 1 LOCATION 2
Address: 1919 Gallows Rd. Address: 1755 Old Meadow Rd
Vienna, VA 22182-3964 McLean, VA 22102-4301
Company: MFS MAE EAST Company: Level 3 Communications
Floor: P1 Room: colo Floor: 1 Room:
Customer Circuit: Customer Circuit:
Customer PO: Customer PO:
Technical Contact: John Milne (2017) Technical Contact: Annette Martin
Technical Contact Phone: (703) 506-2017 Technical Contact Phone: (800) 373-2499
DS-0
DS0 Service Type:
DS-1 DS-3 EQUIPMENT
Line Coding: Framed: Equipment Type:
Framing:
OTHER SERVICES
Description: optical
</TABLE>
REMARKS:
1: this is a new oc-3c between the level3 collocation site at loc2 and
2: MAE East at loc1.
3:
SERVICE CHARGES
<TABLE>
<CAPTION>
Monthly Recurring Charges Non-Recurring Charges
Unit $ Total $ Unit $ Total $
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Facility Charge: [*] [*] [*] [*]
Equipment Charge: [*] [*] [*] [*]
Total Charges: [*] [*]
</TABLE>
Customer Approval /s/ PETER OLSON
--------------------------------------------------------------
SIGNATURE TITLE DATE
Services which are under the jurisdiction of the Federal Communication (F.C.C.)
will be provided subject to the terms and conditions of applicable WorldCom,
Inc. tariffs on file with the F.C.C. Services subject to state jurisdiction will
be rendered according to terms and conditions set forth in WorldCom, Inc.
tariffs filed with the applicable regulatory agency of the state in which the
service is provided. All relevant tariff provisions are incorporated by
reference in any customer service order. Tariffs are available for inspection
from the F.C.C. or the state regulatory agency, as appropriate or from
WorldCom, Inc.
FOR WORLDCOM INTERNAL USE ONLY
SIGNATURE TITLE DATE
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 15
[WORLDCOM LOGO] CUSTOMER SERVICE ORDER FORM
ORDER
<TABLE>
<S> <C>
Billed Company Name: Telocity, Inc. Customer Desired Date: 10/29/1999
Service Type: SONET oc3 point-to-point Related Order Id:
Quantity: 1 Contract Term: 03
Order Id: I24283 Contract Unit: years
Initiator: Andrew Robinson Billing Address: 10355 N De Anza Blvd 1st Fl
Initiator Company Name: Telocity, Inc. Cupertino, CA 95014-2027
Initiator Phone: (408) 863-6656
Initiator Fax: (408) 777-1451
LOCATION 1 LOCATION 2
Address: 1919 Gallows Rd. Address: 1755 Old Meadow Rd
Vienna, VA 22182-3964 McLean, VA 22102-4301
Company: MFS MAE EAST Company: Level 3 Communications
Floor: P1 Room: colo Floor: 1 Room:
Customer Circuit: Customer Circuit:
Customer PO: Customer PO:
Technical Contact: John Milne (2017) Technical Contact: Annette Martin
Technical Contact Phone: (703) 506-2017 Technical Contact Phone: (800) 373-2499
DS-0
DS0 Service Type:
DS-1 DS-3 EQUIPMENT
Line Coding: Framed: Equipment Type:
Framing:
OTHER SERVICES
Description: optical
</TABLE>
REMARKS:
1: this is a new oc-3c between the level3 collocation site at loc2 and
2: MAE East at loc1.
3:
SERVICE CHARGES
<TABLE>
<CAPTION>
Monthly Recurring Charges Non-Recurring Charges
Unit $ Total $ Unit $ Total $
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Facility Charge: [*] [*] [*] [*]
Equipment Charge: [*] [*] [*] [*]
Total Charges: [*] [*]
</TABLE>
Customer Approval /s/ PETER OLSON
--------------------------------------------------------------
SIGNATURE TITLE DATE
Services which are under the jurisdiction of the Federal Communication (F.C.C.)
will be provided subject to the terms and conditions of applicable Worldcom,
Inc. tariffs on file with the F.C.C. Services subject to state jurisdiction will
be rendered according to terms and conditions set forth in WorldCom, Inc.
tariffs filed with the applicable regulatory agency of the state in which the
service is provided. All relevant tariff provisions are incorporated by
reference in any customer service order. Tariffs are available for inspection
from the F.C.C. or the state regulatory agency, as appropriate or from
WorldCom, Inc.
FOR WORLDCOM USE ONLY
SIGNATURE TITLE DATE
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
<PAGE> 16
DIRECTIONS: Fill in information with SHADED AREAS TELOCITY
LOGO
Vendor: MCI/Worldcom
Telcom Sales
201 Spear Street, 5th Floor, SF, CA 94105
Phone: 415-228-1439
Fax: 415-228-1309
Purchase
Request Form
For purchasing department use only:
PO# CO# RLS# CDO: Y N
Acct Distribution:
- --------------------------------------------------------------------------------
Date Confirmed Vendor Contact Required Delivery Date
- --------------------------------------------------------------------------------
DATE OF REQUEST IN CURRENT YEAR'S PLAN? Requisition #
8/20/99 YES N/A
- --------------------------------------------------------------------------------
REASON FOR PURCHASE (BUSINESS JUSTIFICATION):
MAE - East, MAE - West, Ports & Colo 3 Year Contract
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Ship Via F.O.B. Point Destination Terms Taxable
- --------------------------------------------------------------------------------
In-Plant DEPARTMENT Project # Buyer
Destination Network N/A Sonia Colgan
- --------------------------------------------------------------------------------
Special Instructions (If any)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
QUANTITY Vendor Telocity
Item REQUESTED Part Number Part Number DESCRIPTION
- --------------------------------------------------------------------------------
1 1 Mae East Port Install
- --------------------------------------------------------------------------------
2 1 Mae East Port Monthly
- --------------------------------------------------------------------------------
3 1 Mae East Colo
- --------------------------------------------------------------------------------
4 1 Mae West Port Install
- --------------------------------------------------------------------------------
5 1 Mae West Port Monthly
- --------------------------------------------------------------------------------
6 1 Mae West Colo
- --------------------------------------------------------------------------------
7
- --------------------------------------------------------------------------------
8
- --------------------------------------------------------------------------------
9
- --------------------------------------------------------------------------------
10
- --------------------------------------------------------------------------------
11
- --------------------------------------------------------------------------------
12
- --------------------------------------------------------------------------------
- --------------------------------------------------------
Suggested Unit Actual Unit
Price Price Extended Amount
- --------------------------------------------------------
[*] [*] [*]
- --------------------------------------------------------
[*] [*] [*]
- --------------------------------------------------------
[*] [*]
- --------------------------------------------------------
[*] [*] [*]
- --------------------------------------------------------
[*] [*] [*]
- --------------------------------------------------------
[*] [*]
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
TOTAL VALUE OF PURCHASE REQUEST [*]
- --------------------------------------------------------
Andrew Robinson
- ------------------------ ---------------------------
REQUESTER - PRINT OR TYPE APPROVAL #1 - PRINT OR TYPE
- ---------------------------
Approval #2 - Print or Type
SIGNATURES: /s/ Andrew Robinson
------------------------ ---------------------------
REQUESTER - SIGNATURE APPROVAL #1 - SIGNATURE
/s/ PETER OLSON
- ---------------------------
Approval #2 (if necessary)
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
