|
||||||||||||
|
||||||||||||
|
||||||||||||
 |
 |
|||||||||||
|
||||||||||||
|
||||||||||||
|
|
|
 |
|||
INTERSTATE DOMESTIC TELECOMMUNICATIONS TERMS AND CONDITIONS OF SERVICEThis Terms and Conditions of Service contains the service description, terms, conditions and rates generally applicable to telecommunications services and other services furnished by iNETWORKS Group, Inc. ("iNETWORKS") and any successor entity and its subsidiary companies, hereinafter referred to as iNETWORKS between and among domestic points within the United States ("Agreement"). This Agreement applies to customers, defined as a person, firm or corporation who places orders for a service, is responsible for the payment of charges and compliance with iNETWORKS terms, conditions and regulations ("Customer"). iNETWORKS and the Customer jointly and individually are referred to as the Parties ("Parties"). Service is provided as described in this Agreement and on the service order as defined in this Agreement ("Service or Services"). 1. GENERAL TERMS AND CONDITIONS 1.1 Service Orders: Customer shall order a Service hereunder by issuing a service order request for the type and quantity of Service desired ("Service Order"). Each Service Order will describe the Services that Customer desires to purchase, and set forth the price, minimum term of Service and other details specific to the Services ordered. All Service Orders signed by the Customer shall be subject to the Terms and Conditions of the Agreement for the duration of the Service Order. Customer acknowledges that a Service Order and any attachment to a Service Order are a part of this Agreement. Once a Service Order is signed by the Customer, the Terms and Conditions contained in the Service Order, these Terms and Conditions of Services and any attachments to the Service Order shall govern and control with respect to the provision of the Service requested therein. However, iNETWORKS is under no obligation to deliver Services until an authorized iNETWORKS representative has signed the Service Order. Customer agrees that upon the placement of a Service Order, Customer will not contest or assert, and hereby releases any right to defense of (a) the validity or enforceability of any Service Orders submitted through Customer's Electronic quoting process under laws relating to whether certain offers or agreements are to be in writing and signed by the parties to be bound, and/or (b) the authority of any employee or representative of the Customer to enter into a contract for Service. Customer agrees that these Terms and Conditions of Service combined with the Service Order and any attachments to the Service Order comprise the entire Agreement. In addition, Customer acknowledges and agrees that upon signing an iNETWORKS Service Order, any terms and conditions associated with a Customer's electronic quoting or order processing system regardless of any previous agreement by the Parties and/or Customer's purchase ordering system and documents are not applicable to the Services ordered by Customer. Customer expressly acknowledges that this Agreement supercedes any and all other Customer terms and conditions of purchasing Services. No term or condition of any Service Order or this Agreement shall be modified by Customer and Customer acknowledges that this Agreement is subject to change at any time at the sole discretion of iNETWORKS. Customer shall designate on the Service Order an address to which INETWORKS shall mail or deliver all notices and other communications, except that Customer may also designate a separate address to which the iNETWORKS' bill for Service shall be mailed. All notices or other communications required to be given pursuant to this Agreement will be in writing. Notices and other communications from iNETWORKS to Customer, and all invoices mailed by iNETWORKS, shall be presumed to have been delivered to the Customer on the third business day following placement of notice, communication or invoice with the U.S. Mail or private delivery service, prepaid and properly addressed, or when actually received or refused by the addressee, whichever occurs first. iNETWORKS or the Customer shall advise the other Party of any changes to the addresses designated for notices, other communications, or billing, by following the procedures for giving notice set forth herein. 1.2 Estimated Delivery Date: As soon as iNETWORKS can with reasonable accuracy provide a date for the commencement of Service ordered on a Service Order, iNETWORKS shall issue an Estimated Delivery Date ("Estimated Delivery Date"). While iNETWORKS shall use reasonable efforts to install each Service on or before the Estimated Delivery Date, Customer acknowledges and agrees that the inability of iNETWORKS to deliver Service by the Estimated Delivery Date shall not be a breach of this Agreement. iNETWORKS shall advise Customer upon its activation of Service under any Service Order. Customer's receipt of notice from iNETWORKS that any Service has been activated shall constitute acceptance of the Service by Customer ("Service Delivery Date"), unless iNETWORKS is notified in writing within 24 hours that Customer has a material issue with the Service. iNETWORKS shall commence billing for any Services provided hereunder on the Service Delivery Date. 1.3 Term: The term of Service for each Service Order shall be identified on the Service Order ("Minimum Service Term"). In the event no term is identified on the Service Order, the Minimum Service Term for the service will be for 36 months. The commencement of the Minimum Service Term is the Service Delivery Date of the Service. Upon the expiration of the Minimum Service Term, the Service will automatically renew for successive terms of twelve (12) month periods ("Renewal Term") unless terminated by written notice provided by either party to the other no less than 60 days prior to the end of the Minimum Service Term or any Renewal Term. The Terms and Conditions of this Agreement shall apply to any Service until the termination or cancellation of that Service. Notwithstanding the above, iNETWORKS may terminate a Service at its sole discretion for convenience and without penalty within fifteen (15) days after providing written notice to the Customer of iNETWORKS termination of Service. In the event that iNETWORKS ceases to offer new Service, Services already installed shall be subject to the Terms and Conditions of this Agreement until such time that the Service has been terminated or disconnected. 1.4 Invoices and Payment: Customer shall pay iNETWORKS for Services at the rates set forth in the applicable Service Order. Normal monthly recurring charges for a Service shall be invoiced monthly in advance in the amount identified on the Service Order as the Total MRC ("MRC"), together with any non-recurring charges as identified on the Service Order as Total Non Recurring Charges ("NRC") incurred in connection with the Service in addition to any additional charges as specified on the Service Order as Additional Charges ("Additional Charges"), at the rates set forth in the applicable Service Order. iNETWORKS provides and charges for Services on a monthly basis in US Dollars. Total MRCs shall be invoiced by iNETWORKS on a monthly basis in advance and Total NRCs and the pro-rated portion of applicable MRCs for the period from the Service Delivery Date to the first day of the first full month billing period shall be invoiced in arrears. Additional Charges for other Services requested by the Customer will be billed when ordered or as identified in the Service Order. Customer shall make all undisputed payments due hereunder within thirty (30) calendar days from the date of iNETWORKS' Invoice ("Due Date"). Customer agrees to remit payment in US Dollars via company check to iNETWORKS at the address provided on the Invoice. In addition to its other rights hereunder, iNETWORKS may impose a late payment charge of the lower of 1.5% per month or the highest legally permissible ("Late Payment Charge") to the entire balance outstanding as of the Due Date and such Late Payment Charge shall be payable upon delivery of iNETWORKS' invoice to Customer. No payment due under this Agreement is subject to reduction or set-off of adjustment of any nature. In addition, iNETWORKS at its sole discretion may require the Customer to provide Performance Assurance as defined in this Agreement 1.5 Taxes and Other Fees: Customer shall pay to iNETWORKS all applicable sales, use, commercial or other similar taxes or fees that are associated with the Customer's lease, use or purchase of Services, or any other transaction hereunder including but not limited to, any sales, use, federal excise or similar taxes, franchise fees, right of way fees, license fees and surcharges, Universal Service Fund Charges ("USF") at the rate determined by the FCC and/or applicable state regulatory agency where applicable as well as any other imposition by any governmental authority which has the effect of increasing iNETWORKS' cost of providing such Services to Customer. In addition iNETWORKS may apply a recovery charge to an invoice in an amount to be determined by iNETWORKS to the extent allowed by applicable law to recover costs incurred in collecting and remitting such taxes fees and government imposed charges. All such taxes, fees and charges will be stated on the Customer's invoices. To the extent Customer claims exemption from any tax or fee or USF charges, Customer must provide a valid exemption certificate, or such taxes and fees shall be due and payable to iNETWORKS by the Due Date. Customer agrees to pay and to hold iNETWORKS harmless from and against any penalty, interest, additional tax, or other charges that may be levied or assessed as a result of a delay or failure of the Customer, for any reason to pay any tax or fee charged to Customer by iNETWORKS. Customer indemnifies iNETWORKS for any and all taxes, fees and any other charges that should have been billed and agrees to pay any such taxes, fees and other charges including any late fees or penalties in total imposed or levied on iNETWORKS for such past due taxes or other fees or penalties in total in the event that Customer's exemptions certificates, documentations or representations are not valid, expire or have expired, are provided fraudulently by the Customer and/or are misrepresented by the Customer to iNETWORKS. 1.6 Service Order Cancellation/Disconnection: If Customer cancels a Service Order(s) for its own convenience prior to the Service Delivery Date or iNETWORKS terminates a Service Order(s) for cause as set forth in this Agreement prior to the Service Delivery Date, Customer shall pay a cancellation fee in an amount calculated as one hundred percent (100%) of the Total Monthly Recurring Charges (" Total MRC") associated with the Service(s) as specified on the Service Order times the number of months in the Minimum Service Term, plus the Total Non-Recurring Charges ("Total NRC") as identified on the Service Order plus all Additional Charges ("Additional Charges") as specified on the Service Order plus any other expenses incurred by iNETWORKS as a result of such cancellation as a lump sum charge ("Cancellation Fee"). If Customer disconnects a Service(s) for its own convenience or iNETWORKS terminates a Service(s) for cause as set forth in this Agreement after the Service Delivery Date, Customer shall pay an early termination fee in an amount calculated as one hundred percent (100%) of the Total MRC associated with the Service(s) as specified on the Service Order for the un-expired portion of the Minimum Service Term or Renewal Term, plus any Charges for Services provided but not billed plus any other costs iNETWORKS may have incurred as a lump sum charge ("Termination Charge"). Customer acknowledges and agrees that in the event Customer desires to cancel a Service Order as a result of a Service not being installed after the Estimated Delivery Date, Customer remains obligated to pay a Cancellation Fee as described in this Agreement. Customer must provide iNETWORKS with sixty (60) days prior written notice of any request to disconnect or otherwise terminate any Services provided hereunder. 1.7 Payment Disputes: Upon disputing any charges, Customer shall (i) pay all undisputed charges by the Due Date; (ii) present by the Due Date a written statement of the amounts disputed in good faith in reasonable detail with supporting documentation; and (iii) negotiate in good faith to resolve any bonafide dispute within 60 calendar days. Disputed charges resolved in favor of iNETWORKS, with a Late Payment Charge, will be due and payable on the following month's bill. Disputed charges resolved in favor of the Customer will be credited to Customer and no Late Payment Charge shall apply. Charges not disputed by the Due Date are considered by the Customer to be accurate charges, are not ineligible for dispute and are considered past due. 1.8 Default: (a) Customer Default: Customer shall be in default and iNETWORKS may suspend or terminate Services hereunder at any time upon: (i) any failure of a Customer to pay any undisputed amounts as provided in this Agreement that is not cured within three (3) days after the date of written notice from iNETWORKS; (ii) any breach by the Customer of any material provision of this Agreement continuing for thirty (30) days after receipt of written notice thereof, (iii) any violation by Customer of an applicable law, rule, or regulation that is not cured within thirty (30) days after receipt of written notice thereof, (iv) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver; or similar event with respect to Customer ("Event of Default"). Should an Event of Default occur, in addition to any other rights it has according to law, iNETWORKS may suspend its performance under this Agreement so long as such default remains uncollected but only after providing written notice of such suspension to the Customer, cease accepting or processing Service Orders for Services, require Performance Assurance as defined in this Agreement and/or terminate any and all Services so long as such default remains but only after providing written notice of Customer Default to the Customer. In addition, iNETWORKS may collect the total of all charges specified herein throughout the remainder of each Service's Minimum Service Term or Renewal Term as a single amount, which shall become due and payable upon written notification to the Customer of a Customer Event of Default by iNETWORKS. (b) iNETWORKS Default: iNETWORKS shall be in Default and Customer may terminate the affected Service at any time upon: (i) any breach by iNETWORKS of any material provision of this Agreement that is not cured within thirty (30) days after receipt of written notice thereof; (ii) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or similar event with respect to iNETWORKS; or (iii) any violation by iNETWORKS of an applicable law, rule, or regulation that is not cured within thirty (30) days after receipt of written notice thereof ("Event of Default"). Termination of Services due to an Event of Default by iNETWORKS shall not relieve Customer of its obligation to pay any charges incurred hereunder prior to such termination; provided, however, Customer shall not be responsible for any Termination Charges and/or Cancellation Fees as set forth in this Agreement. (c) The Parties expressly agree that the failure of any particular Service or any number of Services to perform as described in this Agreement shall not constitute a material breach of this Agreement. (d) The Parties expressly agree that the failure to install any Service on or after the Estimated Delivery Date shall not constitute a material breach of this Agreement or an iNETWORKS Event of Default. 1.9 Performance Assurance: iNETWORKS may, in its sole discretion, require that Customer deliver Performance Assurance up to an amount equal to the total of all Non-Recurring Charges and Monthly Recurring Charges for the Service(s) for up to six months or as iNETWORKS otherwise requires. ("Performance Assurance") means any credit support in the form of (a) cash, (b) letter of credit from a commercial bank or trust acceptable by iNETWORKS, or (c) such form of credit support (including a pledge of collateral) as may be reasonably acceptable to iNETWORKS. Customer agrees to provide and/or execute any additional collateral security documents as iNETWORKS requires effecting the foregoing. Any such Performance Assurance shall be maintained as a security deposit for Customer's performance of its obligation pursuant to this Agreement. Subject to Section 1.8 of this Agreement, iNETWORKS shall return the Performance Assurance to the Customer within thirty (30) days of the termination of a Service(s) net of any outstanding balances due by the Customer for all Services including the calculation of any Termination Charge or Cancellation Fee. 1.10 Right to Assurance: If a Customer suffers a material adverse change in its financial condition, iNETWORKS may (a) require Performance Assurance as defined in this Agreement; (b) request adequate assurance of Customer's performance per applicable law; (c) decline to accept a new Service Order; (d) terminate all Services subject to a Customer Event of Default as defined in Section 1.8 of this Agreement. 1.11 Regulatory Jurisdiction: Except when required by a regulatory agency having appropriate jurisdiction, iNETWORKS shall file no tariff invalidating a provision of this Agreement. Unless otherwise required by law, in the event of any inconsistency between this Agreement and the terms of an applicable tariff, this Agreement and any Service Order placed hereunder shall prevail. Customer acknowledges that iNETWORKS will have no capability to measure or determine the point of origination or termination of any traffic Customer places on iNETWORKS' facilities, and Customer hereby warrants that a minimum of ten percent (10%) of the transmission on each Service shall be interstate transmissions or foreign transmissions as those terms are defined in 47 U.S.C Sections 153 (17) and 153 (22). If it is determined at any time that such Service is subject to regulation by a U.S. State regulatory agency, iNETWORKS may terminate the affected Service. 1.12 Assignment: Customer shall not assign or otherwise transfer its rights and obligations under this Agreement without prior written consent of iNETWORKS. Customer agrees to pay any and all costs that may be incurred by iNETWORKS to provide Services which result from any permitted assignment or transfer by the Customer. iNETWORKS may transfer, assign or otherwise in any manner encumber this Agreement and its rights and obligations hereunder without Customer's prior written consent. 1.13 Substitution, Rearrangement, Prohibition on Liens and Title: iNETWORKS may substitute, change, or rearrange any of its' equipment, facility or systems used in providing Services at any time and from time to time, but shall not thereby alter the Services provided hereunder. Customer shall not cause or allow any facility or equipment of iNETWORKS to be rearranged, moved, removed, disconnected, altered or repaired without iNETWORKS prior written consent, Customer shall not create or allow any liens or other encumbrances to be placed on any iNETWORKS equipment, facility or systems arising from any act, transaction or circumstances relating to the Customer. Customer expressly disclaims any right, title, perpetual right of use or any other interest in or to any equipment or property used or supplied by iNETWORKS under this Agreement unless otherwise specified in a Service Order or attachment. 1.14 Shortage of Facilities and Inability to Deliver Services: iNETWORKS depends on numerous vendors and subcontractors as suppliers to provide to iNETWORKS components, facilities and services that enable iNETWORKS to install and provide Services to Customers. In the event a vendor, subcontractor or supplier of iNETWORKS is unable to provide or no longer able to provide suitable facilities, due to factors outside the control of iNETWORKS and regardless of the reason vendor, supplier or subcontractor is not able to provide or is no longer able to continue to provide components, facilities, or services to iNETWORKS, iNETWORKS will undertake good faith efforts to obtain alternative replacement components, facilities or services at similar rates and terms to provide or continue to provide Service to the Customer. In the event iNETWORKS is unable to obtain replacement components, facilities or services at similar rates and terms, iNETWORKS will provide to Customer the opportunity to install wherever possible, alternative Services at rates and terms defined on the applicable Service Order. In the event iNETWORKS is unable to offer Customer the opportunity to install alternative Service, iNETWORKS may terminate existing Services after fifteen (15) days written notice to Customer without liability. 1.15 Access to Customer Premises: Customer shall allow iNETWORKS access to Customer premises to the extent determined by iNETWORK to be reasonable and appropriate to the provision and maintenance of Services, equipment, facilities, and systems hereunder. Customer shall provide iNETWORKS with current and accurate information for Customer's designated contact for access to Customer's premises. Customer shall furnish iNETWORKS, at no charge, such equipment, space and electrical power as is reasonably determined by iNETWORKS to be required and suitable to provide Services hereunder. 1.16 Force Majeure: iNETWORKS shall not be liable for any failure to deliver Services or of the performance hereunder due to causes beyond its reasonable control, including but not limited to acts of God, fire, explosion, vandalism, fiber optic cable cut, storm or other similar catastrophes, any law, order, regulation, direction, action or request of the United States government, or of any other government, including state and local governments having jurisdiction over either of the Parties, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more said governments, or of any civil or military authority; national emergencies; insurrections; riots; wars, acts of terrorism; or strikes, lock-outs, work stoppages or other labor difficulties. 1.17 Indemnification: Customer shall indemnify and hold harmless iNETWORKS, its directors, officers, employees, agents, successors, assigns ("Affiliates") and any third party provider or operator of services employed by iNETWORKS, from and against, and shall reimburse iNETWORKS and/or Affiliates for any and all losses, deficiencies, claims, damages, costs, expenses and liabilities, including cost of defense and reasonable attorney's fees and disbursements incurred by iNETWORKS and/or Affiliates sustained in any action, arising from, or in connection with: (a) any breach of covenant or agreement of Customer in this Agreement; (b) any misrepresentation or breach of any of the representations and warranties contained in this Agreement by Customer; (c) any claims for personal injury, death, or damage to property caused by the negligence or willful misconduct of Customer; or (d) any claims arising in connection with iNETWORKS performance of its obligations and duties under this Agreement. Customer shall indemnify and hold iNETWORKS and its directors, officers, employees, agents, subsidiaries and Affiliates, harmless from any loss, damage, liability or expense on account of any claim(s) and shall defend any suit and dispose of any claim(s) or other proceedings based on an allegation that use of the iNETWORKS Services infringes any United States or foreign patent or other proprietary right. Customer shall promptly notify the iNETWORKS of any such suit or claim. 1.18 Limitation of Liability: In no event shall iNETWORKS or any of their Affiliates be liable to the Customer, its employees, any of its affiliates or any other third party for any loss of profit or revenue or for any indirect, consequential, incidental, punitive or similar or additional damages incurred or suffered as a result of the unavailability, performance, non-performance, termination, breach, or other action or inaction under this Agreement, even if a Customer advises iNETWORKS of the possibility of such loss or damage. Except as provided in a Service Attachment, in no event shall iNETWORKS or any of its affiliates be liable to Customer or to any third party or any of either of their affiliates for any outage or incorrect or defective transmissions, or any direct or indirect consequences thereof incurred or suffered while using the Services. iNETWORKS entire liability for any claim from any cause whatsoever shall in no event exceed the sums actually paid to iNETWORKS during the twelve (12) months preceding the claim by the Customer for the Service giving rise to the claim. 1.19 WARRANTY: iNETWORKS HEREBY DISCLAIMS ANY LIABILITY TO CUSTOMER FOR INTERRUPTIONS AFFECTING THE SERVICES FURNISHED HEREUNDER AND CUSTOMER FURTHER AGREES THAT IS SOLE REMEDY IN THE EVENT OF ANY BREACH OF WARRANTY DESCRIPED IN SECTION 1.19 OF THIS AGREEMENT SHALL BE THE OUTAGE CREDITS DESCRIPED IN THIS AGREEMENT. THERE ARE NO WARRANTIES EITHER EXPRESSED, IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES FURNISHED PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 1.20 Non-Disclosure and Publicity: If Customer and iNETWORKS have executed a Non-Disclosure Agreement, Confidentiality Agreement, or similar agreement, the Parties agree that the terms therein shall apply to any disclosure made hereunder. If no such agreement is in effect, iNETWORKS and Customer agree to maintain in strict confidence all technology, research, and development, business affairs, vendor relationships, pricing, methods and procedures, trade secrets, and other proprietary information of the other party disclosed under this Agreement. No obligation of confidentiality shall apply to disclosed information that the recipient: (a) already possesses without obligation of confidentiality; (b) develops independently; or (c) rightfully receives without obligation of confidentiality from a third party. The Parties' obligations under this Section shall survive expiration or termination of Services provided under this Agreement for a period of two (2) years. In the event the recipient is required by law, regulation or court order to disclose any confidential information, the recipient will promptly notify the disclosing party in writing prior to making any such disclosure in order to facilitate the disclosing party seeking a protective order or other appropriate remedy from the appropriate body. The recipient agrees to cooperate with the disclosing party in seeking such order or other remedy. The recipient further agrees that if the disclosing party is not successful in precluding the requesting legal body from requiring the disclosure of the confidential information, it will furnish only that portion of the confidential information which is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the confidential information. Customer grants iNETWORKS the right to disclose that it is a Customer of iNETWORKS and to display Customer's logo on iNETWORKS's website. iNETWORKS grants Customer the right to disclose that it is a supplier to Customer and to display iNETWORKS's logo on Customer's website. Customer acknowledges and agrees that, upon execution of this Agreement and subsequent Service Orders, iNETWORKS may release a public statement announcing the Agreement without further consent from Customer ("Press Release"). Any Press Release may include the identity of Customer, and other general terms such as the duration, scope and total value of the Agreement. iNETWORKS agrees to provide Customer with a copy of the proposed Press Release, and Customer will have three (3) business days to review and comment. Customer's failure to provide iNETWORKS with comments within such three-day period will constitute deemed consent and will not prohibit iNETWORKS from issuing any such Press Release. Except as expressly set forth in this Agreement, neither Party may issue any advertising or other publicity material using the other Party's name, marks, trademarks, or logo, or describing the specific terms of this Agreement without first receiving the other Party's written consent, which may not be unreasonably withheld, conditioned or delayed. 1.21 Arbitration: In the event of any dispute arising in connection with this Agreement and/or the Services provided hereunder, the Parties shall use good faith efforts to arrive at an agreeable resolution through discussions escalating to at least the Vice President level within the respective organizations. If the Parties are unable to agree upon a resolution, than either Party may initiate arbitration thirty (30) days or more after the date that it provides the other Party with written notice of its intention to initiate arbitration. Any arbitration hereunder shall be conducted in Chicago, Illinois in accordance with the United States Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Association ("AAA"). The arbitrators shall be appointed in accordance with the rules then prevailing of the AAA. The award rendered by the arbitrator(s) shall be final and binding upon the Parties hereto. Neither Party shall have the right to further appeal or redress the matters arbitrated except for the purposes of obtaining the judgment rendered by the arbitrator(s). Judgment upon any arbitration award may be entered and enforced in any court of competent jurisdiction. The Parties hereto agree that a prevailing Party shall be entitled to recover all reasonable costs and expenses (including all reasonable attorney's fees and disbursements) of such arbitration proceeding, as well as all cost for said proceeding. Such prevailing Party shall be entitled to reasonable attorney's fees and costs incurred in enforcing a judgment of the arbitrators separately from and in addition to any other amount included in such judgment.
1.22 Miscellaneous: 2. SERVICE DESCRIPTIONS iNETWORKS provides the following Services subject to the Terms
and Conditions of this Agreement including the Service Order and
any attachments. 2.1 Service Description: iNETWORKS' Metro and Long Haul Private
Line Service ("Private Line Service") provides domestic DS-1, DS-3
and Optical SONET (OC-N) circuits dedicated to Customer's use between
the established demarcation point of two (2) locations specified
in a Service Order served by iNETWORKS Point of Presences ("POP")
and meeting the technical requirements as defined below in Section
2.6, Technical Specifications. iNETWORKS provides the following
types of Private Line Service the type of which shall be specified
on the Service Order: 2.2 Charges: Charges for Private Line Services include Monthly
Recurring Charges ("MRCs") and Non-Recurring Charges ("NRCs") and
charges for other Services Customer may decide to order ("Additional
Charges") as identified in the Service Order. 2.3 Termination Liability: In addition to any applicable early
Termination Charges imposed on Customer pursuant to this Agreement,
Customer shall be liable for any cancellation or disconnection liability
that iNETWORKS incurs from Third Parties due to Customer's cancellation
or disconnection of a Third Party service associated with iNETWORKS
provided Private Line Service. 2.4 Outage Credits: Any continuous and interrupted period of time
when capacity is not available as defined in the Technical Specifications,
and which is not scheduled is an outage ("Outage"). An Outage shall
begin upon the earlier of iNETWORKS actual knowledge of the Outage
or iNETWORKS receipt of notice from the Customer for the Outage.
An outage shall end when the Services are operative as defined this
section. In the event of an Outage, Customer shall be entitled to
a credit ("Outage Credit") upon iNETWORKS receipt of Customer's
written request for such Outage Credit. Such written request must
be received by iNETWORKS within thirty (30) calendar days of the
Outage. If iNETWORKS does not receive Customer's written request
within such thirty (30) day period, Customer shall be deemed to
waive its right to the Outage Credit. The amount of the Outage Credit
for Private Line Services shall be calculated based on the following
formula in the event of an Outage for the affected Private Line
Service: Outage Credit = [(hours of Outage – 2 hours)/720
hours] x MRC charge of the affected Service. An outage credit shall
apply to the MRC for the Services between end locations of any Service
affected by an Outage provided, however, that if any portion of
the affected Service remains beneficially used or useable by Customer
between any intermediate locations (where Customer has installed
drop and insert capability) or end locations, the Outage Credit
shall not apply to that pro-rata portion of the Service. The length
of each Outage shall be calculated in hours and shall include fractional
portions thereof. Each Outage is treated as a discrete event and
the above calculation shall be given for each Outage. The maximum
Outage Credit for each Outage is fifty percent (50%) of the MRC
and in no event shall Customer receive a cumulative Outage Credit
greater than fifty percent (50%) of the MRC for Outages on a Service
in a single month. Outage Credits shall be credited on Customer's
next monthly invoice for the affected Service. Customer shall not
receive an Outage Credit if the Outage is (a) caused by Customer
or others authorized by Customer to use the Services; (b) due to
the failure of power, facilities, equipment, systems or connections
not provide by iNETWORKS; (c) the result of scheduled maintenance
where Customer has been notified of scheduled maintenance in advance;
or (d) due to a Force Majeure event as described in the Agreement.
Outage Credits do not apply to Third Party Services utilized by
iNETWORKS for Type 2, Type 3, and Type 4 Services, however iNETWORKS
will pass through to Customer any credits provided by a Third Party
to iNETWORKS as a result of an Outage on a Third Party network component
in an amount not to exceed the Outage Credit as describe in this
section. 2.5 SOLE REMEDY: SECTION 2.4 STATES CUSTOMER'S SOLE REMEDY FOR
SERVICE INTERUPTION UNDER THIS AGREEMENT, AND IN NO EVENT SHALL
INETWORKS BE LIABLE FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS,
OR LOST PROFITS SUFFERED BY THE CUSTOMER, REGARDLESS OF THE FORM
OF ACTION WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT,
INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND, WHETHER ACTIVE
OR PASSIVE. 2.6 Technical Specifications: (i) Private Line Service shall perform
in accordance with the technical specifications for network availability
as set forth in this Section. Interconnect specifications for DS-1
Service is provided in accordance with ANSI Standard T1.102 and
T1.403 (formerly AT&T Compatibility Bulletin 119). DS-1 Service
operates at 1.544 mega bits per second ("Mbps"). DS-3 Service is
provided in accordance with ANSI Standard T1.102 and T1.404. DS-3
Service operates at 44.736 Mbps. Optical SONET Services are provided
in accordance with ANSI Standard T1.105. OC-3 Service operates at
155.520 Mbps and is configured with 3 separate STS-1 signaling paths.
OC-3c Service operates at 155.520 Mbps and is configured with 1
STS-3c signaling path. OC-12 Service operates at 622.080 Mbps with
12 separate STS-1 signaling paths. OC-12c Service operates at 622.080
Mbps with 1 STS-12c signaling path. OC-48 Service operates at 2488.320
Mbps and is configured with 48 separate STS-1 signaling paths. The
standards by which Private Line Service is measured apply on a one-way
basis between POPs only for network availability and performance.
(ii) Network Availability is a measurement of the average percent
of total time that Service is operative when measured in a month.
DS1, DS-3 and Optical SONET Service is considered inoperative when
there has been a loss of signal or when two consecutive 15 second
loop-back tests confirm the observation of a bit error rate equal
to or worse than 1 x 10-6. For DS-N level Services, availability
shall be measured monthly and shall average 99.997% from POP to
POP. For OC-N level Services, availability shall be measured monthly
and shall average 99.997% from POP to POP. 2.7 Local Access: (i) iNETWORKS shall on behalf and upon request of the Customer, obtain facilities connecting Customer, with an approved vendor of iNETWORKS, to an iNETWORKS POP. Customer will execute a Letter of Agency, on such form as provided by iNETWORKS, authorizing iNETWORKS to interact directly with the provider(s) of these telecommunications access facilities. When iNETWORKS acts as Customer's agent, Customer is responsible for charges, including without limitation, monthly charges, usage charges, installation charges, non-recurring charges, or applicable termination/cancellation liabilities, of the provider(s) of telecommunications services to the iNETWORKS POP. In so doing, iNETWORKS shall be responsible for provisioning and the initial testing of an interconnection (reasonably coordinated with the Estimated Delivery Date) between such interexchange service set forth in the Service Order and a Customer designated termination point ("Local Access"). (ii) MRCs and NRCs to Customer for Local Access shall be established as of iNETWORKS acceptance of the Service Order relative thereto. MRCs for Local Access billing administered by iNETWORKS and charged to Customer shall be subject to adjustment at such time as iNETWORKS shall determine, not to exceed the prevailing charges of such Local Access providers as would otherwise be paid directly by Customer for the relevant interconnection or Service under the same term of service.
2.8 Other Services: iNETWORKS may provide other extraordinary Service
to the Customer for reasons including but not limited to: (a) Customer's
request to expedite Service availability to a date earlier than
iNETWORKS published standard intervals or a previously provided
Estimated Delivery Date; (b) Service redesign or other activity
occasioned by receipt of inaccurate information from Customer; (c)
reinstallation charges following suspension of the Service for cause
by iNETWORKS; (d) Customer's request for use of routes or facilities
other than those selected by iNETWORKS for provision of Service;
(e) extension of the demarcation point to a specific room, floor
or area; (f) other circumstances in which extraordinary costs and
expenses are generated by Customer and reasonably incurred by iNETWORKS
("Additional Charges"). MRCs and NRCs to Customer for Additional
Charges shall be established as of iNETWORKS acceptance of the Service
Order relative thereto. 2.9 Rates: iNETWORKS provides Service and/or a combination of Services to Customers on an Individual Case Basis ("ICB"). Charges for Services that iNETWORKS provides to Customers and other charges are identified in the Service Order and may vary depending on a number of factors including but not limited to:
© Copyright 2004-2007 iNETWORKS Group, Inc.
|
|
