Teleport Services Agreement - Williams Communicatiions Inc. and iBEAM Broadcasting Corp.
Agreement No.___________
[LOGO OF WILLIAMS]
Teleport Services Agreement
This is an agreement between Williams Vyvx Services, a business unit of Williams
Communications, Inc. ("Williams") and iBEAM Broadcasting Corporation
("Customer"), dated as of December 13, 1999, in connection with teleport
services to be provided by Williams from Williams Vyvx Teleport New York as its
primary signal path and Williams Vyvx Teleport Los Angeles as its redundant
signal path (the "Teleport(s)") to Customer (the "Agreement"). The terms of
this Agreement are as follows:
1. SERVICES. Williams shall provide Customer with the Teleport services as
further described on Exhibit A-1 attached hereto and made a part hereof
(collectively referred to herein as the "Services"). From time to time and
subject to availability, changes may be made in the Services which will be
reflected in amendments to the applicable Exhibit A or the addition of
additional Exhibit As. Each amendment shall be executed by authorized
individuals of both parties. Each Exhibit A shall be part of this Agreement
and incorporated herein. All Exhibit As shall be sequentially numbered for
ease of identification, e.g., Exhibits A-1, A-2, A-3 and so forth.
2. TERM. Upon signature by both parties this Agreement shall become effective
on the date first set forth above and shall continue in effect until the
expiration of any Exhibit A attached hereto (the "Term").
3. LATE PAYMENT. If any payment is not received by Williams within 30 days
after the date of invoice (the "Due Date"), then such overdue amount shall
be subject to late payment charges at the lower of 18% per annum or the
highest legally permissible rate of interest until the date payment is
actually received. If Customer in good faith disputes any portion of an
invoice it must pay the undisputed amount of the invoice on or before its
Due Date and provide written notice to Seller of the billing dispute at or
before the time of payment. Such notice must include documentation
substantiating the dispute. Customer's failure to notify Seller of a
dispute within one hundred-twenty (120) days after the Due Date shall be
deemed to be Customer's acceptance of such charges. The parties will make a
good faith effort to resolve billing disputes as expeditiously as possible.
If a dispute is resolved in favor of Customer, Customer shall receive an
adjustment on its next bill.
4. SUSPENSION RIGHT. In the event that Customer has failed to pay any
undisputed amount when due, Williams shall have the right to suspend
Services. Williams shall only exercise this Suspension Right by first
providing Customer with ten business days' written notice by facsimile. If
Williams receives payment from Customer of all amounts due within the ten-
day notice period, then Customer's Services shall not be suspended.
Suspension of Services does not affect Customer's obligation to pay the
Service Charges through the Term of this Agreement unless Customer
exercises its termination right as described in this Section 4. In the
event Williams suspends Customer's Services, Customer shall have the right
but not the obligation to terminate this Agreement at its sole discretion.
Customer's liability with respect to such termination shall be an amount
equal to twelve (12) months of Service from the date of termination
multiplied by the then current monthly Total Service Charge or an amount
equal to the number of months remaining in the Term multiplied by the then
current monthly Total Service Charge, whichever is less.
5. TERMINATION.
5.1 Customer shall have the right to terminate this Agreement upon a minimum of
thirty (30) days' written notice. This right to terminate may only be
exercised due to one of the following two circumstances:
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a. Monthly Interruptions exceed 43 minutes in three (3) consecutive
calendar months; or
b. A second Daily Interruption in excess of 24 consecutive hours (after
the first Daily Interruption in excess of 24 consecutive hours).
Customer must exercise its right to terminate pursuant to this Section 5.1
within thirty (30) days of the circumstance giving rise to Customer's right
to terminate. This right to terminate is Customer's only right to terminate
due to excessive Interruptions, and Customer may not invoke the general
termination right as set forth in Section 5.2 due to Interruptions.
5.2 Either party may terminate this Agreement due to a material breach of this
Agreement by the other party. The non-breaching party shall provide written
notice to the breaching party of the alleged breach, and the breaching party
shall have sixty (60) days to cure the breach. If the breach has not been cured
within this sixty-day period, then the non-breaching party may terminate upon
thirty (30) days' written notice. Customer shall pay Williams in accordance with
this Agreement for all Services performed up to and including the effective date
of termination.
6. TAXES. Customer acknowledges and understands that all charges are computed
exclusive of any applicable federal, state or local use, excise, gross
receipts, sales and privilege taxes, duties, fees or similar liabilities
(other than general income or property taxes), including without limitation,
any tax or charge levied to support the Universal Service Fund contemplated
by the Telecommunications Act of 1996, whether charged to or against
Williams, its suppliers or affiliates or Customer for the Service provided to
Customer ("Taxes"). Such Taxes shall be paid by Customer in addition to all
other charges provided for herein.
7. OUTAGE ALLOWANCE.
7.1 Calculation of Outage Allowance. If applicable, Williams shall grant
Customer an Outage Allowance for Services as follows:
(a) For purposes of this Agreement an interruption to Services
("Interruption") will be deemed to have occurred when Services are
either not provided at all or fail to meet the requirements of the
Agreement for a period of ten aggregate minutes on any given
calendar day (the "Daily Interruption") or forty-three (43)
aggregate minutes in any given calendar month (the "Monthly
Interruption"). An Interruption begins the earlier of when Customer
notifies Williams of the Interruption or when Williams is actually
aware of the Interruption or constructively aware through
recordation of the Interruption in Williams' log files. An
Interruption will be considered to have ended when Services in
accordance with this Agreement have been restored.
(b) In the event that Williams has a Daily Interruption as set forth in
Section 7.1(a) herein, Customer shall receive a credit for the day
the Daily Interruption occurred. Such credit shall include all fees
for the day containing the Daily Interruption related to the
Primary uplink (the "Uplink Outage Allowance"), which represents
62.5% of the total daily uplink fee.
(c) In addition to the Uplink Outage Allowance, a credit will be
provided to Customer by Williams based on the outage formula below
for the actual outage minutes related to the Space Segment (the
"Space Segment Outage Allowance").
Space Segment Outage Allowance = Interruption (in Minutes) x Transponder Charge
----------------------------------------------
43,200 (deemed number of minutes per month)
(d) In the event Williams has a Monthly Interruption as set forth in
Section 7.1(a) herein, Customer
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shall receive a credit for the month in which the Monthly
Interruption took place. Such credit will include an Uplink Outage
Allowance as defined herein for the month containing the Monthly
Interruption. If Customer receives a credit for a Monthly
Interruption, Customer shall not receive credits for any Daily
Interruptions which occurred during the month in which the Monthly
Interruption occurred.
7.2 Audio/Video. Intentionally Left Blank.
7.3 Exceptions to Outage Allowance. In no case shall an Outage Allowance be
made for any Interruption that is a result of, or attributable in whole
or in part to:
(a) Any failure on the part of Customer to perform its material or
operational obligations pursuant to this Agreement;
(b) The failure of Customer's Signal provided by Customer or by carriers
other than Williams;
(c) The failure of transmission lines, equipment, or other facilities
provided by the Customer;
(d) The failure or nonperformance of any earth station not provided by
Williams;
(e) Reasonable periodic maintenance as approved in advance by Customer,
provided Williams provides Customer with 72 hours advance notice of
such maintenance and cumulative maintenance time does not exceed two
(2) hours per calendar month;
(f) Interference from third party transmission or usage;
(g) Cooperative testing;
(h) Sun transit outage or rain fade; or
(i) Any other act or failure to act by Customer.
7.4 Credit Memoranda. Interruptions and Outage Allowances shall be
acknowledged by Williams through the issuance of credit memoranda. Such
memoranda shall be issued within fifteen (15) days of the close of each
calendar month and shall reflect all credit allowances accumulated by
Customer during such month. Customer may deduct from its next monthly
payment the amount specified in the credit memorandum received in the
preceding month.
7.5 Time Limitation. In no event shall Williams be liable for allowances for
interruption unless the claim for such allowance is made within fifteen
(15) days after the date of the interruption.
8. WILLIAMS' RIGHT TO RE-CONFIGURE TELEPORT. Williams shall have the right to
re-configure or relocate the Teleport. Notwithstanding the above, any re-
configuration must have minimal impact on any Customer performance
requirement, and any relocation will be within the continental United
States and will require that the two Teleports used by Customer must be at
a minimum 1000 miles apart and neither shall be located in Florida or
southern Texas.
9. RISK OF LOSS; INSURANCE.
9.1 Insurance Coverage. For Customer's Equipment (as defined in Exhibit A-1)
and Customer's employees on the Teleport premises, Customer will carry or cause
to be carried and maintained in force throughout the entire Term of this
Agreement insurance coverages as described in paragraphs (a) through (c) below
with insurance companies
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acceptable to Williams. The limits set forth below are minimum limits and will
not be construed to limit Customer's liability. All costs and deductible amounts
will be for the sole account of the Customer.
(a) Worker's Compensation insurance complying with the laws of the State
or States having jurisdiction over each employee, whether or not
Customer is required by such laws to maintain such insurance, and
Employer's Liability with limits of $500,000 each accident, $500,000
disease each employee, and $500,000 disease policy limit. If work is
to be performed in Nevada, North Dakota, Ohio, Washington, Wyoming
or West Virginia, Customer will participate in the appropriate state
fund(s) to cover all eligible employees and provide a stop gap
endorsement.
(b) Commercial or Comprehensive General Liability insurance on an
occurrence form with a combined single limit of $1,000,000 each
occurrence, and annual aggregates of $1,000,000, for bodily injury
and property damage, including coverage for blanket contractual
liability, broad form property damage, personal injury liability,
independent contractors, products/completed operations, and when
applicable the explosion, collapse and underground exclusion will be
deleted.
(c) Automobile Liability insurance with a combined single limit of
$1,000,000 each occurrence for bodily injury and property damage to
include coverage for all owned, non-owned, and hired vehicles.
9.2 Waiver of Subrogation. In each of the above described policies, 9.1(a)
and 9.1(c), Customer agrees to waive and will require its insurers to
waive any rights of subrogation or recovery they may have against
Williams, its parent, subsidiary, or affiliated companies. Customer does
not waive and its insurers will not waive any rights of subrogation or
recovery they may have against Williams, its parent, subsidiary, or
affiliated companies under 9.1(b).
9.3 Additional Insureds. Under the policies described in Sections 9.1(b) and
9.1(c) above, Williams, its parent, subsidiary and affiliated companies
will be named as additional insureds as respects Customer's operations
and as respects any work performed under this Agreement. Any costs
associated with naming these additional insureds will be the
responsibility of Customer. These policies will be primary insurance as
respects Williams.
9.4 Certificates of Insurance. Non-renewal or cancellation of policies
described above will be effective only after written notice is received
by Williams from the insurance company thirty (30) days in advance of any
such non-renewal or cancellation. Prior to commencing the Collocation
Service hereunder, Customer will deliver to Williams certificates of
insurance on an ACORD 25 or 25S form evidencing the existence of the
insurance coverages required above. In the event of a loss or claim
arising out of or in connection with the work performed under this
contract, Customer agrees, upon request of Williams, to submit the
original or a certified copy of its insurance policies for inspection by
Williams.
9.5 Risk of Loss. Williams will not insure nor be responsible for any loss or
damage, regardless of cause, to property of any kind, including loss of
use thereof, owned, leased or borrowed by the Customer, or its employees,
servants or agents.
9.6 Insurance Requirement for Contractors. If Customer utilizes contractor(s)
per this Agreement, then Customer shall require such contractor(s) to
comply with these insurance requirements and supply certificates of
insurance before any work commences.
10. CONTRACT NOTICES. Any required notices pursuant to this Agreement shall be
sent by facsimile, with confirmation by overnight courier to the parties at
the following addresses:
Williams Vyvx Services, a business unit of iBEAM Broadcasting Corporation
Williams Communications, Inc. 645 Almanor Ave., Suite 100
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One Williams Center, MD 26-3 Sunnyvale, CA 94086
Tulsa, OK 74172 Tel: (408) 523-1600
Telephone: (918) 573-5602 Fax: (408) 730-8937
Fax: (918) 574-6042 Attn: CFO
Attention: Contract Administration
11. OPERATIONAL NOTICES. If Customer has any technical problems with
Customer's Equipment, Customer's signal(s) or the Services, Customer may
call the Primary Teleport at (732)-969-3191 or (732)-969-3610 or the
Secondary Teleport at (800)-922-4424 or (909)-943-5399 on a 24 x 7 basis.
Williams will communicate with Customer as promptly as possible regarding
any technical problems with Customer's Equipment, Customer's signal(s) or
the Services. For purposes of these communications from Williams, Customer
agrees that Williams should contact the operational contacts of Customer,
in the order listed in Exhibit B hereto.
Customer shall update its list of Operational Contacts with Williams as
needed. Williams shall not be responsible for any Interruptions or other
technical problems with Customer's Equipment, Customer's signal(s) or the
Services in the event that Williams has attempted to communicate with
Customer's Operational Contacts according to the information provided by
Customer to Williams and Williams is unable to establish communications
with them.
12. LIMITATION OF LIABILITY
12.1 EXCEPTING ONLY LIABILITY FOR WILLIAMS' RECKLESS OR WILLFUL
MISCONDUCT, WILLIAMS' LIABILITY ARISING OUT OF ITS PROVISION OF
SERVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO LIABILITIES
ARISING OUT OF WILLIAMS' NEGLIGENCE, MISTAKES AND OMISSIONS,
INTERRUPTIONS, DELAYS, ERRORS, OR OTHER DEFECTS IN THE SERVICES OR
BREACH OF CONTRACT OR ARISING OUT OF THE FAILURE TO FURNISH
SERVICES, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, SHALL
BE LIMITED TO THE EXTENSION OF ALLOWANCES FOR INTERRUPTIONS AS SET
FORTH IN THIS AGREEMENT. SUCH ALLOWANCES FOR INTERRUPTION SHALL BE
THE SOLE REMEDY OF CUSTOMER, INCLUDING ANY END USER OF CUSTOMER,
AND THE SOLE LIABILITY OF WILLIAMS HEREUNDER. WILLIAMS' LIABILITY
FOR DAMAGES OR LOSSES OF ANY KIND ARISING OUT OF ITS FURNISHING
SERVICES SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ITS FIXED
MONTHLY OR OTHER CHARGE ALLOCABLE TO THE FAULTY OR DEFECTIVE
SERVICE.
12.2 NOTWITHSTANDING THE PROVISIONS OF THE PRECEDING SUBPARAGRAPH,
WILLIAMS SHALL NOT BE LIABLE TO CUSTOMER OR ANY END USER FOR ANY
LOSS OF, DEFECTS IN OR ANY INABILITY TO FURNISH SERVICE DUE TO
ACTS OF GOD, ACTS OF GOVERNMENT, WARS, RIOTS, STRIKES, FAILURE OF
A TRANSPONDER, FAILURE OF A SATELLITE, FAILURE OF ANY OTHER
TRANSMISSION EQUIPMENT OR OTHER CAUSES BEYOND WILLIAMS' CONTROL.
12.3 ANY AND ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE SERVICES
INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A SPECIFIC PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED.
CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS WILLIAMS FROM ANY
CLAIMS MADE UNDER A WARRANTY OR REPRESENTATION MADE BY CUSTOMER TO
ANY THIRD PARTY WITH RESPECT TO THE SERVICES.
12.4 EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST
PROFITS),
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REGARDLESS OF THE FORESEEABILITY THEREOF, OCCASIONED BY THE
TERMINATION OF CUSTOMER'S RIGHTS TO USE, OR THE PREEMPTION OF OR
THE FAILURE OF, OR LOSS OF TECHNICAL QUALITY OF, THE SERVICES OR BY
ANY DELAY IN COMMENCEMENT OF THIS AGREEMENT OR BY ANY OTHER CAUSE
OR MATTER WHATSOEVER.
12.5 EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT
SHALL CUSTOMER BE LIABLE TO WILLIAMS FOR DIRECT DAMAGES IN EXCESS
OF ONE MILLION DOLLARS.
13. CUSTOMER'S CONTENT
13.1 Responsibility for Content. Customer shall be solely responsible
for all content transmitted by Williams as part of the Services.
Further, Customer shall make all arrangements with other common
carriers, stations, networks, sponsors, music licensing
organizations, performers, representatives or other parties for the
authorizations necessary to avail itself of the Services. Customer
shall indemnify, defend, and save harmless Williams from any
liability arising out of failure to make such arrangements.
13.2 Content Indemnity. Customer shall indemnify, defend, and save
harmless Williams from and against all loss, liability, damage and
expense, including reasonable attorneys' fees, due to claims arising
out of the content of any programming transmitted over Williams'
facilities pursuant to this Agreement including without limitation,
any claim for libel, slander, or infringement of copyright and any
other claim resulting from any act or omission of Customer arising
from the use of Williams' facilities or the Services provided that
Customer be given immediate written notice of any such claims and of
any suits brought or threatened against Williams and authority to
assume the sole defense thereof through its own counsel and to
compromise or settle any suits so far as this may be without
prejudice to Williams' rights.
13.3 No Violation of Law. Customer shall not use the Services for an
unlawful purpose, including (without limitation) any use which
constitutes a violation of any local, state, federal, national or
international laws. Williams shall have the right to terminate this
Agreement and the Services provided hereunder without liability to
Customer in the event that Williams, its officers, employees or
agents, becomes the subject of any investigation, or is threatened
with or made a party to any administrative proceeding or litigation,
related to the alleged illegal use of the Services by Customer.
Notwithstanding the foregoing, Williams will not terminate this
Agreement pursuant to this Section 13.3 if, immediately upon
notification by Williams of such alleged illegal use, Customer is
able to satisfy Williams subject to Williams' sole and reasonable
discretion within forty-eight (48) hours that Customer has ceased
the aforementioned alleged illegal use.
14. NO THIRD-PARTY BENEFICIARY. The provisions of this Agreement are for the
benefit only of the parties hereto, and no third party may seek to enforce, or
benefit from these provisions.
15. LEGAL EXPENSES. If any proceeding is brought for the enforcement of this
Agreement, or because of an alleged or actual dispute, breach, default or
misrepresentation in connection with any of the provisions of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs and expenses incurred in such action or
proceeding in addition to any other relief to which such party may be entitled.
16. FORCE MAJEURE. Notwithstanding any other provision of this Agreement,
neither Williams nor Customer shall be held liable for any delay or failure to
perform any part of this Agreement (other than non-payment of amounts due
hereunder) for any cause beyond its control and without its fault or negligence,
including but not limited to acts or omissions of civil or military authorities,
national or local emergencies, government regulations, embargoes, epidemics,
wars, terrorist acts, sabotage, riots, insurrections, fires, lightning, sun,
hail, high winds or
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other adverse weather conditions , explosions, nuclear accidents, strikes,
extended power blackouts, natural disasters including but not limited to
earthquakes, floods or volcanic action, failure of satellite transponder or
failure of any third party facilities, equipment or services (outside of the
control of Williams and its subcontractors) or any law, regulation or order of
any government agency or court of competent jurisdiction affecting either of the
parties hereto in the performance of their obligations hereunder.
17. INDEPENDENT CONTRACTORS. The parties to this Agreement are independent
contractors, and none of the provisions of this Agreement shall be interpreted
or deemed to create any relationship between Williams and Customer other than
that of independent contractors. Without limiting the generality of the
foregoing, Williams and Customer shall have sole responsibilities for the
withholding of all federal and state income taxes, unemployment insurance tax,
social security tax and other withholding with respect to payments made by it to
its employees performing services for it under this Agreement. Neither party's
directors, officers, employees, contractors or agents shall be deemed employees
of the other party or shall be entitled to compensation or any employment
benefits of any kind provided by the other party to its employees.
18. WAIVER. No delay or failure of Williams or Customer to insist on
performance of any of the terms or conditions herein or to exercise any right or
privilege, or either party's waiver of any breach hereunder, shall be construed
to be a waiver thereof or a waiver of any other terms, conditions or privileges,
whether of the same or similar type.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its choice
of law provisions.
20. SEVERABILITY. If any term or provision of this Agreement shall, to any
extent, be determined to be invalid or unenforceable by a court or body of
competent jurisdiction, then (a) both parties shall be relieved of all
obligations arising under such provision and this Agreement shall be deemed
amended by modifying such provision to the extent necessary to make it valid and
enforceable while preserving its intent, and (b) the remainder of this Agreement
shall be valid and enforceable.
21. SURVIVAL OF TERMS AND CONDITIONS. The terms and conditions of this
Agreement which by their nature extend beyond termination of this Agreement
shall survive the expiration or termination of this Agreement to the full extent
necessary for their enforcement and for the protection of the party in whose
favor they operate.
22. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall constitute an original and all of which, when taken together, shall
constitute one agreement.
23. PARTIES BOUND BY AGREEMENT; ASSIGNMENT. This Agreement is binding upon and
shall inure to the benefit of the parties hereto and upon their respective
successors and permitted assigns. Customer may not assign this Agreement without
the prior written consent of Williams, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, upon written notice, either party may
assign to a parent, affiliate, subsidiary company and/or any entity that
acquires, substantially all the shares or assets of a Party, without the consent
of the other.
24. OUTSOURCING OF NETWORK MANAGEMENT. Should Customer establish an outsourcing
relationship with a third party to manage its network, Williams agrees to work
with such third party as designated by Customer in order to facilitate optimum
performance of Customer's network.
25. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof and supersedes any
prior understandings, oral agreements and/or writings between the parties
regarding the subjects within this Agreement. This Agreement may only be amended
or modified in writing signed by Customer and Williams.
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IN WITNESS WHEREOF the parties have executed this Agreement by the hand of their
respective duly authorised officers.
WILLIAMS VYVX SERVICES, A BUSINESS UNIT iBEAM BROADCASTING CORPORATION
OF WILLIAMS COMMUNICATIONS, INC.
/s/ Laura Kenny /s/ Chris L. Dier
------------------------------------------ ----------------------------------
SIGNATURE SIGNATURE
Laura Kenny Chris L. Dier
------------------------------------------ ----------------------------------
PRINT NAME PRINT NAME
Sr. VP & General Manager CFO
------------------------------------------ ----------------------------------
TITLE TITLE
12-14-99 12/18/99
------------------------------------------ ----------------------------------
DATE DATE
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Agreement No.______________
[LOGO OF WILLIAMS]
VYVX SERVICES
Teleport Services Agreement - Exhibit A-1
1. SERVICE DESCRIPTION. Williams shall provide to Customer the use of the
Teleport for a dedicated use transmission, based on the terms contained herein,
to uplink Customer's signal(s) from the Teleport to Williams-provided space
segment on TelStar 7, transponder 15.
2. SERVICE INITIATION. Williams shall initiate the Services described herein
on January 4, 2000 (the "Service Initiation Date"), provided, however that
Customer has signed this Agreement no later than December 14, 1999. Customer's
obligation to pay for the Services shall begin on the Service Initiation Date.
Loral has agreed to provide a transponder for testing purposes up to a maximum
of 15 MHz, and Williams will provide the Services during a Testing Period, which
shall begin as early as possible during the week of December 13, 1999 and
continue until January 2, 2000. Loral has informed Williams that Telstar 7,
Transponder 3 has been designated for such Testing Period and service will
switch to Telstar 7, Transponder 15 on January 4, 2000.
3. TERM. The term of this Exhibit A-1 shall begin on the Service Initiation
Date and shall continue for a period of thirty-six (36) months, or until
December 31, 2002 (the "Original Term").
4. DEMARCATION POINT FOR SERVICES. The Demarcation Point for Services
described herein shall be defined as either
4.1 RF Chain Demarcation
a) X Customer provided equipment ("CPE") demarcation - the
----
DVB/ASI data stream from Customer Provided encapsulator to the
input of Williams provided modulator for all uplink services
from the Teleport;
b) Williams provided equipment demarcation - the Telco
----
demarcation point as defined by the local loop provider (RBOC,
CAP, etc.), with Williams responsible for connectivity between
RF Chain and local loop demarcation;
4.2 Local Loop Demarcation
a) Williams provided local loop demarcation - Customer
----
premise - Williams provisions the local loop between the
Customer premise and the respective local facility, whether
that facility is a Williams POP or 3rd party POP, with the
demarcation point being the Customer end of the local loop;
b) Williams provided local loop demarcation - Teleport
----
premise - For the Primary uplink out of New York, Williams
provisions the local loop between the Teleport and the
respective local facility, whether that facility is a Williams
POP or 3rd party POP, with the demarcation point being the
local facility end of the local loop. Williams is responsible
for provisioning and continued operation of the local loop for
the Primary signal path as defined herein;
c) Customer provided local loop demarcation - Customer
----
premise - Customer provisions the local loop between the
Customer Premise and respective local facility, whether that
facility is a Williams POP or 3rd party POP with the
demarcation point being the local facility end of the local
loop;
d) X Customer provided local loop demarcation - Teleport
----
premise - For the Redundant uplink out of Los Angeles,
Customer provisions the local loop between the Teleport and
the respective local facility, whether that facility is a
Williams POP or 3rd party POP, with the demarcation point
being the Teleport end of the local loop. Customer is
responsible for provisioning, payment and continued operation
of the local loop for the Redundant signal path as defined
herein.
4.3 IXC Demarcation. Intentionally Left Blank.
4.4 "Other." Intentionally Left Blank.
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5. WILLIAMS RESPONSIBILITIES. (collectively, the Service[s])
[GRAPHIC OMITTED]
Generic Signal Path diagram
5.1 Terrestrial Fiber Connectivity:
a) Local Access. Customer Premise (City A) Intentionally Left Blank.
b) Interexchange Fiber. Intentionally Left Blank.
c) Local Access - Teleport (City Z)
City Z Customer Premise: IXC POP, 12th Flr, 60 Hudson St
City Z NPA / NXX: T.B.D.
Williams Teleport: Primary - Williams Vyvx Teleport New
York, 27 Randolph Street, Carteret, NJ
07008
Circuit Type: _________ Analog X Digital
--------
Circuit Capacity: DS-3(45 Mbps)
Transmission Type: _________ Simplex X Duplex
--------
5.2 Space Segment (the "Transponders")
a) Williams shall provide two Ku-band transponders (the "Transponders") on
Telstar 7 at the 129 West orbital slot. The Transponders shall be provided
on a "ramp-up" schedule by which Customer commits to pay for increasing
amounts of the space segment on the Transponders. The ramp-up schedule is
depicted on the Ramp-Up and Pricing Schedule attached hereto as Exhibit D.
Customer's commitment for the space segment depicted on Exhibit D begins on
the first day of the first month of the respective quarter identified. With
appropriate notice, Customer may accelerate the ramp-up of space segment,
together with the corresponding charges. Once an increased level of space
segment has been activated, however, the level may not be decreased. The
full use of both Transponders as depicted on Exhibit D beginning no later
than [*] shall continue through the end of the Term of the Agreement. The
second transponder is subject to the Right of First Refusal described below
in subparagraph (c).
b) Additional bandwidth is available under the Bursting provision in Section
6.6 (b) herein.
c) Williams shall provide Customer with a Right of First Refusal on a Fully-
Protected Ku-band transponder on Telstar 7. The Right of First Refusal shall
be activated at the time Loral Skynet receives a bona fide offer for Loral's
last Fully Protected Ku-band transponder on Telstar 7. In order to implement
such Right-of-First Refusal, Williams shall provide Customer with written
notice that Loral has received such bona fide offer. If Customer chooses to
lease the transponder in question, Customer must respond, in writing, to
Williams within twenty (20) calendar days of Customer's receipt of Williams'
written notice and must begin full service on the second transponder no
later than forty-five (45) days following receipt of Williams' written
notice. The monthly rate for the second transponder shall
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect
to the omitted portions.
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immediately be [*] without any ramp-up schedule as depicted on Exhibit D
hereto. Customer's failure to respond to Williams' notification shall be
deemed a refusal of the second transponder. This Right of First Refusal
terminates when service on the second transponder begins on [*] or when
Customer declines service under the Right of First Refusal.
(d) Williams' Standard Satellite Terms and Conditions are attached as Exhibit C
and are considered an integral part of the Agreement. In the event of
conflict, the terms of this Agreement shall supersede the terms and
conditions in Exhibit C.
5.3 Uplinking/Downlinking. Williams shall modulate Customer's DVB/ASI data
stream to 70 MHz, upconvert the signal to 14 GHz and then transmit the
signal from the Teleport to the Transponder in accordance with the
predicted performance parameters which have been established based on the
technical specifications calculated in the New York link budget attached as
Exhibit A-1(a). Customer acknowledges and agrees that any equipment
substitutions or technical changes made by Customer or Williams may affect
the attached link budget calculations and could result in corresponding
changes to the following predicted performance specifications:
Williams will provide a Primary signal path via its New York Teleport. The
Customer's signal will be transmitted from New York at a calculated power
level of 73.11 dBW to TelStar 7's Ku-band transponder 15, resulting in a
predicted downlink EIRP of 47 dBW per carrier to CONUS. Williams
understands that this signal will be received by Customer's downlink
equipment utilizing a minimum 1.0 meter antenna in CONUS providing
approximately 40 dBi gain at 12 GHz. Calculations are based on Loral Skynet
provided specifications for TelStar 7. These values assume 6 dB of rain
fade margin and 99.7% equipment availability. Additionally, these values
predict an approximate data rate capacity of 39 MBps.
Williams will provide a Redundant signal path via its Los Angeles Teleport.
The Customer's signal will be transmitted from Los Angeles at a calculated
power level of 70.34 dBW to TelStar 7's Ku-band transponder 15, resulting
in a predicted downlink EIRP of 47 dBW per carrier to CONUS. Williams
understands that this signal will be received by Customer's downlink
equipment utilizing a minimum 1.0 meter antenna in CONUS providing
approximately 40 dBi gain at 12 GHz. Calculations are based on Loral Skynet
provided specifications for TelStar 7. These values assume 6 dB of rain
fade margin and 99.7% equipment availability. Additionally, these values
predict an approximate data rate capacity of 39 MBps.
When Williams has actual knowledge that there is an outage to Customer's
Service, Williams must switch signal delivery from the Primary uplink to
the Redundant uplink as described herein. Williams will switch the signal
within five (5) minutes upon Williams' actual knowledge of the outage. To
accommodate Williams' switch of signal delivery, Customer shall maintain
the delivery of the data signal to the Redundant uplink on a continuous
basis.
It is understood and agreed to by both parties that while these initial
uplink systems do not support iBEAM's long term growth requirements,
approximately [*] MBps for a CONUS service, but they do provide sufficient
capacity for iBEAM to develop their service offering. At such time that
both parties deem this current capacity to be insufficient to meet iBEAM's
market requirements, both parties will work together to expand these
systems to support iBEAM's long term growth requirements of [*] MBps. Such
expansion of Services shall be reflected in an amendment to this Agreement.
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------
Uplink Uplink Downlink Downlink
Direction Data Rate Freq. Polarity Freq. Polarity Modulation FEC
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Simplex Uplink-NY 39 MBps 14300 Horizontal 12000 Vertical QPSK 3/4
MHz MHz
-----------------------------------------------------------------------------------------------------------
Simplex Uplink-LA 39 MBps 14300 Horizontal 12000 Vertical QPSK 3/4
MHz MHz
-----------------------------------------------------------------------------------------------------------
</TABLE>
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
5.4 Equipment. Williams shall provide the necessary equipment to uplink
Customer's signal(s) to/from the customer provided modem in accordance with
this Agreement. Uplink system will operate with data modulators, frequency
upconverters and High Power Amplifiers in a 1:N automatic redundancy mode
where N<4. Williams will supply an environmentally controlled facility,
including 2 19" racks for Customer's equipment and 2 POTS lines for remote
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