LiveDeal Inc. Contracts
Sample Business Contracts
Terms for Delivery of Service - Level 3 Communications LLC and YP.Net Inc.
Services Forms
TERMS FOR DELIVERY OF SERVICE
These Terms for Delivery of Service ("Terms") apply to and will be considered a
part of any "Customer Order" signed by Customer for Services delivered by Level
3 Communications, LLC ("Level 3"). These Terms (including the specific terms for
each Service as attached) are applicable to sales of Service located in,
originating or terminating in the United States.
SECTION 1. DEFINITIONS
1.1 AFFILIATE: An entity that now or in the future, directly or indirectly
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controls, is controlled by or is under common control with a party to these
Terms. For purposes of the foregoing, "control" shall mean the ownership of:
(A) fifty percent (50%) or more of the voting power to elect the directors
of the company, or
(B) fifty percent (50%) or more of the ownership interest in said entity.
1.2 COLOCATION AREA: The location within a Gateway in which Colocation Space
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ordered by Customer is located.
1.3 COLOCATION SPACE: The location(s) within the Colocation Area of a Level
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3 Gateway where Customer is permitted to colocate communications equipment
pursuant to a Customer Order accepted by Level 3.
1.4 COMMITTED DATA RATE: The minimum data rate committed by Customer and set
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forth in the Customer Order (expressed in Megabits per second (Mbps)).
1.5 CONNECTION NOTICE: Written notice from Level 3 that the Service ordered
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has been installed by Level 3 pursuant to the Customer Order, and has been
tested and is functioning properly.
1.6 CUSTOMER: The person or entity identified as the "Customer" on any
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Customer Order.
1.7 CUSTOMER COMMIT DATE: The date that Service will be available to
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Customer, as set forth in the Customer Welcome Letter or such other written
notice from Level 3 to Customer.
1.8 CUSTOMER ORDER A request for Level 3 Service submitted by Customer in
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the form designated by Level 3.
1.9 CUSTOMER PREMISES: The location or locations occupied by Customer or its
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end users to which Service is delivered.
1.10 CUSTOMER WELCOMELETTER A written communication from Level 3 to Customer
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informing Customer of Level 3's acceptance of the Customer Order.
1.11 EXCUSED OUTAGE: Any outage, unavailability, delay or other degradation
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of Service related to, associated with or caused by scheduled maintenance
events, Customer actions or inactions, Customer provided power or equipment, any
third party, excluding any third party directly involved in the operation
and maintenance of the Level 3 network but including, without limitation,
Customer's end users, third party network providers, traffic exchange points
controlled by third parties, or any power, equipment or services provided by
third parties, or an event offeree majeure as defined in Section 7.1.
1.12 FACILITIES: Property owned or leased by Level 3 and used to deliver
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Service, including terminal and other equipment, wires, lines, ports, routers,
switches, channel service units, data service units, cabinets, racks, private
rooms and the like.
1.13 GATEWAY: Buildings owned or leased by Level 3 for the purpose of,
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among others, locating and colocating communications equipment
1.14 LOCAL LOOP: The connection between Customer Premises and the
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Level 3 intercity backbone network.
1.15 OFF-NET: Traffic that originates from or terminates to any location
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that is not on the Level 3 network.
1.16 OFF-NETSEND TRAFFIC: Send Traffic that terminates to any location that
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is not on the Level 3 network.
1.17 ON-NET: Traffic that originates from and terminates to a location that
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is on the Level 3 network.
1.18 ON-NET SEND TRAFFIC: Send Traffic that terminates to a location that
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is on the Level 3 network.
1.19 ON-NET INTRACITY SEND TRAFFIC: On-Net Send Traffic that does not
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transit Level 3's long haul transmission facilities.
1.20 PROTECTED: (3)Link(SM) Private Line Service that includes a protection
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scheme that allows traffic to be re-routed in the event of a fiber cut or
equipment failure.
1.21 RECEIVE TRAFFIC: Traffic from any origination point that is received by
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Customer from the Level 3 network.
1.22 REMOTE HANDS: Basic on-site, first-line maintenance and support
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consistent with Level 3's then current Remote Hands Service Policy and Managed
installation Policy, as amended by Level 3 from time to time, which are
available to Customer upon request.
1.23 REVENUE COMMITMENT: A commitment by Customer to order and pay for a
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minimum volume of Services during an agreed term, as set forth in a Customer
Order
1.24 SEND TRAFFIC: Traffic from any origination point that is sent by
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Customer onto the Level 3 network.
1.25 SERVICE: Any service offered by Level 3 pursuant to a Customer Order,
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including supplying Colocation Space.
1.26 SERVICE COMMENCEMENT DATE: The first to occur of:
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(A) the date upon which Customer acknowledges that the Service has been
installed and is functioning properly; or
(B) the date set forth in any Connection Notice unless Customer notifies
Level 3 that the Service is not functioning properly as provided in Section 3.1
(or, if two or more Services are designated as "bundled" or as having a "sibling
relationship" in any Customer Order, the date set forth in the Connection Notice
for all such Services); or
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(C) the date Customer begins using me Service.
1.27 SERVICE TERM: The duration of time (measured starting on the Service
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Commencement Date) for which Service is ordered, as specified in the Customer
Order. The Service Term shall continue on a month-to-month basis after
expiration of the stated Service Term, until terminated by either Level 3 or
Customer upon thirty (30) days' written notice to the other.
1.28 SUBMARINE: Any Service that transits any portion of Level 3's
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under-sea network in the Atlantic or Pacific Oceans.
1.29 TERRESTRIAL: Any Service that generally transits Level 3's land-based
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network (with limited water crossings, including, without limitation, bay and
channel crossings) and does not in any way transit Level 3's under-sea network
in the Atlantic or Pacific Oceans.
1.30 UNPROTECTED: (3)Link(SM) Private Line Service that does not include a
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protection scheme that would allow traffic to be re-routed in the event of a
fiber cut or equipment failure.
SECTION 2. DELIVERY OF SERVICE
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2.1 SUBMISSION OF CUSTOMER ORDER(S) To order any Service, Customer may
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submit a Customer Order requesting Service. Unless otherwise agreed, Customer is
not obligated to submit Customer Orders. The Customer Order and its backup
detail must include a description of the Service, the nonrecurring charges and
monthly recurring charges for Service, applicable Service Term and/or Revenue
Commitment or other usage commitment
2.2 ACCEPTANCE BY LEVEL 3. Upon receipt of a Customer Order, if Level 3
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determines (in its sole discretion) to accept the Customer Order, Level 3 will
deliver a Customer Welcome Letter for the requested Service (or some portion of
the Services). Level 3 will become obligated to deliver ordered Service only
if Level 3 has delivered a Customer Welcome Letter respecting the Service.
2.3 CREDIT APPROVAL AND DEPOSITS. Customer will provide Level 3 with
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credit information as requested, and delivery of Service is subject to credit
approval. Level 3 may require Customer to make a deposit as a condition to
Level 3's acceptance of any Customer Order, or as a condition to Level 3's
continuation of Service, The deposit will be held by Level 3 as security for
payment of Customer's charges. When Service to Customer is terminated, the
amount of the deposit will be credited to Customer's account and any remaining
credit balance will be refunded.
2.4 CUSTOMER PREMISES. Customer shall allow Level 3 access to the
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Customer 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 at least two (2)
business days in advance of any regularly scheduled maintenance
that will require access to the Customer Premises or that may result in a
material interruption of Service. Customer will be responsible for providing and
maintaining, at its own expense, the level of power, heating and
air conditioning necessary to maintain the proper environment for the
Facilities on the Customer Premises, in the event Customer fails to do
so, Customer shall reimburse Level 3 for the actual and reasonable cost of
repairing or replacing any Facilities damaged or destroyed as a result of
Customer's failure. Customer will provide a safe place to work and comply with
all laws and regulations regarding the working conditions on the Customer
Premises.
2.5 LEVEL 3 FACILITIES. Except as otherwise agreed, title to all Facilities
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shall remain with Level 3. Level 3 will 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
Facilities, without the prior written consent of Level 3. The Facilities shall
not be used for any purpose other than that for which Level 3 provides them.
Customer shall not take any action that causes the imposition of any lien or
encumbrance on the Facilities. In no event will 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 by
Customer or third parties provided access to the Facilities by Customer in
violation of these Terms, and Customer shall reimburse Level 3 for any damages
incurred as a result thereof. Customer agrees (which agreement shall survive
the expiration, termination or cancellation of any Customer Order) to
allow Level 3 to remove the Facilities from the Customer Premises:
(A) after termination, expiration or cancellation of the Service Term in
connection with which the Facilities were used; or
(B) for repair, replacement or otherwise as Level 3 may determine is
necessary or desirable, but Level 3 will use reasonable efforts to minimise
disruptions to the Service caused thereby.
2.6 CUSTOMER-PROVIDED EQUIPMENT. Level 3 may install certain
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Customer-provided communications equipment upon installation of Service, but
Level 3 shall not be responsible for the operation or maintenance of any
Customer-provided communication equipment. 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 the Service.
SECTION 3. BILLING AND PAYMENT
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3.1 COMMENCEMENT OF BILLING. Upon installation and testing of the Service
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ordered in any Customer Order, Level 3 will deliver to Customer a Connection
Notice. Upon receipt of the Connection Notice, Customer shall have a period of
seventy two (72) hours to confirm that the Service has been installed and is
properly functioning. Unless Customer delivers written notice to Level 3 within
such seventy two (72) hour period mat the Service is not installed in accordance
with the Customer Order and functioning properly, billing shall commence on the
applicable Service Commencement Date, regardless of whether Customer
has procured services from other carriers needed to operate the Service, and
regardless of whether Customer is otherwise prepared to accept delivery of
ordered Service.
3.2 CHARGES. The Customer Order will set forth the applicable non-recurring
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charges and recurring charges for the Service. Unless otherwise expressly
specified in the Customer Order, any non-recurring charges shall be invoiced by
Level 3 to Customer upon the Service Commencement Date. However, in the event
such Service requires Level 3 to install additional infrastructure, cabling,
electronics or other materials in the provision of the Service, such Customer
Order may include (as specified therein) non-recurring charges that are payable
by
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Customer immediately upon Level 3's acceptance of such Customer Order. In the
event Customer fails to pay such nonrecurring charges within five (5) business
days following Level 3's delivery to Customer of the Customer Welcome Letter,
(i) such failure to pay shall constitute an Excused Outage for purposes of
installation of the Service; (ii) Level 3 may issue a revised Customer Commit
Date; and (iii) Level 3 may suspend installation of the Service until receipt of
such non-recurring charges. If Customer requests and Level 3 approves (in its
sole discretion) any changes to the Customer Order or Service after acceptance
by Level 3, including, without limitation, the Service installation date or
Service Commencement Date, additional non-recurring charges and/or monthly
recurring charges not otherwise set forth in the Customer Order may apply.
3.3 PAYMENT OFINVOICES. Invoices are delivered monthly. Level 3 bills in
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advance for Service to be provided during the upcoming month, except for charges
which are dependent upon usage of Service, which are billed in arrears. Billing
for partial months are prorated based on a calendar month. All invoices are due
thirty (30) days after the date of invoice. Past due amounts bear interest at a
rate of 1.5% per month (or the highest rate allowed by law, whichever is less)
beginning from the date first due until paid in full. For Level 3 (3)Voice(SM)
Service which terminates on the PSTN (Public Switched Telephone Network)
only (see Section 12), Customer will be provided, in addition to its invoice, a
summary report describing the total amount due from Customer to Level 3 and the
total cost of Customer's recurring fees, non-recurring fees and total usage
charges. Usage detail will be provided via FTP format on a daily basis.
Customer will also be provided monthly telemanagement reports as follows: a
Terminating LATA Summary Report; a Terminating LEC Report; and a Terminating
County Summary Report.
3.4 TAXES AND FEES. All charges for Service are net of applicable taxes.
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Except for taxes based on Level 3's net income, Customer will be responsible for
all applicable taxes that arise in any jurisdiction, including, without
limitation, value added, consumption, sales, use, gross receipts,
excise, access, bypass, franchise or other taxes, fees, duties, charges or
surcharges, however designated, imposed on, incident to, or based upon the
provision, sale or use of the Service.
3.5 REGULATORY AND LEGAL CHANGES. In the event of any change in applicable
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law, regulation, decision, rule or order that materially increases the costs or
other terms of delivery of Service, Level 3 and Customer will 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) Levels may pass such increased costs through
to Customer, and (b) to the extent Level 3 elects to do so, Customer may
terminate the affected Customer Order without termination liability by
delivering written notice of termination no later than thirty (30) days after
the effective date of the rate increase.
3.6 DISPUTED INVOICES. If Customer reasonably disputes any portion of a
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Level 3 invoice, Customer must pay the undisputed portion of the invoice and
submit a written claim for the disputed amount. All claims must be submitted to
Level 3 within sixty (60) days of receipt of the invoice for those Services.
Customer waives the right to dispute any charges not disputed within such sixty
(60) day period. In the event that the dispute is resolved against Customer,
Customer shall pay such amounts plus interest at the rate referenced in Section
3.3.
3.7 REVENUE COMMITMENT. In the event that Customer makes a Revenue
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Commitment in any Customer Order, then Customer will be billed for and be
responsible to pay the greater of (a) the recurring charges for Service ordered
and delivered, or (b) the amount of the Revenue Commitment.
3.8 TERMINATION CHARGES. (A) Customer may cancel a Customer Order
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following Level 3's acceptance of the same and prior to the Customer Commit Date
upon prior written notice to Level 3. In the event that Customer does so, or in
the event that the delivery of such Service is terminated by Level 3 prior to
delivery of a Connection Notice due to a failure of Customer to comply with
these Terms, Customer shall pay Level 3 a cancellation charge equal to the sum
of (i) in the case of Colocation Space, the costs incurred by Level 3 in
returning the Colocation Space to a condition suitable for use by third parties,
plus (ii):
(a) any third party cancellation/termination charges related to the
installation and/or cancellation of Service;
(b) the non-recurring charges (including any non recurring charges that
were waived by Level 3 at the time of the Customer Order) for the cancelled
Service; and
(c) as the case may be, (i) one (1) month's monthly recurring charges
for the cancelled Service if written notice of cancellation is received by Level
3 more than five (5) business days prior to the Customer Commit Date, or (ii)
three (3) month's monthly recurring charges for the cancelled Service if written
notice of cancellation is received by Level 3 five (5) business days or less
prior to the Customer Commit Date.
Customer's right to cancel any particular Service under this Section 3.8(A)
shall automatically expire and shall no longer apply upon Level 3's delivery to
Customer of a Connection Notice for such Service.
(B) In addition to Customer' right of cancellation under Section 3.8(A) above,
Customer may terminate Service prior to the end of the Service Term upon thirty
(30) days' prior written notice to Level 3, subject to the following termination
charges. In the event that after either the Customer Commit Date or Customer's
receipt of the Connection Notice for a particular Service (whichever occurs
first) and prior to the end of the Service Term, Customer terminates Service or
in the event that the delivery of Service is terminated due to a failure of
Customer to comply with these Terms, Customer shall pay Level 3 a termination
charge equal to the sum of (i) in the case of Colocation Space, the costs
incurred by Level 3 in returning the Colocation Space to a condition suitable
for use by third parties, plus (ii):
(a) any third party cancellation/termination charges related to the
installation and/or termination of Service;
(b) the non-recurring charges (including any non- recurring charges
that were waived by Level 3 at the time of the Customer Order) for the cancelled
Service, if not already paid; and
(c) the percentage of the monthly recurring charges for the terminated
Service calculated from the effective date of termination as (1) 100% of the
remaining monthly recurring charges that would have been incurred for the
Service for
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months 1-12 of the Service Term, plus (2) 50% of the remaining monthly recurring
charges that would have been incurred for the Service for months 13 through the
end of the Service Term.
3.9 FRAUDULENT USE OF SERVICES. Customer is responsible for ail charges
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attributable to Customer incurred respecting Service, even if incurred
as the result of fraudulent or unauthorized use of Service; except Customer
shall not be responsible for fraudulent or unauthorized use by Level 3 or its
employees.
3.10 SERVICE TERM. Except as otherwise set forth herein, Level 3 shall
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deliver the Service for the entire duration of the Service Term, and Customer
shall pay all charges for delivery thereof through the end of the Service Term.
SECTION 4. DISCONTINUANCE OFCUSTOMERORDERS
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4.1 DISCONTINUANCE OF CUSTOMER ORDER BY LEVEL 3. Level 3 may terminate any
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Customer Order and discontinue Service without liability:
(A) If Customer fails to pay a past due balance for Service (other than
amounts reasonably disputed under Section 3.6) (i) within three (3) business
days after written notice from Level 3 respecting charges invoiced in arrears,
or (ii) within seven (7) business days after written notice from Level 3
respecting charges invoiced in advance;
(B) if Customer violates any law, rule, regulation or policy of any
government authority related to Service; if Customer makes a material
misrepresentation to Level 3 in connection with the ordering or delivery of
Service; if Customer engages in any fraudulent use of Service; or if a court or
other government authority prohibits Level 3 from furnishing Service;
(C) if Customer fails to cure its breach (other than as addressed in
sub-Sections (A), (B), (D) or (E) of this Section 4.1) of any of these Terms or
any Customer Order within thirty (30) days after 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; or
(E) if Customer's use of Service materially exceeds Customer's credit
limit unless within one (1) day's written notice thereof by Level 3,
Customer provides adequate security for payment for Service.
4.2 EFFECT OF DISCONTINUANCE. Upon Level 3's discontinuance of Service to
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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 pursuant to Section 3.8.
4.3 DISCONTINUANCE OF CUSTOMER ORDER BY CUSTOMER.
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(A) If Level 3's installation of Service is delayed for more than thirty (30)
business days beyond the Customer Commit Date for reasons other than an Excused
Outage, Customer may terminate and discontinue the affected Service upon written
notice to Level 3 and without payment of any applicable termination charge;
provided such written notice is delivered prior to Level 3 delivering to
Customer the Connection Notice for the affected Service. This Section 4.3(A)
shall not apply to any Off-Net Local Loop Service, including, without
limitation, (3)Link(SM) Metropolitan Private Line (Off-Net) Service, provisioned
by Level 3 through a third party carrier for the benefit of Customer.
(B) Customer may terminate and discontinue affected Service prior to the end of
the Service Term without payment of any applicable termination charge if: (i)
such Service is Unavailable (as defined below) on two or more separate occasions
of more than eight (8) hours each in any thirty (30) day period, and (ii)
following written notice thereof from Customer to Level 3, the same Service is
Unavailable for more than twelve (12) hours at any time within the ninety (90)
day period immediately following said notice. For purposes of the foregoing,
"Unavailable" shall mean a total interruption in Service, except for any
interruption which is an Excused Outage. The duration of any interruption will
commence when Customer reports an outage to the Level 3 Customer Service and
Support Organization (1-877-4LEVEL3) and will end when the Service is operative.
Customer may only terminate Service which is Unavailable, and must exercise its
right to terminate any affected Service under this Section, in writing, within
thirty (30) days after the event giving rise to a right of termination
hereunder. This Section 4.3(B) shall not apply to Unprotected (3)Link(SM)
Private Line Service or (3)Link(SM) Wavelength Service.
(C) In the event Customer elects to cancel the affected Service pursuant to this
Section 4.3, Customer shall have no right to, and Level 3 shall have no
obligation to pay, any Service Level credit(s) pursuant to Section 15 for the
discontinued Service.
SECTION 5. LIABILITIES
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5.1 SERVICE INTERRUPTIONS AND DELIVERY. Level 3 provides specific remedies
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regarding installation and performance of Service as set forth in Section 15
below ("Service Levels "). In the event of a failure to deliver Service in
accordance with the Service Levels, Customer's sole remedies are contained in
(a) the Service Levels applicable (if any) to the affected Service, and (b)
Section 4.3.
5.2 NO SPECIAL DAMAGES. Notwithstanding any other provision hereof,
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neither party shall be liable for any indirect incidental, special,
consequential, exemplary or punitive damages (including but not limited to
damages for lost profits, lost revenues or the cost of purchasing replacement
services) arising out of the performance or failure to perform under any
Customer Order.
5.3 DISCLAIMER OF WARRANTIES. LEVEL 3 MAKES NO WARRANTIES OR
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REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW,
STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN ANY APPLICABLE SERVICE
LEVELS.
SECTION 6. PUBLICITY
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6.1 PUBLICITY. Neither party shall have the right to use the other party's or
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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 any contractual relationship between Level 3 and Customer, except as may be
required by law or agreed between the parties in writing.
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6.2 DISCLOSURE OF CUSTOMER INFORMATION. Level 3 reserves the right to provide
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any customer or potential customer bound by a nondisclosure agreement access to
a list of Level 3's customers and a description of Service purchased by such
customers. Customer consents to such disclosure, including the listing of
Customer's name and Service purchased by Customer (financial terms relating to
the purchase shall not be disclosed).
SECTION 7. GENERAL TERMS
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7.1 FORCE MAJEURE. Neither party shall be liable, nor shall any credit
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allowance or other remedy be extended, for any failure of performance or
equipment due to causes beyond such party's reasonable control. In the event
Level 3 is unable to deliver Service as a result of force majeure, Customer
shall not be obligated to pay Level 3 for the affected Service for so long as
Level 3 is unable to deliver.
7.2 ASSIGNMENT AND RESALE. Customer may not assign its rights and
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obligations under a Customer Order without the express prior written consent of
Level 3, which will not be unreasonably withheld. These Terms shall apply to
any permitted transferees or assignees. Customer shall remain liable for the
payment of all charges due under each Customer Order. Customer may resell the
Service to third party "end users", provided that Customer agrees to indemnify,
defend and hold Level 3 harmless from claims made against Level 3 by such end
users.
7.3 NOTICES. Notices hereunder shall be deemed properly given when
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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: Director, Customer Contracts - Legal Dept, Level 3
Communications, LLC, 1025 Eldorado Boulevard, Broomfield CO 80021. Customer
shall notify Level 3 of any changes to its addresses listed on any Customer
Order.
7.4 INDEMNIFICATION. Each party shall indemnify the other from any claims by
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third parties and expenses (including legal fees and court costs) respecting
damage to tangible property, personal injury or death caused by such party's
negligence or willful misconduct
7.5 APPLICATION OF TARIFFS. Level 3 may elect or be required to file with
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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.
7.6 CONTENTS OF COMMUNICATIONS. Level 3 shall have no liability or
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responsibility for the content of any communications transmitted via the
Service, and Customer shall defend, indemnify and hold Level 3 harmless from
any and all claims (including claims by governmental entities seeking to impose
penal sanctions) related to such content or for claims by third parties relating
to Customer's use of Service. 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.
7.7 ENTIRE UNDERSTANDING These Terms, including any Customer Order executed
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hereunder, constitute the entire understanding of the parties related to
Service. In the event of any conflict between these Terms and the terms and
conditions of any Customer Order, these Terms shall control. These Terms shall
be governed and construed in accordance with the laws of the State of Colorado.
7.8 NO WAIVER. No failure by either party to enforce any rights hereunder
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shall constitute a waiver of such right(s).
7.9 ACCEPTABLE USE POLICY. Customer's use of Service shall at all times
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comply 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 at www.level3.com. Level 3 will notify Customer of complaints
received by Level 3 regarding each incident of alleged violation of Level 3's
Acceptable Use Policy by Customer or third parties that have gained access to
the Service through Customer. Customer agrees that it will promptly investigate
all such complaints and take all necessary actions to remedy any actual
violations of Level 3's Acceptable Use Policy. Level 3 may identify to the
complainant that Customer, or a third party that gained access to the Service
through Customer, is investigating the complaint and may provide the complainant
with the necessary information to contact Customer directly to resolve the
complaint Customer shall identify a representative for the purposes of receiving
such communications. Level 3 reserves the right to install and use, or to have
Customer install and use, any appropriate devices to prevent violations of its
Acceptable Use Policy, including devices designed to filter or terminate access
to Service.
7.10 DATA PROTECTION. Level 3 transfers, processes and stores data in and
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to the United States. Customer consents that Level 3 can transfer, store and
process such data in the United States. Level 3 may use anonymous,
non-personal data to monitor customer trends and for other internal
marketing purposes. This data will not be disclosed to third parties.
SECTION 8. (3) LINK(SM) PRIVATE LINE SERVICE
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8.1 APPLICABILITY. This Section is applicable only where Customer orders
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(3)Link(SM) Private Line Service.
8.2 SERVICES FROM OTHERS. Where necessary for the interconnection of
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(3)Link(SM) Private Line Service with services provided by others, Customer will
provide Level 3 with circuit facility assignment information, - firm order
commitment information and the design layout records necessary to enable Level 3
to make the necessary cross-connection between the (3)Link(SM) Private Line
Service and Customer's designated carrier. Any delay by Customer in providing
such information to Level 3 may delay Level 3's provision of the necessary
cross-connection. Notwithstanding any such delay in the provision of the
cross-connection, billing for the (3)Link(SM) Private Line Service shall
commence on the Service Commencement Date as provided in Section 3.1. Level 3
may charge Customer non-recurring and monthly recurring cross- connect fees to
make such connection.
8.3 CONNECTION TO CUSTOMER PREMISES.
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(A) Where (3)Link(SM) Private Line Service is being terminated Off-Net at the
Customer Premises through an Off-Net Local Loop to be provisioned by Level 3 on
behalf of
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Customer, the charges set forth in the customer Order for such Service assumes
that such Service will be terminated at a pre-established demarcation point or
minimum point of entry (MPOE) in the building within which the Customer Premises
is located, as determined by the local access provider. Level 3 may charge
Customer additional non-recurring charges and/or monthly recurring charges not
otherwise set forth in the Customer Order for such Off-Net Service where the
local access provider determines that it is necessary to extend the demarcation
point or MPOE through the provision of additional infrastructure, cabling,
electronics or other materials necessary to reach the Customer Premises. Level 3
will notify Customer of any additional non-recurring charges and/or monthly
recurring charges as soon as practicable after Level 3 is notified by the local
access provider of the amount of such charges.
(B) In addition, where (3)Link(SM) Private Line Service is being terminated
Off-Net at the Customer Premises through an Off-Net Local Loop to be provisioned
by Level 3 on behalf of the Customer, the charges and the Service Term set forth
in the Customer Order for such Service assumes that such Off-Net Local Loop can
be provisioned by Level 3 through the local access provider selected by Level 3
(and/or Customer) for the stated Service Term. In the event Level 3 is unable to
provision such Off-Net Local Loop through the selected local access provider or
the selected local access provider requires a longer Service Term than that set
forth in the Customer Order, Level 3 reserves the right, regardless of whether
Level 3 has accepted the Customer Order, to suspend provisioning of such Off-Net
Local Loop and notify Customer in writing of any additional non-recurring
charges, monthly recurring charges and/or Service Term that may apply. Upon
receipt of such notice, Customer will have five (5) business days to accept or
reject such changes. If Customer does not respond to Level 3 within the five (5)
business day period, such changes will be deemed rejected by Customer, in the
event Customer rejects the changes (whether affirmatively or through the
expiration of the five (5) business day period), the affected Off-Net Local Loop
will be cancelled without cancellation or termination liability of either party.
SECTION 9. (3) LINK(SM) WAVELENGTH SERVICE
---------------------------------------------
9.1 APPLICABILITY. This Section is applicable only where Customer orders
--------------
(3)Link(SM) Wavelength Service.
9.2 INTERCONNECTION.
----------------
(A) To use the (3)Link(SM) Wavelength Service, Customer must provide to
Level 3, at each termination node a SONET or SDH-framed 2.5Gb or 10Gb (or
greater, as applicable) signal as more particularly described in Level 3's
standard interconnection Specifications and Hand-off Requirements (available to
Customer upon request) (Traffic"), which Traffic will thereafter be delivered by
Level 3, in like format, to the opposite and corresponding termination node. The
demarcation point for the (3)Link(SM) Wavelength Service shall be the Level 3
OSX or fiber termination panel at the termination node. Customer shall be solely
responsible for providing all interconnection equipment used both to deliver to
or to accept Traffic from Level 3 in the formats described above and for any and
all protection schemes Customer chooses to implement respecting the Traffic. For
a termination node at a location other than a Level 3 Gateway, Customer shall
provide Level 3 with space and power (at no charge to Level 3), as reasonably
requested by Level 3, for placement and operation of an OSX, fiber termination
panel or other equipment within the Customer Premises.
(B) With respect to construction of Facilities to the Customer Premises and
installation, maintenance and repair of facilities within the Customer Premises,
Customer shall provide Level 3 with access to and the use of Customer's entrance
Facilities and inside wiring, and/or shall procure rights for Level 3 allowing
the placement of Facilities necessary for installation of Facilities to deliver
the (3)Link(SM) Wavelength Service to the Customer Premises. All costs
associated with procuring and maintaining rights needed to obtain entry to the
building (and the real property on which the building is located) within which
the Customer Premises are located, and costs to procure and maintain rights
within such building to the Customer Premises, shall be borne by Customer.
9.3 LEASE TO IRU CONVERSION. At any time during the Service Term, Customer shall
------------------------
have the right to convert any Terrestrial (3)Link(SM) Wavelength Service
provided on a monthly-recurring lease basis into an indefeasible right of use
("IRU") with a new Service Term of five (5) years (commencing on the date of
conversion). Such conversion shall be effective on the first day after
Customer's delivery to Level 3 of an appropriate Customer Order pursuant to
Level 3's then current Wavelengths IRU Agreement reflecting such conversion,
which Customer Order must (in order to be effective to convert a lease into an
IRU) be accompanied by payment in full of the then applicable five (5) year IRU
charges for such (3)Link(SM) Wavelength Service. The five (5) year Service Term
for the IRU shall begin at the time of conversion. Upon conversion, Customer
shall be released from all future monthly recurring charges under the original
lease that would have otherwise accrued after the date of conversion, and the
terms of Level 3's then current Wavelengths IRU Agreement shall thereafter
govern respecting delivery and use of the IRU. No portion of the charges already
paid by Customer to Level 3 for such original lease shall be refunded, rebated
or credited.
SECTION 10. (3)CENTER(SM) COLOCATION
-------------------------------------
10.1 APPLICABILITY. This Section is applicable only where Customer orders
--------------
Colocation Space.
10.2 GRANT OF LICENSE. Customer is granted the right to occupy the
-------------------
Colocation Space identified in a Customer Order during the Service Term, except
as otherwise provided in these Terms. Customer may submit multiple. Customer
Orders requesting use of Colocation Space in multiple Level 3 Gateways,
each of which shall be governed by the terms hereof. Level 3 retains the right
to access any Collocation Space for any legitimate business purpose at any time.
10.3 USE OF COLOCATION SPACE. Customer shall be permitted to use the
---------------------------
Colocation Space only for placement and maintenance of communications equipment
Customer may access the Colocation Space (and the Gateway and Colocation Area
for the sole purpose of accessing the Colocation Space) twenty four (24) hours
per day, seven (7) days per week; subject to any and all rules, regulations and
access requirements imposed by Level 3 governing such access. Customer hereby
agrees, within six (6) months of the Service Commencement Date for Colocation
Space, to use the Colocation Space for placement and maintenance of
communications or Internet access equipment. Level 3 may, upon forty five (45)
days' written notice, reclaim any portion of Colocation Space not being used
within such six (6) month period. Customer shall surrender such recaptured
Colocation Space and the monthly recurring charges shall be appropriately
reduced. No refunds shall be made to Customer
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<PAGE>
regarding recaptured Colocation Space.
10.4 LEVEL 3 MAINTENANCE. Level 3 shall perform janitorial services,
----------------------
environmental systems maintenance, power plant maintenance and other actions as
are reasonably required to maintain the Coloration Area in which the Colocation
Space is located in a condition which is suitable for the placement of
communications equipment Level 3 shall maintain the Colocation Area
in which the Colocation Space is located (but shall not be obligated to maintain
the Colocation Space itself) with a relative humidity in the range of 47.5 to
52.5% and a maximum temperature of 78 degrees. Customer shall maintain the
Colocation Space in an orderly and safe condition, and shall return the
Colocation Space to Level 3 at the conclusion of the Service Term set forth in
the Customer Order in the same condition (reasonable wear and tear excepted) as
when such Colocation Space was delivered to Customer. EXCEPT AS EXPRESSLY STATED
HEREIN OR IN ANY CUSTOMER ORDER, THE COLOCATION 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.
10.5 RELEASE OF LANDLORD. If and to the extent that Level 3's underlying
----------------------
leases so require (but only if they so require) Customer hereby agrees to
release the landlord (and its agents, subcontractors and employees) from ail
liability relating to Customer's access to the Gateway and the Colocation Area
and Customer's use and/or occupancy of the Colocation Space.
10.6 SECURITY. Level 3 will provide and maintain in working condition
---------
card readers), scanner(s) and/or other access device(s) as selected by Level
3 for access to the Colocation Area of a Gateway. Customer shall under no
circumstances "prop open" any door to, or otherwise bypass the security measures
Level 3 has imposed for access to, the Colocation Area. Level 3 will provide a
locking device on Customer's Colocation Space, which Customer shall be solely
responsible for locking and/or activating such device. In the event that
unauthorized parties gain access to the Gateway, Colocation Area and/or the
Colocation Space through access cards, keys or other access devices provided to
Customer, Customer shall be responsible for any damages caused by such parties.
Customer shall be responsible for the cost of replacing any security devices
lost or stolen after delivery thereof to Customer. In the event Customer has
reason to believe that an unauthorized party has gained access to the Colocation
Space, Level 3 will, at Customer's request, make video surveillance records of
the Colocation Area reasonably available to Customer for viewing by Customer in
the presence of a Level 3 employee. In addition, Level 3 will provide Customer
with a copy of the access logs for the Colocation Area and/or the Gateway, as
applicable, upon Customer's prior written request
10.7 PROHIBITED ACTIVITIES. Customer shall abide by any posted or otherwise
-----------------------
communicated rules relating to use of, access to, or security measures
respecting the Gateway, Colocation Area and/or the Colocation Space. Customer's
rights of access and use will be immediately terminated in the event Customer or
any of its agents or employees are in Level 3's Gateway with any firearms,
illegal drugs, alcohol or are engaging in any criminal activity, eavesdropping
or foreign intelligence. Persons found engaging in any such activity or in
possession of the aforementioned prohibited items will be immediately escorted
from the Gateway.
10.8 TERMINATION OF USE. Level 3 shall have the right to terminate
---------------------
Customer's use of the Colocation Space or the Service delivered therein in the
event that: (a) Level 3's rights to use the Gateway terminates or expires for
any reason; (b) Customer is in default hereof; (c) Customer makes any material
alterations to the Colocation Space without first obtaining the written consent
of Level 3; or (d) Customer allows personnel or contractors to enter the
Gateway, Colocation Area and/or the Colocation Space who have not been approved
by Level 3 in advance. With respect to items (b), (c) and (d), unless (in Level
3's opinion) Customer's actions interfere or have the potential to interfere
with other Level 3 customers, Level 3 shall provide Customer a written notice
and a ten (10) day opportunity to cure before terminating Customer's rights to
the Colocation Space.
10.9 REMOVAL OF EQUIPMENT. Within two (2) days following the expiration or
----------------------
termination of the Service Term for any Colocation Space, Customer shall
remove all Customer equipment from the Colocation Space. In the event
Customer fails to remove the equipment within such two (2) day period, Level 3
may disconnect, remove and dispose of Customer's equipment without prior notice.
Customer shall be responsible for any costs and expenses incurred by Level 3
resulting from Level 3's disconnection, removal, disposal and storage of
Customer's equipment, for which Customer agrees to pay such costs and expenses
and all other charges due and owing fay Customer to Level 3 under these Terms
prior to Level 3 returning any Customer equipment still in Level 3's possession.
Level 3 shall not be liable for any loss or damage incurred by Customer arising
out of Level 3's disconnection, removal, storage or disposal of Customer's
equipment
10.10 SUBLICENSES. Customer may sublicense the use of Colocation Space
------------
under the following conditions: (a) all proposed sublicensees must be approved,
in writing, by Level 3 in Level 3's sole discretion, except Customer may
sublicense the use of the Colocation Space to an Affiliate of Customer upon
prior written notice to Level 3; (b) Customer hereby guarantees that ail such
parties shall abide by the Terms; (c) Customer shall indemnify, defend and hold
Level 3 harmless from all claims brought against Level 3 arising from any act or
omission of any sublicensee or its agents; and (d) any such party shall be
considered Customer's agent and all of its acts and omissions shall be
attributable to Customer for the purposes of these Terms. In the event Customer
sublicenses use of the Colocation Space without Level 3's prior written
approval, Level 3 may upon ten (10) days' written notice reclaim the sublicensed
portion of the Colocation Space. Customer shall surrender such recaptured
Colocation Space and shall be subject to termination charges associated with the
recaptured Colocation Space as provided in Section 3.8. No refunds shall be made
to Customer regarding recaptured Colocation Space.
10.11 CHANGES.
--------
(A) Level 3 reserves the right to change (at Level 3's cost) the location or
configuration of the Colocation Space licensed to Customer within the Level 3
Gateway; provided that Level 3 shall not arbitrarily 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
Colocation Space.
(B) Notwithstanding anything in Section 3.1 to the contrary and unless otherwise
agreed in writing by the parties, in the event any Customer Order for Colocation
Space is
Page 7 of 12
<PAGE>
altered (including, without limitation, any changes in the configuration or
build-out of the Colocation Space) at Customer's request after submission and
acceptance by Level 3 that results in a delay of Level 3's delivery of such
Colocation Space to Customer, billing for such Colocation Space shall commence
no later than the original Customer Commit Date.
10.12 INSURANCE. Prior to storage of equipment or occupancy by Customer and
----------
during the Service Term, Customer shall procure and maintain the following
minimum insurance coverage: (a) Workers' Compensation in compliance with all
applicable statutes of appropriate jurisdiction (including 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 Customer's personal property located in the
Gateway. Customer acknowledges that it retains the risk of loss for, loss of
(including, without limitation, loss of use), or damage to, Customer equipment
and other personal property located in the Level 3 Gateway. Customer further
acknowledges that Level 3's insurance policies do not provide coverage for
Customer's personal property located in the Level 3 Gateway. Customer shall, at
its option, maintain a program of property insurance or self-insurance covering
loss of or damage to its equipment and other personal property located in the
Level 3 Gateway. 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. Customer shall waive and/or cause its
insurance carriers to waive all rights of subrogation against Level 3, which
will include, without limitation, an express waiver in all insurance policies.
Customer shall furnish Level 3 with certificates of insurance demonstrating that
Customer has obtained the required insurance coverages prior to use of the
Colocation Space or the storage of equipment in the Gateway. 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 Gateway on its
behalf to procure and maintain the same types, amounts and coverage extensions
as required of Customer above.
10.13 REMOTE HANDS. Customer may order and pay for Level 3 to perform
--------------
certain limited maintenance services ("Remote Hands") on Customer's equipment
within the Colocation 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 at Customer's request).
10.14 STORAGE OF CUSTOMER EQUIPMENT. Level 3 may, at its option, agree to
--------------------------------
store equipment which Customer intends to colocate in Customer's Colocation
Space for not more than forty-five (45) days prior to the scheduled Colocation
Service Commencement Date. Storage of such equipment is purely incidental to the
Services ordered by Customer and Level 3 will not charge Customer a fee for the
same. No document delivered as part of such storage shall be deemed a warehouse
receipt. Absent Level 3's gross negligence or intentional misconduct, Level 3
shall have no liability to Customer or any third party arising from such
storage. In the event Customer stores equipment for longer than forty-five (45)
days, Level 3 may, but shall not be obligated to, return Customer's equipment to
Customer without liability, at Customer's sole cost and expense.
10.15 PROMOTIONAL SIGNAGE. Customer may display a single promotional sign
---------------------
with Customer's name and/or logo on the outside of any Customer private suite
Colocation Space; provided such signage does not exceed 8 inches by 11 inches.
All other promotional signage is prohibited.
10.16 POWER. In the event the power utility increases the price paid by
------
Level 3 for power provided to any Colocation Space, Level 3 may pass-through to
Customer such price increase upon prior written notice to Customer.
SECTION 11. (3) CONNECT(SM) MODEM SERVICE
----------------------------------------------
11.1 APPLICABILITY. This Section is applicable only where Customer
--------------
orders (3)Connect(SM) Modem Service (either "Dedicated Service," "Dedicated
Service with QuickStart," or Transit Service").
11.2 TYPES OF SERVICE. 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 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 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
Premises. QuickStart will then be migrated to standard Dedicated Service. For
Dedicated Service, the (3)Connect(SM) Private Line Service necessary to support
Dedicated Service will be ordered, installed and managed by Level 3. Level 3
cannot and does not guarantee the availability of any port ordered for
installation greater than ninety (90) days from the date of submission of the
Customer Order.
SECTION 12. (3) CROSSROADS(SM) SERVICE
----------------------------------------
12.1 APPLICABILITY. This Section is applicable only where Customer orders
--------------
(3)CrossRoads(SM) Service (which may include Service designated in a Customer
Order as "Internet Access Service").
12.2 CHARGES. Customer may elect to be billed based on a fixed rate,
--------
"Destination Sensitive Billing", or a Committed Data Rate. The manner of billing
selected will be set forth in each Customer Order.
(A) Fixed rate charges or (3)CrossRoads(SM) Services consist of two (2)
components: (a) a non-recurring installation charge per port; and (b) a monthly
recurring port charge.
(B) Destination Sensitive Billing charges for (3)CrossRoads(SM) Services
consist of three (3) components: (a) a non-recurring installation charge per
port; (b) a monthly recurring port charge; and (c) monthly usage charges.
Customer's usage of (3)CrossRoads(SM) Service (both Send Traffic and Receive
Traffic) will be measured and recorded by Level 3 every five minutes. At the end
of the month, the top five percent (5%) of the Send Traffic and Receive Traffic
samples will be discarded. If the ninety-fifth (95th) percentile Receive Traffic
sample shows (3)CrossRoads3 usage greater than the usage shown in the
ninety-fifth (95th) percentile Send Traffic sample, then Customer will be billed
for the amount of (3)CrossRoads(SM) usage shown in the ninety-fifth (95th)
percentile sample for the Receive Traffic. If the ninety-fifth
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<PAGE>
(95th) percentile sample for the Send Traffic shows (3)CrossRoads(SM) usage
greater than the usage shown in the ninety-fifth (95th) percentile Receive
Traffic sample, then the total Send Traffic will be categorized as Off-Net Send
Traffic, On-Net Send Traffic and On-Net Intracity Send Traffic, and Customer
will be billed for the usage shown in the ninety-fifth (95th) percentile sample
for each category.
(C) Committed Data Rate charges for (3)CrossRoads(SM) consist of four (4)
components: (a) a non-recurring installation charge per port; (b) a monthly
recurring port charge; (c) a monthly recurring charge based on the Committed
Data Rate; and (d) monthly usage charges to the extent usage in a particular
month exceeds tie Committed Data Rate. Customer's usage of (3)CrossRoads(SM)
Service (both Send Traffic and Receive Traffic) will be sampled every five (5)
minutes for the previous five (5) minute period. At the end of the month, the
top five percent (5%) of Send Traffic and Receive Traffic samples shall be
discarded. The highest of the resulting ninety-fifth (95th) percentile for Send
Traffic and Receive Traffic will be compared to the Committed Data Rate. If the
ninety-fifth (95th) percentile of either Send Traffic or Receive Traffic is
higher than the Committed Data Rate, Customer will, in addition to being billed
for the Committed Data Rate, be billed at this ninety-fifth (95th) percentile
level for any usage in excess of the Committed Data Rate at the contracted-for
price per Megabit.
SECTION 13. (3)VOICE(SM) TERMINATION SERVICE
------------------------------------------------
13.1 APPLICABILITY. This Section is applicable only where Customer orders
--------------
(3)Voice(SM) Termination Service (which may include Service designated in a
Customer Order as (3)Voice Service).
13.2 SERVICE DESCRIPTION. (3)Voice(SM) Termination Service provides Customer
-------------------
with a combined transport and termination rate for the purpose of delivering
Customer voice traffic from the Customer Premises to the PSTN (Public Switched
Telephone Network). (3)Voice(SM) Termination Service allows Customer to bring
voice traffic to Level 3, selecting from a wide range of connectivity options,
in a Level 3 supported format (North American SS7, and when Level 3 can support
the same, North American II.5ESS PRI). Traffic delivered by Customer in a format
not supported by Level 3 will be blocked and will not be delivered by Level 3.
Level 3 does not originate any traffic pursuant to (3)Voice(SM) Termination
Services and will not accept calls seeking operator services or directory
assistance. Other examples of types of calls that are origination in nature, and
thus likewise not supported on the Level 3 network, include: 976, 911, 900,800,
and 700 calls
13.3 BILLING AND RATES.
--------------------
(A) Customer will be billed at Level 3's then current (3)Voice(SM)
Termination usage rates, billing increments and call minimums, and Level 3
reserves the right to change the same with prior notice to Customer.
(B) For Customer voice traffic in which Level 3 is unable to reasonably
determine the origin of such traffic, Level 3 will bill Customer for such
traffic at Level 3's interstate rates in proportion to the percentage of
interstate use set forth in the Customer Order ("PIU"). Customer hereby
certifies that the PIU is true and correct to the best of Customer's knowledge
and has been determined in accordance with all applicable laws and regulations.
Customer may modify the PIU from time to time upon thirty (30) days' prior
written notice to Level 3. Upon Level 3's written request, Customer agrees to
provide Level 3 with all reasonable information necessary to verify the accuracy
of the PIU as compared to voice traffic delivered by Customer to Level 3. If
Level 3 determines that the PIU is inaccurate, Level 3 reserves the right to
bill Customer at the appropriate Level 3 rates based upon Level 3's
determination of such traffic as interstate or intrastate. Customer agrees to
indemnify, defend and hold Level 3 harmless for any claims by third parties
(including local access charges for intrastate traffic) resulting from or
arising out of Level 3's use of an inaccurate PIU.
(C) The (3)Voice(SM) Termination usage rates are net of any applicable
origination charges by third party payphone providers. Customer will be
responsible for (i) all such origination charges, and (ii) tracking any traffic
associated with such origination charges in accordance with applicable law or
regulation.
SECTION 14. (3) VOICE(SM) ORIGINATION SERVICE
------------------------------------------------
14.1 APPLICABILITY. This Section is applicable only where Customer Orders
--------------
(3)Voice(SM) Origination Service.
14.2 SERVICE DESCRIPTION.
---------------------
(A) (3) Voice(SM) Origination Service provides inbound PSTN to IP
termination voice services. Customer will be provided direct inward dial
(DID) numbers) and a specified number of DS-0 ports ("Ports") as set forth in
the Customer Order. Customer (or its end users) may access the Service by
dialing a Level 3 provided DID number, after which the voice traffic originated
by Customer (or its end users) will be aggregated by Level 3 and will undergo
a net protocol conversion by Level 3 to an IP format
(B) If Customer orders "Basic On-Net" (3)Voice(SM) Origination
Service, Customer must order, as a separate Service, the Level 3
(3)CrossRoads(SM) Service to transport the media portion of the Customer traffic
to a Level 3 On-Net facility. If Customer orders "Basic Off-Net" (3)Voice(SM)
Origination Service, the traffic will initially be delivered the same way as
Basic On-Net Service, but Customer will obtain, at its own cost, an internet
connection from a third party internet service provider that peers with Level 3
to transport the traffic from the Level 3 network to an Off-Net destination.
Level 3 shall not be responsible for the service of any such third party
providers. In all cases, the traffic will be delivered back to Customer in an IP
format, after which the traffic shall be the sole responsibility of Customer.
(C) Unless otherwise agreed, the (3)Voice(SM) Origination Services shall
only be ordered and delivered to Customer in the United States.
14.3 CHARGES. For use of (3)Voice(SM) Origination Service (and excluding the
--------
charges for any other Service Customer must purchase from Level 3 to use the
same), Customer agrees to pay, on a monthly basis: (i) a port charge (the Tort
Charge") for each Port ordered; and (ii) a DID charge for each DID number
provided to Customer by Level 3. A non-recurring order processing charge and a
port installation charge will also apply for each (3)Voice(SM) Origination
Service ordered by Customer. All such charges will be stated in the Customer
Order.
14.4 PORT COMMITMENT. Each Customer Order for (3)Voice(SM) Origination
-----------------
Service shall state a number of (3)Voice(SM) Origination Service Ports that
Customer commits to buy from Level 3 for the duration of stated Service Term
(the "Port
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<PAGE>
Commitment"). The Port Commitment will commence upon the expiration of the Ramp
Period (if any) stated in the Customer Order. In any month following an
applicable Ramp Period in which Customer fails to meet its Port Commitment
Customer will be billed for and will pay Level 3 for the Ports actually used by
Customer during the month, plus a shortfall fee equal to the difference between
the Port Charges that would have been due had the Port Commitment been satisfied
and Customer's actual Port Charges.
SECTION 15. SERVICE LEVELS
-----------------------------
15.1 GENERAL. The Services are subject to the following Service Levels, as
--------
applicable to the particular Service as specified. In the event Level 3 does
not achieve a particular Service Level in a particular month, Level 3 will issue
a credit to Customer as set forth below upon Customer's request To request a
credit, Customer must contact Level 3 Customer Service within thirty (30) days
of the end of the month for which a credit is requested. Level 3 Customer
Service may be contacted by calling toll free in the U.S. 1-877-4LEVEL3 (1-
877-453-8353). In no event shall the total amount of credits issued to
Customer per month exceed the non-recurring charges ("NRC") and monthly
recurring charges ("MRC") for the affected Service.
15.2 (3)LINK(SM) PRIVATE LINE AND (3)LINK(SM) WAVELENGTHSERVICE LEVELS.
---------------------------------------------------------------------
The following service levels are applicable where Customer orders (3)Link(SM)
Private Line Service or (3)Link(SM) Wavelength Service.
(A) Installation Service Level. (1) Level 3 will exercise commercially
-----------------------------
reasonable efforts to install any (3)Link(SM) Private Line Service or
(3)Link(SM) Wavelength Service on or before the Customer Commit Date specified
for the particular Service. This installation Service Level shall not apply to
Customer Orders that contain incorrect information supplied by Customer,
Customer Orders that are altered at Customer's request after submission and
acceptance by Level 3. In the event Level 3 does not meet this Installation
Service Level for a particular Service for reasons other than an Excused Outage,
Customer will be entitled to a service credit off of the NRC and/or MRC for the
affected Service as set forth in the following tables:
For any (3)Link(SM) Private Line Service:
Installation Delay Beyond Service Level Credit
Customer Commit Date
------------------------- --------------------
1-5 business days Amount of NRC
------------------------- --------------------
6-20 business days Amount of NRC plus
charges for one (1)
day of the MRC for
each day of delay
------------------------- --------------------
21 + business days Amount of NRC plus
one (1) months' MRC
------------------------- --------------------
For any (3)Link(SM) Wavelength Service:
Installation Delay Beyond Service Level Credit
Customer Commit Date
------------------------- --------------------
1-5 business days 5% of the MRC
------------------------- --------------------
6 -20 business days 10% of the MRC
------------------------- --------------------
21 + business days 15% of the MRC
------------------------- --------------------
(2) The Installation Service Level and associated credits set forth in
sub-Section (1) above shall not apply to Off-Net Local Loop Service, including,
without limitation, (3)Link(SM) Metropolitan Private Line (Off-Net) Service,
provisioned by Level 3 through a third party carrier for the benefit of
Customer. Level 3 will pass-though to Customer any installation service level
and associated credit (if applicable) provided to Level 3 by the third party
carrier for such Off-Net Local Loop Service.
(B) Availability Service Level for Protected (3)Link(SM) Private Line Service.
--------------------------------------------------------------------------
(1) The Availability Service Level for Protected (3) Link(SM) Private Line
Service delivered over Level 3's network is 99.99% for Protected Terrestrial
(3)Link(SM) Private Line Service and 99.9% for Protected Submarine (3)Link(SM)
Private Line Service. In the event that any Protected (3)Link(SM) Private Line
Service becomes unavailable (as defined below) for reasons other than an Excused
Outage, Customer will be entitled to a service credit off of the MRC for the
affected Service based on the cumulative unavailability of the affected Service
in a given calendar month as set forth in the following table.
Cumulative Service Level Credit
Unavailability
---------------------------- --------------------
0-5 minutes No Credit
---------------------------- --------------------
5:01 minutes - 45 5% of the MRC
minutes
----------------------------
45:01 minutes - 4 hours 10% of the MRC
---------------------------- --------------------
4:01 - 8 hours 20% of the MRC
---------------------------- --------------------
8:01 -12 hours 30% of the MRC
---------------------------- --------------------
12:01 - 16 hours 40% of the MRC
---------------------------- --------------------
16:01 -24 hours 50% of the MRC
---------------------------- --------------------
24:01 + hours 100% of the MRC
---------------------------- --------------------
For purposes of this Section 15.2, "unavailable" or "unavailability" means the
duration of a break in transmission measured from the first often (10)
consecutive severely erred seconds ("SESs") on the affected Service until the
first of ten (10) consecutive non-SESs. An SES is a second with a bit error
ratio of greater than or equal to 1 in 1000.
(2) The Availability Service Levels and associated credits set forth in this
Section 15.2(B) shall not apply to Off-Net Local Loop Service, including,
without limitation, (3)Link(SM) Metropolitan Private Line (Off-Net) Service,
provisioned by Level 3 through a third party carrier for the benefit of
Customer. Level 3 will pass-though to Customer any availability service level
and associated credit (if applicable) provided to Level 3 by the third party
carrier for such Off-Net Local Loop Service.
(3) Without prejudice to Customer's right to service credits pursuant to
subsection (1) above, if the (3) Link(SM) Private Line Services are provided in
Germany, then the Availability Service Level for such (3)Link(SM) Metropolitan
Private Line (Off-Net) Service is 97.5% (based on an annual average) and (3)Link
Metropolitan Private Line (On-Net) Service is 99.9% (based on a calendar month).
(C) Availability Service Level for Unprotected (3) Link(SM)Private Line Service
---------------------------------------------------------------------------
and (3) Llnk(SM) Wavelength Service. (1) Inthe event that any Unprotected
---------------------------------------
(3)Link(SM) Private Line Service or (3)Link(SM) Wavelength Service becomes
unavailable (as defined in Section 15.2(B) above) for reasons other than an
Excused Outage, Customer will be entitled to a service credit off of the MRC for
the affected Service based on the cumulative unavailability for the affected
Service in a given calendar month as set forth in the following table:
Page 10 of 12
<PAGE>
Cumulative Unavailability Service Level Credit
------------------------- --------------------
0-24 hours No Credit
------------------------- --------------------
24:01 - 30 hours 2.5% of the MRC
------------------------- --------------------
30:01 -36 hours 5% of the MRC
------------------------- --------------------
36:01 - 42 hours 7.5% of the MRC
------------------------- --------------------
42:01 + hours 10% of the MRC
------------------------- --------------------
(2) The Availability Service Levels and associated credits set forth in this
Section 15.2(C) shall not apply to Off-Net Local Loop Service, including,
without limitation, (3)Link(SM) Metropolitan Private Line (Off-Net) - Service,
provisioned by Level 3 through a third party carrier for the benefit of
Customer. Level 3 will pass-though to Customer any availability service level
and associated credit (if applicable) provided to Level 3 by the third party
carrier for such Off-Net Local Loop Service.
15.3 (3)CrossRoads(SM). The following service levels are applicable where
----------------
Customer orders (3)CrossRoads(SM) Service.
(A) Installation Service Level. Level 3 will exercise commercially
-----------------------------
reasonable efforts to install any (3)CrossRoads(SM) Service on or before the
Customer Commit Date specified for the particular Service. This Installation
Service Level shall not apply to Customer Orders that contain incorrect
information supplied by Customer or Customer Orders that are altered at
Customer's request after submission and acceptance by Level 3. In the event
Level 3 does not meet this Installation Service Level for a particular Service
for reasons other than an Excused Outage, Customer will be entitled to a service
credit equal to the charges for one (1) day of the MRC for the affected Service
for each day of delay, up to a monthly maximum credit often (10) days.
(B) Availability Service Level. (1) The Availability Service Level for
----------------------------
(3)CrossRoads(SM) Service is 100%. The (3)CrossRoads(SM) Service is considered
unavailable if more than one (1) port is unable to send or receive traffic. In
the event that the (3)CrossRoads(SM) Service becomes unavailable for reasons
other than an Excused Outage, Customer will be entitled to a service credit off
of the MRC for the affected Service based on the cumulative unavailability of
the affected Service in a given day as set forth in the following table:
Duration of Service Unavailability Service Level Credit
---------------------------------- --------------------
0-15 minutes 1 hour
---------------------------------- --------------------
15:01 minutes - 8 hours 3 hours
---------------------------------- --------------------
8:01 -12 hours 12 hours
---------------------------------- --------------------
12:01 - 16 hours 16 Hours
---------------------------------- --------------------
16:01 - 24 Hours 1 day
---------------------------------- --------------------
(2) Without prejudice to Customer's right to service credits pursuant to
subsection (1) above, if the (3) CrossRoads(SM) Services are provided in
Germany, then the Availability Service Level for such (3)CrossRoads(SM) Services
on the Local Loop is 97.5% (based on annual average) and On-Net is 99.9% (based
on calendar month).
(C) Delay Service Level. The following Delay Service Level is measured as an
---------------------
average one-way delay over a calendar month for traffic on the Level 3 network
between Gateways. Delay measurements may be obtained from the Level 3 web site
at www.Level3.com. in the event of a delay in excess of the Service Levels set
forth below for reasons other than an Excused Outage, Customer will be entitled
to receive a service credit equal to the charges for one (1) day of the MRC for
the affected Service, up to a monthly maximum credit of one (1) day per calendar
month.
Route Delay Service Level
---------------------- -------------------
Intra-U.S. 40 ms
---------------------- -------------------
Intra-Europe 30 ms
---------------------- -------------------
London to New York, NY 40 ms
---------------------- -------------------
(D) Packet Delivery Service Level. The Packet Delivery Service Level for
--------------------------------
(3)CrossRoads(SM) Service is 99% for On-Net traffic between Gateways. Packet
Delivery is the average number of Internet Protocol (IP) packets of information
that transit the Level 3 network and are delivered by Level 3 to the intended.
On-Net destination in a calendar month. Packet Delivery measurements may be
obtained from the Level 3 web site at www.LeveI3.com. In the event Level 3 does
not meet the Packet Delivery Service Level for reasons other than an Excused
Outage or as a result of any third party local access circuit (whether
provisioned by Customer or Level 3), Customer will be entitled to receive a
service credit equal to the charges for one (1) day of the MRC for the affected
Service, up to a monthly maximum credit of one (1) day per calendar month.
15.4 (3)Connect(SM) Modem. The following service levels are applicable where
-------------------
Customer orders (3)Connect(SM) Modem Service.
(A) Installation Service Level. Level 3 will exercise commercially
----------------------------
reasonable efforts to install any (3)Connect(SM) Modem Service on or before the
Customer Commit Date specified for the particular Service. This Installation
Service Level shall not apply to Customer Orders that contain incorrect
information supplied by Customer or Customer Orders that are altered at
Customer's request after submission and acceptance by Level 3. In the event
Level 3 does not meet this Installation Service Level for a particular Service
for reasons other than an Excused Outage, Customer will be entitled to a service
credit equal to fifty percent (50%) of the Non-Recurring Charges for the
affected Service.
B) Call Success Rate (CSR) Service Level. The CSR Service Level for
------------------------------------------
(3)Connect(SM) Modem Service is 90%*. The CSR is measured by Level 3 as a
monthly average across the Level 3 modem network calculated based on the number
of IP sessions established against the total sessions attempted. An IP session
is established when the modem port is available to send, receive and
authenticate traffic. In the event Level 3 does not meet the CSR Service Level
for reasons other than an Excused Outage, Customer will be entitled to a service
credit off of the MRC for the affected Service as set forth in the following
table:
CSR Credit
------------ ---------------
88 to 89.99% 2.5% of the MRC
------------ ---------------
85 to 87.99% 5% of the MRC
------------ ---------------
80 to 84.99% 7.5% of the MRC
------------ ---------------
< 79.99% 10% of the MRC
------------ ---------------
<FN>
* The CSR Service Level does not apply to ISDN Service.
(2) Without prejudice to Customer's right to service credits pursuant to
subsection (1) above, if the (3)CrossRoads(SM) Services are provided in Germany,
then the Availability Service Level for such (3)CrossRoads(SM) Services on the
Local Loop is 97.5% (based on an annual average) and On-Net is 99.9% (based on a
calendar month).
15.5 (3)Center(SM) Colocation. The following service levels are applicable
-----------------------
where Customer orders (3)Center(SM) Colocation.
(A) Installation Service Level. This installation Service Level applies to
----------------------------
cabinet and private suite Colocation Space ordered in a Gateway. Level 3 will
exercise commercially reasonable efforts to install any Colocation Space on or
before the Customer Commit Date specified for such Colocation Space. This
Installation Service Level shall not apply to
Page 11 of 12
<PAGE>
Customer Orders which contain incorrect information supplied by Customer,
Customer Orders which are altered at Customer's request after submission and
acceptance by Level 3, or Customer Orders which require Level 3 to configure
Colocation Space to specifications other than Level 3's standard specifications
for Colocation Space (such standard specifications are available to Customer
upon request). In the event Level 3 does not meet this Installation Service
Level for a particular Colocation Space for reasons other than an Excused
Outage, Customer will be entitled to a service credit equal to the charges for
one (1) day of the MRC for the affected Colocation Space for each day of delay,
up to a monthly maximum credit of four (4) days.
(B) Power Service Level. The Availability Service Level for Level 3
----------------------
provided power to the Colocation Space is 99.99%. In the event of any power
outage for reasons other than Customer actions or omissions, Customer will be
entitled to receive a service credit equal to the charges for one (1) day of the
MRC for the affected Colocation Space (with a maximum of a one (1) day credit
for all outages in any twenty four (24) hour period).
(C) Remote Hands Response Time Service Level. The Response Time Service
--------------------------------------------
Level for Remote Hands is as set forth below. This Response Time Service Level
is measured from the time Level 3 Customer Service receives and
logs Customer's request with all of the necessary information requested by
Level 3 Customer Service, until a Level 3 technician first calls Customer in
response to the request. In the event Level 3 does not meet the following
Response Time Service Level, Customer will be entitled to a service credit equal
to the charges for one (1) day of the MRC for the affected Colocation Space
(with a maximum of a one (1) day credit for all instances of delay in a day,
with a total monthly maximum credit of seven (7) days).
Service Level
--------------------------------------
Hours Response
of Operation Time
---------------- ----------------
7 a.m. to 7 p.m. 30 minutes
(M-F)
---------------- ----------------
Off-hours, 2 hours
holidays &
weekends
---------------- ----------------
15.6 (3) Center(SM) Intra-Market Colocatiort Connection (lMCC). The following
service levels are applicable where Customer orders (3) Center IMCC Service.
(A) Installation Service Level. Level 3 will exercise commercially
reasonable efforts to install any (3)Center(SM) IMCC Service on or before the
Customer Commit Date specified for the particular Service. This Installation
Service Level shall not apply to Customer Orders that contain incorrect
information supplied by Customer, or Customer Orders that are altered at
Customer's request after submission and acceptance by Level 3. In the event
Level 3 does not meet this Installation Service Level for a particular Service
for reasons other than an Excused Outage, Customer will be entitled to a service
credit equal to the charges for one (1) day of the MRC for the affected Service
for each day of delay, up to a monthly maximum credit of four (4) days.
(B) Availability Service Level. The Availability Service Level for (3)
Center(SM) IMCC Service is 96.7%. In the event the (3)Center IMCC Service
becomes unavailable for reasons other than an Excused Outage, Customer will be
entitled to a service credit off of the MRC for the affected Service based on
the cumulative unavailability of the affected Service in a given calendar month
as set forth in the following table:
Duration of Service Level Credit
Availability
------------------- --------------------
0-24 hours No Credit
------------------- --------------------
24:01 - 48 hours 10% of MRC
------------------- --------------------
48:01 -72 hours 20% of MRC
------------------- --------------------
72:01 + hours 30% of MRC
------------------- --------------------
For purposes of this Availability Service Level, (i) "unavailable" or
"unavailability" means total interruption in the Service, and (ii) the duration
of any unavailability event will commence when Customer reports an outage to the
Level 3 Customer Service and Support Organization (1-877-4LEVEL3) and will end
when the Service is operative.
Page 12 of 12
<PAGE>
YP.net, Inc.
December 3, 2001
ADDENDUM
This Addendum (the "Addendum") made as of the 03 day of Dec, 2001, ("Effective
-- ---
Date") modifies the Level 3 Communications Terms for Delivery of Service,
version 6-0. as incorporated by Customer Orders for Usage Based (3)Connect(SM)
Modem Services submitted by YP.net, Inc. ('Customer") to Level 3 Communications,
LLC ("Level 3") (collectively the Terms). Capitalized terms used but not defined
herein shall have the meanings set forth in (he Terms. The terms and conditions
contained in this Addendum modify the Terms In the following limited respects:
1. A NEW SECTION 11.3 IS HEREBY ADDED TO PAGE 8 OF THE TERMS AS FOLLOWS:
11.3 USAGE BASED (3)CONNECT(SM) MODEM SERVICE.
--------------------------------------------
(A) Customer may submit Customer Orders to Laval 3 (for acceptance by
Level 3) for Level 3 (3)Connect(SM) Managed Modem Service to be charged by
Level 3 art a usage basis. The based (3)Connect(SM) Managed Modem Service
ordered by Customer pursuant to this Is herein called the "Usage-Based
Service", and the Usage-Based Service will be subject provisions set forth
below. This Addendum shall not affect any of Customer's (3)Connect(SM)
Managed Modem Service existing as of the date of this Addendum (if any), or
any existing commitments of Customer.
(B) For any Customer Orders for Usage-Based Service, there shall be no
minimum Revenue Commitment from Customer to Level 3.
(C) Customer will be billed and agrees to pay a non-recurring
installation charge of $5,000.00 which covers all existing markets (approx.
50) in which Level 3 agrees to deliver Usage-Based Service to Customer (the
"Existing markets"). Market is defined as a city in which Level 3
Usage-Based Service. Customer will also be billed in arrears by Level 3, on
a monthly basis for to actual usage or Level 3 Usage-Based Service on an
hourly basis for all Managed Modem sessions at the ending during the
applicable billing month. Customer will be billed for all Existing Markets
rate set forth in the chart below (for all hours in the subject month) as
such rate corresponds is with Customer's actual usage of Level 3
Usage-Based Service:
MONTHLY HOURS PRICE PER HOUR
----------------------- ---------------
MORE THAN 20,000,000 $ 0.105
5,000,001 TO 20,000,000 $ 0.110
0,000,001 TO 15,000,000 $ 0.115
500.001 TO 10,000,000 $ 0.120
3,000,001 TO 5,000,000 $ 0.110
3,000,000 OR LESS $ 0.160
Based on the foregoing and byway of example, If Customer were to use
4,000,000 hours of Usage-Based Service in a month, it would be billed
$560,000,00 for such Service (4,000,000 hours multiplied by $.140 equals
$560,000.00)
The foregoing notwithstanding, beginning three (3) months following the
Effective Date hereof, Customer shall be billed for and be liable for the
payment of, the greater of 1) Customer's actual usage or 2) twenty-five
thousand ($25,000.00) dollars per month.
<PAGE>
(D) The applicable hourly rates for Customers actual usage and any
applicable non-recurring installation charges for any additional markets
(the "Incremental Markets") where Level 3 agrees to provide Usage Based
Service within any of those Incremental Markets will be determined by Level
3 and provided to Customer prior to Level 3's delivery of Usage-Based
Service to Customer in those Incremental Markets.
(E) Managed Modem sessions will be measured starting with the User ID
tier one authentication and ending when the user disconnects from Level 3's
Network. Level 3 accounting records will be used to determine the length In
time of each subscriber call. At the end of each monthly billing period,
the accounting records for said month will be summed to produce the total
hours of Usage Based Service in a month.
(F) Customer will not have, nor shall it be entitled to any stated
number of dedicated, Level 3 Usage Based (3)Connect(SM) Modem ports.
Customer shall, on an ongoing quarterly basis, Level 3 with a non-binding
forecast (covering the period, which commences thirty (30) days after and
ends one-hundred twenty (120) days after its submission to Level 3) Getting
forth Customer's estimated forecasted usage of Level 3 Usage Based Service
on a Rate Center by Rate Center (as defined below) basis (which forecast
shall include Customer's forecasted traffic patterns). "Rate Center" as
used herein shall mean: the specific geographic point (associated with one
or more specific NPA-NXX codas and various Wire Centers) being used for
billing and measuring Service. For example, a Rate Center will normally
include several Wire Centers within its geographic area, with each Wire
Center being defined as having one or more NPA-NXXs. The forecast shall be
clearly marked as such and shall be delivered via electronic mail to the
following individual(s): [email protected] and [email protected].
---------------------- ---------------------
Level 3 shall, within ten (10) business days after receipt of the forecast,
inform Customer of any forecasted Usage Based Service Level 3 believes (in
good faith) will not be available for delivery at the locations specified
within the quarter as requested by Customer. Customer's Initial forecast
shall be submitted within fifteen (15) days after its execution of this
Addendum.
(G) The Service Level Agreement for the (3)Connect(SM) Modem Service
(as set forth 11 of the Terms) shall not apply to the Usage-Based Service.
CUSTOMER ACCEPTANCE LEVEL 3 ACCEPTANCE
By: /s/ Don M. Reese By: /s/ Todd C. Coleman
-------------------------- --------------------------
Name: Don M. Reese Name: Todd C. Coleman
-------------------------- --------------------------
Its: Consultant, DOO Its: Vice President
-------------------------- --------------------------
Date: 12-03-01 Date: December 4, 2001
-------------------------- --------------------------